Court of Appeal for Ontario

Date: 2018-06-13 Docket: M49036 (C64654)

Panel: Strathy C.J.O., Feldman and Brown JJ.A.

Between

1806700 Ontario Inc. Plaintiff (Respondent)

and

Marian Dmuchowski and Leonila Fajardo Defendants (Respondents)

Muhammad Aslam Khan, acting in person

Joga Singh Chahal, for the plaintiff

Tim Gleason, for the intervenor Sandeep Singh Johal

Heard and released orally: June 13, 2018

Endorsement

[1] Mr. Khan moves before a panel of this court, pursuant to s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, to set aside the order of MacPherson J.A., made April 5, 2018, requiring that, before perfecting the appeal, he pay into court the sum of $10,000 to stand as security for costs.

[2] The underlying appeal is from the order of Bielby J. of the Superior Court of Justice, dated November 3, 2017, dismissing Mr. Khan's motion to set aside the final report of a referee. The history of this matter is set out in the reasons for judgment of Bielby J. (2017 ONSC 6626) and in the endorsement of Nordheimer J.A., dated December 22, 2017.

[3] The endorsement of MacPherson J.A. indicates that he took into account the history of the proceedings and an assessment of the merits of the appeal.

[4] An order for security for costs is discretionary and is entitled to deference.

[5] The history of the proceeding is fully set out in the record before us, which indicates a multiplicity of proceedings at the instance of Mr. Khan, some of which were found to be unnecessary or inappropriate, and which were out of all proportion to what was reasonably required for a fair and just resolution of the issues in this proceeding. This was an appropriate consideration on the motion. Moreover, the appeal can reasonably be characterized as weak.

[6] The moving party has not persuaded us that we should interfere with the exercise of discretion in this case, which was exercised in the context of granting the appellant an indulgence, namely an extension of time.

[7] The motion is therefore dismissed, with costs to the responding party Johal, fixed at $2,500, inclusive of disbursements and HST.

[8] The moving party shall pay into court the sum ordered for security for costs of $10,000, and shall pay to the respondent the sum of $2,500 ordered for costs of this appeal, before perfecting the appeal. The deadline for perfecting the appeal is extended to June 25, 2018. Failing payment of both amounts and perfection of the appeal by June 25, 2018, the appeal shall be dismissed as abandoned.

G.R. Strathy C.J.O.

K. Feldman J.A.

David Brown J.A.