Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20230922 DOCKET: M54421 & M54527 (COA-22-CV-0453)
Before: Hourigan J.A. (Motions Judge)
DOCKET: M54421
BETWEEN
9383859 Canada Ltd. Plaintiff (Appellant/Responding Party)
and
Musab Saeed, Mian Imran Saeed, Nirmalarajah Gunarajah, Viveka Ramesh, Mohinder Sansoye, Ramesh Senthilnathan, Kubeskaran Navaratnam, Ronald Lachmansingh and Marilyn Reiter Nemetz Defendants (Respondents/Moving Parties)
DOCKET: M54527
AND BETWEEN
9383859 Canada Ltd. Plaintiff (Appellant/Responding Party)
and
Musab Saeed, Mian Imran Saeed, Nirmalarajah Gunarajah, Viveka Ramesh, Mohinder Sansoye, Ramesh Senthilnathan, Kubeskaran Navaratnam, Ronald Lachmansingh and Marilyn Reiter Nemetz Defendants (Respondents/Moving Parties)
Counsel: Mark A. Russell, for the respondents/moving parties Musab Saeed and Mian Imran Saeed Shawn Tock, for the respondents/moving parties Nirmalarajah Gunarajah, Viveka Ramesh, Mohinder Sansoye and Ramesh Senthilnathan Sandeep Singh, for the appellant/responding party
Heard: September 18, 2023
Endorsement
Introduction
[1] There are two motions before the court. In the first, Nirmalarajah Gunarajah, Viveka Ramesh, Mohinder Sansoye, and Ramesh Senthilnathan (collectively, the “Ramesh Respondents”), bring a motion under rule 61.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to dismiss the appeal against them on the basis that the appellant 9383859 Canada Ltd. (“938”) has failed to comply with an order made by Miller J.A. directing it to post security for costs.
[2] The second motion is brought by Musab Saeed and Mian Imran Saeed (collectively, the “Saeed Respondents”). They also obtained an order from Miller J.A. for security for costs of the appeal. The Saeed Respondents move for the same relief as sought by the Ramesh Respondents.
[3] Both orders required 938 to post $10,000 for each group of respondents by March 8, 2023. It is not disputed that 938 has not complied with these orders. Instead, it brought a motion to a panel of this court to review the orders of Miller J.A. That motion was dismissed (the “Panel Decision”).
[4] The Ramesh Respondents and the Saeed Respondents also seek costs of this appeal from Sandeep Singh, who is 938’s sole shareholder and director and has been representing the company in this litigation.
[5] These reasons explain why I am allowing the motions and dismissing the appeals but declining to award costs against Mr. Singh personally.
Adjournment
[6] 938 sought an adjournment of the motion on the basis that it has brought an application for leave to appeal the Panel Decision to the Supreme Court of Canada. However, the appellant has not sought a stay of that order pending its leave to appeal application. Further, these motions have already been adjourned once before at the appellant’s request. For these reasons, I advised the parties that the appellant’s request for an adjournment is denied.
Motion to Dismiss
[7] The litigation has a long procedural history, which need not be detailed in these reasons. The action giving rise to this appeal stems from a failed real estate transaction. The Ramesh Respondents and Saeed Respondents brought successful motions for summary judgment dismissing the action against them on the basis that the relevant limitation period was missed, and the claim was statute barred. 938 appealed the dismissal orders to this court and, as noted, Miller J.A. granted the security for costs orders. In making those orders, Miller J.A. found that 938 was a sole purpose company incorporated for the purposes of the failed real estate transaction and had insufficient assets to pay any costs award. He also found that the grounds of appeal are weak.
[8] In Virc v. Blair (2016), 134 O.R. (3d) 795 (C.A.), at paras. 3-5, this court cited Dataville Farms Ltd. v. Colchester (Municipality), 2014 NSCA 95, 351 N.S.R. (2d) 65, and listed several factors to consider on a motion to dismiss based on a failure to comply with an order to post security for costs, including:
- The decision is discretionary: It should not be presumed that an order for dismissal will automatically flow from an appellant's failure to abide by an order to give security.
- Careful attention and deference must be accorded to the initial decision to award security for costs.
- Once a failure to comply with an order to pay security for costs is established, the ‘onus then shifts to the appellant to provide compelling reasons why dismissal is not in the interests of justice.
- An appellant who simply re-argues that security is unwarranted will likely be unsuccessful.
- Impecuniosity and the reasons for it may be considered.
- The merits of the appeal are a factor to be considered in such an analysis.
- The discretion under rule 61.06(2) should be exercised in light of the particular subsection of rule 61.06(7) under which the initial order was made.
[9] The appellant has offered no valid excuse for this noncompliance with the security for costs orders. It submits that the appeal should not be dismissed because it has sought leave to appeal the Panel Decision to the Supreme Court of Canada. This is similar to the argument raised by the appellant on an earlier dismissal motion regarding its suit against another group of defendants in this litigation: 9383859 Canada Ltd. v. Navaratnam, 2021 ONCA 210. In dismissing that appeal for failure to comply with a security for costs order, Paciocco J.A., stated:
[18] I have also considered whether these motions for dismissal are premature, given that the panel review of the Extension Denial Decision remains outstanding. In my view, the interests of justice are not served by waiting for that review to play out.
[19] In Susin v. Susin, 2008 ONCA 66, 37 E.T.R. (3d) 159, Laskin J.A. similarly dismissed an appeal for failure to post security for costs while an effort to obtain a panel review was outstanding because the appellant had “not put forward any basis to resist” the dismissal motion: at para. 5.
[20] 938’s position in this case is even more dire than that of the appellant in Susin. 938 has provided no meaningful basis to resist the Security for Costs Order, no meaningful basis to resist the Extension Denial Decision and seek a panel review of the Security for Costs Order, and no meaningful basis to doubt the Motion to Strike Order, which is the subject of the Main Appeal.
[10] I agree with the approach taken by my colleagues Paciocco J.A. and Laskin J.A. In considering whether a dismissal is premature, the court should have regard to outstanding motions or applications. However, the mere existence of such proceedings is not sufficient to deny a dismissal order, which should otherwise be made. The motion judge should take a hard look at any outstanding motions or applications to determine whether they have any chance of success. Here, there are no plausible grounds to argue that the panel erred in dismissing the appeal of the orders of Miller J.A. The mere filing of the application of leave to appeal in these circumstances does not persuade me that I should decline to exercise my discretion to dismiss the appeal.
[11] The appellant also submits that the order for security for costs should not have been made. This is not a persuasive argument. The orders of Miller J.A. were properly made and have been affirmed by a panel of this court. I have reviewed his reasoning and agree with his analysis. In particular, I agree with Miller J.A.’s finding that the merits of the appeal are weak. It is evident that the limitation period was missed, and I see no basis to interfere with the order dismissing the action against these respondents.
[12] For these reasons, it is in the interests of justice to grant the motions and dismiss the appeal against the Ramesh Respondents and Saeed Respondents.
Costs
[13] The respondents make a novel argument in support of their submission that a costs award should be made against Mr. Singh personally. That submission is premised on the proposition that appellate courts, while creatures of statute, nevertheless have “implicit powers that derive from [their] power to control [their] own process”: Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 27. These powers include the ability “to make procedural orders to prevent an abuse of process and to ensure the just and efficient administration of justice”: Mukwa v. Farm Credit of Canada, 2022 ONCA 320, at para. 24.
[14] According to the respondents, 938’s litigation strategy, as implemented by Mr. Singh, amounts to an abuse of process. Therefore, to protect the court’s process, they submit that Mr. Singh should be ordered to pay costs personally, similar to orders made in the Superior Court against non-parties who are directors, shareholders, or principals of corporations, as described in 1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2017 ONCA 184, 134 O.R. (3d) 641.
[15] It is unnecessary for me to determine whether this court has the power to make such an order because I am not satisfied that Mr. Singh’s litigation strategy amounts to an abuse of process. Instead, it appears that Mr. Singh has used every appeal process available to 938. While I can understand the frustration the respondents are feeling with the delays in this litigation, this conduct does not qualify as an abuse of process. In any event, if this court does have the power to make the order sought, it should, in my view, be reserved for the clearest of cases.
Conclusion
[16] For these reasons, I allow the motions to dismiss the appeal against the Ramesh Respondents and the Saeed Respondents.
[17] I decline to award costs against Mr. Singh personally. I award costs of the appeal payable by 938 on a partial indemnity scale in favour of the Ramesh Respondents in the all-inclusive amount of $5,000 and in favour of the Saeed Respondents in the all-inclusive amount of $5,000.
“C.W. Hourigan J.A.”