Court of Appeal for Ontario

Date: September 6, 2017

Docket: M48213 & M48217 (C64044)

Epstein J.A. (In Chambers)

Between

Svitlana Novak Plaintiff (Appellant) (Responding Party on M48213/Moving Party on M48217)

and

St. Demetrius (Ukrainian Catholic) Development Corporation and Ukrainian Canadian Care Centre Defendants (Respondents) (Moving Parties on M48213/Responding Parties on M48217)

Counsel

• Svitlana Novak, acting in person
• Mark Wiffen, duty counsel
• Nicola Brankley, for St. Demetrius Ukrainian Catholic Development Corporation and Ukrainian Canadian Care Centre

Reasons for Decision

[1] The respondent, St. Demetrius (Ukrainian Catholic) Development Corporation owns and operates the other respondent, the Ukrainian Catholic Care Centre (the "UCCC"). On August 13, 2012, the appellant, Svitlana Novak, issued a statement of claim in this proceeding alleging that the respondents had wrongfully denied her a full-time position at the UCCC.

[2] The respondents brought a motion for summary judgment. By order dated September 30, 2014, Belobaba J. struck all of Ms. Novak's claims except the claim based on an alleged pre-contractual promise to give her a full-time position when one came available.

[3] On June 14, 2017, the action was dismissed after a trial by Diamond J. The trial judge found Ms. Novak's claim to be statute-barred and further held that Ms. Novak had failed to prove her claim on the merits.

[4] On July 13, 2017, Ms. Novak served a notice of appeal.

[5] On July 20, 2017, Diamond J. ordered Ms. Novak to pay the costs of the trial fixed in the amount of $110,000.

[6] Both Ms. Novak and the respondents seek relief within Ms. Novak's pending appeal.

Ms. Novak's Motion for Access to Trial Exhibits

[7] Ms. Novak asks for an order permitting her access to the original trial exhibits.

[8] The request is not contested. However, the respondents do seek two conditions. First, they ask for a term that Ms. Novak pay all appropriate costs associated with her access to and copying of the exhibits. Second, the respondents request that access be provided only in the presence of a representative of the respondents. On this record, both requests are reasonable.

The Respondents' Motion for Security for Costs

[9] The respondents seek an order for security for costs under r. 61.06(1) of the Rules of Civil Procedure that allows a judge to order security for costs in an appeal where it appears that 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. The rule also gives the court broad discretion to award security for costs where it is just.

[10] The respondents argue that there is good reason to believe that Ms. Novak's proposed appeal is both frivolous and vexatious.

[11] To succeed in her appeal, Ms. Novak has to prove that the trial judge made a palpable and overriding error not only in concluding that she commenced the action out of time but also that she failed to prove her case on the merits.

[12] With respect to the limitation period issue, the trial judge's reasons contain the following at paras. 21, 22 and 27:

In my view, the trial evidence leads me to the conclusion that the plaintiff has failed to satisfy her evidentiary onus as prescribed in section 5(2) of the Act. To begin, I am satisfied that, at least initially, the plaintiff was led to believe by the union (and arguably the defendants) that her cause of action was properly subject to the grievance procedure set out in the Collective Bargaining Agreement. When the plaintiff learned of Goutar's hiring, she complained to both Walpole and Lomaszewycz and received advice and assistance from the union to proceed with her grievance. Accordingly, I am satisfied that, at the outset of this matter, the plaintiff was not aware that a legal proceeding was the appropriate means to seek to remedy her loss/damage.

However, once the defendants dismissed her grievance, and the union took the position that they would not proceed any further with it, the plaintiff led no evidence whatsoever as to what had happened between June 2009 and April 2012. I have no facts upon which to even infer that the plaintiff was under a continuing mistaken belief that a legal proceeding was not the appropriate means to remedy her loss/damage. I do not know if the plaintiff received incorrect advice (whether from a lawyer, union or other person), nor do I know whether the plaintiff may have in fact been considering commencing a legal proceeding during that time period.

The provisions of the Act do not mention, directly or indirectly, a plaintiff's decision to commence a proceeding in the wrong forum as having the effect of preserving or tolling a limitation period. The plaintiff has failed to adduce any evidence in support of her obligation to rebut the statutory presumption that she knew or ought to have known that a legal proceeding was the appropriate means to remedy her loss/damage.

[13] Ms. Novak points to no evidence that would support a finding that the limitation period may not have begun to run after June 2009 when the union advised all parties that it would not be taking any further action regarding Ms. Novak's grievance.

[14] This is sufficient to lead me to believe that the appeal is frivolous. However, I add that the trial judge's findings of fact in support of her conclusions on the merits, particularly that there is no evidence to support the essential argument that Ms. Novak was ever promised a full-time position with the UCCC, are supported by the record.

[15] As I noted in York University v. Markicevic, 2017 ONCA 651, at para. 35, "an appeal that appears to rise even to the level of 'low prospect of success' or 'unlikely to succeed' is not 'frivolous and vexatious'. To find that an appeal is 'frivolous and vexatious' there must be something that supports the conclusion that the appeal is 'vexatious' in order for security for costs to be available under r. 61.06(1)(a)".

[16] I therefore turn to whether there is good reason to believe that the appeal is also vexatious in the sense that it is taken to annoy the respondents. In my view there is. I refer to Ms. Novak's conduct in the appeal including the email Ms. Novak sent to respondents' counsel in which she refers to the court system as a "circus" and that includes the following:

And YOU WANT MONEY FROM ME? FOR WHAT? FOR YOUR COSTUMERS (sic) Lies I WILL PAY MONEy? ARE YOU Joking?"

[17] This takes me to the respondents' argument that Ms. Novak does not have the resources to pay any costs of the appeal.

[18] The respondents submit that there is no evidence she has any assets or income from employment. Moreover, they point to Ms. Novak's own evidence; namely the email referenced above that she sent to their counsel stating she (Ms. Novak) has no money, no house, not car (sic) and over $80,000 in debts. Ms. Novak went on to say that "You will never ever gets (sic) from me any cents."

[19] On the basis of the evidence of the respondents and of Ms. Novak herself there is good reason to believe that Ms. Novak has insufficient assets to pay the costs of the appeal.[1]

[20] I therefore exercise my discretion and order security for costs.

The Amount

[21] The respondents estimate the costs of defending the appeal to be approximately $23,000, on a partial indemnity scale including disbursements and HST and ask for an order in that amount.

[22] An appeal from a trial that took seven days that raises these factual issues will be expensive. I am of the view that the amount of security for costs sought is reasonable.

Disposition

[23] I therefore order Ms. Novak access to the original trial exhibits at her cost and in the presence of a representative of counsel for the respondents.

[24] I also order Ms. Novak to post security for costs in the amount of $20,000. The security ordered shall be provided within 45 days of the date of the release of these reasons in a form satisfactory to counsel for the respondents, failing which a judge of this court may dismiss this appeal on a motion.

[25] The respondents are entitled to their costs of their motion (I award no costs of Ms. Novak's motion regarding the exhibits) in the amount of $2,500, inclusive of disbursements and HST.

Gloria Epstein J.A.

[1] In my view an order for security for costs under r. 56.01(c) would also be warranted.