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Appeals - Security for Judgment. Bogue v. Miracle
In Bogue v. Miracle (Ont CA, 2024) the Ontario Court of Appeal allows some funds sought on a 'security for judgment' motion:[31] Finally, Mr. Bogue asks for security for judgment in the amount of $1.5 million as a “top-up” to the sum that SLF is currently holding. This would effectively ensure that the entire amount that Mr. Bogue says is owing to him is sitting with both SLF Inc. and the court. He says that this is the “only way” in which he will “ever collect the full amount of the judgment” and get the funds off of the reserve.
[32] Security for judgment is an “extraordinary remedy”: Wiseau Studio, LLC. v. Harper, 2021 ONCA 31, at para. 24, motion to review allowed in part, 2021 ONCA 396, leave to appeal refused, [2021] S.C.C.A. No. 464. Such an order should be reserved for the most exceptional circumstances.
[33] Mr. Bogue acknowledges that this is about trying to get money secured into the court that may otherwise be money that rests on reserve. To me, this comes very close, if not crosses over the line into what this court has earlier said cannot be done by virtue of s. 89 of the Indian Act. It is best that all of these issues are sorted out in the normal course and through proper litigation with a proper and complete evidentiary record.
[34] Accordingly, Mr. Miracle shall pay into court security for costs in the total amount of $115,026.90 within 30 days. . Faraone v 285 Spadina SPV Inc.
In Faraone v 285 Spadina SPV Inc. (Div Court, 2023) the Divisional Court considered a security for costs (and 'judgment') motion in an appeal, which was from an unusual RTA s.207(2) application (which was allowed) to terminate and evict [SS: when the dollar value exceeds $35k RTA s.207(2) allows such applications to be brought in the Superior Court, not the LTB].
In this quote, the court orders both security for costs on appeal - and as well, 'security for judgment on appeal':[20] In addition to security for costs, a court may order security for judgment on appeal: Creative Salmon Company Ltd. v. Staniford, 2007 BCCA 285 at paras. 12 and 14; Wiseau Studio, LLC v. Harper, 2021 ONCA 31 at para 24. I note the caution from the Court of Appeal in Wiseau that “[s]ecurity for judgment is an extraordinary remedy that should only be granted in exceptional circumstances.”
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[23] I conclude that in all of the circumstances a just order is based on the amounts ordered against Mr. Hitti by Justice Dineen, including the costs of the application and the estimated costs of this appeal.
[24] Accordingly, I order the Respondent, Ronald Hitti, to post security for costs and judgment in the amount of $143,886.87 within 15 days of the release of these reasons, failing which the appeal shall be dismissed.
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