COURT FILE NO.: CV-13-414-SR
DATE: 2021Jun9
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JEAN-PASCAL CHAMPAGNE and VANESSA CHAMPAGNE
Plaintiffs
– and –
CHRISTINE SEARLES, DARRELL SEARLES, PATTI GRAY, SOUTHEASTERN ONTARIO REALTY INC. COB REALTY EXECUTIVES SOUTHEASTERN ONTARIO BROKERAGE, AND REDKA CONSTRUCTION INC.
Defendants
James McCarthy, for the plaintiffs
Jennifer Ng, for the defendants
HEARD at Kingston: May 13, 2021
Tranmer, J.
DECISION ON MOTION FOR SECURITY FOR COSTS
[1] The defendants, Mr. and Mrs. Searles, seek an order for security for costs under Rule 56.01 (1) (a) and (e).
[2] The action arises from the purchase by Major and Mrs. Champagne from the defendants of a house on September 9, 2011. The action alleges deficiencies in the condition of the house that were discovered by the plaintiffs after closing which required them to incur significant expenses and losses to remedy.
[3] The Statement of Claim was issued August 16, 2013.
[4] Major Champagne is a member of the Canadian Armed Forces. He was posted to Kingston in July 2011 for an unspecified duration.
[5] He was subsequently posted to serve in Colorado Springs, Colorado, USA from July 16, 2018 to July 30, 2021. That posting has been extended for an additional year due to COVID.
[6] Major Champagne has indicated that at present he does not know what or where his next posting will be. He has testified that he does not know when or if he and his family will return to Ontario. Previous postings had been in Québec and Alberta.
[7] The subject property was sold by the Champagnes in September 2018.
[8] Major Champagne votes in Ontario and files taxes federally as a deemed resident. He is paid by the Government of Canada situated in Ottawa, Ontario. His wife files tax returns in Ontario. She is not employed.
[9] The only asset that the plaintiffs have is approximately $47,000 in an RRSP held in the National Bank in Ontario. He also has credit facilities and approximately $360 in the chequing account at Scotia Bank.
[10] He does not own real property anywhere. His family rents their home in Colorado Springs, subsidized by his employer.
[11] The plaintiffs have liabilities in the order of $70,000 Canadian.
Rule 56.01
[12] I acknowledge that the cases hold that the onus under this Rule is not a heavy one.
Rule 56.01(a)
[13] The circumstances of this case are not those normally contemplated under this Rule. The plaintiffs did not commence the action while resident outside of Ontario. At the time that they purchased their house and commenced the action, future postings required by his employer were unknown. They were established residents of Ontario.
[14] His posting to Colorado Springs occurred 5 years after the action was commenced. He was required, as a member of the Canadian Armed Forces, to move and work there.
[15] That move was not a personally made, free choice by the plaintiffs either to move there or to put themselves out of reach of a costs order against them.
[16] To subject these plaintiffs to an order for security for costs in these circumstances would expose them to an order that other residents of Ontario employed by different types of employers, for example the City, a teacher, an electrician or a banker would not be subjected to.
[17] The only asset that these plaintiffs have, namely their RRSP, exists in Ontario, regardless of where they are living. Wages can be garnished in Ontario. To satisfy a costs award against them, the plaintiffs have an Ontario credit facility available to them.
[18] Major Champagne’s pay cheque comes from the Canadian federal government regardless of where he is living.
[19] The only assets that these plaintiffs have are reachable by the defendants in Ontario in the event of a costs award against them regardless of where this family resides at the time as a result of a posting.
[20] I find the decision of Justice Lauwers in Jennings v. General Motors of Canada Limited, 2010 ONSC 5564 sound and persuasive.
[21] I have considered the cases cited by the moving party. They are not inconsistent with the decision of Justice Lauwers or the decision that I have made in this case.
[22] In Hoe v. Ren, 2021 ONSC 489, the court quotes from Austin v. Torstar Corp., 2001 CarswellOnt 2814, where now RSJ MacLeod stated that one of the critical factors may well be whether or not the plaintiff retained assets in the jurisdiction which would be exigible to satisfy a judgment for costs. The only significant assets of the plaintiffs in this case are in Ontario as I have indicated. The decision in Hoe makes it clear that each case is fact driven and that the overriding consideration is the justness of such an order. The case before me is not one where the plaintiffs “seemed to move from place to place without explanation” with nothing tying him here.
[23] In the circumstances of this case, I am not prepared to find that the defendants have met their onus that the plaintiffs are ordinarily resident outside of Ontario.
Rule 56.01 (e)
[24] On the materials before me, I cannot find that the defendants have met their onus to satisfy me that there is good reason to believe that the action is frivolous AND vexatious. I cannot find that the action is plainly devoid of merit. I cannot find that the defendants have satisfied the onus on them that the plaintiffs have insufficient assets in Ontario to pay a costs award against them. Their only assets are in Ontario. The situation of the plaintiffs on the evidence before me is that what assets they have are reachable by the defendants whether the plaintiffs are resident in Ontario or elsewhere. It is not just on the facts of this case that the Order sought be made.
Delay
[25] It is not unusual that a motion such as this is brought following examinations for discovery. Examinations for discovery were held in October 2015.
[26] However, as noted, Major Champagne was not posted out of Ontario until almost 3 years later. That is still 3 years ago.
[27] It is noteworthy that Major Champagne made himself available for cross-examination on his affidavit filed on this motion on short notice. This demonstrates that he is not using his absence from Ontario to avoid his responsibilities as a litigant in the lawsuit.
Decision
[28] For these reasons, this motion for security for costs is dismissed.
[29] If the parties, after bona fide efforts, are unable to settle the issue of costs of this motion, the plaintiffs may file written submissions limited to one page plus a costs outline within 10 days hereof. The defendant shall have 7 days after receipt of that submission to deliver responding submissions in like manner. If no such submissions are made within that timeframe, there will be no order as to costs of this motion.
Honourable Mr. Justice Gary W. Tranmer
Released: June 9, 2021
COURT FILE NO.: CV-13-414-SR
DATE: 2021Jun9
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JEAN-PASCAL CHAMPAGNE and VANESSA CHAMPAGNE
Plaintiffs
– and –
CHRISTINE SEARLES, DARRELL SEARLES, PATTI GRAY, SOUTHEASTERN ONTARIO REALTY INC. COB REALTY EXECUTIVES SOUTHEASTERN ONTARIO BROKERAGE, AND REDKA CONSTRUCTION INC.
Defendants
decision on MOTION
FOR SECURITY FOR COSTS
Tranmer J.
Released: June 9, 2021