Court File and Parties
Court File No.: CV-21-00667587 Motion Heard: 2023-08-17 Superior Court of Justice - Ontario
Re: Bradley Court Limited, Defendant to the Counterclaim And: Christopher Tinkasimire, Plaintiff by Counterclaim
Before: Associate Justice B. McAfee
Counsel: B. Flanagan, Counsel, for the Moving Party, the Defendant to the Counterclaim C. Tinkasimire, In Person, the Responding Party, the Plaintiff by Counterclaim
Heard: August 17, 2023
Reasons for Decision
Background
1This is a motion brought by the defendant to the counterclaim Bradley Court Limited (Bradley) for an order that the plaintiff by counterclaim Christopher Tinkasimire (Mr. Tinkasimire) post security for costs of the counterclaim in the amount of $14,000.00.
2Mr. Tinkasimire opposes the motion.
3On November 20, 2019, a fire occurred in unit 318, 280 Dundas Street East, Toronto (the apartment). Bradley is the landlord and Mr. Tinkasimire was at all material times the tenant of the apartment. Mr. Tinkasimire continues to reside in the building, in a different unit.
4On August 24, 2021, Bradley commenced the within action for damages in the amount of $150,000.00. Mr. Tinkasimire’s statement of defence and counterclaim is dated August 30, 2021. Mr. Tinkasimire counterclaims for damages in the amount of $1,500,000.00.
5On February 8, 2023, Associate Justice Robinson’s decision on Mr. Tinkasimire’s motion to dismiss the action for delay was released. Mr. Tinkasimire’s motion was dismissed. Costs of the motion were fixed in the all-inclusive amount of $5,447.50, payable by Mr. Tinkasimire to Bradley within 60 days. The costs have not been paid.
6On or about March 3, 2023, Mr. Tinkasimire brought a motion for summary judgment to dismiss Bradley’s action. Bradley decided not to proceed with its action against Mr. Tinkasimire. Mr. Tinkasimire’s motion was resolved on the basis of the consent order of Justice Dineen dated March 3, 2023. The summary judgment motion was dismissed with each party bearing their own costs of the motion. Bradley’s claim against Mr. Tinkasimire was dismissed and Mr. Tinkasimire was entitled to have his costs of Bradley’s action assessed by a registrar. Any costs awarded to Mr. Tinkasimire are to be set off against the costs Mr. Tinkasimire was ordered to pay by Associate Justice Robinson.
Preliminary Issue
7Mr. Tinkasimire asks that documents referred to on this motion that were obtained from non-parties be struck. Mr Tinkasimire argues that documents from non-parties can only be obtained on a motion pursuant to Rule 30.10 of the Rules of Civil Procedure. I am not satisfied that documents obtained from non-parties ought to be struck. Documents can be obtained from non-parties other than pursuant to Rule 30.10. A non-party may willingly provide documentation absent a court order.
Security for Costs
8In support of the request for security for costs Bradley relies on Rule 56.01(1)(c) and (e):
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,
(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;
(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; …
9The application of Rule 56.01(1)(c) and (e) involves a two-step analysis. The first step of the analysis requires Bradley to establish that it appears that Bradley has an order against Mr. Tinkasimire for costs that remain unpaid or that it appears that there is good reason to believe that the counterclaim is frivolous and vexatious and that Mr. Tinkasimire has insufficient assets in Ontario to pay the costs of Bradley. If Bradley discharges its initial onus and establishes that it appears that Mr. Tinkasimire falls under Rule 56.01(1)(c) or (e), the second step of the analysis requires Mr. Tinkasimire to establish the basis for a broad flexible exercise of discretion that an order for security for costs would be unjust (Coastline Corp. v. Cannacord Capital Corp., [2009] O.J. No. 1790 (S.C.J.) at para. 7).
10Bradley’s initial onus has been satisfied. The costs ordered by Associate Justice Robinson have not been paid.
11On the motion Mr. Tinkasimire submitted that he did not pay the costs ordered by Associate Justice Robinson because it was his understanding that he was not required to do so until the end of the action when his costs of the main action would be assessed in accordance with the order of Justice Dineen. He submits that if Bradley’s lawyer had consulted with him in advance of bringing the within motion, he would have paid the costs.
12On the motion Bradley’s lawyer submitted that the inclusion of the term in Justice Dineen’s order regarding set-off was requested by Bradley. If Mr. Tinkasimire has his costs of the main action assessed, this term avoids Bradley having to pay the full amount of any assessed costs of the main action if Mr. Tinkasimire has not paid the costs ordered by Associate Justice Robinson.
13Before Associate Justice Robinson, Mr. Tinkasimire asked that costs be deferred until following the trial. Associate Justice Robinson ordered costs payable within 60 days. The order of Justice Dineen does not extend the deadline for payment of the costs ordered by Associate Justice Robinson. The costs ordered by Associate Justice Robinson remain unpaid.
14While it is not necessary to also establish that it appears that Rule 56.01(1)(e) has been satisfied, I am also satisfied that it appears that the counterclaim is frivolous and vexatious and that Mr. Tinkasimire has insufficient assets in Ontario to pay the costs of Bradley.
15I have reviewed Mr. Tinkasimire’s pleadings. The pleadings include an allegation at paragraph 21 of the statement of defence and counterclaim that the fire “… was either an inside job (Set-Up) or it was the Plaintiffs negligence who failed to maintain the premises according to the Ontario Fire Code…”. At paragraph 47 it is pleaded that “…allegations of an “Ignition Source” and papers etc that started the fire are false and misleading and only intended to divert attention from the real cause of the fire.” At paragraph 48 it is pleaded that “… the Plaintiff “Intentionally” delayed the Toronto Fire Department to gain access into the apartment #318 by hiding the Master Key…”. At paragraph 8 of the reply to defence to counterclaim, it is pleaded that “…the Plaintiff/Defendant by Counterclaim” intends to exploit Rule #76 of the Simplified Rules of Civil Procedure to Rush the Claim; to Suffocate the Evidence; to Cover-up their Illegal Actions in the Presumed Set-Up of the Fire Incident and then, “Possibly Beat The Province of Ontario Justice System.” This is Openly Unscrupulous and Unethical, at the same time it is Very Bad in Law.”
16Bradley denies Mr. Tinkasimire’s allegations. There is evidence before me indicating that the fire started in the kitchen of the apartment when a stove top/hot plate was left in the on position (Emergency Incident Report of Toronto Fire Services dated November 20, 2019, and report of Nathaniel Watson of Rocmar Forensics dated December 19, 2019).
17The report of Xpera Investigations dated July 20, 2021, states that Mr. Tinkasimire was not found to possess any material assets. On the motion before Associate Justice Robinson, Mr. Tinkasimire asked that any costs awarded to Bradley not be payable until after trial due to his financial circumstances including that he was still looking for a job.
18In these circumstances I am satisfied that it also appears that the claim is frivolous and vexatious and that Mr. Tinkasimire has insufficient assets in Ontario to pay Bradley’s costs.
Is an Order for Security for Costs Unjust?
19The onus now shifts to Mr. Tinkasimire to satisfy the court that an order for security for costs would be unjust.
20In Yaiguaje v. Chevron Corporation, 2017 ONCA 827 at paragraphs 23-25, the Court of Appeal states as follows with respect to consideration of the justness of the order:
[23] The Rules explicitly provide that an order for security for costs should only be made where the justness of the case demands it. Courts must be vigilant to ensure an order that is designed to be protective in nature is not used as a litigation tactic to prevent a case from being heard on its merits, even in circumstances where the other provisions of rr. 56 or 61 have been met.
[24] Courts in Ontario have attempted to articulate the factors to be considered in determining the justness of security for costs orders. They have identified such factors as the merits of the claim, delay in bringing the motion, the impact of actionable conduct by the defendants on the available assets of the plaintiffs, access to justice concerns, and the public importance of the litigation. See: Hallum v. Canadian Memorial Chiropractic College (1989), 70 O.R. (2d) 119 (H.C.); Morton v. Canada (Attorney General) (2005), 75 O.R. (3d) 63 (S.C.); Cigar500.com Inc. v. Ashton Distributors Inc. (2009), 99 O.R. (3d) 55 (S.C.); Wang v. Li, 2011 ONSC 4477 (S.C.); and Brown v. Hudson’s Bay Co., 2014 ONSC 1065, 318 O.A.C. 12 (Div. Ct.).
[25] While this case law is of some assistance, each case must be considered on its own facts. It is neither helpful nor just to compose a static list of factors to be used in all cases in determining the justness of a security for costs order. There is no utility in imposing rigid criteria on top of the criteria already provided for in the Rules. The correct approach is for the court to consider the justness of the order holistically, examining all of the circumstances of the case and guided by the overriding interests of justice to determine whether it is just that the order be made.
21In response to the motion Mr. Tinkasimire filed a reply to defendant’s factum and a factum of the respondent. Mr. Tinkasimire did not file evidence.
22If Mr. Tinkasimire is alleging impecuniosity, he has not satisfied the high evidentiary threshold in that regard (Coastline at para. 7(viii)-(ix)).
23With respect to the merits, as summarized in Coastline at para. 7(vi) and (vii):
(vi) The court on a security for costs motion is not required to embark on an analysis such as in a motion for summary judgment. The analysis is primarily on the pleadings with recourse to evidence filed on the motion, and in appropriate cases, to selective references to excerpts of the examination for discovery where it is available (Padnos v. Luminart Inc., [1996] O.J. No. 4549 (Gen.Div.) at para. 7; Bruno Appliance and Furniture Inc. v. Cassels Brock & Blackwell LLP, [2007] O.J. No. 4096 (S.C.J.- Mast.) at para. 37);
(vii) “If the case is complex or turns on credibility, it is generally not appropriate to make an assessment of the merits at the interlocutory stage. The assessment of the merits should be decisive only where (a) the merits may be properly assessed on an interlocutory application; and (b) success or failure appears obvious” (Wall v. Horn Abbott Ltd., [1999] N.S.J. No. 124 (C.A.) at para. 83);
24I was not referred to any evidence in support of Mr. Tinkasimire’s allegations or in support of the position taken in the factums of Mr. Tinkasimire including the position taken at paragraph 4 of the factum of the respondent that the fire “…was a “Set-Up /Inside Job” to evict the Plaintiff, a “Long Term Tenant from his home of 27 Years Dead or Alive For The Rental Monetary Gain Circumventing the Ontario Rent Control Guidelines.””
25For the purposes of this motion for security for costs and based on the record before me, I am not satisfied that the counterclaim has a good chance of success (Coastline at para. 7(iv)(c)). I am also not satisfied that the counterclaim is not plainly devoid of merit (Coastline at para. 7(iv)(b)).
26I was not referred to evidence that an order for security for costs will prevent the counterclaim from proceeding.
27Having regard to all of the circumstances of the counterclaim, an order for security for costs would be just.
Quantum of Security
28I have reviewed Bradley’s bill of costs. The counterclaim seeks damages in the amount of $1,500,000.00. Serious allegations are made against Bradley. The quantum sought for security for costs of the counterclaim in the amount of $14,000.00 is a fair and reasonable amount that Mr. Tinkasimire could expect to post for security for costs in all of circumstances of this matter.
29The security shall be paid into court in tranches as follows: $4,000.00 on or before January 3, 2024; a further $5,000.00 payable on or before April 3, 2024; and a further $5,000.00 payable on or before July 3, 2024.
30With respect to Rule 56.05 and Form 56A, at this time Mr. Tinkasimire may continue to take steps in the proceeding, including an appeal from this order. However, if any of the ordered payments into court are not complied with, upon any such default Mr. Tinkasimire will no longer be able to take any further step in the proceeding.
Costs of the Motion
31With respect to costs of this motion, if successful, Bradley sought costs in the amount of $6,977.40. Bradley was successful on the motion and is entitled to costs. In my view, the costs sought are high. Having regard to all of the circumstances of this motion, a fair and reasonable amount that Mr. Tinkasimire could expect to pay for costs of the motion is the all-inclusive amount of $3,000.00 payable by Mr. Tinkasimire to Bradley on or before December 4, 2023.
Order
32Order to go as follows:
- Mr. Tinkasimire shall pay into court the following amounts as security for Bradley’s costs of the counterclaim:
(a) the amount of $4,000.00 on or before January 3, 2024;
(b) the further amount of $5,000.00 on or before April 3, 2024; and
(c) the further amount of $5,000.00 on or before July 3, 2024.
At this time Mr. Tinkasimire may continue to take steps in the proceeding, including an appeal from this order. If any of the ordered payments into court are not complied with, upon any such default Mr. Tinkasimire will no longer be able to take any further step in the proceeding.
Costs of this motion are fixed in the all-inclusive amount of $3,000.00 payable by Mr. Tinkasimire to Bradley on or before December 4, 2023.
Associate Justice B. McAfee
Date: October 3, 2023