COURT OF APPEAL FOR ONTARIO

CITATION: Best v. Cox, 2013 ONCA 695

DATE: 20131114

DOCKET: M42922 & M42935 (C57123)

Feldman J.A. (In Chambers)

BETWEEN

Donald Best

Applicant (Appellant)

and

Richard Ivan Cox, Gerard Cox, Alan Cox, Philip Vernon Nicholls, Eric Ashby Bentham Deane, Owen Basil Keith Deane, Marjorie Ilma Knox, David Simmons, Elneth Kentish, Glyne Bannister, Glyne B. Bannister, Philip Greaves a.k.a. Philip Greaves, Gittens Clyde Turney, R.G. Mandeville & Co., Cottle, Catford & Co., Keble Worrell Ltd., Eric Iain Stewart Deane, Estate of Colin Deane, Lee Deane, Errie Deane, Keith Deane, Malcolm Deane, Lionel Nurse, Leonard Nurse, Edward Bayley, Francis Deher, David Shorey, Owen Seymour Arthur, Mark Cummins, Graham Brown, Brian Edward Turner, G.S. Brown Associates Limited, Golf Barbados Inc., Kingsland Estates Limited, Classic Investments Limited, Thornbrook International Consultants Inc., Thornbrook International Inc., S.B.G. Development Corporation, The Barbados Agricultural Credit Trust, Phoenix Artists Management Limited, David C. Shorey and Company, C. Shorey and Company Ltd., First Caribbean International Bank (Barbados) Ltd., Price Waterhouse Coopers (Barbados), Attorney General of Barbados, the Country of Barbados, and John Does 1-25, Philip Greaves, Estate of Vivian Gordon Lee Deane, David Thompson, Edmund Bayley, Peter Simmons, G.S. Brown and Associates Ltd., GBI Golf (Barbados) Inc., Owen Gordon Finlay Deane, Classic Investments Limited and Life of Barbados Limited c.o.b. as Life of Barbados Holdings, Life of Barbados Limited, David Carmichael Shorey, PricewaterhouseCoopers East Caribbean Firm, Veco Corporation, Commonwealth Construction Canada Ltd., and Commonwealth Construction Inc.

Respondents (Respondents)

Paul Slansky, for the appellant

Robert Harrison and Gerald Ranking, for the respondent, PricewaterhouseCoopers East Caribbean Firm

William Burden and Lorne Silver, for the respondent, Kingsland Estates Limited

Heard: October 29, 2013

On appeal from the orders of Justice J. Bryan Shaughnessy of the Superior Court of Justice, dated January 15, 2009, and May 3, 2013.

Feldman J.A.:

[1] Two motions were heard in the context of an appeal by Mr. Best from: a) a finding of civil contempt made against him by Shaughnessy J. on January 15, 2009, the imposition of a fine of $7,500, and an order that he be incarcerated for three months unless he purges the contempt; and b) an order of May 3, 2013, where Shaughnessy J. dismissed an application to set aside the finding of contempt.

[2] One motion was brought by Mr. Best for an order that counsel for each of the two respondents, PricewaterhouseCoopers East Caribbean Firm and Kingsland Estates Limited, be removed and prevented from arguing the appeal based on allegations of misconduct in the proceedings appealed from. Mr. Harrison and Mr. Burden argued this motion as the conduct of the other two counsel was being impugned. The second motion was brought by the two respondents for security for the costs of the appeal.

(1) The Removal Motion

[3] The appellant seeks to have the court remove counsel and their law firms from the record for alleged misconduct in the contempt proceedings and in the proceeding to set aside the contempt order. The allegations against the lawyers that are raised on this motion were raised and rejected by Shaughnessy J. in his May 3, 2013 ruling where he refused to withdraw the contempt order. All of the allegations and submissions made on this motion are also grounds of appeal on the main appeal.

[4] The allegations relate primarily to the events surrounding the appellant’s failure to attend for examination as ordered and what he knew about the order requiring him to attend and when he knew about it. He alleges that counsel for the respondents deliberately misled the motion judge on what occurred. This was not only rejected by the motion judge, but he made it clear that his findings were based on the appellant’s own letters, recorded words and actions. The appellant also argues that the lawyers now have a conflict of interest as they now have an interest in protecting their own reputations which conflicts with their clients’ interest on the appeal. He also says that he intends to bring a fresh evidence motion where the respondents’ lawyers will be witnesses.

[5] The appellant is effectively asking the court on the motion to make a preliminary determination that Shaughnessy J. erred in rejecting the allegations of misconduct, or that he may have erred or that it is arguable that he erred, and on that basis, to remove counsel at this stage.

[6] Clearly that cannot be done. The record as it stands is that there was no misconduct. Shaughnessy J. stated repeatedly that the allegations were spurious and baseless. He was the case management judge over a period of several years. Considerable deference is owed to his findings. To the extent that the misconduct issue is relevant to the finding of contempt, it will be determined on the appeal. The conflict of interest allegation arises directly from and depends on the misconduct allegations.

[7] No motion to introduce fresh evidence or to examine the respondents’ lawyers has been brought. I will therefore not comment on the likely outcome of such a motion.

[8] This court has recently re-iterated the principle that a court will only in the rarest of cases grant a removal motion: see Kaiser (Re), 2011 ONCA 713, 205 O.A.C. 275 (Cronk J.A. in Chambers); Manftoun v. Banitaba, 2012 ONCA 786, [2012] O.J. No.5376 (Weiler J.A. in Chambers). As Cronk J.A. stated in Kaiser (Re), at para. 21:

As the motion judge properly noted, “A litigant should not be deprived of counsel of its choice without good cause…” For this reason, Canadian courts exercise the highest level of restraint before interfering with a party’s choice of counsel. Where such discretionary, equitable relief is invoked, there must be a possibility of real mischief should a removal order be refused. The test is whether a fair-minded and reasonably informed member of the public would conclude that counsel’s removal is necessary for the proper administration of justice … [Citations omitted.]

[9] I am satisfied that a fair-minded and reasonably informed member of the public would not conclude that removal of respondents’ counsel is necessary for the proper administration of justice. The motion is therefore dismissed.

[10] The appellant, through his counsel, has made serious allegations of deliberate misconduct against the two counsel for the respondents both in writing and in open court in the face of a finding to the contrary. In my view, that tactic requires the court to express its condemnation by awarding costs on the full indemnity scale. Costs are fixed in the amount of $24,000 for PricewaterhouseCoopers and $48,000 for Kingsland, all inclusive.

(2) The Security for Costs Motion

[11] The respondents move for security for costs of the appeal. In light of what they and the motion judge say is the egregious conduct of the appellant during this proceeding, all of which is discussed in detail by the motion judge, the respondents seek security for costs at the substantial indemnity level.

[12] They rely on rules 61.06(1)(a) and (c), which provide:

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; … [or]

(c) for other good reason, security for costs should be ordered,

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.

[13] Under subrule (a), the respondents say that the appeal is frivolous and vexatious. They point to the record and the careful findings of the motion judge that the appellant knew of the order requiring him to appear and did not do so, either on the ordered day or on a number of days thereafter when he was given further opportunities to do so. They also point to the detailed findings of the motion judge on the motion to set aside the contempt finding, that the appellant did not purge his contempt as he said he did, but lied to the court, and to the motion judge’s failure to accept the appellant’s apology because he found that it was not genuine.

[14] The appellant says he is impecunious. That is sufficient for the second part of subrule (a). However, the respondents’ counsel submit that the appellant has been able to fund this litigation, indicating that he has access to funds and will be able to pay if costs are ordered as a condition of proceeding with the appeal.

[15] In my view, there is a legal issue that arises on the facts of this case which is not frivolous. The issue relates to the penalty imposed for the contempt and the appellant’s ability at this stage to purge his contempt.

[16] The appellant is the principal of the plaintiff in the action, Nelson Barbados Group Ltd. The action was dismissed in 2009 for lack of jurisdiction in Ontario. Prior to the dismissal, the plaintiff withdrew against several defendants including PricewaterhouseCoopers. The order of November 2, 2009, ordered the appellant to appear on November 17, 2009, at Victory Verbatim to answer questions the answers to which would be used by the court to determine and award the costs of the action. Some defendants were seeking costs against the appellant personally. The appellant did not appear and was found in contempt of the November 2, 2009 order.

[17] Following the contempt finding against the appellant, the entire action and costs were settled with all defendants and the agreed costs were paid. Apparently it is not known who provided the funds to pay the costs, but the Minutes of Settlement provide that the costs agreed to are for the entire action. As a result, the action is over and the costs of the action have been paid.

[18] In those circumstances, it is unclear to me on what basis the appellant could be required to now appear and answer questions in accordance with the original order. Counsel for the respondents advised this court, as they did Shaughnessy J., that they still need to find out information about the relationship between the appellant and the Barbados assets that were the subject of the action. They need the information for other litigation that was or is still being pursued against the defendants in other jurisdictions. It is not clear on what basis they can now obtain that information in the context of this contempt proceeding.

[19] If there is an issue with the ability of the appellant to now purge his contempt, this may also raise an issue with respect to the enforceability of the penalty of incarceration at this stage.

[20] As I have concluded that the appeal raises a legal issue that is not frivolous, and in addition involves the liberty of the subject, this is not a case where security would be ordered under either subrule (a) or (c). There should be no order for security for costs. The motion is therefore dismissed with costs of $25,000 inclusive, payable in the cause.

“K. Feldman J.A.”