COURT OF APPEAL FOR ONTARIO
Tulloch C.J.O., Gillese and Roberts JJ.A.
BETWEEN
Dr. Hocine Benbella
Appellant (Responding Party)
and
The National Dental Examining Board of Canada
Respondent (Moving Party)
Counsel: Monica Song and Rachel Kuchma, for the moving party Dr. Hocine Benbella, acting in person
Heard: in writing
REASONS FOR DECISION
1The National Dental Examining Board of Canada (the “Moving Party”) moves under r. 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Motion”) to amend the order of this court dated December 14, 2022 (the “Order”). Dr. Benbella was the appellant in this matter and is the responding party to the motion. Dr. Benbella has refused to consent to the Motion.
2For the reasons that follow, the Motion is granted.
Background in Brief
3Dr. Benbella brought an application in the Superior Court of Justice seeking injunctions requiring the Moving Party to hear his appeal from his failing grades on certain of the Moving Party’s examinations. On February 2, 2022, Akbarali J. struck the application, having found that it disclosed no reasonable cause of action because the substantive right of appeal which Dr. Benbella sought did not exist under the Moving Party’s bylaws (the “SCJ Order”). The SCJ Order also required Dr. Benbella to pay the Moving Party the all-inclusive amount of $9,000 in costs, payable within thirty days of the date of the SCJ Order (the “SCJ Costs Order”).
4Dr. Benbella appealed the SCJ Order to this court. The Moving Party then brought a motion seeking $18,000 as security for costs. That motion was granted. By order dated August 10, 2022, Dr. Benbella was required to pay the sum of $18,000 into court, as security for costs, failing which the Registrar was directed to dismiss the appeal. Dr. Benbella made the requisite payment into court.
5This court heard the appeal and made the Order dismissing it. The Order also specified that costs of the appeal in the amount of $9,000 all-inclusive were to be paid to the Moving Party out of the monies held as security for costs.
6Because Dr. Benbella had not paid the SCJ Costs Order, the Moving Party sought to recover those costs from the monies held as security for costs. However, Dr. Benbella does not consent to that. The SCJ Costs Order remains unpaid.
7The Moving Party then brought this Motion to amend the Order to direct that the $9,000 SCJ Costs Order be paid to it out of the monies held as security for costs.
Conclusion and Disposition
8The Moving Party is entitled to payment of the SCJ Costs Order. A review of the record shows that the Moving Party’s intention in bringing the security for costs motion to this court was to obtain security for costs of the underlying application as well as for costs of the appeal. It is entitled to have the SCJ Costs Order paid from the remaining monies held as security for costs.
9An amended order shall go in accordance with the draft amended order at pages 65-66 of the Moving Party’s Motion Record, with the addition of an order for costs of this Motion, fixed at of $2,000 all-inclusive, in favour of the Moving Party.
“M. Tulloch C.J.O.”
“E.E. Gillese J.A.”
“L.B. Roberts J.A.”