COURT OF APPEAL FOR ONTARIO

CITATION: Drywall Acoustic Lathing
    Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375

DATE: 20200612

DOCKET: M51262 and M51557 (C67841)

Benotto, Zarnett and Thorburn
    JJ.A.

BETWEEN

The Trustees of the Drywall
    Acoustic Lathing and Insulation Local 675 Pension Fund

Plaintiffs (Moving Parties
[1]
/Responding Parties
[2]
)

and

SNC-Lavalin Group Inc., Kevin G.
    Lynch, Neil Bruce, Sylvain Girard, Jean Raby, Alain Rhéaume, Eric D. Siegel and
    Benita M. Warmbold

Defendants (Moving Parties
[3]
)

Joel P. Rochon, Peter R. Jervis,
    Douglas Worndl, Ronald Podolny and Peter Proszanski, for the Trustees of the
    Drywall Acoustic Lathing and Insulation Local 675 Pension Fund,  moving parties
    in M51262 and  responding parties in M51557

Michael G. Robb, Garett M. Hunter,
    Anthony OBrien, Karim Diallo, Erika Provencher and Serge Kalloghlian, for Ruediger
    Martin Graaf, responding party in M51262 and M51557

Katherine L. Kay, Daniel S. Murdoch and
    Libby Nixon, for SNC-Lavalin Group Inc., Kevin G. Lynch, Neil Bruce, Sylvain
    Girard, Jean Raby, Alain Rhéaume, Eric D. Siegel and Benita M. Warmbold, moving
    parties in M51557

Heard: In Writing

Zarnett JA:

INTRODUCTION

[1]

In 2019, two proposed class actions were
    commenced against SNC-Lavalin Group Inc. (SNC) and certain of its officers
    and directors (collectively with SNC, the Defendants). The class actions
    allege that the Defendants made misrepresentations and failed to make required
    disclosures affecting the price or value of SNCs securities.

[2]

The first action was commenced by Ruediger
    Martin Graaf (the Quebec Plaintiff) in February 2019 in the Superior Court of
    Quebec (the Quebec Action). The second action was commenced by the Trustees of
    the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund (the
    Ontario Plaintiff) in June 2019 in the Ontario Superior Court of Justice (the
    Ontario Action).

[3]

The Quebec Plaintiff and the Defendants each
    moved to stay the Ontario Action. On November 21, 2019, the motion judge,
    Belobaba J., dismissed each motion to stay: 2019 ONSC 6512.

[4]

The Quebec Plaintiff, taking the position that
    the dismissal of his request to stay the Ontario Action was a final order, has appealed
    the dismissal to this court.
[4]
As a precautionary measure, the Quebec Plaintiff has also filed a motion for
    leave to appeal the dismissal to the Divisional Court, in the event it is
    determined to be interlocutory. The Defendants did not appeal the dismissal of
    their request to stay to this court; they have instead moved for leave to
    appeal to the Divisional Court.

[5]

The Ontario Plaintiff now moves to quash the
    Quebec Plaintiffs appeal to this court on the basis that the dismissal of his
    request to stay the Ontario Action is an interlocutory order and can only be
    appealed to the Divisional Court with leave. The Ontario Plaintiff submits that
    this court has no jurisdiction to hear the Quebec Plaintiffs appeal.

[6]

The Defendants move for certain directions in
    the event that the Quebec Plaintiffs appeal is determined to be properly
    before this court.

[7]

For the reasons that follow, I conclude that the
    dismissal of the Quebec Plaintiffs request to stay the Ontario Action is an interlocutory
    order, not a final order. No appeal lies from it to this court. I would
    therefore quash the Quebec Plaintiffs appeal. It follows that the Defendants
    motion for directions must also be dismissed.

THE MOTION JUDGES DECISION

[8]

The motion judge described the situation giving
    rise to the motions to stay as follows:

A law firm files a proposed national class
    action against the defendant in Quebec. A different law firm representing a
    different plaintiff files a proposed national class action against the
    defendant in Ontario. The pleadings in the two actions allege securities
    misrepresentations in the secondary market and end up being substantially
    similar in scope and content. The damages claim is in excess of a billion
    dollars. Neither action has yet been granted leave to proceed under provincial
    securities law or has been certified as a class proceeding. The leave and
    certification motions in both actions will be argued sometime next year.

[9]

The Quebec Plaintiffs position is that the
    Quebec and Ontario actions are substantially similar in scope and contentthey
    have substantially overlapping class definitions, class periods, defendants,
    impugned disclosure documents, and causes of action.
[5]
In other words, the actions
    advance substantially similar claims against substantially the same defendants,
    on behalf of substantially the same proposed class.

[10]

The motion judge stated that, in order to
    succeed, the Quebec Plaintiff had to show that the Ontario Action was an abuse
    of process because it was duplicative and served no legitimate purpose when it
    was commenced. The motion judge rejected the suggestion that it was, stating at
    para. 33:

The question is whether the Ontario action
    when filed was duplicative of the Quebec action as it was at that time. The
    answer is no. Abuse of process has not beenestablished on the evidence
    before me. The two stay motions must be dismissed.

[11]

In its Notice of Appeal to this court, the
    Quebec Plaintiff submits that the motion judge erred in the way he considered
    the duplicative and no legitimate purpose argument. He also submits that the
    motion judge should have considered broader matters, including factors
    relevant to both the best interests of the class members and the fair and efficient
    administration of justice.

[12]

Although the motion judge dismissed the motions
    to stay, he observed that the Quebec Plaintiff and the Defendants could argue,
    at the certification stage, that the Ontario Action should not proceed because
    of the Quebec Action. He stated at para. 41:

If the Ontario action clears the leave hurdle
    and advances to certification, both the defendant as a party and [the Quebec
    Plaintiff] as a participant, could argue that the Quebec action should be
    preferred under the s. 5(1)(d) [of the
Class Proceedings Act
, 1992
,
    S.O. 1992, c. 6] analysis and the Ontario action should be stayed. The value of
    doing so at certification is that this court would have the benefit of a more
    complete record.

[13]

The motion judge went on to state that even if
    he were wrong that those arguments could be addressed at the certification
    stage, he was still required to dismiss the motions to stay that were before
    him.

[14]

Because of the view I take of the matter, I need
    not decide if the Quebec Plaintiff will or will not have a chance at the
    certification stage of the Ontario Action to argue for a stay, nor the extent (if
    any) to which any such argument would be restricted by the dismissal of the
    earlier stay motion.

ANALYSIS

[15]

It is common ground between the Ontario
    Plaintiff and the Quebec Plaintiff that even though the Ontario Action is a
    proceeding under the
Class Proceedings Act
, 1992
, S.O. 1992, c.
    6 (the
Class Proceedings Act
), the appeal route in this case is
    governed by the
Courts of Justice Act
, R.S.O. 1990, c. C.43 (the
CJA
).
    There is no provision in the
Class Proceedings Act
that governs
    appeals for this type of order: see, generally,
Class Proceedings Act
,
    s. 30. It is also common ground between the parties that under the
CJA
,
    an appeal lies to this court only if the order is final: s. 6(1)(b). If the
    order is interlocutory, the appeal lies to the Divisional Court, with leave:
CJA
,
    s. 19(1)(b).

[16]

An interlocutory order is one which does not
    determine the real matter in dispute between the partiesthe very subject
    matter of the litigationor any substantive right to relief of a plaintiff or
    substantive right of a defendant. Even though the order determines the question
    raised by the motion, it is interlocutory if these substantive matters remain
    undecided
:
Hendrickson v.
    KalIio
, [1932] O.R. 675 (C.A.), at p. 678;
Ball v. Donais
(1993),
    13 O.R. (3d) 322 (C.A.).

[17]

In
Sun Life Assurance Co. of Canada v. York
    Ridge Developments Ltd.
, 1998 CarswellOnt 4534 (C.A.), Weiler J.A. distinguished
    substantive matters, which are the subject of final orders, from procedural
    rights, which are not. She stated, at para. 13:

As stated in
Holmsted
    and Watson
on
Ontario Civil Procedure
at 62-24: to be
    final an order must deal with the substantive merits as opposed to mere
    procedural rights, no matter how important the procedural rights may be. The
    test focuses on whether the order under appeal finally disposes of the rights
    of the parties, in the sense of substantive rights to relief (in the case of a
    plaintiff) or a substantive defence (in the case of a defendant).

[18]

In
Locking v. Armtec Infrastructure Inc.
,
    2012 ONCA 774, 299 O.A.C. 20, this court considered whether an order resulting
    from a carriage dispute between competing Ontario class actions is final or
    interlocutory. In a carriage dispute, the court is called upon to consider
    which of two competing class actions should be allowed to proceedin other
    words, which representative plaintiff and counsel should be allowed to continue
    with the action they commenced for the benefit of the class and which
    representative plaintiff and counsel should have their proposed class action
    stayed. Mr. Locking was unsuccessful in the carriage dispute and his action was
    stayed. The motion judge refused to stay the competing action and permitted it
    to continue. Mr. Locking sought to appeal the  decision to this court.

[19]

This court held that it did not have
    jurisdiction over Mr. Lockings appeal because the disposition of a carriage
    dispute is interlocutory. The order staying Mr. Lockings action did not bring
    an end to his proceedings, as his action was not stayed for all purposes, but
    simply as a class action. The stay did not determine or terminate the claim. He
    could still prosecute his lawsuit as an ordinary action. Furthermore, the
    refusal to stay the competing action did not make the disposition final. If the
    plaintiff in the competing action succeeded in obtaining certification, Mr. Locking
    could opt out of the class and continue with his own action. The only effect of
    the impugned order was to prevent Mr. Locking from bringing an application to
    have his action certified as a class proceeding. As the court stated, at para.
    17, Mr. Locking had not lost his right to sue the defendants. He may remain as
    part of the [competing] proposed class action and may also seek to actively
    participate to protect his interests pursuant to s. 14 of the [
Class
    Proceedings Act
]
. He may
    also opt out and pursue his individual action independently.

[20]

Applying these principles to this case, it is clear
    that the refusal to stay the Ontario Action at the request of the Quebec
    Plaintiff is an interlocutory order. The dismissal of his stay request does not
    determine the subject matter of the Ontario Action or of any action. It does
    not determine any substantive right to relief that the Quebec Plaintiff, the
    Ontario Plaintiff, or any potential class member has against the Defendants,
    nor does it determine any substantive defence. It does not terminate the Quebec
    Plaintiffs right to proceed with the Quebec Action. It does not determine the
    Quebec Plaintiffs right or any potential class members right to opt out of
    the Ontario Action if the latter is certified as a class proceeding. Nor does
    it determine anyones right to pursue an individual claim.

[21]

The refusal to stay the Ontario Action can only
    be said to affect the Quebec Plaintiffs procedural rights. The Quebec
    Plaintiff considers that the class affected by the Defendants alleged
    wrongdoing would be better off if only the Quebec Action went forward as a
    class proceeding and the Ontario Action did not.
Locking
makes clear
    that, from an Ontario law perspective, a determination of which of two
    competing actions should proceed as a class action affects procedural rights.
    This is consistent with the view that the
Class Proceedings Act
is
    itself a procedural statute:
Hislop v. Canada (Attorney General)
, 2009
    ONCA 354, 95 O.R. (3d) 81, leave to appeal refused, [2009] S.C.C.A. No. 264, at
    para. 42.

[22]

Although
Locking
was a contest between
    two competing Ontario actions, the conclusion it reached about appeal rights is
    applicable to this case where the contest is between competing proposed
    national class actions in different provinces. This is so because of the nature
    of the dispositions made on each type of motion and their lack of effect on
    substantive rights. It is not dependent on whether or not the factors that are
    considered in deciding a carriage dispute are the same as those to be
    considered on an interprovincial motion to stay. If anything, the conclusion that
    the refusal to stay the Ontario Action is interlocutory resounds with even greater
    force here than it did in
Locking
. There, Mr. Lockings own action was
    stayed and he was prevented from seeking to have it certified as a class
    proceeding. Here, the Quebec Plaintiffs action was not stayed and the order
    does not purport to affect his ability to seek its approval as a class proceeding.
    Even from a procedural standpoint, the refusal to stay the Ontario Action is
    less far-reaching than the order in
Locking
.

[23]

The Quebec Plaintiff notes that, before the
    motion judge, the Ontario Plaintiff argued that the motion to stay should not
    be conflated with a carriage motion. This argument was made by the Ontario
    Plaintiff in response to submissions on the proper factors to be applied for a
    motion to stay. The Ontario Plaintiff took the position that the Quebec
    Plaintiff was incorrectly asserting that  the test on a motion to stay should
    be taken from jurisprudence relating to carriage motions. The Quebec Plaintiff
    suggests that the Ontario Plaintiffs position in the court below is a reason
    why
Locking
ought not to apply to the appeal route issue here.

[24]

I do not consider that point to be germane. First,
    the question before this court is one of jurisdiction, and jurisdiction cannot
    be conferred by the parties characterizations in the court below, for a
    different purpose, about the similarity to a carriage dispute (the
    characterizations are in any event conflicting). Second, the issue on the
    motions under consideration here is not what factors should be applied in
    deciding a motion to stay and how similar those factors are to the factors on a
    carriage motion; the issue is the similarity of the type of order that results
    from a carriage dispute and the type of order here.

[25]

The Quebec Plaintiff relies on the decision in
Ontario
    v. Lipsitz
, 2011 ONCA 466, 281 O.A.C. 67, leave to appeal refused, [2011]
    S.C.C.A. No. 407. He argues that
Lipsitz
stands for the proposition
    that the refusal to stay an action on the grounds of abuse of process results
    in a final order when the refusal does not leave open the right to argue abuse
    of process later in the action. As mentioned, it is unclear whether the motion
    judges decision has foreclosed any future arguments on whether the Ontario
    Action should be stayed in favour of the Quebec Action (see paras. 12 and 13 of
    these reasons). But in any event,
Lipsitz
is of no assistance to the
    Quebec Plaintiff.

[26]

In
Lipsitz
, the plaintiff alleged that
    several defendants improperly forced his sleep disorder clinics to close. After
    filing their statements of defence, the defendants moved to dismiss and to stay
    the plaintiffs action. The motion to stay was premised on the assertion that the
    plaintiffs action was a collateral attack on administrative decisions relating
    to the licensing of sleep clinics. The collateral attack/abuse of process
    argument was one of the defendants
substantive
responses to the
merits
of the plaintiffs claim. The motion judge largely dismissed the defendants
    motion. In doing so, he finally disposed of the defendants substantive
    response that the plaintiffs action was an impermissible collateral attack,
    without reserving the issue for trial. Accordingly, this court held that the
    motion judges order was final:
Lipsitz
, at paras. 40-41.

[27]

In contrast, the Quebec Plaintiffs motion to
    stay did not raise for determination any of the Defendants substantive
    responses to the merits of the Ontario Plaintiffs claim, let alone result in the
    determination of any such substantive response.

[28]

Nor is this case similar to cases like
Smith
    Estate v. National Money Mart Company
, 2008 ONCA 746, 92 O.R. (3d) 641,
    leave to appeal refused, [2008] S.C.C.A. No. 535, relied on by the Quebec
    Plaintiff.
Smith Estate
dealt with a refusal to stay an action in
    favour of arbitration. Sharpe J.A., at para. 30, considered the order final
    because it finally deprived the defendant of a substantive contractual right to
    arbitration.
[6]
Nor is this case similar to
M.J. Jones Inc. v. Kingsway General Insurance
    Co.
(2003), 233 D.L.R. (4th) 285 (Ont. C.A.), where the court held that a
    refusal to stay an action for lack of territorial jurisdiction over the defendant
    and on
forum non conveniens
grounds was final. As Sharpe J.A. stated,
    those motions finally determine substantive questions with constitutional
    implications about the power of the court to adjudicate claims against the defendant:
M.J. Jones
, at para. 10; see also
Microvoice Applications Inc. v.
    Ice Consultants Inc.
, 2004 CarswellOnt 6310 (C.A.). Nothing similar is present
    here.

[29]

The Quebec Plaintiff also submits, citing
Smerchanski
    v. Lewis
(1980)
, 117
    D.L.R. (3d) 716 (C.A.), at p. 720, that an order made in a contest between a
    party to an action and a non-party is final if it finally disposes of their
    rights in the issue raised between them. He argues that the order here is final
    because he is a non-party to the Ontario Action, and the decision of the motion
    judge finally determined whether he could obtain a stay of the Ontario Action
    on the grounds raised by him when the motion was decided.

[30]

I would not give effect to that argument.
Smerchanski
dealt with an order made during a trial, at the request of strangers to the
    action, to quash subpoenas directed to the strangers. The statement in
Smerchanski

must be read in light of what was in issue, and not as a statement that all
    orders made concerning non-parties are final. In
CC&L Dedicated
    Enterprise Fund (Trustee of) v. Fisherman
, 2001 CarswellOnt 3354 (C.A.), this
    court said, at para. 16:

When given its broadest interpretation, the
    principle in
Smerchanski

v. Lewis, supra
, does not fit
    comfortably with the general test for determining whether an order is
    interlocutory or final, as set out in
Hendrickson v. Kallio
, [1932]
    O.R. 675 (C.A.) and clarified in subsequent cases such as
Ball v. Donais
(1993), 13 O.R. (3d) 322 (C.A.).
Smerchanski
was not intended to mean
    that all orders directed to a non-party must be final, and the principle
    expressed therein should not be further expanded in that way.

[31]

Similarly, in
Ambrose v. Zuppardi
, 2013
    ONCA 768, 368 D.L.R. (4th) 749, at para. 8, this court stated:
Smerchanski
should be restricted to cases in which there are like circumstances  a ruling
    made in the course of a trial quashing a subpoena of a witness in circumstances
    where the information sought to be obtained from the witness cannot be obtained
    from the [parties] themselves.

[32]

The circumstances here are not like those in
Smerchanski
.
    Nor are they circumstances that should attract any variant of its principle. The
    Quebec Plaintiff is not a party to the Ontario Action in the formal sense. But
    he does not premise his request to stay the Ontario Action on being a complete stranger;
    rather he does so on the basis that the Ontario Action overlaps, in all
    material respects, including in respect of the class on whose behalf it is
    brought, with the Quebec Action. This case parallels the situation in
Locking
,
    where Mr. Locking was not a party to the competing class action, although he
    was a member of its proposed class. Mr. Lockings status as a non-party to one
    of the actions, and the fact that he was affected by the result of the carriage
    dispute, did not make the order there final. The Quebec Plaintiffs non-party
    status in the Ontario Action does not lead to a different result here.

CONCLUSION

[33]

For these reasons I would quash the Quebec
    Plaintiffs appeal. In light of that disposition, I would also dismiss the
    Defendants motion for directions.

[34]

If the parties are unable to agree on costs, I
    would require that they each make written submissions within ten days of the
    release of these reasons. Those submissions should not exceed two pages in
    length.

Released: JUN 12, 2020 MLB

B.
    Zarnett J.A.

I
    agree. M.L. Benotto J.A.

I
    agree. Thorburn J.A.

[1]
Moving parties in M51262, the motion to quash.

[2]
Responding parties in M51557, the motion for directions.

[3]
Moving parties in M51557.

[4]
Appeal file number C67841.

[5]
The Quebec Plaintiff also takes the position that the Quebec Action
    is slightly broader in scope.

[6]
In
TELUS Communications Inc. v. Wellman
,
    2019 SCC 19, at para. 91 (per Moldaver J.), it was suggested that decisions
    under s. 7(6) of the
Arbitration Act
,
    1991
, S.O. 1991, c. 17, cannot be appealed at all. Whether or not this
    affects the decision in
Smith Estate
,
    it further underscores the inapplicability of the jurisprudence on stays in
    favour of arbitration to the situation in the case at bar.


COURT OF APPEAL FOR ONTARIO

CITATION: Edgeworth v. Shapira, 2020 ONCA
    374

DATE: 20200611

DOCKET: M51258, M51278, M51370 (C67654)

Doherty, Hourigan and Fairburn
    JJ.A.

BETWEEN

Annabelle Maritza Edgeworth

Plaintiff (Appellant/Responding Party)

and

Karyn Shapira, Brian Levine,
    Northbridge General Insurance Corporation and Andrew Evangelista

Defendants (Respondents/Moving Parties)

Michael Kestenberg and Thomas M. Slahta,
    for the moving parties Karyn Shapira and Andrew Evangelista

Todd Burke and Samaneh Frounchi, for
    the moving party Brian Levine

David Zuber, for the moving party
    Northbridge General Insurance Corporation

Rocco Galati, for the responding party

Heard: in writing

REASONS FOR DECISION

[1]

The appellant sued the respondents for
    conspiracy and intrusion on seclusion. She also sued the respondent Karyn
    Shapira for misrepresentation. Ms. Shapira moved to strike the appellants
    claim without leave to amend, save for the misrepresentation claim. The remaining
    respondents moved to strike the appellants entire claim against them without
    leave to amend. All respondents also sought an order removing Campisi LLP as
    lawyers of record for the appellant based on an alleged conflict of interest.

[2]

The motion judge struck the claims in conspiracy
    and intrusion on seclusion but granted the appellant leave to amend his claims
    regarding these torts. Further, the motion judge ordered Campisi LLP removed as
    lawyers of record for the appellant. The appellant appeals these decisions.

[3]

The respondents bring these motions to quash the
    appeal, submitting that the motion judges order striking parts of the
    statement of claim is interlocutory because it includes an order granting leave
    to amend. They further argue that the order removing the appellants lawyer is
    also interlocutory. Their position is that the correct appeal route is to the
    Divisional Court with leave.

[4]

We dismiss the motions to quash the appeal of
    the order striking the claim. The respondents are correct that an order
    striking a claim with leave to amend is interlocutory:
Dobreff v. Davenport
,
    2007 ONCA 902, 88 O.R. (3d) 719. However, in this case, the motion judges
    order had the effect of foreclosing amendments to the claims struck. Therefore,
    the order was final.

[5]

Regarding the removal of the appellants lawyer,
    the respondent is right to describe this order as interlocutory:
Marrocco
    v. John Doe
, 2014 ONSC 5663 (Div. Ct.). An appeal of an interlocutory order
    that lies to the Divisional Court with leave should not be combined with an
    appeal of a final order to this court pursuant to our power under s. 6(2) of
    the
Courts of Justice Act
, R.S.O. 1990, c. C 43, if leave to appeal the
    interlocutory order has not yet been obtained from the Divisional Court:
Cole
    v. Hamilton (City)
,

60 O.R. (3d) 284, 2002 CanLII 49359, at paras.
    15-16; and
Mader v. South Easthope Mutual Insurance Co.
,
2014
    ONCA 714, 123 O.R. (3d) 120, at para. 55.

[6]

The motions to quash the appeal of the order to
    strike are dismissed. The appeal of the order removing Campisi LLP as lawyers
    of record for the appellant is quashed. Leave to appeal the removal of counsel
    order should be sought in the Divisional Court. Given the divided success in
    this court, we order that there be no costs of the motions.

Doherty J.A.

C.W. Hourigan J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Eks v. Tadeu, 2020 ONCA 425

DATE: 20200630

DOCKET: C67195

Feldman, Fairburn and Nordheimer
    JJ.A.

BETWEEN

Susan Elizabeth Eks

Plaintiff/Defendant to Counterclaim
(Respondent)

and

Kerri Lynn Tadeu

Defendant/Plaintiff by Counterclaim
(Appellant)

Christopher Du Vernet and Carlin
    McGoogan, for the appellant

David M. Adams and Matthew E. Taft,
    for the respondent

Heard: In writing

On appeal from the judgment of Justice Graeme
    Mew of the Superior Court of Justice, dated June 17, 2019, with reasons
    reported at 2019 ONSC 3745.

REASONS FOR DECISION

[1]

Ms. Tadeu appeals from the trial judgment in which
    the respondents claim was dismissed as was the appellants counterclaim. It is
    the dismissal of the appellants counterclaim that is in issue in this appeal.

[2]

There is an unfortunate history between these
    two parties, who were neighbours, that involved the respondent, at one point, vandalizing
    the appellants home. This occurred after an earlier physical confrontation
    between the two.

[3]

The respondent was charged with criminal
    offences arising out of these incidents. She eventually pleaded guilty to the
    offences, received a suspended sentence and probation, and moved out of the
    neighbourhood.

[4]

A few years later, the appellant saw the
    respondent in her neighbourhood. The respondent was waiting outside the home of
    a friend of hers. The respondent said that she was picking up her friend in
    order to go and visit a mall. The appellant said that the respondent stared at
    her intently when she saw her.

[5]

The police were called but determined that there
    was no conduct that required their action. The appellant then sought a peace
    bond against the respondent. The request for the peace bond was dismissed when
    the appellant failed to appear for the hearing.

[6]

The respondent then commenced this action
    against the appellant alleging malicious prosecution, harassment and other
    claims. The appellant counterclaimed for intentional infliction of mental
    distress, negligence and other claims.

[7]

The trial was conducted as a summary trial. At
    its conclusion, the trial judge dismissed both the claim and the counterclaim. In
    detailed reasons, the trial judge concluded that none of the claims advanced by
    the respondent were made out. The trial judge also concluded that none of the
    claims by the appellant were made out. In this latter regard, the trial judge
    expressly rejected the evidence of a psychologist called by the appellant. He
    was critical of the psychologist for having rendered an opinion, in these
    circumstances, without having reviewed the appellants medical records.

[8]

In our view, the trial judge was entitled to
    reach the conclusion that he did respecting the psychologists evidence. The
    appellant also complains that the trial judge failed to consider the report of
    a psychiatrist which the insurer for the appellants employer had obtained
    which she says supported the psychologists evidence. The trial judge was not
    required to consider the psychiatrists report because it was not properly in
    evidence before him. The report was simply filed (it is not clear on what
    basis) and the psychiatrist was not called.

[9]

The appellants argument, at its core, is a
    quarrel with the trial judges factual findings. There does not appear to be
    any dispute (with perhaps one exception) that the trial judge correctly
    articulated the component parts of the various causes of actions that the
    appellant asserted. He then found that the facts did not sustain any of those
    causes of action. The trial judge was entitled to come to those conclusions. It
    is not for this court to interfere with those findings of fact absent palpable
    and overriding error, of which none is shown here.

[10]

The possible exception is with respect to the
    appellants complaint that the trial judge erroneously concluded that the
    appellant had failed to articulate the duty of care that she alleged regarding her
    negligence claim. He said, at para. 140:

It is not sufficient to throw the words
    "negligence", "nuisance", "intimidation" and
    "interference with enjoyment of property" into a prayer for relief,
    but then not articulate what duty was owed.

[11]

Assuming without deciding that the trial judge imposed
    too high a burden on the appellants pleading, that does not change the fact
    that the trial judge concluded that the facts did not sustain a finding of
    negligence, however one might articulate the duty of care.

[12]

Finally, the appellant complains that the trial
    judge did not grant a permanent injunction against the respondent to ensure
    that the respondents conduct was not repeated. The trial judges decision on
    this relief was a matter entirely within his discretion. The appellant has not
    demonstrated any basis for this court to interfere with the manner in which the
    trial judge chose to exercise his discretion.

[13]

The appeal is dismissed with costs fixed at
    $3,500 inclusive of disbursements and HST.

K.
    Feldman J.A.

Fairburn
    J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR
    ONTARIO

CITATION: Foodinvest Limited v. Royal Bank
    of Canada, 2020 ONCA 387

DATE: 20200617

DOCKET: M51433 (C66522)

Rouleau, van Rensburg and
    Roberts JJ.A.

BETWEEN

Foodinvest Limited

Plaintiff (Appellant/Moving Party)

and

Royal Bank of Canada

Defendant (Respondent/Responding Party)

Glenroy K. Bastien, for the moving
    party

Catherine Francis, for the
    responding party

Heard: In writing

van Rensburg J.A.:

A.

INTRODUCTION

[1]

This is a motion by Foodinvest Limited (Foodinvest) under s. 7(5) of
    the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43, seeking to set aside an order of a single judge of this court for
    security for costs of its appeal. The appeal is of the summary judgment of
    Morgan J., dated December 27, 2018, dismissing Foodinvests action against the
    responding party, Royal Bank of Canada (RBC). In the action, Foodinvest
    alleged that it was a victim of fraud and claimed damages against its banker, RBC,
    for negligence, breach of contract, breach of trust, and breach of fiduciary
    duty. Foodinvest alleged that RBC had received notice that an account to which
    Foodinvest was forwarding funds was suspected to be fraudulent, and had failed
    to investigate and to notify its customer of the notice of possible fraudulent
    activity.

B.

HISTORY OF PROCEEDINGS

[2]

RBC brought its first motion for security for costs in March 2019.
    Foodinvest was ordered to pay $75,067.89 as security for costs (costs of $50,067.89
    awarded against Foodinvest in the court below plus $25,000 for the estimated
    partial indemnity costs of the appeal). That order was set aside by a panel of
    this court, without prejudice to RBC renewing its motion for security for costs
    after Foodinvest had perfected its appeal: 2019 ONCA 728. While not interfering
    with the motion judges conclusion that Foodinvest had insufficient assets in
    Ontario to pay RBCs costs, the panel concluded that the motion judge did not
    consider the justness of the order sought in all the circumstances of the case,
    with the interest of justice at the forefront, as directed by
Yaiguaje v. Chevron Corporation
, 2017 ONCA 827, 189 O.R.
    (3d) 1. The panel determined that it would not be just in the circumstances to
    order security for costs before the appeal was perfected.

[3]

The appeal was perfected on or about October 21, 2019 and scheduled to
    be heard on March 26, 2020. The hearing was adjourned.

[4]

RBC brought its second motion for security for costs returnable March
    10, 2020. The grounds for the motion were that there was good reason to believe
    that Foodinvest had no assets in Ontario and was without means to satisfy the
    costs awarded at first instance or the costs of the appeal. RBC suggested that
    Foodinvests principal, Svetlana Zolotova, who had assets in Ontario, could
    either post security for costs or undertake responsibility for costs. RBC
    referred to Ms. Zolotovas admission in her cross-examination in the
    summary judgment proceedings that she is the sole shareholder of Foodinvest. It
    noted that Ms. Zolotova had refused to produce the financial records of
    Foodinvest in those proceedings and had provided no financial disclosure in
    response to the motion for security for costs. RBC provided evidence that Ms.
    Zolotova is the registered owner of a home in Vaughan valued at approximately
    $1.3 million, against which the only registered encumbrance is a mortgage in
    its favour.

[5]

In her materials, Ms. Zolotova admitted that Foodinvest had no assets in
    Ontario. She asserted that Foodinvest is still operating but is impecunious and
    unable to raise money to post security for costs. She claimed that the appeal
    could not proceed if Foodinvest were required to post security for costs. She
    referred to the fact that 42,307.25 is being held to the credit of Foodinvest
    as physical evidence by the Public Prosecutors office in Warsaw, Poland and that
    this sum could be made available to pay costs if Foodinvest were not successful
    on the appeal. Her factum on the motion resisted an order for security for
    costs, and proposed in the alternative that, if security for costs were
    ordered, these funds could be made available.

[6]

The motion judge granted an order requiring Ms. Zolotova, in her
    capacity as sole director, officer and shareholder of Foodinvest, to post
    security for costs in the amount of the costs of $50,067.89 awarded by Morgan
    J. and $25,000 for the estimated partial indemnity costs of the appeal, by way
    of a personal undertaking to be responsible for these costs. She reserved the
    costs of the motion to the panel hearing the appeal.

C.

ISSUES ON REVIEW OF ORDER

[7]

An order refusing or granting security for costs is a discretionary
    order which is entitled to deference, absent an error of law or principle:
Yaiguaje
, at paras. 20-21.

[8]

Foodinvest submits that the motion judge erred in principle in ordering Ms. Zolotova
    to undertake to pay RBCs costs in the court below and its estimated costs of
    the appeal, and that no order for security for costs ought to have been made in
    the circumstances.

[9]

RBC contends that the motion judges order reflected a proper exercise
    of her discretion. It argues that an order for security for costs was warranted
    because Foodinvest does not have sufficient assets in the jurisdiction to
    satisfy a costs award, and that there is nothing unjust in requiring Foodinvests
    principal to assume responsibility for RBCs costs if it is unsuccessful on the
    appeal.

[10]

I agree with Foodinvest that the order for security for
    costs must be set aside. The motion judge erred in misapprehending that there
    was an agreement by Ms. Zolotova to provide a personal undertaking to pay
    the costs of the action and appeal brought by Foodinvest. As a result, she
    failed to apply the correct test and to carry out the required analysis to
    determine whether security for costs should be ordered
against the appellant, Foodinvest
. This required the
    consideration of whether RBC brought itself within the terms of the rule under
    which it was claiming security for costs, and whether it would be just to make
    an order for security for costs in the circumstances. In view of the errors of
    the motion judge, it falls to this panel to consider RBCs motion for security
    for costs
de novo.

D.

DISCUSSION

(1)

Relevant legal principles

[11]

In
Yaiguaje
, this court directed that [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: at
    para. 22.

[12]

An
    order for security for costs can be made under r. 61.06(1)(a) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, where it
    appears that 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. In its second motion for security for costs, RBC did not
    rely on this rule. Rather, RBC relied on the combination of r. 61.06(1)(b) (where
    it appears that an order for security for costs could be made against the
    appellant under r. 56.01) and r. 56.01(1)(d) (where it appears that there is
    good reason to believe that a corporate plaintiff has insufficient assets in
    Ontario to pay the costs of the defendant). It asserted that Foodinvest lacked
    sufficient assets in Ontario to pay the costs awarded at first instance and the
    costs of the appeal.

[13]

This
    court discussed the interplay of rr. 61.06(1)(b) and 56.01(1)(d) in
Health Genetic Center Corp. v. New Scientist Magazine
,
    2019 ONCA 968. In the context of a motion for security for costs of an appeal,
    the question under r. 56.01(1)(d) is whether there is good reason to believe
    that the corporate appellant (who was a plaintiff or applicant at first
    instance) has insufficient assets in Ontario to pay the costs
of the appeal
. Even where that
    threshold is met, the overriding consideration is whether an order for security
    for costs would be just, which must be considered holistically, taking into
    consideration the circumstances of the particular case:
Health Genetic
, at paras. 15-18;
Yaiguaje
,
    at para. 25. In
Health Genetic
, there was
    evidence that the corporate appellant had sufficient assets to pay costs of the
    appeal, but not to pay costs in the court below. The panel upheld the order of
    the motion judge refusing security for costs.

(2)

Application to this case

[14]

In
    the present case, although Foodinvest provided no financial disclosure, there
    is no dispute that it is a corporation with insufficient assets in Ontario to
    pay the costs of the appeal. The money being held by the Public Prosecutor in
    Poland to Foodinvests credit appears to be the only source of funds available
    to Foodinvest to pay a costs award in the event that it is unsuccessful on the
    appeal. I also accept that Foodinvest has not established that it is
    impecunious in the extended sense that the shareholders and principals of the
    corporation are unable to fund security for costs:
Rhonmont
    Properties Ltd. v. Yeadon Manufacturing Ltd.
, [2003] O.J. No. 1883
    (C.A.), at para. 5. Although Ms. Zolotovas affidavit asserted impecuniosity
    and stated that Foodinvest was unable to raise security from its shareholders, the
    evidence is that she is a shareholder, and that she has equity in a home located
    in Vaughan.

[15]

While
    RBC is able to bring itself within the scope of rr. 61.06(1)(b) and 56.01(1)(d),
    this is not sufficient to warrant an order for security for costs. Rule 61.06
    is permissive, not mandatory. In every case where security for costs is sought,
    the court must take a step back and consider whether an order for security
    for costs would be just in all the circumstances of the case. The overarching
    principle to be applied is the justness of the order sought:
Ravenda Homes Ltd. v. 1372708 Ontario Inc.
, 2017 ONCA
    556, at para. 4. Some relevant factors are the merits of the claim (in this
    case the appeal), any delay in bringing the motion for security for costs, the
    impact of actionable conduct by the defendants (or respondents) on the
    available assets of the plaintiffs (or appellants), access to justice concerns,
    and the public importance of the litigation:
Yaiguaje
,
    at para. 24. I would add that the court should give careful consideration to
    the amount and form of security sought by the moving party. And, [c]ourts must
    be vigilant to ensure that an order that is designed to be protective in nature
    is not used as a litigation tactic to prevent a case from being heard on its
    merits, even in circumstances where the other provisions of rr. 56 or 61 have
    been met:
Yaiguaje
, at para. 23. Each case
    must be considered on its own facts: 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:
Yaiguaje
,
    at para. 25.

[16]

In
    my view, the interests of justice do not favour an award of security for costs
    in this case or the specific order that RBC sought and that was granted by the
    motion judge.

[17]

First,
    RBC delayed in bringing its motion. The setting aside of the first order for
    security for costs was without prejudice to RBC bringing another motion after
    the appeal was perfected. The appeal was perfected in October 2019, however RBCs
    motion was heard only two weeks before the scheduled date of the appeal and
    after it had filed its materials responding to the appeal. Such a delay weighs
    against an order for security for costs: see
Hilson v.
    1336365 Alberta Ltd.
, 2019 ONCA 727, at para. 11. Moreover, the
    fact that RBC brought its motion for security for costs after it had incurred
    all of its costs in connection with the appeal, except for the costs related to
    the hearing, calls into question the purpose of the motion. Motions for
    security for costs are meant to provide a measure of protection to the
    respondent for the costs that will be incurred on the appeal:
Health Genetic
,

at para. 26, citing
Combined Air Mechanical Services Inc. v. Flesch
, 2010
    ONCA 633, 268 O.A.C. 172, at para. 8.

[18]

Second,
    the appeal is not obviously or plainly devoid of merit. In its appeal,
    Foodinvest points to a number of specific errors that it submits the motion
    judge made in granting summary judgment. This is a relevant factor irrespective
    of whether a respondent moves for security for costs of an appeal under r.
    61.06(1)(a) or under some other part of r. 61.06:
Yaiguaje
,
    at para. 24;
Chinese Publications for Canadian Libraries
    Ltd. v. Markham (City)
, 2017 ONCA 968.

[19]

Third,
    the particular order sought by RBC, requiring Foodinvests principal to give a
    personal undertaking to pay the estimated partial indemnity costs of the appeal
    as well as the costs awarded against Foodinvest in the court below, would
    provide it with something it did not have in the proceedings below  a judgment
    for costs that is enforceable against Ms. Zolotova personally. This is
    inappropriate, overreaching, and not a valid reason to seek security for costs.
    Contrary to RBCs submission that there is nothing unfair about such an order, it
    would be unjust in the circumstances to require such an undertaking as the price
    for Foodinvest to proceed with an appeal that is not devoid of merit and that
    it has a right to pursue.

[20]

The
    motion in this case was for security for costs in
Foodinvests
appeal. Ms.
    Zolotova is not a party to the appeal. As already observed, the motion judge
    misapprehended the undertaking proposed by Foodinvests counsel. Specifically,
    what was offered was that, if the court concluded that security for costs was
    warranted, Ms. Zolotova was prepared to undertake to make available the monies
    to Foodinvests credit that were being held in Poland. It was not a concession
    that an order for security for costs was warranted, or that such an order could
    or should be made against Ms. Zolotova personally without her consent, and for
    the full amount of the costs RBC was seeking.

[21]

I
    disagree with RBCs submission that, even without Ms. Zolotovas consent, there
    was a basis for making an order requiring her to pay the costs of the appeal
    and of the proceedings below as security for the costs of Foodinvests appeal. RBC
    refers to one case,
Printing Circles Inc. v. Compass Group
    Canada Ltd. (2007)
, 88 O.R. (3d) 685 (S.C.), a decision of Corbett
    J. in the Superior Court, which it cites as authority for such an order. Its
    reliance on that decision, however, is misplaced. In
Printing
    Circles
, the corporate plaintiff had insufficient assets in Ontario
    to pay the costs of an action, but was not impecunious, because it could raise
    funds from its principal. The corporate plaintiff opposed an order for security
    for costs, and in the alternative proposed that an order for security for costs
    could be satisfied by way of a personal undertaking by its principal to pay
    costs. The defendant argued that the court could not accept such an undertaking
    in lieu of or as a form of security for costs. After considering various
    authorities, Corbett J. ordered security for costs against the corporate
    plaintiff, with the proviso that it could be satisfied by an undertaking
    provided by its principal. As such, the issue in that case was not whether an
    order for security for costs should be made against the corporate plaintiffs
    principal, but whether, once the defendant made out a case for security for
    costs, the corporate plaintiff could satisfy the order by giving a personal
    undertaking from its principal to pay costs in the event that the corporate
    defendant did not pay them. See also
1056470 Ontario Inc.
    v. Goh
, [2007] O.J. No. 2545 (Gen. Div.), at para. 15.

[22]

At
    its highest, the reasoning in
Printing Circles
would have permitted this court to accept an undertaking from Ms. Zolotova if the
    court concluded that Foodinvest must provide security for costs, and she had
    offered such an undertaking. While the court can order a corporate appellant to
    post security which, as a practical matter, the appellant may only be able to
    satisfy by funding from its shareholders, an order for security for costs under
    the combination of rr. 61.06(1)(b) and 56.01(1)(d) is against the corporate
    appellant itself, and not against its principal.

[23]

As
    a final point, I would emphasize that, when considering a motion under r. 61.06,
    the court must have regard to the interests of justice at all stages of its
    analysis: in determining whether an order for security for costs is warranted,
    and in determining the type and amount of security to be ordered. While r.
    61.06 authorizes the court to order security for costs of the appeal
and
of the proceedings below, it
    does not follow that such an order will be made routinely. It is beyond the
    scope of this review motion to address this issue, except to observe that some
    justification must be offered by the moving party when the amount of security
    sought under r. 61.06 includes security for the costs awarded in the court
    below.

E.

DISPOSITION

[24]

For
    these reasons, I would set aside the order for security for costs and order
    costs to Foodinvest of this motion and the motion before the motion judge. If
    the parties are unable to agree on the amount of such costs, the court will
    receive written submissions limited to three pages each (in addition to
    Foodinvests costs outline), as follows: from Foodinvest within 20 days and from
    RBC within 15 days thereafter. Submissions are to be submitted electronically
    at the following email address: COA.E-File@ontario.ca.

Released: June 17, 2020 (P.R.)

K.
    van Rensburg J.A.

I
    agree. Paul Rouleau J.A.

I
    agree. L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Formosa v. Persaud, 2020 ONCA 368

DATE: 20200611

DOCKET: C67456

Pepall, Hourigan and Roberts
    JJ.A.

BETWEEN

John Formosa and Steffen Nielsen

Plaintiffs (Appellants)

and

Dorian Persaud and
Gardiner Roberts LLP

Defendants (Respondent)

Julian Binavince, for the appellants

Michael R. Kestenberg and David S.
    Lipkus, for the respondent, Gardiner Roberts LLP

Heard: In Writing

On appeal from the judgment of Justice Lorne
    Sossin of the Superior Court of Justice, dated August 22, 2019, with reasons
    reported at 2019 ONSC 4860.

REASONS FOR DECISION

[1]

The appellants appeal from the judgment of Sossin J., dated August 22,
    2019, in which he granted summary judgment dismissing the appellants action
    against their former counsel, Dorian Persaud and Gardiner Roberts LLP. The
    appellants only appeal the dismissal of their action against Gardiner Roberts
    LLP (GR).

[2]

The appellants were former managers of TSI International Group (TIG). TIG
    brought proceedings against the appellants alleging that they had stolen
    confidential and proprietary information. TIG also brought a motion seeking injunctive
    relief. Mr. Persaud acted for the appellants.

[3]

TIG was successful on the motion and the motion judge, Ricchetti J.,
    described the appellants conduct as reprehensible and outrageous, stating that
    it was difficult to ascertain what, if any, defence could possibly succeed.

[4]

The appellants terminated Mr. Persauds retainer and hired GR to act for
    them instead. The retainer with GR lasted roughly 22 months. During that time,
    GR prepared the appellants statement of defence and counterclaim. In addition,
    GR represented the appellants in their unsuccessful response to TIGs motion to
    strike their pleading, in filing a motion for leave to appeal that order, and
    on an unsuccessful motion seeking compliance with the injunctive relief that
    had been granted against them.

[5]

Ultimately the action with TIG was settled with the assistance of new
    counsel. The appellants then commenced this action against Mr. Persaud and GR
    for breach of contract and solicitors negligence. Mr. Persaud and GR brought a
    motion for summary judgment dismissing the appellants action.

[6]

The motion judge, Sossin J., found that each of the steps GR took was
    communicated to the appellants, considered by them, and resulted in
    instructions to take a certain course of action. The motion judge also found
    that the appellants knew the risks, were advised of their rights, and were
    active participants in the development of the litigation materials and
    strategy. Moreover, the motion judge found that GR did not cause the
    appellants damages, to the extent there were any. He concluded that GR was not
    professionally negligent.

[7]

In their factum on appeal, the appellants state that they commenced the
    action against GR based on errors in judgment, failure to properly advise them
    so they could make informed decisions, and failure to properly consider costs.

[8]

The motion judge addressed these claims and found against the appellants.

[9]

On appeal, the appellants advance numerous arguments, none of which are
    meritorious.

[10]

The
    motion judge applied the correct test for a summary judgment motion and did not
    reverse the burden. He correctly noted that GR, as the moving party, had the
    initial burden to establish there was no genuine issue requiring a trial. He
    was satisfied that this burden had been met based on the record before him, which
    included affidavits filed by two of GRs lawyers
that
    addressed the claims against them
. In the absence of any expert report
    from either party, he relied on the record to determine that there was no
    professional negligence. We see no error in that analysis.
See
    also
McPeake v. Cadesky
, 2018 ONCA 554.

[11]

The
    appellants complain that GR made errors in judgment. However, as stated by McLachlin
    C.J. in
Hill v. Hamilton-Wentworth Regional Municipal
    Police
, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 73, the law of
    negligence accepts that professionals may make minor errors or errors in
    judgment that cause unfortunate results, without breaching the standard of
    care. Here, the motion judge found that the appellants were advised of the
    risks in litigation generally and in the TIG action specifically. His findings
    were fully supported by the record. Moreover, there is no dispute that the
    litigation strategy was to be aggressive with a view to motivating TIG to
    settle. We are fully satisfied of the merits of the motion judges findings.

[12]

There
    is no basis for the appellants argument that the reasons were inadequate. The
    reasoning and the route to the dismissal of the appellants claim are
    abundantly clear.

[13]

In
    light of our decision on the merits, there is no need to consider the
    additional basis of absence of any loss, relied upon by the motion judge.

[14]

For these reasons, the appeal is dismissed. If the parties are
    unable to agree on costs of the appeal, they may each make brief written
    submissions, not to exceed three pages in length.

S.E. Pepall
    J.A.

C.W. Hourigan
    J.A.

L.B. Roberts
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Harding v. Sokil, 2020 ONCA 422

DATE: 20200629

DOCKET: M51340 (C65293)

Gillese, Brown and Paciocco
    JJ.A.

BETWEEN

Alexander J. Harding

Plaintiff/ Defendant by Counterclaim

(Moving Party)

and

Barbara Lynn Sokil

Defendant/ Plaintiff by Counterclaim

(Responding Party)

and

Alexander
    James Harding, Estate of Irene Francis Harding and Sharron Lynn-Duns

Defendants to Counterclaim

William R. Gilmour, for the moving party

Babara Lynn Sokil, acting in person

Heard: in writing

REASONS FOR DECISION

[1]

This is a motion to dismiss the within appeal
    or, alternatively, require the appellant to post security for costs as a
    condition of continuing it (the Motion).

BACKGROUND IN BRIEF

[2]

Alexander James Harding granted a vendor take
    back mortgage to Barbara Lynn Sokil when she purchased real property from him. Ms.
    Sokil defaulted on her obligations under the mortgage and Mr. Harding sued her
    for damages, interest, costs and possession of the property. Ms. Sokil filed a
    defence and counterclaim.

[3]

Mr. Harding moved for summary judgment. The
    motion judge found there were no genuine issues requiring a trial in the action
    or counterclaim and, by judgment dated March 19, 2018 (the Judgment), he
    ordered the relief that Mr. Harding sought  including a Writ of Possession
    and dismissed the counterclaim.

[4]

Ms. Sokil filed a notice of appeal in this court.
    She then brought a motion to stay the Judgment pending appeal (the Stay
    Motion).

[5]

Justice Trotter heard the Stay Motion on May 1, 2018,
    and dismissed it. In his affidavit in support of this Motion, Mr. Harding
    attests that when Trotter J.A. was receiving costs submissions on the Stay Motion,
    Ms. Sokil indicated that it didnt matter what costs were ordered  she was
    not going to pay them. Ms. Sokil takes no issue with this claim in her Motion
    material.

[6]

Justice Trotter ordered Ms. Sokil to pay Mr.
    Harding costs of $2,000 (all inclusive), such costs to be paid within sixty days
    (the Costs Order). In his endorsement, Trotter J.A. opines that the appeal
    has no merit.

[7]

The appeal was set down to be heard on April 19,
    2019. Ms. Sokil failed to appear for the hearing, without notice to Mr.
    Harding. She seeks to have the appeal re-listed for a hearing.

[8]

It has been over a year since the Costs Order
    was made and Mr. Harding has not yet received payment of the costs. He brings
    this Motion in which he asks that Ms. Sokils appeal be dismissed for failure
    to pay the Costs Order and because, he alleges, Ms. Sokils conduct of the
    appeal to date has been frivolous and vexatious. Alternatively, Mr. Harding asks
    that Ms. Sokil be required to post security for costs as a condition of
    continuing with her appeal.

[9]

The Motion was scheduled to be heard, in writing,
    on June 22, 2020.

[10]

Ms. Sokil asks that the hearing of the Motion be
    adjourned. She also filed an affidavit replying to the Motion. In her
    affidavit, she takes issue with Trotter J.A. having expressed his opinion that
    the appeal had no merit, with the way in which the Motion had been brought and conducted,
    and with other aspects of Mr. Harding and his counsels conduct during the
    appeal proceeding. She asks that the Motion be dismissed.

ANALYSIS

[11]

We deal first with Ms. Sokils request for an
    adjournment. The Motion was scheduled to be heard in writing on June 22, 2020.
    We have received all the documents necessary to fairly hear, consider and
    decide the Motion. In the circumstances, we see no basis for adjourning it.
    Accordingly, we reject the adjournment request.

[12]

In terms of the Motion, assuming that this court
    has the power to dismiss an appeal for failure to pay costs orders, we would
    not exercise that power in this case: Ms. Sokil has failed to pay only one
    costs order.

[13]

However, rule 61.06(1)(b) of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194, empowers the court to order
    security for costs of the proceeding and the appeal if an order for security
    for costs could be made against the appellant under rule 56.01. Rule
    56.01(1)(c) authorizes an order for security for costs where the respondent has
    an order for costs against the appellant that remains unpaid.  That is the
    situation here. Under the Costs Order, Ms. Sokil was to have paid Mr. Harding
    $2,000 over a year ago.  That she has not done.

[14]

Ordering Ms. Sokil to pay security for costs
    would be just in the circumstances of this appeal:
York University v.
    Markicevic
, 2017 ONCA 651, at para. 22;
Yaiguaje v. Chevron
    Corporation
, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 23. Not only has Ms.
    Sokil failed to pay the costs ordered by Trotter J.A., she said she would defy
    that costs order. Ms. Sokil has not prosecuted her appeal with diligence. As
    well, the merits of her appeal are very weak.

[15]

Accordingly, we will make an order that Ms.
    Sokil pay security for costs of the proceeding and the appeal. In quantifying
    the amount of security required, we bear in mind that costs of $5,650 and
    $2,675, respectively, were ordered against Ms. Sokil on the Summary Judgment
    motion and the dismissal of her counterclaim. We also bear in mind that Mr.
    Harding has estimated his costs of the appeal (to April 10, 2019) at $11,000.

DISPOSITION

[16]

Accordingly, the Motion is granted with costs to
    Mr. Harding of $3,000, all inclusive. Ms. Sokil is ordered to pay these costs
    plus the Costs Order of $2,000 to counsel for Mr. Harding within thirty (30)
    days of the date of release of these reasons.

[17]

Ms. Sokil is further ordered to pay into court,
    as security for costs for the proceeding and the appeal, the amount of $19,000.
    Such payment shall be received by the court within forty-five (45) days of the
    date of release of these reasons. Until the security has been received by this
    court, Ms. Sokil may take no further steps in this proceeding.

[18]

If Ms. Sokil fails to pay the costs of this Motion
    ($3,000) and the Costs Order ($2,000) to Mr. Hardings counsel within the
    stipulated time, or if she fails to comply with the security for costs order, the
    appeal shall be dismissed on motion by Mr. Harding.

E.E. Gillese J.A.

David Brown
    J.A.

David M.
    Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Iannuzzi v. Couper, 2020 ONCA 426

DATE: 20200630

DOCKET: C67311

Feldman, Fairburn and Nordheimer
    JJ.A.

BETWEEN

Anthony Iannuzzi

Plaintiff

(Respondent)

and

Mark Couper

Defendant

(Appellant)

Mark Couper, acting in person

Riaz Ahmed, for the respondent

Heard: In writing

On
    appeal from the judgment of Justice Wendy M. Matheson of the Superior Court of
    Justice, dated April 3, 2019.

REASONS FOR DECISION

[1]

The respondent was the appellants landlord. The
    appellant found himself in financial difficulty. In 2008, the appellant
    requested that he be able to defer his rental payments to the respondent. The
    respondent agreed. On December 9, 2008, the appellant confirmed in writing that
    he owed rent for the entire year up to that time. He undertook to start paying
    rent again on January 1, 2010. He said that the back rent would become payable
    when [his] lawsuit against [a third party] is settled. He agreed to pay
    interest on the deferred rental payments, calculated at the rate of 10%
    annually starting with the missed payments on October 1, 2008. The respondent
    signed the letter confirming that agreement.

[2]

Although the date when the appellant was to
    start paying rent again got extended a few times, the substance of the original
    agreement did not change. On January 4, 2011, the appellant wrote to the
    respondent and enclosed a loan agreement that he had signed, acknowledging
    that he owed $69,806 in deferred rent and that he would repay that amount, with
    the ten percent interest, when the litigation he was involved in settled. The
    respondent refused to sign that loan agreement, claiming he had not agreed to
    anything with the appellant and that they needed to get together to discuss the
    matter.

[3]

The appellant started paying rent again in
    January 2011. In March 2012, the appellant gave the respondent two months
    notice. He had insufficient funds to cover two cheques for the April and May
    2012 rent. The NSF cheques gave rise to a small claims court action, where the
    respondent sought the two months rent to cover those amounts. The appellant
    cross-claimed. At that point, there was no claim relating to the deferred
    rental payments. Ultimately, the small claims court matter settled, as
    reflected in a settlement agreement dated December 2014, where the appellant
    acknowledged he would pay the respondent $6,248.48, spread out over 15 months.
    The parties released and discharged each other from all cause of actions and
    claims against each other.

[4]

Ultimately the appellants litigation with the
    third party settled in July 2016, at which time the respondent commenced this
    action to obtain the substantial amount of deferred rent. The trial judge
    concluded that the parties had a clear contract for the deferral of the rent,
    on terms agreed to, including the timing of repayment and the interest to be
    paid. The appellant says that the trial judge erred in that conclusion. We do
    not agree.

[5]

The trial judges careful reasons for decision
    demonstrate that she understood the evidentiary record before her, and her
    conclusions are supported by the factual record and her findings of fact to
    which we defer. As found by the trial judge, the appellants position that
    there was no agreement is undermined by the appellants acknowledgement in his
    December 9, 2008 letter that there was an agreement. It is also undermined by
    his statement in the May 26, 2010 letter that it constituted an agreement
    that superseded all other agreements.

[6]

The appellant also maintains that the trial
    judge erred in finding that the release signed by the parties in the small
    claims action did not bar the action. The trial judges reasons for concluding
    that the general words of the release did not cover the claim relating to the
    deferred rent are sound and well supported by the evidence. The release did not
    refer to future claims or to the deferred rent. The small claims action did not
    include a claim for the deferred rent. Her conclusion that if the appellant
    wished to include the deferred rent claim in the release, he should have
    specifically addressed it, makes sense. This is particularly true given that
    the appellants own proposed loan agreement in January of 2011 made specific
    reference to the fact that the deferred rent obligations were separate from
    all non-deferred rent.

[7]

Finally, the trial judge did not err in finding
    that the deferred rents constituted a contingent loan not covered by the
    release, contingent on the appellant completing his litigation with the third
    party. The deferred rent was clearly contingent upon a future event and was properly
    characterized by the trial judge.

[8]

The appeal is dismissed.

[9]

Costs of the appeal are to be paid by the
    appellant to the respondent in the amount of $10,000, inclusive of
    disbursements and taxes.

K. Feldman J.A.

Fairburn J.A.

I.V.B. Nordheimer J.A.