Court of Appeal for Ontario
Citation: Susin v. Susin, 2008 ONCA 376
Date: 20080513
Docket: M36035
Before: ROSENBERG, LANG and EPSTEIN JJ.A.
Between:
JOHN SUSIN Applicant (Appellant)
and
FERMINO SUSIN, DORINO SUSIN, AMITA RAHMAN, DIANNE SUSIN, SISTER STELLA MARIE, GLORIA DEVENZ, ESTHER SUSIN and THERESA LENSBORN Respondents (Respondents)
And Between:
FERMINO SUSIN Applicant (Respondent)
and
DORINO SUSIN, JOHN SUSIN AMITA RAHMAN, DIANNE SUSIN, SISTER STELLA MARIE, GLORIA DEVENZ, ESTHER SUSIN and THERESA LENSBORN Respondents (Appellants)
Counsel: John Susin in person Marc Digirolamo for Fermino Susin John DeVenz and Gloria DeVenz in person
Heard: May 7, 2008
ENDORSEMENT
[1] We have not been persuaded that Gillese J.A. erred in ordering security for costs. We only need to deal with some of the submissions by the moving party (the appellant).
The appellant submits that the effect of the order is to substitute him for the estate as the guarantor of payment of costs. That is not so. The order of Turnbull J. expressly makes an order for costs against the appellant. It is only in default of payment that the estate may become liable. It was open to the motion judge to therefore include in her order, security for costs of the application.
The motion judge was well aware of the appellant’s impecuniosity. It was still open to her to make the order in the circumstances of this case since the conditions in rule 61.06 were met. The history of this litigation fully supports the finding that the appeal appears to be frivolous and vexatious.
There was sufficient evidence of the likely costs award if the appeal was heard. In addition to the statement in the affidavit, the experienced motion judge could rely on the scale of costs customarily awarded in cases of this nature.
This is not a case like Toys “R” Us. The appellant was not forced into court; it was his own applications that were the principal sources of litigation before Turnbull J. and would be the subject of the appeal.
The motion judge was entitled to rely upon the credibility findings of the application judge, and his findings of fact in weighing the merits of the appeal.
There was no requirement that the application by Ferino Susin specifically asked for an eviction order; it was necessary relief flowing from the order for sale of the house, which was expressly sought.
While other beneficiaries may be appealing the dismissal of the application to have Fermino Susin removed as executor, that is but a minor part of the appeal; it was therefore open to the motion judge to make the order for security for costs against the appellant.
The appellant’s position that the application judge could not remove Dorino Susin before obtaining letters probate is inconsistent with his own application seeking similar relief against Fermino Susin. In any event, the appellant relies on authorities that no longer apply with the abolition of the surrogate court by the Court Reform Statute Law Amendment Act, 1989.
[2] Accordingly, the motion is dismissed with costs to Fermino Susin fixed at $2,500 inclusive of disbursements and GST.
Signed: "M. Rosenberg J.A." "S. E. Lang J.A." "G. Epstein J.A."