CITATION: Lindhorst v. Aviva Insurance Company of Canada, 2009 ONCA 191
DATE: 20090303
DOCKET: M36961 (C49495)
COURT OF APPEAL FOR ONTARIO
Weiler J.A. (in-chambers)
BETWEEN
Alvin Lindhorst
Plaintiff (Appellant/Responding Party)
and
Aviva Insurance Company of Canada
Defendant (Respondent/Moving Party)
Nelson M. Dewey, for the moving party
Alvin Lindhorst, acting in person
Heard: February 12, 2009
On appeal from the order of Justice Jane E. Kelly of the Superior Court of Justice dated September 9, 2008 and on a motion for security for costs.
Weiler J.A. (in chambers):
[1] This is a motion by Aviva Insurance Company (Aviva) for security for costs in the amount of $5000 pursuant to Rule 61.06(1) (a) of the Rules of Civil Procedure, as amended, which reads as follows:
61.06(1) In an appeal where it appears that,
(a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;
a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.
I. The Background Facts and the Motions Judge’s Decision
[2] Lindhorst brought an action for damages in the amount of $750,000 for personal injuries arising out of a motor vehicle action with an unidentified driver. Aviva, Lindhorst’s insurer, alleged that on February 1, 2008, it reached an agreement with Lindhorst’s counsel whereby Lindhorst agreed to pay Aviva $1,348, execute a release, and to consent to a without costs dismissal of the action. When Lindhorst refused to execute the release provided by Aviva, Lindhorst’s counsel removed himself from the record. Aviva brought a motion to enforce the alleged settlement. Lindhorst brought a cross-motion seeking, among other things: a trial; dismissal of Aviva’s motion; an order that Aviva cease and desist from damaging Lindhorst’s reputation; and an order that the court records be sealed.
[3] The motions judge held that Lindhorst’s counsel’s retainer was established, that Lindhorst’s counsel had authority to bind his client, that settlement implied a promise to furnish a release absent an agreement to the contrary, and that Aviva’s release was “nothing out of the ordinary.” She further held that the fact that Lindhorst had not accepted Aviva’s release did not discharge him from his obligations as “[t] his is not a situation where certain items regarding the settlement were raised for the first time after February 1, 2008 and [Aviva did not raise] included terms that were not agreed upon”.
[4] After noting that Aviva had orally represented that it was willing to waive execution of a release, the motions judge granted Aviva’s motion to dismiss Lindhorst’s action on a without costs basis. Instead of ordering Lindhorst to pay Aviva $1,348 representing certain costs orders, she granted costs of the motion to Aviva in the amount of $3,950 payable within 30 days.
[5] The motions judge also dismissed Lindhorst’s motion.
[6] Lindhorst has appealed both the order granted to Aviva and the dismissal of his own motion, as well as the costs award made against him. In order for Aviva to be granted security for its costs in the appeal, it must demonstrate that there is good reason to believe: (a) that Lindhorst’s appeal is frivolous and vexatious; and (b) that Lindhorst has insufficient assets in Ontario to pay the costs of the appeal.
II. Analysis
(i) Is there good reason to believe that Lindhorst’s appeal is frivolous and vexatious?
[7] Dealing first with the settlement motion, the motions judge’s reasons are clear and detailed. She correctly stated and applied the law and does not appear to have misapprehended the evidence.
[8] The motions judge did not apportion her award of costs between the two motions. Assuming that the award of costs relates to Aviva’s motion, Lindhorst’s argument on the costs award is that he would have accepted the terms that Aviva’s counsel orally agreed to before the motions judge. He submits that, consequently, he ought not to have been ordered to pay the costs of the motion. Lindhorst did not make a formal offer to settle on the terms awarded by the motions judge. Aviva’s failure to offer to settle on terms that were as favourable as those ultimately awarded by the motions judge is not a reason to deny it costs. I see nothing to suggest that the motions judge exercised her discretion improperly in making the award that she did.
[9] Given the above, there is reason to believe that the appeal of the settlement motion is frivolous and vexatious.
[10] Lindhorst appears to have been under the impression that, in order for me to order security for costs, Aviva had to show not only that there did not appear to be any merit to the appeal from Aviva’s motion but also that the appeal from the dismissal of Lindhorst’s motion was frivolous and vexatious. I do not agree. It is possible for this court to order security for the costs of the appeal of the settlement motion specifically, and refuse to make such an order for the appeal of Lindhorst’s motion: see, by analogy, Hubbell Special Products Inc. v. Carroll Healthcare Inc. (2005), 2005 CanLII 377 (ON SC), 10 C.P.C. (6th) 10 (Ont. S.C.J.).
[11] However, it is not necessary for me to bifurcate Lindhorst’s appeal in this manner, as there is reason to believe that his appeal from the dismissal of his own motion is also frivolous and vexatious.
[12] Lindhorst’s appeal from the dismissal of his motion primarily relates to the allegations of defamation. Three of his grounds of appeal relate to the motions judge’s finding that a former employer made certain comments about him to Aviva. I see no palpable and overriding error in the motions judge’s conclusion. The fourth ground of appeal, whether the alleged statement was defamatory, raises a question of law, and again, the motions judge does not appear to have erred in her statement or application of the law.
[13] Lindhorst’s final two grounds of appeal relate to the motions judge’s refusal to strike the documents in question from the record or to seal them. Deciding whether or not to seal documents is a matter within the court’s discretion: Boeing Satellite Systems International Inc. v. Telesat Canada, [2007] O.J. No. 77 (S.C.), citing Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522. I see no error in principle in the manner in which she exercised her discretion.
[14] Finally, the complaint that the motions judge perpetuated the harm by publishing the comments in her judgment is without foundation, as her judgment was privileged.
[15] All of the grounds of appeal advanced by Lindhorst in regards to the appeal from the dismissal of his motion thus appear to be frivolous and vexatious.
(ii) Has Aviva shown that Lindhorst has insufficient assets in Ontario to pay the costs of the appeal?
[16] In support of its submission, Aviva states that the condominium unit in which Lindhorst resides is not owned by him and that he has no other real estate in Toronto. Aviva also relies on evidence that Lindhorst is unemployed. Thus, Aviva submits that there is good reason to doubt that he has sufficient assets to pay the costs of his appeals.
[17] Lindhorst submits that he is responsible where credit is concerned. He has three credit cards, pays his bills and maintains a good credit rating.
[18] In Horton v. Joyce (1994), 1994 CanLII 1373 (ON CA), 20 O.R. (3d) 59 (C.A.), Finlayson J.A. described the test under rule 61.06(1)(a) as asking whether the appeal is frivolous and whether the appellant is “irresponsible”. However, having regard to the decision as a whole, Finlayson J.A. did not depart from the plain meaning of the rule. In Schmidt v. Toronto-Dominion Bank (1995), 1995 CanLII 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at p. 6, this court noted that this second criterion under the rule is clear and requires no judicial gloss. Despite the language used in Horton, the fact that Lindhorst is financially responsible is not relevant to the application of the rule.
[19] The rule does not require that Aviva actually show that Lindhorst has insufficient assets to pay the costs of an appeal but, rather, that there is good reason to doubt that he has. I am satisfied that Aviva has met the test.
[20] Accordingly, for these reasons I allow Aviva’s motion for security for costs and order that Lindhorst post security for costs in the amount of $5,000.
[21] I order that the costs of this motion, fixed in the amount of $1,000 all inclusive, be paid by Lindhorst to Aviva.
“K.M. Weiler J.A.”