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Civil Litigation - Security for Costs (3)

. 9383859 Canada Ltd. v. The Court of Appeal for Ontario

In 9383859 Canada Ltd. v. The Court of Appeal for Ontario (Div Court, 2023) the Divisional Court considered a R2.1 frivolous and vexatious issue, here where the applicant sought to JR "a decision by the Executive Legal Officer (“ELO”) of the Court of Appeal delisting the applicant’s appeal". In these quotes the Divisional Court sets out what is essentially the Court of Appeal's defence to it's administrative action of de-listing the appeal (which was grounded in non-compliance with a security for costs order under R56.05), particularly in para 13:
[1] On August 25, 2023, Sandeep Singh, on behalf of the applicant, filed an application for judicial review in this Court. In his email accompanying the notice, Mr. Singh accurately advised the Court that the applicant sought to review a decision by the Executive Legal Officer (“ELO”) of the Court of Appeal delisting the applicant’s appeal in 9383859 Canada Ltd. v. Navartnam, Kubeskaram et al., COA-22-CV-0453.

....

[8] In the notice of application for judicial review and the applicant’s factum, the primary complaint of the applicant is that the ELO delisted the appeal in the absence of a judge’s order. As the factum states, the ELO “violated the Rules of Civil Procedure and deny [sic] the constitutional rights of the Applicant, by de-listing the Appeal of the Applicant, without an Order from a Honourable Judge.”

....

[10] First, decisions of the Court of Appeal are not subject to judicial review by the Divisional Court. The Court of Appeal is a “superior court of record”: Courts of Justice Act, RSO 1990, c. C.43, ss. 2(1). Any review of its conduct must be by way of appeal or a motion to reconsider, if available. The Divisional Court, over which the Court of Appeal exercises appellate jurisdiction, has no jurisdiction to judicially review decisions of a “superior court of record”, but only those of an “inferior court”: Judicial Review Procedure Act, RSO 1990, c. J.1, s. 1.

[11] Second, the applicant provides no authority in support of the proposition that the ELO does not have the power to “delist” and that only a judge can do so. This is not surprising as the law goes the other way. As was observed in Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 SCR 673, at paras. 47-49, the “assignment of judges, sittings of the court, and court lists” is part of the administration of the court controlled by judges, not the executive branch of government. Indeed, control over lists is seen as a basic or “minimum requirement” of the institutional aspect of judicial independence.

[12] This control over lists by the judiciary is also found in s. 75(1) of the Courts of Justice Act. Section s. 76 of the Courts of Justice Act then provides that court staff “shall act at the direction of the chief justice of the court.” There is no rule of court requiring a judge’s order to list or delist an appeal for hearing. Scheduling of matters is usually delegated to administrative staff who may list and delist cases. If a litigant takes issue with the listing or delisting of their case by an administrator, their remedy is to seek direction from a judge of the court in which the proceeding is taking place. The applicant has not done so. The application to this court, therefore, is an inappropriate and collateral attack on proceedings that are ongoing in the Court of Appeal.

[13] Third, the decision to delist in this case follows directly from an order of the Court of Appeal, as the applicant was ordered to post security for costs by March 8, 2023. Rule 56.05 of the Rules of Civil Procedure provides that, until security for costs is posted, the party required to post those costs is not entitled to take any further step in the proceeding other than to appeal the order. The applicant appealed the order unsuccessfully to a panel and has now sought leave to appeal to the Supreme Court of Canada. However, his application for leave does not stay Miller J.A.’s order. Accordingly, as the applicant cannot proceed with the appeal because it has failed to comply with a court order, the matter was delisted. Viewed this way, the ELO’s action delisting the appeal was required in order to comply with Justice Miller’s order.
. Karatzoglou v. Commisso

In Karatzoglou v. Commisso (Ont CA, 2023) the Court of Appeal considered a motion for security for costs, here in a family appeal context:
[5] The test to be applied in considering a motion for security for costs is well known. Subrule 61.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides:
In an appeal where it appears that,

(a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;

(b) an order for security for costs could be made against the appellant under rule 56.01; or

(c) for other good reason, security for costs should be ordered,

a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.
[6] Subrule 38(26) of the Family Law Rules, O. Reg. 114/99 similarly provides:
On a motion by the respondent for security for costs, the court may make an order for security for costs that is just, if it is satisfied that,

(a) there is good reason to believe that the appeal is a waste of time, a nuisance, or an abuse of the court process and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;

(b) an order for security for costs could be made against the appellant under subrule 24 (13); or

(c) for other good reason, security for costs should be ordered.
[7] As the court observed in Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 22, “[i]n deciding motions for security for costs judges are obliged to first consider the specific provisions of the Rules governing those motions and then effectively to take a step back and consider the justness of the order sought in all the circumstances of the case, with the interests of justice at the forefront.” Accordingly, even if the test set out under r. 61.06(1) has been met, the motion judge must “consider the justness of the order holistically, examining all the circumstances of the case and guided by the overarching interests of justice to determine whether it is just to make an order for security for costs”: FoodInvest Limited v. Royal Bank of Canada, 2019 ONCA 728, at para. 8.

[8] The moving party relies on r. 61.06(1)(a) of the Rules of Civil Procedure. To succeed, she must satisfy the court, on a balance of probabilities, that there is good reason to believe that (1) the appellant is impecunious, and (2) the appeal is frivolous and vexatious. Subrule 38(26) of the Family Law Rules provides helpful guidance with respect to the second condition in the context of family proceedings by framing “frivolous” and “vexatious” appeals as a “waste of time”, “nuisance”, or “abuse of the court process”.

....

[23] It is important to underline the fact that the assessment of the merits (or lack thereof) for a security for costs motion does not require the court to make an affirmative finding or actually determine that the appeal is frivolous or vexatious and that the appellant lacks sufficient Ontario assets to pay the appeal costs. Rather, “good reason to believe” suggests a tentative conclusion of absence of merit and assets: Pickard v. London Police Services Board, 2010 ONCA 643, at para. 18; Schmidt v. Toronto-Dominion Bank (1995), 1995 CanLII 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at p. 5; and McKee v. Di Battista, Gambin Developments Ltd. (1995), 1995 CanLII 728 (ON CA), 22 O.R. (3d) 700 (C.A.), at pp. 702-3. As I have indicated, I see no errors of law. The appeal appears to turn only on findings made on the evidence that are subject to a high level of deference and with respect to which I see no reversible error on the part of the summary motion judge.
. Hordo v. Zweig

In Hordo v. Zweig (Div Court, 2022) the Divisional Court considers a security for costs motion:
[10] The principles governing a motion for security for costs on appeal are summarized in Yaiguaje v Chevron Corp., 2017 ONCA 827, at paras. 19, 24 and 25:
[19] In determining whether an order should be made for security for costs, the overarching principle to be applied to all the circumstances is the justness of the order sought.

...

[24] Courts in Ontario have attempted to articulate the factors to be considered in determining the justness of security for costs orders. They have identified such factors as the merits of the claim, delay in bringing the motion, the impact of actionable conduct by the defendants on the available assets of the plaintiffs, access to justice concerns, and the public importance of the litigation.

[25] While this case law is of some assistance, each case must be considered on its own facts. It is neither helpful nor just to compose a static list of factors to be used in all cases in determining the justness of a security for costs order. There is no utility in imposing rigid criteria on top of the criteria already provided for in the Rules. The correct approach is for the court to consider the justness of the order holistically, examining all the circumstances of the case and guided by the overriding interests of justice to determine whether it is just that the order be made.
. Richardson v. Arsenov

In Richardson v. Arsenov (Ont CA, 2022) the Court of Appeal considered a security for costs issue in an appeal:
(2) Security for Costs

[8] The second motion seeks an order for security for costs. A court may make an order for security for costs pursuant to r. 61.06(1) where certain circumstances are present:
61.06 (1) In an appeal where it appears that,

(a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;

(b) an order for security for costs could be made against the appellant under rule 56.01; or

(c) for other good reason, security for costs should be ordered,

a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.
[9] In addition to the three factors enumerated in s. 61.06(1), a court must also consider whether it would be just to order security, having regard to the circumstances and the interests of justice: Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 22.

....

[14] I am also satisfied that it is in the interests of justice to order security. The moving parties have not delayed in bringing this motion, and the amount of the security sought is not prohibitive. While I am conscious of the responding parties’ current unfortunate situation regarding the power of sale proceedings and counsel’s submissions that the responding parties not be denied the opportunity to pursue their appeal, in my view they have not established impecuniosity or any other legitimate access to justice concerns: Zeitoun v. Economical Insurance Group (2008), 2008 CanLII 20996 (ON SCDC), 91 O.R. (3d) 131 (Div. Ct.), at paras. 45-46, aff’d 2009 ONCA 415, 96 O.R. (3d) 639.

[15] Given my finding that security for costs is justified under s. 61.06(1)(a), I need not consider s. 61.06(1)(c). I am mindful that resort to this latter section should be used sparingly: Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633, 268 O.A.C. 172, at para. 8.



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Last modified: 26-09-23
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