COURT FILE NO.: 725-10 SR (Guelph)
DATE: 2013 03 06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALEXANDRA NATALIE BEDFORD and
NASTASSJA CHYNNA BEDFORD
- and -
ABEDEL KARIM ABUSHMAIES
Also known as ABEDELKARIM ABUSHMAIES
BEFORE: Edwards J.
COUNSEL: David Camelitti, for the Plaintiffs
Carol S. Vamdenhoek, for the Defendant
HEARD: January 28, 2013
ENDORSEMENT
ISSUE
[1] This motion is brought by the Defendant for an Order that this Court does not have jurisdiction for the within action, or in the alternative, a declaration that Ontario is not the appropriate forum for hearing the action (forum non conveniens). In the further alternative, the Defendant seeks an Order for security for costs.
[2] For the reasons set out below the motion is dismissed.
BACKGROUND
[3] This action was commenced by Alexandra Natalie Bedford and Nastassja Chynna Bedford against the Abedel Karim Abushmaies on October 15, 2010. Alexandra is the former wife of the Abedel. Nastassja is his step daughter.
[4] The plaintiffs, Alexandra and Nastassja, seek:
Damages for $100,000 for breach of fiduciary duty, improper exercise of duties of a trustee, failure to comply with the terms of a court order dated December 29, 2008 of Michigan Circuit Court, Family Division, in County of Kalamazoo, in relation to the condominium real property located at 426 Scottsdale Drive, Unit 10 Guelph, Ontario (the “trust property”), compensation for loss of income and loss of value of the condominium due to the wrongful sale, compensation for the payment of the withholding tax on the sale of the property, reimbursement of legal fees, real estate commission and overdue condominium fees and taxes arising out of an improper sale of trust property;
An order that Abedel pass his accounts as a trustee of the Bedford Trust and for the Plaintiff Nastassja and to reimburse Nastassja for all improper payments, and losses caused by negligence, improper management, or wrongful conversion of trust money or property;
An order that if necessary that the law firm of Richard Morrow pay to either or both of the Plaintiffs the net sales proceeds from the sale of May 1, 2009 of the condominium.
[5] Abedel filed a Statement of Defence dated January 7, 2011 in which he pled, inter alia:
Dr. Abushmaies states that in or about 2003 he purchased the property known as Unit 10, 426 Scottsdale Avenue Guelph, Ontario (hereinafter the “Property”).
Dr. Abushmaies further states that the Property was and is the subject of divorce proceedings in Michigan. A Divorce Judgment dated December 29, 2008 references the Property as part of the matrimonial property division. Dr. Abushmaies states that the Property, as part of a consent settlement was incorporated into an order dated December 29, 2008. Dr. Abushmaies states that the Plaintiff Alexandra Bedford failed to cooperate with the transfer and it was frustrated by her actions. Dr. Abushmaies states that he never resided nor, in fact, stepped foot into the property.
Dr. Abushmaies states that the Property is the subject of ongoing litigation in Michigan court, namely the plaintiff has a motion before the Michigan court returnable January 14, 2011 to enforce the divorce judgement including issues in relation to the Property which is the subject of the within motion.
Dr. Abushmaies states that this claim is not brought within the proper territorial jurisdiction. Also, or in the alternative, Dr. Abushmaies states that any issue of enforcement of the Michigan order should be brought in Michigan. Also, in the alternative, Dr. Abushmaies states that the Plaintiff Alexandra Bedford has another contemporaneous court action by motion before the court of Michigan dealing with the subject Property.
Dr. Abushmaies states the Property was sold in 2009. Dr. Abushmaies states that it is his understanding that the Law Office of Richard Morrow was directed to hold the equity from the sale of the Property which is to be transferred to the plaintiffs or one of them and still holds such monies in trust.
Dr. Abushmaies further states that at no time has he refused to provide the sale proceeds being held in the trust account of the Law Firm of Richard Morrow.
Dr. Abushmaies states that, in relation to the allegations regarding the “Bedford Trust”, in or about 1999, Nathalie Katherine Bedford, mother of the plaintiff died and left monies in trust to the plaintiffs to be split between them on an equal basis. Dr. Abushmaies states that to his knowledge there is no trust agreement and never has been. Dr. Abushmaies states that to his knowledge the Property never formed part of the alleged “Bedford Trust”.
Dr. Abushmaies states that he never acted as Trustee of the alleged Bedford Trust and as such the plaintiffs cannot demand the passing of accounts.
Dr. Abushmaies further states that, in fact, the Plaintiff Alexandra Bedford spent the entirety of the monies left to her and her daughter, Natassja.
[6] Abedel and Alexandra reside in Michigan. Nastassja is a full-time student in the United States at Georgetown University.
[7] In 1997 Alexandra’s mother died in Ontario. By her Will, she left a financial bequest to Nastassja, her granddaughter. The Defendant pleads that Alexandra was the Estate Trustee. The Plaintiffs plead that both Alexandra and Abedel were Estate Trustees.
[8] For the purposes of this motion, the history regarding the involvement of the Office of the Children’s Lawyer and the various court orders with respect to that estate is not significant, with the exception of the Orders of Justice Dambrot dated April 1, 2005 and Justice Stinson dated July 27, 2005.
[9] The Order of Justice Dambrot removed Alexandra as Estate Trustee of her mother’s estate and provided in paragraphs 2 and 3:
THIS COURT FURTHER ORDERS THAT $40,000.00 plus interest of $12,000.00 shall forthwith be paid from the estate of Nathalie Katharine Bedford, into Court and held by the Accountant of the Superior Court of Justice to the credit of Nastassja Bedford, who resides with her mother Alexandra Bedford at 629 N. 37th Street Richland, Michigan, USA 49083, until she attains the age of 21, subject to further court order.
THIS COURT FURTHER ORDERS THAT the payment referred to in paragraph 2 above is subject to adjustment as it may not represent the minor’s full interest in the estate. If this is the case, interest at the rate of 5% will be applied on any additional amounts found to be owing to the minor. Such interest shall be calculated from one year after the date of death of Nathalie Bedford.
[10] Justice Stinson’s Order varied Justice Dambrot’s order and replaced paragraphs 2 and 3 with the following:
Alexandra Bedford and Abdel Karim Abushmadies, in their capacities as trustees of the Bedford Family Trust, shall not sell, or further encumber the trust property located at 426 Scottsdale Drive Guelph Ontario, legally known as Unit 10, Level 1, Wellington Condominium Plan NO. 23: BLK G. PL 639 more fully described in Schedule A of Declaration ROS192472, City of Guelph, before the minor Nastassja Bedford attains age 21 years.
In the event that the property is sold before Nastassja Bedford attains age 21 years, the sum of $52,000 CDN from the proceeds of sale shall be paid to the Accountant of the Superior Court of Justice to be held to the credit of Nastassja Bedford who currently resides with her mother, Alexandra Bedford at 6291 N.37th Street Richland, Michigan, USA 49083, to be paid to Nastassja Bedford upon attaining age 21.
[11] Title to the condominium was transferred to The Bedford Trust on or about February 5, 2004.
[12] In a Statutory Declaration dated January 27, 2004, Abedel declared, inter alia:
That I purchased the above mentioned property on or about the 26th day of August 2003, subject to a first mortgage in favour of MCAP Service Corporation securing the principal sum of one hundred and seven thousand two hundred twenty-five dollars ($107,225.00).
It was my intention to create an Inter Vivos Trust to benefit my step-daughter, Nastassja Bedford, born August 10th, 1987.
The mortgage company would not loan money to the Inter Vivos Trust and thus I took the property in my own name with the intention of transferring it to the Bedford Trust when it came into existence.
The Bedford Trust came into existence by way of a settlement made by me to the said trust dated as of August 22nd, 2003.
I now wish to confirm that I have always held this property as a bare trustee for the Bedford Trust and wish to now execute a deed in favour of the Bedford Trust giving up all my right title and ownership thereto, except for my liability as a covenant under the mortgage.
[13] On March 4, 2008 the title to the condominium was transferred to Abedel. He states in paragraph 8 of his affidavit sworn July 24, 2012 that he “never considered the Property mine” and that it was transferred into his name due to legal problems with the Bedford Family Trust since there was no executed trust agreement.
[14] Abedel states in his affidavit that the inter vivos trust agreement, dated August 22, 2003, that purports to create the Bedford Trust and that appears to contain his signature, is a forged document. That document named Abedel as the settlor and Alexandra as the trustee.
[15] Exhibit 7 to the Affidavit of Judith Coleman is a copy of a letter dated March 4, 2004 from Miller Thomson to Alexandra’s then solicitors, McLean & Kerr. That letter states that enclosed in the letter were the following:
Inter Vivos Trust Agreement dated August 22, 2003;
Affidavit of Abedel Karim Abushmaies sworn January 27, 2004;
Transfer from Abedel Karim Abushmaies to Bedford Family Trust registered as WC52754;
Copy of reporting letter to Dr. Abushmaies dated March 1, 2004;
Deed from 925947 Ontario Limited to Abedel Karim Abushmaies registered as WC36805;
Mortgage from Abedel Karim Abushmaies to MCAP’s Service Corporation registered as WC83613.
[16] In October 2007, Alexandra filed for divorce in Michigan. On December 29, 2008, a Final Judgment of Divorce was granted by the State of Michigan. Included in the divorce order was the following:
…the Defendant shall execute whatever documents may be necessary according to Canadian law, to transfer his interest in said property [the condominium] to the Plaintiff, or to Plaintiff’s daughter, Nastassja Bedford.
[17] Abedel’s affidavit, without any degree of specificity, states that at various times after the condominium was acquired in 2003, it was managed by Ned Coates, a local real estate agent, and it was rented to tenants. There is no evidence that Nastassja ever received an accounting of the income and expenses from the property.
[18] In 2009, Abedel directed Mr. Coates to sell the condominium and it was sold May 1, 2009. Twenty-five Thousand dollars ($25,000.00 CDN) of the net proceeds of $38,517.79 CDN, has been released to Nastassja. The balance of those funds is held in trust by the law office of Richard Morrow.
[19] On September 22, 2009 Alexandra brought a motion for enforcement and clarification of the Divorce Order in Michigan. That motion dealt with a number of issues, including the condominium. On January 14, 2011, Alexandra and the Abedel entered into an Agreement and Order that stated: “this Order is intended to resolve all pending matters, and specifically resolves and brings to conclusion with prejudice the following motions pending in the above-captioned matter....”
[20] Counsel for Abedel argued that this agreement and order settled the matter which is before this Court.
[21] As a further step in this motion, Alexandra and Nastassja brought a motion for production by a third party of documentation. An order was issued in this matter on July 31, 2012 when, on consent, Justice Snowie ordered that:
Mr. Ned Coates shall produce forthwith all documentation in his possession with respect to the management and sale of the condominium on or about May 9, 2009 located at Unit 10, Level 1, Wellington Condominium Plan No. 23, BLK PT 649, 426 Scottsdale Drive, Guelph, Ontario.
PRELIMINARY MOTIONS
[22] At the commencement of argument for this motion, counsel for Alexandra and Nastassja sought leave to remove Alexandra from the action and to continue the matter with Nastassja as the sole plaintiff, and an order extending the time for filing additional materials with respect to the issue of security costs.
[23] The date for this long motion was originally established on August 7, 2012, when the parties, on consent, adjourned the matter to a long motion scheduled for October 22, 2012. This matter was further adjourned to January 28, 2013. The plaintiffs had sufficient time to file in a timely way any motions they required prior to this date. The motion was denied without prejudice to the plaintiff to bring a motion on proper notice.
[24] Counsel for the plaintiffs then requested that this long motion be further adjourned to allow him to file the motion referred to above. That motion was denied for the reasons mentioned above.
ISSUE: JURISDICTION
Applicable Law
[25] The Supreme Court of Canada described the appropriate analysis for this issue in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572.
[26] The applicable principles are:
This is a two step process. The court must first determine whether it has jurisdiction. If it does, then it must consider whether it should decline to exercise in favour of a more appropriate forum.
Jurisdiction must be established primarily based upon objective factors that connect the subject matter of the litigation with the forum.
Abstract concerns for order, efficiency or fairness in the system are no substitute for connecting factors that give rise to a “real and substantial” connection for the purposes of the law of conflicts.
Presumptive connecting factors in a tort case are:
a. The defendant is domiciled or resident in the province;
b. The defendant carries on business in the province;
c. The tort was committed in the province; or
d. A contract connected with the dispute was made in the province.
Once the plaintiff establishes a presumptive connecting factor, the onus shifts to the defendant to rebut that presumption. The defendant then bears the burden of negating the presumptive effect of the factor and of convincing the court that the proposed assumption of jurisdiction would be inappropriate. For example, where a contract was made within the province, this presumptive connecting factor could be rebutted by showing that the contract has little or nothing to do with the subject matter of the litigation.
If no presumptive connecting factors apply, or if the presumption of jurisdiction resulting from such presumptive connecting factor is properly rebutted, then the court lacks jurisdiction.
The list of presumptive connecting factors is not closed. In identifying new presumptive factors a court should look to connections that give rise to a relationship with the forum that is similar in nature to those connecting factors listed by the Supreme Court in Van Breda.
[27] A consideration of forum non conveniens is engaged only after the jurisdiction is established. It has no relevance to the jurisdictional analysis.
[28] In a consideration of forum non conveniens, the burden is on the defendant to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff. In Van Breda, at para. 103, the Supreme Court held:
The defendant must show, using the same analytical approach the court followed to establish the existence of a real and substantial connection with the local forum, what connections, this alternative forum has with the subject matter of the litigation. Finally, the party asking for a stay on the basis of forum non conveniens must demonstrate why the proposed alternative forum should be preferred and considered to be more appropriate.
[29] The Supreme Court concluded that this doctrine tempers the rigidity of the application of the rules governing the assumption of jurisdiction and recognizes the residual power of a court to decline to exercise its jurisdiction in appropriate cases.
[30] The Court stated that the burden imposed upon the party asking for a stay on the basis of forum non conveniens requires that party to show that the alternative forum is ‘clearly’ more appropriate.
ANALYSIS
[31] Of all of the claims made in the Statement of Claim, only one relates to the Michigan Circuit Court, Family Division order of December 29, 2008. The balance of the claims has their nexus in Ontario. The plaintiffs allege that there was a breach of fiduciary duty and an improper exercise of duties of a trustee. The trust property was located in Ontario. Further, they seek an order requiring a passing of account by the trustee of the condominium. As well, there is an existing court order of Ontario Superior Court dealing with the condominium.
[32] The defendant has acknowledged that he held title to the Ontario condominium as trustee. He states that it was as bare trustee.
[33] The plaintiffs allege that, at the very least, the defendant has a duty to account to the beneficiary for his management of that asset throughout the ownership of that asset.
[34] The Miller Thomson letter, dated March 4, 2004, indicates that the title to the condominium was transferred from the defendant to the Bedford Family Trust by instrument WC52754. The defendant’s affidavit confirms that the property was subsequently transferred into his name. Further, he authorized Mr. Coates to utilize his power of attorney to sell the property.
[35] The status of the Bedford Family Trust agreement is at issue. The agreement appears to be signed by the defendant and Alexandra. The defendant alleges that his signature was forged. Although the trust agreement does not state the governing law, it would appear that the agreement was drafted by Ontario counsel and the property purportedly settled into the trust was the condominium that is located in Ontario.
[36] The activities to which the plaintiffs take issue occurred in the Province of Ontario.
[37] One of the presumptive connecting factors listed in Van Breda is where a “contract connected with the dispute was made in the province”. The plaintiffs allege that the Bedford Trust was created in Ontario and, in the alternative, that a bare trust was created in Ontario between the defendant and the plaintiffs with the purchase of the condominium.
[38] These issues constitute presumptive connecting factors which give rise to “a real and substantial” connection to Ontario.
[39] The burden now shifts to the defendant to rebut the presumption and demonstrate that the presumptive connecting factors do not point to any real relationship between the subject matter of the litigation and the forum, or points only to a weak relationship between them.
[40] The Bedford Trust Agreement and the bare trust are contracts that are central to the litigation. The defendant has failed to rebut the presumption.
[41] Accordingly, this court has jurisdiction, and this aspect of the motion is dismissed.
FORUM NON CONVENIENS
[42] The second issue raised by Abedel is whether a stay should be granted on the basis of forum non conveniens.
[43] Abedel asserts that Michigan should be the preferred forum.
[44] Van Beda confirmed that a two step analysis is required when considering whether it would be more appropriate for litigation to proceed in another forum. First, one must utilize the same analytical approach that the court followed to determine the existence of a real and substantial connection with the local forum. In other words: what connections does the alternative forum have with the subject matter of the litigation? Secondly, assuming there are connecting factors to the alternate forum, the party requesting the stay must demonstrate why the alternative forum should be preferred and considered to be more appropriate.
[45] What are the connecting factors that establish a real and substantial connection with Michigan?
[46] All of the parties reside in the United States. Abedel and Alexandra reside in Michigan. Nastassja is a full time student in the United States.
[47] These facts are sufficient to establish a connection to the alternative forum. Abedel must now demonstrate that Michigan is preferred and a more appropriate forum than Ontario.
[48] Abedel submits that the most significant factor is the court actions between himself and Alexandra in Michigan. These parties obtained their divorce through the Michigan courts and settled their matrimonial issues, including property issues, through Michigan court orders. The condominium was referenced once in those orders.
[49] It is important to bear in mind that the asset that lies at the heart of this litigation is beneficially owned by Nastassja.
[50] The record does not show that Nastassja was a party to or consented to these actions.
[51] The condominium is situated in Ontario. The person to whom Abedel delegated the management of that asset resides in Ontario. That person would be a witness. The parties may also call other experts on matters related to the condominium, such as fair market value, typical rents, etc. It is a near certainty that these experts would all reside in Ontario. The Bedford Trust was drafted by Ontario counsel, who also would be potential witnesses. The location of the property and the likely witnesses in Ontario offset any apparent convenience or expense that the litigants might accrue if this litigation were conducted in Michigan.
[52] Ontario law would apply to all issues in this litigation.
[53] Avoiding multiplicity of legal proceedings and avoiding conflicting decisions in different courts are both factors to consider. The heart of this matter involves issues of fiduciary obligations, trustee acts or omissions, and a requested passing of accounts. The Michigan court proceedings do not involve those issues.
[54] Fairness to the parties is a relevant factor to consider. I understand that, as a result of the matrimonial proceedings, the passports of Alexandra and Abedel are held with the Michigan Court and arrangements would need to be made to release them to allow the parties to travel to Ontario for this trial. No evidence was provided to me on the process required to obtain the passports, but I would expect that since both parties would require their passports that they could agree upon a reasonable arrangement to facilitate this. In my view, this factor is not sufficient to counterbalance those factors which weigh against Michigan as the clearly more appropriate forum.
[55] The defendant has failed to establish that Michigan is “clearly more appropriate”. The motion for a stay based upon forum non conveniens is dismissed.
SECURITY FOR COSTS
[56] In the alternative, the Abedel seeks an order requiring the plaintiffs to post security for costs pursuant to Rule 56.01 of the Rules of Civil Procedure, R.R.O., 1990, Reg. 194. The defendant argues that based upon the affidavit material there is good reason to believe that subsections (a), (b), and (e) are applicable. Both plaintiffs are ordinarily resident outside of Ontario; Alexandra has a record of litigating multiple matters related to her divorce from Abedel; and there is another proceeding pending for the same relief in Michigan.
APPLICABLE LAW
[57] There is no prima facie right to security for costs. The initial onus is on the defendant to satisfy the court that there is “good reason to believe” that the matter fits within one of the enumerated subsections of Rule 56.01.
[58] Once that onus has been met, the burden shifts to the plaintiff to establish that an order for security would be unjust. The second stage of the test is “clearly permissive and requires the exercise of discretion which can take into account a multitude of factors.” (See Coastline Corp. v. Canaccord Capital Corp., [2009] 176 A.C.W.S. (3d) 966 at para. 7).
[59] The plaintiff can establish that an order for security would be unjust by demonstrating:
the plaintiff has appropriate or sufficient assets in Ontario or in a reciprocating jurisdiction to satisfy any order of costs made in the litigation;
the plaintiff is impecunious and that justice demands that the plaintiff be permitted to continue with the action, i.e. an impecunious plaintiff will generally avoid paying security for costs if the plaintiff can establish that the claim is not “plainly devoid of merit”; or
if the plaintiff cannot establish that it is impecunious, but the plaintiff does not have sufficient assets to meet a costs order, the plaintiff must meet a high threshold to satisfy the court of its chances of success. See Coastline at para. 7.
[60] The threshold for establishing impecuniosity is high and:
…can only be reached by ‘tendering complete and accurate disclosure of the plaintiff’s income, assets, expenses, liabilities and borrowing ability, with full supporting documentation for each category where available or an explanation where not available’. See Coastline at para. 7.
[61] In 1632097 Ontario Limited v. 1338025 Ontario Inc., 2011 ONSC 5909 at para. 16, Master R.A. Muir illuminated another factor which the Court may take into consideration in the exercise of its discretion:
Even accepting that the defendant has satisfied the onus of establishing that the plaintiff has insufficient assets to respond to a costs order, I have nevertheless determined that it is not just, in the circumstances of this action, to order the plaintiff to post security for costs. Ultimately, the role of the court on a motion such as this is to make the order that is just in the circumstances. See Shuter v. Toronto Dominion Bank, [2007] O.J. No. 3435 (S.C.J. – Master) at paragraph 63. All of the evidence relied upon by the defendant in support of this relief was known to it many years ago. The defendant has provided no explanation as to why it waited so long to bring this motion and to now do so on the eve of trial. The plaintiff has expended time and money pursuing this action. It should not be faced with a security for costs motion after having done so when the basis for the requested security for costs was known to the defendant for many years. A defendant should be required to bring a motion for security for costs as soon as it becomes aware of the grounds for doing so. This is because it allows the plaintiff to make an informed decision about whether to invest time and money in litigation, knowing that it may have to post such security as a condition of proceeding to trial. In my view, the defendant’s delay in bringing this motion weighs heavily against the granting of security for costs. See 423322 Ontario Ltd. v. Bank of Montreal, [1988] O.J. No. 1486 (H.C.J.) at paragraphs 15 and 18.
ANALYSIS
[62] Abedel alleged that Rule 56.01(b) applies to this action. The condominium was the subject of the order in the divorce proceeding between Abedel and Alexandra. However, the action before me is primarily an issue between an alleged beneficiary, Nastassja, and an alleged trustee. One relief sought is a passing of accounts. That is a different relief than is sought in any action pending in Michigan. Abedel has failed to establish that Rule 56.01(b) is applicable to this matter.
[63] Abedel also alleged that Rule 56.01(e) applies to this action. This Rule requires that the party show that there is good reason to believe that the action is frivolous and vexatious. Once that is established, it must also be shown that the plaintiff has insufficient assets in Ontario to pay the costs of the defendant.
[64] Based upon the evidence before me, I find that the action is not frivolous and vexatious. The record shows that there are triable issues.
[65] The uncontradicted evidence that both plaintiffs are ordinarily resident outside of Ontario satisfies the initial onus on the defendant of establishing that there is “good reason to believe” that the plaintiffs fall within Rule 56.01(a). Given this, the onus shifts to the plaintiffs to establish that an order for security for costs would be unjust.
[66] The plaintiff attempted to rebut the presumption by demonstrating that Alexandra and Nastassja were impecunious. The plaintiff’s evidence provided the complete disclosure of income, assets, expenses, liabilities and borrowing ability required to prove Nastassja’s impecuniosity. I am satisfied that Nastassja’s impecuniosity has been established.
[67] There are two plaintiffs, however, and Alexandra’s impecuniosity must also be shown to rebut the presumption.
[68] The evidence before this court from a certified copy of the divorce order demonstrates that significant assets were transferred to Alexandra as a result of the divorce. No evidence was provided to establish that Michigan is a reciprocating jurisdiction, which would be required to rebut the presumption and establish that an order for security for costs would be unjust (See Coastline).
[69] The plaintiffs have failed to establish that Alexandra is impecunious. Thus, it is not possible to establish that an order for security for costs would be “unjust”, as defined in Coastline, to both plaintiffs.
[70] However, the second stage of the test is “clearly permissive and requires the exercise of discretion which can take into account a multitude of factors.” See Coastline.
[71] This matter began with a Statement of Claim issued October 15, 2010. The Statement of Defence is dated January 7, 2011. In paragraph 7 of the Statement of Claim the defendant states:
Dr. Abushmaies states that this claim is not brought within the proper territorial jurisdiction. Also or in the alternative Dr. Abushmaies states that any issue of enforcement of the Michigan orders should be brought in Michigan. Also or in the alternative Dr. Abushmaies states that the Plaintiff Alexandra Bedford has another contemporaneous court action by motion before the court in Michigan dealing with the subject Property.
[72] Although this matter is not being dealt with on the eve of trial, the defendant knew at the time of and since the filing of the statement of defence that both plaintiffs were ordinarily resident outside of Ontario. It is this information upon which he relies for this motion. The defendant has not given any explanation for why he waited until August 7, 2012, 19 months after he was aware of the relevant facts, to bring this motion.
[73] The plaintiffs have expended time and incurred costs in pursuing this matter. They brought a motion returnable on March 13, 2012 that ultimately resulted in an Order, on consent, dated July 31, 2012, ordering Mr. Ned Coates to produce documentation in his possession with respect to the management and sale of the condominium.
[74] As noted in 1632097 Ontario Limited, “A defendant should be required to bring a motion for security for costs as soon as it becomes aware of the grounds for doing so”. The defendant has failed to do so.
[75] The role of the court on this motion is to make an order that is just in the circumstances. It would be unjust considering the delay in the filing of this motion and the intervening steps brought by the plaintiffs to order them to post security for costs.
[76] The motion for an order requiring the plaintiffs to post security for costs is dismissed.
[77] The parties may provide cost submissions not to exceed three pages (not including any offers to settle or bill of costs). Counsel for the plaintiff shall provide his submission within 15 days. Counsel for the defendant shall provide her submissions within 15 days thereafter.
Edwards J.
DATE: March 6, 2013
COURT FILE NO.: 725-10 SR (Guelph)
DATE: 2013 03 06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALEXANDRA NATASLIE BEDFORD and NASTASSJA CHYNNA BEDFORD
- and -
ABEDEL KARIM ABUSHMAIES Also known as ABEDELKARIM ABUSHMAIES
BEFORE: Justice David L. Edwards
COUNSEL: David Camelitti, for the Plaintiffs
Carol S. Vamdenhoek, for the Defendant
ENDORSEMENT
Edwards J.
DATE: March 6, 2013