Superior Court of Justice - Ontario

CITATION: Popovich v. Financial Investment Centre Inc., 2017 ONSC 521

COURT FILE NO.: CV-11-15997

DATE: 20170120

RE: George Popovich and 2038339 Ontario Inc., Plaintiffs

AND:

Financial Investment Centre Inc., Richard W. Woodall, 2107835 Ontario Inc., Mauro DiMario, 2107815 Ontario Inc. and Desjardins Financial Security Investments Inc., Defendants

BEFORE: Carey J.

COUNSEL: Myron W. Shulgan, Q.C., for the Plaintiffs

Matthew R. Todd, for the Defendants Woodall, DiMario and 2107815 Ontario Inc.

HEARD: January 17, 2017

ENDORSEMENT

[1] The moving party defendant Woodall seeks an order striking out or staying the claim of the plaintiffs for failure to pay outstanding costs orders. The two orders arise from an unsuccessful application by the plaintiffs for summary judgment against the defendant Woodall. The plaintiffs admit it is in default of the costs orders but says impecuniosity prevents the payment.

[2] The relief sought is discretionary and I accept that it is an extreme remedy that should be used sparingly. The moving party defendant has not demonstrated any wilful intent to disregard the orders on the part of the plaintiffs. Nor have they taken issue with the plaintiffs’ claim that they are impecunious. There is a trial date set for later this year and the defendants have failed to show any prejudice that would befall them by not striking the claim. This is not a situation where a stay with conditions would be appropriate. I am satisfied on the material before me that the plaintiffs are genuinely without the funds to pay the costs order. The motion and leave for appeal that led to the costs orders was not, in my view, brought frivolously. The extreme consequences to the plaintiffs sought by this motion are not warranted in all of the circumstances. The motion is dismissed without costs.

Original signed by Justice Thomas J. Carey

Thomas J. Carey

Justice

Date: January 20, 2017