Court File and Parties

COURT FILE NO.: CV-19-00615322-0000 DATE: 20220510 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DIK LEE AND: MAGNA INTERNATIONAL INC., COSMA INTERNATIONAL INC., VENEST INDUSTRIES INC., MIKE ROOKE, GINA AIELLO, JOEL MINOR, JOEL WILLICK and STEVEN THUSUSKA

BEFORE: VERMETTE J.

COUNSEL: Dik Lee, self-represented Laura Freitag, for the Defendants

HEARD: In writing

Endorsement

[1] I have been appointed as Case Management Judge in this matter.

[2] During a case conference held before me on March 17, 2022, counsel for the Defendants raised an issue regarding the payment of various costs awards that have been ordered against the Plaintiff. Counsel for the Defendants advised that: (a) the Plaintiff had provided cheques made to the order of all the Defendants in payment for the various costs awards; (b) the Defendants were unable to cash these cheques; (c) the Plaintiff had refused to provide cheques made to the Defendants’ law firm in trust or to one of the Defendants instead; and (d) the Plaintiff’s position was that he had complied with the court orders.

[3] I indicated at the case conference that I would receive written submissions on this issue from the parties with respect to the costs order that I made in this matter on November 19, 2021 in the amount of $4,000.00 (2021 ONSC 7655) (“November 19, 2021 Costs Order”). A timetable for the exchange of written submissions was agreed upon by the parties and ordered.

[4] I have now received and reviewed the parties’ submissions.

[5] The record before me shows that the Plaintiff has been ordered to pay the following costs awards in this action, for a total of $29,000.00:

a. $7,500.00 by Leiper J. on July 23, 2020; b. $7,000.00 by Diamond J. on November 9, 2021; c. $4,000.00 by me on November 19, 2021; d. $7,000.00 by the Court of Appeal on January 19, 2022; and e. $3,500.00 by Rouleau J.A. on March 17, 2022.

[6] These costs awards remain unpaid as a result of the Defendants’ inability to cash the cheques provided by the Plaintiff.

[7] In his submissions, the Plaintiff takes the position that he has fully complied with the court orders made against him by making payment to the Defendants, and that by asking him to make payment to one Defendant only or to the Defendants’ law firm in trust, counsel for the Defendants is inciting him to commit an unlawful act in breach of the court orders.

[8] One of the Rules relied upon by the Defendants in their written submissions is Rule 59.06(2)(c) of the Rules of Civil Procedure. This Rule provides that a party who seeks to carry an order into operation may make a motion in the proceeding for the relief claimed. Pursuant to this Rule, the court can provide directions to the parties to allow the order to be carried into operation, including where there exists a disagreement between the parties as to the proper interpretation of an order and how it should be implemented: see King Road Paving and Landscaping Inc. v. Plati, 2017 ONSC 6319 at paras. 17-20 and Craven v. Osidacz, 2021 ONSC 4917 at para. 42.

[9] I find that it is unnecessary to amend or vary the November 19, 2021 Costs Order. In the circumstances of this case, it is appropriate and sufficient to provide directions to the parties pursuant to Rule 59.06(2)(c).

[10] The position taken by the Plaintiff is disingenuous. As stated by the Court of Appeal, “the days are long gone when someone subject to a court order can get away with circumventing it by relying on a benign technicality. To allow that to happen would be disrespectful of the order and of the administration of justice.” A party subject to an order must comply with both the letter and the spirit of the order. That party cannot be permitted to hide behind a restrictive and literal interpretation to circumvent the order. See Chirico v. Szalas, 2016 ONCA 586 at paras. 54, 58.

[11] In my view, by providing cheques that he knows the Defendants cannot cash, the Plaintiff, at a minimum, is not complying with the spirit of the various costs orders made against him, including the November 19, 2021 Costs Order.

[12] In light of the foregoing, I give the following direction to the Plaintiff in order to allow the November 19, 2021 Costs Order to be carried into operation: the Plaintiff is to pay the amount that he was ordered to pay in the November 19, 2021 Costs Order by issuing a cheque for costs and any post-judgment interest to “Filion Wakely Thorup Angeletti LLP, In Trust”.

[13] While the Defendants are seeking costs with respect to the submissions they made on this issue on a partial indemnity basis, I decline to order costs. The parties’ submissions were in writing and very short, [1] and the Defendants decided not to prepare reply submissions. Further, given that the manner of payment has been a recurring issue, it could have been addressed in the costs submissions made by the Defendants prior to the November 19, 2021 Costs Order.

[14] I note, however, that if the Plaintiff honestly believed that he could hide behind a restrictive and literal interpretation of the costs orders to circumvent his obligation to pay costs, he now knows that this is not the case. In the event the Plaintiff fails to: (a) respect the spirit of all the other costs orders that have been made against him, and (b) pay these costs awards in a manner that can be cashed or otherwise accessed by the Defendants, the Plaintiff will no longer be in a position to argue that he is acting in good faith. If such a failure happens, the Defendants will be able to rely on this Endorsement to seek costs and other relief as against the Plaintiff.

Conclusion

[15] Accordingly, in order for the November 19, 2021 Order to be complied with and carried into operation, the Plaintiff is directed to pay the amount that he was ordered to pay in the November 19, 2021 Costs Order by issuing a cheque for costs and any post-judgment interest to “Filion Wakely Thorup Angeletti LLP, In Trust”.

Vermette J. Date: May 10, 2022

[1] I note, however, that the Plaintiff attached a substantial number of irrelevant appendices to his submissions.