Carella v. Carella, 2020 ONSC 3575

CITATION: Carella v. Carella, 2020 ONSC 3575

COURT FILE NO.: 113/20

DATE: 20200608

SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT - ONTARIO

RE: Carella v. Carella

BEFORE: D.L. Corbett J.

COUNSEL: Bernie Romano, for the Applicant/Responding Party Antonietta Raviele, for the Respondent/Moving Party Stefano Carella Anna Carella, self-represented Respondent Rocco Carella, self-represented Respondent

CASE MANAGEMENT ENDORSEMENT

[1] This endorsement reflects a case management conference conducted by teleconference on June 5, 2020.

[2] This motion for leave to appeal from the decision of the case management judge, Dietrich J., dated February 20, 2020, shall proceed in writing before a panel of the Divisional Court during the week of July 13, 2020.

[3] The moving party’s motions materials have already been served. Mr Romano’s client, who opposes the motion for leave to appeal, have also been served. Ms Anna Carella and Mr Rocco Carella are currently self-represented (having been represented by common counsel previously). Anna and Rocco Carella advise that they would like to retain counsel and file materials in support of the motion for leave to appeal.

[4] The court is concerned that Dietrich J.’s order has not been complied with for more than three months, and yet no stay has been obtained of that order. It is not the case that a court order is placed in abeyance when a motion for leave to appeal is brought. Here, the trial was scheduled to proceed in late May, but was adjourned because of the COVID-19 crisis. No progress can be made in this case while the issue of Stefano Carella’s representation, and his capacity to retain and instruct counsel and to provide a power of attorney are in issue.

[5] All parties agreed that they would rather move forward expeditiously with the motion for leave to appeal than to spend time and money on a motion for an interim stay, and this court is able to schedule the case as soon as all materials are available from the parties.

[6] Anna and Rocco Carella have already had more than three months to retain and instruct new counsel and to file materials. They explained that the COVID-19 crisis had led to delays in their being able to take these steps. Their situation may have been compounded by the approach taken by the moving party, who seemed to feel that, because motion materials had been filed for a motion for leave to appeal prior to the suspension of ordinary court operations, in accordance with normal practice the parties were waiting to hear from the court about a return date for the motion for leave to appeal.

[7] The Notices to the Profession respecting court operations during COVID-19 are clear about the steps to be taken by parties who wish to have a motion for leave to appeal decided – something this court has been able to schedule in an urgent situation since April 6, 2020. It is for the parties to seek to have the matter put before the court, not for the court to contact the parties.

[8] In my view this matter should not be delayed materially to enable Anna and Rocco Carella to retain and instruct counsel on the motion for leave to appeal (on the one hand), but they should be afforded some time to put materials before the court in respect to the motion for leave to appeal, if they wish to do so. Balancing these principles, the court directs the following schedule:

(a) All materials from the moving party and from Mr Romano’s client will be served on all other parties by June 12, 2020;

(b) Anna and Rocco Carella shall serve any materials on which they rely on the motion for leave to appeal by June 26, 2020;

(c) Mr Romano’s client will be permitted to serve responding materials to any materials filed by Anna and Rocco Carella by noon on June 30, 2020.

[9] Mr Romano has agreed to establish an electronic drop box for all motion materials, and to provide the court with the link and password for the drop box by noon on June 30, 2020.

(a) All documents shall be uploaded to the drop box in pdf format.

(b) Documents should be labelled in a manner that identifies them clearly for the court 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 drop box 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 both Word and pdf versions. 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 drop box. However, citations to cases in the factums are to provide, if possible, a hyperlink to the online version of cases. The only exceptions to this principle are authorities not available online, such as excerpts from textbooks, foreign law, or Canadian decisions not reported online: these should be collected in a small brief of unreported authorities and filed electronically.

(e) 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 online, such as excerpts from textbooks, foreign law, or Canadian decisions not reported online: these should be collected in a brief of authorities and filed electronically.

(f) The parties shall file their agreement on the disposition of costs, or, if the parties have not agreed as to costs, then each party shall file its bill of costs and costs outline and any brief supporting materials relied upon in respect to costs.

[10] On the materials before me, it is not clear when the Superior Court will proceed with the trial in this case – it was scheduled to proceed in May 2020 but has been delayed because of COVID-19. It is clear that the trial does need to proceed without delay once the court is able to hear it. If Leave to appeal is granted, then the parties need to schedule a case management teleconference with this court expeditiously, and the parties should expect that the court will require that the appeal be heard urgently: the underlying litigation concerns capacity issues and related family issues respecting an 85 year old family member and should be concluded as quickly as is reasonably possible.

[11] Mr Romano indicated that his client would not likely oppose a stay of the order of Dietrich J., if leave to appeal is granted, provided the parties observe an appropriate schedule to have the appeal heard promptly: this issue may be considered at any case management conference held after decision is rendered on the motion for leave to appeal.

D.L. Corbett J.

Date: June 8, 2020