Court of Appeal for Ontario

Date: 2018-03-21 Docket: M48928 (C63990) Motion Judge: Brown J.A.

Between

2363523 Ontario Inc. Plaintiff (Respondent/Responding Party)

and

Steven Nowack, Melissa Frishling, John Doe 1 to 10, Jane Doe 1 to 10 and Doe Corporations 1 to 10 Defendants (Appellant/Moving Party)

Counsel

Paul Slansky, for the moving party

Norman Groot, for the responding party

Heard: March 20, 2018

Endorsement

[1] The appellant, Steven Nowack, is appealing the order of Dunphy J. dated June 30, 2017, which imposed a further term of imprisonment of 21 days for what the parties call "Contempt No. 2". In that appeal, Hoy A.C.J.O. made an order dated December 6, 2017 requiring the appellant to post security for costs of $10,000 within 30 days (the "Order").

[2] The appellant seeks an extension of time to file a notice of motion for a panel review of the Order pursuant to s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the "CJA") and Rule 61.16(6) of the Rules of Civil Procedure. The respondent vigorously opposes the motion.

[3] The appellant served respondent's counsel with a notice of motion on January 10, 2018. However, Rule 61.16(6) required the service and filing of the notice of motion within four days after the Order was made, that is by December 10, 2017.

[4] Motions for the extension of time to file a court document require looking at several factors. Most importantly, they require looking at the justice of the case in all the circumstances: Paulsson v. University of Illinois, 2010 ONCA 21 (In Chambers), at para. 2.

[5] In the present case, a combination of factors leads me to grant the appellant an extension of time:

(i) I accept that the appellant formed an intention to seek a review of the security for costs Order shortly after it was made. The appellant has sought to review most orders made in this lengthy proceeding, so I have no doubt he quickly formed an intention to review the Order. That would be consistent with his usual habit;

(ii) The appellant moved with some dispatch to serve and file a notice of motion to review, albeit outside the very short four-day service window in the Rules;

(iii) The underlying appeal engages the liberty of the subject;

(iv) Two judges of this court have described the merits of the appeal from the order of Dunphy J. as "not frivolous" and having merit: Decision of Hoy A.C.J.O., at paras. 18 and 19; and

(v) Although orders for security for costs are discretionary in nature and usually entitled to deference, a panel of this court recently reversed an order for security for costs because the chambers judge had "erred in principle in determining the justness of the order sought": Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21. It therefore is difficult to predict the degree of deference that a panel will afford to any particular order for security for costs made by a single judge. As a result, I cannot assess the merits of the appellant's desired panel review of the Order with any degree of precision.

[6] However, Rule 3.02(1) states that the court may extend any prescribed time "on such terms as are just." As a general practice, motions to a panel to review an order of a single judge of this court are heard orally. Given the history of this proceeding, I am concerned that following the general practice of an oral hearing would result in undue delay in scheduling and then hearing the motion. Consequently, I direct that the appellant's review motion be heard by a panel of this court in writing.

[7] In fashioning this remedy, I am influenced by the most unfortunate, but increasing, practice of parties seeking panel reviews of single judge decisions pursuant to s. 7(5) of the CJA. That provision, quite unintentionally, is now fuelling the emergence of a motions culture in this court. Decisions of single judges on the simplest of procedural matters, such as the extension of time, now prompt a further motion demanding an "internal appeal" of the decision to a panel. Motion time is heaped upon motion time, which delays hearing an appeal on its merits.

[8] As a result, the terms that I am imposing in granting the appellant the indulgence of an extension of time are designed to bring the issue of the finality of the Order to a conclusion by the end of next month. Directing a motion in writing will ensure that result; leaving it to the parties to schedule an oral hearing only invites further delay.

[9] The appellant has had ample time to prepare his materials for a CJA s. 7(5) review of the Order. Accordingly, the schedule for filing materials – with sufficient copies for the panel in accordance with the Rules – is as follows:

(i) The appellant shall serve and file all materials for his CJA s. 7(5) review of the Order no later than Thursday, March 29, 2018;

(ii) The appellant may not file any further materials after March 29, 2018;

(iii) If the appellant fails to file his materials by 4:30 p.m. on Thursday, March 29, 2018, I direct the Registrar to dismiss his motion for a panel review as abandoned;

(iv) The respondent shall serve and file all responding materials no later than April 11, 2018; and

(v) The motion materials shall be placed before a civil panel for its consideration during the week of April 23, 2018.

[10] The costs of this motion are reserved to the panel hearing the motion to review the Order.

"David Brown J.A."