CITATION: Pashley v. Young and Yu, 2017 ONSC 513

COURT FILE NO.: C-277-13

DATE: 2017/01/20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Marie-Carmelle Ourlaine Pashley, Plaintiff

AND:

Alicia Young and Helen San-Chi Yu, Defendants

BEFORE: The Honourable Mr. Justice D. J. Gordon

COUNSEL: Dennis G. Crawford, Counsel for the Plaintiff Paul Hancock, Counsel for the Defendants

HEARD: January 18, 2017

endoRsement

[1] In her motion, Alicia Young seeks an order staying the plaintiff’s claims as against her until the cost award in favour of the former defendant, Helen San-Chi Yu, is paid in full and directing such payment be made within 30 days, failing which she may move to dismiss the plaintiff’s claim.

[2] The plaintiff commenced this action by statement of claim issued on March 28, 2013 and amended on August 16, 2013. She claims against the defendants “jointly and severally” for damages and other relief. The claim against Ms. Young pertained to renovations of a residence for staging and sale while the claim against Ms. Yu dealt with a mortgage loan used to fund the renovations. Other allegations connect the two claims.

[3] Ms. Yu brought a motion for summary judgment. It was successful. On June 16, 2016, Braid J. granted a final order dismissing Ms. Pashley’s claim against Ms. Yu and awarded judgment on the counterclaim for $40,132.90 plus interest of $13,766.14 and costs of $15,000.00. Funds held by a solicitor in trust were directed to be paid out and applied to the principal and interest. The cost award was to be paid in the amount of $4,000.00 forthwith, the balance of $11,000.00 within 90 days.

[4] The solicitor delivered a cheque for $43,293.07. Ms. Pashley did not make any voluntary payments; however, garnishments of her bank accounts resulted in collection of $4,002.65. In result, I understand there remains owing on the judgment $6,603.32 for interest and $15,000.00 for costs.

[5] Ms. Pashley claims to be impecunious, saying she does not have sufficient funds at present but intends to pay the judgment in full from the funds she anticipates receiving after the trial of her claims against Ms. Young. This is simply a bald statement. No financial disclosure was provided as required to support a finding of impecuniosity. The absence of evidence, in my view, supports an adverse inference to the contrary.

[6] Rule 57.03, Rules of Civil Procedure, allows the court to stay or dismiss a party’s proceeding for failure to pay a cost award. The relief is, of course, discretionary. The cost award was made in this proceeding and, hence, the rule applies even though the award was made in favour of a former co-defendant. This is particularly the case when the claims advanced are joint and several and, as well, the allegations made against Ms. Young with respect to obtaining the loan from Ms. Yu.

[7] Caselaw referred to by counsel consistently endorses the proposition court orders must be enforced. A plaintiff’s right to a trial on the merits is subject to compliance with the Rules. Non-payment of costs awards, absent a compelling reason for same, invites sanction. In my view, there is a sufficient connection in the statement of claim as to the allegations against the defendants, and each of them, to consider the outstanding cost award on this motion.

[8] Ms. Pashley has not made any effort to pay this cost award voluntarily. Garnishments of her bank accounts resulted in some credit on the interest outstanding. Of further concern, no proposal was presented. It is not reasonable or appropriate to simply promise payment after a trial, if she is successful.

[9] I conclude the relief sought is appropriate in the circumstances of this case. In result, an order is granted as follows:

a) the plaintiff’s claim against Ms. Young is stayed until the cost award of $15,000.00 is paid in full to Ms. Yu;

b) this cost award shall be paid in full by March 31, 2017, failing which the action is struck from the trial list and Ms. Young may move to dismiss the plaintiff’s claim.

[10] If the parties are unable to resolve the issue of costs for this motion, including costs for the prior attendance in December 15, 2017, counsel are directed to exchange brief written submissions and deliver same to my chambers in Kitchener within 30 days.

D. J. Gordon J.

Date: January 20, 2017