Citation
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: HOLLY DEAN and GEORGE LASTIWKA, Appellants/Responding Parties
AND
MAUREEN McDONALD, Respondent/Moving Party
BEFORE: Schreck J.
COUNSEL: H. Dean, Appellant/Responding Party, Self-Represented A. Khan, for the Respondent/Moving Party
HEARD: January 6, 2026
ENDORSEMENT
1The moving party seeks security for costs in this appeal from a decision of the Landlord and Tenant Board (“LTB”). The quantum being sought is $34,537.00, which represents (1) the anticipated costs of this appeal; (2) an outstanding costs order made by the Ontario Court of Appeal in 2023 in denying leave to appeal from a decision of this court in relation to a different LTB proceeding involving the same parties; and (3) over $31,000 which the moving party, the landlord, claims is owed to her in unpaid rent by the responding parties, the tenants, a claim they dispute.
2The parties have been involved in three different proceedings before the LTB. On March 16, 2022, the LTB granted the landlord’s application for an order to terminate the tenancy and evict the tenants because she required possession of the rental unit for the purpose of residential occupation. The tenants’ appeal to this court of that decision and a related review order was dismissed on November 3, 2022 (Dean v. McDonald, 2022 ONSC 6183 (Div. Ct.)). An application for leave to appeal to the Ontario Court of Appeal was denied on September 5, 2023, and costs in the amount of $3500 were awarded to the landlord. This decision ended a stay of the eviction order and the tenants were evicted by the Sheriff on November 9, 2023.
3On May 4, 2022, the LTB granted the tenants’ application for determinations that the landlord had collected or retained money illegally and had failed to meet her maintenance obligations, as a result of which the landlord was ordered to pay $4651.88 in repayment and rent abatement. An application for a determination that the landlord had interfered with the tenants’ reasonable enjoyment of the rental unit was dismissed.
4On August 1, 2024, the LTB dismissed the tenants’ application for a determination that the landlord had entered their unit illegally, substantially interfered with their reasonable enjoyment of the premises, and had harassed, obstructed and threatened them. A request to have that decision reviewed was denied on February 4, 2025. Those decisions are the subject of the appeal to which this motion relates.
Applicable Rules
5Orders for security for costs in appeals are governed by r. 61.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides as follows:
61.06 (1) In an appeal where it appears that,
(a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;
(b) an order for security for costs could be made against the appellant under rule 56.01; or
(c) for other good reason, security for costs should be ordered,
a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.
6Rule 56.01(1), which is incorporated into r. 60.06(1), sets out additional criteria justifying security for costs, including where it appears that “the defendant or respondent has an order against the plaintiff or applicant for costs in the same or other proceeding that remains unpaid in whole or in part” (r. 56.01(1)(c)).
The Moving Party’s Position
7The moving party advances three bases for the order being sought: (1) the 2023 costs order made by the Court of Appeal remains unpaid; (2) the responding parties have insufficient assets to satisfy a costs award; and (3) the appeal is “frivolous and vexatious.” The first of these is not in dispute. The 2023 costs order for $3500 made by the Court of Appeal in denying leave to appeal remains unpaid.
8With respect to the second and third criteria, r. 61.01(1)(a) requires the moving party to establish that it appears both that the appeal is frivolous and vexatious and that the responding party has insufficient assets: Health Genetic Centre Corp. (c.o.b. Health Genetic Center) v. New Scientist Magazine, 2019 ONCA 576, 49 C.P.C. (8th) 39, at para. 20; Grenier v. Southam Inc. (1994), 1994 432 (ON CA), 19 O.R. (3d) 799 (C.A.). I do not accept that the appeal is frivolous and vexatious. Even if the appeal is unlikely to succeed, an issue on which I make no comment, it is not “vexatious” in the sense that it was taken to annoy or embarrass the respondent: Chinese Publications for Canadian Libraries Ltd. v. Markham (City), 2017 ONCA 968, at para. 9. Nor do I accept that the appellant has insufficient assets.
9The unpaid Court of Appeal costs award is sufficient to justify security for costs. However, I do not agree with counsel for the moving party’s submission that it creates a “prima facie right to security for costs.” The language of r. 61.06 is permissive, not mandatory: Pickard v. London (City) Police Services Board, 2010 ONCA 643, 268 O.A.C. 153, at para. 17. Demonstrating the existence of any of the preconditions simply justifies “an inquiry into the justness of the order sought,” and the court maintains a broad discretion in this regard: York University v. Markicevic, 2017 ONCA 651, at paras. 19-20. Even where the criteria set out in the rules are met, the court must still “take a step back and consider the justness of the order sought in all the circumstances of the case, with the interests of justice at the forefront”: Yaiguaje v. Chevron Corp., 2017 ONCA 827, 138 O.R. (3d) 1, at para. 22.
The Purpose of Security for Costs
10The purpose of security for costs is to provide “a measure of protection for costs incurred and to be incurred in the proceeding”: Combined Air Mechanical Services Inc. v. Flesch, 2021 ONCA 633, 268 O.A.C. 172, at para. 8. It is not to be used as a litigation strategy, for example to prevent a case from being heard on its merits: Yaiguaje, at para. 23. Security for costs is distinct from security for judgment provided in the court below, which is “an extraordinary remedy that should only be granted in exceptional circumstances”: Wiseau Studio, LLC v. Harper, 2021 ONCA 31, 66 C.P.C. (8th) 94, at para. 24.
11Determining the quantum of security costs usually requires a consideration of the same factors that apply in fixing costs: Re BZAM Ltd. (2024), ONSC 3902, 14 C.B.R. (7th) 333, at para. 81. In this case, the amount being sought, $34,537.00, is not based on a consideration of those factors. Rather, it is based primarily on the landlord’s disputed claim that she is owed over $31,000 in unpaid rent.
12While the responding parties’ unpaid costs order may have afforded a basis for ordering security for costs, in my view the real purpose of this motion is not the “protection for costs incurred and to be incurred in the proceeding.” Indeed, the moving party has not provided the court with any estimate of what those costs would be. The real purpose of this motion appears to be to recover monies the landlord claims she is owed.
13In all the circumstances, while the moving party has established that an order for costs against the responding party has not been paid, I am not persuaded that it is in the interests of justice to order security for costs where the purpose of the request is not protective in nature.
Disposition
14The motion is dismissed. There shall be no order as to costs.
Schreck J.
Date: January 8, 2026