COURT OF APPEAL FOR ONTARIO

CITATION: Baradaran v. Tarion Warranty Corporation, 2016 ONCA 712

DATE: 20160928

DOCKET: C61582

Weiler, Blair and van Rensburg JJ.A.

BETWEEN

Manoucher Baradaran

Appellant (Plaintiff)

and

Tarion Warranty Corporation, Roger Boyd, Abbassgholi Nasseri, Master Custom Homes

Respondents (Defendants)

Manoucher Baradaran, acting in person

Sophie Vlahakis, for the respondent Tarion Warranty Corporation

Howard L. Shankman, for the respondent Master Custom Homes and Abbassgholi Nasseri

Heard: September 23, 2016

On appeal from the order of Justice Frederick L. Myers of the Superior Court of Justice, dated December 16, 2015.

ENDORSEMENT

[1] The appellant appeals the order dismissing his action pursuant to rules 57.03(2) and 60.12 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for failing to pay various costs awards against him that had been outstanding for up to three years.

[2] Pursuant to rule 57.03(2), where a party fails to pay the costs of a motion, the court may dismiss or stay the party’s proceeding. Additionally, rule 60.12 provides that where a party fails to comply with an interlocutory order, the court may stay or dismiss the party’s proceeding.

[3] The respondents brought a motion to dismiss the action against them for the appellant’s failure to comply with outstanding costs orders. (The statement of claim as against the defendant Boyd had been previously struck.) The motion was before Myers J., who was case managing the action. By order dated November 26, 2014, he gave the appellant until February 1, 2015 to pay the outstanding costs, in default of which the respondents could move without notice for the dismissal of the appellant’s action. The appellant’s appeal to this court of the November 26, 2014 order was quashed as the order was interlocutory. Leave to appeal the order was refused by the Divisional Court.

[4] After the outstanding costs remained unpaid, the respondents brought their motion before Myers J. to dismiss the action. The motion was granted on December 16, 2015, with costs of the action fixed at $8,829.53 for Tarion Warranty Corporation and $6,910.00 for the other respondents.

[5] The appellant makes three arguments on appeal.

[6] First, the appellant challenges the amount of the costs that he was ordered to pay before his action was dismissed. He says that some of his costs obligations were discharged by an earlier order of this court in August 2014 (2014 ONCA 597). The order in that appeal set aside an order of the Superior Court that, among other things, declared the appellant a vexatious litigant, and the costs associated with that order. The costs that were set aside by this court were not included in the calculation of the appellant’s outstanding costs obligations by the motion court. In any event, the amount of costs payable by the appellant was fixed by the order of November 26, 2014, and is not properly the subject of this appeal.

[7] Second, the appellant raises other matters and events relating to the history of the litigation between the parties. These are simply a repetition of the appellant’s earlier grievances, are not material to this appeal, and would not have justified his failure to pay the outstanding costs awards.

[8] Finally, the appellant makes allegations of bias against the motion judge, claiming interference in the motion by another judge who had ruled against him earlier in the proceedings. These allegations are entirely unfounded and without merit.

[9] In sum, the procedure adopted by the motion judge was fair to all parties, and he applied the correct test after giving proper consideration to all relevant factors. The motion judge recognized that, while court orders, including costs orders, are meant to be obeyed, he had a discretion, in the interest of access to justice, to permit an action to proceed notwithstanding default in the payment of costs. The motion judge considered the factors relevant to the proceedings, including the appellant’s self-represented status. In this case the appellant had offered no reason for his non-payment of costs. The motion judge appropriately exercised his discretion to dismiss the case.

[10] For these reasons the appeal is dismissed. The appellant shall pay costs of $3,000 to the respondent Tarion Warranty Corporation and $3,000 to the respondents Abbassgholi Nasseri and Master Custom Homes, both sums inclusive of applicable taxes and disbursements. The order of this court is made against the appellant Manoucher Baradaran and against “Manouchehr Baradaran”, which is an alternate spelling used by the appellant in litigation. Order to go dispensing with the appellant’s approval as to form and content of the respondents’ draft of this order.

“K.M. Weiler J.A.”

“R.A. Blair J.A.”

“K. van Rensburg J.A.”