BANOVICH v BANOVIC

Pursuant to Rule 14.90, the Applicant applied for an Order striking all but two of the 36 items from the Respondent’s Extracts of Key Evidence (“EKE”). The Applicant argued that the materials were not before the Trial court, constituted new evidence, or were irrelevant to the Appeal.

The Court began with Rule 14.28(1), which makes all evidence and exhibits received by the court appealed from part of the appellate record. The Court defined “new evidence” as any information discovered after the Decision or not filed in the lower court. Applying these principles, the Court struck various tabs of evidence, including unfiled discovery transcripts and unsworn exhibit book materials because they were not part of the original record.

On relevance, the Applicant relied on Rule 14.27(1) to contend that the vast majority of the EKE documents were irrelevant and would prejudice the Panel. The Court declined to pre-screen for relevance, noting that the Appeal panel would be able to determine relevance at the hearing and to disregard any immaterial references in the EKE or the factum.

Although the Applicant was partially successful, elevated Costs were refused. The Court accepted that the self-represented Respondent, who has significant language challenges, was attempting in good faith to follow directions she understood from the Case Management Officer. In the circumstances, each party was to bear their own costs of the application.