Court of Appeal for Ontario

Date: 2018-03-05

Docket: M48645 (C61734)

Motions Judge: Fairburn J.A.

Between

Fermino Susin Applicant (Responding Party)

and

Dorino Susin, John Susin, Anita Rahman, Dianne Susin, Sister Stella Marie, Gloria Devenz, Esther Susin and Theresa Lensborn Respondents (Moving Parties)

And Between

John Susin Applicant

and

Fermino Susin, Dorino Susin, Anita Rahman, Dianne Susin, Sister Stella Marie, Gloria Devenz, Esther Susin and Theresa Lensborn Respondents

Counsel

John Susin, in person

Sarah Whitmore, duty counsel

Margaret Hoy, via teleconference

Heard: March 1, 2018

Endorsement

[1] The moving parties seek an extension of time to file a motion to set aside the August 2, 2017 order of Gillese J.A. requiring that they each post $15,000 as security for costs in their appeal from the decision of Susin v. Susin, 2016 ONSC 311. For the reasons that follow, the motion is dismissed.

[2] By way of background, the parties' father passed away in 1997. His estate was a modest one. After years of litigation, his estate is virtually non-existent.

[3] John Susin represented himself on this motion to obtain an extension of time. Duty counsel assisted him. John Susin also purports to speak on behalf of the other moving party, his sister Esther, who was not present in court during the motion and was not represented by counsel.

[4] In September 2015, Esther brought a motion in the Superior Court of Justice for directions in relation to her father's estate. The motion was dismissed as an abuse of process. She then moved before Ramsay J. to set aside that finding, claiming that it had been obtained by fraud. She also asked to have the executor of the estate, her brother Fermino Susin (the respondent on this motion), cited in contempt. Esther was wholly unsuccessful in obtaining the relief she sought. I have read Ramsay J.'s reasons for dismissing the motion and they appear to be factually based and entirely sound.

[5] The moving parties appeal from Ramsay J.'s decision. It is this appeal that forms the backdrop for Gillese J.A.'s order for security for costs. The moving parties are not permitted to pursue their appeal until the security for costs are paid. Pursuant to s. 7(5) of the Courts of Justice Act, the moving parties now wish to move before a panel of this court to have the security for costs order set aside.

[6] Rule 61.16(6) requires that where a person wishes to move to set aside or vary the order of a single judge of an appellate court under ss. 7(5) or 21(5) of the Courts of Justice Act, he or she shall do so by a notice of motion "that is served and filed, with proof of service, within four days after the order is made".

[7] John Susin maintains that he served his notice of motion on August 8, 2017 but, through inadvertence, failed to file the notice of motion in court. According to John Susin, the failure to file the notice of motion only came to his attention in mid-December. It is now almost seven months past what the rules require.

[8] The test for an extension of time for filing a notice of appeal provides guidance on the relevant criteria for consideration in this context. The question is whether the "justice of the case" requires that the extension be given. In Howard v. Martin, 2014 ONCA 309, 42 R.F.L. (7th) 47, the court sets out the relevant criteria at para. 26:

Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:

1. whether the moving party formed a bona fide intention to appeal within the relevant period;
2. the length of, and explanation for, the delay in filing;
3. any prejudice to the responding party that is caused, perpetuated or exacerbated by the delay; and,
4. the merits of the proposed appeal.

[9] I accept that within six days of the security for costs order being made, the moving parties formed an intention to seek to have the order set aside. Although the rules require service and filing within four days, not much turns on this two day differential. For all intents and purposes, the moving parties formed a bona fide intention to challenge the security for costs order within the required time. For the sake of argument, I am also prepared to accept that the failure to file the notice of motion resulted from an oversight on the part of the moving parties. Although these factors could be said to pull toward allowing the extension of time, the other factors pull strongly against granting this order. Not only is there no merit to the motion to set aside the order of Gillese J.A., but the respondent will be significantly prejudiced by allowing this matter to be taken any further.

[10] The moving parties have failed to show any reason why the order for security for costs is wrong. A decision about whether to require security for costs is a discretionary one that must be afforded deference: Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 20. In determining whether an order for security for costs should be made, the "overarching principle to be applied to all the circumstances is the justness of the order sought": Pickard v. London Police Services Board, 2010 ONCA 643, 268 O.A.C. 153, at para. 17. This court set out the applicable test for deciding a motion for security for costs in Chevron, at para. 22:

[J]udges are obliged to first consider the specific provisions of the Rules governing those motions and then effectively to take a step back and consider the justness of the order sought in all the circumstances of the case, with the interests of justice at the forefront.

[11] Justice Gillese approached the matter in exactly this way. The decision demonstrates that she considered the rules governing the motion and focussed on the justness of the order in the circumstances of the case. Among other things, Gillese J.A. specifically considered: (i) the length of time that this matter had been under litigation; (ii) the adverse impact that the moving parties' actions have had on the respondent; (iii) the fact that there are many outstanding costs orders left unpaid by the moving parties and, in particular, John Susin; (iv) the fact that the moving parties should not be permitted to proceed with impunity; and (v) the fact that the appeal appeared to be "wholly devoid of merit".

[12] The moving parties have failed to show any basis upon which the order for security for costs could be set aside. The proposed motion to set aside the security for costs order is without any merit.

[13] In addition, I find that there would be significant prejudice to the respondent if the extension of time were granted. The estate is virtually without funds. The respondent's counsel says that, at this point, the unpaid legal fees outstrip the $5,000 left in the estate. Given John Susin's well-documented history of failing to pay costs orders, I have no confidence that costs resulting from what appears to be an entirely frivolous motion would be paid.

[14] Indeed, the respondent filed evidence on this motion that demonstrates a continuous and blatant flouting of costs orders since 2007. I accept this evidence as true. Although John Susin suggests he has paid all of the costs orders up to 2009, the respondent's counsel maintains that Mr. Susin has paid nothing. It is suggested that, to the extent that legal fees have been paid, they have come from the estate and not from John Susin. Regardless, even if I were to accept that John Susin has paid costs orders up to 2009, it still means that he has not paid many thousands of dollars in costs since that time.

[15] Having regard to all of the circumstances, including the seemingly meritless attempt to challenge Gillese J.A.'s order and the multiple and hefty unpaid costs orders, the interests of justice require that the request for an extension of time to bring a motion to set aside the security for costs order be dismissed.

[16] I conclude by making the following observation. John Susin was declared a vexatious litigant by Quinn J. in 2008. This court upheld the vexatious litigant finding in Susin v. Susin, 2009 ONCA 231, holding, at para. 1:

[T]he record shows that there was ample evidence to support his finding that the appellant is a vexatious litigant. His conduct in this case is indicative of his persistent and unwarranted pursuit of legal proceedings that are both meritless and frivolous. His conduct has resulted in enormous inconvenience and expense, over many, many years, to opposing litigants and in this era of strained court resources, he can no longer be permitted unrestrained access to the courts of Ontario.

[17] Since this court dismissed John Susin's effort to have the vexatious litigant designation set aside almost a decade ago, at a minimum, it appears that he has brought motions before over fifteen different judges, on over twenty different days, in at least four different jurisdictions. The respondent has faced the daunting task of attempting to navigate his way through this labyrinth of litigation brought by John Susin, all the while facing an increasingly dwindling estate.

[18] The sea of court orders, endorsements and decisions in this matter reinforce the status of John Susin as a vexatious litigant, one who frequently manages to obtain court dates in defiance of the 2008 order that he not commence or continue any judicial proceeding or motion except with leave of the Superior Court of Justice. As noted by Ramsay J. in Susin v. Susin, 2015 ONSC 5896: "This is one of the most extreme examples of persistent vexatious litigation that I have ever encountered. Further abuse of the court system must be halted decisively and without delay."

[19] In the hope that it might assist those who may be confronted with John Susin's attempts to file documents in court, I refer to the 2008 order of Quinn J. As noted in that order, John Susin is not permitted to commence or continue any judicial proceeding or motion except with leave of the Superior Court of Justice. Nor is he permitted to seek leave to commence or continue any judicial proceeding, action or motion against Fermino Susin or the estate or beneficiaries of the estate of John Susin Sr., or its executors, unless "all outstanding cost awards owing to Fermino Susin and the Estate of John Susin Sr. by John Susin Jr. are paid in full". For convenience, I append the 2008 vexatious litigant order to these reasons.

Conclusion

[20] The motion to extend time to file a notice of motion to set aside the security for costs order is dismissed. The moving parties are ordered to pay the respondent costs fixed in the amount of $1,000 all inclusive.

Released: March 5, 2018

Fairburn J.A.

Appendix A

(2008 Vexatious Litigant Order appended to original decision)