Court File and Parties
CITATION: Stoneforest Int’l Canada v. Chan, 2010 ONSC 1715
DIVISIONAL COURT FILE NO.: 592/09
DATE: 20100319
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
STONEFOREST INTERNATIONAL CANADA INC. Plaintiff (Appellant)
– and –
EVAN YANAGI CHAN and 1467481 ONTARIO INC. Defendants (Respondents)
Xiaoyu Li, for the Plaintiff (Appellant)
Peter P. Chang, for the Defendants (Respondents)
HEARD at Toronto: March 19, 2010
Reasons for Judgment
LEDERMAN J. (orally)
[1] The respondents move for security for costs of the appeal on the grounds that the appeal is frivolous and vexatious and that the appellant company has insufficient assets in Ontario to pay the respondents’ costs.
[2] Xiaoyu Li, a shareholder and officer of the appellant company was given leave to represent it on this motion.
[3] The appellant succeeded at trial on the issue of liability of the respondents but was awarded only $536.55 plus $175.00 costs by the Deputy Judge of the Small Claims Court.
[4] The appellant appeals on the ground that the Deputy Judge misapprehended the evidence and should have awarded higher damages for the losses incurred by the appellant company. In addition, in the Notice of Appeal the appellant also alleges errors in the failure to award interpreter’s costs and in calculating the interest that was owed.
[5] In the earlier proceeding brought by the appellant against Keisuke Parco, the Deputy Judge in that case found that Ms. Chan was using misleading business cards and purchase orders to falsely represent that she was an agent of Keisuke Parco and was authorized to purchase fabric from the appellant when in fact Ms. Chan had no actual or apparent authority from Keisuke Parco to do so. Given that deception and its possible effect on Ms. Chan’s credibility, it cannot be said that the appellant’s appeal in this case is frivolous.
[6] Moreover, the respondents have not filed any breakdown of projected costs of the appeal for which they seek security. No particular amount is even sought. There is no evidence that the amount of costs will be anything but modest in any event.
[7] Although the appellant company may not have any real property in Ontario, there is no evidence that it has no assets of any kind to cover the costs of the respondents.
[8] There is a discretion as to whether to award security for costs. In balancing the possible monetary risk to the respondents against the fact that the appeal is not devoid of merit, I do not believe that this is a proper case for security for costs.
[9] The motion is therefore dismissed.
COSTS
[10] In the circumstances, there shall be no order as to costs.
LEDERMAN J.
Date of Reasons for Judgment: March 19, 2010
Date of Release: March 24, 2010
CITATION: Stoneforest Int’l Canada v. Chan, 2010 ONSC 1715
DIVISIONAL COURT FILE NO.: 592/09
DATE: 20100319
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
STONEFOREST INTERNATIONAL CANADA INC. Plaintiff (Appellant)
– and –
EVAN YANAGI CHAN and 1467481 ONTARIO INC. Defendants (Respondents)
REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: March 19, 2010
Date of Release: March 24, 2010