Citation and Court Information

CITATION: Kadem v. Hacil, 2020 ONSC 4129

DIVISIONAL COURT FILE NO.: CVD-OTT-TBA-16-20ML

FILE NO: FC 20-619

(Ottawa)

DATE: 20200703

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Kadem v. Hacil

BEFORE: D.L. Corbett J.

COUNSEL: David Danielson, for the Applicant/Moving Party

Kevin Doyle, for the Respondent/Responding Party

Endorsement

[1] This endorsement reflects a case management teleconference held on June 26, 2020, following the teleconference held with the court earlier this month (2020 ONSC 3667).

[2] Two issues arise concerning the materials included in the moving party’s motion materials. First, the moving party tendered an affidavit that was disallowed by the motions judge. The moving party was permitted to deliver a fresh affidavit, in accordance with the motions judge’s directions. The moving party takes the position that the motions judge erred in striking the first affidavit, and has included a copy of that affidavit in the record for the motion for leave to appeal.

[3] The responding party takes the position that the affidavit that was disallowed was not before the court on the motion below. The respondent did not respond to matters in the struck affidavit on the motion below, and so has had no opportunity to respond to the affidavit that will now be before the court on the motion for leave to appeal.

[4] The disallowed affidavit was not before the motions judge on the merits of the motion below. Thus, it is not properly before this court for the truth of its contents. However, the moving party is entitled to argue that the affidavit ought not to have been disallowed, and is entitled to place the affidavit before this court to enable this court to assess the merits of the motions judge’s decision to disallow the affidavit. For this reason I decline to strike the affidavit from the materials in support of the motion for leave to appeal. The responding party may not file fresh evidence to respond to the substance of this affidavit, since this affidavit is not before this court for the truth of its contents.

[5] The motion materials also include email communications between counsel for the moving party and the trial coordinator respecting the schedule of cases before the motions judge on the day the judge heard the motion below. This evidence was not before the motions judge, and is not in respect to an issue that was raised by the moving party with the motion judge. It is also in respect to a challenge to the conduct to the motions judge that was not raised with the motions judge – either at the time of the hearing below – or afterwards. It is not properly before this court, not having been raised with the court below. It is struck out.

[6] Counsel agreed that they could settle the moving party’s record for the motion for leave to appeal in light of this decision.

[7] Counsel shall agree on a short extension for the deadline for service of the responding party’s materials so long as all materials are in the drop box by July 10, 2020.

[8] A copy of this decision shall be provided to the panel deciding the motion for leave to appeal

“D.L. Corbett J.”

July 3, 2020