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Fairness - Non-Participation. 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.
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