CITATION: Kovacevic v. Kovacevic, 2022 ONSC 953
DIVISIONAL COURT FILE NO.: 200/21
DATE: 20220210
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: KOVACEVIC v. KOVACEVIC
BEFORE: D.L. Corbett J.
HEARD: February 10, 2022, in Chambers
REASONS FOR DECISION
[1] By decision released by email on January 31, 2022, I granted the respondent’s motion to strike the applicant’s affidavit filed as part of the application materials in this case. My reasons were provided in an email and subsequently released as a formal endorsement (2022 ONSC 952).
[2] By email on February 7, 2022, the applicant delivered a notice of motion for an order “granting leave to file evidence for the judicial review hearing scheduled for June 20, 2022 pursuant to section 134(4)(b) of the Courts of Justice Act and 61.16(2) of the Rules of Civil Procedure.”
[3] The grounds stated for the motion are as follows:
(1) Credible evidence seen and heard by the Tribunal during the hearing on 05-Sep-2019 that bears upon decisive issue is not considered in the Tribunal’s Decision or produced for the Divisional Court judicial review;
(2) Tribunal’s hearing was held in a biased and prejudiced manner on 05-Sep-2019 as it was not previously scheduled to occur on that day. As a result, the evidence that otherwise would have been available was only produced for the Tribunal a week after illegally and forcefully held hearing on 05-Sep-2019;
(3) Had the evidence not been omitted by the Tribunal, it would have affected a different result;
(4) The judicial review hearing cannot proceed in a just manner without inclusion of this evidence which forms the ground of the Applicant’s Factum in judicial review;
(5) Section 134 of the Courts of Justice Act, RSO 1990, c C.43, and Section 61.15 of the Rules of Civil Procedure, RRO 1990, Reg 194;
(6) Such further and other grounds this Honourable court may permit.
[4] This case has been case managed from its inception. The issue of the proper contents of the Record was initially raised as early as June 2021, when the applicant served an affidavit to which the respondent objected. This led to a case conference after which the court issued directions on this issue. In particular, the court directed that, after HRTO had delivered its Record, if the applicant wished to adduce evidence not in the Record, she should bear in mind the limited bases on which this can be done. The respondent was directed that, if after the applicant had served her application materials, the respondent objected to any of them, the respondent could move to strike in advance of the hearing, or could raise the admissibility issue at the hearing itself. The applicant filed materials attached to an affidavit in which she attested that thirteen documents attached to the affidavit had been served and had been before the HRTO at the hearing, and thus should be included in the Record. She did not include in her application materials any materials that she said were not before the HRTO, but which should have been before the Tribunal, or which satisfy the test for fresh evidence on judicial review.
[5] On motion by the respondent, I struck out the applicant’s affidavit and the attached documents for the reasons given in my prior decision.
[6] There are several problems with the applicant’s current motion. First, it is too late to add to the Record. Court processes are orderly, and it was incumbent on the applicant to include all of the materials on which she relied in her Application Record so that the Record for this proceeding could be settled so that the respondents may respond to it. This was directed expressly by case management endorsement, which was the basis of the process followed leading to the motion decided in January.
[7] Second, this court has already decided that the Applicant failed to establish that her additional materials were before the HRTO at the time of the hearing. This was the very basis on which the motion to strike was decided, and the Applicant may not re-litigate the issue. The Applicant argued alternative bases for admitting the documents during oral argument at the hearing, without evidence to support those arguments, and the court rejected those arguments.
[8] Third, the Applicant was required to raise every basis she had in the motion heard in January as to why the documents ought to be admitted before the HRTO. Litigation is not conducted by instalment.
[9] A judicial review is based upon the Record that was before the Tribunal. In the applicant’s second ground for the motion, she argues that she was denied procedural fairness at the HRTO and for that reason she was denied an opportunity to present evidence that should have been before the Tribunal. If this is true (a matter for the application panel to consider), the remedy is not to admit all of the evidence now and to conduct a hearing de novo in this court. Rather, if the applicant was treated unfairly at the HRTO, and denied the chance to present her evidence, the remedy in this court would ordinarily be to send the matter back to the Tribunal for a fresh hearing following a fair process.
[10] On the face of the notice of motion, the issues the applicant now seeks to raise have already been determined finally in the motion to strike her affidavit or were issues that had to be raised when she filed her application materials in accordance with the court’s case management directions. This principle of finality encompasses all issues which were raised or ought to have been raised as to why the documents ought to be included in the Record.
[11] For these reasons, the court, on its own motion, pursuant to R.2.1, dismissed the Applicant’s motion to adduce further evidence, as vexatious and an abuse of process. The court framed the R.2.1 decision on the basis that the Applicant could not bring another motion to address issues that had been decided already. The Applicant fairly pointed out that she had not brought a motion – the motion in January had been brought by the respondent (to strike), rather than by the Applicant (for leave to adduce evidence). In these circumstances it does not matter who brought the motion – the issue has been decided and the Applicant may not relitigate it again in a fresh motion.
“D.L. Corbett J.”
Released: February 10, 2022