CITATION: John v. Tonner, 2007 ONCA 321
DATE: 20070430
DOCKET: M34839, C43012
COURT OF APPEAL FOR ONTARIO
ARMSTRONG, JURIANSZ and ROULEAU JJ.A.
BETWEEN:
ANITA JOHN, ALLAN JOHNSTON, BRUCE JACKSON and REAL ESTATE COUNCIL OF ONTARIO
Applicants (Respondents in Appeal)
and
STEVEN TONNER and JUSTICE OF THE PEACE DEANNE CHAPELLE
Respondents (Appellant)
Joseph Markin for the applicant
Morgana Kellythorne for the respondents
HEARD: April 23, 2007
ENDORSEMENT
[1] The applicant moves for an order reinstating this appeal, which was dismissed as abandoned because of his failure to post security for costs as ordered. He explains that he previously did not have the funds to post the required security, but is in a position to do so now. He has explained the delay in bringing this motion and has shown that the appeal is not frivolous. The respondents do not suggest that they have been prejudiced by the delay.
[2] We are inclined to grant the motion. However, the respondent points out, the order dated October 23, 2006 made by Belobaba J. of the Superior Court orders that "all proceedings previously instituted by the applicant in any court be stayed except by leave of a judge of the Superior Court of Justice" (underlining added). See Varma v. Rozenberg, [1998] O.J. No. 4183. Counsel for the applicant was retained for this motion and only became aware of Belobaba J.’s order after serving the present motion. He had not, therefore, taken steps to seek the necessary leave from a Superior Court judge.
[3] In the peculiar circumstances of this case, we exercise our jurisdiction under s. 13 (2) of the Courts of Justice Act and grant the applicant leave to bring this motion and to proceed with this appeal.
[4] We grant the motion and order that the appeal be reinstated upon the posting of the required security provided it is posted by May 15, 2007. Costs of this motion are fixed in the amount of $1500 inclusive of disbursements and GST payable to the successful party on the appeal.
“R.P. Armstrong J.A.”
“R. Juriansz J.A.”
“Paul Rouleau J.A.”