Maverick Paintball Inc. and Brent Hillier v. Hutchens et al., 2014 ONSC 5718

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 82-2012 (Goderich)
DATE: 2014/10/01

RE: Maverick Paintball Inc. and Brent Hillier

-and-

Craig (Sandy) Hutchens aka Sandy Hutchens aka Sandy Craig Hutchens aka Craig Hutchens aka Moishe Hutchens aka Craig Alexander aka Moishe Alexander aka Moshe Alexander aka Moishe Ben Avaham aka Moishe Ben Avohom aka Ben Avrohom aka Ben Avrohom aka Fred Hayes aka Alexander McDonald aka Alex McDonald, Dave McDonald aka Mathew Kovee, Tanya Hutchens aka Tatiana Brik, TD Canada Trust, TD Bank Financial Group, David Macenzie, Barry Poulson, Arseneau Poulson, Michael Spiro, Lorne Honickman, McGagure Borlack LLP, Alvin Meisels, Reznick Parsons Meisels Taberner, Blaney McMurtry LLP, Jan Luistermans aka Herman Luistermans, Realty 1 Real Estate Services Ltd., Fifth Avenue Private Investigators and Paralegal, Gary White, Tom Warren, Net Patrol, Rabbi Mendel Kaplan and Chabad@Flamingo, Jacob Gryn, CO4 Computing Inc.

BEFORE: Justice A.K. Mitchell

COUNSEL:
Brent Hillier, appears in person

Philip Smith, as agent for counsel for the defendants, Tom Warren and Net Patrol aka Net-Patrol International, Inc.

HEARD: August 20, 2014 at Goderich.

E N D O R S E M E N T

Nature of the Motion

1The plaintiffs commenced this action on May 23, 2012. Since that time the action has been whittled down to a claim remaining against only the defendants, Tom Warren and Net Patrol aka Net Patrol International, Inc. (the “Net Patrol Defendants”).

2Through a series of motions, the statement of claim has been struck or the action dismissed, as the case may be, against the balance of the defendants with significant cost awards having been made in favour of these successful defendants.

3This is motion for security for costs of the summary judgment motion brought by the Net Patrol Defendants. On the motion for summary judgment, the Net Patrol Defendants seek to have the plaintiffs’ claim dismissed as disclosing no genuine issue for trial (the “summary judgment motion”). A return date for the summary judgment motion has not been scheduled.

4In addition to their request for security for costs of the summary judgment motion in the amount of $10,000.00, the Net Patrol Defendants seek an order requiring the plaintiffs to deliver their affidavit of documents within 30 days. Last, the Net Patrol Defendants seek an adjournment of the summary judgment motion sine die pending payment of the security if so ordered and delivery of the affidavit of documents.

Background

5The plaintiffs claim damages, including punitive damages, totaling $1.5 million arising from an alleged scheme to defraud them. The main “fraudsters” are the named defendants, Craig (Sandy) Hutchens and his many aliases and Tanya Hutchens and her alias (collectively, the “Hutchens Defendants”). Against the Hutchens Defendants, the plaintiffs claim $9 million. The claim against the Hutchens Defendants based in fraud and deceit has been dismissed.

6The claim against the Net Patrol Defendants arises from their alleged knowing or unknowing participation in a fraudulent scheme alleged to have been perpetrated by the Hutchens Defendants.

7The individual plaintiff, Brent Hillier, is self-represented in these proceedings. The corporate plaintiff does not have legal representation and Mr. Hillier has not sought leave of the court to represent the corporate plaintiff pursuant to Rule 15.01(2).

8To date, the plaintiffs have not advanced the action. No affidavit of documents has been filed and no examinations for discovery conducted. The involvement of the plaintiffs to date has involved responding - unsuccessfully I might add - to the plethora of motions brought by the various defendants.

9The Net Patrol Defendants have served their affidavit of documents and are ready to proceed with the discovery process.

10Costs orders made against the plaintiffs in favour of parties, other than the Net Patrol Defendants, which remain outstanding and unpaid, total $106,956.21. These outstanding costs orders have compelled the Net Patrol Defendants to bring this motion

Materials filed

11The plaintiffs have not filed proper responding materials. Instead, the plaintiffs have filed a “Responding Factum of the Plaintiffs (Response to Security for Cost Motion by Defendants Tom warren & Net Patrol)”. In this document, Mr. Hillier attests to facts which are not in evidence. Affidavit material addressing only the issues on this motion should have been filed. Passing reference was made by Mr. Hillier to some earlier affidavit material filed in connection with a motion unrelated to the one before me and brought by defendants who are no longer part of these proceedings. This is not helpful. The court should not be asked to search for relevant evidence in the reams of court materials filed in connection with earlier motions unrelated to the motion in question. It is the job of Mr. Hillier to ensure that the proper evidentiary record is before me and easily referable.

The Law

12Rule 56.01 is my authority to make an order for security for costs of the action.

13I am unaware of the court’s authority to make an order for security for costs of the summary judgment motion. I suspect I have no authority. On the summary judgment motion, the plaintiffs are the responding parties. It would be patently unfair to expect a party called upon to “defend” a claim for relief, such as summary judgment, to post security. Such a situation would be analogous to a defendant being required to post security for costs before being permitted to defend an action, which is similarly patently unfair. Rule 56.01 cannot be used for such purpose.

14With respect to the balance of the relief requested, the Net Patrol Defendants are entitled to an order requiring the plaintiffs to serve their affidavit of documents.

15Accordingly, an order shall issue on the following terms:

(a) Motion for security for costs of the summary judgment motion is dismissed without prejudice to the Net Patrol Defendants to bring a fresh motion for security for costs of the action should the summary judgment motion not proceed or succeed. In response to any such motion for security for costs of the action, the plaintiffs shall file proper affidavit evidence in response addressing only the issues on such motion;

(b) The plaintiffs shall serve on the Net Patrol Defendants their affidavit of documents within 30 days of the date hereof failing which the Net Patrol Defendants may move, without further notice to the plaintiffs, for an order dismissing the action; and

(c) The summary judgment motion is adjourned sine die returnable on 4 days’ notice.

16There was divided success on the motion. No order as to costs of the motion.