CITATION: O’Brien v. Blue Heron Co-operative Homes Inc., 2018 ONSC 2159
COURT FILE NO.: 17-2315
DATE: 2018/04/04
SUPERIOR COURT OF JUSTICE
Divisional Court
RE: Stephen M. O’Brien, Moving Party (Appellant)
AND
BLUE HERON CO-OPERATIVE HOMES INC., MICHELLE BAINBRIDGE, LUC ARVISAIS, CORINA GOLD, CÉLINE CARRIÈRE, CO-OPERATIVE HOUSING FEDERATION OF CANADA and CO-OPERATIVE HOUSING ASSOCIATION OF EASTERN ONTARIO (Respondents)
BEFORE: Justice A. Doyle
COUNSEL: Self represented
Neil Milton, Counsel appearing for the Respondents
HEARD: April 3, 2018
ENDORSEMENT
Overview
[1] This matter arises out of an action commenced by the Appellant in Small Claims Court. The Respondents’ motion to strike the statement of claim was heard by Deputy Judge Dwoskin (DJ Dwoskin) who struck the bulk of the statement of claim save and except the defamation claim. The Appellant appealed to Divisional Court and brought a judicial review application regarding DJ Dwoskin’s order for costs.
[2] The Respondents then brought a motion before Smith J. for security for costs. Justice Smith ordered $10,000 of security for costs in total for the Respondents and he also ordered costs against the Appellant. (Justice Smith’s Order)
[3] The Appellant brought a motion pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, C. C.43 (“CJA”) with respect to the Justice Smith’s Order.
[4] Section 21(5) states:
“A panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion.”
[5] The Appellant moves for the following orders:
− A Stay of the Justice Smith’s Order;
− A consolidation hearing so that his motion for reconsideration of Justice Smith’s Order and his appeal of Deputy Judge Dwoskin’s (DJ Dwoskin) Order and the judicial review of DJ Dwsokin’s costs order are heard by one panel;
− Dispensing with appeal books and compendium for the appeal;
− Dispensing with transcripts for the appeal and the s. 21(5) motion; and
− Setting a deadline for the filing of the Respondent’s s. 21(5) written submissions.
[6] The Respondent consents to a stay of Justice Smith’s Order and dispensing with transcripts as there was no viva voce evidence at the motion.
[7] On consent, the parties agree to a stay of the defamation proceedings in Small Claims Court pending exhaustion of all of the Appellant’s possible appeals or judicial reviews.
Brief Background
Should there be a consolidation of the three matters?
[8] The Appellant is moving for this order in good faith. He wishes to minimize the court appearances, streamline the process and reduce the number of copies of documents that must be filed at the court hearings.
[9] Nevertheless, I decline to grant this order as it would render Justice Smith’s order moot. The s. 21 (5) motion for a reconsideration of Justice Smith’s order should be determined before the appeal is heard. If the Appellant is not successful then, Justice Smith’s decision will stand. The purpose of a security for costs order is set out in Rule 61.06. Justice Smith found that the appeal was frivolous and vexatious and that the Appellant had $1,800 on unpaid costs for which he is paying $55 per month, and he found there was good reason for him to believe that the Appellant did not have sufficient assets to pay any appeal costs.
[10] To postpone the s. 21(5) motion to the date of the hearing of the appeal and judicial review would render Rule 61.06 meaningless. This is not the intent of the legislature. It is meant to ensure that the Appellant provides security for costs in the event that the Respondents are successful on the appeal which a Judge has found to be frivolous and vexatious.
[11] The Respondents do not object that the judicial review and appeal be heard at the same time. I so order as it is an efficient and expedient manner to deal with this appeal.
Should there be a dispensation of appeal books and compendiums?
[12] I agree with the Respondents’ that it is premature to determine whether the required materials pursuant to the Rules of Civil Procedure for the appeal should be dispensed with. This can be determined after the s. 21(5) motion is completed.
Timelines for the filing of the Respondent’s materials for the s. 21(5) Motion
[13] The Respondent indicates that they were not able to file their responding materials to the s. 21(5) motion as they were preparing for this motion.
[14] The Court grants an extension of filing to 28 days from the date of this order, i.e. May 2, 2018 because:
− the Court would benefit from both parties’ materials when determining the s. 21(5) motion;
− the Court notes that the Respondent had to deal with this motion which raised a number of procedural issues which had to be addressed by a factum and book of authorities; and
− the Appellant has not demonstrated any prejudice in obtaining their materials at a later date.
[15] Costs are reserved.
Justice A. Doyle
Date: 2018/04/04
CITATION: O’Brien v. Blue Heron Co-operative Homes Inc., 2018 ONSC 2159
COURT FILE NO.: 17-2315
DATE: 2018/04/04
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RE: Stephen M. O’Brien, Moving Party (Appellant)
AND
BLUE HERON CO-OPERATIVE HOMES INC., MICHELLE BAINBRIDGE, LUC ARVISAIS, CORINA GOLD, CÉLINE CARRIÈRE, CO-OPERATIVE HOUSING FEDERATION OF CANADA and CO-OPERATIVE HOUSING ASSOCIATION OF EASTERN ONTARIO
BEFORE: Justice A. Doyle
COUNSEL: Self represented
Neil Milton, Counsel for the Respondents
HEARD: April 3, 2018
ENDORSEMENT
Justice A. Doyle
Released: 2018/04/04