Court File and Parties
Court File No.: 28346/20 Date: 2023-01-18 Ontario Superior Court of Justice
Between: Raymond Lacroix and R & L Lacroix Transportation Inc., Plaintiffs/Respondents And: Central-McKinlay International Ltd., Defendant/Moving Party
Counsel: R. MacRae, for the Plaintiffs/Respondents T. Harmar, for the Defendant/Moving Party
Heard: November 15, 2022
Before: Rasaiah J.
Reasons on Motion
Overview
[1] The moving party defendant seeks an order for security for costs.
[2] The responding parties, are Raymond Lacroix and R & L Lacroix Transportation Inc.
[3] Rule 56.01 (1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”), provides:
56.01(1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,
(a) the plaintiff or applicant is ordinarily resident outside Ontario;
(b) the plaintiff or applicant has another proceeding for the same relief pending in Ontario or elsewhere;
(c) the defendant or respondent has an order against the plaintiff or applicant for costs in the same or another proceeding that remain unpaid in whole or in part;
(d) the plaintiff or applicant is a corporation or a nominal plaintiff or applicant, and there is good reason to believe that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent;
(e) there is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent; or
(f) a statute entitles the defendant or respondent to security for costs.
[4] Rule 56.03 provides:
56.03 (1) In an action, a motion for security for costs may be made only after the defendant has delivered a defence and shall be made on notice to the plaintiff and every other defendant who has delivered a defence or notice of intent to defend.
[5] Rule 56.04 provides:
56.04 The amount and form of security and the time for paying into court or otherwise giving the required security shall be determined by the court.
[6] The court has a broad discretion on making orders for security for costs balancing the potential impact on the responding party and affording the moving party reasonable measure of protection.
[7] The court has authority to order installments in respect of any security for costs it chooses to order.
[8] This case comes within r. 56.01(1) (c) and that onus has been met by the moving party triggering an inquiry. The amount of the unpaid cost award is not small. Specifically, the facts of this case are such that the plaintiff, Mr. Lacroix was ordered to pay costs in another proceeding, in the amount of $8,467.50, and he has not paid them to date. Only one factually established trigger is required to be established by the moving party. Mr. Lacroix’s submissions concedes that this section is triggered on the facts. Mr. Lacroix also states he is impecunious however there is conflicting evidence in his materials filed on this issue.
[9] The moving party seeks security in the amount of the unpaid costs award.
[10] The motion was made on notice in accordance with r. 56.
[11] The motion was made after the moving party delivered its statement of defence in accordance with r. 56.
[12] In Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 23, the court stated that, besides considering the specific factors in r. 56, before making an order for security for costs, courts should consider whether “the justness of the case demands it.” In making this determination, at para. 25 of Yaiguaje, the court stated, “each case must be considered on its own facts…. The correct approach is for the court to consider the justness of the order holistically, examining all the circumstances of the case and guided by the overriding interests of justice to determine whether it is just that the order be made.”
[13] The onus shifts to Mr. Lacroix to prove it is not just to order the relief requested once the inquiry is triggered.
Issues
[14] Is ordering the relief requested unjust holistically after examining all the circumstances of the case guided by the overriding interests of justice to determine whether it is just that the order be made? This is the question I must answer based on the record before me having regard to the authorities and considering the submissions of counsel.
[15] Mr. Lacroix has also raised some evidentiary issues regarding the affidavit materials filed, hearsay, credibility, and reliability, which I will discuss below.
Discussion/Analysis
General
[16] My findings are not to be taken as findings of fact on the ultimate determination of the issues at any trial of the matter and/or summary judgment motion. My findings are for purposes of the within motion.
Background
[17] The defendant moving party is Mr. Lacroix’s former landlord with respect to the property municipally described as 523 Trunk Road, Sault Ste. Marie, Ontario (“property”/ “premises” interchangeably to encompass the building when referring to the building on the property).
[18] The lease was stated as being between the moving party and Mr. Lacroix and Mary Lacroix, made in 1986. There was and is no lease between the moving party and the corporate plaintiff.
[19] The property is zoned as C4 General Commercial Zone. The rental unit was classified by the Landlord and Tenant Board as a single-family dwelling located on a lot les than 1 acre that has commercial zoning. The use of the property by Mr. Lacroix and the corporate plaintiff was noted as legal non-conforming use.
[20] Mr. Lacroix had been paying $200 a month for the unit.
[21] Mr. Lacroix’s tenancy was terminated by order of the Landlord and Tenant Board dated July 3, 2019.
[22] Mr. Lacroix unsuccessfully sought review of this order. The termination of the tenancy was upheld by decision dated August 12, 2019.
[23] Mr. Lacroix appealed the August 12, 2019 - decision to the Divisional Court.
[24] The plaintiffs’ issued a statement of claim on March 3, 2020. The claim seeks orders: prohibiting alteration or demolition of the property; requiring the defendants to convey the property to him in exchange for payment of $158,200 inclusive of H.S.T., declaring that he was entitled to rely on the defendants’ conduct and an alleged commitment made by the previous owner which he characterizes as “an agreement entered into in 1978” that he be entitled to purchase the property at a value determined by a certified land appraiser; estopping the defendant from resiling from this said agreement which he states continued through to and including 2020; binding the defendants to the said agreement; requiring specific performance of the said agreement, finding that the defendants’ conduct confirms the said agreement; estopping the defendants from any conduct designed to alienate his entitlement/right to purchase the property; permitting him to purchase the property at a current appraised value; finding that the defendants were obligated to respect the said agreement; staying the appeal to the Divisional Court in court file no. DV-2018-19 until such time as the action has been adjudicated on [no longer applicable]; ordering prejudgment interest; ordering post judgment interest; ordering costs on a substantial indemnity basis plus applicable taxes; and such further and other relief as the court deems just.
[25] The plaintiffs have not produced any written agreement setting out a right to first refusal and/or to purchase the property. No such agreement was attached to the statement of claim. The record presents as the agreement being an oral agreement and not one made in writing.
[26] The plaintiffs did not produce documentation by affidavit and/or exhibit supporting claims of work done to the property since the commenced tenancy.
[27] The plaintiffs did not produce an appraisal for the property to support the deposed fact that one was obtained and that it reflected a value of $140,000.
[28] The moving party delivered its statement of defence on March 31, 2020.
[29] The moving party strongly denies any such oral agreements and/or knowledge thereof between it and/or any previous owner, and highlights that an oral agreement related to the sale of/or for an interest in real property is not enforceable in accordance with the Statute of Frauds, R.S.O. 1990, c. S.19, as amended, s. 1(1).
[30] The Divisional Court appeal was proceeded with.
[31] In its decision, dated May 11, 2022, the Divisional Court dismissed the plaintiffs’ appeal and awarded costs to the moving party in the amount of $8,467.50 payable within 30 days. The Divisional Court decision was released May 12, 2022.
[32] In its said decision, at paragraph 2, the Divisional Court commented as follows:
The respondent at the start of its factum states that “[t]he appeal discloses no question of law, is fundamentally without merit, and is an abuse of process brought solely to delay the tenant eviction.” We agree. For the reasons that follow, the appeal is dismissed.
[33] The respondent in the appeal before the Divisional Court was the moving party.
[34] At paragraph 24, the Divisional Court further commented as follows:
The tenant has brought a meritless appeal and has failed to show diligence in pursuing it. Each delay was said to be justified by exigent circumstances, but the overall pattern leads to an ineluctable inference of intentional delay…
[35] In accordance with the Divisional Court’s order, payment of the cost award was due by June 10, 2022. The 30-day deadline for payment of the Divisional Court cost award has expired and the said cost award remains unpaid.
[36] The time for filing a notice of motion for leave to appeal the Divisional Court’s decision has expired.
[37] The moving party seeks to demolish the premises on the property. The premises requires extensive renovation. The moving party took steps to obtain the necessary permits. While not binding on me, I did note that the Landlord and Tenant Board after examining the issue made a finding that the moving party has in good faith, plans to demolish the rental unit. There has been no suggestion on the within motion by Mr. Lacroix that the moving party does not plan to demolish as stated. Some of Mr. Lacroix’s materials makes statements regarding proper demolish, proper permits and expiry of permits.
[38] The decision of the Landlord and Tenant Board of July 12, 2019, specifically highlights that eviction would be postponed to August 31, 2019, to permit time for Mr. Lacroix to obtain other accommodations. It is clear from the decision that based on information received from Mr. Lacroix, Mr. Lacroix was looking and had been since mid-April of 2019. The point is that not only has this been a long-standing issue, the tenancy and need to relocate not only been addressed orally at the previous proceedings but reduced to writing thereafter in the decisions that Mr. Lacroix received.
[39] To date, since May 3, 2019, the moving party has been delayed in moving forward with its plans for the property and with Mr. Lacroix, has been held up in a Landlord and Tenant Board Hearing, a Landlord and Tenant Board review, and an appeal to the Divisional Court, along with the within claim, which includes steps of exchange of pleadings, significant correspondence, several court attendances, having to bring motions, and receiving motions and several affidavits from Mr. Lacroix.
[40] I acknowledge that the record reflects that Mr. Lacroix believes his claims are valid and enforceable; he is upset that he was evicted; the property had been his home for over forty years and states that he ran his business operated through the corporate plaintiff at this property. The record reflects that Mr. Lacroix has brought a motion wherein he seeks approximately 11 prayers for relief (my review of the contents of that motion’s record), including but not limited to orders granting: a certificate of pending litigation, recovery of personal property, interim preservation of property, relief from court filings, a timeline for his motion, provision of a notice of transmission of interest from the defendant, a prohibition from dealing with the property, a constructive trust in the property, and relief from compliance with the Rules.
[41] Many of the facts that Mr. Lacroix relies on for his said outstanding motion are the same facts he relies on for the within motion. He in fact advised that he was relying on the affidavit materials filed in that record on the within motion.
Preliminary/Evidentiary Issues Raised
[42] I take no issue with the affidavits filed for the motion and/or who they were filed by. I reject Mr. Lacroix’s argument that I should.
[43] There has been no breach of any of the Rules, nor do I find the rules referred to by him apply to the affidavits filed by the moving party, which are in proper format, and delivered pursuant to the rules.
[44] This is a limited issue motion with its own specific rule in the Rules. This is not a summary judgment motion, nor do I agree that it is a disguised summary judgment motion. On a general note, I state that not every motion for security for costs “effectively” terminates a party’s claim. The effect of a security for costs order is to prohibit further steps in the proceeding itself until the security is paid. The rule permits an appeal of any order made for security for costs. The Court is given discretion to determine the amount, form of and time for furnishing security, based on the circumstances of the case.
[45] Next, the moving party was not required to cross-examine Mr. Lacroix on his affidavit materials filed. It is of no consequence, based on the record before me, that it did not. Mr. Lacroix has an obligation to file all evidence and facts and documents he wishes to rely on. The issues of credibility and/or reliability of his information is for the court to determine, as and when same can be determined on the motion records filed.
[46] Next, I do not find that the legal assistant’s affidavit is self-serving. This is a bald allegation. The record does not establish that the assistant has no knowledge of the facts deposed to and/or was not in a position to have knowledge of the steps in the proceeding. This is a file she works on and as such, she is in a position to provide information concerning the steps in the proceeding. She may also provide information that she believes to be true, that she has received from sources, which sources she has identified as required when one deposes an affidavit. The evidence is admissible and the issue is a matter of weight for the court to decide.
[47] It is not just the affidavits of a legal assistant that the moving party relies on. The moving party has filed and relies on an affidavit of an investigator, who has had direct interaction with Mr. Lacroix, and deposes to that direct interaction with Mr. Lacroix. He has also made personal direct observation of some of the events he deposes to and the actions of Mr. Lacroix. He like the legal assistant has provided information he believes to be true and have identified the sources of the information. The evidence is admissible and the issue is a matter of weight for the court to decide.
[48] Based on the above, it is not correct, and I do not find that everything in the moving party’s materials filed amounts to hearsay.
[49] Further, I do not find the moving party’s affidavit material to be purposely vague. Details are provided of events that have transpired along with exhibits which support the statements deposed to.
[50] There was nothing prohibiting the moving party from filing the affidavits it filed and it is not required by any rule to file an affidavit deposed to by the corporation’s representative.
[51] Further, I highlight that there was nothing prohibiting cross-examination by Mr. Lacroix on the moving party’s affidavit materials filed. The record does not reflect any such request.
[52] As to Mr. Lacroix’s opportunity to know the moving party’s position, that position, in my respectful view, is set out in the affidavits filed by the moving party through the various affiants, and exhibits attached to the affidavits, including but not limited to the moving party’s statement of defence filed, which statement of defence clearly outlines the moving party’s position on all of Mr. Lacroix’s claims made to date. By my review, there is nothing vague about their position. Moreover, I have noted that Mr. Lacroix has attended in person other proceedings related to his terminated tenancy during which he was made aware of the moving party’s position concerning his tenancy. He was permitted to provide his evidence and evidence of his witnesses. The moving party’s representative is noted as having attended the hearing at which time, all of this evidence would have been heard by her. The moving party also presented its own witness at the hearing, the evidence of whom, Mr. Lacroix would have heard and received. Moreover, there would have been the exchange of records, including factums for the appeal to the Divisional Court that would have contained the moving party’s position and facts it was relying on. The decisions from the three proceedings refer to some of the evidence/facts received/considered for the respective proceedings.
[53] There were several issues on the other hand with respect to the credibility and reliability of the information being deposed to by Mr. Lacroix, including but not limited to delivering at some points either draft and/or unsworn affidavit material, failure to attach exhibits, containing statements that even his own counsel had to point out was not true. I appreciate and am alive to the health issues Mr. Lacroix and/or his counsel referred to and have remained cognizant of that fact. However, this knowledge does not alter the difficulty in assessing Mr. Lacroix’s evidence unfortunately.
[54] Mr. Lacroix’s counsel made submissions on the veracity of statements attributed to Mr. Lacroix by Mr. Willet. He cites as an example, Mr. Lacroix’s alleged statement to Mr. Willet that he had given his lawyer $20,000 recently to continue to fight this matter in court. Mr. Lacroix’s counsel states that this is not factually true, which I accept. However, there is no reason demonstrated on the record before me, to question that Mr. Lacroix in fact made these statements to Mr. Willet, whether they were true or false. If they are false, which clearly the foregoing example identified them as, this only creates concern for me as to Mr. Lacroix’s credibility and/or appreciation of facts and circumstances, not with Mr. Willet’s credibility and reliability. Further, the record reflects that Mr. Lacroix has engaged in intentional delay in other proceedings and has disregarded proper eviction.
Motion for Security for Costs Analysis
[55] Mr. Lacroix submits that making an order for security for costs would be unjust.
[56] Mr. Lacroix submits that making an order for security for costs would end his action and other claims that he states are not yet included in his statement of claim that he is seeking to amend, now over two and half years after issuing his statement of claim.
[57] I have examined the statement of claim. The basis upon which Mr. Lacroix makes his within claims, outlined in his statement of claim, appears to be an oral agreement with respect to an interest in real property that was made with a previous owner and/or the moving party by adoption/their conduct.
[58] For purposes of analysis and this motion, I find it is fair to assert, and I consider that the plaintiffs’ claims’ as having low chance of success given the Statute of Frauds and its applicability to interests of the nature that Mr. Lacroix claims he has in the property, real property. Mr. Lacroix’s submissions do not argue that this is an issue but is one for trial. All the plaintiffs’ prayers for relief in the statement of claim as it currently stands, in my view, rise and fall on the existence and/or enforceability of an oral agreement in relation to claimed interests in real property. Further, the suggestion that the applicability of the Statute of Frauds would amount to a genuine issue for trial on this record is not supported nor did Mr. Lacroix file any case authorities that would stand for that proposition. This comment is not to be taken as though I am deciding same, it is to be taken as a fact that I considered on the factor of the potential success of such a submission. The merit of claims/arguments are a consideration on a motion for security for costs. I make these statements solely in the context of examining what is just.
[59] On this motion, Mr. Lacroix (and for quite some time now, approximately two to three years), has known that the moving party is denying any such agreement and/or that if same existed, is taking the position that it is unenforceable. To this date, Mr. Lacroix has not filed any supporting evidence for his claim regarding the alleged agreement. He has simply deposed to it and referred to alleged action taken by him with respect to care of the property that he seems to suggest supports the existence of the alleged agreement. These actions are the payment of rent, improvements to and maintenance of the property over the course of approximately 44 to 45 years. Equally he has not provided any supporting documentation regarding the alleged improvements and/or maintenance nor agreements/granted authority by either the former landlord or the moving party with respect to same. None of the foregoing is new. He remained on the property with all of his records until being evicted in June of 2022, and even thereafter, as will be discussed further below, accessed the property. It is not unreasonable in the circumstances of this case, including Mr. Lacroix’s credibility and reliability issues, that he provides this information and to question, why he has not. And if he does not or no longer has same through his own lack of diligence to obtain same while he had the opportunity to do so, such a scenario would only further reduce, the already low chance of success of his claims that have demonstrated on the current record before me.
[60] Mr. Lacroix has made several references to other claims in his outstanding motion including but not limited to damage to his property that he left behind at the property after he was removed and/or missing property, illegal distraint, and the impact on him if the order is made and he thereafter finds himself in a position of not being able to pursue same.
[61] I outlined the prayers for relief in his outstanding motion above and will not repeat them but confirm I have considered them.
[62] I have also outlined that many of the facts Mr. Lacroix relies on are the same facts he relies on for this motion and his currently constituted statement of claim, all of which I have already commented on as having no supporting material on the record, and I will not repeat those comments but confirm I have considered them on this issue.
[63] In addition, as to chance of success of those claims, for similar reasons, they present on the record as having very low chance of success.
[64] Mr. Lacroix purports a constructive trust in the property that would amount to a proprietary interest, not compensable by a monetary judgment. He provides very little information to assess same to support chance of success. He has been paying $200 a month rent for many years, low rent. He resided there and ran his business from that location. He provides no specific particulars as to capital improvements and when they were done and for whom and with whose consultation/authorization. He provides a general time frame from 1978 to 2022 and only his deposed statements as to what he has done. The same applies with respect to maintenance of the property. The limited photographs filed with Mr. Willet’s affidavit do not demonstrate any significant recent improvements. Parts of the unit in the photographs present as very dated and in need of repair. While this claim is legally classified differently in his motion, the underpinnings of this claim are not new. Mr. Lacroix has been asserting these statements as fact since the claim was commenced, some of which are in fact set out in the existing statement of claim.
[65] Mr. Lacroix purports a constructive trust in the property that would amount to a proprietary interest, not compensable by a monetary judgment. He provides very little information to assess same to support chance of success. He has been paying $200 a month rent for many years, low rent. He resided there and ran his business from that location. He provides no specific particulars as to capital improvements and when they were done and for whom and with whose consultation/authorization. He provides a general time frame from 1978 to 2022 and only his deposed statements as to what he has done. The same applies with respect to maintenance of the property. Further, while classified differently, the underpinnings of this claim are not new. Mr. Lacroix has been asserting these statements as fact since the claim was commenced, some of which are in fact set out in the existing statement of claim.
[66] Many of the other prayers for relief also rely on the finding that there was an agreement with respect to the property and/or that it is an enforceable agreement, including but not limited to certificates of pending litigation, preservation orders, receiving transmissions of interest, and prohibitions with respect to dealing with the property.
[67] As to recovery of personal property, this claim presents as frivolous. The moving party states and I accept that it has been willing to provide Mr. Lacroix with the opportunity to remove his property, and that Mr. Lacroix, albeit unbeknownst to the moving party at the time, has attended at and/or has accessed the property regularly since his eviction. Additionally, there are no police reports of actual stolen/damaged items and bald allegations of vandalism/stolen unidentified items in Mr. Lacroix’s affidavit materials filed. He was given ample opportunity to file materials. He has been assisted by counsel. No further request was made for time to file further materials for the within motion. I noted that Mr. Lacroix’s affidavit complaints relate to his possessions standing idle, exposure of his items to theft (not that they were stolen), poor maintenance of the property, abandonment the property and/or lack of security at the site on the part of the moving party. I make these statements solely in the context of examining what is just, the impact on Mr. Lacroix and in examining Mr. Lacroix’s conduct and/or the moving party’s conduct prior to coming before the court.
[68] The record reflects that Mr. Lacroix has had opportunity and in fact has accessed the premises after eviction. By his own admission, he went there daily up to three times a day, unauthorized, asserting it was to keep watch over the premises and/or his property. This was over a significant time frame if what Mr. Lacroix stated to Mr. Willet about his use of the property since eviction is true.
[69] Mr. Willet deposes that Mr. Lacroix was found on the property by Mr. Willet, observed to be inside, and advised Mr. Willet that he had entered by removing the front door, that he had done so approximately one month prior, and had been residing at/operating his business from the property ever since, meaning one month. Mr. Willet observed business paperwork/invoices related to Mr. Lacroix’s business, the dates on which are marked post his eviction.
[70] The moving party obtained a no trespass order which was sent to Mr. Lacroix via his counsel and personally served on Mr. Lacroix.
[71] The moving party has had to change the locks on the property on more than one occasion, one occasion being after the no trespass order was served personally on Mr. Lacroix because he was found there.
[72] The record reflects that the moving party remains committed to working cooperatively with Mr. Lacroix to arrange a time to remove his possessions from the property.
[73] Mr. Willet has attended the property with Mr. Lacroix post eviction, to permit him entry at his request to obtain medication which he did not retrieve on the attendance. He instead retrieved a cellphone. Mr. Willet had to remind Mr. Lacroix that his request for entry was to retrieve medication.
[74] Moreover, Mr. Lacroix has been observed to have removed some of his possessions from the property and these removals were not interfered with by the defendant, for example, three of his utility trailers, which he has not provided details on, in respect of where they are and what he has done with them.
[75] I have considered that, if Mr. Lacroix takes actual steps to gain possession of his property which the moving party wishes him to do, this is a case where he states he could earn/raise money to pay security (and/or appeal any order made for security for costs as an aside).
[76] The moving party is encouraged to work with Mr. Lacroix and formulate a plan for retrieval of his items. I will be making this a provision on such terms as I deem just to any order, I make on this motion, to acknowledge the positions presented by Mr. Lacroix on this motion including but not limited to his outstanding motion, and/or ability to reinstate his cash flow to meet any order made for security for costs.
[77] Mr. Lacroix’s submissions and evidence seem to include/assert a right to have security cameras that he can have access to, to monitor a premises that he has been evicted from and in face of a no trespass order, again premised on claims, I have already addressed above and hereby state the same analysis applies.
[78] I find for purposes of this motion, the record does not reflect that the moving party did not make good faith efforts to permit Mr. Lacroix the opportunity to remove his property from the premises. The record reflects that the moving party made efforts to arrange same and in fact wants same as Mr. Lacroix’s failure to remove his personal property has and continues in the moving party’s view to adversely affect the property.
[79] Mr. Lacroix, by my interpretation of his submissions, asserts that the acts of the moving party in bringing the within motion; allegedly evicting Mr. Lacroix without notice; allegedly demonstrating lack of good faith concerning allowing Mr. Lacroix to remove his property from the premises; not maintaining the property are relevant considerations to his current situation and/or a factor concerning the court’s choice to exercise its discretion to grant the order being requested by the moving party.
[80] First, I do not find that act of bringing the within motion is a relevant consideration. Rule 56 permits the motion to be brought as I have outlined above. The moving party has had to initiate, wait for and/or answer three other proceedings with Mr. Lacroix, to date, in addition to the within claim. Issues arising from the tenancy and termination thereof been ongoing since May of 2019. A not insignificant cost order was made in another proceeding that remains unpaid. Same was to be paid within 30 days, namely on or before June 10, 2022. The defendant is going to incur more expense defending this proceeding as it continues until its conclusion. So far it has had to prepare a statement of defence, to tend to and participate in the said other proceedings, to prepare the within motion with its record, receive and respond to Mr. Lacroix’s materials and motions, and appear more than once on the within motion, waiting to have same dealt with and permitting time for Mr. Lacroix to respond. I note that the foregoing is true outside of and in addition to those attendances that Mr. Lacroix’s counsel referred to, namely attendances when the court did not have time to hear the motion and/or was of the view that the motion be heard as a long motion, as reflected by the endorsements. Finally, the global issue of delay referred to by the moving party is not simply related to the within proceeding but extends to all actions/events that followed the initial notice to terminate the tenancy in May of 2019. It is this whole context of delay in the assessment of affording it protection by an order for security for costs.
[81] Regarding the eviction, the record before me for purposes of this motion does not demonstrate that Mr. Lacroix was improperly evicted. The record reflects that by order of the Divisional Court dated May 11, 2022, the end of Mr. Lacroix’s tenancy that ordered by the Landlord and Tenant Board, affirmed on review, was affirmed by the Divisional Court as proper. No motion for leave to appeal was filed. The time has expired for such a motion.
[82] The fact that Mr. Lacroix finds himself on the street as he has submitted, ignores the notice and time Mr. Lacroix has had to get his affairs in order and find a new residence/place from which he can operate his business. The first notice to end the tenancy was in May of 2019. The Landlord and Tenant Board decision notes Mr. Lacroix as indicating that he has been aware of the need to relocate and has been making efforts to relocate since mid-April of 2019. He has provided limited vague details in respect of his efforts on the record before me. The actual eviction itself occurred in June of 2022. To present as being surprised by this and not having time to address his affairs based on the foregoing is not accepted by me. Further, any impecuniosity arising from same and/or destruction on his life or business, if that is the current state of affairs, I do not conclude ought to be visited on the moving party and/or is reflective of conduct that would make the granting of an order for security for costs as unjust. I state this because of facts outlined in the record regarding the very unwise substantial gift card investment Mr. Lacroix decided to make, and his position on his assets and alleged winnings with Publishers Clearing House. Finally, there was nothing prohibiting Mr. Lacroix on the record before me, from bringing a motion for direction regarding removal of his possessions sooner. The claim was issued March 3, 2020. He has brought other motions to date. He has participated in the other proceedings outlined in this decision. He has had counsel for various periods since the claim was issued and/or during the other proceedings. Equally there was nothing preventing Mr. Lacroix from seeking a preservation order sooner if there were serious issues with the property to which he claims he has an enforceable agreement and/or constructive trust that provides him with an interest.
[83] Regarding the gift card investment, I acknowledge that Mr. Lacroix concedes that same is not the responsibility of the moving party. The record reflects that it was Mr. Lacroix’s choice to make that investment that turned out to be a scam. He chose to do this knowing that the moving party was expressing zero interest in selling the property to him and/or clearly denying that he had any right to purchase the property from it. There were three proceedings along the way, wherein the moving party was requesting/strongly defending the validity of its notice to terminate the tenancy over three years from May of 2019 to May of 2022. The communicated reason was that the moving party wants to demolish the premises on the property, which they had obtained permits to do. This has been clearly communicated in so many ways in all four proceedings.
[84] Mr. Lacroix tied his own hands making the decision to use his entire life savings for this investment and/or taking steps over the course of three years to find a suitable location to live and/or from which to run his business if he was not successful and/or to take steps to enforce/negotiate removal of his personal and/or business possessions from the property.
[85] I do not find it offensive for the moving party to submit that Mr. Lacroix broke into the premises after he was properly evicted. Mr. Lacroix took matters into his own hands, and carried on, with no order to move back into and/or attend the property for any purpose. Other legal recourse was available to Mr. Lacroix, which this argument ignores. I have already alluded to motions he had the right to make as set out herein.
[86] The fact remains that the moving party has already been involved in other proceedings with Mr. Lacroix, three “termination of tenancy proceedings” to be exact, since on or about May 3, 2019. Mr. Lacroix has not been successful in any of these proceedings.
[87] The moving party has been found, and its actions affirmed twice to have complied with proper notice to end the tenancy for proper purposes, namely, to demolish the premises on the property.
[88] The record reflects that Mr. Lacroix has engaged in and found to have engaged in intentional delay in these other proceedings and has disregarded proper eviction causing the defendant to have to resort to including but not limited to monitoring, changing locks more than once, contacting police, and obtaining a no trespass order.
[89] Mr. Lacroix was ordered to pay costs to the moving party by the Divisional Court as set out herein. He has not done so.
[90] The defendant is undoubtedly going to incur more cost and expense defending the statement of claim and other claims Mr. Lacroix wishes to make. So far it has had to prepare a statement of defence, to tend to and participate in the other proceedings referred to in this decision, to prepare the within motion with its record, receive and respond to Mr. Lacroix’s materials and appear more than once on this motion waiting to have same dealt with and permitting time for Mr. Lacroix to respond. Mr. Lacroix has also filed motions that have yet to be dealt with.
[91] Mr. Lacroix opposes the motion, offering a bald commitment and/or unmeasurable assurance of ability to pay the outstanding cost order to afford/offer the moving party reasonable measure of protection on a case fraught with difficulties as it is currently constituted and supported, namely simply with Mr. Lacroix’s version of events.
[92] Mr. Lacroix, in fact, has stated he is impecunious. Yet in his materials he has referred to owning valuable equipment that he has yet to arrange to pick up that the moving party wants him to remove, and/or a business he could be operating if he took the steps to remove his personal items and start up again, which he has not persuaded me he has been prohibited from doing at the hands of the moving party. In fact, I was reminded that part of Mr. Lacroix’s submissions on this motion suggested that there is nothing stopping the court from reconsidering an order in the future if I dismiss the within motion, because if Mr. Lacroix could recover his truck, vehicles, tools, and get some cashflow going he could secure the litigation, and he should have this opportunity while the litigation continues.
[93] The record presents to me that Mr. Lacroix’s mental health, and/or long-standing attachment to this property and/or demonstrated inability to accept that he has been evicted and/or ignoring the affirmed eviction and continuing invitations to remove his property may be standing in his way.
[94] His materials and submissions present to me as for the most part, pointing fingers at the moving party as opposed to taking action to mitigate his circumstances and get back on his feet - either with the moving party directly or through the court. He has taken the door off the premises at the property. He has attended the property without a lawful order following an affirmed eviction.
[95] His actions have caused the moving party to seek assistance of the police and Sheriff. He has made statements to Mr. Willet that he needed medication from the premises but then made not attempts to retrieve same. He wanted only to retrieve a cellphone that allegedly publishers clearing house can only call him on. He attends the property to monitor it up to three times a day. He tried to give the moving party notice that he was moving back into the premises without a lawful order after he had been affirmed as properly evicted.
[96] He has made allegations of feeling suicidal that caused him to be taken for examination. Mr. Lacroix has been subject to a Form 2 order for examination under the Mental Health Act of Ontario which his counsel advises he initiated advising of a period of inability to obtain instructions from Mr. Lacroix and/or lack of confidence in instructions he was receiving from him, albeit he was not hospitalized because of same. He himself has stated there were periods he was not able to instruct counsel. I have not ignored these difficulties in coming to my conclusion. The issues arising from the termination of the tenancy have been outstanding since May of 2019.
[97] The totality of the record does not reflect that the moving party is responsible for where Mr. Lacroix finds himself. Mr. Lacroix acknowledges engaging in self-help. I do not agree with his submission that his self-help was appropriate in the circumstances given other steps that were available to him that I have referred to herein and the support he had available to him, namely counsel.
[98] I disagree that Mr. Lacroix comes before this court with clean hands. I have outlined the many steps Mr. Lacroix has taken without lawful orders in the face of valid orders, and the delays that have gone on in other proceedings that were found to be intentionally caused by Mr. Lacroix.
[99] Considering the evidence of the need for police involvement, Sheriff involvement, private investigator involvement and a Form 2 that was initiated by counsel, Mr. Lacroix on the record before me does not present as easy to deal with and being of a cooperative nature as he presents himself. I state this again, acknowledging the health issues identified.
[100] For all the reasons stated herein, I am satisfied that this is a case wherein I ought to, and I hereby choose to exercise my discretion to order security for costs.
[101] The moving party is asking for security for costs in an amount, reflecting what they are entitled to receive by cost award ordered by the Divisional Court.
[102] Mr. Lacroix submits that if the court is inclined to exercise its discretion to order security for costs that it be in the amount of $200 per month based on his alleged impecuniosity and the alleged reasons therefor.
[103] As stated, I am not unsympathetic to Mr. Lacroix and his struggles reflected by the record but I am not inclined to grant his request.
[104] I find that Mr. Lacroix’s request would not meet the interests of the spirit of the relief and/or the circumstances of this specific case or amount to affording the moving party the protection they seek that the record establishes as warranted.
[105] The totality of my analysis based on the considerations I have outlined throughout this decision favours affording the moving party protection in the amount requested.
[106] There is compelling evidence that there is real risk to the moving party that Mr. Lacroix will not satisfy the costs of this within action. He claims he has liquid assets but is claiming inability to obtain them from the moving party when the moving party is stating it wants the property removed from the premises. Mr. Lacroix chose not to pay the outstanding cost award, not making any effort to pay anything to date. Mr. Lacroix in the three years since the notice to end the tenancy was issued has taken no meaningful steps to find a new residence/location from which he can operate his business and earn income. He physically remained on the premises over this time frame until he was evicted in June of 2022. He chose to attend the premises up to three times daily and unlawfully enter same in favour of taking steps to find a new residence and/or location from which he could earn income. He chose to spend his life savings on a scam gift card investment. He has sent money he states to Publishers Clearing House to allegedly collect a “winnings” of five million dollars. He deposes that he has given them $140,000. He had chosen (before his current state of affairs) to rent a hotel room at the rate of $100 per day. He unlawfully entered the premises post-conviction at which time Mr. Willet observed invoices for work Mr. Lacroix/the corporate plaintiff had done that he was billing for (evidence of continuing business operations post eviction).
[107] The Divisional Court cost award is not insignificant. It is for $8,467.50.
[108] I find that ordering the relief requested is not unjust holistically after examining all the circumstances of this case guided by the overriding interests of justice to determine whether it is just that the order be made.
[109] As to time to furnish, because I have articulated that I intend to provide opportunity to address Mr. Lacroix’s retrieval of his personal property as set out herein, I am choosing to allow for what I view as a reasonable amount of time for the furnishing the security to incorporate same.
Order
[110] The plaintiffs shall post security for costs in the amount of $8,467.50 by March 30, 2023.
[111] Save and except for the issues of costs on this motion and retrieval of Mr. Lacroix’s property in accordance with the directions provided on same in this order, all the claims of the plaintiffs as claimed in their statement of claim issued March 3, 2020, are stayed until the said security for costs are posted.
[112] Except as otherwise extended by further order of this court which the court reserves the right to order as part of the court’s ordered provisions on solely the issue of addressing the plaintiffs’ retrieval of their property, or otherwise extended in writing by all parties, if the plaintiffs fail to post security for costs by March 30, 2023, the moving party may bring a motion to dismiss the plaintiffs’ claims.
[113] On the issue of retrieval of the plaintiffs’ personal property remaining at 523 Trunk Road, Sault Ste. Marie, Ontario the parties are directed to negotiate a reasonable plan for the plaintiffs to retrieve same, failing which the parties shall set a conference before me to address this issue and/or any lift of the within stay, that I hereby reserve the right to adjudicate on at the said conference, if this issue is not resolved, which conference shall be scheduled via the trial coordinator with arrangements made for a court reporter and court staff to attend, and shall be scheduled for a date on or before March 1, 2023. The parties are hereby directed to set this date forthwith in the event they are not able to resolve the issue on their own accord.
[114] On the issue of costs on the motion are in issue, the parties are encouraged to resolve the issue, failing which, counsel are to submit written submissions no longer than five type written pages, excluding offers to settle and bills of costs, which are to be served and filed with the court no later than 4:00 p.m. within 30 days of today’s date.
Released: January 18, 2023 Rasaiah J.