COURT FILE NO.: CV-20-2010-0000
DATE: 2021/02/04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: OUSSAMA HAMZA, o/a HAMZA LAW, Applicant
AND:
LAW SOCIETY OF ONTARIO, ISMAIL ADERONMU, JESSICA SOUBAS, YEVGENIYA HUGGINS and VINCENT ROCHELEAU, Respondents
BEFORE: Justice I.F. Leach
COUNSEL: Oussama Hamza, self-representing
Katherine Hensel and Kaelan Unrau, for the Law Society of Ontario
Solomon McKenzie, for Ismail Aderonmu
Jessica Soubas, self-representing
Yevgeniya Huggins, self-representing
Stephen Moore, for Vincent Rocheleau
HEARD: February 3, 2021
ENDORSEMENT
Introduction
[1] The general background to this litigation is set forth in my earlier endorsement herein released on Monday, January 25, 2021.
[2] This endorsement should be read together with that earlier one. For present purposes, I simply reiterate that:
a. This matter initially was one of many matters that came before me in “regular” motions court here in London on January 22, 2021; i.e., a court session devoted to the hearing of numerous matters each requiring no more than one hour of time.
b. For numerous reasons outlined in my earlier endorsement, the application brought herein by Mr Hamza, and various requests for relief made by a number of the respondents, (by the filing of a responding application or motion), could not be addressed substantively in a fair, efficient or effective manner on January 22, 2021.
c. The matter accordingly was adjourned to a four-hour special appointment hearing on February 3, 2021; a relatively early available date on which such time happened to be available, enabling the matter to be heard and determined relatively as per the wishes of all concerned.
d. In an effort to ensure that the matter would be completely organized and ready to proceed to a substantive hearing on February 3, 2021, without further delay, I made a number of further directions; e.g., specifying and setting, after extended discussion with the participants, a timetable for the delivery of the further material that was said to be contemplated and necessary for the intended hearing.
e. All of those directions set forth and confirmed in my earlier endorsement; an endorsement which was intended, (as I was not seized of the matter), to provide an overview and summary for the benefit of whatever judge or judges might be called upon to deal with the matter thereafter, if the court’s scheduled did not permit the matter to come back before me.
[3] Fortunately, the schedule did permit the matter to come back before me on February 3, 2021. Unfortunately, by the time that happened, there had been a number of intervening and complicating developments.
Further developments
[4] Among those complicating developments were the following:
a. The Applicant, Mr Hamza, had filed extensive material going well beyond his stated intentions provided to me on January 22, 2021, and the corresponding limitations I had imposed. In that regard:
i. On January 22, 2021, Mr Hamza indicated that the material on which he would be relying would be confined to his notice of application and affidavit sworn January 19, 2021, (which would be combined into a unified application record, as the court had not yet been provided with one as required by Rule 38), an already-delivered notice of constitutional question that had not been filed with the court, a factum, and any material filed in proper exercise of a right of reply once the respondents had filed the further contemplated material they were to deliver. In my earlier endorsement:
I confirmed the limitations of what further material Mr Hamza would be filing;
I directed that all but Mr Hamza’s reply material was to be delivered on or before January 25, 2021; and
I directed that any material filed by Mr Hamza in proper exercise of the right of reply was to be delivered on or before February 1, 2021.
ii. By the time the matter came before me on February 3, 2021:
- Mr Hamza had filed no less than three further and very substantial affidavits: one sworn on January 27, 2021, (90 pages), one sworn on February 1, 2020, (737 pages), and a further affidavit, (102 pages), apparently dated February 7, 2021, (sic). In that regard:
a. the affidavit of January 27, 2021, went beyond the indicated limits of the initial material on which Mr Hamza was to be relying, and was filed after the deadline I set in that regard of January 25, 2021; and
b. the affidavits of February 1 and 7 (sic), 2021, went well beyond the bounds of proper reply, having regard to the responding material filed by the respondents on or before January 29, 2021, in compliance with the deadline I had set for them in that regard.
- Mr Hamza had filed two facta. In that regard:
a. Both facta, (131 and 15 pages respectively), were dated February 1, 2021. In other words, neither had been delivered before January 25, 2021, as required by my endorsement.
b. Both facta had been delivered only after the respondents had delivered their facta on or before January 29, 2021, in compliance with the deadline I had set for them in that regard.
- Mr Hamza had delivered a notice of motion, dated January 27, 2021; a notice in which Mr Hamza formally indicated his intention to request a publication ban in relation to this matter, and removal of Mr Moore as counsel of record for the respondent Mr Rocheleau. In that regard:
a. During the hearing before me on January 22, 2021, when I was canvassing the material the parties intended to deliver an reply upon, and made my organizational directions accordingly, Mr Hamza said nothing whatsoever to indicate that he intended or even contemplated the bringing of such an additional motion. My directions accordingly made no allowance for any additional filings in that regard.
b. Mr Hamza’s notice of motion identified no specific documentary evidence he would be relying upon in support of his motion, but simply indicated a broad intention to rely on “the materials included in the Application Record of the applicant, the facta of the respondents, and other materials that may be included in the course of this matter”.
c. Mr Hamza’s notice of motion was addressed by one of the two facta he filed on February 1, 2021, noted above. In that facta, Mr Hamza indicated his intention to seek not only a publication ban and removal of Mr Moore as lawyer of record for Mr Rocheleau, but amendment of his application so as to include Mr Moore as an additional named respondent to the application in his personal capacity – without otherwise providing any particulars of how the extant application would be amended.
iii. Mr Hamza’s additional filings complicated matters in numerous ways, as far as ensuring that the matter would proceed in a fair and orderly way, and ensure the matter was ready for the contemplated substantive hearing on February 3, 2021. In particular:
The material filed by the Respondents, in compliance with the deadlines I set, understandably did not address or respond directly to the material filed by Mr Hamza thereafter.
The timing of Mr Hamza’s unliteral and belated introduction of an additional motion effectively prevented the Respondents from filing material responding to that motion before the deadline I had set for the filing of their material.
Mr Hamza’s motion raised new issues that ordinarily would logically need to be addressed as threshold matters, before Mr Hamza’s application and the respondents’ various responding motions were heard on their merits.
The sheer volume of unanticipated further material filed by Mr Hamza inevitably seemed destined to increase the required hearing time well beyond the four hour special appointment hearing time that had been reserved for the matter, based on the intentions expressed and confirmed during the hearing before me on January 22, 2021, when the special appointment arrangements were made.
Ironically, notwithstanding Mr Hamza’s delivery and filing of excess material not contemplated by my directions, he nevertheless failed to file, in an effective or meaningful manner, two important documents that had been discussed during the hearing before me on January 22, 2021. In that regard:
a. Mr Hamza served the respondents with an application record (400 pages) dated January 24, 2021. The material filed by the respondents understandably speaks to that application record. However, Mr Hamza’s application record was never filed with the court in an accessible format, and accordingly was not available to me on February 3, 2021.
b. Beyond the two facta noted above, (dated February 1, 2021), Mr Hamza served the respondents with an earlier factum, (no less than 572 pages in length), dated January 20, 2021. The material filed by the respondents understandably spoke to that factum as well. However, that factum of Mr Hamza also was never filed with the court, in an accessible format, and accordingly was not available to me on February 3, 2021.
c. The absence of that obviously important material, for review and use by the court, seemed related to Mr Hamza’s earlier indications that he had intended to supply such material to the court by provision of an electronic “link” to the material which apparently was operational from his perspective but not from that of the court, as indicated during the hearing on January 22, 2021, and in my earlier endorsement. I indicated to Mr Hamza at the time that he needed to ensure that the relevant material was filed again with the court, in accessible PDF format; i.e., as opposed to electronic versions intended to be accessible through a provided “link”. However, that apparently was not done prior to the hearing before me on February 3, 2021.
- In filing his material electronically with the court, (and apparently when serving the responding parties), Mr Hamza unilaterally chose to embed “macro” restrictions in the documents that prevented any of those documents from being printed. He did so in stated furtherance of his intention to ensure that his court filings would remain confidential and incapable of being shared, consistent with his strong belief that this litigation should subject to a publication ban and/or sealing order made in relation to this matter, and that the Respondents were incapable of being “trusted” with such material without sharing or using it in a way Mr Hamza considered improper. However:
a. As I indicated a number of times during the course of the hearing before me on February 3, 2021, there currently is no publication ban or sealing order in relation to this matter, and the matter accordingly continues to be governed by the “open courts” principle reflected in section 137 of the Courts of Justice Act, R.S.O. 1990, c.C.43, unless and until such time as an order imposing a publication ban or sealing order was properly sought and obtained. In the meantime, Mr Hamza had no right to unilaterally impose electronic or other restrictions on the ability of the court or parties to access and work with his court filings in the course of preparations.
b. As a practical matter, the unilateral printing restrictions imposed by Mr Hamza had severely hampered my ability to prepare for the hearing. In particular, I had no practical ability to make adequate notes in relation to all the material Mr Hamza had filed electronically, and no way of ensuring my ability to quickly access and cross-reference that material during the limited hearing time reserved for all of the parties to be heard.
b. A further troublesome development related to the content of the further material filed by Mr Hamza, insofar as it appeared to represent a clear contravention of section 136 of the Courts of Justice Act, supra. In that regard:
i. Mr Hamza’s material included what purported to one or more “transcripts” of various portions of the hearing that took place before me on January 22, 2021.
ii. However, the format of that “transcript” material also made it obvious that it had not been prepared by an authorized court transcriptionist, using the official recording of the proceedings made by the court reporter who attended the hearing on January 22, 2021. The purported “transcript” material filed by Mr Hamza instead bore the hallmarks of an unofficial transcript prepared through use of an audio recording made of the teleconference hearing that took place on January 22, 2021. Mr Hamza acknowledged as much, in response to the inquiries I made in that regard when the matter came back before me on February 3, 2021.
iii. As I indicated to Mr Hamza, on February 3, 2021, his conduct in that regard appeared to be a clear contravention of the provisions of section 136 of the Courts of Justice Act, supra, and this court’s standing protocol on the use of electronic devices in the courtroom set forth in paragraphs 95 to 101 of the Consolidated Provincial Practice Direction. In particular, while counsel and self-represented parties are permitted to use electronic devices in a silent and discreet mode to make an audio recording of a court proceeding for the purpose of note-taking, Mr Hamza’s use of the recording obviously went well beyond that limited and restricted purpose; i.e., to actively prepare an unauthorized transcript of the proceeding for filing as an exhibit in these proceedings.
iv. I will return to one consequence of that apparent contravention of section 136 of the Courts of Justice Act, supra, in my directions set forth below. For now, I note that, during the hearing on February 3, 2021, Mr Hamza was cautioned expressly on the record about the potential consequences of such conduct, including fines up to $25,000 and/or imprisonment for up to six months, as per s.136(4) of the Courts of Justice Act, supra.
c. A further complication, (not of Mr Hamza’s making), related to the self-representing Ms Soubas. In email correspondence sent to the court office on January 29, 2021, (which was included in the uploaded court file material relayed to me electronically by the court staff), and verbal comments Ms Soubas provided during the hearing before me on February 3, 2021, she indicated that she has yet to be served with the application brought by Mr Hamza. For reasons unknown, she also has received no other material from Mr Hamza or the court, (including my endorsement of January 25, 2021), via the email address she supplied during the hearing on January 22, 2021. Unlike the other individual parties to this proceeding, Ms Soubas is a lay person with no legal education or training. In the circumstances, and having received none of the court filings or my earlier endorsement in this matter, the indication by Ms Soubas in her email that she “truly … [has] no idea what is even going on with this matter” seems understandable.
Further discussion
[5] Having regard to such complications, when the matter came back before me on February 3, 2021, I invited, received and considered extended submissions from the parties as to how the matter should proceed in the circumstances. In that regard:
a. While I thought it notionally might be possible to address certain issues to some extent, (such as the propriety of some of the material that was before me), I queried – with frustration - whether I realistically could proceed with any substantive hearing of the application and responding motions to dismiss the application in its entirety on various grounds, (e.g., as disclosing no reasonable cause of action, or incapable of success on the merits), when substantial components of the applicant’s material, (including his apparently substantial application record itself), were not before, and realistically were incapable of being reviewed before or during the hearing.
b. As it seemed the respondents effectively had been denied an opportunity to file material addressing Mr Hamza’s motion, I wanted their input – as well as that of Mr Hamza – as to whether and how the matter could or should proceed without devoting at least some initial time to the publication ban and representation issues raised by Mr Hamza’s motion.
c. Emphasizing my concerns regarding the apparent non-compliance and departures from my earlier directions, the resulting complications, and clear indications that the litigation had become more and not less unwieldy since those directions to organize the matter were made, I once again entertained submissions as to whether or not there should be a procedural reset, especially to facilitate isolation of pleading issues from the growing mountain of ostensible evidence that had been filed, and filed by Mr Hamza in particular. Discussion in that regard concentrated in particular on whether the matter should be the subject of a further adjournment and directions, or a ruling whereby the current application would be stayed, (with or without the material filed to date being sealed), unless and until such time as Mr Hamza prepared and served, in accordance with the rules, a statement of claim which would could then be the subject of more focused challenges not interwoven with a voluminous evidentiary record – with any prejudice in time or expense, stemming from any procedural irregularities or misfires, being addressed by appropriate cost determinations. In that regard:
i. Mr Hamza indicated that he was now inclined to proceed by way of such a reset; and
ii. the respondents indicated that they had no faith that a procedural reset would be effective to prevent recurrence of similar complications, and very much wanted the matter to proceed as quickly as possible to a substantive hearing despite the acknowledged procedural defects and challenges.
[6] After receiving and considering all those submissions, I made a determination that the matter should proceed in its current form, subject to further directions designed:
a. to address the further problems and complications that had materialized;
b. to put significant limits on the filing of any additional material, to prevent similar delays; and
c. to ensure that the matter finally was ready for substantive hearing at the next return date or dates.
[7] I made that determination with hesitation, having regard to the many procedural irregularities to date, and the resulting unwieldy nature of the material. In my view, however, the demonstrated evolution of this dispute strongly suggested that a procedural reset would be ineffective to prevent a likely recurrence of the same issues, (albeit perhaps in a more drawn out form), thus making it unlikely that any benefits would be gained sufficient to offset the further expense and delay such a reset would entail.
[8] In that regard, I am mindful of the reality, emphasized repeatedly during the course of these proceedings, that all concerned are anxious, (or at least have been anxious according to submissions I received at various points), to secure early substantive determination of the issues raised by Mr Hamza’s application and the responding applications or motion that have been filed. In particular:
a. Mr Hamza emphasized that he was anxious to secure vindication of perceived injury and damage to his reputation, and regarded the proceedings as self-evidently entitling him to relief;
b. Counsel for The Law Society of Ontario have emphasized that it is eager to end what it perceives to be a premature and/or otherwise impermissible collateral proceeding in this court, while the Society continues its efforts, (in what it views as a proper exercise of its mandate), to address the underlying complaints which seem to have prompted this litigation;
c. At least three of the remaining individual respondents are young lawyers or law students without applicable insurance coverage or significant means, who are said to be experiencing significant ongoing stress and distraction because of this litigation commenced by Mr Hamza; and
d. The remaining lay respondent is unrepresented and admittedly uncertain as to why she has been made a party to this litigation, and what she should be doing in that regard.
Further directions
[9] In the above circumstances, and for the above reasons, I have made and/or make the following further directions:
a. As one measure to address Mr Hamza’s apparent contravention of s.136 of the Courts of Justice Act, supra, and this court’s protocol on the use of electronic devices in the courtroom, (without prejudice to the possibility of any further proceedings or consequences in that regard), all portions of the material filed by Mr Hamza purporting to be a transcript of the proceedings before me on January 22, 2021, are deemed to be struck from those materials.[^1]
b. At the request of the Respondents, leave is granted to all parties to order and obtain formal transcripts of the proceedings before me on January 22, 2021, and February 3, 2021, with such orders to be placed through the court through the mandated process in that regard, subject to payment of the applicable charges for such transcripts. However, no transcript or portion thereof shall be filed in relation to the motion or application hearings described hereafter, except to the extent leave is granted by a presiding judge.
c. Mr Hamza is hereby directed to provide the court with further copies, in PDF format without any electronic restrictions preventing their printing or other reproduction, of all his court filings identified in Appendix “A” hereto. Each such document shall be described by its previous title with the additional word “OPEN” added to it. Such further electronic copies of that documentation shall be provided to the court on or before 4:30pm on February 10, 2021. At the same time, or within two working days thereafter, Mr Hamza shall serve each of the Respondents or their counsel with similar electronic copies of his court filings without any electronic restrictions preventing their printing or other reproduction.
d. In relation to Mr Hamza’s motion seeking a publication ban, removal of Mr Moore as counsel of record for Mr Rocheleau, and/or amendment of Mr Hamza’s application to name Mr Moore as an additional respondent:
i. The motion is adjourned to a special appointment hearing, (maximum 3 hours duration), on February 22, 2021, at 10am or as soon as possible as the motion may be heard thereafter, peremptory on all parties.
ii. Notwithstanding any “Notice of Request for Publication Ban” Mr Hamza may have filed to date:
Mr Hamza shall, before 4:00pm on Friday, February 5, 2021, complete and submit a new or further “Notice of Request for Publication Ban” form, in accordance with the requirements of Part V(F) of the Consolidated Provincial Practice Direction, and paragraphs 107 to 115 thereof in particular.[^2]
Mr Hamza shall, before submitting the aforesaid “Notice of Request for Publication Ban”, take steps to make and preserve a copy thereof by printing a version or by taking a “screen shot” which shall then be reduced to the form of a printed document.
Mr Hamza similarly shall make and preserve a copy of any communication or other document he receives confirming his submission of the aforesaid “Notice of Request for Publication Ban”.
Mr Hamza shall, on or before 12:00pm on Friday, February 5, 2021, serve each of the respondents by email with copies of the aforesaid Notice of Request for Publication Ban” and any communication or document received confirming his submission of that notice, and only that documentation.
Mr Hamza shall, on or before 4:00pm on Friday, February 5, 2021, file copies of that “Notice for Request for Publication Ban” and any communication or document received confirming his submission of that notice, and only that documentation, with the court.
iii. Before 12:00pm on Wednesday, February 10, 2021, Mr Hamza shall serve and file, on all of the respondents, (as they and not just Mr Moore may be affected by such proposed amendments depending on their nature and content), particulars of the specific amendments Mr Hamza seeks to make in relation to his existing application material. Those particulars shall be served without evidence or argument in that regard.
iv. Apart from the expressly permitted and directed additional service and filings to be made by Mr Hamza relating to completion and filing of the mandated “Notice of Request for Publication Ban” and particulars of the specific amendments he desires to make in relation to his existing application material, (described in the preceding sub-paragraphs), Mr Hamza shall neither serve nor file any further material in relation to his motion now returnable on February 22, 2021.
v. As for responding material to that motion:
Mr Moore contemplates the service and filing of a responding motion record and factum focused on Mr Hamza’s request to have Mr Moore removed as counsel of record for Mr Rocheleau, and amendment of Mr Hamza’s application material to add Mr Moore as a named respondent to the application in his personal capacity. That material, (if any), shall be served and filed on or before 12pm on February 17, 2021.
Counsel for the Law Society of Ontario, (Ms Hensel and Mr Unrau) contemplate filing no responding motion record, but the filing of a factum focused on Mr Hamza’s request for a publication ban. That factum, (if any), shall be served and filed on or before 12pm on February 17, 2021.
Counsel for Mr Aderonmu, (Ms Lewis and Mr McKenzie), contemplate the possible filing of a responding record and a short factum, focused on Mr Hamza’s request for a publication ban. That material, (if any), shall be served and filed on or before 12pm on February 17, 2021.
The remaining respondents indicated that they do not intend to file any material responding to Mr Hamza’s motion, and shall not do so.
For greater clarity, notwithstanding the above indications, parties having a common interest in responding to the motion may rely on the material filed by another party when making submissions.
vi. No cross-examination shall be permitted in relation to any of the material filed in relation to Mr Hamza’s motion.[^3]
vii. By 4:30pm on Wednesday, February 17, 2021, or as soon as possible thereafter, copies of my endorsement of January 22, 2021, this endorsement, and all the material set forth in Appendix “A” shall be made available electronically to the judge scheduled to preside over the hearing of the motion on February 22, 2021.
e. In relation to Mr Hamza’s application, and the responding motion brought by the Law Society of Ontario, and the responding applications brought by or on behalf of the Mr Aderonmu and Mr Rocheleau, (all supported by the remaining respondents, although they have filed and will be filing no independent material of their own in that regard):
i. The application, responding motion and responding applications are adjourned to a special appointment hearing, (maximum 6 hours duration, otherwise known as a “full day”), on March 17, 2021, at 10am or as soon as possible as the motion may be heard thereafter, peremptory on all parties.
ii. At the request of the responding parties, all of their extant responding motion and responding application material and requests for relief therein shall be deemed applicable to the material by Mr Hamza before and after the filing of the Respondents’ responding motion and responding application material.
iii. Neither Mr Hamza nor the respondents shall file any further material in relation to Mr Hamza’s application, or the responding motion and applications.
iv. No cross-examination shall be permitted in relation to any of the material filed in relation to Hr Hamza’s application or the responding motion and applications.[^4]
v. By noon on Friday, March 12, 2021, or as soon as possible thereafter, copies of my endorsement of January 22, 2021, this endorsement, all the material set forth in Appendix “A”, and all endorsements made in relation to this matter by the judge presiding over the hearing scheduled for February 22, 2021, shall be made available electronically to the judge scheduled to preside over the hearing of Mr Hamza’s application, and the responding motion and applications, on March 17, 2021.
f. For the sake of clarity, no material other than that identified in Appendix “A” hereto shall be served or filed by any party. In that regard, court staff are specifically directed not to receive or electronically upload any material supplied to the court unless it is specifically identified and included in Appendix “A” to this endorsement, or the subject of a further judicial direction in that regard.[^5]
g. Finally, for the sake of completeness, I note that neither I nor any other judge is seized of the matter as yet, and the hearings scheduled for February 22, 2021, and March 17, 2021, accordingly may be heard by whatever judge may be available and scheduled to hear matters on those dates.
[10] On the last point, while I would have been content for the matter to be returnable before me again in relation to one or more of the required substantive determinations, as originally contemplated and scheduled, the unavoidable reality is that the above dates, (when I am scheduled to be elsewhere), were the only remaining special appointment hearing dates when the relevant motions and applications could be heard in the reasonably near future; e.g., without intolerably postponing the substantive hearings to the end of May or the month of June.
Costs
[11] All costs of the attendance before me on February 3, 2021, are expressly reserved to the judge or judges deciding the underlying application and motion brought by Mr Hamza, and the motion and applications brought in response thereto, on their substantive merits.
Justice I.F. Leach
Date: February 4, 2021
APPENDIX “A”
Material filed or to be filed by Mr Hamza: (Note – Mr Hamza has been directed to file further electronic copies of the following material, free of any restrictions on their ability to be printed or otherwise reproduced, and with the indication of “OPEN” attached to each such document, regardless of any previous versions that may have been filed with the court on or before February 3, 2021)
• Original notice of application (11 pages)
• Original affidavit sworn January 19, 2021 (40 pages)
• Application record dated January 20, 2021 (572 pages)
• Original factum dated January 24, 2021 (400 pages)
• Notice of Constitutional Question dated January 5, 2021 (4 pages)
• Response from Attorney General of Ontario to Notice of Constitutional Question dated January 22, 2021 (1 page)
• Notice of motion dated January 27, 2021 (4 pages)
• Affidavit sworn January 27, 2021 (90 pages)
• Affidavit sworn February 1, 2021 (237 pages)
• “Affidavit and Reply” sworn February 7, 2021 (sic) (102 pages)
• Factum dated February 1, 2021 (15 pages)
• Second factum dated February 1, 2021 (131 pages)
• Copy of “Notice of Request for Publication Ban”, to be submitted between February 3 and 5, 2021, and any corresponding document confirming filing of that notice, without further evidence or written argument
• Particulars of specified amendments desired in relation to application, to be submitted between February 3 and 10, 2021
Material filed or to be filed by the Law Society of Ontario:
• Motion record dated January 29, 2021
• Factum dated January 29, 2021
• Book of authorities dated February 1, 2021
• Further factum to be filed (in relation to Applicant motion for publication ban) between February 3 and 17, 2021
Material filed or to be filed on behalf of Ismail Aderonmu
• Application record dated January 18, 2021
• Supplementary application record dated January 29, 2021 (70 pages)
• Factum dated January 29, 2021 (24 pages)
• Book of authorities dated January 29, 2021 (302 pages)
• Responding motion record possibly to be filed (in relation to Applicant motion for publication ban) between February 3 and 17, 2021
• Further factum to be filed (in relation to Applicant motion for publication ban) between February 3 and 17, 2021
Material filed or to be filed by Jessica Soubas
• None
Material filed or to be filed by Yevgeniya Huggins
• None
Material filed or to be filed on behalf of Mr Rocheleau
• Original application record dated January 18, 2021
• Supplementary application record dated January 28, 2021 (78 pages)
• Original factum dated January 18, 2021
• Fresh factum dated January 28, 2021
• Original book of authorities
• Supplementary book of authorities
Material filed or to be filed by lawyer Stephen R. Moore in his personal capacity
• Responding motion record (in relation to Applicant motion to remove Mr Moore as counsel of record for Mr Rocheleau and to amend the application to name Mr Moore as a respondent in his personal capacity) to be filed between February 10 and 17, 2021
• Factum (in relation to Applicant motion to remove Mr Moore as counsel of record for Mr Rocheleau and to amend the application to name Mr Moore as a respondent in his personal capacity) to be filed between February 10 and 17, 2021
[^1]: I do so pursuant to the court’s inherent jurisdiction to control its own process, and paragraph 101(e) of the Consolidated Provincial Practice Direction, which provides, in part, that “Anyone who uses an electronic device in a manner that is inconsistent with this section [of the Practice Direction] … may be … ordered to abide by any other order the presiding judge may make.
[^2]: In the course of submissions, Mr Hamza indicated that he previously had completed and submitted such a form on two earlier occasions. However, the material filed by Mr Hamza in that regard appeared to provide confirmation that a request had been received, without providing a copy of what had had been sent. Moreover, I note that the mandated form to be submitted requires the inclusion of specific “Details of Hearing”, including the date and time at which the hearing considering the request for a publication ban will take place. Whatever Mr Hamza may have filed in the past, it self-evidently could not have included details of the new hearing that has been scheduled for February 22, 2021, at 10am or as soon as the matter may be heard thereafter.
[^3]: At the hearing before me on February 3, 2021, Mr Hamza raised, for the first time, the possibility of conducting cross-examinations in relation to the underlying application proceedings and his motion. He did so after expressing no need or desire for cross-examinations during the hearing before me on January 22, 2021, (at which time he thought it self-evident the matter was ready for a summary determination), nor any need or desire for cross-examinations during the submissions I received from 10am to 1:00pm on February 3, 2021, when I requested submissions from all parties as to how the matter should proceed. Mr Hamza’s suggestion of cross-examinations was raised only after I had announced my decision, after the lunch break, indicating that Mr Hamza’s motion and application, and the responding motion and responding applications, would be proceeding to peremptory substantive hearings as soon as possible. In the circumstances, it seemed to me that the request for cross-examinations made by Mr Hamza was an afterthought, advanced more for the purposes of curiosity and/or delay rather than genuine need. Moreover, as I indicated and emphasized to Mr Hamza, the only reason the matters had not proceeded to a substantive hearing before me as contemplated and scheduled on February 3, 2021, was his deviation from my directions, and his failure to ensure complete filing of material, (including his original application and factum), in time for the hearing scheduled for February 3, 2021. In the circumstances, I did not think it fair that the resulting delay in the hearing should be used as an opportunity to request cross-examination on affidavit material, entailing further corresponding delay.
[^4]: I declined to permit such cross-examination, requested by Mr Hamza, for the same reasons set forth in Footnote 3, supra.
[^5]: I have been advised by court staff that, barring such a direction, they are required by court policy enforced by their Supervisor to accept and upload any and all material supplied to the court by parties, regardless of whether it has been served or the filing is otherwise authorized, so that it will be available to the judge if necessary. While an advisable policy in the abstract, it has the potential to reintroduce unnecessary confusion in this case in terms of the permissible and relevant record, and no more than that permissible and relevant record, which is to be provided electronically to the judge or judges presiding over the hearings now scheduled for February 22 and March 17, 2021. (In this particular case, with its substantial filings, the relevant One Drive folder and the copying of material to the judicial subdirectory already has been complicated unnecessarily, and the organization task of court staff made that much harder, by such unilateral and sometimes duplicate filings, making it more difficult to ascertain what should and should not be provided to the presiding judge, in turn requiring the provision of excess material and material that has not been served and filed.) Court staff also have indicated that they are authorized by their Supervisor to deviate from that otherwise applicable court policy in accordance with a specific court order relating to such matters.