Court of Appeal for Ontario

Date: 2018-03-05

Docket: M48583 (C64044)

Panel: Juriansz, Miller and Nordheimer JJ.A.

Between

Svitlana Novak Plaintiff/Appellant (Moving Party)

and

St. Demetrius (Ukrainian Catholic) Development Corporation and Ukrainian Canadian Care Centre Defendants/Respondents (Responding Parties)

Counsel

Svitlana Novak, acting in person

Nicola Brankley, for the responding parties

Heard: March 1, 2018

Reasons for Decision

[1] The appellant brings this motion to review the decision of Epstein J.A. sitting as a single judge in motions court ordering her to post security of costs of the appeal in the amount of $20,000. At the conclusion of the hearing, we dismissed the motion with reasons to follow. These are our reasons.

[2] The appellant confirms that she has not got the ability to pay any costs that may be awarded against her in the event that she loses the appeal. Further, she hints that she would refuse to pay costs in any event.

[3] We agree with Epstein J.A.'s assessment that the appeal has scant prospects of success and so there is good reason to believe the appeal is frivolous. To succeed, the appellant would have to show that the trial judge made a palpable and overriding error in concluding she commenced the action out of time, and also in dismissing her case on the merits.

[4] On the limitations issue the appellant will have to dislodge the trial judge's factual finding that she led "no evidence whatsoever as to what happened between June 2009 and April 2012". The trial judge did not find any facts upon which to infer that she was under a continuing mistaken belief that a legal proceeding was not the appropriate means to remedy her loss or damage. The burden was on the appellant in this regard.

[5] The dismissal of the appellant's claim on the merits rested on findings of fact and credibility. The trial judge found the appellant had failed to establish that the respondent had promised her a full-time job. We are not persuaded that the existence of different versions of her part-time employment contract is sufficient to undermine the credibility findings of the trial judge.

[6] Justice Epstein's reasons for finding the appeal vexatious are well supported by the appellant's communications that Epstein J.A. quoted in her reasons.

[7] Justice Epstein's order was made prior to the release of this court's decision in Chevron Corp. v. Yaiguaje, 138 O.R. (3d) 1, 2017 ONCA 827, which was included in the appellant's materials. We do not read that decision as altering the established test for ordering security for costs. The established test requires a judge, after analysing the specific factors spelled out in the rules, to consider the overall justness of the order sought. In Yaiguaje v. Chevron Corp. the court found that the motion judge had erred in principle in her consideration of the justness of the order.

[8] In this case, we are satisfied the Epstein J.A. did not err in considering the ordering of security for costs to be just. Unlike in Yaiguaje v. Chevron Corp., the appellant in this case has a direct economic interest in the appeal. The respondent is not a global enterprise but a not-for-profit senior citizens care centre operated by a church. Unrecoverable costs will reduce the respondent's resources it can dedicate to the care of its clients. There is no indication the respondent sought security for costs as a litigation tactic to end the appeal. The appeal raises no overarching, important, or novel issue. There is no apparent overriding public interest in allowing the appeal to proceed without the posting of ordered security for costs.

[9] It is for these reasons that the motion was dismissed. Costs are awarded to the respondent fixed in the amount of $3,500.00 all inclusive.

R.G. Juriansz J.A.

B.W. Miller J.A.

I.V.B. Nordheimer J.A.