Court File and Parties
Court File No.: FS – 16-86653 Date: 2020 06 19
Ontario Superior Court of Justice
Between: Natalia Makeeva, Applicant Ruslana Korytko, for the Applicant
And: Andrey Makeev, Respondent Galyna Pribytkova, for the Respondent
Heard: December 16, 2019
Endorsement
Tzimas J.
Introduction
[1] A Final Judgment in the family dispute between these parties was released on July 18, 2019, following a 10-day trial in January 2019. In December 2019, the Applicant brought a motion to effectively reopen the case and admit new evidence related to two issues: the Respondent’s employment income and his counsel’s alleged misconduct in relation the registration of a security instrument on the matrimonial home.
[2] The motion was heard on December 16, 2019 following which I reserved. The release of my endorsement has been delayed as I did not have access to the file during the COVID19 emergency period. I was able to access my office and file earlier this week and accordingly here is my decision.
[3] For the reasons that follow, the motion is dismissed with costs.
Background
[4] An underlying challenge in this case has been the determination of the Respondent’s income. My full consideration of this issue is contained in paragraphs 40 – 85 of my final decision of July 18, 2019 at 2019 ONSC 4334. The specific challenges rested with the mischaracterization of the Respondent as an “electrician” and the corresponding earning he would have had. At paragraph 53 of my decision I held as follows:
[53] Whatever the explanation, given the clear and unequivocal evidence before this court that the Respondent is not a Master Electrician, that he never obtained a license as a Master Electrician, that he only ever had a license as a journeyman, that he never undertook any work as a Master Electrician, and that he never earned an hourly wage of $30, I am not bound by the interim ruling or any implication that the Respondent was a fully licensed electrician. The Respondent is not and never was a fully licensed electrician that would have warranted any income imputation at such a high level. I will go further to conclude that in the face of the actual evidence before me, that interim order must now be adjusted to account for my actual findings.
[5] I also note that one of the animating reasons for this motion appeared to be the exception that the Applicant’s counsel took with my finding at paragraph 51 that on a motion for interim relief, the court was grossly misled on the subject of the Respondent’s qualifications, even though that paragraph and those associated with the distinctions between the colloquial references to an “electrician”, a “master electrician” and a “journeyman” lay the problem and the confusion, principally at the feet of the Respondent.
[6] Insofar as the specific relief is concerned, the request that the court take judicial notice of the Government of Canada’s National Classification Reports as of April 10, 2017 and its updated version, goes directly to the issue of the Respondent’s potential income. The registration of Ms. Pribytkova’s private mortgage on the matrimonial home, securing her loan to her client of $20,000, and her failure to disclose that to the court, goes to the integrity of the whole trial and raises the prospect that if her conduct is as egregious as it would appear, the appropriate relief would rest with the declaration of a mistrial. With these preliminary observations, I turn to my specific analysis.
Analysis
[7] Before I go any further, it caused me some significant concern that the Applicant’s counsel presented her motion as a way of avoiding appellate review. The Applicant’s counsel advised me that she filed a Notice of Appeal with the Ontario Court of Appeal to preserve her client’s appeal rights but that she hoped that in light of the fresh evidence motion, I would be willing to reconsider my findings and change my decision to avoid the appeal. To the extent that the submissions skated very close to a suggestion that I could use the opportunity of the motion to engage in a wholesale reconsideration of my findings, specifically for the purposes of avoiding any appellate review, I find it necessary to be abundantly clear, right from the outset, that the implication of any change to my final decision to avoid an appeal was categorically wrong and would be both unethical and would bring the administration of justice into disrepute.
[8] The only reason that I agreed to hear this motion was because there were some outstanding calculation issues and questions to be addressed before I could finalize and sign the final order. Accordingly, I remained seized of the case. That said, I was very alive to the Supreme Court of Canada’s caution in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983 at paras. 60-66, that the trial judge must exercise discretion to reopen the trial “sparingly and with the greatest care” so that “fraud and abuse of the Court’s processes” do not result. My decision to hear the motion should not in any way be confused with any attempt at a reopening of the case. The Applicant’s counsel must understand that there is a distinct and bright line between my final decision of last July and any appellate steps that follow. It would therefore be entirely wrong on my part to change or re-write my decision for the purposes of interfering with or avoiding an appeal. If I erred in my analysis in some way, the Court of Appeal will make such correction.
[9] Turning then substantively to the issues raised on this motion, the test to admit fresh evidence was summarized very thoroughly by Hennessy J., in Restoule v. Canada (Attorney General), [2019] O.J. No. 501, at paragraphs 19 – 24. Rule 59.06(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, comes down to two key questions:
- Whether the new evidence, if presented at trial, would probably have changed the result; and
- Whether the new evidence could have been obtained by the exercise of reasonable diligence at the time of the proceedings.
[10] Additional factors to be considered go to questions of finality, the apparent cogency of the evidence, delay, fairness, and prejudice. Any decision pursuant to Rule 59.06(2)(a) is discretionary.
a) National Occupation Reports
[11] Beginning with the National Occupation Reports issued by the Government of Canada, my first observation is that counsel’s request to admit them as fresh evidence is confusing and misleading because at least some of the proposed documents, though not all, were raised at trial and I declined to admit them into evidence at that time. As such, the request before me at this time amounts to little more than an attempt to revisit my ruling on their non-admissibility. Counsel went as far as to acknowledge at paragraph 31 of her factum that the documents were available at the time of the trial and that I declined to admit them into evidence.
[12] Even if the said documents had not been raised at trial, their introduction at this stage would not change the outcome because my findings in relation to the Respondent’s income rested on my conclusion that the Respondent was not a fully licensed electrician but only a journeyman. The information that is provided in the NOC documents speak generally of electricians without any specific distinction. If anything, one of the proposed documents, which I do not recall seeing at trial, reveals 22 different classifications of electricians ranging from apprentices to wiring electricians. The reported salary ranges are from $15 at the low end to $30 as the median and $40. When read together, perhaps rather ironically, the identification of $15 at the low end is entirely consistent with my finding at paragraph 55 related to the Respondent’s hourly salary in 2008 when he obtained his journeyman classification.
[13] I also draw specific attention to paragraph 48 of my decision where I acknowledged that I could take some judicial notice that Master Electricians, commonly referred to as “electricians” could earn upwards of $60,000 a year, on the basis of $30 per hour, as suggested by the NOC documents, just as Ricchetti J. did in his endorsement of April 11, 2017. But I did not find the Respondent to be a licensed electrician. The issue was never about what electricians earn. Rather, the issue was always about the Respondent’s qualifications.
[14] Although the foregoing analysis offers a complete explanation for why I am not prepared to admit the NOC documents as fresh evidence, their re-submission, and the deliberate revisiting of the Respondent’s qualifications as an electrician, with a view to blurring the distinction between a Master Electrician and a Journeyman is very disconcerting and amounts to an abuse of process. This mischaracterization plagued the Application through its various stages, and it runs the risk of resurrecting the confusion even though at trial both parties agreed that the Respondent was never a fully licensed electrician. It troubles me to have to keep revisiting this issue and I find myself obliged to reiterate my findings and my full analysis and explanation for those findings at paragraphs 44 – 49 of my decision.
[15] Insofar as the Applicant’s counsel appears to have taken personal offence with my finding at paragraph 51 that “the court was grossly misled to believe that the Respondent was a Master Electrician”, I ask that she read very carefully both my concerns and those of Ricchetti J., together with the Applicant’s eventual admission that the Respondent was not a fully licensed electrician. She may even wish to re-evaluate that concern in light of her persistent description of the Respondent as an electrician.
b) Ms. Pribytkova’s Conduct
[16] As much as Ms. Pribytkova’s conduct in relation to the mortgage registration is very troubling and suggestive of dishonest behaviour that may also be contrary to the Rules of Professional Conduct, of the Law Society of Ontario, absent a request for a mistrial, I fail to see how the admission of that evidence would change anything in my findings in my decision of July 2019.
[17] The Applicant was actually not very clear over the purpose that the admission of such evidence would serve or the corresponding remedy. The concerns and the implications of Ms. Pribytkova’s conduct, if the alleged conduct is true, a finding that I am not prepared to make because that issue was not before me, does raise very serious concerns that could go to the overall credibility of her representations to the court on behalf of her client. The issue would warrant further investigation had my findings in relation to the Respondent been based on positive credibility findings in favour of the Respondent and by implication on the basis of his counsel’s submissions.
[18] However, in my overall analysis, I found the Respondent to be incredible, and described his evidence as “highly suspect, incongruent, and unreliable”, see for example paragraphs 68 and 69. Consistent with my assessment of the quality of the Respondent’s evidence, I highlighted my concerns about the court being misled and about the very serious gaps in the evidence. I also relied on several admissions by the Applicant to arrive at my various findings. Having found the Respondent to be largely incredible, a potential finding that he was that much more incredible because of his lawyer’s conduct would not change anything in my findings. There is therefore no basis to admit any evidence related to Ms. Pribytkova’s conduct.
[19] In light of the foregoing, the motion is dismissed with costs in favour of the Respondent fixed at $4500.
