CITATION: Pickard v. London Police Services Board, 2010 ONCA 643
DATE 20101001
DOCKET: M39097 C52213
COURT OF APPEAL FOR ONTARIO
Watt J.A. (In Chambers)
BETWEEN
Scott Pickard
Plaintiff (Responding Party/Appellant)
and
London Police Services Board
Defendant (Moving Party/Respondent)
J. R. Caskey, Q.C., for the moving party London Police Services et al.
Scott Pickard, in person, responding party
Heard: August 24, 2010
Motion for security for costs for appeal from decision of Justice T. David Little of the Superior Court of Justice on April 7, 2010.
Watt J.A.:
[1] London Police Services Board (LPSB or the Board) seeks an order requiring Scott Pickard to post security for costs for the appeal he has taken from the decision of Little J. of the Superior Court of Justice who dismissed Pickard’s claim against the Board as statute-barred and devoid of merit.
The Background
[2] On September 7, 1996, an officer of the London Police Service laid an information charging Scott Pickard with the summary conviction offence of trespassing at night.
[3] On December 11, 1997, a provincial court judge convicted Pickard of the charge, fined him $100 and ordered that he comply with the terms of a probation order for a period of two years.
[4] On April 27, 1998, a judge of the Superior Court of Justice allowed Pickard’s appeal from conviction, and quashed the conviction.
[5] In March 2003, Pickard discovered that the London Police Service records management system continued to show that he had been convicted on December 11, 1997, of trespassing at night. The conviction was not recorded on the CPIC system.
The Civil Action
[6] Pickard gave Notice of Action to the Board on March 2, 2009. His Statement of Claim alleged malicious prosecution, slander and various infringements of his Charter rights.
The Motion to Dismiss
[7] On February 25, 2010, the Board filed a motion to dismiss Pickard’s action and strike his Statement of Claim on the basis that the Notice of Action was issued after the expiration of the relevant limitations periods and the Statement of Claim failed to disclose a reasonable cause of action.
[8] The motion filed by the Board invoked Rules 21.01(1)(b) and 21.01(3)(d).
The Decision of the Motion Judge
[9] On April 7, 2010, Little J. of the Superior Court of Justice heard the motion. In a brief endorsement, he dismissed the action on the ground that it was statute-barred. Little J. also described the allegations contained in the claim as ill-defined, non-existent and groundless.
[10] The motion judge awarded costs of $6,000 against Pickard.
The Appellate Proceedings
[11] By Notice of Appeal dated May 6, 2010, Pickard has appealed the decision of Little J. dismissing his action against the Board. Within two months of filing his original Notice of Appeal, Pickard has filed two further notices amending the original notice. He has not yet perfected his appeal, nor has he paid the costs award made against him on dismissal of his action.
The Motion for Security for Costs
[12] The Board applies under Rules 61.06(1)(a) and 61.06(1)(b) for an order for security for costs of the appeal in the amount of $14,000.00.
The Positions of the Parties
[13] The Board says that the appeal filed by Pickard is frivolous and vexatious. Pickard has insufficient assets in Ontario to pay the Board’s costs when his (Pickard’s) appeal fails, as inevitably it must. His financial state is best evidenced by his failure to pay the modest costs award made by Little J. at first instance.
[14] Pickard contends that the appeal is neither frivolous nor vexatious. The motion before Little J. was based on Rule 21, yet the motion judge dismissed it by invoking Rule 20. The motion judge also erred in concluding that Pickard’s cause of action arose on the date of his acquittal on appeal, April 27, 1998, rather than in March, 2003, when Pickard discovered that the London Police Service had not removed the quashed conviction from its records management system.
[15] Pickard further argues that the motion judge had an inadequate evidentiary record upon which to ground his conclusion that the claim had not merit.
The Governing Principles
[16] Rule 61.06(1) affords three discrete bases upon which a judge may order an appellant to provide security for costs of an appeal:
i. there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient Ontario assets to pay the appeal costs;
ii. an order for security for costs could be made against the appellant under Rule 56.01; or
iii. there is some other good reason to order security for costs.
[17] The language of Rule 61.06 is permissive, not mandatory. A respondent is not entitled as of right to an order for security for costs for the appeal. The permissive “may” and not the imperative or mandatory “shall” frames the authority to make the order. Even if the respondent meets the requirements in the applicable paragraph of Rule 61.06(1), the permissive “may” would seem to reserve to the motion judge a vestige of discretion to refuse the order. The overarching principle to be applied to all the circumstances is the justness of the order sought.
[18] The modifier “good reason to believe” applies to both requirements in Rule 61.06(1)(a):
• the appeal is frivolous and vexatious
• the appellant has insufficient assets in Ontario to pay the costs of the appeal
The standard imposed by “good reason to believe” does not demand that the motion judge reach a definitive conclusion, make an affirmative finding or actually determine that the appeal is frivolous and vexatious and that the appellant lacks sufficient Ontario assets to pay the appeal costs. Rather, “good reason to believe” suggests a tentative conclusion of absence of merit and assets: Schmidt v. Toronto-Dominion Bank (1995), 1995 CanLII 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at p. 5. After all, the order for security for costs is neither dispositive of the appeal nor fully informed in the absence of a complete record of the proceedings at first instance. The standard reflects an appropriate balance of competing interests, not demanding too much of the respondent or settling for too little from the appellant.
[19] A frivolous appeal is one readily recognizable as devoid of merit, as one having little prospect of success. The reasons may vary. A vexatious appeal is one taken to annoy or embarrass the opposite party, sometimes fuelled by the hope of financial recovery to relieve the respondent’s aggravation.
[20] Rule 61.06(1)(b) incorporates the provisions of Rule 56.01 as a basis upon which security for costs for an appeal may be ordered. In this case, the only additional basis lies in Rule 56.01(1)(c), which permits an order for security for costs because the Board has an order for costs against Pickard made by Little J. in the proceedings below that remains unpaid.
The Principles Applied
[21] The motion judge dismissed Pickard’s claim because it was statute-barred. The cause of action arose in 1998 when Pickard’s conviction was set aside, thus should have been removed from the London Police Services’ Records of Convictions. The action against the Board was begun over a decade later. The relevant limitation periods had long since expired, according to the motion judge.
[22] The motion judge also appears to have concluded that the statement of claim disclosed no reasonable cause of action.
[23] There is good reason to believe that the appeal from the order of Little J. is frivolous and vexatious. The principal claim advanced by Pickard is one of malicious prosecution. Proceedings against him ended when his conviction was quashed on April 27, 1998. Undue retention of his then recorded conviction in local police files was not a prosecution, nor the continuation of the earlier prosecution. By any statute of general or specific application, the limitation period had expired when his notice of action and statement of claim were filed. His further claim for Charter damages is incapable of definition, not to mention proof.
[24] By his own admission, Scott Pickard has insufficient assets to pay an award of costs. He has not paid the costs ordered by Little J. He admits he has no money. Documents served on him are delivered to a mailbox. We do not know where he lives.
[25] To determine whether it is just to make an order for security for costs of the appeal in this case, I have considered whether to do so would deny Pickard access to justice. For all practical purposes, such an order would prevent his pursuit of an appeal. But it is an appeal that appears at once frivolous and vexatious. The original claims were filed well out of time. The turgid statement of claim discloses no reasonable cause of action. Access to justice is not a passport that entitles the bearer to pursue endlessly and prosecute interminably hopeless causes against public bodies on the taxpayers’ dime. To deny meritless claims is not to curtail access to justice, rather to facilitate access to justice by making room for legitimate claims.
[26] The Board seeks an order for security for costs for the appeal. In the circumstances, I see no reason not to make such an order. The amounts suggested by the Board seem somewhat excessive in light of the issues raised.
Conclusion
[27] In the result, Scott Pickard is ordered to post security for costs of the motion below and of the appeal in the total amount of $8,000.00. The security shall be in a form satisfactory to counsel for the respondent and shall be deposited with the Registrar of this court within 60 days of this order. Until the security has been given, the appellant may not take any further steps in this proceeding except an appeal from this order. In the event security is posted, Pickard shall have 60 days from that date to perfect his appeal.
[28] The Board is entitled to its costs of this motion, which I fix at $1,500.00 inclusive of all applicable taxes payable by Pickard within 30 days of this order.
RELEASED: October 1, 2010
“David Watt J.A.”