Court of Appeal for Ontario

Date: 2018-05-02 Docket: M49006 (C63990)

Judges: Rouleau, Pardu and Paciocco JJ.A.

Between

2363523 Ontario Inc. Applicant/Plaintiff (Respondent/Responding Party)

and

Steven Nowack, Mellisa Frishling, John Doe 1 to 10, Jane Doe 1 to 10 and Doe Corporations 1 to 10 Respondent/Defendant (Appellant/Moving Party)

Counsel

Paul Slansky, for the moving party

Norman Groot, for the responding party

Heard: In writing

Reasons for Decision

[1] Mr. Steven Nowack has applied to this panel to review and set aside a security for costs order made by a single motion judge.

[2] The only arguable error identified by Mr. Nowack was the reliance placed by the motion judge on Mr. Nowack's legal representation as evidence of an ability to pay a security for costs order. We need not decide whether this was in fact in error.

[3] There are significant and multiple unpaid costs awards against Mr. Nowack. The motion judge was entitled to find that his assertions of impecuniosity and inability to pay are not credible given that "the only evidence that [Mr. Nowack] adduces in support his claims was his assertion that he is impecunious is his own", and given "obvious concerns about his credibility, given the findings of fraud and contempt against him". This is well supported on the record without reliance on the fact that Mr. Nowack has periodically retained counsel.

[4] We note that although millions of dollars have passed through Mr. Nowack's hands and that he claims to be without any financial resources, he has refused on cross-examination to answer questions about the source of monies he has used to support himself for the last several years.

[5] We dismiss the application. Costs to the respondent fixed at $2,000 inclusive of applicable taxes and disbursements.

"Paul Rouleau J.A."

"G. Pardu J.A."

"David M. Paciocco J.A."