|
Civil Litigation Dicta - Case Conferences. Grovum v. Kouznetsov [case conference]
In Grovum v. Kouznetsov (Ont Div Ct, 2025) the Ontario Divisional Court considered on a Divisional Court appeal jurisdiction at a case conference, here from the making of a "final order on contested issues during a case conference".
The court considers a civil litigation 'fairness' argument, here alleging an essential lack of notice over the range of issues and orders dealt in a case conference:2. The appellants were not denied procedural fairness.
[32] The appellants argue that they believed the purpose of the conference was solely to explain the outstanding issues and to schedule a hearing on the merits, and that they were not permitted to file affidavits or factums. They also contend that their counsel was surprised when the application judge used the case conference to adjudicate contested issues. I would not give effect to these submissions.
[33] The receiver requested the case conference on behalf of the appellants, citing as its purpose "inter alia, interpretation of his previous orders/endorsements." The appellants did not raise any concern or disagreement with the court or the respondents regarding the stated purpose of the conference.
[34] In response to the request for a case conference, the application judge stated that “to make [the case conference] effective, I will require a case conference memo from each party setting out what they want and why they should get it.” It should have been clear to the appellants that the parties had the opportunity to request orders at the case conference. Furthermore, the application judge directed that the parties’ briefs be limited to five pages, “plus any necessary attachments.” He did not specify a page limit for attachments, and nothing prevented the appellants from filing an affidavit if they wished.
[35] The appellants were afforded ample opportunity to present their case through memoranda and attachments, and their failure to avail themselves of this opportunity does not constitute a denial of procedural fairness. They were adequately informed of the case conference’s purpose, of the orders the respondents’ sought, and provided with the means to present their case.
. Grovum v. Kouznetsov
In Grovum v. Kouznetsov (Ont Div Ct, 2025) the Ontario Divisional Court considered, on a Divisional Court appeal, jurisdiction at a case conference - here from the making of a "final order on contested issues during a case conference" [under RCP 50.13]:1. Scope of judicial powers at a case conference.
[24] The appellants contend that Rules 50.13(5) and 50.13(6)[4] provide an exhaustive list of permissible orders at a case conference. They provide as follows:Matters to be dealt with
50.13 (5) At the case conference, the judge or associate judge may,
(a) identify the issues and note those that are contested and those that are not;
(b) explore methods to resolve the contested issues;
(c) if possible, secure the parties’ agreement on a specific schedule of events in the proceeding;
(d) establish a timetable for the proceeding; and
(e) review and, if necessary, amend an existing timetable.
Powers
50.13 (6) At the case conference, the judge or associate judge may, if notice has been given and it is appropriate to do so or on consent of the parties,
(a) make a procedural order;
(b) convene a pre-trial conference;
(c) give directions; and
(d) in the case of a judge,
(i) make an order for interlocutory relief, or
(ii) convene a hearing. [25] The appellants argue that the application judge’s order, which holds them liable for penalties and interest on taxes resulting from their removal of the second tranche payment beyond November 10, 2020, constitutes a final order that exceeds the judge’s authority at a case conference. They argue that a judge’s powers at a case conference are limited to making procedural orders, giving directions, making orders for interlocutory relief, and convening a hearing.
[26] Rule 50.13 is not as restrictive as the appellants assert. In appropriate cases and on notice, judges and associate judges have authority to issue directions, which can include substantive orders, during case conferences to enhance efficiency, accessibility, and fairness in the justice system. This flexibility reduces delays and procedural burdens, tailors procedures to the case’s needs, and prevents unnecessary formalities from hindering timely resolution. Such authority also supports pragmatic case management, upholds proportionality and efficiency, and aligns with Rule 1.04, which mandates that the Rules of Civil Procedure be liberally construed to secure just, most expeditious, and least expensive resolution of civil proceedings on their merits.
[27] The appellants cite Edenshaw Toronto Developments v. Diamond Luxury Developments,[5] where Justice Papageorgiou declined to strike a claim at a case conference. She reasoned that such an order required an analysis of the legal principles underlying the pleaded causes of action in a complex dispute between real estate developers. She noted that granting significant substantive relief at a case conference, without a factum or case law, would be unfair and would neither promote efficiency nor alleviate court backlog. [6] This case does not establish that substantive orders can never be made at a case conference. As Rule 50.13(6) states, powers may be issued at a case conference when appropriate. In Edenshaw, the court exercised her discretion to conclude that the particular requested orders were not suitable for a case conference in the circumstances of that case.
[28] In Miller v. Ledra,[7] the applicant sought production of certain corporate records. The respondent acknowledged that the applicant was a former director but denied that the applicant was a shareholder or entitled to the requested production. In that case, Justice Koehnen convened a case conference and directed the parties to exchange case conference memoranda.
[29] Justice Koehnen considered that case to be a classic case where a case conference should be used to determine the issue instead of a full motion or application hearing. He noted the backlog of cases on the Toronto Civil list, and that a motion under two hours would impose a 14 month wait on the parties. He found that the prejudice to the respondent in producing records to a former director was outweighed by the applicant’s prejudice from the delay and the “institutional prejudice” to the justice system. He concluded that his order qualified as a “direction” under Rule 50.13(6).
[30] In the instant case, the appellants contend that a motion with a proper evidentiary record and sworn evidence was required. I disagree. The purpose of the case conference was for the application judge to interpret his own previous order. He had already determined that the appellants, who engaged in oppressive conduct and breached a Mareva injunction, would be responsible for penalties and interest resulting from their misconduct. It was undisputed that the receiver, appointed on November 10, 2020, was tasked with calculating and filing unpaid taxes from 2015 onward, a process that took years. The appellants argued that they ought not to be responsible for interest and penalties after November 10, 2020, because they had no control over the preparation of taxes once the receiver took over. The application judge reasonably concluded that wrongdoers cannot complain about the time taken to rectify their misconduct. Such a conclusion is in keeping with the broad remedial scope of the oppression remedy, which gives the court “a broad, equitable jurisdiction to enforce not just what is legal but what is fair”.[8]
[31] Scheduling a motion in this case would have unnecessarily increased costs for the parties, burdened the court, and delayed resolution of a dispute that has been ongoing for nearly nine years. Interpreting the previous order to require the appellants to pay interest and penalties that accrued after November 10, 2020, and are related to the second tranche, qualifies as a “direction” within the meaning of Rule 50.13(6)(c). . Casa Loma Residents Association v. 555 Davenport Holdings Ltd.
In Casa Loma Residents Association v. 555 Davenport Holdings Ltd. (Div Court, 2024) the Divisional Court held a case conference where the appellant/applicant filed for both an appeal (actually it was a motion for leave to appeal) [under s.24(1) of the Ontario Land Tribunal Act, 2021] and a JR (under the relatively new doctrine of Yatar), here of an OLT decision.
Here the judge notes the R50.13(6) ['Case Conferences - Powers'] authority of the CC judge, and authority of a judge hearing a motion for leave to appeal to adjourn the matter to a panel of the court:[19] The judge who hears the motion for leave to appeal can adjourn it to a panel under s. 21 (4) of the Courts of Justice Act, RSO 1990, c C.43. Under Rule 50.13 (6) a judge at a case conference can make that order in appropriate circumstances. . Ieraci v Parsons
In Ieraci v Parsons (Div Court, 2024) the Divisional Court dismissed a landlord's motion to extend time to commence an RTA s.210 appeal of an LTB "finding that ... [the LL] illegally evicted Ms. Parsons". The history of the dispute was that of a flooded basement apartment that the tenant left and the LL treated as abandoned, a legal conclusion that the LTB disagreed with.
Here the court considered (and denies) the motion to extend time to commence an appeal - unusually under the case conference RCP 50.13(6) authority - and primarily on the basis that the LL's appeal was not grounded on a question of law [which is required under RTA s.210]:[27] This is a case in which it is fair and appropriate to exercise the court’s authority under Rule 50.13 (6)(d) [SS: 'Case Conference - Powers'] of the Rules of Civil Procedure, RRO 1990, Reg 194, to decide the extension issue summarily without imposing on the parties the cost and delay of formal motion practice. The directions convening the case conference gave notice of the issues and topics to be covered. Changing the form of Mr. Ieraci’s written submissions to an affidavit and factum will not change the substance. I am prepared to treat the submissions as if they were sworn.
[28] Taking Mr. Ieraci’s submissions at their highest, and without cross-examination of Mr. Ieraci, he is unable to satisfy the requirements to obtain an extension of time to appeal the board’s decision.
....
(ii) The Appeal does not raise a Question of Law
[33] As was the case with Mr. Ieraci’s request for reconsideration, his proposed appeal has no merit. Under s. 210 of the Residential Tenancies Act, 2006, this court has jurisdiction to hear only appeals on questions of law. While he has tried to pose his grounds of appeal in terms of legal issues, all his arguments contest the board’s finding of fact or mixed fact and law that Ms. Parsons did not abandon the tenancy and therefore her eviction was unlawful.
[34] The board heard Mr. Ieraci’s evidence and found that it was his renovation and not the flood that made the unit uninhabitable. He turned a repair into a three-year gutting and renovation.
[35] Even if the tenant was in arrears of rent at the time of the flood, the landlord did not act on it. Mr. Ieraci says he served a notice to terminate for non-payment of rent but he did not file it with the board to seek an order terminating the lease. Once again, he says that was due to the tenant’s abandonment. But the landlord was not free to decide that the tenant’s arrears allowed him to terminate the lease or refuse her alternative accommodation without an order of the board.
[36] Mr. Ieraci submits that Ms. Parsons abandoned the premises before he gutted them. He refers to text messages and her involvement of the police to help ensure that she had access to all of her goods to put into storage. This evidence was before the board.
[37] Mr. Ieraci submits that the scheduling of the hearing left him unable to call a witness – a Mr. Nunes.
[38] Mr. Nunes was the person hired by Mr. Ieraci to help Ms. Parsons move her goods into storage. Mr. Ieraci says that Mr. Nunes came to an earlier hearing but the hearing adjourned that day. Mr. Nunes then moved to Vancouver and Mr. Ieraci lost track of him. Mr. Ieraci has found him Mr. Nunes and proposes that Mr. Nunes give evidence to support his submission that Ms. Parsons abandoned the unit. For example, he says, Mr. Nunes helped Ms. Parsons move her bed into storage. She could not have intended to live in the unit while it was being repaired without a bed.
[39] The hearing adjourned twice at Mr. Ieraci’s request. Both adjournments were peremptory to him. There is no indication that his legal representative sought an adjournment of the second peremptory hearing to try to locate Mr. Nunes.
[40] All hearings of the board are held virtually by videoconference. The location of a witness does not affect his ability to testify as long as he has access to the internet.
[41] There is no realistic likelihood that Mr. Ieraci will obtain leave to deliver Mr. Nunes’ evidence as fresh evidence on the appeal. Fresh evidence cannot be submitted if it was available to a party at the time of the original hearing by the exercise of reasonable diligence. Neither leave to file fresh evidence nor a new hearing is available because Mr. Ieraci did not protect a witness’s evidence while facing a peremptory hearing date.
[42] In any event, the evidence proposed for Mr. Nunes is just confirmatory of Mr. Ieraci’s side of the story. The board understood Mr. Ieraci’s professed belief that Ms. Parsons abandoned the premises. It understood the timeline as the quoted paragraphs above demonstrate.
[43] Mr. Ieraci raises issues about the definition of “uninhabitable”; the fact that Ms. Parsons gained access to the premises after July 5, 2021 and therefore was not locked out; that Ms. Parsons brought the police to obtain access to her goods; and that he offered Ms. Parsons reasonable alternative accommodation.
[44] Mr. Ieraci believes that the board was wrong in finding that the unit became uninhabitable only after he gutted it and in failing to find that Ms. Parsons abandoned before that date.
[45] But there is no appeal available to this court on the issue of whether Ms. Parsons abandoned the premises. The Legislature of Ontario has told the court in s. 210 of the statute that the board has the last word on questions of fact and mixed fact and law.
....
Outcome
[49] With Mr. Ieraci unable to show that he made any real effort to appeal in a timely way, with the appeal lacking merit, and an extension of time risking prejudice to Ms. Parsons, the justice of the case leads me to deny the extension sought.
[50] As is usually the case, in my view, the most important factor is the assessment of the merits of the proposed appeal. It is perfectly clear from Mr. Ieraci’s notice of appeal, his written submissions, and his oral submissions that he is dissatisfied with the board’s findings of fact and he wants a chance to re-do the hearing on better evidence. An appeal restricted to issues of law is simply not available to do that.
[51] It follows that Mr. Ieraci’s request for an extension of time to bring this appeal must be dismissed. The appeal is therefore dismissed.
[52] If she seeks costs, Ms. Parsons may deliver up to two pages of submissions and a Costs Outline by April 12, 2024. Mr. Ieraci may deliver up to two pages of submission in response by April 19, 2024. Submissions are to be copied to my Judicial Assistant by email to therese.navrotski@ontairo.ca.
|
