The Applicant applied under Rule 14.36(3) to rescind directions made by a Case Management Officer directing his two Appeals to be heard in writing and refusing to allow an Affidavit to be made available to the Panel in one of the Appeals.

Rule 14.36(3) governs the review of Case Management Officers’ directions and provides an avenue for parties to bring procedural questions before a Justice of this Court.

It was found that while Case Management Officers are not owed deference in the traditional sense, a Judge asked to rescind a decision of a Case Management Officer “should pay careful consideration to that decision and any reasons for it”. However, the Application challenging the direction regarding written submissions was not filed within the one-month period required by Rule 14.36(3). That said, Woolley J.A. noted that the Court has discretion to extend time periods under Rules 1.4(2)(h) and 13.5(2). Ultimately, no extension was granted as the direction to proceed in writing was found to be preliminary, and not final, so the Applicant could still make submissions to the Appeal Panel.

The reasons of the Case Management Officer for refusing to make the Affidavit available to the Panel in this case was found to be “unassailable”. The Affidavit at issue was not adduced in the proceeding below. As such, it was new evidence. When parties wish to admit new evidence on Appeal, they must make an Application to admit that evidence, which “must be filed and served prior to... the deadline for filing, the applicant’s factum”, as per Rule 14.45(1). If no Order to admit new evidence is granted, then the Appeal “will be decided on the record before the court appealed from”: Rule 14.70. The Applicant did not file an Application to admit new evidence and the deadline for such an Application had passed by the time of the Applicant’s request. The Applicant did not apply for an extension of time. As such, it was found that the Case Management Officer was right to deny the Applicant’s request to make the Affidavit available to the Panel.