Court of Appeal for Ontario

Date: 20210607 Docket: M52157 & M52464 (C68580)

Parties

BETWEEN

Wiseau Studio, LLC and Tommy Wiseau d.b.a. Wiseau-Films Plaintiffs/Defendants by Counterclaim (Appellants)

and

Richard Harper, Fernando Forero McGrath, Martin Racicot d.b.a. Rockhaven Pictures, Room Full of Spoons Inc., Parktown Studios Inc. and Richard Stewart Towns Defendants/Plaintiffs by Counterclaim (Respondents)

Before

Doherty, Pepall and Trotter JJ.A.

Counsel

Daniel Brinza, for the appellants Matthew Diskin and Meredith Bacal, for the respondents

Heard

June 2, 2021 by video conference

Motions

A motion by the appellants to set aside the order of Thorburn J.A., dated January 15, 2021, and a motion by the respondents to dismiss the appeal for non-compliance with the order of Thorburn J.A.

Reasons for Decision

[1] At the end of oral argument, the court advised the parties the appellants’ motion to set aside the order of Thorburn J.A. (the “motion judge”) was granted in part and the respondents’ motion to dismiss the appeal was dismissed as moot. These are our reasons for those dispositions.

[2] The appellants did not file any material in response to the respondents’ motion for security. Before the motion judge, counsel for the appellants conceded the appeal as framed in the Notice of Appeal was frivolous. The motion judge relied on that concession in making her order.

[3] The appellants have fleshed out their grounds of appeal since the motion. They have also perfected the appeal and filed a factum.

[4] We are prepared, in the circumstances, to permit the appellants to resile from the concession made before the motion judge as to the merits of the appeal. Absent the concession the appeal was frivolous, we are satisfied the part of the order requiring the appellants to post security for the amount of the judgment should be set aside.

[5] We would not, however, interfere with the order for security for costs, both with respect to the trial costs and the costs of appeal. In challenging that part of the motion judge’s order, the appellants relied on material placed before this court, which was not before the motion judge. The appellants did not seek leave to adduce fresh evidence, nor did the appellants offer any justification for receiving fresh evidence.

[6] A motion to review proceeds on the record that was before the motion judge unless the moving party can justify the court receiving “fresh evidence”. There is no such justification here and we will not admit any of the new material filed on this motion for review.

[7] Based on the record as it was before the motion judge, it was reasonably open to her in the exercise of her discretion to make an order for the security of the costs of both the trial and the appeal pursuant to r. 61.06(1).

[8] At the end of oral argument, the court made the following order.

[9] The motion to review the order of the motion judge is allowed in part. The order for security on the amount of the judgment is set aside. The order for security for costs, both with respect to trial costs and the costs of the appeal, is affirmed.

[10] The appellant shall post the required security by no later than July 7, 2021 at 4:00 p.m., failing which the respondent may move ex parte in writing before this panel for an order dismissing the appeal. Any further application by any party in relation to the security for costs order shall be made to this panel and in writing.

[11] The motion judge ordered costs against the appellants in the amount of $3,500. In our view, that order should stand, even though we have varied the terms of the motion judge’s order. The motion judge proceeded on the basis of the appellants’ concession as to the absence of any apparent merit to the appeal. In light of the position taken by the appellants before the motion judge, the appellants should remain obliged to pay the costs of the motion, even though we have varied the result.

[12] As success is divided before this court, we order no costs with respect to the proceedings before us.

[13] Given the result of the appellants’ motion, the respondents’ motion to dismiss the appeal for non-compliance with the order of the motion judge is dismissed as moot.

“Doherty J.A.”

“S.E. Pepall J.A.”

“G.T. Trotter J.A.”