Nicolaou v. McLennan, 2014 ONSC 2803

CITATION: Nicolaou v. McLennan, 2014 ONSC 2803

COURT FILE NO.: DC-12-70-00

DATE: 2014 05 05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ARES NICOLAOU V. MCLENNAN & ASSOCIATES, 124155 CANADA INC. and ALEC MCLENNAN

BEFORE: EMERY J

COUNSEL: Ares Nicolaou, In Person for the Plaintiff (Respondent)

Alec McLennan, In Person for the Defendants (Appellants)

HEARD: April 16, 2014

ENDORSEMENT

1There are two motions before the court arising from the appeal decision of Justice Skarica released on March 15, 2013. Justice Skarica gave his decision sitting as a single judge of the Divisional Court on appeal of a Small Claims judgment. The Small Claims Court had awarded judgment to Mr. Nicolaou as the plaintiff in the amount of US $20,000, which translates into $21,885.40 in Canadian funds. The deputy judge had dismissed the defendants’ claim for $20,000 made by Mr. McLennan and his law firm for legal fees rendered to Mr. Nicolaou and his family on an unrelated matter for which the defendants claimed set off against the main claim.

2On Mr. McLennan’s appeal, Justice Skarica allowed the defendants’ claim in the amount of $20,000, subject to any reduction of that amount resulting from an assessment of Mr. McLellan’s accounts. Justice Skarica also ordered Mr. Nicolaou to pay $5,000 in costs for the appeal to Mr. McLennan and his firm.

3Mr. Nicolaou brings this motion in the Divisional Court file for an order to set aside Justice Skarica’s order on the basis that he did not receive notice of the hearing date for the appeal. He did not appear on the appeal as a result. Mr. McLellan opposes the motion, and brings his own motion seeking an order that Mr. Nicolaou pay security for costs in the amount of $20,000 if Justice Skarica’s order is set aside. He seeks security for costs as Mr. Nicolaou now resides in London, United Kingdom. Mr. McLennan alleges that Mr. Nicolaou has insufficient assets in Ontario to pay the costs of the appellants ordered by Justice Skarica, and if the order of Justice Skarica is set aside, the rehearing of the appeal.

4I find that I do not have jurisdiction to hear either motion. As this motion is made to me as another single judge of the Divisional Court, I must find my jurisdiction under Rule 61.16 regarding motions to an appellate court. Rule 61.16(1) provides that Rule 37 applies to motions in an appellate court, with necessary modifications. Rule 37.14(1) is available to a person who fails to appear on a motion through accident, mistake or insufficient notice. I conclude by the reference to a motion as the event where the party failed to appear, and the absence of a reference to an appeal, that Rule 37.14(1) does not apply to the current circumstances. Consequently, I do not have jurisdiction to set aside or vary Justice Skarica’s appeal order under Rules 61.16(1) and 37.14.

5Rule 61.16(6) allows a person to seek an order to set aside or vary the order of a judge of an appellate court under sections 7(5) or 21(5) of the Courts of Justice Act. Of those two sections, section 21(5) applies to the Divisional Court but only to allow a panel of the Divisional Court, on motion, to set aside or vary the decision of a judge who hears and determines a motion. In this case, Mr. Nicolaou seeks to set aside an appeal order.

6Accordingly, I find that I have no jurisdiction to grant Mr. Nicolaou’s motion to set aside the order made by Justice Skarica. Instead, his options are limited to making a motion for leave to appeal to the Court of Appeal under section 6(1) of the Courts of Justice Act.

7If I am wrong in concluding that I have no jurisdiction, I refer to the decision of a full panel of the Divisional Court in Griffin v. O’Brien, [2002] O.J. No. 4966. In that case, the appellant Griffin had not appeared when the appeal was heard. He moved before the Divisional Court to set aside the endorsement of Regional Senior Justice Blair (as he then was) who had dismissed the appeal. The appellant Griffin based his motion on what seemed to him to be the confusing nature of the notice of hearing, although he conceded that he had made a mistake when he did not ascertain the meaning of the words “listed for hearing February 12, 2001” in the notice. Justice Then, writing for the panel, considered the jurisdiction given to the Divisional Court under Rule 37.14(6) under such circumstances. While expressing some doubt as to the applicability of the subrule as it appears to deal only with orders made on motions and in terms of orders made by an appellate court, Justice Then was prepared to assume that the Divisional Court had inherent or ancillary jurisdiction to set aside the subject order in the exercise of the court’s discretion when the merits of the appeal had not been heard. In Griffin, the Divisional Court declined to exercise this discretion, explaining that:

6 In our view, this is not an appropriate case to exercise any discretion this court may have to set aside the order of the Divisional Court having regard to all the circumstances including the excuse offered for non-appearance, the nature of the appeal, the non-payment of arrears and of several costs orders including that imposed by Blair R.S.J.

8In the case before me, Mr. Nicolaou provided Mr. McLennan and perhaps the court (although it is not clear) on January 19, 2012 with his “new mailing address in Canada” as 363-24 Sanford Avenue, Hamilton, ON, L8L 5Y9, and his mailing address in the UK as “5-100 Westminister Bridge Road (Flat 5), London, SE1 7XA”.

9On May 30, 2012, Mr. McLennan obtained an order for substituted service from Deputy Judge Bobesich of the Small Claims Court. He obtained this order because he claimed he had ongoing difficulties with serving Mr. Nicolaou. The order provided for substituted service on Mr. Nicolaou as plaintiff by ordinary mail at the addresses set out in the affidavit in support of that motion. The addresses for Mr. Nicolaou set out in the supporting affidavit were again 363-24 Sanford Avenue, Hamilton, ON, L8L 5Y9 and 5-100 Westminister Bridge Road (Flat 5), London, UK, SE1 7XA.

10On June 11, 2012, Mr. Nicolaou sent an email to Mr. McLennan giving his new mailing address in United Kingdom as 8 Swan Street, Flat 19, London, SE1 1BF, United Kingdom and stating that his mailing address remained 363-24 Sanford Avenue, Hamilton, ON, L8L 5Y9.

11The Small Claims Court trial before Deputy Judge Barkycky proceeded on July 5, 2012. Reasons were sent to Mr. Nicolaou at the addresses specified in the order for substituted service on September 4, 2012. There is no indication in the motion materials that he did not receive the decision of the court.

12Mr. McLennan has deposed that he served Mr. Nicolaou with the notice of appeal at those addresses specified in the order for substituted service.

13Mr. McLennan deposes that Mr. Nicolaou acknowledged receipt of the notice of appeal.

14I find on the materials before me that Mr. Nicolaou had ample opportunity to provide his new mailing address of 8 Swan Street, Flat 19, London SE1 1BF, United Kingdom to the Burlington Small Claims Court office prior to the trial on July 5, 2012. Similarly, Mr. Nicolaou had ample opportunity to contact the Divisional Court office once he had received the notice of appeal to make sure that the court office had his new address in London and other contact information for him on file. I not only find that he had ample opportunity to keep these court offices up to date with current information, I also find that he had an obligation to do so as a litigant.

15There is evidence before the court that Mr. Nicolaou received the Small Claim decision and later the notice of appeal after 8 Swan Street, Flat 19 in London, England became his new address. There is also evidence before the court that one Sasha Hundal had spoken to him in London a week before the date for the appeal and that Mr. Nicolaou had indicated he would be traveling to Canada the following week “to deal with the litigation”. The complaint Mr. Nicolaou now makes about not knowing of the hearing date for the appeal rings somewhat hollow given his failure to make his own inquiries.

16I also note that Justice Skarica’s order does not disturb the judgment granted by the Small Claims Court judge to Mr. Nicolaou on the main claim. The order on appeal only allows the defendants’ claim as a set off to that judgment, subject to any reduction of the amount on a pending assessment of the McLennan fees. I see no evidence filed on the motion about the status of that assessment I would have expected Mr. Nicolaou to provide. I therefore infer that he has not approached that assessment with the diligence one would expect of a client challenging a legal bill.

17I therefore decline to exercise any residual discretion I may have under Rule 61 or Rule 37.14.

18Mr. Nicolaou’s motion is therefore dismissed.

19Mr. McLennan has brought a cross-motion seeking security for costs. Mr. McLennan requested security for costs if I set aside Justice Skarica’s order as a term of that order. Since Mr. Nicolaou has not succeeded on his motion, Mr. McLennan shall not succeed on his.

20Even if I did set aside Justice Skarica’s order, I would not order security for costs. Mr. Nicolaou would be responding to Mr. McLennan’s appeal of the judgment below as the successful defendant to the defendants’ claim. There is a line of authority summarized at paragraph 13 of Donaldson International Livestock Inc. v. Znamensky Selekcionno-Gibridny Center LLC, 2010 ONCA 137 that articulates the principle no party should be made to give security for costs for simply defending itself. I would say this applies to a respondent on the appeal of a dismissed counterclaim.

21I am inclined to make no order as to costs on these motions. However, if Mr. McLennan wishes to seek costs, I would ask for his written submissions, not to exceed three (3) type-written pages in double-spaced format, by May 12, 2014, and written submissions in response from Mr. Nicolaou, not to exceed three (3) type-written pages in double-spaced format, by May 19, 2014.

Emery J