Court File and Parties

Citation: Browne v. Picart et al., 2025 ONSC 3045 Divisional Court File No.: DC-24-2919 Date: 2025/05/15 Superior Court of Justice – Ontario Divisional Court

Re: Robin Browne, Appellant / Responding party And: Richard Picart and Len Carby, Respondents / Moving parties

Before: Justice A. Kaufman

Counsel: Stephanie Okola, counsel for the Respondents / Moving Parties Natalie Posala, agent for the Appellant / Responding Party

Heard: May 15, 2025

Endorsement

[1] The respondents to this appeal, Richard Picart and Len Carby, were the successful parties in a Small Claims Court action. Following a five-day trial, Deputy Judge Stauffer found that the appellant, Mr. Robin Browne, had defamed the respondents, and that the respondents did not defame him. He awarded damages of $35,000 to Picart and $36,017 to Carby, along with costs of $17,500 in favour of the respondents. Mr. Browne has appealed Deputy Judge Stauffer’s order.

[2] The moving parties bring this motion for security for costs under Rule 61.06 of the Rules of Civil Procedure.[^1] They also seek an injunction preventing the appellant from engaging in what they characterize as harassing behaviour.

[3] The motion raises two questions:

(1) should an order for security for costs be granted? and

(2) should the court issue the requested injunction?

Issue 1 – Security for Costs

[4] Security for costs of an appeal is governed by Rule 61.06. It provides that the court may make an order for security for costs as is just in one of three situations:

i) It appears that the there is good reason to believe that the appeal is frivolous and vexations and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;

ii) An order for security for costs could be made against the appellant under Rule 56.01; or

iii) For other good reason.

[5] The moving parties contend that the appeal is frivolous and vexatious, and that there is good reason to believe the appellant has insufficient assets in Ontario to pay the costs of the appeal. I will consider these two conditions separately.

[6] In his notice of appeal, the appellant argues that Deputy Judge Stauffer made numerous errors, including that he should have recused himself due to a reasonable apprehension of bias; that he misapplied the “fair comment” defence to defamation; and that he improperly admitted the testimony of a biased expert witness. Many of the alleged errors are essentially disagreements with the Deputy Judge’s factual findings and his assessment of the evidence. The appellant also asserts that the Deputy Judge failed to consider the Anti-Slapp legislation; however, this is clearly not an error, as Deputy Judges of the Small Claims Court lack the authority to issue orders under section 137.1 of the Courts of Justice Act.[^2]

[7] Rule 61.06 requires a two-part analysis. First, the respondent bears the burden of demonstrating that the appellant falls within the criteria of the rule. Once this initial onus is satisfied, the court then considers whether the order for security for costs is just in the circumstances.

[8] The rule stipulates that the Court must assess whether it “appears” that there is “good reason to believe” the appeal is frivolous and vexatious. This language indicates a relatively low threshold, requiring only a preliminary or tentative conclusion. It does not necessitate a definitive judgment on the appeal’s merit or the appellant’s assets, but rather a reasonable basis to substantiate the belief that the appeal may be without merit or that the appellant lacks sufficient assets to cover costs.[^3]

[9] Regarding the appellant’s argument that Deputy Judge Stauffer should have recused himself due to a reasonable apprehension of bias, I find that this claim appears to be frivolous and vexatious.

[10] The appellant’s motion for recusal was based on the fact that the firm of which Deputy Judge Stauffer is a senior counsel represented one of the defendants in a personal injury action. The plaintiff in that action named two defendants. The defendant who was not represented by Deputy Judge Stauffer’s firm filed a claim against the appellant and 613/819 Black Hub, an organization run by him. Deputy Judge Stauffer informed the parties that this matter had been handled by other lawyers in his firm, that he had no personal involvement in the case, and that he was unaware—until the appellant raised it—that the co-defendant had made a claim against the appellant and his organization.

[11] The test for reasonable apprehension of bias was recently articulated in Martin v. Martin:[^4] “Would a reasonable and informed person viewing the matter realistically and practically and having thought it through conclude that the judge, consciously or unconsciously would not decide fairly”. The threshold for finding a reasonable apprehension of bias is extremely high. There is a strong presumption in favour of the judge’s impartiality and the question of a reasonable apprehension requires a highly fact-specific inquiry.[^5] The strong presumption of judicial impartiality is not easily overcome.[^6]

[12] In this case, the appellant’s allegations appear to fall short of establishing that a reasonable person would conclude that Deputy Judge Stauffer would not decide the case fairly. His firm did not initiate the claim against the appellant; the matter was handled by junior counsel from his firm; and he was unaware that the co-defendant had filed such a claim. This argument appears devoid of merit.

[13] The appellant’s other grounds of appeal challenge findings of fact and credibility, which the trial judge addressed with detailed and seemingly sound reasons. The Court of Appeal for Ontario has held that such appeals appear to have no merit.[^7] Furthermore, the appellant’s statement that he would “immediately appeal” any unfavorable decision, combined with his intention to share trial information with the organizations with which the respondents are associated (as further discussed below), lends support to the respondents’ assertion that the appeal is being pursued to annoy or embarrass them.

[14] I now turn to the issue of Mr. Browne’s ability to pay the costs of the appeal. The respondents submitted evidence that the appellant is a retired federal civil servant. They provided a land registry record showing that Mr. Browne and his spouse jointly own a home, which in 2018 had an $830,000 mortgage with TD Bank. Mr. Browne responded that the land registry record does not reflect the current total mortgage owed on the property, which he claims is “significantly” lower. He also states that he has sufficient resources to pay for the appeal through his federal pension, Canada Pension Plan benefits, savings, and investments. However, he has declined to provide further details of his assets, citing “privacy reasons”.

[15] The respondents also rely on several communications with the appellant that they contend indicate he would make it difficult for them to recover any judgment. For instance, in an email dated April 25, 2023, Mr. Browne told the respondents’ representatives that if their settlement offer was not accepted, he would share “trial info” with the University of Toronto School of Continuing Education, Investors Group, and the Peel Police Services Board. He further stated that “today is my last day as a federal public servant and pensions can’t be garnished,” and added that he would “immediately appeal the small claims court decision in the ‘unlikely event that either of your clients win’.

[16] The Court observes that the charge on Mr. Browne’s home increased from $680,000 in 2013 to $830,000 in 2018. This is a substantial mortgage, and the appellant does not provide any evidence as to the equity in the home. Even if equity exists, the Court notes that enforcing a judgment against a jointly held matrimonial home can be challenging.[^8] Furthermore, his statement that “this is my last day as a public servant and federal pensions can’t be garnished” strongly suggests that the appellant considers himself judgment-proof. He could have presented evidence to counter this impression but chose not to do so.

[17] The Court therefore concludes that the criteria in Rule 61.06(1)(a) have been satisfied.

[18] Appellate courts in Ontario have ordered security for costs when an appeal has a low prospect of success coupled with an appellant who has financial ability to pay costs but from whom it would be difficult to collect costs.[^9]

[19] I find that it would be just in these circumstances to make an order for security for costs.

Quantum

[20] The respondents request that the order for security for costs be in the amount of $128,354.72. This figure appears to incorporate the judgment obtained in the Small Claims Court, the costs associated with that proceeding, and the anticipated costs of this appeal.

[21] Pursuant to Rule 61.06, the court is authorized to order security for costs of the appeal and costs of the proceedings below. Such an order is not intended to serve as security for the judgment under appeal. Additionally, security for costs of the proceedings below are not routinely granted, and the moving party must provide some justification if the amount sought under Rule 61.06 includes security for costs awarded in the court below.[^10]

[22] In my view, an amount of $10,000 would be fair and reasonable as security for costs of this appeal.

Issue 2 – Should the court grant the respondents an injunction?

[23] The respondents contend that the appellant has engaged in an aggressive and harassing course of conduct following the release of the Small Claims Court decision. They allege that he contacted several leaders of the federal Conservative Party to complain that respondent Carby lied under oath during the Small Claims Court trial and that he has been abusing his position as a member of the Peel Police Services Board. They seek an injunction, presumably to prevent him from continuing such conduct. However, the notice of motion and their factum only refer generally to injunctive relief without specifying the particular actions they seek to have enjoined.

[24] The respondents’ request for an injunction in the context of this appeal is ill-conceived. As Borins J. observed in Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc.[^11] it is “a fundamental principle that in the absence of a pending proceeding, or an intended proceeding, in which a permanent injunction is claimed, the court has no jurisdiction to grant an interlocutory injunction.” Interlocutory injunctions are intended to preserve the status quo, ensuring that the subject matter of the litigation is not destroyed or irreversibly altered before trial, and to protect the plaintiff's rights as established in the action from being undermined by the defendant's actions before trial. Interlocutory injunctions are not self-sustaining causes of action; there must be a legal dispute between the parties deserving of trial before anything interlocutory can occur in the proceedings leading to trial. Such interlocutory orders are made solely to ensure that the plaintiff's asserted rights in the action may be effectively enforced by the court should the action ultimately succeed.

[25] In this case, there is no pending or contemplated proceeding in which an injunction could properly be granted. Therefore, the respondents’ motion for an injunction is dismissed.

Costs

[26] Both parties have submitted costs outlines. The respondents seek $9,279.30 based on a substantial indemnity scale, while the appellant claims $4,271 on a substantially indemnity scale or $2,847 on a partial indemnity scale.

[27] The Court has considered the criteria in Rule 57.01, the fact that the respondents were successful, the relatively low complexity of this motion and awards the respondents their costs of the motion, fixed in the amount of $3,000, payable by the appellant forthwith.

Disposition

[28] An order shall issue requiring the appellant to post security for costs of $10,000 within 30 days of the release of these reasons, failing which the appeal shall be dismissed.

[29] The appellant is also ordered to pay the respondents $3,000 in costs for this motion.

A. Kaufman J.

Released: May 22, 2025

[^1]: R.R.O. 1990, Reg 194. [^2]: Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599. [^3]: Schmidt v. Toronto-Dominion Bank, 1995 3502, (Ont. C.A.). [^4]: 2015 ONCA 596, 127 O.R. (3d) 1, at para. 68 [^5]: Ibid, at para 71. [^6]: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, at para 25. [^7]: Schmidt v. Toronto Dominion Bank (1995), 1995 3502 (ON CA), 24 O.R. (3d) 1. [^8]: Senthillmohan v. Senthillmohan, 2023 ONCA 280. [^9]: Perron v. Perron, 2011 ONCA 776, 345 D.L.R. (4th) 513; Baker v. Rego, 2013 ONSC 3309, 31 R.F.L. (7th) 323 (Div. Ct.); and Children’s Aid Society of York Region v. G.S., 2010 ONSC 3804, 98 R.F.L. (6th) 179. [^10]: Foodinvest Limited v. Royal Bank of Canada, 2020 ONCA 387, at para 23. [^11]: 1995 10638 (ON SC), [1995] O.J. No. 1535, 23 O.R. (3d) 766 (Div. Ct.).