Ontario Superior Court of Justice

Court File No.: CV-24-84351
Date: 2025-06-04

BETWEEN:

Ikenna Aniekwe
Self-Represented
Plaintiff/Defendant by Counterclaim

• and -

Chika Charles Aniekwe
A. Appadoo, for the Defendant/Plaintiff by Counterclaim
Defendant/Plaintiff by Counterclaim

Heard: May 28, 2025

Reasons for Decision
M. Bordin

Overview

[1] The Rules of Civil Procedure and provincial and regional practice directions exist for a reason. Compliance is not optional. The proper and efficient operation of the courts depend on compliance. Lawyers must be familiar with their obligations under Rules and the provincial and regional practice directions. For courts to function properly, and for judges to be able to prepare for, hear, and decide cases day after day, parties must comply with the Rules and the directions of the court. It has become commonplace for parties not to do so. Such conduct creates an unreasonable burden on the justice system and must be discouraged.

[2] It is all too common for motions to devolve into a series of intermediary skirmishes between the parties which grow and take on a life of their own that far exceeds the scope of the underlying claims or initial motion. Often, this is accompanied by an explosion of poorly organized materials in Case Center which, when coupled with a failure to comply with the Rules, practice directions, and Notice to the Profession leaves judges unable to properly prepare for hearings or results in an inordinate amount of time spent making sense of what counsel could have, but have not, clearly set out. This too must be discouraged.

[3] This motion began when the self-represented plaintiff, who is a lawyer, brought a motion to strike the counterclaim on the basis that it disclosed no reasonable cause of action and/or because it is frivolous and vexatious and will prejudice or delay the trial. In the alternative, the plaintiff sought to dismiss or stay the counterclaim on the basis that the Ontario Superior Court of Justice does not have jurisdiction and/or because another forum (Nigeria) is clearly more convenient to hear and determine the counterclaim.

[4] The plaintiff then moved to amend his statement of claim. On January 14, 2025, the defendant moved to amend his statement of defence and counterclaim. Both pleadings were amended on February 27, 2025.

[5] The defendant served a cross-motion dated February 27, 2025, seeking an order dismissing or staying the plaintiff’s claim on the basis that Ontario is not the appropriate forum and that Nigeria is the more appropriate forum to hear this matter. The defendant also asked for an order for security for costs.

[6] After cross-examining the plaintiff on March 25, 2025, the defendant served an affidavit dated April 10, 2025, and then served a motion for leave to serve and file the affidavit. A day before the hearing, the plaintiff served and uploaded to Case Center a new affidavit dated May 26, 2025. As the plaintiff had completed the defendant’s cross-examination on April 11, 2025, he needed leave to deliver his May 26, 2025, affidavit.

[7] In these reasons I address the failure to comply with the Rules and practice directions and the defendant’s motion for leave under r. 39.02(2).

Motion Bundle

[8] The Case Center motion bundle for today’s motion contains:

a. the plaintiff’s materials, comprising 599 pages;
b. “Defendant/Respondent Documents bundle (1)” totaling 682 pages;
c. and “Defendant/Respondent Documents bundle (2): (the “Defendant (2) bundle”) containing 1484 pages.

However, there is only one defendant, but the Defendant (2) bundle contains 802 pages more than the other defendant bundle.

[9] In submissions, the defendant confirmed that he did not upload any of the materials in the Defendant (2) bundle. The plaintiff confirmed that he uploaded the documents in the Defendant (2) bundle because they were documents that the defendant had served on him which the plaintiff wanted to or might rely upon.

[10] It is improper for a party to upload materials to a Case Center bundle intended for another party. This creates confusion for a judge reviewing the materials and preparing for the motion. In this case, that confusion is exacerbated by the deficient motion confirmation forms.

Motion Confirmation Forms

[11] The Notice to the Profession, Parties and Public for Central South Region Effective February 1, 2024 (the “Notice to the Profession”) provides that:

a. Both parties must file and upload confirmation forms to Case Center.
b. The confirmations must only list the specific issues that are to be decided on the motion. They should also indicate which materials the judge should review with clear reference to the specific volume, tab, and page numbers. Referring to documents that the party does not intend to refer to in submissions is discouraged and may be a factor in determining costs.
c. Confirmations are required for all motions: long or short, even if they are set for hearing on a specific date. The presiding judge uses the confirmation for preparation: to determine what to read and what issues are in dispute.
d. Where a Confirmation has not been filed by either party, the motion may not proceed.

[12] The plaintiff’s confirmation form estimates that 300 minutes will be required for this motion; advises the court that all issues are to be heard; and directs the court to all the motion records, transcripts, factums, and books of authorities. The plaintiff’s confirmation form does not comply with the Notice to the Profession.

[13] The defendant did not upload a confirmation form. At the hearing, the parties advised that the plaintiff’s confirmation form was a joint form. The form does not make this clear and leaves the court with the impression that the defendant did not file a confirmation form. It should clearly indicate on the form that it is jointly filed.

[14] Moreover, while the motion confirmation form indicates that all issues were to be heard on the day of the motion, it does not set out the issues. There is no indication whether some issues have been resolved or additional issues have been added since the filing of the motions many months ago. For example, during submissions the plaintiff conceded that he is no longer pursuing the primary issue raised in his notice of motion, that is, to strike the counterclaim for disclosing no reasonable cause of action. Further, as became evident during submissions, there were additional issues the parties wanted to raise that were not identified.

[15] Parties must properly complete a motion confirmation form. The motion confirmation form, together with a draft order, provides the judge with a roadmap to the motion and the issues to be determined as well as the evidence to be reviewed.

[16] A judge should not have to open a Case Center bundle with thousands of pages and dozens of tabs and rummage through documents to determine what issues are to be determined and what evidence needs to be reviewed. This needlessly consumes hours of valuable judicial time and is the responsibility of the parties – not the court.

Motion Records, Transcripts, and Draft Orders

[17] The plaintiff filed four motion records. The last motion record dated May 26, 2025, is not only short served but was not uploaded to Case Center in accordance with the timelines in the Notice to the Profession.

[18] The defendant has filed two motion records plus an additional motion record on his motion for leave.

[19] There are two transcripts of the cross-examination of the defendant and what appear to be exhibits totaling 426 pages.

[20] The Consolidated Civil Provincial Practice Direction, at para. 59, provides that all documents must be uploaded in PDF format and the indexes to all Records should include hyperlinks or bookmarks. None of the defendant’s motion materials nor his book of authorities have been bookmarked or hyperlinked as required.

[21] The defendant has uploaded a draft order. The plaintiff did not upload a draft order. Although, because of a gap in the Notice to Profession, a draft order is not specifically required for a long motion, it is required for a short motion. Given the importance of draft orders in assisting the court in understanding the relief being sought, particularly where the relief being sought differs from the relief sought in the original motion record, the best practice is to upload a draft order.

Compendiums

[22] Neither party filed a compendium.

[23] Compendiums containing excerpted portions of the court-filed documents and evidence that are essential to the hearing of the motion are required in this jurisdiction for long motions: see the Notice to the Profession.

[24] As set out in the Notice to the Profession, all court documents, including factums and compendiums, must comply with r. 4 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, with respect to formatting, including hyperlinks or bookmarks, and must comply with the maximum page requirements set out in the Notice to the Profession. Failure to do so may result in the document being rejected for filing: see the Notice to the Profession.

[25] A compendium should also contain excerpts of the legal authorities and the transcripts and orders that the party intends to refer to in oral argument: see r. 4.05.3(7) of the Rules,

1. The compendium must include a table of contents listing only those authorities, transcripts, previous orders and other documents on which the party intends to rely during the hearing or conference, as applicable, hyperlinked in accordance with paragraph 3.
2. The compendium must include the relevant excerpts of every document listed in the table of contents, with a separate section for each document.
3. Each document listed in the table of contents must be hyperlinked, i. to the section of the compendium containing the excerpt or excerpts of the document, and ii. if the document is published on a website referred to in subrule (7.1), to the published document or, if possible, the relevant provision or portion of the published document. O. Reg. 300/24, s. 2 (5).

(7.1) Subparagraph 3 ii of subrule (7) applies with respect to the Canadian Legal Information Institute website, e-Laws or another Government of Ontario website, the federal Justice Laws website and any other similar website that is accessible without charge or subscription. O. Reg. 300/24, s. 2 (5).

Factums

[26] In this region, factums are required to be double-spaced and no more than 20 pages: see the Notice to the Profession.

[27] The Plaintiff filed a 27-page factum dated April 30, 2025. The defendant filed a 25-page factum dated April 15, 2025. Both appear to be single-spaced and both significantly exceed the page limits, without leave to do so.

[28] While the Rules do not specifically require that factums on motions provide a reference to the source of the fact cited or asserted, it is customary and best practice for this to be done. It assists the court in cross-referencing the alleged fact with the evidence. Neither the plaintiff’s nor the defendant’s factum consistently does so.

[29] With respect to factums, r. 4.06.1(3) provides that:

(3) A factum that is filed electronically must meet the following requirements:

1. The factum must include bookmarks, as appropriate, for each section.
2. Each citation to an authority that is published on a website referred to in subrule 4.05.3 (7.1) must be hyperlinked to the published authority or, if possible, to the relevant provision or portion of the published authority.

[30] Neither party’s factum complies with r. 4.06.1(3) 1. The defendant’s factum does not comply with r. 4.06.1(3) 2.

[31] In violation of the filing deadlines in the Rules and the Notice to the Profession, the day before the motion, the defendant uploaded a document entitled “Statutory Authority/Legislation”. This document appears to be what ordinarily appears at the end of a factum. It is missing from the end of the defendant’s 25-page single spaced factum.

[32] There are two additional defence factums in the Defendant (2) bundle in Case Center. It is not clear why.

Orders with Respect to the Cross-Motions on Jurisdiction and Forum

[33] In short, the parties have failed to comply with the Rules, the Consolidated Civil Provincial Practice Direction, the Notice to the Profession, and best practices with respect to Motion confirmation forms, motion records, draft orders, factums, and compendiums. The Case Center motion bundle contains materials improperly filed.

[34] The parties’ cross-motions on jurisdiction and forum must be organized and must comply with the Rules, practice directions, and Notice to the Profession before they can be heard.

[35] I make the following orders with respect to the cross-motions on jurisdiction and forum:

a. All motion records to be used in the cross-motions on jurisdiction and forum shall be bookmarked or hyperlinked;
b. Only materials to be relied on in the cross-motions on jurisdiction and forum shall be included in the applicable Case Center bundle for the motions;
c. Both parties shall serve and upload draft orders to Case Center no later than the Wednesday before the week scheduled for the motions;
d. Both parties shall serve and file Factums that are focused solely on the issues in the cross-motions on jurisdiction and forum. Leave is granted for the parties to file factums that shall not exceed 24 double-spaced pages, plus Schedules. Factums shall comply with all other requirements outlined above;
e. Both parties shall file a compendium in accordance with the requirements for compendiums outlined above;
f. Subject to the outcome of the possible motion for leave to serve and file the plaintiff’s affidavit dated May 26, 2025, the parties shall not file any further evidence;
g. All updated materials are to be filed by June 13, 2025;
h. The parties will file a detailed individual or joint motion confirmation form in accordance with the Notice to the Profession requirements set out above by no later than the Wednesday before the week scheduled for the motions;
i. The cross-motions on jurisdiction and forum are to be scheduled for a one-day hearing the week of June 23, 2025, with the week of June 30, 2025, as a back-up week;
j. The issue of costs of the cross-motions on jurisdiction and forum will be addressed following the hearing and determination of those motions. Additional time and/or pages for written submissions may be required to address costs, given the long history in this matter and what has transpired since the plaintiff first served his motion; and
k. The defendant’s motion for security for costs is deferred until after the determination of the forum motions.

Motion for Leave Pursuant to r. 39.02(2)

[36] The defendant seeks leave pursuant to r. 39.02(2) of the Rules to tender the affidavit of the defendant dated April 10, 2025, which includes exhibits A through D. I dismissed the defendant’s motion with written reasons to follow. These are those reasons, which are intended to supplement the brief written endorsement made on the day of the hearing.

[37] The exhibits to the April 10, 2025, affidavit are:

a. Exhibit A, the unissued amended statement of defence and counterclaim amended on February 27, 2025;
b. Exhibit B, an April 10, 2025, confidential letter from the LSO to the plaintiff and copied to the defendant’s lawyer;
c. Exhibit C, a Vanguard news article dated December 9, 2024, about the plaintiff and the defendant.
d. Exhibit D, photos of limited excerpts of proceedings commenced in Nigeria on January 15, 2025, by the plaintiff against the defendant.

[38] The April 10, 2025, affidavit sets out some procedural history of the motions, attaches the exhibits, and describes the content of the exhibits. It briefly sets out evidence of the plaintiff regarding the Vanguard article and why it supports his evidence. The April 10, 2025, affidavit briefly summarizes the Nigerian proceedings and contains argument about the Nigerian proceedings and the forum motion. Some of the affidavit is taken up with argument.

[39] The defendant’s initial affidavit on the plaintiff’s forum motion is dated February 26, 2025. The defendant cross-examined the plaintiff on March 25, 2025.

[40] Rule 39.02(2) provides:

(2) A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.

[41] The plaintiff relies on the decision of Perrell J. in Shah v. LG Chem, Ltd., 2015 ONSC 776, paras. 22-25. I take the following principles from paragraphs 22-25 of Shah:

a. The procedure on a motion limits the delivery of evidence for the motion. The Rules require that all the parties submit their evidence before any cross-examinations of opposing parties proceed.
b. To determine whether to grant leave for an additional affidavit or another examination and upon what terms, if any, the court will consider whether the matter raised on the cross-examination was relevant to the litigation, whether the affidavit sought to be filed is responsive to the matter, and whether allowing the delivery of the affidavit would operate unfairly against the adverse party.
c. On a motion for leave to file a further affidavit, a party should explain why the evidence could not have been included as part of its pre-cross-examination evidence.
d. Leave is not limited to granting leave only to introduce evidence to respond to a matter that had been raised for the first time during the cross-examination.
e. The court must take a flexible, contextual approach in assessing the criteria relevant to r. 39.02(2), having regard to the overriding principle outlined in r.1.04 that the rules are to be interpreted liberally to ensure a just and timely resolution of the dispute. All the criteria should be weighed and no one criterion should be determinative.
f. The rule about the delivery of subsequent affidavits should not be used as “a mechanism for correcting deficiencies in the motion materials.”
g. The moving party has “a very high threshold” to meet.
h. Leave should be granted sparingly.
i. Rule 39.02 is designed to fairly regulate and provide closure to the evidence gathering process for motions and applications. It is designed to prevent, in part, an endless exchange of affidavits and cross-examinations.
j. Rule 39.02 obliges the parties to consider the issues and to put all relevant evidence forward before embarking upon cross-examination of the opposite party’s witnesses.

[42] In para. 11 of the affidavit filed in support of the motion for leave, the affiant deposes that the April 10, 2025, affidavit “does not respond to, nor reference, any matters raised during the cross-examination of the Plaintiff. It was prepared to clarify and amplify certain issues raised in the Defendant's original affidavit and to attach documents that became available only after the original affidavit was sworn.” Clarifying and amplifying what was in the defendant’s first affidavit after the defendant has cross-examined the plaintiff is not an appropriate reason to grant leave.

[43] The defendant submits that the April 10, 2025, affidavit is not being used as a mechanism for correcting deficiencies in the motion materials. This is contradicted by the above-referenced para. 11, which states that the April 10, 2025, affidavit is being tendered to clarify and amplify earlier evidence. In this context, this is a distinction without meaning.

[44] The defendant submits that there is no prejudice to the plaintiff because the plaintiff can cross-examine him on the April 10, 2025, affidavit. That is not the test. If it were, parties would be able to routinely serve and rely on affidavits after they cross-examine the opposing party, so long as they submit to cross-examination.

[45] The defendant submits that the Exhibits to the April 10, 2025, affidavit are relevant and could not have been obtained before he cross-examined the plaintiff on March 25, 2025.

[46] Exhibit A, the amended defence and counterclaim, existed before the cross-examinations. Further, it is not evidence. It is a pleading. Pleadings are already before the court. There is no need for an affidavit in order to refer to a pleading on the motion. Further, the amended defence and counterclaim were available, and the defendant could have cross-examined the plaintiff about it.

[47] The LSO letter at Exhibit B is not relevant. The letter pertains to a complaint made by the plaintiff in October 2024 regarding a statement in the defendant’s factum. The defendant submits that the statement complained of was included in the plaintiff’s February 27, 2025, amended statement of claim. As a result, the LSO’s letter of April 10, 2025, dismissing the complaint is somehow relevant. It is the pleading contained in the plaintiff’s amended claim that is relevant to the forum motions, not the conclusion of the LSO that the defendant’s lawyer did not act improperly in making the impugned statement in the factum. The amended statement of claim was available, and the defendant could have cross-examined the plaintiff about it.

[48] The defendant submits that Exhibit C, the Vanguard article, demonstrates that the issues in dispute are rooted in Nigeria and speaks to the true nature of the issues between the parties and grounds the dispute in Nigeria. In submissions, without an evidentiary foundation, the defendant asserted that he first became aware of the Vanguard article on March 3, 2025. The plaintiff objected and, also without an evidentiary foundation, asserted that the defendant had learned about it earlier. Either way, the defendant was aware of Exhibit C’s existence at least three weeks before he cross-examined the plaintiff. Exhibit C was available, and the defendant could have cross-examined the plaintiff about the article.

[49] The defendant submits that he did not have notice of the plaintiff’s Nigerian proceeding until after the cross-examination of the plaintiff. The plaintiff points to the order for substituted service on him by email, obtained by the plaintiff in the Nigerian proceeding. The defendant submits that the order for substituted service is stamped March 28, 2025, after the cross-examination of the plaintiff. However, the order states on its face that it was issued on March 4, 2025, three weeks before the plaintiff was cross-examined.

[50] What the defendant does not say in his April 10, 2025, affidavit is when he was served with the Nigerian proceeding or when it came to his attention. One would have thought that if he was served with it after the plaintiff’s cross-examination he would plainly say so. I draw an adverse inference from his failure to address the issue directly in evidence. I conclude that Exhibit D was available to the defendant, and that the defendant could have cross-examined the plaintiff about the Nigerian proceeding. Further, Exhibit D contains only a small fragment of the Nigerian proceeding. I do not accept the defendant’s characterization of the proceeding. There is no explanation for why a complete copy of the proceeding was not included in the affidavit. The relevance of the fragment is not established.

[51] In summary, Exhibit A (the amended pleading), Exhibit C (the Vanguard article), and Exhibit D (the Nigerian proceeding) all predate the defendant’s first affidavit and his cross-examination of the plaintiff. The plaintiff could have been cross-examined on these. There is no explanation for why they were not included in an affidavit before the cross-examination. Further, Exhibit A is already before the court, Exhibit B is not relevant, the admissibility of Exhibit C is questionable, and the relevance of Exhibit D is not established. The content of the April 10, 2025, affidavit does not add anything of relevance.

[52] There is no valid explanation for why the exhibits and issues sought to be tendered in the April 10, 2025, affidavit were not raised before cross-examination of the plaintiff as they all could have been. The defendant was required to consider the issues and to put all relevant evidence forward before embarking upon cross-examination of the plaintiff. The defendant is attempting to fill deficiencies he left in his original materials.

[53] Leave should be granted sparingly. The defendant has not met the very high threshold required for leave. The defendant’s motion is dismissed. Costs are fixed in the amount of $1,500, payable by the defendant to the plaintiff within 30 days.

M. Bordin

Released: June 4, 2025