COURT OF APPEAL FOR ONTARIO

CITATION: Best v. Cox, 2014 ONCA 167

DATE: 20140304

DOCKET: M43185, M43214 and M43229 (C57123)

MacPherson, Gillese and Pardu JJ.A.

BETWEEN

Donald Best

Plaintiff (Appellant/Moving Party/Responding Party)

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, Gold 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., PricewaterhouseCoopers (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.

Defendants (Respondents/Responding Parties/Moving Parties)

Paul Slansky, for the appellant

Gerald L.R. Ranking, for the respondent PricewaterhouseCoopers East Caribbean Firm

Lorne S. Silver, for the respondent Kingsland Estates Limited

Heard: February 27, 2014

On motion to review single judge orders made November 14, 2013, December 3, 2013 and December 12, 2013 on the appeal from the judgment of Justice J. Bryan Shaughnessy of the Superior Court of Justice, dated May 3, 2013.

ENDORSEMENT

[1] Three motions to review orders of a single judge of this court, pursuant to s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, are before this panel.

[2] The appellant Donald Best brings two motions. The respondents PricewaterhouseCoopers East Caribbean Firm (“PwC”) and Kingsland Estates Limited (“Kingsland”) bring one motion.

[3] The underlying appeal is scheduled to be argued on June 2, 2014 with a time allocation of three hours.

The appellant’s motions

(1) Blair J.A.’s decision dated December 12, 2013

[4] The appellant seeks an order setting aside the decision of Blair J.A. dated December 12, 2013, directing that the appellant’s motions brought under s. 7(5) of the Courts of Justice Act be heard today, February 27, 2014. The appellant contends that these motions should be adjourned and heard together with the appeal on June 2, 2014.

[5] We disagree. The appellant’s principal motion seeks the removal of the respondents’ counsel from the appeal on the grounds of professional misconduct, including allegations of criminal obstruction of justice, abuse of process, inappropriate dissemination of information, and fraud.

[6] In our view, it makes no sense to adjourn the removal of counsel motion to the date set for the appeal hearing. Such a result would be prejudicial to the respondents and wasteful of this court’s time and resources. If the appellant’s motion is heard today and granted, the respondents will have ample time to retain new counsel for the appeal hearing in June. If the motion is dismissed, all parties can proceed to the June hearing knowing that there is no chance of it being derailed on the actual hearing date by a motion seeking removal of the respondents’ counsel. In short, Blair J.A.’s order makes perfect sense.

[7] The appellant’s motion is dismissed.

(2) Feldman J.A.’s decision dated November 14, 2013

[8] The appellant seeks an order setting aside the decision of Feldman J.A. dated November 14, 2013, dismissing the appellant’s motion to remove both respondents’ counsel from the record and fixing costs, on a full indemnity scale, at $24,000 for PwC and $48,000 for Kingsland.

[9] On the basis of the original record on this motion, there is no basis for making the order now requested. We explicitly agree with Feldman J.A.’s analysis and disposition.

[10] The appellant has filed fresh evidence. In his motion record relating to the fresh evidence, the appellant asserts:

The Appellant has recently discovered evidence that one of the most important pieces of evidence relied upon below, an affidavit to obtain substituted service and ratification of service, sworn by a private investigator, Jim Van Allen in October 2009, was a product of criminal and/or quasi-criminal misconduct. It is alleged that Mr. Ranking, and likely Mr. Silver, Respondents’ Counsel, were aware of this situation and were thereby parties to these offences.

The Appellant was told by the O.P.P. that Van Allen was a former O.P.P. police officer who had retired in 2008. What has recently been discovered is that this is a lie. In fact, Van Allen was a serving police officer, with likely official police involvement in this very case, until 2010.

[11] We would not admit the fresh evidence. It suffers from an overwhelming problem: it is utterly irrelevant to Feldman J.A.’s decision which was explicitly anchored in recognition that Shaughnessy J. was the case management judge for several years; accordingly, said Feldman J.A., “[c]onsiderable deference is owed to his findings.”

[12] The entire thrust of the fresh evidence is to attack Mr. Van Allen’s affidavit in support of the respondents’ attempt to obtain substituted service for the appellant because his whereabouts were difficult to ascertain. On this point, two crucial observations must be made. First, Shaughnessy J. did not rely on substituted service or the Van Allen affidavit in his contempt reasons which form the subject matter of the appeal. Second, the appellant himself confirmed, in an affidavit and during cross-examination on his affidavits, that he obscured his residential address. In an affidavit, the appellant deposed that “I have used unlisted phone numbers and post box offices to conceal my home address.” In the cross-examination, he said: “Sir, I have had and have used various addresses that are not my residence address since ’76, ’78, somewhere around there.”

[13] In short, the proposed fresh evidence is irrelevant to the appeal and, therefore, would have been irrelevant to the disposition of the motion before Feldman J.A.

[14] The appellant’s motion is dismissed.

The respondents’ motion

(3) Feldman J.A.’s decision dated December 3, 2013

[15] The respondents seek an order setting aside or varying the decision of Feldman J.A. dated December 3, 2013, which did not impose a date for the appellant to pay the costs ($72,000) she had awarded to the respondents in her earlier decision on November 14, 2013.

[16] In her November 14, 2013 endorsement, Feldman J.A. said:

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.

[17] Following the release of this endorsement, the appellant brought another motion seeking an order “varying the costs order made by Justice Feldman to costs in the cause”.

[18] In an endorsement dated December 3, 2013, Feldman J.A. said:

[T]he concern of the appellant is that he says he is unable to pay the costs ordered against him on the removal motion. He is concerned that if he is unable to pay before the hearing of the appeal, then he will not be able to have his appeal against the contempt order heard and will therefore be re-incarcerated for contempt.

The respondents have drafted the order to make those costs payable “forthwith”. That condition was not part of my reasons. The appeal has been scheduled for January 14, 2014. Although the respondents may ask the panel not to hear the appeal if the costs are not paid by then, that condition is not part of my order.

[19] The appeal is now scheduled for June 2, not January 14, 2014. The respondents say that the “expression of condemnation” in Feldman J.A.’s November 14, 2013 decision reflected in her award of $72,000 in costs on a full indemnity basis will be lost if the appellant does not have to pay these costs before the appeal hearing. The respondents also assert that there is no evidence that the appellant is impecunious; on the contrary, the record established that he has been able to retain, and pay, two senior lawyers throughout these proceedings.

[20] We agree with both of these submissions. The reality is that, even after Feldman J.A.’s two decisions and Blair J.A.’s decision, the appellant continues to bring motions seeking to remove the respondents’ counsel from the record and trying to postpone such motions to the scheduled appeal hearing in June, a procedure which makes no sense. Moreover, there is no evidence suggesting that the appellant is impecunious; indeed, the appellant has never personally made such an assertion under oath.

[21] The respondents’ motion is granted. The appellant shall pay the $72,000 costs ordered by Feldman J.A. in her November 14, 2013 decision by Tuesday, April 1, 2014, failing which the Registrar is directed to dismiss the appeal.

Costs

[22] The respondents are entitled to their costs of the three motions. The costs of the appellant’s two motions should be on a full indemnity scale; the costs of the respondents’ motion should be on a partial indemnity scale. We fix these costs at $60,000 for each respondent, inclusive of disbursements and HST. These costs must also be paid by April 1, 2014, failing which the appeal cannot proceed.

“J.C. MacPherson J.A.”

“E.E. Gillese J.A.”

“G. Pardu J.A.”