DATE: 20030514

DOCKET: C38542/M29513

COURT OF APPEAL FOR ONTARIO

RE: RHONMONT PROPERTIES LTD. (Plaintiff (Appellant)) - and - YEADON FABRIC STRUCTURES LTD., YEADON MANUFACTURING LIMITED, AIRSTRUC TECHNOLOGY INC., GORDON DALZIEL and TACOMA STECKLEY & ASSOCIATES INC. (Defendants (Respondents))

BEFORE: FELDMAN, SIMMONS and GILLESE JJ.A.

COUNSEL: Terrence J. O’Sullivan for the appellant Carolyn J. Horkins for the respondent Airstruc Technology Inc. and Gordon Dalziel David A. Tompkins for the respondent Yeadon Fabric Structures Ltd. Graham Lloyd for the respondent Tacoma Steckley & Associates Inc.

HEARD: MAY 9, 2003

RELEASED ORALLY: May 9, 2003

E N D O R S E M E N T

[1] The appellant brought a motion seeking an extension of the time to seek a review of an order of Doherty J.A. made on December 12, 2002, and if the extension is granted, asking that the order be set aside or varied. The order required him to post $250,000 in security in a form agreeable to the parties by February 12, 2003.

[2] The appellant’s solicitor explained that an appeal of Doherty J.A.’s decision of December 12, 2002 was not filed within four days because Doherty J.A., in oral reasons, indicated that the appellant would be permitted a reasonable period to arrange to post the security ordered and that he (Doherty J.A.) would remain seized of the matter going forward.

[3] The appellant attempted to comply with the order by offering to place a mortgage on his interest, if any, in the Woodlawn Road property and Vardon Drive property. The respondents found the offered security unacceptable. The parties attended upon Doherty J.A. on February 6, 2003 by way of telephone conference call at which time Doherty J.A. made a further order that the proposed security did not constitute security for costs and that he would not direct that the proffered mortgages were suitable security. Four days later, on February 10, 2003, the appellant served a Notice of Appeal, seeking a review of the December 12, 2002 and February 6, 2003 orders.

[4] In the circumstances, we are not satisfied that an extension of time is necessary. If it is, however, we grant it. The appellant’s solicitor has explained that he understood that the period for review would not expire before the period granted for compliance with the order of December 12, 2002, in light of the fact that Doherty J.A. had said he would remain seized of the matter. We accept his explanation.

[5] On this appeal the appellant does not challenge the finding of Doherty J.A. that the appellant corporation is not impecunious in the extended sense that the shareholders and principals of the corporation are unable to fund security for costs. What the appellant appeals is the finding that the appellant or others on its behalf, would be able to post security in the amount of $250,000 in a form acceptable to the respondents, which they have said must be by cash or letter of credit.

[6] In our view, Doherty J.A. was entitled to decide, based on the record, that $250,000 was an appropriate figure for security for costs and that given the lack of clarity of the appellant’s financial capability, to conclude that it was reasonable to require security to be posted in that amount by the appellant or on its behalf.

[7] No further evidence was presented on this appeal suggesting that the appellant could post security but only in a lesser amount.

[8] In the circumstances, we are prepared to allow the appellant a further period of time to post the security in the full amount of $250,000 in a form satisfactory to the respondents, acting reasonably. The security is to be posted on or before June 30, 2003.

[9] As the respondents were unsuccessful in opposing the extension of time to appeal issue, costs to the respondents on the merits, fixed at $1,500 to Airstruc and Dalziel, $1,000 to Tacoma and $1,000 to Yeadon.

Signed:_____ “K. Feldman J.A.”

_____ “Janet Simmons J.A.”

_____ “E.E. Gillese J.A.”