Court File and Parties

CITATION: Kovacevic v. Kovacevic, 2022 ONSC 2389

DIVISIONAL COURT FILE NO.: 486/21

DATE: 2022-04-20

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SUZANA KOVACEVIC, Applicant

AND: EMIR KOVACEVIC and HUMAN RIGHTS TRIBUNAL OF ONTARIO, Respondents

BEFORE: McWatt A.C.J., Stewart and Mew JJ.

COUNSEL: Suzana Kovacevic, applicant (self-represented) Marek Z. Tufman, for Emir Kovacevic Jason Tam, for Human Rights Tribunal of Ontario

HEARD at Toronto by videoconference: 19 April 2022

Endorsement

[1] Suzana Kovacevic has applied for judicial review of a decision of the Human Rights Tribunal of Ontario (“HRTO”) which found that she had breached a settlement agreement and ordered her to repay $15,216 to the respondent Emir Kovacevic. Her application is presently scheduled to be heard on 20 June 2022.

[2] In support of her application, Ms. Kovacevic had originally delivered an affidavit dated 30 June 2021, which the respondent argued was not admissible on the application. Following a case management conference on 30 August 2021, Justice D.L. Corbett gave the following direction:

Counsel advised that Ms. Kovacevic has served an affidavit including materials that counsel argues is not admissible on this application. The court explained the parameters of acceptable material on an application and directed the parties as follows:

(a) Once Ms. Kovacevic has reviewed the Record served by the HRTO, she may include in her materials an affidavit to which she attaches (i) any additional materials that she says should form part of the HRTO Record, explaining in her affidavit why she says they should form part of the Record; and (ii) attaching any other materials not in the HRTO Record that she says ought to be before the court on this application, explaining the reasons why she says the court ought to consider these materials. Ms. Kovacevic shall not attach to her affidavit any materials that have been included in the HRTO Record.

(b) If Ms. Kovacevic puts materials in her application record to which the respondent objects, the respondent may either (a) oppose admitting these materials as part of the record before the court at the hearing of the application; or (b) may seek directions from an administrative judge of the Divisional Court.

[3] The applicant subsequently delivered an affidavit dated 30 December 2021 in which she said she had “revised” her previously served affidavit “to include the evidence that had been previously produced and heard by the [HRTO] on 05-Sep-2019, but was neither included in the HRTO Decision of 14-Jan-2021 (delivered to the parties 15 months after the hearing) nor in the HRTO Record of Proceeding for the Divisional Court Judicial Review”.

[4] The respondent Emir Kovacevic brought a motion for an order striking out the applicant’s 30 December 2021 affidavit, thereby removing from the record on this application for judicial review all evidence that was not part of the record before the HRTO.

[5] The motion was heard by Justice Corbett on 20 January 2022. For reasons released on 31 January 2022, he granted the motion: 2022 ONSC 952. He found that the applicant had failed to establish any basis for departing from the general principle that an application in this court is restricted to the record that was before the decision-maker below. Ms. Kovacevic was ordered to pay Mr. Kovacevic costs of the motion, fixed at $3,000, inclusive, within thirty days.

[6] On 7 February 2022, the applicant delivered a notice of motion for an order “granting leave to file evidence for the judicial review hearing”.

[7] On 10 February 2022, Corbett J. dismissed this request for leave to adduce further evidence as vexatious and an abuse of process: 2022 ONSC 953. Corbett J., on his own motion pursuant to Rule 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, ordered that the applicant may not initiate any further motions without the prior permission of an administrative judge of the Divisional Court. He framed his Rule 2.1 decision on the basis that the applicant could not bring another motion to address issues that had been decided already.

[8] Ms. Kovacevic now applies to a panel of the Divisional Court to set aside the decisions of 31 January and 10 February 2022.

[9] Section 21(5) of the Courts of Justice Act, R.S.O. 1990, c C.43 provides that a panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion. Rule 61.16(6) of the Rules of Civil Procedure requires a notice of motion under section 21(5) to be served and filed within four days after the order is made.

[10] In Marsden v. Her Majesty the Queen, 2012 ONSC 6118, at para. 2, this court held that a panel will not interfere with a decision of the motions judge unless he or she has made an error of law or a palpable and overriding error of fact.

[11] The applicant did not bring her motion to set aside the 31 January 2022 decision of Corbett J. until 11 February 2022, well in excess of four days after the court’s decision on the respondent’s motion to strike. As was the case in Marsden, that alone would be sufficient reason to dismiss this motion.

[12] On the merits of the motion, Corbett J.’s decision was based on the well-established general rule that on an application for judicial review, affidavits containing material that was not before the decision-maker at first instance will not be allowed: Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086, at para. 13. There are only very limited circumstances in which such affidavit evidence will be admitted: Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644, at paras. 10-13.

[13] The onus was on the applicant to show that her affidavit should be accepted by this court, notwithstanding the general rule against adding to the record.

[14] The applicant said that she had filed the additional evidence, which she now wishes to place before this court, with the HRTO in the form of a book of documents before the HRTO hearing took place. Corbett J., noting that five of the documents attached to Ms. Kovacevic's affidavit were created after the HRTO hearing, did not believe her, stating at para. 13 of his decision:

The evidence on the motion is to the contrary, and the court cannot accept these materials as properly part of the HRTO Record. I disbelieve the affidavit for the reasons given, and for that reason there is no factual basis to permit the affidavit.

[15] This is a finding of fact which Corbett J. was entitled to make. It was amply supported on the record before him. His reasons of 31 January 2022 disclose no error of law or a palpable and overriding error of fact. It is not for this panel to second guess his decision.

[16] We agree, too, with Corbett J’s further finding on 10 February 2022 that the applicant’s request to adduce further evidence was vexatious and an abuse of process. Corbett J. referred to the court’s authority under Rule 2.1 to make such orders on its own initiative. That Rule provides a summary procedure, which is to be followed unless the court orders otherwise. Although Corbett J.’s reasons do not expressly state that the summary procedure would not apply in the circumstances, the applicant’s “request” was so clearly an abuse of process and an attempt to relitigate the motion that had already been decided, that the deployment of the summary procedure would have been redundant.

[17] The applicant’s motion is therefore dismissed with costs payable to the respondent Emir Kovacevic, fixed in the amount of $3,000 and payable within 30 days. The HRTO took no position on this motion and does not seek costs.

McWatt A.C.J.

Stewart J.

Mew J.

Released: 20 April 2022