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ECI - General. Sochnyeva v. Lawyers’ Professional Indemnity Company
In Sochnyeva v. Lawyers’ Professional Indemnity Company (Div Court, 2024) the Divisional Court allowed an appeal against a motion to "strike out the appellant’s statement of defence without leave to deliver any further statement of defence", here where the underlying allegation was that of fraudulent conveyance to defeat creditors.
Here the appeal was granted for problems in accessing Caselines:[4] In this endorsement, I do not recite either the long history that led to the Decision or the reasons for decision because a ground that was not before Jolley A.J. determines this appeal. Specifically, the appellant has put forward evidence that she tried to, but could not, obtain the information needed to join the virtual hearing. The appellant wrongly says that LawPRO was obliged to provide it – it was not. But I accept the evidence, including a screen shot, that the CaseLines program indicated that the appellant was not authorized to view the case. This was the Sunday before the hearing on Monday morning.
[5] While I agree with LawPRO that the appellant could have, and apparently did not, take steps to draw this to the prompt attention of Jolley A.J., she did promptly raise the issue in this Court when commencing the appeal shortly thereafter.
[6] The only evidence before me supports that denial of access. I have no evidence of any communications to the appellant, in advance, that would address the denial of access to CaseLines and the link for the hearing.
[7] LawPRO accepts that a fair hearing requires that all parties have a reasonable opportunity to participate. However, it invites me to dismiss the appeal despite that fairness issue, relying on R. v. Nahanee, 2022 SCC 37, as followed in cases such as Jones v. Quinn, 2024 ONCA 315. In R. v. Nahanee, a sentencing judge had failed to provide notice and an opportunity for further submissions regarding a harsher sentence than that proposed by the Crown. A majority of the Supreme Court found that the judge had erred in principle but that it was not a breach of procedural fairness unless the appellant showed that the submissions that would have been provided would have had an impact on the sentence. . Tulshi v. Vecchio
In Tulshi v. Vecchio (Div Court, 2024) the Divisional Court set out an e-perfection 'guide' for unrepresented presenters:[15] If the appeal proceeds, the appellants’ factum shall be delivered by no later than May 23, 2024.
[16] The respondent’s factum shall be delivered by no later than June 30, 2024.
[17] The Toronto Registrar of the Divisional Court is asked to provide the parties with a hearing date before a panel of three judges of the Divisional Court for an estimated two hours on a date no earlier than July 1, 2024 and to advise the parties of the date as soon as practicable.
[18] The parties will receive an invitation to upload their materials to CaseLines.
[19] The parties are to upload their materials to CaseLines promptly after service or as soon as practicable after the CaseLines link has been provided. All materials are to be uploaded at least four weeks before the hearing date.
[20] Materials are to be uploaded in accordance with Part III.A of the current Consolidated Practice Direction for Divisional Court Proceedings. The parties are also required to file their materials with the Court electronically and pay filing fees in accordance with the Part I.D of the Consolidated Practice Direction:
Consolidated Practice Direction for Divisional Court Proceedings | Superior Court of Justice (ontariocourts.ca)
[21] Information about CaseLines is available on the Court’s website, including Tips for Counsel and Self-represented Parties, at:
https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/supplementary-notice-september-2-2020/caseline-tips/
[22] The parties are reminded of the following:
[23] To hyperlink the indexes to all documents uploaded to CaseLines;
[24] To upload any agreement on costs or their costs outlines the week before the matter is scheduled to be heard; and
[25] During oral argument, the court expects them to refer to materials by CaseLines page numbers, and not by reference to the page number or tabs in the record.
[26] Additional Resources:
https://www.ontariocourts.ca/scj/files/pubs/guide-div-ct-judicial-review-EN.pdf
ontariocourts.ca/scj/files/pubs/guide-div-ct-judicial-appeals-EN.pdf . Monkhouse Law PC v Ali
In Monkhouse Law PC v Ali (Div Court, 2024) the Divisional Court granted an unusual 'email consent' motion, yet another sign of the effect of electronic communication on traditional court practices:1. Mr. Ali provided his consent to the relief sought by a series of emails to counsel for the appellant. Counsel forwarded the emails to the court. The emails were not appended to an affidavit. Neither was a consent form signed by Mr. Ali.
2. Time is tight and Mr. Ali professes to be both away and ill. I take counsel at their word and grant the relief sought. This process is not without risk however and is not to be encouraged.
3. This appeal is stayed pending the outcome of parallel proceedings before the Court of Appeal on the terms set out in the order signed. . Ontario Civilian Police Commission v Moreira
In Ontario Civilian Police Commission v Moreira (Div Court, 2024) the Divisional Court considered an application under s.33 of the Public Inquiries Act, here specifically whether particular materials covered by a subpoena were solicitor-client privileged.
In this quote the court sets out Caseline and related procedures to be followed for a Public Inquiries hearing:[12] In my view this matter should be heard and resolved quickly. The applicant’s inquiry is ongoing in real time. If the parties were so inclined, they could readily find an arbitrator, an experienced litigator, or a judge, persona designata, to spend an hour looking at the documents and be done with this without spending months and thousands of dollars. If court proceedings are required then the following schedule applies and may not be amended except with leave of a judge:a. The respondent’s evidence shall be delivered by April 30, 2024;
b. Cross-examinations, if any, will be completed by May 17, 2024;
c. The applicant’s factum will be delivered by May 27, 2024;
d. The respondent’s factum will be delivered by June 7, 2024. [13] The Toronto Registrar of the Divisional Court is asked to provide the parties with a hearing date before a single judge of the Divisional Court (who is sitting on Divisional Court motions that week) for an estimated two hours on a date agreeable to both counsel in the last two sitting weeks of June (other than June 20, 25, and 26, 2024) and to advise the parties of the date as soon as practicable.
[14] The following directions apply to the hearing of the application in June:The parties will receive an invitation to upload their materials to CaseLines.
The parties are to upload their materials to CaseLines promptly after service or as soon as practicable after the CaseLines link has been provided. All materials are to be uploaded at least four weeks before the hearing date.
Materials are to be uploaded in accordance with Part III.A of the current Consolidated Practice Direction for Divisional Court Proceedings. The parties are also required to file their materials with the Court electronically and pay filing fees in accordance with the Part I.D of the Consolidated Practice Direction:
Consolidated Practice Direction for Divisional Court Proceedings | Superior Court of Justice (ontariocourts.ca)
Information about CaseLines is available on the Court’s website, including Tips for Counsel and Self-represented Parties, at:
https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/supplementary-notice-september-2-2020/caseline-tips/
The parties are reminded of the following:
. To hyperlink the indexes to all documents uploaded to CaseLines;
. To upload any agreement on costs or their costs outlines the week before the matter is scheduled to be heard; and
. During oral argument, the court expects them to refer to materials by CaseLines page numbers, and not by reference to the page number or tabs in the record.
Additional Resources:
https://www.ontariocourts.ca/scj/files/pubs/guide-div-ct-judicial-review-EN.pdf
ontariocourts.ca/scj/files/pubs/guide-div-ct-judicial-appeals-EN.pdf . Mitanidis v Ontario (Minister of Transportation)
In Mitanidis v Ontario (Minister of Transportation) (Div Court, 2024) the Divisional Court dismisses a JR stay motion against the Minister of Transportation's "suspension of his license and the decision requiring him to produce medical evidence of his fitness to drive pending the hearing of the application", here where the applicant is 83 years old.
Here the court helpfully sets out JR case management procedures for a (now) self-representing party, seeking to JR the Minister's decisions. These procedures have changed much in the COVID and post-COVID eras:Schedule and Case Management Directions
[25] The following schedule applies for the hearing of this application:a. The Minister and the LAT will provide records of the proceedings before them by the end of April. The Minister’s record shall contain communication exchanged with the police officer who reported the applicant to the Minister;
b. The applicant will deliver his factum by June 28, 2024;
c. The Minister and the LAT will deliver their factums by August 23, 2024; [26] The following standard case management directions apply:The parties are to follow and to seek court approval for any modifications to the foregoing schedule.
The Toronto Registrar of the Divisional Court is asked to provide the parties with a hearing date before a panel of three judges of the Divisional Court for an estimated one-half day on a date no earlier than September 1, 2024 and to advise the parties of the date as soon as practicable.
The parties will receive an invitation to upload their materials to CaseLines.
The parties are to upload their materials to CaseLines promptly after service or as soon as practicable after the CaseLines link has been provided. All materials are to be uploaded at least four weeks before the hearing date.
Materials are to be uploaded in accordance with Part III.A of the current Consolidated Practice Direction for Divisional Court Proceedings. The parties are also required to file their materials with the Court electronically and pay filing fees in accordance with the Part I.D of the Consolidated Practice Direction:
Consolidated Practice Direction for Divisional Court Proceedings | Superior Court of Justice (ontariocourts.ca)
Information about CaseLines is available on the Court’s website, including Tips for Counsel and Self-represented Parties, at:
https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/supplementary-notice-september-2-2020/caseline-tips/
The parties are reminded of the following:
. To hyperlink the indexes to all documents uploaded to CaseLines;
. To upload any agreement on costs or their costs outlines the week before the matter is scheduled to be heard; and
. During oral argument, the court expects them to refer to materials by CaseLines page numbers, and not by reference to the page number or tabs in the record.
Additional Resources:
https://www.ontariocourts.ca/scj/files/pubs/guide-div-ct-judicial-review-EN.pdf
ontariocourts.ca/scj/files/pubs/guide-div-ct-judicial-appeals-EN.pdf
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