Court of Appeal for Ontario

Date: 2004-01-19

Docket: C39279

Re: John Susin (Plaintiff (Appellant)) – and – Ronald G. Chapman (Defendant (Respondent))

Before: Rosenberg, Goudge and Cronk JJ.A.

Counsel: John Susin, In person Scott Martin, for the respondent

Heard: January 8, 2004

On appeal from the Order of Justice C. A. Bain of the Superior Court of Justice dated November 18, 2002.

ENDORSEMENT

[1] This is an appeal from the Order of Bain J. dismissing the appellant’s action for non-payment of costs. This action is rooted in a claim for breach of a contract allegedly made in 1979. The Order of Bain J. stems from a motion brought by the respondent in 1997. The appellant raises a number of issues and also seeks to adduce as fresh evidence his own affidavit in which he states that he has now paid the costs orders that led to the dismissal of his action. For the following reasons the application to adduce fresh evidence is dismissed and the appeal is dismissed with costs.

[2] The appellant submits that the motion judge erred in dismissing the action because the grounds for the motion set out in the appellant’s notice of motion referred to Rule 60.12 but did not refer to Rule 57.03. There are two answers to this submission. First, by the time the matter came before the motion judge the appellant was on notice through the respondent’s factum that he did intend to rely on Rule 57.03. This case is therefore different from Susin v. Chapman, [1998] O.J. No. 4764 (C.A.) where Rule 57.03 was not cited in the notice of motion and the materials did not indicate that the order in that case was made in the exercise of jurisdiction under that rule. Moreover, the appellant did not object to the respondent’s reliance on Rule 57.03 during the proceedings before the motion judge and did not seek an adjournment of those proceedings. Second, in our view, the Order in this case could have been made under Rule 60.12, which was referenced in the original notice of motion.

[3] The appellant also submits that the motion judge erred in finding that the appellant was not impecunious. In the circumstances of this case, it was open to the motion judge to make the finding that she did, relying in part on the findings in six other proceedings that the appellant is not impecunious. As she pointed out, the appellant argues he is impecunious when required to pay costs but denies impecuniosity when an opposite party is seeking security for costs.

[4] The appellant next submits that the Order could not be based on the costs order made by Morden A.C.J.O. on November 21, 1995 because the costs did not have to be paid forthwith. Assuming, without deciding, that those costs did not become payable until the conclusion of the action, the amount involved was only $300. The Order made by the motion judge was justified on the basis of the other outstanding costs orders.

[5] This brings us to the appellant’s principal submission. He argues that the various orders by Maloney J., Valin J. and Cameron J. were final and not interlocutory orders and, therefore, Rule 60.12 had no application. We do not agree. Some of these orders were interlocutory in part or in whole. They arose out of various interlocutory proceedings such as a refusals motion from cross-examination and a motion to vary. See for example Diversitel Communications Inc. v. Glacier Bay Inc., [2004] O.J. No. 10 (C.A.).

[6] Finally, the appellant submits that the motion judge erred in the exercise of her discretion in dismissing an action, in which the appellant claimed damages for millions of dollars, for failure to pay costs of $2,200. We have not been persuaded that the motion judge erred in principle in the exercise of her discretion. The appellant attempts to pursue litigation without paying the costs orders made by various courts. He picks and chooses those orders that he will pay. We are satisfied that the motion judge was entitled to make the order she did given the lengthy history of these proceedings and the material that was before her.

[7] With respect to the fresh evidence, we are not satisfied that this is a proper case to allow the appeal because the appellant belatedly paid the outstanding costs orders that formed the basis for the motion judge’s order. This fresh evidence is merely another example of the kind of conduct engaged in by the appellant in “cherry-picking” those costs orders that, he hopes, will allow him to continue to pursue his various claims. We note that back in February 2003 on a motion before Bain J. to re-open the dismissal motion the appellant made an offer to pay the costs. Yet, he waited until August 30, 2003 before paying the costs.

[8] Accordingly, the appeal is dismissed with costs fixed at $5,000 inclusive of disbursements and G.S.T. payable within 30 days.

Signed: “M. Rosenberg J.A.”

“S. T. Goudge J.A.”

“E.A. Cronk J.A.”