CITATION: LANGELIER and PERRON 2010 ONSC 6174
COURT FILE NO.: DC 10-216
DATE: 2010/11/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gary Langelier,
Derek Collins, appearing for the moving parties/respondents to the appeal
Plaintiff/Appellant
- and -
Tracey Perron, Trustee of the Estate of Glen Perron and 1541021 ONTARIO INC.
Keith R. Millikin, appearing for the respondent to the motion/appellant
Defendants/Respondents to the appeal
HEARD: Long motion heard on: November 8th, 2010
REASONS FOR JUDGMENT
PARAYESKI J.
[1] The defendants were successful at a trial before Mr. Justice Crane. The plaintiff has appealed. The defendants seek security for costs of the appeal pursuant to Rule 61.06 of the Rules of Civil Procedure.
[2] Counsel for both parties agree that the applicable tests to be applied by me are those enunciated in sub-paragraph 1 (a) of that Rule, namely:
i) whether there is good reason to believe that the appeal is frivolous and vexatious; and
ii) whether the appellant has insufficient assets in Ontario to pay the costs of the appeal.
[3] It is apparent from Mr. Justice Crane’s reasons for judgment and the plaintiff’s own affidavit in response to this motion that he lacks the relevant assets. Accordingly, I turn to the question of whether I am satisfied, based upon the evidence before me, that the test set out at point i) above has been met.
[4] As is confirmed in the Ontario Court of Appeal decision in Schmidt v. Toronto-Dominion Bank, 1995 3502 (ON CA), 1995 CarswellOnt 154, 37 C.P.C. (3d) 383, 24 O.R. (3d) 1, 82 O.A.C. 233, the test is not so rigorous as to require satisfaction that the appeal is actually totally devoid of merit. “Good reason”, accordingly, can be found by applying a lesser standard.
[5] In this matter, Mr. Justice Crane’s ruling makes it clear that he found the plaintiff not believable. Additionally, the trial judge rejected the opinions of the plaintiff’s expert witness. Given that the trial was largely about a series of scantily documented transactions and the competing views of expert witnesses, this is highly significant.
[6] Counsel for the plaintiff argues that because Mr. Justice Crane did not expressly comment in his decision upon the evidence of several witnesses who were said to corroborate the plaintiff’s version of the facts, his ruling on credibility is vulnerable. I reject this. Obviously, the trial judge heard those witnesses, and came to his view on credibility notwithstanding. He need not have parsed their evidence in his reasons in order to do so.
[7] I similarly reject the plaintiff’s assertion that his appeal is meritorious because he also alleges that the trial judge misapplied the law on several issues, including an alleged failure to properly consider the application of the Ontario Business Corporations Act and the doctrine of quantum meruit. Review of the reasons as a whole (as opposed to selectively referring to isolated paragraphs) makes it clear that the law appears to have been considered carefully and applied properly to the facts as found.
[8] In his Chambers decision in Pickard v. London (City) Police Services Board, 2010 ONCA 643, 2010 O.J. No. 4169, Mr. Justice of Appeal Watts, citing the Schmidt v. Toronto-Dominion Bank case noted above, points out that my having “good reason to believe” that the appeal is frivolous and vexatious does not demand that I reach a definitive conclusion or make an affirmative finding or actually determine what the Court hearing the appeal will do. I do none of those things. Instead, I simply come to be of the opinion that the appeal has little prospect of success. That makes it frivolous. It is also vexatious in the sense that it delays and seeks to preclude the defendants from recovering what little they may net after what was a four day trial over very little money.
[9] An order for security for costs is appropriate in the circumstances of this case. I reject the plaintiff’s submission that I need to have reviewed in their entirety the as-yet-unavailable transcripts of the trial in order to have come to my conclusions legitimately.
[10] As to the amount of security to be paid into Court, the defendants suggest $10,000.00. Counsel for the plaintiff concedes that this amount is likely less than the costs that either side will incur on the appeal. It is a fair and appropriate amount, and I order the plaintiff to pay it into Court for the purpose of securing the defendants’ costs of the appeal. In so doing, I am not unmindful of the plaintiff’s submission that this might well stop his appeal “in its tracks”. I am also mindful of Mr. Justice Crane’s observation that the plaintiff’s impecuniosity was not caused by the “events forming the basis of this litigation”.
[11] Order accordingly.
PARAYESKI J.
Released: November 9, 2010
CITATION: LANGELIER and PERRON 2010 ONSC 6174
COURT FILE NO.: DC 10-216
DATE: 2010/11/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gary Langelier,
Plaintiff/Appellant
- and -
Tracey Perron, Trustee of the Estate of Glen Perron and
Defendants/Respondents to the Appeal
REASONS FOR JUDGMENT
PARAYESKI J.
Released: NOVEMBER 9, 2010