CITATION: Royal Bank of Canada v. John, 2025 ONSC 481
DIVISIONAL COURT FILE NO.: 657/24
DATE: 20250206
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ROYAL BANK OF CANADA
Plaintiff/Defendant by Counterclaim/Respondent on Appeal
– and –
JOSEPH AVWARUTE JOHN
Defendant/Plaintiff by Counterclaim/Moving Party on Appeal
Natalie Marconi, for the Applicant
Joseph Avwarute John, on his own behalf
HEARD: January 24, 2025
FAIETA J.
REASONS FOR DECISION
[1] The moving party, Joseph Avwarute John (“the defendant”), seeks leave to appeal from the Order granted by Kurz J. on October 17, 2024, wherein the Court ordered that:
a) the defendant shall attend at a peremptory Summary Judgment motion on January 29th, 2025, and file any responding material by November 18th, 2024;
b) the defendant shall pay previously ordered costs of $500 by November 18th, 2024;
c) the plaintiff RBC may serve and file reply evidence by December 20, 2024
d) the parties shall file any Facta or supplementary/amended Facta by January 15, 2025;
e) the defendant shall pay to the plaintiff costs of this day, payable within 30 days of $1,000.00;
f) the dismissal of the defendant’s request that it recuse itself for oral reasons;
g) if the defendant fails to comply with the terms of this order, the plaintiff may move by basket motion on notice to the attention of Justice Kurz for an Order striking the defendant's pleadings.
BACKGROUND
[2] On April 26, 2023, the Royal Bank of Canada (“RBC” or “the plaintiff”) commenced an action under the Simplified Procedure Rules provided by Rule 76 of the Rules of Civil Procedure for the payment of three loans which total slightly more than $274,000.00 plus interest.
[3] In his Statement of Defence and Counterclaim dated August 8, 2023, the defendant states that he is a licensed immigration consultant who sustained a significant decline in business due to the COVID-19 epidemic and his various illnesses from 2020 to 2022. As a result of these circumstances, the defendant obtained three loans from RBC. The defendant states that RBC’s closure of his bank accounts in March 2022 amounted to a breach of contract that caused reputational damage and a loss of income. The defendant states that this conduct amounted to bad faith and created the conditions which caused him to default on his loans. The defendant counterclaims against RBC for general, punitive and exemplary damages in the amount of $600,000.00. He also disputes the bringing of this action under Rule 76 of the Rules of Civil Procedure.
[4] On December 7, 2023, RBC brought a motion for an Order imposing a discovery plan and an Order requiring the defendant to deliver an affidavit of documents and attend an examination for discovery. During that motion, the Court encouraged the parties to go to a breakout room to try to narrow issues and told the defendant that counsel for a RBC had appeared before him many times and that he was “a reasonable guy”. Ultimately, the motion was granted with costs of $500 to be paid by the defendant. The Order also states that this matter is no longer within Rule 76.
[5] On October 17, 2024, RBC’s motion for summary judgment was to be heard. The defendant submitted that the motion was a nullity as RBC’s motion for summary judgment was in objected to the motion on the basis that it was in Form 76B, the “Simplified Procedure Motion Form” under Rule 76, rather than in Form 37A used generally for notices of motion. This objection was dismissed as Kurz J. as he found that adequate notice of the summary judgment motion under Rule 20 had been given, that the Form 76B referenced Rule 20, described the relief sought and the grounds for same.
[6] The defendant further submitted that Kurz J. should recuse himself as he had characterized RBC’s counsel at the last attendance as a “reasonable guy” that had appeared before him many times and that also because he ordered the defendant to pay costs. The Court dismissed the recusal motion on the basis that although counsel had appeared before him for many years, they were not friends, had never been in the same room together, nor had they ever spoken privately together.
[7] Given that the defendant had not filed an affidavit that responded to the motion in a substantive manner, the Court offered, and the defendant accepted, an adjournment of the motion for summary judgment to January 29, 2025, so that the defendant’s narrative could be placed before the Court on the hearing of that motion. A timetable was established for the exchange of materials. The defendant was ordered to pay $1,000 in costs within 60 days.
[8] On October 30, 2024, the defendant filed a motion for an order granting leave to appeal the Order dated October 17, 2024, as well as an order to stay the relief granted by the Court pending the final disposition of the motion.
[9] The defendant asserts three grounds for leave: (a) the notice of motion for summary judgment was void ab initio because it was brought in Form 76B rather than Form 37B and that the court could not waive non-compliance; (b) there was an appearance of bias given the alleged familiarity with counsel for the Royal Bank and the award of costs; and (c) the presiding Judge awarded $1,000 in costs without inquiring as to his ability to pay notwithstanding that the defendant made costs submissions.
[10] The motion for leave to appeal might not be heard before the motion for summary judgment which is required by the Order to be heard on January 29, 2025.
[11] A court may grant a stay pending an appeal under Rule 63.02 of the Rules of Civil Procedure. However, leave to appeal has not been granted. In any event, this Court has a general authority, pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to stay any proceeding on such terms as are just.
[12] The principles related to the granting of the stay of an Order pending an appeal were described in SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2022 ONCA 373, and are equally applicable in a case, such as this one, where leave to appeal has not been granted. Lauwers J.A. described the applicable principles as follows:
23 The applicable law on staying a judgment pending appeal is found in RJR-MacDonald Inc. v. Canada (A.G.) 1994 117 (SCC), [1994] 1 S.C.R. 311, applied by analogy. The test for a stay is whether: (1) there is a serious issue to be tried; (2) the appellants will suffer irreparable harm if the stay is not granted; and (3) the balance of convenience favours a stay pending the appeal. "These three criteria are not watertight compartments" Laskin J.A. observed in Circuit World Corp. v. Lesperance (1997), 1997 1385 (ON CA), 33 O.R. (3d) 674, at p. 677, because: "The strength of one may compensate for the weakness of another". He noted that "[g]enerally, the court must decide whether the interests of justice call for a stay", citing International Corona Resources Ltd. v. LAC Minerals Ltd. (1986) 21 C.P.C. (2d) 252 (Ont. C.A.).
24 The overarching consideration is the interests of justice. I am mindful of the caution expressed by Robert J. Sharpe in his text Injunctions and Specific Performance, loose-leaf, (Toronto: Canada Law Book, 2021), at para. 2:6: "The weight to be placed upon the preliminary assessment of the relative strength of the plaintiff's case is a delicate matter which will vary depending upon the context and circumstances". This caution applies with necessary modifications to a stay pending appeal in the context of an allegation of judicial bias.
[13] Whether there is a "serious issue to be tried" requires a preliminary assessment of the strength of the moving party’s case. It only requires proof that the appeal is neither frivolous nor vexatious. In this case leave to appeal has not been granted and thus there may not be any issue to be tried. In particular, an allegation of a reasonable apprehension of bias only raises a serious issue if there is a “real likelihood or probability of bias beyond a mere suspicion”: SS&C Technologies Canada Corp., para. 47. That is not the case here. To be clear, I am not determining the merits of the motion for leave to appeal. However, on a preliminary assessment of the strength of this appeal, I find that the strength of the issues to be tried are weak.
[14] Irreparable harm is harm which either cannot be quantified in monetary terms or which cannot be cured. The defendant states that he will suffer irreparable harm if this stay is not granted as he believes that the motion for summary judgment will be granted and the judgment will be enforced. In my view, the risk described by the defendant is not irreparable harm. RBC states that the granting of a stay would likely further delay the adjudication of the RBC’s claim and reduce the chances of recovery. There is no evidence to suggest that RBC’s chances of recovery will be any worse if the motion for summary judgment is delayed by several months.
[15] I find that the balance of convenience does not favour a stay pending the leave motion.
[16] I find that the interests of justice favour a dismissal of the motion for a stay of the Order.
[17] Accordingly, the motion for a stay of the Order is dismissed.
[18] Neither party filed an Outline of Costs. There shall be no order as to costs.
M. Faieta J.
Released: February 6, 2025
CITATION: Royal Bank of Canada v. John, 2025 ONSC 481
DIVISIONAL COURT FILE NO.: 657/24 (DC-24-00000657-0000)
DATE: 20250127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ROYAL BANK OF CANADA
Plaintiff/Defendant by Counterclaim/
Respondent on Appeal
– and –
JOSEPH AVWARUTE JOHN
Defendant/Plaintiff by Counterclaim/
Moving Party on Appeal
REASONS FOR DECISION
M. FAIETA, J.
Released: January 27, 2025