Perron v. Conseil scolaire de district catholique des Aurores boréales

  • Document:
  • Date: 2018

Perron v. Conseil Scolaire de District Catholique des Aurores Borales*

92 O.R. (3d) 730

Ontario Superior Court of Justice,

Gauthier J.

June 30, 2008

 

* English translation prepared by the Centre for Legal Translation and Documentation (CLTD) at the University of Ottawa. Vous trouverez la version ralise franaise la p. 743, post.

Civil procedure — Costs — Security for costs — Rule 56.07 not providing for any change in form of security for costs — Section 98 of Courts of Justice Act not authorizing relief against order for security for costs as order does not constitute “penalty” or “forfeiture” — Defendant’s motion for order dismissing action pursuant to rule 56.06 granted where plaintiff had ability to comply with order for security for costs when it was made and subsequently transferred money from his bank account and made no effort to comply with order — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 98 — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 56.06, 56.07.

Civil procedure — Summary judgment — Partial summary judgment — Plaintiff suing defendant after defendant dismissed him from position as school principal — Defendant obtaining order for security for costs — Plaintiff bringing motion for partial summary judgment awarding him payment for accumulated days of sick leave so that he could comply with security order — Motion dismissed — Genuine issue for trial existing with respect to whether plaintiff was entitled to payment in question.

The plaintiff sued the defendant when he was dismissed from his position as a school principal. The defendant obtained an order requiring the plaintiff to post security for costs in the amount of $25,000. The plaintiff did not appeal that order and did not comply with it. He subsequently brought a motion to quash the security order or, alternatively, to change the form of the security from the provision of a cash deposit or letter of credit to an order preventing him from disposing of real property. The plaintiff sought “relief against forfeiture” of the action. Finally, he sought partial summary judgment awarding him a payment for accumulated days of sick leave. The defendant moved for an order dismissing the action pursuant to rule 56.06 of the Rules of Civil Procedure.

 

Held, the plaintiff’s motion should be dismissed; the defendant’s motion should be granted. [page731]

 

The plaintiff failed to establish that there had been a significant change in circumstances since the security for costs order was made which would justify quashing the order. Rule 56.07, which provides for an increase or decrease in the amount of the security for costs, does not provide for any change in the form of the security. No authority was suggested to the court that allowed such a change, and in particular a change in the form suggested by the plaintiff. Relief against forfeiture under s. 98 of the Courts of Justice Act was not available to the plaintiff, as an order for security for costs does not constitute a “penalty” or “forfeiture”.

The plaintiff’s motion for partial summary judgment was dealt with, despite the fact that rule 56.05 provides that a plaintiff against whom a security for costs order has been made may not take any further steps without leave of the court, as the plaintiff claimed that he could comply with the security for costs order if partial summary judgment were granted. A genuine issue for trial existed with respect to whether the plaintiff was entitled to a payment for accumulated days of sick leave, as that question was linked to the question of whether the plaintiff was validly dismissed.

The plaintiff had made no effort to comply with the order for security for costs. He had more than enough money in his bank account to comply with the order when it was made. He subsequently transferred a large sum of money from his bank account and did not submit any evidence as to the use made of that money. He refused to provide documentation to establish that he owed $73,000 as he claimed. He had made a few applications for financing but did not file documentation to explain the refusals of those applications by financial institutions. The defendant was entitled to an order dismissing the action.

 

Cases referred to

 

Leonard v. Prior, [1994] O.J. No. 2045, 118 D.L.R. (4th) 442, 33 C.P.C. (3d) 305, 50 A.C.W.S. (3d) 24 (Gen. Div.); Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50, [1991] S.C.J. No. 43, 80 D.L.R. (4th) 652, 125 N.R. 294, J.E. 91-959, 47 O.A.C. 333, 3 C.C.L.I. (2d) 186, 50 C.P.C. (2d) 213, [1991] I.L.R. .1-2728 at 1284, 27 A.C.W.S. (3d) 70, 1991 CanLII 58

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 98 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20, 20.04(2) [as am.], 56.01, (a), 56.05, 56.06, 56.07

 

MOTION by plaintiff to quash an order requiring the filing of security for costs; MOTION by defendant for an order dismissing proceeding.

 

J. Richard Forget, for plaintiff.

Kevin D. MacNeill, for defendant.

 

[1]  GAUTHIER J.: — The defendant (the “Conseil”) is seeking an order dismissing the proceeding brought against the defendant pursuant to rule 56.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [page732]

 

[2]  The plaintiff (Mr. Perron), for his part, would like the court to quash the order of September 18, 2007 requiring the filing in court of $25,000 security for costs in the form of a deposit or irrevocable letter of credit.

 

[3]  Mr. Perron is further seeking a variance of the security order prohibiting the plaintiff from alienating his real property located at Ignace, in the Kenora District, instead of providing the deposit or letter of credit.

 

[4]  Mr. Perron is seeking to alter the amount of the security, but made no oral submissions on this point.

 

[5]  The plaintiff is also claiming “relief against forfeiture of this action” and “the equitable relief of promissory estoppel”.

 

[6]  Finally, Mr. Perron has asked the court to render a partial summary judgment awarding him a payment for accumulated days of sick leave.

 

Facts

 

[7]  In 2006, the Conseil dismissed Mr. Perron from his employment as principal of the Immaculate Conception School in Ignace.

 

[8]  The plaintiff brought an action in 2006. The hearing pursuant to the request by the Conseil for security for costs took place on May 15, 2007.

 

[9]  On September 18, 2007, Platana J. ordered that $25,000 security for costs be filed with the court no later than October 30, 2007, in the form of a deposit or irrevocable letter of credit: otherwise the Conseil could ask to have the proceeding dismissed.

 

[10]  Mr. Perron did not pay the security imposed by Platana J. The Conseil is accordingly asking that the proceeding be dismissed pursuant to rule 56.06 and Platana J.’s order.

 

[11]  For the sake of simplicity, I will deal with the plaintiff’s cross-demand first and then the application by the defendant to dismiss the plaintiff’s action.

 

A.  Quashing security for costs order

 

[12]  For the plaintiff’s application to be granted, he must show there has been a significant change in circumstances since the order was made so that the reason on which the order of security for costs was based is no longer a factor.

 

[13]  Mr. Perron alleged that two significant changes have occurred since the order of September 18, 2007, namely, (a) he is now living in Ontario, and (b) he does not have sufficient available funds to comply with the order for security. [page733]

 

[14]  The basis for the motion against the plaintiff to obtain security for costs was that he ordinarily resided outside of Ontario within the meaning of rule 56.01(a) of the Rules of Civil Procedure.

 

[15]  In his decision, Platana J. concluded that the plaintiff resided in Quebec. At paras. 31 and 32, he said the following:

 

[TRANSLATION]

Under Rule 56.01(1) of the Rules of Civil Procedure, a defendant must first establish that the plaintiff is residing outside of Ontario. Once that has been settled, the plaintiff must show that he has sufficient property in Ontario to pay the defendant’s costs if required. It is not necessary to establish conclusively that the plaintiff does not live in Ontario, only that he “appears” to have his ordinary residence outside Ontario. [Hallum v. Canadian Memorial Chiropractic College (1989), 70 O.R. (2d) 119, [1989] O.J. No. 1399 (H.C.J.)].

 

As the Court determined in Martin v. Goldfarb, [1993] O.J. No. 1942, an “ordinary residence” is not the place where a person spends most of his or her time during the year. The expression may be defined as the place where a person resides unless circumstances require him or her to travel. A person’s ordinary residence is not solely based on that person’s intention.

I have taken into account the fact that Mr. Perron still has property and bank accounts in Ignace, is the holder of an Ontario driving licence and is eligible for Ontario Health Insurance. However, the most significant fact is that there is no doubt that he resides in Quebec at present. In the circumstances, I am persuaded that he should be regarded as “ordinarily residing” in Quebec. The factors on which Mr. Forget relied are not enough to support a dual residence for the purposes of this motion, as he requested.

 

[16]  Does the evidence filed in respect of this motion establish a change of residence by the plaintiff? In other words, has he shown that he is no longer ordinarily resident in Quebec and is now living in Ignace, so as to overturn the basis of the order by Platana J.?

(a)  Mr. Perron’s residence

 

[17]  Mr. Perron referred to certain factors in support of his position that he is ordinarily resident in Ontario, including his real property in Ignace, his utilities bills for that property, his Ontario driving licence and his coverage under the Ontario Health Insurance Plan.

 

[18]  Platana J. took several of these factors into account and held that they did not contradict the claim that Mr. Perron was ordinarily resident in Quebec. As these factors had already been considered on the motion for security for costs, they have little or no weight with respect to this motion to quash the order for security for costs, in which the applicable requirement is a change in circumstances. [page734]

 

[19]  Platana J. commented that there was no persuasive evidence in the record that Mr. Perron had to stay in Quebec for medical reasons, despite what was suggested by para. 2 of his affidavit made under oath on December 18.

 

[20]  Further, Platana J. took into account Mr. Perron’s feelings regarding people in the Ignace community. At para. 13, Platana J. said this:

 

[TRANSLATION]

Perron mentioned his own conclusion that he no longer has any future in Ignace and his intention to leave Ignace. He indicated that he did not feel safe in view of the reactions of parents, present and former students and people in the community following the disclosure of his sexual orientation. In his cross-examination on February 23, 2007, Perron in fact stated that he still felt unsafe on account of people in Ignace and was still thinking of relocating and selling his house.

 

[21]  Mr. Perron entered in the record statements of his telephone calls and the documentation relating to medical services which Mr. Perron apparently received since his return to Ontario.

 

[22]  First, the payments for Internet services do not establish that Mr. Perron was in Ontario at the time in question and was no longer ordinarily resident in Quebec.

 

[23]  The statements for the cellphone and the ordinary telephone located in the house owned by Mr. Perron indicate that all calls made from the cellphone between November 12 and December 17, 2007 came from the Province of Quebec. The telephone calls from Ignace from November 20 to December 18 must necessarily have been made by someone other than Mr. Perron.

 

[24]  The cellphone statements would appear to show that Mr. Perron was physically present in Ontario from December 2007 onwards.

 

[25]  I note that Mr. Perron’s cellphone number has a Quebec area code, namely 819.

 

[26]  This new documentation has not persuaded the court that Mr. Perron is no longer ordinarily resident outside Ontario, as stipulated in rule 56.01. His presence in Ontario and the fact that he is receiving medical treatment here do not alter the facts on which Platana J. based his order of September 18, 2007.

 

[27]  Mr. Perron continues to have an ongoing and significant link to Quebec, without having any ongoing and significant link to Ontario apart from what was considered by Platana J.

 

[28]  It is very possible that Mr. Perron returned to Ignace: that is what he said; however, as there was no persuasive evidence in [page735] the record that Mr. Perron had to remain in Quebec for medical treatment at the time of the hearing on security, there is no evidence that Mr. Perron’s presence in Ontario means he is no longer an ordinary resident of Quebec.

 

[29]  There is no evidence that could offset Mr. Perron’s feelings toward the people and community of Ignace, as noted by Platana J. There is no evidence of new plans or links to Ontario.

 

[30]  The Conseil suggested that Mr. Perron returned to Ignace in order to evade the order by Platana J.

 

[31]  There may be some circumstance which led him to move from Quebec. That would not alter the fact that Mr. Perron continues to be a person ordinarily resident outside of Ontario.

 

[32]  On the evidence as a whole, Mr. Perron continues to be a person ordinarily resident outside of Ontario within the meaning of rule 56.01(a).

(b) Lack of available funds to comply with security order

 

[33]  In his affidavit made under oath on March 8, 2008, Mr. Perron stated that he was not able to obtain financing to comply with the order for security for costs on account of his lack of available funds. In other words, he did not have the financial means to comply with the order by Platana J.

 

[34]  First, I note that the motion seeking security for costs was argued in May 2007; that is over a year ago. The order for payment or a letter of credit in the amount of $25,000 was made in September 2007. The deadline for complying with this order was October 30, 2007.

 

[35]  Mr. Perron did not appeal the order by Platana J. He also did not take any steps to deal with the order in any way whatever until nearly six months after the order was made, and over four months after the payment deadline.

 

[36]  However, he did take certain actions which had an effect on his available funds and his ability to comply with the order for security for costs.

 

[37]  At the time the motion was heard, Mr. Perron had a large balance in his bank account. At para. 26 of the decision by Platana J., he noted the following:

[TRANSLATION]

Further, the plaintiff has bank accounts with the Canadian Imperial Bank of Commerce in Ignace and, at the time of the cross-examination [February 23, 2007] on his affidavit, his balances totalled some $40,000.

 

[38]  On the evidence, on June 11, 2007, less than a month after the motion was heard, he transferred large amounts of money [page736] from his bank account. The total amount transferred came to $37,000, well beyond the amount finally ordered as security for costs. No evidence was submitted to show where this money went and the plaintiff did not carry out his undertaking to provide supplementary documentation showing that this money was used to pay debts.

 

[39]  A supplementary affidavit by Mr. Perron dated May 6, 2008 was entered in the record. Paragraph 3 of that document deals with Mr. Perron’s bank accounts:

3.1  Attached as Exhibit “b” is a copy of my chequeing [sic] and saving account:

3.1.1  Chequeing [sic] : My checqueing [sic] account failed to show that I had $25,000 after September 17, 2007.

3.1.2  Saving: Likewise my saving account also failed to show that I had $25,000.00 after September 17, 2007.

 

[40]  It is worth noting that, despite the foregoing information on the availability of funds at the time the order for security for costs was made, there is no proof that Mr. Perron made any effort to comply with the order.

 

[41]  At the time of the cross-examination of Mr. Perron carried out on May 23, 2008, he indicated that he owed some $73,000 on credit cards, but refused to submit credit card bills to establish the debt.

 

[42]  Further, the plaintiff submitted evidence of his attempts to obtain financing so as to comply with the security for costs order.

 

[43]  In particular, Mr. Perron filed a letter from the CIBC dated October 2, 2007, indicating that the credit application request had been denied. The letter said:

[TRANSLATION]

Our decision was based on the details contained in your loan application and/or on the information received from the credit agency.

 

[44]  He also entered in evidence a copy of a letter from Superior Credit Union Limited dated May 23, 2008. That letter indicated that Mr. Perron had applied for a $25,000 letter of credit on October 26, 2007, but his application was denied.

 

[45]  Mr. Perron entered in evidence the fact that he submitted a Desjardins VISA card application and it was denied. A copy of the letter from the Caisse Desjardins dated May 10, 2008 was entered in evidence: [TRANSLATION]

. . . we regret to inform you that, after analyzing the financial information obtained and the credit checks which we have made, we are unfortunately [page737] unable to approve your application for the following reasons: certain information appearing in your credit file is unfavourable.

 

[46]  And finally, the Laurentian Bank of Canada denied Mr. Perron’s application for a Laurentian Bank VISA card. The letter of rejection dated May 9, 2008 states the following:

 

[TRANSLATION]

. . . further to the information which you provided, we cannot at the moment give a favourable response to your application for the following reasons: sufficient commitments.

 

[47]  The above evidence indicates two attempts by Mr. Perron to comply with the security for costs order in October 2007. The other attempts appear to have been made much later, and after the October 30, 2007 deadline.

 

[48]  Additionally, Mr. Perron did not submit the documentation allegedly given to the financial institutions in support of his applications for assistance. Further, the plaintiff refused to allow the defendants to obtain from the financial institutions directly the information or documents on which they based their refusals.

 

[49]  For the plaintiff to be successful in varying or even terminating the security for costs order, he has to establish the changed circumstances on which he relies. In the case at bar, he must show he was unable to comply with the order as the result of an unfavourable situation that arose since the order was made.

 

[50]  I conclude that the plaintiff has not discharged his burden of proof. The failure to provide evidence to support the reason alleged for transferring large sums of money in June 2007, the failure to provide information or documents on the alleged debt of $73,000 and the inability to obtain financing to carry out the order are fatal to the plaintiff’s position. The way in which Mr. Perron managed his personal finances and the manner in which he responded to requests for further documentation on his finances suggest an attempt to evade the security for costs order rather than good faith efforts to comply with the order.

 

B.  Plaintiff’s application to vary order by Platana J.

 

[51]  The application refers expressly to a variance “to provide for a court order preventing the Plaintiff from disposing of his real property in the District of Kenora until the conclusion of this action in lieu of providing a cash security or letter of credit”.

 

[52]  Rule 56.07 provides for an increase or decrease in the amount of the security for costs imposed by the order. [page738]

 

[53]  The rule does not provide for any change in the form of the security for costs. I do not know of any authority, and no authority was suggested to the court, that allows a change in the form of the security, and in particular the form suggested by the plaintiff.

 

[54]  Accordingly, I conclude that the plaintiff cannot be allowed this type of relief.

 

C.  Claim for exemption from deadline pursuant to s. 98 of Courts of Justice Act [R.S.O. 1990, c. C.43]

 

[55]  Section 98 reads as follows:

98. A court may grant relief against penalties and forfeitures, on such terms as to compensation or otherwise as are considered just.

 

[56]  Although the clear meaning of s. 98 confers broad discretion in granting the relief mentioned, in order to understand the scope of the section we have to determine the meaning of “penalty” and “forfeiture”.

 

[57]  The Dictionary of Canadian Law defines “forfeiture” as follows:

The surrender of goods or chattels to punish someone for a crime, for failure to comply with terms of recognizance or pay duty or fulfill some obligation and to compensate the person to whom they are forfeited.

 

[58]  “Penalty” is defined as follows:

1.  a sum of money to be paid as punishment or an equivalent for some injury.

2.  (a) a fine; or (b) a term of imprisonment including a term of imprisonment in default of payment or satisfaction of a fine.

3.  Includes any forfeiture or pecuniary penalty imposed or authorized to be imposed by way of Act of Parliament for any contravention of the laws relating to the collection of the revenue, or to the management of any public work producing tolls or revenue, notwithstanding that part of such forfeiture or penalty is payable to the informer or prosecutor, or to any other person.

4.  All sums of money, including fines, in default of payment of which a term of imprisonment is imposed and includes the costs and charges of committing the defaulter and of conveying him to prison.

5.  A sum, fixed in advance, to be forfeited or paid in the event a contract is not performed or misperformed in some way.

 

[59]  I consider that an order for payment or security for costs is not covered by the definition of “penalty” or “forfeiture”. The security for costs is not paid as a punishment and does not constitute a fine or payment resulting from a default either. It is [page739] not paid as the result of non-performance or breach of contract, and it is not paid as compensation for injury resulting from the failure to carry out a duty.

 

[60]  The section is not broad enough to authorize relief against a security for costs order by the court. Consequently, it follows that there can be no “relief from forfeiture” as the plaintiff requested.

 

D.  Relief in equity by promissory estoppel

[61]  The plaintiff relied on a letter from counsel for the defendant which was sent after the statement of claim was filed suggesting that the defendant is “estoppe[d] from preventing Mr. Perron to [sic] have access to the court to resolve the dispute because the Defendant promised/assured Mr. Perron that they will permit a legal action so he voice [sic] his concerns . . .” (plaintiff’s memorandum filed on March 10, 2008, para. 3.3).

 

[62]  In other words, as a result of certain passages in the letter written by counsel for the defendant, the defendant is now precluded from opposing the application to vary (quash) the order by Platana J., and is further barred from seeking dismissal of the plaintiff’s application pursuant to rule 56.06.

 

[63]  The relevant portions of the aforementioned letter read as follows:

 

[TRANSLATION]

If you see fit, and if applicable, you may put forward these arguments in the appropriate administrative tribunals and courts for a decision.

 

[64]  The following passage is also cited: [TRANSLATION] Of course, at the proper time and before the appropriate tribunals, you will be free to put forward any argument you see fit as to the procedure followed by the Conseil in arriving at a decision in these matters.

 

[65]  Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50, [1991] S.C.J. No. 43, 1991 CanLII 58, sets out on, p. 5 [para. 13], the well-settled principles of promissory estoppel.

The party relying on the doctrine must establish that the other party has, by words or conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, in reliance on the representation, he acted on it or in some way changed his position.

 

[66]  The theory of promissory estoppel has no bearing in the case at bar. The letter in question was in answer to a letter from counsel for the plaintiff and simply indicated disagreement with the interpretation by counsel for the plaintiff of the applicability [page740] of the rules of equity and natural justice. Essentially, the letter was a refusal to continue debating these rules. The letter can in no way be described as a promise or assurance intended to affect the legal relationships of the parties.

 

E.  Application for partial summary judgment

[67]  Mr. Perron is seeking a summary judgment for part of the claim in his statement of claim, namely the payment of an allowance for the days of sick leave accumulated over the years.

 

[68]  Rule 20 authorizes a judgment on part of the application made in a statement of claim: on the other hand, under rule 56.05, a plaintiff against whom a security for costs order has been made may not take any further steps in the matter unless the court orders otherwise.

 

[69]  According to Mr. Perron, if the court awarded him a partial judgment for the days of sick leave, he could comply with the security for costs order.

 

[70]  Despite the effect of rule 56.05, I must deal with the motion for a partial summary judgment.

 

[71]  Mr. Perron alleged that under his contract of employment he is entitled to a bonus or payment calculated in accordance with the accumulated days of sick leave, amounting to 291, or at least to a figure beyond the $25,000 ordered by Platana J.

 

[72]  For its part, the defendant says that the express language of the contract of employment does not provide that Mr. Perron will be entitled to a bonus when dismissed on valid grounds.

 

[73]  The following clauses of the contract of employment are important:

[TRANSLATION]

3.01 The salary payment and fringe benefits are attached to the agreement in Appendix A of the contract so that they may be reviewed annually and altered if necessary without affecting the clauses of the original agreement.

5.  The other leave covered by the collective agreement for teaching staff dated April 1, 1998 applies to the Principal as listed in Appendix A of the contract.

6.  Termination of employment

The employment relationship between the Conseil and the Principal is continued after the beginning of the 1998-99 school year, unless interrupted in one of the following ways: 6.04 by the Conseil, on valid grounds, the Principal may be suspended from his duties with or without pay or may be dismissed for neglect of duties, misconduct or incompetence as confirmed by the supervisory officer of the Conseil. [page741]

7.  This agreement is the sole agreement between the two parties and no other condition, guarantee or promise exists except for what is contained in this agreement.

 

Appendix A:

The fringe benefits to which the Principal will be entitled are described in the teachers’ collective agreement in effect in April 1, 1998 and relating to the following benefits: 2.02 sick leave.

 

[74]  Clause 19.04 of the collective agreement provides that: [TRANSLATION] 19.04

(a)  Under section 157 of the Education Act, and any amendment thereof, a retiring allowance will be paid to a full-time or part-time teacher who has ten years or more of continuous service with the Conseil and is retiring or dies. The amount will be determined as follows:

(i)  half the accumulated days of sick leave up to the date of death or retirement multiplied by the average daily salary of the teacher for the three best years of employment:

 

Accumulated sick days x average salary

————————————– 2

 

[75]  According to rule 20.04(2), the court must render a summary judgment if it is persuaded that the complaint or defence raises no genuine issue for trial.

 

[76]  In my opinion, the plaintiff has not discharged his burden in this regard. In my view, there is indeed a point for decision in the case at bar.

 

[77]  Under the contract of employment the Conseil was entitled to dismiss Mr. Perron on valid grounds. The Conseil alleged that it properly dismissed Mr. Perron on valid grounds.

 

[78]  The position taken by the defendant that the express

language of Mr. Perron’s contract of employment does not provide that the plaintiff will be entitled to a payment calculated according to the accumulated days of sick leave, specifically in the event that the plaintiff is dismissed on valid grounds, is correct.

 

[79]  The specific words used in clause 19.04 cited above relate to retirement or death. The clear meaning of the clause is that it does not include dismissal for valid reasons.

 

[80]  The question of whether Mr. Perron was unfairly dismissed from his employment is an issue for trial. This question has an effect on the question of entitlement to the sick leave bonus. [page742]

 

[81]  On the evidence as a whole, it cannot be said that there is no genuine issue for trial in the case at bar. There is in fact a definite dispute regarding eligibility and as to the exact number of sick leave days accumulated by Mr. Perron.

 

[82]  That being so, a partial summary judgment is not relief that is available to the plaintiff and his motion for such relief is dismissed. Motion by Conseil to Dismiss Proceeding Brought against Conseil

 

[83]  Rule 56.06 of the Rules of Civil Procedure provides that: 56.06 Where a plaintiff or applicant defaults in giving the security required by an order, the court on motion may dismiss the proceeding against the defendant or respondent who obtained the order, and the stay imposed by rule 56.05 no longer applies unless another defendant or respondent has obtained an order for security for costs.

 

[84]  To decide the question of whether the proceeding should be dismissed in these circumstances, the court must analyze the efforts made by the plaintiff regarding the order. What did the plaintiff do to comply with the order?

 

[85]  As E. MacDonald J. said in Leonard v. Prior, [1994] O.J. No. 2045, 118 D.L.R. (4th) 442 (Gen. Div.), at para. 22: It is incumbent on plaintiffs to bring forward persuasive evidence to move the court to relieve against a breach of the order . . . the plaintiffs must put “their best foot forward”.

 

[86]  Clearly, from the evidence entered in connection with this motion Mr. Perron did very little to try and comply with the order of September 18, 2007.

 

[87]  A few weeks after the motion was heard, he transferred a large sum of money from his bank account.

 

[88]  He did not submit any evidence relating to the use made of that money.

 

[89]  He made a few applications for financing, but did not file documentation to satisfactorily explain the refusals by financial institutions.

 

[90]  According to his affidavit of May 8, 2008, Mr. Perron had the $25,000 necessary to comply with the order in his bank. He did not enter it in the court and the order has never been carried out.

 

[91]  Mr. Perron did not file an appeal from the decision by Platana J. and he did nothing in the matter for several months after the order was made.

 

[92]  Mr. Perron refused to provide documentation to establish the $73,000 debt which he said he had. [page743]

 

[93]  Consequently, I conclude that Mr. Perron did not discharge his burden of proof as to the efforts made to comply with the security order.

 

[94]  That said, the motion by the Conseil is granted and the proceeding brought against the defendant dismissed, with no ruling on the merits.

 

[95]  If counsel cannot agree on costs, they will have to contact the trial coordinator within 15 days to set a hearing, which could be held by telephone.

 

Plaintiff’s motion dismissed; Defendant’s motion granted.