SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 08-CV-357631
MOTION HEARD: January 10, February 14 and April 16, 2012

RE: Alvin Lindhorst

v.

Stone & Co. Limited, Stone Investment Group,
Richard G. Stone and James A. Elliott

BEFORE: Master Thomas Hawkins

COUNSEL:
Allison Taylor
for moving defendants
Fax No.: 416-363-7358

Alvin Lindhorst
responding plaintiff in person
37 Birchwood Drive, RR#3
Bancroft, Ontario K0L 1C0

REASONS FOR DECISION

[ 1 ] In this action for damages for wrongful dismissal and other relief the defendants move for the following orders:

(a) an order that the plaintiff cease to contact directly the personal defendants and representatives of the corporate defendants other than through their counsel;

(b) an order that the plaintiff obtain leave of the court before bringing any further motions;

(c) an order directing that all further motions by the plaintiff be brought in writing;

(d) an order dismissing or, in the alternative, staying this action on the ground that the plaintiff has failed to pay the following orders awarding costs to the defendants:

i) the order of Whitaker J. dated January 13, 2011 that the plaintiff pay costs of $1,200 to the defendants forthwith;

ii) the order of Short M. dated January 26, 2011 that the plaintiff pay costs to counsel for the defendants fixed at $1,200 within 30 days;

iii) the order of the Court of Appeal for Ontario dated October 17, 2011 that the plaintiff pay the defendants costs of $1,500; and

iv) the order of Low J. dated November 8, 2011 that the plaintiff pay the defendants costs of $2,000 plus HST (that is $2,260) within 30 days.

[ 2 ] In my view the first order which the defendants seek (that the plaintiff cease direct contact with the defendants) is in substance an order for an interlocutory injunction. By virtue of subsection 101 (1) of the Courts of Justice Act, R.S.O. 1990 ch. C.43 as amended, subrule 37.02 (2)(a) and rule 40.01, motions for injunctive relief must be heard by a judge. Masters do not have jurisdiction to grant such relief.

[ 3 ] Subrule 37.02(2)(a) provides as follows

A master has jurisdiction to hear any motion in a proceeding, and has all the jurisdiction of a judge in respect of a motion, except a motion,

(a) where the power to grant the relief sought is conferred expressly on a judge by a statute or rule.

[ 4 ] Subsection 101(1) of the Courts of Justice Act provides as follows:

In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so.

[ 5 ] Rule 40.01 provides as follows:

An interlocutory injunction or mandatory order under section 101 or 102 of the Courts of Justice Act may be obtained on motion to a judge by a party to a pending or intended proceeding.

[ 6 ] This part of the defendants’ motion is adjourned to be heard by a judge.

[ 7 ] I will next deal with the defendants’ motion for an order dismissing or staying this action on the ground that the plaintiff has failed to pay several orders awarding costs to the defendants.

[ 8 ] The evidence before me indicates that two of these orders (those of Short M. and Low J.) were formally issued and entered. The evidence before me does not indicate whether the other two orders were formally issued and entered. However, the material before me includes the endorsements awarding costs to the defendants. The plaintiff has filed two affidavits in response to this motion. He does not take the position that the material which the defendants have filed in support of this motion misstates the costs orders in question.

[ 9 ] In his affidavit sworn January 23, 2012 the plaintiff states that no costs are owing to the defendants because all of the orders awarding costs to the defendants are under appeal. However in argument before me on April 16, 2012 he conceded that the Supreme Court of Canada had since dismissed his motion for leave to appeal from the order of the Court of Appeal for Ontario. That order quashed his appeal from the order of Whitaker J. Therefore the orders of Whitaker J. and the Court of Appeal for Ontario are not under appeal.

[ 10 ] The plaintiff served a notice of motion date November 21, 2011 for leave to appeal to the Divisional Court from the order of Low J. dated November 8, 2011 dismissing his appeal from the order of Short M. Under subrule 61.03 (1)(c) that notice of motion had to be filed with the Registrar of the Divisional Court together with proof of service by November 26, 2011. The record before me does not indicate that the plaintiff ever did this, or that the plaintiff has brought a motion to extend the time for serving and filing a motion record and factum in support of his motion for leave to appeal. The evidence before me does indicate that the plaintiff has never filed a motion record in support his motion for leave to appeal to the Divisional Court.

[ 11 ] I am therefore of the view that there is no appeal pending from the orders of Short M. and Low J. and that the costs awarded to the defendants by Short M. and Low J. are owing.

[ 12 ] The total amount of costs owing to the defendants under the four orders in question comes to $6,160 apart from interest.

[ 13 ] There are two provisions in the Rules of Civil Procedure dealing with sanctions for non-payment of costs orders. The first provision found in subrules 57.03(1) and (2).

[ 14 ] Subrules 57.03(1) and (2) provide as follows.

57.03(1) On the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall,

(a) fix the costs of the motion and order them to be paid within 30 days: or

(b) in an exceptional case, refer the costs of the motion for assessment under Rule 58 and order them to be paid within 30 days after assessment.

(2) Where a party fails to pay the costs of a motion as required under subrule (1), the court may dismiss or stay the party’s proceeding, strike out the party’s defence or make such other order as is just.

[ 15 ] The second provision is found in rule 60.12. That rule provides as follows.

60.12 Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules,

(a) stay the party’s proceeding:

(b) dismiss the party’s proceeding or strike out the party’s defence; or

(c) make such other order as is just.

[ 16 ] Subrule 57.03(1) and (2) are narrow in scope in that they apply only to situations where a litigant has failed to comply with an order to pay the costs of a motion. The orders of Whitaker J. and Short M. awarded the defendants the costs of the motions before them. Subrules 57.03(1) and (2) thus apply to those orders.

[ 17 ] The orders of the Court of Appeal for Ontario and of Low J. were orders awarding the costs of appeals. Rule 60.12 applies to those orders. Since all four costs orders were also interlocutory orders in that they did not finally dispose of the plaintiff’s action, rule 60.12 applies to all four costs orders.

[ 18 ] In Stacey v. Barrie Yatch Club, [2003] O.J. No. 4171, Eberhard J. said the following (at paragraph 15).

Where a party fails to comply with an interlocutory order, the Court may dismiss or stay the party’s proceedings or make any other order that is just. The rationale for Rule 60.12 is that there will be situations when “a party’s position ought to be determined for procedural reasons arising from the failure of the party to abide by orders made by the court. If it was the case that the merits of the matter always had to be determined before such remedies could be imposed, there would be little room for the effective application of either of these rules.” “If this court’s rules are going to be taken seriously by anybody, they must be enforced.” “A party should not be able to set up his own impecuniosity as a shield against costs sanctions. To allow that would mean that a Plaintiff could bring, resist, or appeal motions with no fear of consequences, and would emasculate the powers provided in rules 57.03(2) and 60.12.” “Because of the importance of avoiding a situation in which litigants without means could ignore the rules of the court, the trial judge acted reasonably in refusing to take into account the impecuniosity of the Plaintiff.” [footnotes omitted].

[ 19 ] During argument neither side raised the merits of the plaintiff’s action as a factor for me to consider on this motion. Consistent with this, the affidavits filed by both sides in support of this motion do not address the merits of this action.

[ 20 ] In argument before me the plaintiff claimed to be unable to pay the costs which he owes to the defendants. He has made no disclosure of his financial circumstances. The affidavits which he filed in response to this motion are silent on the subject of his ability to pay the costs which he owes.

[ 21 ] The plaintiff did propose that he pay the costs he owes to the defendants at the rate of $50 per month. As defence counsel pointed out, at that rate it would take the plaintiff over five years to pay the costs which he now owes.

[ 22 ] I decline to permit the plaintiff to raise his own supposed impecuniosity as a shield against sanctions for his non-payment of the costs awarded to the defendants. The plaintiff has failed to prove that he is indeed impecunious. The defendants have adduced affidavit evidence that the plaintiff owns a property municipally known as 37 Birchwood Drive, Bancroft, Ontario which he purchased on September 21, 2006 for $17,665. There is no mortgage on this property.

[ 23 ] The affidavit evidence for the defendants also indicates that on February 24, 2010 the plaintiff bought two properties from The Corporation of the Township of Sables-Spanish Rivers for $8,600 in one case and $8,200 in the other case. He was the successful bidder when these properties were put up for sale for unpaid municipal taxes.

[ 24 ] This is not a case of litigant failing to pay a single costs award recently made. The plaintiff has failed to pay costs awarded to the defendants on four separate occasions. Two for these costs orders were made over a year ago.

[ 25 ] For all these reasons I am of the view that the just sanctions order under subrule 57.03(2) and rule 60.12 is an order staying this action until the plaintiff pays the defendant the costs awarded to them by the four orders I have referred to. If these costs are not paid within three months the defendants may move for an order dismissing this action with costs to the defendants.

[ 26 ] This stay order shall not operate so as to prevent the defendants from moving before a judge for the injunctive relief they sought on this motion, or moving for leave to amend their statement of defence to include a counterclaim for such injunctive relief, or so as to prevent the plaintiff from appealing my order.

[ 27 ] In light of my disposition of the parts of the defendants’ motion seeking to have this action stayed or dismissed and for injunctive relief, I find it unnecessary to deal with the balance of the defendants’ motion. In the event that the plaintiff pays the costs which he owes to the defendants and my stay order is lifted, the defendants may renew the parts of their motion I did not deal with. I refer to the orders sought in clauses [1] (b) and (c) above.

[ 28 ] The defendants have been substantially successful on this motion and are entitled to the costs of it. I fix those costs at $2,500 and order the plaintiff to pay such costs to the defendants within 30 days.

Master Thomas Hawkins

DATE: June 5, 2012