Curtis v. Toronto Standard Condominium Corporation No. 2151, 2025 ONSC 395
Court File No.: CV-22-00688382
Motion Heard: 12 December 2024
Superior Court of Justice – Ontario
Between:
Gary Curtis, Plaintiff
And:
Toronto Standard Condominium Corporation No. 2151, Del Property Management Inc., Laney Choi of Del Property Management Inc., Paragon Security Ltd., Paragon Security Guard Decoyda Anthony Larsen, Larry Scolaro of Paragon Security Ltd., and Paragon Security Guard Colin “Doe”, Defendants
Before: Associate Justice Jolley
Counsel:
Eric Turkienicz, counsel for the moving defendants Paragon Security Ltd., Decoyda Larsen, Larry Scolaro and Colin “Doe”
Emily Schatzker, counsel for the moving defendants Toronto Standard Condominium Corporation No. 2151, Del Property Management Inc. and Laney Choi of Del Property Management Inc.
Gary Curtis, responding self-represented plaintiff
Heard: 12 December 2024
Reasons for Decision
Introduction
1The moving defendants bring this motion for an order requiring the plaintiff to post security for costs. They rely on rule 56.01(1)(b), arguing that the plaintiff has another proceeding for the same relief pending in Ontario. They also rely on rule 56.01(1)(e), arguing that there is good reason to believe that the action is frivolous and vexatious and that the plaintiff has insufficient assets in Ontario to pay the costs of the moving defendants.
Rule 56.01(1)(e)
2To succeed under rule 56.01(1)(e), the moving defendants must show both that there is good reason to believe that the action is frivolous and vexatious and that the plaintiff has insufficient assets in Ontario to pay the costs.
3The defendants seek security for costs in the amount of $60,000 to the end of examinations for discovery. When the defendants filed their long motion request form in the spring of 2024, they may well have succeeded on the evidence as it then stood. An investigation into the plaintiff’s assets confirmed that he did not own the home in which he resided, did not have any vehicles registered in his name, had no confirmation of employment status and had commenced at least thirteen civil cases in the Ontario courts. He also had three outstanding costs awards against him for which writs had been filed. While it may not have reflected his complete asset picture at the time, the bank statement and investment account statement that the plaintiff produced during the hearing of this motion each had a zero balance as at 4 June 2024.
4That financial picture changed dramatically when the plaintiff was awarded a judgment on 19 April 2024 in the amount of $945,257.44 representing $850,000 in damages, pre-judgment interest and costs. He received a cheque in that amount on 3 June 2024 and on 4 June 2024, he deposited that $945,257.44 into a BMO bank account in his name at the bank’s 1225 McCowan Road, Scarborough branch.
5He received a further cheque for $5,566.42 on 14 June 2024 representing the remaining post-judgment interest and remaining costs due and he deposited that cheque into that same account the same day.
6He has since withdrawn some funds from that account. On 2 October 2024, he used $35,618.36 of the funds to pay the outstanding writs in full. It appears that $200,000 he withdrew in September 2024 was simply transferred to the plaintiff’s investment account in his name at BMO InvestorLine/BMO Wealth Management. As of the period ended 30 November 2024, the plaintiff had $301,187.60 in his personal BMO InvestorLine investment account and, as of the period ended 13 November 2024, still maintained a balance of $171,981.92 in his BMO bank account.
7The defendants argue that the plaintiff has refused to divulge whether he has creditors, which is relevant to any defence to a security for costs motion. While that may be, the record does show that any creditor that filed a writ has now been paid.
8I cannot find on the record before me that the plaintiff has insufficient assets to satisfy any costs award against him. The defendants argue that the plaintiff has already significantly depleted his assets and they have no guarantee by the time they get to trial that sufficient funds will remain to satisfy any costs awards in their favour. The defendants are not without remedies in the event they are awarded costs on any interim steps and they are not paid. They may move under rule 56.01(1)(c) for security at that stage or under rule 60.12 for a stay or dismissal of this action for failure to comply with an interim order.
9In light of this finding, it is unnecessary to consider whether there is good reason to believe that the plaintiff’s action is frivolous and vexatious.
Rule 56.01(1)(b)
10The moving defendants argue that the plaintiff has another proceeding pending in Ontario for the same relief, which mandates that a security for costs order be made against him.
11It would be an understatement to say there has been a history of high conflict interactions between the plaintiff and others at 125 Village Green Square, Scarborough (the “Premises”). There have been 65 incident reports, with allegations of death threats, attempted and actual assaults, verbal abuse and the like. The plaintiff either alone or with his friend Tanya Rebello, who lives at the Premises, has sued the police as a result of interactions at the Property, has sued fellow condominium owners who reside there and has sued the lawyers who act for the security company.
12The action before me arises from an interaction between the plaintiff and the defendant Decoyda Larsen (“Larsen”), a security guard who works at the Premises. The plaintiff claims that Larsen filed a false report with Toronto Police Service alleging that the plaintiff had threatened him while he was off duty at a gas station in the evening of 24 July 2020. The plaintiff argues that Larsen’s intention in filing this report was to have him arrested and charged, which did occur in November 2020. The charges were ultimately withdrawn in January 2022. The statement of claim references the 24 July 2020 police report, as well as reports that Larsen allegedly made to the police concerning the plaintiff in May 2019 and September 2019. The plaintiff also pleads that a different security guard, the defendant Colin, assaulted him at the Premises on 10 March 2022.
13In this action, the plaintiff sues Larsen and all other defendants for conspiracy to injure him by filing these reports with the Toronto Police Service. He seeks $10,000,000 in damages for conspiracy, defamation, malicious prosecution and negligence.
14In action CV-22-00686230, the plaintiff sues Toronto Police Services Board, the Chief of Police and 26 other Toronto Police personnel for malicious prosecution, intimidation, negligence and misfeasance in public office (the “Curtis Police Action”). He seeks $25,000,000 collectively from these defendants. The malicious prosecution claim is based on the July 2020 gas station incident involving Larsen, and the plaintiff’s subsequent arrest. The plaintiff’s claims for intimidation, misfeasance in public office and negligence involve at least seven other police reports. The plaintiff pleads that Toronto Police Service had filed and continue to file numerous police reports against him for incidents which did not happen, did not involve him and which were filed without speaking to him.
15The majority of the police reports concern the plaintiff’s conduct at the Premises. Some were filed by Larsen. Others were filed by other residents of the Premises. One was initiated by Toronto Fire Service when the plaintiff and Rebello refused Toronto Fire Service access to their residence to deal with a defective heat sensor. Toronto Fire Service ultimately requested the assistance of police to gain entry. There were others filed concerning the plaintiff’s alleged behaviour in the community, unrelated to the Premises.
16There is overlap between this action and the Curtis Police Action as far as they relate to the reports made concerning Larsen’s complaints.
17The same is true for the actions the plaintiff commenced against other residents at the Premises as a result of their reports about him to the police. The plaintiff has sued the Dzeparoskis for $1,000,000 as a result of their reporting to the police death threats allegedly made by the plaintiff against them. That police report is one of those mentioned in the Curtis Police Action. This is also the case for the plaintiff’s action against Joel Ien and Barbara Card, who are also residents at the Premises. That statement of claim mirrors the plaintiff’s claim against the Dzeparoskis. The plaintiff seeks $1,000,000 in damages as a result of their reporting to the police that the plaintiff had allegedly assaulted them with a weapon.
18The plaintiff has sued his former lawyer. He has also sued Mr. Turkienicz, who is not his lawyer but the lawyer for the adverse party Paragon in this action. The plaintiff alleges that, in defending a claim against Paragon by Rebello, which was similar to this one brought against Paragon by Curtis, Mr. Turkienicz failed to disclose the police reports made by Larsen in May 2019 and September 2019.
19The two or more proceedings referenced in rule 56.01(1)(b) need not be against the same defendant. The moving defendants meet this test if they demonstrate that the plaintiff has brought multiple claims “seeking the same relief” (Wilson Young & Associates Inc. v. Carleton University et al, 2020 ONSC 4542, para 54). In my view, the defendants have met this onus. The plaintiff seeks damages in this action and in the Curtis Police Action for defamation and malicious prosecution. The fact that the Curtis Police Action alleges other incidents of alleged police wrongdoing does not detract from the fact that both claims in whole or in part seek damages arising from Larsen’s reports to the police and the events at the gas station involving Larsen and the arrest that followed.
20The moving defendants argue that once they have demonstrated that the plaintiff has commenced two proceedings for the same relief, security for costs follows. This is not borne out by the Wilson Young decision upon which they rely, which confirmed that a plaintiff in that circumstance can avoid an order for security for costs by showing that he has sufficient assets available to respond to any costs order, to demonstrate impecuniosity or to ask the court to make such order as is just in the circumstances (supra, at paragraph 55). In Wilson Young, the associate judge found that the plaintiff had commenced two proceedings against different parties for the same relief, meeting the initial onus, but denied the motion for security for costs on the basis that the defendants’ delay in bringing the motion made such an order unjust.
21This was also the process followed in Unimac-United Management Corp. v. Canadian National Railway Company and Metrolinx, 2015 ONSC 2372 where the court dealt with a request for security costs under rule 56.01(1)(b). In determining the process to be followed, the court stated:
[17] The question of leave in such a case turns on the existence of the multiplicity of proceedings, namely whether it appears that there are two or more proceedings for the same relief. If it does so appear, the motion is “necessary” and leave follows. The onus then shifts to the plaintiff to show that the multiplicity of proceedings is justified or not unfair. This process parallels the general process under Rule 56.01. In Shibish v. Scher [2013] O.J. 3008 (Ont. Master), Master Brott held in paragraph 6 that the process in a motion for security for costs on any of the grounds under Rule 56.01 is a two-step process, the first step being by the defendant to establish whether it appears that the matter falls under one of the six enumerated categories in Rule 56.01, and the second step being by the plaintiff to show that an order for security for costs is unjust.
22Because I am satisfied that the plaintiff presently has sufficient assets in Ontario to pay the defendants’ costs, I find he has met the onus that shifted to him and demonstrated that security for costs is not warranted at this stage.
Cross Motion
23The plaintiff brought a cross motion to strike certain portions of the affidavits filed by the moving defendants in support of their security for costs motions, primarily on the basis that they were untrue. This is not a ground that would support a motion to strike. He also objected to the affidavits on the basis that the defendants had not complied with his notice of examination to bring with them certain documents relevant to the merits of the claim and on the basis of a discrepancy between the date typed on the exhibits stamps and date the affidavit was sworn.
24It is unnecessary to consider the plaintiff’s cross motion, in light of the decision reached, above.
Costs
25While the defendants were not successful in their motions, I decline to exercise my discretion to order costs against them for three reasons. First, the motions were reasonably brought in the spring of 2024 and may well have succeeded but for the change in the plaintiff’s financial fortunes. Second, even when the plaintiff took the position that he now had sufficient assets to satisfy any costs award against him, he refused to provide the defendants with information about the whereabouts of those funds, including information about the financial institution, the account number, whether the account was in his name or was even in Ontario. He made it a pre-condition that he obtain the same information from the defendants’ lawyer about his finances before disclosing his own. The financial disclosure information was not provided in any meaningful way until just prior to or during the hearing of the motion. Third, the plaintiff’s conduct during cross examinations was entirely inappropriate and will not be condoned through any costs award in his favour on this motion.
26The motion is dismissed without costs.
Associate Justice Jolley
Date: 20 January 2025