Court File and Parties

CITATION: O’Brien v. Blue Heron, 2018 ONSC 5501

DIVISIONAL COURT FILE NO.: 17-2315

DATE: 20180918

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: stephen o’brien, Appellant (Moving Party)

AND:

Blue heron co-operative homes inc., michelle bainsbridge, luc arvisais, corina gold, celine carriere, co-operative housing federation of canada and co-operative Housing association of eastern ontario, Respondents

BEFORE: Aston, Ellies, and Myers JJ.

COUNSEL: Stephen O’Brien, self-represented

Joseph Jebreen, for the Respondents Blue Heron Co-operative Homes Inc., Michelle Bainbridge, Luc Arvisais and Corina Gold

Neil Milton, for the Respondents Celine Carriere, Co-operative Housing Federation of Canada and Co-operative Housing Association of Eastern Ontario

HEARD at Ottawa: September 13, 2018

ENDORSEMENT

[1] Mr. O’Brien is the plaintiff in a Small Claims Court action. On June 22, 2017, Dwoskin D.J. struck parts of his statement of claim and dismissed all but one of his claims against the respondents. Mr. O’Brien is appealing that decision to this court.

[2] Within the context of that pending appeal, the respondents brought a motion for security for costs. The motion was heard by Smith J. in his capacity as a single judge of the Divisional Court. On December 17, 2017, he granted the relief sought, ordering Mr. O’Brien to pay $5,000 as security for costs for the “Blue Heron Respondents” and another $5,000 for the “Sector Respondents”.

[3] The matter now comes to this court for a review of that order pursuant to s. 21(5) of the Courts of Justice Act and Rule 61.16(6) of the Rules of Civil Procedure.

[4] We adopt the standard of review set out in Stamm Investments Limited v. Ryan, 2016 ONSC 6293 at para. 10. The reviewing panel should not interfere with the decision of the motion judge unless there is an error of law or a palpable and overriding error in fact finding. Moreover, a decision regarding security for costs is discretionary in nature and is to be afforded deference. See Yaiguaje v. Chevron Corporation, 2017 ONCA 827, at para. 20 and Susin v. Susin, 2018 ONCA 220, at para. 10.

[5] Smith J. correctly identified the issues on the motion before him[^1] and the legal test for an order for security for costs.[^2]

[6] In paragraphs 21-28 of his reasons, Smith J. explains why Mr. O’Brien’s appeal of the Small Claims Court decision cannot possibly succeed against the Sector Respondents. Section 31(a) of the Court of Justice Act does not afford jurisdiction for an appeal when the amount claimed against a defendant does not exceed $2500. We agree with his conclusion in that regard. Though the Sector Respondents have chosen not to move to have the appeal quashed as against them, s. 31(a) of the Courts of Justice Act is enough by itself to establish that the appeal is frivolous and vexatious as against those respondents.

[7] Smith J. went on to consider whether there was other “good reason to believe” Mr. O’Brien’s appeal is frivolous and vexatious regarding all the respondents. He referenced two leading authorities on the legal test.[^3] In the ensuing analysis,[^4] he concludes there is good reason to believe Mr. O’Brien’s pending appeal to this court is “completely without merit” and consequently frivolous and vexatious within the meaning of the rule. It was open to Smith J. to reach that conclusion, a conclusion of mixed fact and law, on the record before him. Mr. O’Brien has failed to identify any error on an extricable point of law, any misapprehension of material fact or other palpable and overriding error.

[8] The next conclusion, that there is good reason to believe the appellant has insufficient assets to pay a costs award, is well grounded on the evidence.

[9] Smith J. also recognized that satisfaction of the test in Rule 61.06(1)(a) was not the end of the analysis. In paragraphs 1, 18, 47 and 48 of his reasons he stated, then addressed, the overarching consideration of whether an order for security for costs would be just in the circumstances. His conclusion that “some security for costs” would be just is adequately explained and a reasonable exercise of his discretion. The words of Watt J.A. at para. 25 of Pickard v. London Police Services Board, 2010 ONCA 643, are especially apt in this matter: “To deny meritless claims is not to curtail access to justice, rather to facilitate access to justice by making room for legitimate claims.”

[10] There is no basis upon which to set aside or modify the order of December 14, 2017.

[11] Neither is there any basis upon which to set aside or modify the March 15, 2018 costs award on the motion.

[12] The motion is dismissed with costs payable by Mr. O’Brien fixed at $2500, all inclusive, in favour of each of the two respondent groups, the Blue Heron Respondents and the Sector Respondents, a total of $5,000.

Aston J.

I agree _______________________________

Ellies J.

I agree _______________________________

Myers J.

Date: September 18, 2018

[^1]: Para. 7 of his reasons [^2]: Paras. 16-18 of his reasons [^3]: Pickard v. London (City) Police Services Board, 2010 ONCA 643 and Lukezic & Walker Hill Winery v. RBC, 2011 ONSC 5263 [^4]: Paras. 31-34 of his reasons