CITATION: Rosin v. Dubuc, 2016 ONSC 6441
TORONTO COURT FILE NO.: CV-14-505313
DATE: 2016-10-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LOUIE ROSIN
Ms. H. Epstein for the Plaintiff, Responding Party
Plaintiff/Responding Party
- and -
JUSTIN DUBUC, JAMES ANTHONY GLENA, SHAWN WHIPPLE, IAN WEST, DON ORAM, LORI WRIGHT, THE THUNDER BAY POLICE SERVICE BOARD, AND THE ATTORNEY GENERAL OF CANADA
Defendants/Moving Parties
Mr. S. Wojciechowski, for the Defendants, Thunder Bay Police Services Board and named officers, Moving Parties
Ms. F. Debnath for the Defendant, Attorney General of Canada, (Moving Party)
HEARD: September 6, 2016, at Thunder Bay, Ontario
Madam Justice H.M. Pierce
Reasons on Motions for Security for Costs
[1] The defendants, Thunder Bay Police Services Board, the named police officers, and the Attorney General of Canada move, pursuant to Rule 56.01of the Rules of Civil Procedure for orders requiring the plaintiff to post security for costs. The moving parties each seek security in the amount of $30,000. Thunder Bay Police seek an order that the entire sum be paid at once. The Attorney General for Canada submits that the sum should be paid in two instalments: $15,000 to be deposited with the court within 30 days of the court’s decision in this motion and a further $15,000 to be deposited 90 days before trial.
[2] The plaintiff opposes orders for security for costs, arguing that it will deny him access to justice.
The Facts
[3] The plaintiff claims against the defendants for damages for negligent investigation and malicious prosecution based on the following circumstances.
[4] In 2009, the Thunder Bay police obtained a warrant to search the plaintiff’s residence. Numerous retail goods were found at the premises. After the search, the police arrested the plaintiff and charged him with 45 criminal offences involving stolen property, drugs, and weapons. The Thunder Bay police were assisted in their investigation by Constable Miller of the RCMP.
[5] The plaintiff was refused bail despite having a minor and unrelated criminal record. He believes he was detained because of the testimony of Constable Miller who characterized him as a “Fagan” character who recruited vulnerable people to steal for him in return for drugs. The plaintiff claims that Constable Miller inflated the value of merchandise seized at his home.
[6] The plaintiff also believes that he was denied bail because Constable Miller misled the court by falsely testifying that he was involved in ongoing criminal activity and that the police found knives throughout the plaintiff’s home.
[7] The plaintiff alleges that his two subsequent applications for bail review were also unsuccessful because of Constable Miller’s false testimony.
[8] Before and after preliminary inquiry, the Crown withdrew many charges against the plaintiff, who was committed to trial on 17 counts. Ultimately, Mr. Rosin pleaded guilty to two counts: possession of oxycodone for the purpose of trafficking, and possession of stolen property exceeding $5,000.00. No evidence regarding a plea bargain was adduced by the plaintiff.
[9] After being detained in jail for 21 months, he was sentenced to a global sentence of six months in custody, which he had already served. In addition, the plaintiff was prohibited from possessing a firearm for ten years. All of the controlled drugs seized were ordered forfeited to the Crown.
[10] The plaintiff has not been employed since at least 2008. In or about 2013, the plaintiff began receiving disability benefits of approximately $1,110.00 per month under the Ontario Disability Support Plan. Since his criminal prosecution he sold his house and vehicles to pay for his defence. He now lives with his parents and is unable to pay child support.
[11] The plaintiff says that before his arrest, he owned a successful towing business and collected and repaired motor vehicles. However, because of an injury in about 2008, his services were limited to gaining access to cars for locked-out drivers, boosting batteries and snow ploughing. He now has no assets of any kind.
[12] The plaintiff argues that an order to stay his action pending security for costs would be unfair because the actions of the defendants are the very reason he has no assets.
[13] This litigation is funded on a “pay as you go” basis, with the plaintiff paying his lawyer when interim accounts are rendered. The funding for the litigation is provided by family and friends.
[14] The defendants submit that there is no evidence that the plaintiff could not proceed with the litigation if security for costs is ordered.
The Law
[15] Rule 56 of the Rules of Civil Procedure governs security for costs. The clauses relevant to this motion provide:
56.01(1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,
(e) there is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent; or
(f) a statute entitles the defendant or respondent to security for costs.
[16] In this case, s. 10 of the Public Authorities Protection Act, R.S.O. 1990, c. P.38 also provides statutory authority for a motion for security for costs. It states:
- Where an action is brought against a justice of the peace or against any person for any act done in pursuance or execution or intended execution of any public duty, statutory or otherwise, or authority, or in respect of any alleged neglect or default in the execution of any such statute, duty or authority, the defendant may, at any time after the service of the writ, make a motion for security for costs if it is shown that the plaintiff is not possessed of property sufficient to answer the costs of the action in case a judgment is given in favour of the defendant, and that the defendant has a good defence upon the merits, or that the grounds of the action are trivial or frivolous.
[17] If security for costs is ordered, Rule 56.05 stipulates that the party against whom the order is made may not take any new step in the proceeding except an appeal from the order unless the court orders otherwise. In other words, absent an appeal, the plaintiff’s claim is stayed until security is posted.
[18] The procedure for deciding motions for security for costs was comprehensively reviewed in Shuter v. Toronto Dominion Bank, 2007 CanLII 37475 (ON SC).
[19] First, the moving party must show that it appears that the factor being relied upon in the rule exists: in this case, that the plaintiff has insufficient assets in Ontario to pay costs should he be unsuccessful in the litigation. Once this has been proven, the moving party has a prima facie right to an order for security for costs: p. 11.
[20] At the second stage of the inquiry, if the moving party shows that it appears that the plaintiff does not have sufficient assets to pay costs, the onus shifts to Mr. Rosin. The onus is on the plaintiff to prove that he is impecunious by way of evidence: p. 12. A simple statement to that effect will not suffice. In Ferguson v. Arctic Transportation Ltd. (1996), 111 F.T.R. 154, the court held that the plaintiff must show that he is “impoverished or needy.”
[21] The court must consider all the factors that bear on the “justice of the case,” including the merits of the case.
[22] At pp.11 - 12 of Shuter, Master Haberman explained that generally the losing party is ordered to pay significant costs to the winning party. In cases where it is doubtful that a party can afford to pay costs if unsuccessful, security for costs may be ordered to insulate the winning party from an unenforceable costs order. However, she warns that the rule is not intended to halt well-founded actions where a party is unable to post security. She also cautions that the court should be slow to order security for costs if the reason that the plaintiff is unable to do so is due to the acts of the defendant.
[23] Master Haberman adds that if a party is able to demonstrate that he is impecunious but his claim is “not totally devoid of merit,” the court will be reluctant to order security for costs.
[24] Whether or not the plaintiff is impecunious, he must still demonstrate that “justice demands that he be permitted to continue on the litigation course:” p. 14. This involves an inquiry into the merits of the case. If the plaintiff has shown he is impecunious, he must also show that the claim “is not almost certain to fail:” p. 14.
[25] In Hossain v. City of Toronto, 2016 CarswellOnt 2097 (Master) at para. 15, the court held that there is a less onerous standard for an impecunious plaintiff to show his or her case is meritorious. The court observed:
…This approach recognizes the court’s desire to avoid putting a plaintiff with a potentially meritorious claim in a position where they are unable to proceed because they are impecunious, so truly unable to post security. If their case is not entirely devoid of merit, the court tends to favour a path that gets the case to trial.
[26] In order to evaluate the merits of the claim, it is necessary to consider what the plaintiff must prove. With respect to the claim of negligent police investigation, the plaintiff must prove:
(1) that the defendant initiated the proceedings;
(2) that the proceedings were terminated in favour of the plaintiff; and
(3) there was no reasonable or probable cause to commence or continue with the prosecution.
See: Solomonvici v. Toronto (City) Police Services Board, [2009] O.J. No. 3144; 2009 CanLII 39060 (ON SC), 2009 CarswellOnt 4418, para. 9.
[27] With respect to a claim for malicious prosecution, the plaintiff must also prove malice in addition to the three elements for negligent investigation: Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, para. 42.
[28] In this case, there is no doubt that proceedings were initiated by the defendant police force. The salient issue is whether the proceedings terminated in favour of the plaintiff. The question of termination of proceedings in the plaintiff’s favour was fully canvassed in Romanic v. Michael Johnson, 2012 ONSC 3449. Examples of termination in favour of the accused include an acquittal after trial on the merits; a discharge of the accused after preliminary inquiry; imposition of a judicial stay of proceedings; a stay of charges by the Crown; or unilateral withdrawal of the charges by the Crown because there is no reasonable prospect of conviction. See para. 11.
[29] By contrast, the court in Romanic describes various terminations of proceedings unfavourable to the plaintiff. These include pleas of guilt; findings of guilt after trial and subsequent sentencing which are not overturned on appeal; withdrawal of charges in return for an accused entering into a peace bond; a plea bargain upon which the accused pleads guilty to certain charges and the Crown withdraws other counts; withdrawal of charges by the Crown after an accused person has made restitution to alleged victims; or withdrawal of charges after an accused makes a charitable donation. See paras. 12, 23, 28, 30, and 33.
Analysis
[30] The first question to be answered is does the plaintiff has sufficient assets in Ontario to pay costs should he be unsuccessful in the litigation? It is clear that he does not. Accordingly, the moving parties are prima facie entitled to orders for security for costs.
[31] The defendants submit that if Mr. Rosin can fund the litigation with assistance from family and friends, he is not impecunious.
[32] Mr. Rosin lives with his parents who provide practical support. His income is confined to Ontario Disability Benefits, with annual income of $13,212 in 2015. He has sold his residence and vehicles to fund his criminal defence. This litigation is being funded by the plaintiff’s family and friends on a “pay as you go” basis. In my view, these informal arrangements do not establish that Mr. Rosin has the personal resources to finance the litigation.
[33] Undoubtedly, there is a difference between family and friends paying for a loved one’s own lawyer and their willingness to pay costs for opposing counsel. I conclude that the plaintiff is impecunious. Subsisting on government benefits certainly fits the definition of impoverished or needy.
[34] The court must now consider all factors that have a bearing on the “justice of the case.” The onus shifts to the plaintiff to show that he has a meritorious case and that it would be unjust to require him to post security for costs.
[35] Mr. Rosin submits that his claim has merit because he was charged with some 45 counts that would have, if he was convicted, resulted in a lengthy jail sentence. Instead, as the proceeding continued, the Crown withdrew many charges. Mr. Rosin was committed for trial on 17 counts at the preliminary inquiry. He submits that because he was only sentenced on two charges, his jeopardy at trial was greatly reduced and that was a favourable outcome.
[36] Whether the defendants proceeded maliciously against the plaintiff cannot be determined on the record at this stage. However, applying the case law discussed in Romanic, it is not necessary to await examinations for discovery to conclude that the criminal proceedings did not terminate in the plaintiff’s favour. He pleaded guilty to two charges and was sentenced to six months in prison. In addition, he was subject to a weapons prohibition. At law, this was not a favourable result for the plaintiff. There is a strong inference that the plaintiff will not be able to prove an essential element of his tort claims: that the proceedings terminated in favour of the plaintiff. Therefore, the plaintiff has not satisfied his onus: that his case is not almost certain to fail.
[37] If the plaintiff is unsuccessful in the litigation, each defendant runs the risk of obtaining an empty judgment for costs. The defendants each request security for costs in the sum of $30,000. Neither defendant has filed a bill of costs supporting that request.
[38] Citizens are entitled to access to the courts for the purpose of determining disputes. Society’s interest is in having disputes determined on their merits. The purpose of security for costs is to protect a defendant from the prospect of an unenforceable judgment for costs; that is a risk in this case if the plaintiff is unsuccessful. However, the amount of security to be posted should not be so onerous as to effectively block access to the courts.
[39] While I am persuaded that security for costs is warranted in this case, I am concerned that the amounts claimed by the defendants, both individually and collectively, may have the effect of blocking the plaintiff’s access to the court. I am mindful that the plaintiff’s family and friends are paying for the litigation on the plaintiff’s behalf. In my view, security for costs in a lesser amount is appropriate in this case.
[40] The plaintiff is ordered to deposit with the court the sum of $7,500.00 as security for costs in favour of the Thunder Bay Police Services Board and the named police officers within 30 days of the release of these reasons, and a further $7,500.00 to be deposited 90 days before trial.
[41] The plaintiff is also ordered to deposit with the court the sum of $7,500.00 as security for costs in favour of the Attorney General of Canada within 30 days of the release of these reasons, and a further $7,500.00 to be deposited 90 days before trial.
Costs
[42] If the parties cannot agree on costs of this motion, any party may apply to the trial coordinator within thirty days of the release of these reasons for an appointment to argue costs, failing which, costs will be deemed to be settled. Costs submissions are not to exceed five pages. Counsel is granted leave to appear by teleconference to argue costs, if so advised.
_______“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: October 14, 2016
CITATION: Rosin v. Dubuc, 2016 ONSC 6441
TORONTO COURT FILE NO.: CV-14-505313
DATE: 2016-10-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LOUIE ROSIN
Plaintiff/Responding Party
- and -
JUSTIN DUBUC, JAMES ANTHONY GLENA, SHAWN WHIPPLE, IAN WEST, DON ORAM, LORI WRIGHT, THE THUNDER BAY POLICE SERVICE BOARD, AND THE ATTORNEY GENERAL OF CANADA
Defendants/Moving Parties
REASONS ON MOTION FOR
SECURITY FOR COSTS
Pierce J.
Released: October 14, 2016
/mls