DATE: 20060525

DOCKET: C44206

COURT OF APPEAL FOR ONTARIO

RE:

TONY COE and TONY COE in the name and on behalf of ACROSS‑CANADA DESTINATION SERVICES INC. (Applicant/Respondent) – and – KAREN MEADE (Respondent/Appellant)

BEFORE:

CATZMAN, LASKIN and MACPHERSON JJ.A.

COUNSEL:

John T. Zuber

for the appellant

Robert L. Colson

for the respondent

HEARD & RELEASED ORALLY:

May 24, 2006

On appeal from the order of Justice Susan E. Greer of the Superior Court of Justice dated August 29, 2005.

E N D O R S E M E N T

[1] In an order dated August 29, 2005, the motions judge, Greer J., inter alia, dismissed the appellant’s motion for security for costs, authorized the respondent Tony Coe to control the conduct of the intended action, and awarded costs to the respondent fixed at $36,817. The appellant appeals these three components of the motions judge’s Order.

[2] The appellant submits that the motions judge erred by not awarding her security for costs of the action. We disagree. The motions judge stated that this component of the relief sought by the appellant related only to Tony Coe personally. There is nothing in the record to contradict this finding. With respect to this relief, the motions judge considered a number of factors, including the merits of the proposed action: “It is clear to me, however, that the action is neither vexatious nor frivolous. There is sufficient evidence to show why the Application was brought on.” We agree with her tentative assessment of the record and see no reason to interfere with the exercise of her discretion in refusing to order security for costs.

[3] The appellant submits that the motions judge ordered costs that were grossly excessive. We disagree. In our view, the motions judge’s reasons relating to costs are comprehensive and careful. We see no basis for interfering with this component of her Order.

[4] Although it was not pressed in oral argument, the appellant contends that the motions judge erred by granting the relief referred to in paragraph (1)(c) of Tony Coe’s Notice of Application, namely an order for directions for conduct of the action.

[5] We disagree. This component of the motion judge’s Order is an interlocutory order which requires leave of this court in order to be appealed: see s. 249(2) of the Canadian Business Corporations Act, R. S. C. 1985, c. C‑44. The appellant did not seek leave. Moreover, in our view the motions judge’s Order was a sensible one authorized by s. 240(a) of the CBCA.

[6] The necessary leave to appeal is granted. The appeal is dismissed with costs fixed in the amount of $10,000, all inclusive.

“M. Catzman J.A.”

“John Laskin J.A.”

“J. C. MacPherson J.A.”