COURT FILE NO: 251/08

DATE: 20091118

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: Dr. Albert Ross Deep, appellant/responding party

A N D: The College of Physicians and Surgeons of Ontario, respondent/moving party

BEFORE: KARAKATSANIS J.

COUNSEL: Dr. Albert Ross Deep, the appellant/ responding party, in person Michelle Brodey, for the respondent/moving party

HEARD: November 17, 2009

E N D O R S E M E N T

[1] The respondent/moving party brings a motion to dismiss this appeal dated May 2008 pursuant to Rule 61.96(2) and the Order of Carnwarth J. dated Dec 10, 2008. Carnwath J. ordered that the appeal be stayed until the appellant furnished $20,000 as security for costs; and that if security was not satisfied by March 31, 2009, “the College may move on notice to dismiss the appeal.” He relied upon the fact that the appellant had ignored court orders for costs for over 4 years. Carnwarth J. made a second Order relating to the appeal and ordered that the appellant pay costs of $3,000.

[2] The appellant served a Notice of Motion to set aside these Orders on March 30, 2009 but has not served a Motion Record. He advised me that he decided it would be more efficient to bring a collateral action. The respondent in this appeal/defendant in that action has moved to strike that action. Although in his factum the appellant asks that the Order be stayed or the appeal be stayed pending the outcome of the collateral action against the College, he has not brought a motion requesting such relief.

[3] The appellant has not furnished the security and has not paid the costs of $3,000 awarded by Carnwath J. The respondent initially relied upon the non payment of 7 other costs awards in this motion. However, counsel conceded in submissions that as those costs orders arose in other proceedings, they could not serve as the basis of dismissing this appeal under Rule 57.03(2).

[4] The appellant submits that his appeal has substantial merit. Further, although he expressly denies he is impecunious, he states that payment of $20,000 as security for costs represents a huge burden for him. Finally, the appellant suggests that Rule 61.06(1) may not confer jurisdiction to the Divisional Court to order security for costs in an appeal from a quasi-judicial body.

[5] The issue of the merits of the appeal is not determinative of this motion to dismiss. Clearly, it is highly desirable that the appellant have his opportunity to pursue his appeal on the merits. However, the fact that there is a collateral action is not a proper basis upon which to resist or defer this motion. As well, while the appellant served a notice of appeal of the Order, it was served late and a motion record has not been provided as required. He has not posted the security for costs. Finally, his submission that there was no jurisdiction to make the order requiring security for costs has no merit. In all these circumstances, it is appropriate that the appeal be dismissed. See Susin v Susin [2008] O.J. No. 305 (Ont.C.A.)

[6] I am prepared to give the appellant one final limited opportunity to comply with the Order and post security for costs satisfactory to Accountant of the Superior Court of Justice in the amount of $20,000 by 3:00 p.m. November 26, 2009. If he fails to do so, the respondent may move before the Registrar without notice, and the Registrar shall dismiss this appeal on proof of non-compliance by affidavit evidence.

A. KARAKATSANIS J.

Released: