COURT OF APPEAL FOR ONTARIO

CITATION: Friedrich v. Metropolitan Toronto Condominium
    Corporation No.1018, 2019 ONCA 216

DATE: 20190319

DOCKET: M50068

Lauwers J.A. (Motion Judge)

BETWEEN

Ralph Friedrich

Plaintiff (Moving
    Party)

and

Metropolitan Toronto Condominium Corporation No.
    1018

Defendant
    (Responding Party)

Ralph Friedrich, in person

Dan Rosenbluth, duty counsel

Natalia Polis, for the responding party

Heard: March 13, 2019

REASONS FOR DECISION

[1]

Justice Myers, sitting as a Divisional Court judge, dismissed Mr.
    Friedrichs appeal of a decision of a deputy judge of the Small Claims Court,
    which dismissed his action against the responding party. His decision is dated February
    19, 2019.

[2]

Mr. Friedrichs automobile was vandalized in the condominiums underground
    garage. He blames the vandalism on a change in the provision of security for the
    garage. He claimed damages for negligence relating to that change in security.
    The appeal judges decision was this:

Under the
Condominium Act
, 1998
, the Boards
    business judgment is entitled to deference. It was open to the Appellant to
    prove that the Boards decision [to change the security system] was
    unreasonable by calling expert or security evidence. Instead he just submits
    that the fact that vandalism occurred establishes the case. He argues that the
    Defendant treated its security guards as concierges and they did not give [their]
    full time and attention to the CCTV. But absent some evidence that this was
    unreasonable, or that it foreseeably caused the plaintiffs loss, the plaintiff
    has not established a breach of the applicable standard of care. The
    defendants evidence, that the judge accepted, was that it was prudent in the
    circumstances. The judge found that the plaintiff did not meet his burden to
    prove otherwise. I see no error in principle and no palpable or overriding
    error in these findings.

[3]

Mr. Friedrich was obliged to bring a motion for leave to appeal to this
    court within 15 days of the appeal decision, according to r. 61.03.1 (3) (a) of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. The delay in this
    case was more than 20 days beyond the applicable appeal period. It appears that
    neither Mr. Friedrich, nor his previous counsel, nor counsel who swore the
    jurat in his affidavit, was aware that the appeal period was 15 days.

[4]

Since the appeal was late, I am obliged to consider the following
    factors in exercising discretion to extend the time for filing the notice of
    appeal: a) whether the moving party had a
bona fide
intention to appeal
    before the expiration of the appeal period; b) any explanation for the delay in filing; c) any prejudice to
    the responding parties caused by the delay;
    and d) the merits of the proposed appeal. What is unusual about this motion is
    that the delay relates to a motion for leave to appeal to this court from the
    Divisional Court. In my view, this must affect my assessment of the merits.

[5]

I have little doubt that Mr. Friedrich wanted to appeal the decision
    right away and thought that he would be in time, but his prior counsel, he
    says, abandoned him. The explanation for the delay is adequate. There is no
    prejudice to the responding party. The issue is whether the appeal has merit.

[6]

Mr. Friedrich seeks to bring a second appeal to this court, having already
    had one appeal before the Divisional Court. The standard for leave to appeal to
    the Court of Appeal from a decision of the Divisional Court is set out in
Re
Sault Dock Co. Ltd. and City of Sault Ste. Marie
,
[1973] 2 O.R. 479 (C.A.), and cases
    following it. The focus is the public importance of the issue proposed to be
    raised in the appeal.

[7]

Duty counsel argues that the appeal judge was wrong in law to require
    Mr. Friedrich to provide expert evidence on the standard of care concerning the
    security services in order to succeed. This, he asserts, is a matter of public
    importance because it has a broader reach.

[8]

However, in my view, the appeal judges decision is very specific and
    has no broader application than the immediate case before him. This is not a
    case of public importance.

[9]

I therefore find Mr. Friedrich has not established that his appeal is
    meritorious, as he must do to justify an extension of time within which the
    motion for leave to appeal may be brought where what is sought is a second
    appeal. The motion is dismissed with costs payable by Mr. Friedrich to the responding
    party in the amount of $1,000 all-inclusive.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gary Anthony Bennett Professional Corporation v.
    Triella Corp., 2019 ONCA 225

DATE: 20190321

DOCKET: C65281

Feldman, Pepall and Nordheimer JJ.A.

BETWEEN

Gary
    Anthony Bennett Professional Corporation

Applicant (Appellant)

and

Triella
    Corp.

Respondent (Respondent)

Mark Ross, for the appellant

Edwin Upenieks and Angela Kwok, for the respondent

Heard and released orally:  March 18, 2019

On appeal from the order of Justice Leonard Ricchetti of
    the Superior Court of Justice, dated September 19, 2017, with reasons reported
    at 2017 ONSC 5474, and from the costs order dated October 18, 2017

REASONS FOR DECISION

[1]

The applicant brought an application that sought two mandatory orders,
    and an injunction, essentially designed to allow the applicant to have access
    to certain data over which the respondent had control. The application
    eventually led to a consent order that permitted the applicant to have access
    to its data, if the applicant paid in trust to the respondents lawyers the
    amount outstanding for fees due to the respondent on a without admission of
    liability basis. The consent order did not stipulate what was to happen if the
    payment was not made.

[2]

The applicant did not pay the outstanding fees by the time stipulated in
    the consent order. About six weeks after that date, the respondent brought a
    motion to dismiss the original application.  The application judge granted that
    relief. He found that the application was moot.

[3]

The appeal is based principally on two contentions. One is that the
    requirement in the consent order for the payment of the outstanding fees was an
    option available to the applicant, one that the applicant could choose not to
    avail itself of. The other is that the application judge erred in not
    permitting the applicant a further opportunity to pay the outstanding amount
    before dismissing the application.

[4]

In our view, nothing turns on whether the payment of the outstanding
    fees is properly characterized as an option or not. The fact remains that the
    applicant brought an application for certain relief that it obtained through
    the consent order but on the condition that the payment interest be made.
    Notwithstanding that the amount was not paid, it appears that the applicant
    subsequently achieved the relief that he sought in respect of his data in the
    application through other sources. There was nothing left to be adjudicated in
    terms of the relief that was sought. Whether one considers that result as
    rendering the application moot, or spent, or some other term, the effect was
    the same.  There was nothing left for the court to adjudicate upon.

[5]

In those circumstances, the application judge was correct to dismiss the
    application.

[6]

In oral argument, the appellant submitted that there were other
    outstanding issues to be adjudicated in the application including issues
    surrounding the appellants website and passwords related to it.  These issues
    do not appear to have been raised before the application judge nor are they
    referred to either in the Notice of Appeal or Supplementary Notice of Appeal.
    We also note that counsel for the respondent advised that it is the first time
    that he has heard about these issues.  For these reasons, we do not make any
    findings in this regard.

[7]

The applicant also challenges the costs award made by the application
    judge. However, since the substantive appeal is being dismissed, the applicant
    needs but has not sought leave to appeal the costs award, as is required by s.
    133 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43. Consequently,
    this court does not have jurisdiction to consider the challenge to the costs
    award.  In any event, we would not see any reason to interfere with the motion
    judges exercise of his discretion in this regard.

Conclusion

[8]

The appeal is dismissed with costs of $7,500 inclusive of disbursements
    and HST as agreed payable to the respondent.

K.
    Feldman J.A.
S.E. Pepall J.A.
I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Groia &
    Company Professional Corporation v. Cardillo, 2019 ONCA 165

DATE: 20190301

DOCKET: M49832 (C66100)

Lauwers J.A. (Motion
    Judge)

BETWEEN

Groia & Company
    Professional Corporation

Respondent (Plaintiff)

Moving Party

and

John Robert Cardillo
    and Medcap Real Estate Holdings Inc.

Appellants (Defendants)

Responding Parties

Bonnie Roberts Jones, for the moving party

F. Scott Turton, for the responding parties

Heard: February 5, 2019

REASONS FOR DECISION

[1]

The moving party on this motion (the respondent law firm on the appeal),
    moves for an order under rule 61.06 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194 for security for costs. It submits that there are good
    reasons to believe the appeal is frivolous and vexatious and that the
    responding parties on this motion (the former clients who are the appellants on
    the appeal), have insufficient assets in Ontario to pay the costs of the appeal.

[2]

For the reasons that follow, I allow the motion and order the clients to
    post security for costs in the amount of $80,000, failing which the appeal will
    be dismissed.

Background

[3]

A fuller factual background is set out in the reasons for judgment of Wilson
    J. dated October 1, 2018 with reasons reported at 2018 ONSC 5776. The law firm
    represented the clients in four pieces of litigation, but they did not pay all
    of the accounts rendered. The trial judge heard a simplified rules trial over four
    days and approved the accounts rendered without deduction in the amount of
    $184,891.39, the balance of the unpaid accounts, plus interest of $2,963.40.
    The order also provided for the payment of $60,000, as agreed, for the trial
    costs.

Discussion

[4]

Rule 61.06 governs security for costs on appeal. An order to post security
    for costs is justified:

(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;

[5]

(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.

...

(2)

If an appellant fails to comply with an order under subrule (1), a judge
    of the appellate court on motion may dismiss the appeal.

[6]

For an order for security for costs to be granted under rule 61.06(1)(a),
    the motion judge must: (a) have good reason to believe the appeal has no merit
    and is therefore frivolous and vexatious, and (b) have good reason to believe
    the clients have insufficient assets in Ontario to cover the costs of the
    appeal:
Schmidt v. Toronto-Dominion Bank
(1995), 24 O.R. (3d) 1 (C.A.),
    1995 CarswellOnt 154, at para. 15. As this court observed in
Schmidt
,
    at para. 16:

A judge hearing a motion for security
    for costs may reach the tentative conclusion that an appeal appears to be so
    devoid of merit as to give "good reason to believe that the appeal is
    frivolous and vexatious" without being satisfied that the appeal is
    actually totally devoid of merit.

[7]

The law firm also invokes rule 61.06(1)(c), and relies on
Henderson v.
    Wright
, 2016 ONCA 89, 345 O.A.C. 231, where Strathy C.J.O. stated at paras.
    27 and 28:

Appellate courts in Ontario have ordered security for costs
    when an appeal has a low prospect of success coupled with an appellant who has
    the ability to pay costs but from whom it would be nearly impossible to collect
    costs.

This "good reason" balances the need to ensure an
    appellant is not denied access to the courts, with the respondent's right to be
    protected from the risk the appellant will not satisfy the costs of the appeal.
    (Internal citations omitted)

[8]

The motion therefore raises three issues for determination: Do the
    clients have insufficient assets in Ontario to cover the costs of the appeal? Does
    the appeal have any merit? Is there any other good reason to order security for
    costs?

Do the clients have insufficient assets in Ontario to cover
    the costs of the appeal?

[9]

The law firms factum sets out four grounds for doubting that the clients
    have sufficient assets in Ontario to cover the costs of the appeal:

(a) Mr.
    Cardillo stated in his affidavit dated April 17, 2018 that when he engaged
    Groia & Company his financial circumstance were strained, that he was
    under a near overload of financial and personal stresses, and that he had to
    pay his wife $1,500,000 to fund a settlement with her;

(b) Mr.
    Cardillo advised Groia & Company in July 2016 that he would not be able to
    pay his outstanding legal fees until he sold certain Medcap-owned properties,
    which he expected to do that fall. Groia & Company understands that these
    properties have now been sold; however, Mr. Cardillo and Medcap have not
    disclosed any details of the sales, including what, if any, equity they held in
    those properties and have still refused to pay Groia & Company;

(c) There
    are numerous encumbrances on the properties owned by Mr. Cardillo and/or Medcap
    and Mr. Cardillo has made several attempts to render himself judgment proof;

(d) There
    are numerous outstanding judgments and writs filed against Mr. Cardillo and
    Medcap.

[10]

The
    support for each of these paragraphs is considerable in the record. The
    responding party does not grapple with the issue except to say that where the
    appeal is not frivolous or vexatious the issue of insufficient assets is not
    reached. Counsel asserts in his factum that there is evidence in the law firms
    motion record that discloses considerable real estate assets and no valuation
    opinion suggesting that their value is inadequate.

[11]

In
    my view, the law firm has demonstrated beyond a reasonable doubt that Mr.
    Cardillo has taken many steps to render himself judgment proof, and that his
    assets are not readily exigible. This ground on which an order for security for
    costs may be granted is adequately made out.

Does the appeal have any merit?

[12]

The
    supplementary notice of appeal specifies five grounds of appeal:

(a)

The Reasons of the trial judge are
    not responsive to the cases live issues and the parties key arguments, are in
    respect of many core issues conclusory, and are as a result insufficient;

(b)

While the learned trial judge
    correctly stated the factors to be taken into account in assessing legal
    accounts of the respondent law firm, she failed to apply them in any meaningful
    way;

(c)

The learned trial judge made significant misapprehensions of central
    facts, particularly regarding the Harrison Matter;

(d)

The learned trial judge failed to address most of the issues raised by
    the appellants;

(e)

The learned trial judge made legal errors regarding the ambit of issues
    that were relevant to the assessment of the respondent lawyers legal accounts,
    and in particular erred in not addressing issues regarding the skill of the
    lawyers and the results achieved due to the case not being an action for
    solicitors negligence.

[13]

Mr.
    Turton argues that the trial judges reasons do not pass muster under the
    principles applied by this court in
Dovbush v. Mouzitchka
, 2016 ONCA
    381, 131 O.R. (3d) 474, at paras. 20-25. He submits, in particular, that the
    trial judge failed to resolve confused or contradictory evidence on key issues,
    and failed to pay due regard to the submissions of counsel and the evidence put
    before her.

[14]

The
    responding parties major complaint relates to the Harrison matter, which
    ultimately accounted for about $160,000 of the accounts rendered. Fees and
    disbursements at issue in the other three matters on which the law firm acted
    for the respondents are a small proportion of the amounts at issue on the
    appeal. Any merit in these would not be sufficient to offset the lack of merit
    on the Harrison matter.

[15]

The Harrison matter was an application for an oppression
    remedy under the
Business Corporations Act
, R.S.O. 1990 c. B.16 against two companies that leased and operated a
    fitness club. The application was heard by McSweeney J., who made the following
    unopposed order on September 12, 2016:

THIS COURT DECLARES that
    with respect to 1615574 Ontario Limited (Leaseco),

(a)

The applicants are complainants
    within the meaning of s. 245 of the OBCA;

(b)

That Maria Catenacci holds 75% of
    the shares of Leaseco in trust for John Cardillo or his designate;

(c)

That the respondent John
    Harrison be removed as a director of Leaseco and that John Cardillo or his
    designate be appointed as the sole director of Leaseco;

(d)

That John Cardillo or his
    designate be granted unfettered access to the books and records of Leaseco;

(e)

That an accounting be conducted with respect to any monies paid to John
    Harrison and/or Sharon Harrison, or companies under their control, by Leaseco
    since September 2015.

[16]

The
    application judge reserved the balance of the application, and released an
    endorsement on January 13, 2017. She ordered the trial of an issue of 1.5 days
    in length on the threshold issue of the ownership of 1860331 Ontario Inc.
    (the operating company), for the following reason:

Based on the contradictions and inconsistencies on key points
    in and between the evidence of Mr. Cardillo and Mr. Harrison, the credibility
    of each of the parties is squarely an issue. I find that there is a genuine
    issue for trial which cannot be resolved on the basis of the record filed.

[17]

Mr.
    Turton argues that the trial judge simply failed to address the arguments and
    the evidence, and notes that the trial judge did not even distinguish between
    the operating company and the leasing company in her reasons.

[18]

I
    select the three most significant grounds pursued by Mr. Turton in his appeal
    factum, on which he relied in argument. First, the law firm made no request in
    the notice of application, in the factum, or in argument of the application for
    a term in the interim order that Harrison continue to cause the operating
    company to pay the rent on the lease of the fitness club.

[19]

The
    result, Mr. Turton argues, is that the operating company and the leasing
    company became valueless because no order was obtained requiring Harrison to
    continue paying the rent. He observes that the trial judge, apart from failing
    to distinguish between the operating company and the leasing company in her
    reasons, also made no reference to the fact that the fitness club was lost
    while the application judges decision was under reserve.

[20]

The
    trial evidence on this issue was contradictory. Mr. Groia deposed that after McSweeney
    J. granted the interim relief on September 12, 2016, he told Mr. Cardillo that
    as he now had control over Leaseco and the lease he needed to take steps to
    protect his position. A follow-up email to that effect was sent to Mr.
    Cardillo. But Mr. Cardillo deposed that he requested Mr. Groia to seek that
    relief in the application.

[21]

The
    trial judge said:

I have no doubt that the application involved complex issues
    and was of great importance to Cardillo. Despite his attempts to minimize the
    success of Groia and Sischy on the application, the order of Justice McSweeney
    of September 12, 2016 was clearly a victory for Cardillo. On this point, I
    accept the evidence of Sischy that Cardillo was pleased with the outcome of the
    application. The fact Groia encouraged Cardillo to settle with Harrison and he
    declined to do so does not mean that the outcome of the application was of
    little or no value to him.

[22]

The trial judge added
    the following observations:

The interim relief that was obtained while Groia & Co. were
    his counsel was advantageous to Cardillo. While Cardillo asserts that the Groia
    firm "accomplished nothing" in the Harrison matter, I do not agree.
    It was necessary to bring the application, which was responded to by Harrison.
    The fact that Harrison did not oppose some of the relief sought on the return
    date of the application does not mean the work done was worthless or did not
    result in Harrison changing his position. Clearly, Cardillo had not been
    successful in his negotiations with Harrison and that is why he retained Groia
    to launch legal proceedings.

While Cardillo now complains that the leasing company ended up
    being worthless, it is important to note that after the hearing of the
    application and before the judge released her decision, time was spent
    attempting to settle the entire matter. Cardillo did not wish to follow his
    lawyers' recommendations on settlement, which was his prerogative. By November,
    the relationship between Groia & Co. and Cardillo had deteriorated to the
    point where both sides agreed Cardillo should retain new counsel. What happened
    with the company after the retainer of Groia & Co. ceased is not a factor
    for my consideration when determining whether the fees charged are fair and
    reasonable.

[23]

The
    second complaint relates to the evidence. The responding material filed by
    Harrison quoted previous testimony given under oath by Mr. Cardillo in other
    proceedings in which he had stated that he had no ownership interest in the fitness
    club, a statement that flatly contradicted the position Mr. Cardillo was taking
    in the application. Mr. Cardillos credibility came under fire, which led McSweeney
    J. to order the trial of an issue, but it never took place because the asset
    disappeared.

[24]

Mr.
    Turton argues that the law firm failed to take reasonable steps to address
    this credibility problem in the context of proceeding with an application on a
    paper record.

[25]

Mr.
    Groia and David Sischy, Mr. Groias associate, gave evidence on this issue. Mr.
    Groia disputed Mr. Turtons assertion in questioning him that the glaring
    inconsistency in evidence could not be resolved on a paper record, because
    Mr. Cardillo kept assuring us that his answers in the matrimonial litigation
    had been taken out of context. He added his view that in the post-Hyrniak era,
    application judges were more likely to make a credibility finding on
    transcripts than in the past.

[26]

Mr.
    Sischy was also cross-examined. He said that he identified the issue and
    discussed it with Mr. Cardillo at length, and he assured me that it is not
    what he meant. He added: Our plan didnt change, our plan was to always to
    seek an early and expedited hearing date. And, that was directly in accordance
    with his desire to get it  to put a maximum pressure on the Harrisons. On
    re-examination, Mr. Sischy added that the decision to proceed in the face of
    the inconsistent evidence that had been raised by the Harrisons was made in
    conjunction with Mr. Groia and Mr. Cardillo.

[27]

The
    trial judge did not directly refer to this credibility contest, but her
    evaluation of the circumstances makes it clear that she accepted the evidence
    of Mr. Groia and Mr. Sischy. She said: I accept the evidence that Cardillo
    instructed Groia that he wanted an aggressive stance to be mounted with
    Harrison, who would likely cave after being served with an application. She
    added Cardillo retained Groia because of his reputation as an aggressive
    litigator in the area of shareholder disputes.

[28]

The
    third complaint relates to the clients claim for damages. Mr. Turton points
    out that while the application claimed financial compensation or damages, the
    law firm failed to identify the legal basis on which the clients were so entitled.
    Further, the Groia firm failed in cross-examination of Harrison to request or
    obtain financial statements, bank statements, accounting documents, or other
    financial information upon which a request for financial compensation could be
    based.

[29]

Mr.
    Turton argues that the issue was not addressed by the trial judge. Frankly, I
    do not see how this figures into the decision under appeal.

[30]

The trial judge stated: While counsel for the defendant
    submits that the various matters ought to have been handled differently, this
    is not a solicitors negligence case.
In
    discussing her responsibilities in the case, the trial judge noted: It is not
    my job to determine if the legal advice given to Cardillo by Groia & Co.
    was the best advice in the circumstances; nor is it appropriate to approach
    this case as if it were a solicitors negligence action. However, she added:
    The evidence indicates that the legal work that was done was skillful and what
    one would expect from a firm specializing in shareholder disputes and other
    types of commercial litigation. I see no error in the trial judges approach; she
    properly considered the relevant factors such as the results achieved, the
    skill of the lawyers, and the reasonableness of the costs incurred and did not improperly
    expand the scope of her review into the more detailed analysis of counsels conduct
    required in a solicitors negligence case.

[31]

In
    my view, there is good reason to believe the appeal has no merit. It does not
    raise any arguable error in law. The appeal really only challenges the trial
    judge's findings of fact and credibility.
As
    Strathy C.J.O. observed in
Henderson
, at para. 16: This appeal does not raise any
    arguable error in law, and challenges findings of fact and credibility for
    which the trial judge set out detailed, facially sound reasons. This court has
    held that such appeals appear to have no merit. He went on to say that [i]n
    such cases, there is almost no possibility of successfully overturning the
    result.: at para. 19.

[32]

To succeed, the clients must ultimately demonstrate that the
    trial judge made a number of palpable and overriding errors in her findings, of
    which I see no evidence.

[33]

The
    appeal lacks merit, and the law firm has satisfied this branch of the test
    under rule 61.01(1)(a) for security for costs.

Is there any other good reason to order security for costs?

[34]

Mr.
    Turton argues that the trial judge paid too much attention to Mr. Cardillos
    behaviour, and that this was not an appropriate consideration. In her reasons
    for decision, the trial judge set out the argument made by counsel for the
    clients: He was a difficult and abusive client, which added to the amount of
    time required to do the work and his conduct ought not to be sanctioned by the
    court. In her conclusion, she noted that Mr. Cardillo agreed to pay the
    invoices after selling the property in the fall of 2016. He failed to do so and
    it was only after the breakdown in the relationship between the parties that
    Cardillo became abusive and critical of Groia and Sischy.

[35]

It
    is not possible to discern from the trial judges reasons how much weight she
    attached to Mr. Cardillos behaviour in deciding the case, if any at all.
    However, I am satisfied that the moving party has also made out the ground
    under r. 61.06(1)(c), as set out by Strathy C.J.O. in
Henderson
, where
    he noted that Appellate courts in Ontario have ordered security for costs when
    an appeal has a low prospect of success coupled with an appellant who has the
    ability to pay costs but from whom it would be nearly impossible to collect
    costs. I consider this observation to apply to the clients. Chief Justice
    Strathy pointed to the respondent's right to be protected from the risk the
    appellant will not satisfy the costs of the appeal, a factor that also applies
    to the clients.

[36]

I
    therefore order that the responding parties post security for costs in the
    amount of $80,000, $60,000 relating to the costs of the judgment under appeal,
    and $20,000 relating to the appeal itself. The costs are to be posted by March
    29, 2019. The costs of this motion are payable to the moving party by the
    responding parties in the amount of $5,000, all-inclusive, forthwith.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kakoutis v. TD Insurance, Meloche Monnex, 2019 ONCA
    171

DATE: 20190306

DOCKET: C65680

Simmons, Tulloch and Brown JJ.A.

BETWEEN

Louis Kakoutis and Effie
    Kakoutis

Plaintiffs (Appellants)

and

TD Insurance, Meloche Monnex

Defendant (Respondent)

Louis Kakoutis, in person

Effie Kakoutis, in person

Matthew Dugas, for the respondent

Karen Bernofsky, for the respondent

Heard: February 25, 2019

On appeal from the
    judgment of Justice H.K. OConnell of the Superior Court, dated June 29, 2018.

REASONS FOR DECISION

[1]

Mr. Kakoutis was injured in a motor vehicle accident on June 30, 2003.

[2]

Following the accident, TD Insurance, Meloche Monnex paid various accident
    benefits to Mr. Kakoutis, but denied some of his claims for benefits.

[3]

The appellants issued a statement of claim against TD Insurance, Meloche
    Monnex on August 25, 2015 advancing various causes of action all of which were rooted
    in the claim for accident benefits and the denial of same.

[4]

TD Insurance, Meloche Monnex denied the last specific claim for benefits
    on January 29, 2013 and informed Mr. Kakoutis on March 20, 2013 that no further
    expenses for medical or rehabilitation benefits would be paid if incurred after
    June 30, 2013.

[5]

At the latest, the appellants had until two years after the final denial
    of benefits to commence their action. The motion judges conclusion that the
    action was statute barred was therefore correct.

[6]

Although the motion judge gave the appellants an opportunity to argue
    their assertion of bias before him, they did not do so. Nor have the appellants
    filed a transcript of the motion hearing on this appeal.

[7]

On the record before us, we see no merit in the submission that the
    motion judge was biased.

[8]

The appeal is therefore dismissed with costs to the respondent on a
    partial indemnity scale fixed in the amount of $5000 inclusive of disbursements
    and applicable taxes.

Janet Simmons J.A.

M. Tulloch J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lam v. University of Western Ontario, 2019 ONCA 185

DATE: 20190307

DOCKET: C64761

Strathy C.J.O., Lauwers and Zarnett JJ.A.

BETWEEN

Simon Lam

Plaintiff (Appellant)

and

The University of Western Ontario Board of
    Governors

Defendant (Respondent)

Selwyn A. Pieters and Christopher Stienburg, for the
    appellant

Sarah Jones, for the respondent

Heard: December 17, 2018

On appeal from the judgment of Justice Markus Koehnen of
    the Superior Court of Justice, dated November 22, 2017, with reasons reported
    at 2017 ONSC 6933.

COSTS ENDORSEMENT

[1]

On February 6, 2019 we released reasons for
    decision allowing the appeal from a summary judgment which had dismissed the
    appellants action against the respondent University. We substituted an order
    dismissing the Universitys summary judgment motion, and directed the matter
    proceed to trial.  We awarded costs of the appeal to the appellant, and invited
    submissions on costs of the summary judgment motion itself.

[2]

The motion judge, who had granted summary
    judgment, declined to grant costs to the University although it had been the
    successful party before him. The appeal having been allowed, the appellant asks
    for costs of the motion on a partial indemnity scale in the amount of
    $40,669.71 inclusive of disbursements and HST. The University did not challenge
    the appellants entitlement to costs. It disagrees with the quantum requested,
    and submits costs should be limited to $15,480.45, also inclusive of
    disbursements and HST.

[3]

In our view, having reviewed the costs
    submissions of both parties, a reasonable award of costs of the summary
    judgment motion to the appellant would be the sum of $22,500 inclusive of
    disbursements and HST.

G.R. Strathy
    C.J.O.

P. Lauwers
    J.A.

B. Zarnett
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lascaris v. Bnai Brith Canada, 2019 ONCA 163

DATE: 20190304

DOCKET: C65698

Doherty, Pardu and Nordheimer JJ.A.

BETWEEN

Alexander Dimitri Lascaris

Plaintiff

(Appellant)

and

Bnai Brith Canada

Defendant

(Respondent)

Marie Henein, Alex Smith and Mark Strychar-Bodnar for the appellant

David Elmaleh and Gabriela Caracas, for the respondent

Heard: February 15, 2019

On appeal from the order dated June 28, 2018 by Justice Helen
    A. Rady of the Superior Court of Justice, with reasons reported at 2018 ONSC 3068.

Nordheimer J.A.:

[1]

The appellant, Dimitri Lascaris, appeals from the order of the motion
    judge that dismissed his action pursuant to s. 137.1 of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43 on the basis that it was a so-called
    SLAPP action.
[1]

[2]

For the reasons that follow, I would allow the appeal and set aside the
    order below.

Background

[3]

The appellant is a lawyer. He was member of the New York State Bar from
    1992 to 2016, and has been a member of the Law Society of Ontario since 2004.
    At the end of 2015, the appellant retired from private practice to further
    pursue independent journalism, provide
pro bono
legal services in
    human rights matters and engage in other activities.

[4]

The appellant is an advocate for human rights. He publicly criticizes a
    range of states and governments for human rights violations, including Saudi
    Arabia, Egypt, the United States, Canada, and Israel. The appellant advocates
    for Palestinian rights, and has criticized certain actions taken by Israel.

[5]

The respondent Bnai Brith Canada is an independent, charitable
    organization involved in human rights and advocacy initiatives. It describes
    itself as the primary grassroots voice for the Canadian Jewish community. It is
    dedicated to combating anti-Semitism and racism. The respondent intervenes in courts
    on issues that it views as important to Canadians, and it publishes articles,
    press releases and studies on topics that it views as being of interest to the
    Canadian public.

[6]

In the 2015 federal election, the appellant ran as a candidate for the
    Green Party of Canada. Despite not securing a seat in Parliament, in early
    2016, the appellant was invited by the Green Partys leader, Elizabeth May, to
    become the Justice Critic in her shadow cabinet. He took on this role in March
    2016.

[7]

In April and May of 2016, the appellant visited Israel to meet with and
    interview Eritrean refugees connected to a legal case (otherwise unrelated to
    this appeal). During his visit, the appellant met with Mr. Muhammad Alayan, a
    lawyer and author in East Jerusalem who wanted to discuss a human rights
    matter. On April 30, 2016, the two met in the lobby of the appellants hotel
    for two hours. During their interaction, Mr. Alayan told appellant the
    following:

·

One of his children, Bahaa Alayan, had been a political activist
    in East Jerusalem;

·

To draw attention to the plight of Palestinians, Bahaa and fellow
    activists formed the largest ever human reading chain around the walls of
    Jerusalems Old City;

·

After the peaceful reading chain, Bahaa had been repeatedly
    questioned and harassed by Israeli intelligence officials;

·

In October 2015, he learned that his son had been killed by
    Israeli forces in East Jerusalem. The Israeli authorities alleged that his son
    had attacked and killed adult Israeli settlers on a bus with a knife in Mr.
    Alayans neighbourhood. Mr. Alayan had not seen any evidence to support the
    allegations against his son and he did not believe them. Further, he stated
    that he believed his son had been killed by Israeli forces extrajudicially. His
    sons body was never returned to the family.

·

Mr. Alayan had repeatedly requested the return of his sons body,
    as he wanted to conduct a proper burial and wanted an independent forensic
    examination to be conducted. Because he was a respected lawyer, other families
    in East Jerusalem asked Mr. Alayan to also negotiate for the return of their
    relatives bodies that were being similarly held by Israeli authorities.

·

After protracted negotiations, Mr. Alayan rejected the only offer
    made by the authorities, that the bodies would be returned on the strict
    condition that they be buried within an hour of delivery to the families,
    precluding proper burials and ensuring that no independent examinations could
    be conducted.

·

Within 24 hours of rejecting the offer, Israeli authorities
    ordered the demolition of Mr. Alayans family home and his family was now homeless,
    living in a tent on their property.

[8]

Mr. Alayan stated that whatever his son may or may not have done, he
    believed that he and his family were being subjected to collective punishment
    and this would constitute a violation of international law. Mr. Alayan asked
    the appellant to speak out on his familys behalf and authorized the appellant
    to disclose everything he had relayed, as he had nothing to hide.

[9]

It was reported widely in the media that, on October 14, 2015, Bahaa
    Alayan boarded a public bus in Jerusalem, together with an accomplice, and
    began a shooting and stabbing spree, murdering three Israeli civilians. Police
    arrived, and shot and killed Bahaa Alayan. Bahaa Alayans accomplice was
    captured alive and eventually found guilty of murder and terrorism-related
    offences, receiving three life sentences. After this event, the Popular Front
    for the Liberation of Palestine issued a statement which specifically noted
    that Bahaa Alayan was one of the resistance fighters who engaged in an
    operation at a Zionist bus station in Jerusalem.

[10]

After
    the meeting, the appellant conducted some of his own research into what Mr.
    Alayan had told him. On May 1, 2016, the appellant posted two Facebook
    comments. In the first post, the appellant articulated what Mr. Alayan told him,
    stated that Bahaa Alayan had been killed extrajudicially, posted a link to an
    article supporting this narrative, criticized the use of collective punishment
    in general, and against the Alayan family in particular, and stated that
    whatever Bahaa Alayan may or may not have done, the Israeli governments treatment
    of Muhammad Alayan [the father] is an outrage.

[11]

In
    a subsequent post the same day, the appellant posted a photo of himself with
    Mr. Alayan. He referred back to his preceding post, and restated that Bahaa Alayan
    had been killed extrajudicially and that his body had not been returned to Mr.
    Alayan.

[12]

Upon
    his return to Canada, in May 2016, the appellant decided to advance a policy
    resolution calling on the Green Party to support the use of peaceful boycott,
    divestment and sanctions (BDS) to bring an end to Israels occupation of
    Palestinian territories.

[13]

Starting
    in June 2016, the respondent began a campaign against the Green Party, Ms. May,
    the appellant, and others related to the BDS Resolution. In several statements
    posted to its website, the respondent stated that support for the BDS
    Resolution was anti-Semitic and that one group involved in drafting the BDS
    Resolution had engaged in Holocaust denial and promoted anti-Semitism.

[14]

On
    August 3, 2016, Ms. Mays Chief of Staff warned the appellant that the respondent
    had informed Ms. May that it intended to release an investigation it had
    conducted into the appellant and was going to make serious accusations against
    him.

[15]

On
    August 4, 2016, the day before the commencement of the Green Partys biannual
    convention, the respondent published an article entitled Green Party Justice
    Critic Advocates on Behalf of Terrorists. The article contained a photo of the
    appellant with Mr. Alayan and a screen shot of the appellants second Facebook
    post. The first sentence of the article stated Dimitri Lascaris, official
    Justice Critic of the Green Party of Canada, has used social media to advocate
    on behalf of terrorists who have murdered Israeli civilians, a Bnai Brith
    Canada investigation has revealed. The article went on to describe the
    appellants trip to Israel, his meeting with Mr. Alayan, and some of the
    appellants other postings on social media. The article called on Ms. May to
    remove the appellant from her shadow cabinet. The appellant had not been
    contacted by the respondent regarding the article.

[16]

On
    August 10, 2016, the appellant gave an interview wherein he discussed the BDS
    Resolution and responded to the respondents claim that he had advocated on behalf
    of terrorists. He said in the interview that:

I dont know, and I dont purport to know, whether in fact
    [Bahaa Alayan] committed the crimes of which he is accused. And if he actually
    attacked innocent civilians, I condemn that. I do not condone any attacks by
    anybody on any innocent civilians or civilian infrastructure. Thats against
    international law. Its an atrocity. And its not to be tolerated.

[17]

On
    September 13, 2016, the appellant was removed from his position in the Green
    Partys shadow cabinet for refusing to apologize for an op-ed article that he
    and others had written criticizing the leader of Green Party of British
    Columbia for his condemnation of the BDS Resolution. On September 14, 2016, the
    respondent published an article praising the appellants removal and linking
    back to its previous article. It stated that the respondent had previously
    urged  Elizabeth May to dismiss Lascaris as justice critic after it exposed that
    he advocated on behalf of terrorists who murdered three Israeli civilians in
    Jerusalem.

[18]

On
    December 20, 2016, the respondent published a year in review article, wherein
    it again stated that it had exposed the appellant for using social media to evoke
    sympathy for a Palestinian terrorist.

[19]

On
    or about April 3, 2017, the appellant discovered another publication on the respondents
    Twitter account, stating: Dimitri Lascaris resorts to supporting #terrorists
    in his desperation to delegitimize the State of #Israel. The tweet contained a
    link to the respondents August 4, 2016 article, which accused the appellant of
    being an advocate on behalf of terrorists.

[20]

After
    the tweet, the appellant served notice upon the respondent regarding the
    defamatory publications under s. 5(1) of the
Libel and Slander Act
,
    R.S.O. 1990, c. L.12. The respondent did not retract, remove, correct or edit
    its publications. The appellant then served an amended statement of claim on or
    about July 4, 2017, and the respondent served a statement of defence on or
    about August 24, 2017. In its statement of defence, the respondent pleaded
    justification, qualified privilege, fair comment, and notice based defences
    under the
Libel and Slander Act
.
[2]

The s. 137.1 motion

[21]

The
    respondents motion to dismiss the action under s. 137.1 was heard on February 6
    and April 20, 2018.On June 28, 2018, the motion judge released her decision in
    which she granted the respondents motion and dismissed the appellants action.

[22]

The
    motion judge found there was no doubt that the respondents expressions related
    to matters of public interest, under s. 137.1(3): at paras. 39-40. The motion
    judge then proceeded from that point to say that she was prepared to assume
    that the appellants claim had substantial merit, within the meaning of s.
    137.1(4)(a)(i): at para. 46.

[23]

Turning
    to s. 137.1(4)(a)(ii), which requires the plaintiff to prove that the
    respondent has no valid defence in the proceeding, the motion judge stated that
    this required the appellant to demonstrate that none of the defences raised by
    the respondent could possibly succeed: at para. 48. However, in considering
    the defences raised by the respondent, the motion judge found that the
    appellant faced an insurmountable hurdle with respect to the defence of fair
    comment: at para. 55. Consequently, she did not deal with the respondents
    justification, qualified privilege or notice defences. The motion judge also
    did not consider the balancing part of the test set out in s. 137.1(4)(b).

[24]

Regarding
    the issue of fair comment, the motion judge set out the constituent elements of
    the defence of fair comment, as articulated in
WIC Radio Ltd. v. Simpson
,
    2008 SCC 40, [2008] 2 S.C.R. 420, at para. 28:

(a) the comment must be on a matter of public interest;

(b) the comment must be based on fact;

(c) the comment, though it can include inferences of fact, must
    be recognisable as comment;

(d) the comment must satisfy the following objective test:
    could any person honestly express that opinion on the proved facts?

(e) even though the comment satisfies the objective test the
    defence can be defeated if the plaintiff proves that the defendant was
    subjectively actuated by express malice.

[25]

The
    motion judge was satisfied that each constituent element was present. The
    motion judge had already found that the comments were on matters of public interest.
    She also found that they were based on fact. The motion judge further found
    that the comments were arguably recognizable as opinion. She referred to the
    view that words that appear to be statements of fact may, in pith and
    substance, be properly construed as comment, particularly in an editorial
    context where loose, figurative, or hyperbolic language is used in the context
    of political debate, commentary, media campaigns and public discourse: at paras.
    56-58.

[26]

Regarding
    the last constituent element of the defence of fair comment, the motion judge
    found that any person could honestly express the opinion, on the proved facts.
    She found that while it might not be reasonable to hold this view, a person
    could honestly believe that support for Mr. Alayan and his family constituted
    support for terrorists. She stated that a person who knows that Bahaa Alayan
    was allegedly involved in a terrorist attack could believe that Mr. Lascaris
    supported terrorists as a result of his meeting with Mr. Muhammad Alayan and
    his posts online about the Alayan family: at para. 60.

[27]

Finally,
    the motion judge found that the respondent was not motivated by malice as there
    was no evidence that the respondent was acting other than in the pursuit of its
    genuinely held beliefs: at paras. 63-64. The motion judge found that the
    expressions fell within the purpose of the fair comment defence which is the
    protection of freedom of expression in order to influence public opinion on
    genuine public issues: at paras. 62, 65.

[28]

In
    the end result, the motion judge concluded that the appellant had not met his
    burden of demonstrating, under s. 137.1(4)(a)(ii), that no valid defence
    exists.

Analysis

[29]

Before
    I begin my analysis, I should note that the motion judge heard and decided the
    s. 137.1 motion before this court released a series of judgments interpreting
    s. 137.1 in some detail: see
1704604 Ontario Ltd. v. Pointes Protection
    Association
, 2018 ONCA 685, 142 O.R. (3d) 161, and the related cases that
    were released simultaneously. To a large degree, the motion judges analysis has
    been overtaken by
Pointes
and those related authorities.

[30]

I
    begin with two observations regarding the purpose behind s. 137.1. As this
    court observed in
Pointes
, at para. 73, s. 137.1 operates as a
    screening device. It is not to be used as a surrogate for summary judgment:
Pointes,
at para. 78. The motion is intended to be brought at the outset of the
    proceeding before either the plaintiff or the defendant has had the opportunity
    to marshal the type of evidence that they would for a trial. Indeed, motions
    under s. 137.1 will often be heard before there has been any form of pre-trial
    discovery.

[31]

The
    other observation is that this action has none of the recognized indicia of a
    SLAPP lawsuit. As pointed out in
Platnick v. Bent
, 2018 ONCA 687, 426
    D.L.R. (4th) 60, at para. 99, those indicia are:

·

a history of the plaintiff using litigation or the threat of
    litigation to silence critics;

·

a financial or power imbalance that strongly favours the
    plaintiff;

·

a punitive or retributory purpose animating the plaintiff's
    bringing of the claim; and

·

minimal or nominal damages suffered by the plaintiff.

[32]

There
    is no history of the appellant using litigation or the threat of litigation to
    silence critics. If there is any financial or power imbalance, it would appear
    to be in favour of the respondent, not the appellant. There is no evidence that
    the appellant has a punitive or retributory purpose in bringing this action
    and, as I discuss further below, the potential damages to the plaintiff are
    significant.

[33]

In
    my view, the motion judge erred in her analysis in one principal respect. The
    burden on the appellant under s. 137.1(4)(a)(ii) is not to show that a given
    defence has no hope of success. To approach s. 137.1(4)(a)(ii) in that fashion
    risks turning a motion under s. 137.1 into a summary judgment motion. Rather,
    all that the appellant need show is that it is possible that the defence would
    not succeed. As Doherty J.A. stated in
Pointes,
at para. 84:

The onus rests on the plaintiff to convince the motion judge
    that, looking at the motion record through the reasonableness lens, a trier
    could conclude that none of the defences advanced would succeed. If that
    assessment is among those reasonably available on the record, the plaintiff has
    met its onus.

[34]

In
    my view, a reasonable trier could conclude that the defence of fair comment
    would not succeed. It would be open to a trier to conclude that the statements
    made about the appellant  namely, that he supported terrorists  were uttered
    as statements of fact, not as statements of opinion. Further, even if the
    statements are viewed as opinion, a trier could also conclude that, on the
    available facts, a person could not honestly express that opinion based on the
    proved facts. The fact that a person supports a parent, whose child has
    committed a terrible act, does not make that person a supporter of the childs
    actions. A trier might also conclude that the respondents repetition of the
    statements, after the appellant expressly disavowed support for terrorism, made
    the defence of fair comment unavailable.

[35]

While
    the motion judge did not deal with the other defences raised because of her
    conclusion on the defence of fair comment, I must do so given the error that I
    have found in the motion judges analysis. For the same reasons that I have
    just outlined in dealing with the defence of fair comment, those realities
    could serve to defeat any defence of justification.

[36]

For
    qualified privilege to apply, the respondent must have an interest or a duty,
    legal, social, or moral, to make [the impugned statements] to the person to
    whom [those statements are] made:
Hill v. Church of Scientology of Toronto
,
    [1995] 2 S.C.R. 1130, at para. 143. It is unclear what duty, of that type, the
    respondent could point to in order to qualify its statements as falling within
    a situation of qualified privilege, which in any event is rarely available for
    widely circulated publications Indeed, I note that the respondent did not
    pursue this defence on the appeal.

[37]

In
    the end result, in my view, the appellant has met his burden under s. 137.1(4)(a)(ii)
    to show that a reasonable trier might conclude that none of the defences
    advanced would succeed.

[38]

That
    leaves the balancing requirement under s. 137.1(4)(b). Because of her
    conclusion regarding the defence of fair comment, the motion judge did not consider
    the balancing requirement under s. 137.1(4)(b). Consequently, this court must
    do so.

[39]

Section
    137.1(4)(b) reads:

[T]he harm likely to be or have been suffered by the responding
    party as a result of the moving partys expression is sufficiently serious that
    the public interest in permitting the proceeding to continue outweighs the
    public interest in protecting that expression.

[40]

In
    my view, this balance clearly favours the appellant. I say that because, if the
    appellants action proceeds and if the appellant is ultimately successful, the
    damages to which the appellant would be entitled could be significant. Accusing
    any person of supporting terrorists is about as serious and damaging an
    allegation as can be made in these times.

[41]

That
    reality is sufficient to establish the seriousness of the harm to the appellant
    and to rebut the respondents submission that the appellant failed to lead any
    evidence to show any damage to his reputation arising from the impugned
    statements. On that latter point, I would adopt the observation made by Bean J.
    in
Cooke v. MGN Limited
, [2014] EWHC 2831, [2015] 2 All ER 622 (QB),
    at para. 43:

Some statements are so obviously likely to cause serious harm
    to a persons reputation that this likelihood can be inferred. If a national
    newspaper with a large circulation wrongly accuses someone of being a terrorist
    or a paedophile, then in either case (putting to one side for the moment the
    question of a prompt and prominent apology) the likelihood of serious harm to
    reputation is plain, even if the individuals family and friends knew the
    allegation to be untrue.
[3]

See also
Grant v. Torstar Corp.,
2009 SCC 61,
    [2009] 3 S.C.R. 640, at para. 111.

[42]

Further,
    the appellant is a lawyer. A lawyers reputation is central to his/her ability
    to carry on their profession. As Cory J. said in
Hill
, at para. 118:

The reputation of a lawyer is of paramount importance to
    clients, to other members of the profession and to the judiciary. A lawyer's
    practice is founded and maintained upon the basis of a good reputation for
    professional integrity and trustworthiness. It is the cornerstone of a lawyer's
    professional life. Even if endowed with outstanding talent and indefatigable
    diligence, a lawyer cannot survive without a good reputation.

[43]

The
    fact that the appellant is no longer engaged in private practice does not mean
    that his reputation is still not of consequence. The appellant continues to
    represent clients on a
pro bono
basis. His reputation will mean as
    much to those clients as it would to any other client, especially given the
    nature of the clients to whom he devotes his services.

[44]

In
    reaching that conclusion, I do not mean to suggest that the views of the
    respondent are not without merit or importance. However, fair disagreements
    over policies and principles can be undertaken, indeed ought to be undertaken,
    through responsible discourse. Whatever disagreements there may be between the
    appellants views and the respondents views, those views can be exchanged and
    debated without the need for personal attacks. It remains open to the
    respondent to express its views on issues that concern it, such as the BDS
    Resolution and broader BDS debate, for example, without engaging in speech that
    is arguably defamatory.

Conclusion

[45]

The
    appeal is allowed, the order below is set aside, and the matter is remitted to
    the Superior Court of Justice. The appellant is entitled to his costs of the
    appeal in the agreed amount of $15,000 inclusive of disbursements and HST.

[46]

If
    the parties cannot agree on the costs of the motion below, they may make
    written submissions. I would note, on that point, that s. 137.1(8) provides a
    presumption that there will be no costs of an unsuccessful motion under s.
    137.1. The appellant is to file his submissions within 15 days of the date of
    these reasons and the respondent is to file its submissions within 10 days
    thereafter. No reply submissions are to be filed and each partys submissions
    shall not exceed five pages.

Released: DD March 4, 2019

I.V.B. Nordheimer J.A.
I agree. Doherty J.A.
I agree. G. Pardu J.A.

[1]

Strategic Litigation against Public Participation (SLAPP).

[2]
In its statement of defence, the respondent raises issues regarding the timing
    of the notice that the appellant provided. The motion judge briefly adverted to
    (but did not deal with) this defence. The parties did not address this issue in
    their written submissions to this court. As a result, I do not view it as
    necessary to deal with this defence in these reasons.

[3]

This passage was cited with approval in
Lachaux v.
    Independent Print Ltd
[2017] EWCA Civ. 1334, [2018] QB 594 (C.A.), at
    paras. 65-66.


COURT OF APPEAL FOR ONTARIO

CITATION: Machado v. Ontario Hockey Association, 2019 ONCA
    210

DATE: 20190318

DOCKET: M49952 (M49657)

Feldman, Hourigan and Huscroft JJ.A.

BETWEEN

Joe Machado and Paul Williamson

Moving Parties (Plaintiffs)

and

Ontario Hockey Association, Bradley Grant,
    William Markle, Karen Phibbs, Brent Ladds, Leo Lostracco, John Kopinak, Dick
    Woods, John Kastner, Wayne Schnable, Bill Stobbs, Trevor Tinney, John Simmons,
    Rick Richardson, Larry Clarke, John Gibbons, Bruce Schlitt, Tom Strauch, Gary
    Moroney, Marc Ellis, Marc Mercier, Marty Savoy, Bill Billington, Paul Lake,
    Lloyd Parkhouse, Danny Gibson, Jeff Beatty, Mark Davies, Arnie Lawlor, Perry
    Bowles, Ontario Hockey Federation, Phillip McKee, Tony Foresi, Hockey Canada,
    Tom Renny and Scott Smith

Respondents (Defendants)

Theodore P. Charney, for the moving parties

Matthew Karabus, for the respondents

Heard: March 14, 2019

REASONS FOR DECISION

[1]

The moving parties commenced an action in
    2017, claiming damages against the respondents, who consist of corporate bodies
    responsible for administering junior level hockey in Ontario and various
    current and former officers and directors. The statement of claim designated
    Mr. Machado as the representative for both himself and Mr. Williamson.

[2]

After the statement of claim was issued,
    the respondents requested an extension of time to file a defence and
    confirmation that they would not be noted in default. Mr. Machado confirmed in
    writing that he would not note any of the respondents in default. Nonetheless,
    one day after the expiry of the time to deliver a defence, the respondents were
    all noted in default.

[3]

On January 11, 2018, the respondents
    brought a motion to set aside the noting in default, which was granted by the
    motion judge. During argument, the motion judge observed that Mr. Machado was
    not a lawyer and could not represent Mr. Williamson. Mr. Machado advised that
    both of the moving parties were self-represented. He requested two weeks to
    amend the statement of claim regarding the issue of representation. The motion
    judge granted the moving parties approximately seven weeks to make the
    necessary amendment. She also ordered them to pay the respondents $5,000 for
    the costs of the motion.

[4]

The moving parties paid the costs but
    otherwise failed to comply with the order. On March 1, 2018, Mr. Machado wrote
    to counsel for the respondents advising that on the advice of counsel, he and
    Mr. Williamson had decided to hold off on further action as there likely would
    be additional amendments to their statement of claim.

[5]

The respondents moved to dismiss the claim based on the breach of the
    January 11, 2018 order. The day before the return of the motion, Mr. Machado
    contacted counsel for the respondents requesting an adjournment so that the
    moving parties could pursue the retainer of counsel. Counsel for the
    respondents refused the request. The moving parties did not attend the hearing
    on March 28, 2018. The motion judge granted the respondents motion and
    dismissed the claim with prejudice, and ordered the moving parties to pay the
    costs of the action in the amount of $83,937.82.

[6]

On July 19, 2018, after the respondents
    sought to enforce the costs award, the moving parties retained counsel to bring
    a motion in this court for an extension of time to appeal the March 28, 2018
    order.

[7]

The chambers judge dismissed the motion
    for an extension of time to appeal, concluding that the justice of the case did
    not warrant an extension. She found that the applicants did not form a
bona
    fide
intention to appeal within the
    relevant time period and that their explanation for the delay was unpersuasive.
    While acknowledging that there was no evidence of prejudice arising from the
    delay to the respondents, the chambers judge noted that both of the moving
    parties admitted on cross-examination that they chose not to comply with the
    January 11, 2018 order. The chambers judge further found that the merits of the
    appeal did not favour the moving parties.

[8]

On this motion to review the order of the
    chambers judge, the moving parties seek to set aside that order and obtain an
    extension of time for the notice of appeal to be filed. We decline to grant
    that relief.

[9]

A panel review of a chambers judges decision is not a
de
    novo
determination. Where the chambers judge has made a
    discretionary decision, the decision is entitled to deference and the reviewing
    panel will not interfere absent legal error or misapprehension of material
    evidence:

Yaiguaje v. Chevron Corporation
,
    2017 ONCA 827,
138 OR (3d) 1,
at para.
    20.

[10]

We see no factual or legal error in the chambers judges
    analysis. The moving parties adduced no credible evidence of a timely intention
    to appeal. It is clear, as found by the chambers judge, that the motivating
    factor behind the moving parties bringing the motion for an extension of time
    was to avoid enforcement of the costs order against them, which occurred well
    after the time limit to appeal had expired. The moving parties met with their
    current counsel on June 22, 2018 and would presumably have been advised that
    time was of the essence in seeking an order for an extension of time to appeal.
    Despite that meeting, the moving parties did not retain counsel or communicate with
    responding counsel a desire to bring the motion for an extension of time to
    appeal until after they were informed by counsel for the respondents that the
    respondents were taking steps to enforce the costs award.

[11]

We are also of the view that the proposed appeal is not
    meritorious. The moving parties made deliberate choices both not to comply with
    the order of January 11, 2018 to amend the statement of claim and not to attend
    court on March 28, 2018. The breach that led to the dismissal order was not
    innocuous. Rather, as found by the motion judge and accepted by the chambers
    judge, the moving parties flagrantly, intentionally, and knowingly breached
    the January 11, 2018
o
rder. This finding was amply supported by the evidence
    and would act as a substantial bar to re-litigating the case regardless of
    whether the dismissal was made with prejudice.

[12]

Further, the chambers judge also did
    not err in concluding that the justice of the case did not merit the granting
    of an extension of time to appeal. When a litigant seeks an indulgence, it is
    appropriate to consider whether the party has respected court orders and the
    court process. In this case, the moving parties chose to litigate on their own
    schedule, without regard to court orders or the dictates of the
Rules
    of Civil Procedure
.

[13]

The
    motion is dismissed. The moving parties shall pay the respondents their costs
    of the motion in the agreed upon all-inclusive sum of $2,500.

K. Feldman J.A.

C.W. Hourigan J.A.

Grant Huscroft J.A.