Citation

CITATION: Kovacevic v. Kovacevic, 2022 ONSC 952

DIVISIONAL COURT FILE NO.: 486/21

DATE: 20220131

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: KOVACEVIC v. KOVACEVIC

BEFORE: D.L. Corbett J.

Marek Tufman, for the Moving Party / Respondent

Suzana Kovacevic, Responding Party / Applicant, on her own behalf and with assistance from Pro Bono counsel

HEARD: January 20, 2022, by ZOOM, at Toronto

REASONS FOR DECISION[^1]

[1] The court heard a motion on January 20, 2022, to strike materials filed by the applicant on this application for judicial review. This email sets out the court's decision on the motion. This decision will be converted to a formal endorsement in due course, and the court reserves the option of editing, correcting and supplementing these reasons upon release of the formal endorsement. However, the parties need the court's decision now in order to move forward with the hearing of this case.

[2] The underlying case concerns a decision by the HRTO that the applicant breached a settlement agreement and that, as a result, she should be required to repay the settlement funds to the respondent [I note the applicant and respondent have the same surname but are not related to each other].

[3] The applicant has been self-represented in this proceeding and was self-represented when she prepared and filed her application materials. She had assistance from pro bono counsel for argument of this motion, but mid-motion decided to argue the motion herself, which I permitted.

[4] The applicant filed materials on the application that appeared to be inconsistent with the principle that an application in this court is restricted to the record that was before the decision-maker below. During the course of case management, the court issued a scheduling direction on August 31, 2021 that included the following direction respecting materials for the application:

8. 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.

[5] Ms Kovacevic subsequently included materials in her application materials that were not part of the Record filed by the HRTO. In her affidavit sworn December 30, 2021 explaining why she was filing these materials, she said as follows:

[6] "I have revised my affidavit to include the evidence that had been previously produced and heard by the Human Rights Tribunal (hereafter "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.... The attached Exhibits (A-M) which also formed my Book of Documents at the HRTO Hearing I served to HRTO... and the Mr Kovacevic in person... on or about 05-Aug-2019. This evidence was simply disregarded by the Tribunal, and not included in the record they produced to this court...." (affidavit, para. 3)

[7] The applicant then goes on to describe the exhibits to her affidavit, all of which she says "should form part of the HRTO Record...."

[8] During oral argument, Ms Kovacevic confirmed her evidence that she says she served a book of documents, including the materials attached to her affidavit, in advance of the hearing before the HRTO.

[9] Unfortunately, this statement is not true.

[10] Five of the documents attached to Ms Kovacevic's affidavit were created after the HRTO hearing. They could not have been served on August 5, 2019 because they did not exist then.

[11] When this point was raised with the applicant during oral argument, she told the court that she had mentioned all of these documents, or the matters set out in these documents, during the course of the hearing before the HRTO. This explanation was corroborated in part by an email sent to the HRTO after the hearing, to which she attached various documents she had mentioned during the hearing. This email and its attachments are part of the Record before the court on this application.

[12] In its decision, the Tribunal states that the applicant filed no materials prior to the hearing, though she was given an opportunity to do so. The Record filed on this application is consistent with this statement. The only evidence to the contrary is the applicant's affidavit in which she states that she served and filed a book of documents ahead of the hearing. The affidavit is demonstrably false. There was no book of documents that included five of the thirteen attachments. In explaining this problem, the applicant did not provide some explanation that could lead the court to explain that there was a book of documents served before the hearing, but the applicant made some sort of mistake in describing its contents. Rather, the applicant said that she had "mentioned" documents, at least some of which she provided to the HRTO by email after the hearing.

[13] The applicant has tendered additional evidence on the basis that it ought to be part of the Record because she filed it ahead of time. 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.

[14] The applicant's affidavit sworn December 30, 2021 is struck out and shall not form part of the record for this application. This document shall be removed from CaseLines by the applicant.

[15] The court offers some additional guidance to the applicant, now that she has pro bono counsel to assist her. Unquestionably the applicant understands her case and its history far better than her pro bono counsel, who has just recently joined the file. However, counsel has the benefit of independent judgment and legal training and understands legal process in a way the applicant does not. The applicant did herself no favours by taking over from her counsel mid-argument. At that point there was a serious problem with the applicant's evidence, and the court had to consider what to do about that. After the applicant's submissions, the court was persuaded that her affidavit is false and that no reliance can be placed upon it. It was quite apparent to me that the applicant did not understand just how serious that situation was for her, on the motion. I do not suggest this motion would have been decided differently had argument unfolded differently, but I can tell her that once the court was satisfied that the affidavit was simply false in saying that the documents were served and filed ahead of time, other explanations as to why the materials ought to be before the court on this application had little chance of success. This point is further reinforced by events after argument of the motion. The applicant sent an email to the court attaching further material respecting the motion. Parties may not do this. It is improper. Both sides are required to exchange their written materials before the motion is argued, and further materials may be filed only with the court's permission. This is inherent in the court's orderly approach to conflict resolution.

[16] The respondent is entitled to his costs of the motion, which I fix at $3,000, inclusive, payable within thirty days. I note for the applicant's understanding that costs in this court are ordered in the ordinary course to a successful party, payable from an unsuccessful party, which is the usual practice in civil court proceedings. The respondent has been put to legal expense to bring the motion, and the costs order is intended to indemnify him for those costs. As is usual in this court, the costs award does not cover all of the costs incurred by the respondent, so even with the indemnity ordered by this court, he will have incurred expense for which he is not indemnified to bring this motion.

“D.L. Corbett J.”

Released by email: January 31, 2022

Release of this endorsement: February 10, 2022

[^1]: These reasons were released to the parties by email and were effective as of January 31, 2022.