CITATION: Yazdani v. Ezzati, 2015 ONSC 7262

DIVISIONAL COURT FILE NO.: CV-14-3239

DATE: 20151120

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JUSTICE F. DAWSON

BETWEEN:

SHOKOOFEH YAZDANI

Christopher Morrison and Paul Cahill, as agents for Grillo Barristers, for the Plaintiff (Appellant)

Plaintiff (Appellant)

• and -

RICHARD EZZATI, ROYA ARYAIE, TUYEN THAN TRAN and VAN S. PHAM

Richard Campbell and Michael Chadwick for the Defendants, R. Ezzati and R. Aryaie

Mark Wilson for the Defendants, T. Tran and V. Pham

Defendants (Defendants)

HEARD: in writing

APPLICATION FOR LEAVE TO APPEAL AN INTERLOCUTORY ORDER

Application for Leave to Appeal an Interlocutory Order

1The plaintiff seeks leave to appeal to the Divisional Court the decision of MacKenzie J. dated August 5, 2015 and amended August 25, 2015 as to amount only, where it was ordered that the plaintiff post security for costs of the defendants Richard Ezzati and Roya Aryaie in the amount of $10,497.37.

2The plaintiff’s action is for damages for personal injuries sustained in a motor vehicle accident which occurred in Mississauga on July 22, 2012. The plaintiff resides in California and the defendants named above persisted in a motion for security for costs pursuant to R. 56.01 which resulted in the order.

3Evidence was filed on the motion that the plaintiff had obtained “After the Event Legal Expense Insurance” (ATE Insurance). The insurance policy was issued by DAS Canada. The plaintiff argued on the motion that the existence of this policy should be considered the equivalent to an asset held by the plaintiff in Ontario resulting in the dismissal of the motion for security for costs. At the request of MacKenzie J. the policy was filed and additional written submissions were provided by the parties. The moving parties raised concerns about certain terms and conditions of the policy. They noted that the policy provided for payment of any indemnification for costs to counsel for the plaintiff and submitted that they had no ability to enforce payment to the defendants of any amounts so paid. Counsel for the plaintiff then made an undertaking to address this concern.

4Other arguments unrelated to the existence of the ATE Insurance were also advanced. They related to whether the meritorious nature of a plaintiff’s claim can overcome any lack of evidence about a plaintiff’s financial means and corresponding ability to pursue a case if an order for security for costs is made.

5MacKenzie J. outlined the various arguments advanced in connection with the ATE Insurance policy in the course of his 12 page typed endorsement. He fully and correctly set out the test to be applied in determining whether an order for security for costs should be made. He noted that on a motion for security for costs the court has a broad discretion and will carefully scrutinize the quality and sufficiency of the plaintiff’s assets and whether they are genuine assets. In view of this it is very difficult to accept, as the applicant in essence submits, that MacKenzie J. then ignored the existence of the ATE Insurance in deciding to order security for costs. While MacKenzie J. did not specifically address the arguments made about the suitability of the terms of the policy, the submission that he did not take the existence of the insurance into account as a relevant factor is untenable in these circumstances. I note that the applicant has not raised as a potential ground of appeal that the reasons of MacKenzie J. are inadequate per se.

6The foregoing impacts on both aspects of the test for granting leave to appeal as set out in Rule 62.02(4). As I am of the view that the motions judge treated the ATE Insurance policy as a factor to be taken into account with all other relevant factors, it seems to me he was acting in a manner consistent with the approach taken by Smith J. in Alary v. Brown, 2015 ONSC 3021. Consequently, I am unable to accept the applicant’s submission that that case represents a conflicting authority to the decision in the present case. The fact that the terms of the policy in Alary v. Brown were somewhat different than in the case at bar does not impact the issue. The point is that in the present case and in Alary v. Brown the motions judges obviously considered the ATE Insurance as one factor to be taken into account.

7Turning to the second branch of the test, I am not persuaded that there is good reason to doubt the correctness of the decision. The test articulated and applied by the trial judge is the long recognized test. As mentioned previously, that test allows for numerous factors, including ATE Insurance, to be taken into account. The trial judge demonstrated in his reasons that he was aware of the various issues raised by the parties in relation to the insurance policy. Again, there is no submission that the reasons provided are so inadequate as to give rise to an error on that account alone.

8In view of the foregoing, and despite the fact that I see the potential merit in obtaining some appellate commentary on the use of such insurance policies in the promotion of access to justice, I conclude this application for leave to appeal should be dismissed.

The Fresh Evidence Issue

The Fresh Evidence Issue

9In support of the application for leave to appeal counsel for the plaintiff filed an affidavit from Nicholas Robson, the manager of “ATE & Special Initiatives” for DAS Canada. The affidavit describes DAS Canada’s relationship with its parent corporations, attests to its ability to satisfy any call on the policy and describes the emergence of ATE Insurance in the United Kingdom following recommendations for reform of the civil justice system related to access to justice. Additional evidence about the emergence of this form of insurance and the role it may play in promoting access to justice is included.

10The respondents on this application take issue with the admissibility of this evidence. I have come to the conclusion that I should not take it into account. There is authority for the proposition that fresh evidence may not be filed on an application for leave to appeal. See Sirdi Sai Sweets et al. v. McCarthy Tetrault et al., 2015 ONSC 3060 (Div. Ct.) and SLMsoft.com Inc. v. Rampart (2005), 2005 41549 (ON SCDC), 78 O.R. (3d) 521 (Div. Ct.).

11In addition, it seems to me that this evidence could have been made available to the motions judge by the application of due diligence. Therefore, the evidence fails to meet the first requirement for the admission of fresh evidence on appeal.

Costs

Costs

12The respondents on this application should have their costs. If the parties are unable to agree on quantum they shall exchange costs submissions and provide them to me within 30 days.