1372708 Ontario Inc. v. Ravenda Homes Ltd., 2017 ONCA 556

Case Summary

The moving party sought to review and set aside a chambers judge's decision denying its request for security for costs against the respondent. The security was sought for the main action, the appeal, and the cross-appeal in the Divisional Court, in the aggregate amount of $485,316.23. The chambers judge had refused the order based on delay in bringing the motion, the fact that trial costs had not been determined, the respondent's construction lien judgment in its favour, and the excessive amount claimed for appeal costs. The appellate panel upheld the chambers judge's decision, finding that considerable deference was owed and that the chambers judge had properly applied the law and reasonably concluded that the justice of the case required refusal of the security order.

Court of Appeal for Ontario

Date: 2017-06-29

Docket: M47680 (C61630)

Panel: LaForme, Hourigan and Paciocco JJ.A.

Parties

Between

Ravenda Homes Ltd. Plaintiff

and

1372708 Ontario Inc. and Vaughn Gibbons Defendants

And Between

1372708 Ontario Inc. Plaintiff by Counterclaim (Respondent/Moving Party)

and

Ravenda Homes Ltd. and John Ravenda Defendants by Counterclaim (Appellant/Responding Party)

Counsel

Robert C. Harason, for the moving party

Peter H. Griffin, for the responding party

Heard and released orally: June 28, 2017

Reasons for Decision

[1] Justice Sharpe sitting as a chambers judge denied 1372708 Ontario Inc.'s request to order security for costs against Ravenda Homes Ltd. The security for costs being sought was for the main action, the appeal in the main and for the cross-appeal in the Divisional Court. The aggregate amount requested was $485,316.23. At para. 14 of his decision, Sharpe J.A. summarized his reasons as follows:

In view of the delay in bringing this motion, the fact than neither entitlement no quantum of the trial costs has been determined, the construction lien judgment in Ravenda's favour, and the excessive amount claimed for the costs of the appeal, I am not persuaded that the justice of this case favours an order for security of the costs.

[2] 1372708 Ontario Inc. asks this court to review Sharpe J.A.'s order and set it aside or vary it pursuant to s. 7(5) of Courts of Justice Act, R.S.O. 1990, c. 43 as amended.

[3] For a panel of this court, reviewing the decision of a chambers judge considerable deference is owed, see R. v. Gatfield, 2016 ONCA 23.

[4] A judge of this court has discretion to award security for costs of an appeal, as well as the costs of the underlying motion for trial. Security for costs may be ordered in 3 categories of cases, as set out in Rule 61.06(1). The overarching principle to be applied to all the circumstances is the justness of the order sought, see Pickard v. London Police Services Board, 2010 ONCA 643 (Watt J.A., in chambers), at para. 17.

[5] Justice Sharpe appreciated and applied the correct law and reached his conclusions on facts that are not disputed by 1372708 Ontario Inc. Even if Sharpe J.A. had found that all the requirements had been met to satisfy an order of security for costs, he was still entitled to refuse it if he found the justice of the case required this: see Galustian v. SkyLink Group of Companies Inc., 2010 ONCA 645 (Watt J.A., in chambers), at para. 26. His decision that the justice of the case required a refusal of the order and his reasons for it, were reasonable in all the circumstances.

[6] Justice Sharpe's decision is accorded the requisite deference and the review request is denied. Costs to the responding party in the amount of $7,000 inclusive of disbursements and HST.

"H.S. LaForme J.A."

"C.W. Hourigan J.A."

"David M. Paciocco J.A."