CITATION: Penola Shipping Limited v. One Ocean Expeditions Inc., 2011 ONSC 4672
DIVISIONAL COURT FILE NO.: 367/11
DATE: 20110803
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
PENOLA SHIPPING LIMITED
Plaintiff
(Appellant)
– and –
ONE OCEAN EXPEDITIONS INC. and
ANDREW PROSSIN
Defendants
(Respondents)
Timothy J. Law and Assunta Mazzotta, for the Plaintiff (Appellant)
Sandra L. Secord, for the Defendants (Respondents)
HEARD at Toronto: August 3, 2011
lederman j. (ORALLY)
[1] The plaintiff moves for leave to appeal the order of Belobaba J., wherein he ordered the continuation of the Mareva injunction on condition that the plaintiff post security of $50,000 for the defendants’ costs by July 15, 2011. The plaintiff failed to do so and the Mareva injunction was dissolved and a stay was later denied by Belobaba J. The plaintiff seeks leave to appeal that decision as well.
[2] As there are no conflicting decisions, the plaintiff seeks leave to appeal only under Rule 62.02(4)(b), namely, that there is good reason to doubt the correctness of the orders and that the proposed appeal involves matters of general public importance.
[3] Belobaba J., in imposing the term that he did was exercising his discretion under s.101(2) of the Courts of Justice Act, to the effect that he could include such terms as he considered just.
[4] In 80 Wellesley Street East v. Fundy Bay, 1972 535 (ON CA), [1972] 2 O.R. 280, the Court of Appeal made it clear that a Superior Court Judge has both inherent jurisdiction and jurisdiction under the now s.101(2) of the Courts of Justice Act to require, as in that case, the furnishing of adequate security to order the expunging of an assignment of an agreement of purchase and sale on title.
[5] Mr. Law argued that there is in place under s.131 of the Courts of Justice Act and Rule 56, a regime for ordering security for costs and that must be followed and is not superseded by s.101 of the Courts of Justice Act.
[6] As the Court of Appeal pointed out, s.101 of the Courts of Justice Act gives the Court all of the powers that are necessary to do justice between the parties when an interlocutory injunction is granted and that includes posting of security when necessary.
[7] Therefore, I find that Belobaba J. had the jurisdiction to impose the term that he did and he had a good basis for so doing, given that the plaintiff, a foreign resident and admittedly insolvent, gave an undertaking as to damages that was worthless.
[8] I therefore have no good reason to doubt the correctness of Belobaba J.’s order, nor does the order raise any issue of public importance to the general administration of justice. The matter is of importance only to the immediate parties.
[9] Therefore, the test under Rule 62.02(4)(b) has not been met and the motion is dismissed. There is no need to consider the motion for a stay.
COSTS
[10] The respondents will have their costs fixed at $5,000 all inclusive, payable within thirty days.
LEDERMAN J.
Date of Reasons for Judgment: August 3, 2011
Date of Release: August 9, 2011
CITATION: Penola Shipping Limited v. One Ocean Expeditions Inc., 2011 ONSC 4672
DIVISIONAL COURT FILE NO.: 367/11
DATE: 20110803
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN J.
BETWEEN:
PENOLA SHIPPING LIMITED
Plaintiff
(Appellant)
– and –
ONE OCEAN EXPEDITIONS INC. and
ANDREW PROSSIN
Defendants
(Respondents)
ORAL REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: August 3, 2011
Date of Release: August 9, 2011