Court File and Parties
CITATION: Krizan v. Skurdelis, 2020 ONSC 2270
COURT FILE NO.: DC 19/712
DATE: 20200414
SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT - ONTARIO
RE: Krizan et al. v. Skurdelis
BEFORE: D.L. Corbett J.
COUNSEL: Peter Kolla – for the Appellant Skurdelis
Hashim Syed – for the Respondents Krizan
CASE MANAGEMENT ENDORSEMENT
[1] This appeal will proceed on May 25, 2020, for an estimated 3.0 hours, before a panel of three judges.
[2] The hearing will be conducted as a video conference. ZOOM technology will be used. Further details about the video conferencing process will follow subsequently.
[3] Neither counsel nor the court will gown for the hearing. Instead, business attire is required for anyone with a speaking role in the hearing. All parties must take reasonable steps to reduce the risk that the video conferenced hearings will be interrupted or disturbed during the hearing by ambient sounds.
[4] Appellant’s counsel shall provide a password-protected electronic dropbox from which all case materials may be downloaded, and shall provide the court with the URL and password by May 11, 2020.
(a) All documents other than factums shall be uploaded to the drop box in pdf format.
(b) Documents should be labelled in a manner that identifies them clearly for members of the panel so that it is not necessary to open the document to understand what it is. Pages should be numbered sequentially within each pdf. If this is not practical, given the current state of the documents, then individual documents should be uploaded to the dropbox in pdf form, so that each document is clearly labelled, enabling the court to find documents quickly during the course of the hearing.
(c) Factums are to be filed in Word version. Where possible, the factums should contain hyperlinks for authorities and, if possible, hyperlinks to a “Factum Compendium”, described below.
(d) Books of authorities containing the full text of authorities should not be uploaded to the dropbox. However, citations to cases in the factums are to provide, if possible, a hyperlink to the version of cases. The only exceptions to this principle are authorities not available, such as excerpts from textbooks, foreign law, or Canadian decisions not reported: these should be collected in a small brief of unreported authorities and filed electronically.
(e) If Respondents’ counsel is not able to provide a hyperlinked factum or a list of hyperlinked authorities, then counsel may file a full-text electronic brief of authorities in the drop box.
(f) Parties may file a “Factum Compendium” containing single pages or brief portions of cases cited, and brief portions of evidence from the record referenced in the factum, hyperlinked from the factum. Where portions of cases are included in a compendium, the title of proceedings and headnote should be included as well. Where portions of the record are included in a Factum Compendium, the first page of the document and identification of where it may be found in the record should also be provided. The only exceptions to this principle are authorities not available, such as excerpts from textbooks, foreign law, or Canadian decisions not reported: these should be collected in a brief of authorities and filed electronically.
(g) All parties are permitted to (but are not required to) file the following additional documents (in addition to documents permitted under the Rules):
(i) A version of their previously filed factum with hyperlinks to cases and/or evidence;
(ii) A Factum Compendium, described above; and
(iii) A compendium for oral argument, containing excerpts of evidence and authorities to which counsel intends to refer in oral argument.
(iv) Supplementary authorities.
(h) All documents for use in the hearing are to be uploaded to the dropbox by May 11, 2020, except that compendiums for oral argument may be uploaded by May 22, 2020, so that the panel is able to download these compendiums for oral argument prior to the hearing.
(i) All parties are required to file a counsel sheet, setting out (a) all person who will be appearing on the record; (b) the counsel making oral submissions; and (c) time estimates for each counsel making oral arguments.
[5] Mr Syed indicated that the respondents may be moving to adduce fresh evidence on the appeal. If the respondents decide to do this, their motion record and factum must be served by May 11, 2020. Any responding record and factum must be served by May 11, 2020.
[6] Mr Syed argued that this case is not urgent, and respondents’ counsel’s law firm is conducting business slowly, because of the practical restrictions imposed on work life by the COVID-19 crisis. The court is sympathetic to this line of argument, but it is not a basis to defer this appeal beyond its scheduled date of May 25th. The appeal has been scheduled since January. All appeal materials have been filed for some time, and all that is required is to render them into electronic form to provide to the court remotely. The record has been produced by the appellant, whose counsel is able to provide the record electronically. In addition, appellant’s counsel has agreed to assist respondents’ counsel in rendering respondents’ materials (factum, compendium and brief of authorities) in this way. I appreciate that the motion for fresh evidence will have to be compiled under current work limitations. However, it is a simple motion. The fresh evidence is said to be contained in an affidavit provided by the appellant at a stay motion before Swinton J. back in January. The law on the admissibility of fresh evidence on appeal is set out in Palmer (1979 8 (SCC), [1980] 1 SCR 759; see also Sengmuller (1994), 1994 8711 (ON CA), 17 OR (3d) 208, and Centre City Auto Sales 2013 ONCA 373). All that will be required is an affidavit attaching the proposed fresh evidence and explaining how the evidence meets the Palmer test. Two weeks should be plenty of time to provide these materials. Further, the fresh evidence came to the respondents’ attention in January in connection with the stay motion. While I appreciate that respondents’ counsel may have thought that this appeal would not be heard during the COVID-19 crisis, respondents’ decision to take no steps to bring the fresh evidence motion before now should not delay the appeal: with more than five weeks before the hearing of the appeal, there is plenty of time to put that evidence before the court. Mr Syed’s suggestion that the entire appeal should not be scheduled until after the suspension of ordinary court operations ends would not be fair, and would be inconsistent with this court’s goals to, as much as reasonably possible, carry on business remotely.
[7] If counsel believe that there are points from the case management conference that are not reflected in this endorsement, they should so advise the court by email as soon as they can. If issues arise between now and the hearing date, counsel may arrange another teleconference with the Divisional Court Administrative Judge.
[8] The court has endorsed its fiat on this endorsement this day; the unsigned version distributed to the parties today has the authority and effect of the signed version, a copy of which will be provided to the parties in due course after the suspension of ordinary court operations is lifted.
D.L. Corbett J.
Date: April 14, 2020