NEWMARKET COURT FILE NO.: CV-16-128021-00 DATE: 20170224 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Robert Weidenfeld Plaintiff – and – Sejal Parikh-Shah as Executor of the Will and Trustee of the Estate of Hana Weidenfeld, deceased, Nathalie Weidenfeld, Joel Weidenfeld, Robert Andrew Leck, Stiver Vale (law Firm) Defendants
Counsel: Self-represented (for the Plaintiff) Allen Gerstl, for the Defendants, Sejal Parikh-Shah as Executor of the Will and Trustee of the Estate of Hana Weidenfeld, deceased, Nathalie Weidenfeld, Joel Weidenfeld Ian Epstein for the Defendants, Robert Andrew Leck, Stiver Vale (law Firm)
HEARD: February 15, 2017
RULING ON MOTIONS
sutherland J.:
Overview
1There are two motions. The defendants, Robert Andrew Leck, Stiver Vale (law Firm) (moving defendants) brought a motion for security for costs against the plaintiff in the amount of $35,000. The plaintiff brought a motion to seek permission to participate on the motion by teleconference and any subsequent hearings, and an order confirming the plaintiff is an impecunious litigant.
2The other defendants, Sejal Parikh-Shah as Executor of the Will and Trustee of the Estate of Hana Weidenfeld, deceased, Nathalie Weidenfeld, and Joel Weidenfeld (Estate defendants) filed no material but support the motion brought by the moving defendants.
3The plaintiff attempted to file a motion record with the court on February 13, 2017. The filing office refused to accept the motion record given its lateness. At the beginning of the hearing, the plaintiff sought leave to file the motion record. The defendants did not object and leave was given. However, the affidavit in the motion record provided by the plaintiff was not signed. The plaintiff provided the court with a signed and commissioned affidavit. The defendants did not have an objection and the court accepted the affidavit as the plaintiff’s responding material along with the notice of motion in the plaintiff’s motion record. No other material was agreed upon or provided by the plaintiff, at this time.
4Before submission began, the court requested of the plaintiff if he would wish to obtain legal advice. He indicated that he did not. Further, the court asked the plaintiff if he wished an adjournment to file any further material. The plaintiff indicated that he did not. On the basis of the answers given by the plaintiff, the hearing commenced.
5The plaintiff resides in Lethbridge, Alberta. He has no assets in Ontario.
6He is the former husband of the deceased, Hana Weidenfeld (Hana). Hana passed away on May 22, 2016. Nathalie Weidenfeld and Joel Weidenfeld are the children of the plaintiff and Hana. Both Nathalie and Joel are adults and independent. Hana and the plaintiff were divorced on March 2, 1995.
7The plaintiff has commenced a family law proceeding in the Unified Family Court bearing court file number FL-06-23514-00 against Hana. The family law proceeding was stayed on November 16, 2007 pursuant to the order of Wildman J. due the plaintiff’s attempt to obtain leave from the Supreme Court of Canada to appeal a temporary order. Leave was denied by the Supreme Court of Canada.
8In the family law proceeding, the plaintiff alleges that he was a common law spouse of Hana and seeks the remedy of unjust enrichment, constructive trust. The plaintiff alleges that he has put money or money worth into the property which is the subject matter of this proceeding, being 156 Bristol Road, Newmarket, Ontario (the property).
9On September 15, 2016, Bale J., in this proceeding, granted an order that the registrar issue a Certificate of Pending Litigation (CPL) against the property. A CPL was not requested or given in the family law proceeding that commenced in 2006.
10The family law proceeding has not been prosecuted for close to 10 years.
11The plaintiff commenced this proceeding on September 14, 2016. The substance of the claims in this proceeding involve the property and the allegation that the transfer of the property by Hana to their children was a fraudulent conveyance to defeat or hinder the plaintiff’s claims, as described in the family law proceeding. Further, the plaintiff has made claims of negligence and breach of duty of care against Hana’s lawyers, the moving defendants, for transferring the property to the children, I assume, pursuant to Hana’s instruction before she passed away. The transfer took place on September 25, 2014 and is registered as instrument number YR2191994. The plaintiff claims that the moving defendants breached their duty of care to him and were negligent by not investigating that Hana had an outstanding family law proceeding dealing with the property before transferring the property. The plaintiff argues that as a third party the moving defendants owed him a duty of care and breached this duty of care but did not act as a diligent competent real estate lawyer would have done in investigating whether there were any actions against the property.
12I should also add that the plaintiff is not a person who is unfamiliar with litigation. The plaintiff has commenced and has defended numerous actions. The moving defendants’ state that there are 22 published decisions on Westlaw that involve the plaintiff. He has been a plaintiff. He has been a defendant. He has appealed and sought leave to appeal decisions he disagreed with. He has had several costs awards made against him. From the evidence provided on these motions, he has approximately $50,000 in cost awards against him. There was an order for lump sum child and spousal support made in 1995 in the amount of $35,000. [1] There was no evidence provided by the plaintiff that he has paid all the costs awards presented by the moving defendants or that the lump sum support award has been paid.
13There have been numerous comments made by Judges of this Court, the Divisional Court of Ontario, and the Queens Bench of New Brunswick concerning the plaintiff’s refusal to pay cost awards, support, and comply with court orders. [2]
14On November 10, 2016, Charney J. heard an application brought by the plaintiff in court File No. CV-16-128020 for directions. In his decision released November 25, 2016, Charney J. dismissed the application and found that the respondents in that application, being the defendants the Estate of Hana, Nathalie Weidenfeld and Joel Weidenfeld in this proceeding, were presumptively entitled to costs. There is no evidence provided in these motions whether costs were awarded, the amount of those costs and if those costs have been paid.
Legal Principles
15Rule 56 of the Rules of Civil Procedure [3] governs a motion for security for costs. Rule 56.01(1) states that the court “may make such order for costs as is just where it appears that, (a) the plaintiff or applicant is ordinarily resident outside of Ontario”.
16The initial onus is on the moving party to satisfy the court that it appears there is good reason to believe one of the criteria described in r. 56.01(1) has been satisfied. Once the court is satisfied that one of the criteria of r. 56.01 has been met, the court then proceeds to an analysis of whether it “is just” to make any order for security for costs.
17In determining whether it is just, Master Hawkins in Turner v. UAP Inc., 2016 ONSC 696 [4] describes the legal principles involved. At paragraphs 25 and 26 of his decision, Master Hawkins quotes Master Glustein, as he then was, from Coastline Corp. v. Canaccord Capital Corp. [5] and indicates that:
(a) Once the initial onus on the moving party has been met, the onus shifts to the responding party to the motion to establish that an order for costs would be unjust.
(b) The responding party may rebut the onus by demonstrating that it has sufficient assets in Ontario or in a reciprocating jurisdiction to satisfy any cost order or that it is impecunious and justice demands that the responding party be permitted to continue with the action.
(c) The evidentiary threshold to demonstrate impecuniosity is high. “Bald statements unsupported by detail” is not sufficient. The threshold can only be reached by “tendering complete and accurate disclosure of the plaintiff’s income, assets, expenses, liabilities and borrowing ability.”
(d) If the responding party cannot establish impecunious and does not have sufficient assets to satisfy a cost order, that party must meet a high threshold to satisfy the court of the chances of success.
(e) In analyzing the chances of success, the court’s analysis is primarily based on the pleadings with recourse to evidence filed on the security for cost motion. It is required “to embark on an analysis such as in a motion for summary judgment.”
(f) The assessment of the merits should be decisive only where the merits may be properly assessed on an interlocutory application and “success or failure appears obvious”.
18To satisfy the court that, on the balance of probabilities, one is impecunious, detailed evidence of the impecuniosity is required. Zeitoun et al v. The Economical Insurance Group (2008) [6] The evidence provided must demonstrate that payment of the requested security for costs would prevent the responding party from proceeding with the litigation of a claim that is not plainly devoid of merit. [Trottier Foods Ltd. v. Leblond, 1987 CarswellOnt 549 (Master)]; [Kingston 2000 Developments Ltd. v. Kingston (City), 2009 CarswellOnt 3750 (SCJ)] [7] In other words, the responding party must satisfy the court that security for costs would end the litigation because he or she is unable to find any funds to fund it. The court must be satisfied on the evidence provided that the responding party has no ability to muster funding to continue with the action. [Kingston, supra]; [Crudo Creative Inc. v. Marin (2007), 90 O.R. (3d) 2213 (Div. Ct.)] [8]
19Further, in assessing what “is just”, the court may consider all relevant matters, including affidavit evidence demonstrating that the responding party’s repeated involvement in law suits, and his or hers failure to pay costs awarded against him or her in those lawsuits. [Horvat v. Feldman, [1985] O.J. No. 1690 (HC)]; 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd. [9]
20If the court determines that security for costs is appropriate, the court has wide discretion in determining the amount and form of security required to be paid into court. Rule 56.04 of the Rules of Civil Procedure; [Michigan National Bank v. Axel Kraft International Ltd., [1999] O.J. No. 418 (Gen.Div.)] [10]
Self-Represented Litigants
21The plaintiff is self-represented. Even though he does appear to have substantial experience in the court system, the fact is he is not a lawyer. It is these type of circumstances where the court has lawyers representing one side and a self-represented litigant on the other that are the most problematic. The court cannot argue the self-represented litigant case but at the same time is obligated to take all necessary steps that a fair hearing is given. The court, in our adversarial system, is to preside over the hearing and make a decision. It seems to me that self-represented litigants do not always appreciate the role of the court, as was the situation in this case.
22As the Ontario Court of Appeal stated in Sanzone v. Schchter, 2016 ONCA 566 (Can LII):
21Fairness requires a judge to accommodate a self-represented party’s unfamiliarity with the litigation process to enable her to present her case to the best of her ability: Davids v. Davids (1999), 125 O.A.C. 375 (C.A.), at para. 36. It is apparent from the transcript of the June 20, 2014 adjournment hearing that the motion judge tried very hard to do exactly that.
22Of course, any accommodation made by a judge to a self-represented party must respect the rights of the other party: Davids, at para. 36. A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented.
23That said, when a represented party invokes the mechanisms available under the Rules of Civil Procedure to seek some relief against a self-represented party, the represented party must ensure it complies fully with its own obligations under the rules, and not use the rules to take unfair advantage of the self-represented litigant.
23Accordingly, I will now turn to my analysis.
Analysis
24The moving defendants have met the initial onus. The plaintiff does not reside in Ontario and does not have assets in Ontario.
25The onus shifts to the plaintiff to satisfy the court it would be unjust to award security for costs. The plaintiff submits that there are two reasons why it would be unjust to award security for costs. These reasons are that he impecunious and he has a meritorious action against the moving defendants that have a grave public interest. The interest is the legal obligation of real estate lawyers to investigate a transaction before transferring property to determine if there are any outstanding proceedings against the subject property notwithstanding the information received from the real estate lawyers’ client and what is registered on title.
26I will first deal with impecuniosity. The plaintiff has an onus to provide detailed evidence of his financial inability. He cannot simply rely on bald statements. He must submit evidence that will satisfy the court that he is impecunious and does not have the ability to fund the litigation which will result in the litigation coming to an end.
27The plaintiff has failed to meet his evidentiary burden. He has not provided any evidence to demonstrate to the court his financial circumstances. He did make submissions about his financial situation but submissions are not evidence. The plaintiff stated to this court that he provided an affidavit in December 2016 to Edwards J. at the trial scheduling court about his financial circumstance but did not provide his financial information for such information is private and confidential. Edwards J., the plaintiff states, refused to hear his motion because the attendance at trial scheduling court was to set a date for long motion, being the summary judgment motion, and a timetable for that motion.
28The plaintiff did not provide the affidavit he filed at the trial scheduling court in his responding motion material for this motion. I do not accept this excuse by the plaintiff. He is aware that financial information such as his income and assets is not confidential and can be provided to the court. He was involved in family law proceedings in New Brunswick and Ontario. He is aware of the need for financial information in the family law setting. I am convinced that the plaintiff simply did not want to provide the financial information to the defendants and this court. This behaviour is no different than his failure to provide financial disclosure as indicated in the orders of Bryant J. and Athey J.
29Consequently, given the lack of evidence provided by the plaintiff, I do not find that he is impecunious.
30Dealing with the second reason, the merits of the action against the moving defendants and the chance of success, has the plaintiff persuaded this court that his success of the action appears obvious? I answer that question in the negative. From reviewing the pleadings and the material filed on this motion, I cannot find that the success of the plaintiff’s action against the moving defendants appears obvious. The plaintiff may have an arguable claim but the actions of the plaintiff, failing to register a CPL in a timely manner and the actions of the moving defendants, doing the required searches, reviewed objectively, does not reach the high threshold that the success of the claims of the plaintiff appears obvious.
31Thus, the plaintiff has not satisfied this court that it would be unjust to award security for costs.
32The next step is the fixing of the amount of costs, the time for payment and the method of payment. The moving defendants are requesting $35,000 to be paid as follows:
(a) $10,000 paid immediately. (b) $10,000 before discoveries. (c) $15,000 before the pretrial.
33In reviewing the bill of costs provided by the moving defendants, I do not find the hourly rates requested unreasonable but take some issue with the hours charged. In exercising my discretion, I find that the plaintiff shall pay by certified cheque, bank draft or by bond the sum of $20,000. This amount to be paid as follows:
(a) $5,000 within 30 days. (b) $10,000 before discoveries. (c) $5,000 before the pretrial.
34If the plaintiff fails to make any of the payments, the moving defendants may move on notice pursuant to r. 56.05 of the Rules of Civil Procedure.
Disposition
35For the reasons given, I order that the moving defendants are entitled to security for costs. The plaintiff shall pay to the Accountant of the Superior Court of Justice the sum of $20,000 by certified cheque, letter of credit or bond or any other security that the plaintiff and moving defendants may agree, to be paid as follows:
(a) $5,000 within 30 days. (b) $10,000 before discoveries. (c) $5,000 before the pretrial.
36If the plaintiff fails to make any of the payments, the moving defendants may move on notice pursuant to r. 56.05 of the Rules of Civil Procedure.
37The plaintiff’s motion is dismissed without prejudice to request at a later date to attend future court proceedings via teleconference.
38Based on my decision, I vary the order of Edwards J. dated January 11, 2017, with respect to the timetable. I vary the date for completing of examinations for discovery to July 7, 2017. The parties have scheduled the motion for summary judgment for September 15, 2017.
39If the parties cannot agree on costs of this motion, the moving defendants to serve and file their submissions of costs within 21 days from the date of this decision, and the plaintiff will have 14 days thereafter to serve and file his submissions. The submission to be no more than three pages, double spaced, exclusive of any bill of costs, case law and offers to settle. There is no right to reply. Submissions are to be filed with the court. If no submissions are received within the time period set out herein, an order will be made that there will be no costs.
Justice P.W. Sutherland
Released: February 24, 2017
[1] Order of Athey J. of the Queen’s Bench of New Brunswick dated March 2, 2995 in FDF-742-93. [2] These comments by Judges can be found in: Weidenfeld v. Weidenfeld, FDF 742-93 March 2, 1995, Athey J. (NBQB); Glimjem Holdings Ltd. v. Robert Weidenfeld, File No. 16/03 (Ont Div Ct.) May 15, 2003; Weidenfeld v. Weidenfeld, 2006 CarswellOnt 9393 (SCJ), Bryant J.; Bank of Montreal v. Robert Weidenfeld, File No.88079, April 30, 2008 (Ont. SCJ), Fuerst J. [3] RRO 1990, Reg. 194. [4] 2016 ONSC 696, 2016 CarswellOnt 1574. [5], [2009] O.J. No. 1790. [6] Zeitoun et al v. The Economical Insurance Group (2008), 91 O.R. (3d) 131 (Div.Ct.). [7] Trottier Foods Ltd. v. Leblond, 1987 CarswellOnt 549 (Master); Kingston 2000 Developments Ltd. v. Kingston (City), 2009 CarswellOnt 3750 (SCJ). [8] Kingston, supra; Crudo Creative Inc. v. Marin (2007), 90 O.R. (3d) 2213 (Div. Ct.). [9] Horvat v. Feldman, [1985] O.J. No. 1690 (HC); 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd., [1997] O.J. No. 4722 (Gen.Div.). [10] Rule 56.04 of the Rules of Civil Procedure; Michigan National Bank v. Axel Kraft International Ltd., [1999] O.J. No. 418 (Gen.Div.). [11] 2016 ONCA 566 (Can LII). Also see Fernandes v. Carleton University and BCE Inc. 2016 ONCA 719 para 31.