CITATION: Susin v. Susin, 2008 ONCA 66

DATE: 20080130

DOCKET: M35908 (C47470)

COURT OF APPEAL FOR ONTARIO

LASKIN J.A. (In Chambers)

BETWEEN:

JOHN SUSIN

Appellant in appeal (Responding Party)

and

FERMINO SUSIN, DORINO SUSIN, ANITA RAHMAN, DIANNE SUSIN, SISTER STELLA MARIE, GLORIA DE VENZ, ESTHER SUSIN and THERESA LENSBORN

Respondents in appeal (Moving Party, Fermino Susin)

AND BETWEEN:

FERMINO SUSIN

Respondent in appeal (Moving Party)

and

DORINO SUSIN, JOHN SUSIN, ANITA RAHMAN, DIANNE SUSIN, SISTER STELLA MARIE, GLORIA DE VENZ, ESTHER SUSIN and THERESA LENSBORN

Respondents

Marc A. DiGirolamo for the moving party

John Susin, in person

Heard: January 11, 2008

On a motion for direction on appeal from the order of Justice James R.H. Turnbull of the Superior Court of Justice dated June 28, 2007.

ENDORSEMENT

[1] Fermino Susin brings a motion under rule 61.06(2) for an order dismissing the appeal of John Susin because of his failure to post the security for costs ordered by Gillese J.A. on October 30, 2007. Gillese J.A. ordered that John Susin post security for the costs of his appeal from the judgment of Turnbull J. dated June 28, 2007 in the amount of $16,000. He has not done so, and appears not to have either the means or the willingness to do so.

[2] John Susin resists the motion on two grounds: he has sought a review of Gillese J.A.’s order before a panel of this court; and, he claims that counsel for the moving party agreed not to bring a motion to dismiss the appeal until after this review. I do not accept either argument.

[3] John Susin did serve a notice of motion seeking a review of Gillese J.A.’s order immediately after it was made. But he took no steps to deliver a motion record and factum until served with Fermino Susin’s motion to dismiss his appeal. By then John Susin was well beyond the thirty-day period provided for in rule 61.016(4). Moreover, he has not sought a stay of Gillese J.A.’s order. Thus, his attempt to review her order provides no basis to resist the order sought before me.

[4] John Susin’s claim that counsel for Fermino Susin agreed to hold off bringing his motion to dismiss the appeal is contradicted by the written record. In his two letters to John Susin, dated November 1, 2007 and December 10, 2007 (contained in the moving party’s motion record), Mr. DiGirolamo states unequivocally that if the security for costs ordered by Gillese J.A. is not posted he will bring a motion to dismiss the appeal.

[5] Accordingly, in my view, John Susin has not put forward any basis to resist the motion. The motion is granted and John Susin’s appeal from the decision from Turnbull J. dated June 28, 2007 is dismissed. The parties may make written submissions on the costs of this motion within fifteen days.

“John Laskin J.A.”