Court File and Parties

CITATION: Rokach v. Rokach, 2020 ONSC 3797

DIVISIONAL COURT FILE NO.: 660/19

DATE: 20200617

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Rokach v. Rokach

BEFORE: D.L. Corbett J.

COUNSEL: Ester Rokach, self-represented Appellant

Laurie Pawlitza, for the Respondent

ENDORSEMENT

[1] This endorsement provides directions following unsuccessful efforts to schedule a remote case management conference.

Scheduling Difficulties

[2] This appeal is not ready to be heard and the parties require directions to finalize materials so that the appeal may proceed. They were scheduled to attend before a judge for this purpose on March 17, 2020. That appearance did not happen because of the suspension of ordinary court operations as a result of the COVID-19 crisis.

[3] This court directed that a teleconference be scheduled. Ms Rokach advised, by email, that she is unable to participate in a teleconference because of a hearing disability. The court then directed that the conference proceed by videoconference with the assistance of an American Sign Language Interpreter. Ms Rokach advised that she would be unable to participate in that videoconference because she does not know sign language. The Court then asked the parties to address the possibility of addressing these issues in writing. Ms Rokach responded that her computer is no longer functional because of a virus, she is unable to fix it because of COVID-19, and she has been communicating with the court by email with help from a friend. The friend advised that she has tried to help Ms Rokach, but that it has become too much work and so she is unable to assist any more. Ms Rokach concluded that matters would have to wait until in-person hearings resume, given all these circumstances. She noted that Phase I of the reopening of ordinary court operations is scheduled to commence on July 6, 2020. She indicated that the only way in which she would be able to address matters in writing would be by mail, given her current technological difficulties.

[4] It is for the court, not Ms Rokach, to decide how matters will proceed. The current state of this case is such that procedural directions are required, and there is no reason that these procedural issues cannot be dealt with in writing.

[5] Further, although it is true that Phase I of the return to in-person hearings is scheduled for July 6, 2020, the Divisional Court will not be resuming in-person hearings before September 2020, at the earliest. Other areas of the court’s work have more urgent need of the limited court space available during July and August, and the Divisional Court’s work will be continuing remotely as a result.

[6] Finally, the issues that appear to require direction, at the moment, are straightforward and do not require an in-person attendance. This case need not and should not languish for another three months.

1. Settling the Record for Appeal

(a) Ms Rokach to serve her appeal record and list of contested documents for appeal

[7] It is Ms Rokach’s responsibility, as the Appellant, to serve her appeal record and factum. The record is limited to the materials that were before Justice Diamond. She shall serve her appeal record by July 31, 2020. It shall not include any materials that were not in evidence before Justice Diamond.

[8] I understand that Ms Rokach has indicated that she wishes to file materials that were not before Justice Diamond. She may only file such materials for this appeal if either the Respondent consents to the materials or the court orders that the materials may be filed as “fresh evidence”.

(a) Ms Rokach shall, by July 3, 2020, serve on counsel for the Respondent a list of any materials she wishes to file on the appeal that were not before Justice Diamond;

(b) Counsel for the Respondent shall advise Ms Rokach in writing by July 17, 2020 if she consents to any of the items from (a) being filed for the appeal. Ms Rokach shall serve a Supplementary Record by July 31, 2020 containing any such additional documents for which counsel for the respondent has consented;

(c) Ms Rokach shall then serve a request to be permitted to file the documents described in (a) for which consent has not been provided in (b). This request need not be a formal motion – she may make this request by way of a letter. In this request she should explain:

(i) Why these materials were not available to be put before Justice Diamond; and

(ii) What difference these materials could have to the result of the issues decided by Justice Diamond.

[9] By way of explanation, Ms Rokach should understand that an appeal is not a chance to argue the original case all over again. It is a review of the decision of the judge below, and it is based on the evidence that was before him. Only in rare circumstances will the court permit a party to add to the record that was before the court at first instance. There are many reasons for this, not the least of which is the importance of finality in litigation. The parties are expected to raise all issues and put before the court at first instance all evidence material to the case: R. v. Palmer, [1980] 1 SCR 759; Sengmuller v. Sengmuller (1994), 17 OR (3d) 208; Centre City Auto Sales Inc. v. Kalsatos, 2013 ONCA 373.

(b) Respondent to reply to the materials served by Ms Rokach

[10] By July 31, 2020, counsel for the Respondent should have received from Ms Rokach:

(a) Ms Rokach’s appeal record;

(b) Ms Rokach’s supplementary appeal record, including fresh evidence to which the respondent has consented; and

(c) Ms Rokach’s list of further documents she wishes to file and her explanation as to why she should be permitted to file these additional materials on appeal.

[11] If the Respondent objects to any of the contents of (a) or (b), counsel shall briefly explain these objections in a letter or email to the court. Counsel shall not respond to Ms Rokach’s list or explanation provided pursuant to (c), and Ms Rokach shall not respond to counsel’s objections to her appeal records, pending further directions from the court.

Service

[12] For the purpose of delivery of documents pursuant to this endorsement, Ms Rokach may serve her documents in either of the following ways:

(a) Electronically, by email, as pdf or Word attachments;

(b) By courier to the address for service of the respondent.

[13] The respondent shall serve Ms Rokach by courier at her address for service.

[14] Service by courier will be effective if the documents are left at the address for service by a courier.

[15] I appreciate that Ms Rokach says that she is not currently able to communicate electronically. If that continues to be the case, then she will serve her materials by courier. If Ms Rokach’s technology is restored, then she can avail herself of serving by email.

Delivery to the Court

[16] The parties shall provide the materials directed by this endorsement to the court by delivery to my attention at Judges Administration, 361 University Avenue, Toronto. Delivery may be effected in person, by process server, or by courier.

Other Issues

[17] Once the appeal records have been served, there should only be five further matters to address before this appeal will be ready for argument:

(a) Resolving any issues about the materials delivered pursuant to this endorsement;

(b) Delivery of factums for the appeal;

(c) Delivery of motion materials for an order permitting the appellant to file fresh evidence;

(d) Scheduling a date for the hearing of the appeal; and

(e) Directing the mode of hearing for the appeal including any accommodations Ms Rokach requires to participate in the appeal.

[18] If the parties believe that there are further issues that need to be addressed in case management to ready this case for hearing of the appeal, other than those identified in this letter, then they should so advise the court, in writing, no later than June 30, 2020.

Communications With the Court

[19] The court has sought input about how best to proceed with this case in a series of emails. This endorsement is not part of a continuing discussion, however. It is the court’s decision on how to move forward to this case. It is not open to further discussion or debate. The parties are to comply with the deadlines provided in this endorsement.

Court Fees

[20] The parties will be required to pay applicable court fees (if any) once the Divisional Court office is reopened to the public.

“D.L. Corbett J.”

June 17, 2020