Godoy v. Yallen, 2011 ONSC 6999
DIVISIONAL COURT FILE NO.: 327/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
JOSE GODOY, MARIA GODOY and MELANIE GODOY
Plaintiffs
(Respondents)
– and –
ARTHUR I. YALLEN, PETER D. WOLOSHYN and YALLEN ASSOCIATES
Defendants
(Appellants)
J. Gardner Hodder, for the Plaintiffs (Respondents)
William S. Chalmers, for the Defendants (Appellants)
HEARD at Toronto: November 23, 2011
ORAL REASONS FOR JUDGMENT
DAMBROT J. (orally)
1The plaintiffs brought an action against the defendants for solicitor’s negligence. The defendants brought a motion for security for costs. Master Abrams made the order sought. On appeal, Greer J. vacated the order for security for costs against two of the plaintiffs and reduced the quantum against the third. The defendants seek leave to appeal to the Divisional Court.
2In argument the defendants focused on four alleged errors:
(i) the Appeal Judge erred with respect to the test of impecuniosity because she failed to consider the extent of the ability of two of the plaintiffs to borrow funds;
(ii) the Appeal Judge erred in reducing the quantum of security for costs against the third plaintiff solely on the basis of her view of what quantum of damages would be awarded for the claim;
(iii) the Appeal Judge erred in relying on what she found to be inadequate evidence of the third plaintiffs’ financial needs and then requiring him to file a better affidavit after her decision was rendered; and
(iv) the Appeal Judge erred in applying the victim’s Bill of Rights.
3I am of the view that the decision of the appeal judge in relation to the first two matters is inconsistent with other decisions of this Court, and that there is good reason to doubt the correctness of the decision in relation to alleged error three and four.
4Despite the fact that the decision in relation to issue one is inconsistent with other decisions of this Court, I would not grant leave on this issue since the question of the plaintiffs’ ability to borrow money was apparently not raised before either the Master or the Appeal Judge. Accordingly, it is not desirable to grant leave on this issue.
5I do believe that it is desirable to grant leave on the second issue to resolve the question of whether or not the approach to the quantification of security for costs taken by the Appeal Judge was correct.
6With respect to the third and fourth issues, I consider these matters to be of sufficient importance that leave should be granted, but with this caveat. Since I would not grant leave on issue one, that leaves the finding of impecuniosity in respect of Maria and Melanie Godoy unassailable. The second and third issues have nothing to do with Maria and Melanie Godoy, while pursuing the fourth issue in respect of impecunious plaintiffs could have no effect on the outcome of the matter in respect of them. As a result, leave on these three issues is not granted as against Maria and Melanie Godoy but is granted in respect of Jose Godoy.
7To be clear, leave to appeal is refused with respect to Maria and Melanie Godoy. Leave to appeal is granted with respect to Jose Godoy in relation to the second, third and fourth alleged errors. Costs reserved to the Panel of the Divisional Court hearing the appeal.
DAMBROT J.
Date of Reasons for Judgment: November 23, 2011
Date of Release: December 7, 2011
CITATION: Godoy v. Yallen, 2011 ONSC 6999
DIVISIONAL COURT FILE NO.: 327/11
DATE: 20111123
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT J.
BETWEEN:
JOSE GODOY, MARIA GODOY and MELANIE GODOY
Plaintiffs
(Respondents)
– and –
ARTHUR I. YALLEN, PETER D. WOLOSHYN and YALLEN ASSOCIATES
Defendants
(Appellants)
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: November 23, 2011
Date of Release: December 7, 2011