Court File and Parties
CITATION: Hordo v. Zweig, 2022 ONSC 4066
DIVISIONAL COURT FILE NO.: 077/22
DATE: 2022-07-15
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: DIANA HORDO and MICHAEL HORDO, Appellant
AND:
ARNOLD ZWEIG, Respondent
BEFORE: D.L. CORBETT J.
COUNSEL: Diana Hordo and Michael Hordo, self-represented Appellants
Peter Smiley, for the Respondent
HEARD: In Chambers, In Writing
CASE MANAGEMENT ENDORSEMENT
D.L. Corbett J.:
[1] This is an appeal as of right from the final order of Jolley AJ dated January 26, 2022, dismissing the appellants’ action (2022 ONSC 593).
[2] This case has required intensive case management of an appeal that should be straightforward. An appeal in this court is based upon the decision and record below. Those materials are placed before this court, and then the parties provide this court with their factums. A single judge then hears oral argument of the appeal.
[3] After reviewing the appellant’s initial appeal documents, I directed the parties as follows, by email on March 2, 2022:
The appellants appeal the final order of Associate Justice Jolley dated January 20, 2022.
Materials on Appeal
An appeal is based on the record before the court below - in this case, the record that was before Jolley A.J.
The appellants have set out a lengthy list of materials upon which they intend to rely on the appeal, perhaps exceeding the proper scope of an appeal record.
There are exceptions to the principle confining the record to the record below, as described in Palmer 1979 (SCC), [1980] 1 SCR 759:
The evidence should generally not be admitted if, by due diligence, it could have been adduced below;
The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue.
The evidence must be credible in the sense that it is reasonably capable of belief, and
It must be such that if believed it could reasonably, taken with the other evidence adduced, be expected to have affected the result.
The appellants bear responsibility for moving to adduce fresh evidence and may not file fresh evidence without first obtaining leave to do so. The court's endorsement today is designed to facilitate assembly of an undisputed record, and to identify additional materials upon which the appellants intend to rely, and to prescribe a process by which the court will decide any disputed fresh evidence issues.
The appellants advise that they wish to file two transcripts: (a) transcript of the hearing before Associate Justice Jolley; and (b) transcript of the appeal hearing before Justice Glustein. These are transcripts of oral argument and are not generally required for an appeal in this court. In respect to the first transcript (before Jolley A.J.), this court will ordinarily permit the transcript to be filed, even where its materiality for the purposes of the appeal is in question. The transcript of proceedings before Glustein J. was not before Jolley A.J., so it is hard to see how it could form part of the record before this court. However, the appellants suggest that they asked Jolley A.J. to adjourn the hearing so that they could obtain and file this transcript, and so the transcript could be relevant to an argument about the adjournment decision. This issue can be addressed when the court addresses any other issues respecting the appeal materials.
The appellants advised that they had understood that Divisional Court staff will be involved in securing these transcripts. As I explained during the conference, that is not so. It is for the appellants to requisition the transcripts through the civil office. They must ask for the recordings and may have to ask permission of the presiding jurist for release of the recording (I understand that Glustein J. has already given permission respecting the argument of the appeal before him). The appellants are to provide this court with confirmation