Court File and Parties

CITATION: Sochnyeva v. Lawyers’ Professional Indemnity Company, 2024 ONSC 4578

DIVISIONAL COURT FILE NO. 721/23

DATE: 20240826

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: HANNA SOCHNYEVA and DMYTRO SOCHNYEV, Appellant

AND:

LAWYERS’ PROFESSIONAL INDEMNITY COMPANY, Respondent

BEFORE: Matheson J.

COUNSEL: Self-represented Appellant

Matthew Bradley, for the Respondent

HEARD at Toronto: August 21, 2024

Endorsement

[1] Hanna Sochnyeva appeals the decision of Associate Justice Jolley dated December 4, 2023 (the Decision), granting the Lawyers’ Professional Indemnity Company (LawPRO) motion to strike out the appellant’s statement of defence without leave to deliver any further statement of defence. Dmytro Sochnyev also appeared at the appeal hearing although he is not named in the notice of appeal. I permitted him to make submissions, which mainly related to the merits of his defence to the civil action.

[2] The appellant and her husband are the defendants in an action brought by LawPRO in the Superior Court. The action claims that the appellant fraudulently conveyed her interest in a real property to her husband to defeat her creditors including LawPRO. The appellant and her co-defendant husband delivered statements of defence contesting that civil claim back in 2018.

[3] The underlying civil litigation has a long procedural history with little actual progress. The motion to strike was scheduled to be heard on December 4, 2023, before Jolley A.J., designated to case manage the litigation. On December 1, the defendants sent a request for an adjournment to Jolley A.J.’s assistant. An adjournment was not granted in advance of the hearing date. The defendants did not attend on December 4, 2023, however, Jolley A.J. addressed and denied the adjournment request in their absence. Jolley A.J. heard and granted the motion to strike out the statements of defence.

[4] In this endorsement, I do not recite either the long history that led to the Decision or the reasons for decision because a ground that was not before Jolley A.J. determines this appeal. Specifically, the appellant has put forward evidence that she tried to, but could not, obtain the information needed to join the virtual hearing. The appellant wrongly says that LawPRO was obliged to provide it – it was not. But I accept the evidence, including a screen shot, that the CaseLines program indicated that the appellant was not authorized to view the case. This was the Sunday before the hearing on Monday morning.

[5] While I agree with LawPRO that the appellant could have, and apparently did not, take steps to draw this to the prompt attention of Jolley A.J. , she did promptly raise the issue in this Court when commencing the appeal shortly thereafter.

[6] The only evidence before me supports that denial of access. I have no evidence of any communications to the appellant, in advance, that would address the denial of access to CaseLines and the link for the hearing.

[7] LawPRO accepts that a fair hearing requires that all parties have a reasonable opportunity to participate. However, it invites me to dismiss the appeal despite that fairness issue, relying on R. v. Nahanee, 2022 SCC 37, as followed in cases such as Jones v. Quinn, 2024 ONCA 315. In R. v. Nahanee, a sentencing judge had failed to provide notice and an opportunity for further submissions regarding a harsher sentence than that proposed by the Crown. A majority of the Supreme Court found that the judge had erred in principle but that it was not a breach of procedural fairness unless the appellant showed that the submissions that would have been provided would have had an impact on the sentence.

[8] I have considered these recent cases. I conclude that even if they give me broader options, I am not persuaded to approach this appeal on that basis.

[9] I therefore reluctantly (due to the history of this case) conclude that there was a denial of procedural fairness that justifies granting this appeal. However, I note the following:

(i) The appeal is not being granted on the basis that Jolley J.A. erred. She was not notified of the above. I make no comment on the merits of the Decision.

(ii) The appellant and her husband should not treat this appeal as permission to wait until a hearing is imminent in the future and blame others for their non-attendance. Given the history of this matter, they must obtain the needed information to ensure that they can participate in future court hearings well in advance of the hearing date and be prepared to take responsibility for their failure to do so.

[10] The appeal is granted. The underlying motion shall be remitted back to Jolley J.A. for another hearing. There shall be no order as to costs.

Matheson J.

Date: August 26, 2024