Court File and Parties

COURT FILE NO.: CV-11-418-941 MOTION HEARD: 2021-07-22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jesse Norman Imeson, Plaintiff AND: Maryvale (also known as Maryvale Adolescent and Family Services), Tony “Doe”, The Roman Catholic Episcopal Corporation for the Archdiocese of London and Joseph Horwath The Trustee of the Estate of Father Horwath, Defendants

BEFORE: Master Jolley

COUNSEL: Brian Sunohara, Counsel for the Moving Party Defendant Maryvale Jennifer Siemon, Counsel for the Responding Party Plaintiff

HEARD: 22 July 2021

REASONS FOR DECISION

[1] The defendant Maryvale brings this motion to dismiss this action as a result of the plaintiff’s failure to pay two costs awards. For the reasons set out below, I find that such an order would not be just in the circumstances. The motion is dismissed.

Background

[2] The action arises out of the sexual assaults the plaintiff alleges he suffered at the hands of the defendant Father Horwath and the defendant Tony Doe, an employee of Maryvale.

[3] In September 2016 the trial took place before a jury for nine days. At the conclusion of the trial, the jury found in favour of the plaintiff and concluded that he had been sexually assaulted by Tony, for which Maryvale was admittedly vicariously liable. The trial judge ordered Maryvale to pay the plaintiff $225,000 in damages as assessed by the jury and $175,000 in costs. Horwath had died prior to trial and the action was dismissed against him and the Roman Catholic Church, with the plaintiff ordered to pay the church’s costs in the amount of $125,000.

[4] Maryvale appealed the decision. At the conclusion of the hearing of the appeal on 6 March 2018, the Court of Appeal asked the parties to agree on a costs figure that would be payable to the successful party on the appeal and they agreed on $50,000. In November 2018 the Court of Appeal overturned the trial decision and ordered a new trial, fixing costs of the appeal at the agreed-upon $50,000. The Court of Appeal found that the trial judge had erred in qualifying and permitting participant expert evidence from Dr. Kerry Smith, a mental health clinician who had treated the plaintiff from 2012 to 2015, and in allowing evidence from Dr. Smith that went beyond his proper role.

[5] The plaintiff’s leave to appeal to the Supreme Court of Canada was dismissed on 9 May 2019 with costs of $1,500 payable by him to Maryvale. The plaintiff owes Maryvale $51,500 in total costs (the “Costs Orders”).

[6] The plaintiff makes three preliminary arguments on this motion. First, he argues that I do not have jurisdiction to stay or dismiss the action under Rule 57.03(2) as the Costs Orders do not arise out of a contested motion. Second, he argues that I do not have jurisdiction under Rule 60.12 as the Costs Orders are not interlocutory orders. Third, he argues that, as the Costs Orders were silent as to payment, they are not due and are not in default. In the event those preliminary arguments are not accepted, he argues that a stay or dismissal is not an appropriate remedy and that the motion should be dismissed.

[7] There is some merit to at least the first two of those preliminary arguments. Rule 57.03 is titled “Costs of a Motion” and states as follows:

57.03(1) On the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall,

(a) fix the costs of the motion and order them to be paid within 30 day; or

(b) in an exceptional case, refer the costs of the motion for assessment under Rule 58 and order them to be paid within 30 days after assessment.

57.03(2) Where a party fails to pay the costs of a motion as required under subrule (1), the court may dismiss or stay the party’s proceeding, strike out the party’s defence or make such other order as is just.

[8] The Costs Orders do not arise from a contested motion. There are good policy reasons to exclude them from the enforcement mechanism of Rule 57.03(2), which provides sanctions for a party’s failure to abide by costs orders made in respect of contested motions brought in the course of a proceeding it wishes to continue.

[9] The same can be said for Rule 60.12 which is titled “Failure to Comply with Interlocutory Orders” and which states as follows:

60.12 Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules,

(a) stay the party’s proceeding;

(b) dismiss the party’s proceeding or strike out the party’s defence; or

(c) make such other order as is just.

[10] For the same reasons as are applicable to Rule 57.03, there is good reason to question the authority under Rule 60.12 to dismiss this action for failure to pay the Costs Orders, which are not interlocutory.

[11] However, assuming I had jurisdiction to do so under either Rule 57.03 or Rule 60.12, I would not find ordering a stay or dismissal of this action to be just. I say this for four reasons.

[12] First, the Court of Appeal ordered a new trial. Although it ordered costs of the appeal, it did not order payment of those costs as a precondition to the new trial. It would be perverse for this court to effectively thwart the Court of Appeal’s direction that there be a new trial by requiring the Costs Orders to be paid before the plaintiff could have his matter heard on the merits.

[13] Second, the Costs Orders were not in the nature of sanctions for improper behaviour. There is no evidence before me that the plaintiff took unreasonable or unnecessary steps in moving the action to trial or was in breach of any interlocutory order in the course of these proceedings. As Master Dash noted in Burrell v. Peel (Regional Municipality) Police Services Board 2007 CanLII 46173 at paragraph 55, it is relevant on a motion to dismiss an action for failure to pay to costs whether those costs were awarded “to deter bad behaviour, such as the flouting of the rules or orders of the court, or [whether they were] simply an award of costs against a losing party to a motion brought or resisted in good faith and on reasonable grounds.”

[14] Third, I cannot say that the plaintiff’s claim is without merit and do not find it would be just that his action be stopped in its tracks due to his inability to pay the Costs Orders now. While we do not know what weight, if any, the jury gave to the evidence of Dr. Smith in reaching its conclusions on liability and on damages, we do know that it found that the plaintiff had been sexually abused by Tony and awarded significant damages. Although the passage below from Reid, J. in John Wink Ltd. v. Sico Inc. 1987 CanLII 4299 (ONSC) was written in the context of a security for costs motion, I find the principle applicable in this instance as well:

… unless a claim is plainly devoid of merit, it should be allowed to proceed. That is the only “special circumstance” that I would require. While the adopting of this standard might allow some cases to go to trial that the trial will prove should not have proceeded, nevertheless, the danger of injustice resulting from wrongly destroying claims that should have been permitted to go to trial is to my mind a greater injustice.

[15] While Maryvale argues that the plaintiff has not led evidence of impecuniosity and that, after having agreed to the costs quantum, it is too late for him to do so now, his affidavit demonstrates that he has been in jail since 2008, throughout the duration of this action, earns roughly $3.45 a day and has no chance for parole until at least 2033. Further, he was not impecunious at the time he agreed to the costs quantum, as he had a judgment against Maryvale in the amount of $400,000.

[16] Fourth, the plaintiff is not seeking to be exempted from the Costs Orders and this decision does not do so. I do not agree with Maryvale’s submission that I am standing in appeal of the Costs Orders should I not enforce them by dismissing or staying the plaintiff’s claim. The Costs Orders remain payable.

[17] In conclusion, I find that to grant Maryvale’s motion would be to lose sight of the court’s obligation to consider what is just in all of the circumstances.

[18] The plaintiff is entitled to his costs of the motion. Both parties have filed costs outlines. If they are unable to agree on costs by 31 August 2021, they may each file costs submissions no more than three pages in length by email to my assistant trial coordinator, Ms. Meditskos at Christine.Meditskos@ontario.ca.

Master Jolley

Date: 29 July 2021