Court File and Parties

CITATION: Yormak v. Yormak, 2015 ONSC 2180

COURT FILE NO.: 1432-13

DATE: 2015/04/14

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Benjamin H. Yormak (Plaintiff)

AND:

Steven R. Yormak (Defendant)

BEFORE: Justice B.W. Miller

COUNSEL: K. MacLean, for the plaintiff

Steven R. Yormak, self-representing

HEARD: March 24, 2015

ENDORSEMENT

[1] This is the defendant’s motion for security for costs under Rule 56.01(1), and motion for a stay of various costs orders that have been made against him earlier in these proceedings, from both this Court and the Court of Appeal.

[2] The plaintiff, as legal beneficiary of an estate of his grandfather, brought an action for indemnification from the defendant, his father, for tax liability incurred by the defendant as estate trustee. The plaintiff also claimed for damages for breach of trust, breach of fiduciary duty, and negligence with respect to the defendant’s administration of an estate.

[3] The indemnification was ordered by Justice Gorman on August 12, 2014 after hearing the plaintiff’s motion for summary judgment on that issue. The plaintiff was entirely successful at that hearing and was awarded costs.

[4] Having obtained summary judgment on the indemnification issue, the only issues remaining are the claims with respect to breach of trust, breach of fiduciary duty, and negligence. The parties disagree about the significance of these remaining claims. The plaintiff characterizes them as claims made in the alternative to the claim for indemnification. Having now succeeded on the indemnification claim, he sees no need to pursue these claims further and is bringing a motion returnable May 11, 2015 for leave to withdraw the remainder of the claim.

[5] The defendant sees matters differently, and intends to argue that there has been a great deal of expense defending the non-indemnification claims and that he is entitled to be awarded costs for defending the claims that are being withdrawn.

[6] Ultimately, there is nothing remaining in issue other than costs that may or may not be awarded as a condition of that withdrawal.

[7] What, then, would be the consequences of this motion for security for costs?

[8] If the motion were granted, the plaintiff would be required to post security, and if the plaintiff did so, this would provide a means for the defendant to realize on a cost award that may later be awarded to the defendant.

[9] What if the plaintiff were ordered to post security but did not? By Rule 56.05, the plaintiff would not be permitted to take any further steps in the proceeding. The only step remaining in this proceeding, however, is the plaintiff’s motion for leave to withdraw the remainder of the claim and end the action. The practical effect of Rule 56.05 would be to prevent the plaintiff from moving to end the action.

[10] In such a circumstance, it would be expected that the defendant would move under Rule 56.06 to have the action dismissed. As the plaintiff would be barred from participating in this motion, the plaintiff would not be in a position to argue costs and the defendant would make his costs submissions unopposed. In the result, however, he would be in no better position to enforce that cost award with a security for costs order than without.

[11] Because the motion has no practical significance, I decline to exercise my discretion to make an order for security for costs.

[12] With respect to the defendant’s motion to stay the various awards of costs made against him, I also decline to make that order. There is no reason why those orders should be stayed. The defendant has brought multiple motions since the endorsement of Gorman J. largely ended these proceedings, and these costs are properly payable.

[13] The plaintiff has been successful in this motion and costs of the motion are fixed in the amount of $1,000 and payable forthwith.

“Justice B. W. Miller”

Justice B.W. Miller

Date: April 14, 2015