Court File and Parties

COURT FILE NO.: CV-24-00718389 DATE: 2024-06-03 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Karrilyn Wilcox, Applicant -and- Loredana Abittan, Respondent

BEFORE: Robert Centa J.

COUNSEL: Karrilyn Wilcox, self-represented litigant Blair W.M. Bowen, for the respondent

HEARD: June 3, 2024

Endorsement

[1] Karrilyn Wilcox commenced this application to appoint an arbitrator pursuant to a letter of intent dated February 28, 2017, which she signed with Loredana Abittan. For the reasons that follow, I am staying Ms. Wilcox’s application pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, until she pays an unsatisfied costs order from November 2020.

[2] Ms. Wilcox filed a requisition to obtain a date to have her application heard. On February 20, 2024, Chalmers J. directed Ms. Wilcox to arrange for a case conference. This direction was consistent with the policy on the Toronto Civil List that opposed short applications must proceed to a case conference before the application is scheduled for an oral hearing. Justice Chalmers’ direction put the parties on notice that the case conference judge may make procedural or substantive orders at the case conference:

The parties are notified, in accordance with Rule 50.13(6), that the Case Conference Judge may make procedural orders, make orders for interlocutory relief, and give directions. In the appropriate case the case conference judge may make substantive orders: Miller v. Ledra, 2023 ONSC 4656.

The overriding object of the case conference is to resolve the issue at hand without any further hearing. To facilitate that, each side should deliver a case conference memo of up to 5 double spaced pages in length setting out their position on the motion and why they should succeed.

If the judge cannot resolve the issue at the case conference, she/he will have the option of directing the application to proceed in writing or may schedule an oral hearing. Written or oral hearings will, however, be the exception, not the rule.

[3] I was assigned to hear the case conference on June 3, 2024. In advance of the case conference, Ms. Wilcox delivered a case conference brief containing over 450 pages of material. Late in the evening on Saturday June 1, 2024, Ms. Wilcox delivered a supplementary brief containing a further 5,200 pages of material.

[4] The materials provided to me demonstrate that the parties have previously attended before an arbitrator pursuant to this letter of intent. In a decision dated January 2, 2019, the arbitrator rejected Ms. Wilcox’s submissions and declared that the letter of intent was binding and enforceable. The arbitrator ordered Ms. Wilcox to pay the costs of the arbitration to Ms. Abittan, which he fixed in the amount of $46,047.74.

[5] Ms. Abittan then applied to enforce the arbitral award in the Superior Court of Justice. Ms. Wilcox resisted that application. Myers J. allowed the application and issued a judgment dated November 6, 2020. The judgment read as follows:

1. IT IS ORDERED AND ADJUDGED that the letter of intent dated February 28, 2017, entered into between applicant and the respondent relating to Kraive Nutrition Inc. is binding and enforceable.
2. IT IS ORDERED AND ADJUDGED that the respondent Karrilyn Wilcox shall pay to the applicant the amount of $46,047.74, plus prejudgment interest calculated at the rate of 2.00% per year from May 8, 2019 to November 6, 2020 being the amount of $1,382.69, for a total of $47,430.43.
3. IT IS ORDERED AND ADJUDGED that the respondent Karrilyn Wilcox shall pay to the applicant her costs of this application, fixed in the amount of $4,968.00.

[6] Ms. Wilcox candidly admits that she has not complied with the order of Myers J. She submitted to me that she did not need to comply with the order because the amounts that Myers J. ordered her to pay could be set off against amounts Ms. Abittan owes to her. I observe that Ms. Wilcox made the same argument to Myers J., and I reject it for the same reasons that he did:

Ms. Wilcox’s setoff argument also cannot succeed. The Arbitrator dealt with the issues before him. I am in no position in this proceeding to determine whether Ms. Wilcox may have oppression or other claims against Ms. Abittan. Her claims may be well-founded if they are ever acted upon. But the existence of possible claims by Ms. Wilcox against Ms. Abittan is not a basis to decline enforcement of the arbitral awards under the mandatory terms of s. 50 (3) of the statute. [^1]

[7] Ms. Wilcox has failed comply with the order of Myers J. for over three years. Compliance with court orders is not optional. Court orders must be taken seriously.

[8] Section 106 of the Courts of Justice Act provides that the court may, on its own initiative, stay any proceeding in the court on such terms as are considered just. In exercising my discretion, I have considered the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that, while not directly applicable, have provided helpful guidance to me.

[9] Rule 57.03(2) states that, where a party fails to pay costs of a motion as required under rule 57.03(1), “the court may dismiss or stay the party’s proceeding, strike out the party’s defence, or make such other order as is just.” Similar relief is available under rule 60.12 where a party fails to comply with an interlocutory order of the court.

[10] Generally, a litigant will not be permitted to continue with proceedings where a costs order remains unfulfilled. [^2] Justice Dunphy summarized the principles that guide the court’s exercise of discretion under these rules, which include that:

a. where there has been non-compliance with an order of the court, the court should be alive to the possibility that its process is being abused; b. the right of access to the courts must be accompanied by the responsibility to abide by the Rules of Civil Procedure and to comply with orders of the court; and c. the court ought not to sit in appeal of the prior cost awards as seeking relief against prior costs orders constitutes a collateral attack on orders previously made. [^3]

[11] Although this case involves an arbitration, the situation is very similar to one where a party has not satisfied an interlocutory costs order. This is particularly the case where the arbitrator’s costs order has been recognized as an order of this court and the applicant returns to this court seeking an order to appoint another arbitrator.

[12] I accept that impecuniosity is a factor to take into consideration when considering the consequences of a party’s failure to pay a costs order. [^4] However, in my view, this factor is outweighed by the unfairness of compelling Ms. Abittan to return to arbitration with Ms. Wilcox while the prior costs order from the arbitration remains outstanding. There can be no reason to believe that Ms. Abittan would be able to recover any future costs award as long as the order of Myers J. remains unsatisfied.

[13] I find that it would be an abuse of the court’s process to allow Ms. Wilcox to access the court to have her application heard while the order of Myers J. from November 6, 2020, remains outstanding. For these reasons, I make the following order:

a. Ms. Wilcox’s application is stayed pursuant to s. 106 of the Courts of Justice Act; b. Ms. Wilcox may not bring any further motions in this proceeding without my leave; c. The stay shall be lifted once Ms. Wilcox pays to Ms. Abittan all of the amounts that Myers J. ordered her to pay, including all interest that has accrued since the judgment was issued on November 6, 2024; d. If the amounts are paid, the parties may contact my judicial assistant to arrange a case conference to discuss the application; and e. No costs of today’s attendance are ordered.

Robert Centa J. Date: June 3, 2024

[^1]: Abittan v. Wilcox, 2020 ONSC 6836, at para. 23. [^2]: Munro v. Canada (Attorney General) (1994), 120 D.L.R. (4th) 746, at paras. 9, 12. [^3]: Rana v. Unifund Assurance Company, 2016 ONSC 2502, at para. 50. [^4]: Tarion Warranty Corporation v. 1486448 Ontario Inc., 2012 ONCA 288, at para. 6.