Diversitel Com. Inc. v. Glacier Bay Inc., (2004) 181 O.A.C. 6 (CA)

• Judge: Labrosse, Sharpe and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 11, 2003
• Jurisdiction: Ontario
• Citations: (2004), 181 O.A.C. 6 (CA)

Diversitel Com. Inc. v. Glacier Bay Inc. (2004), 181 O.A.C. 6 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. JA.007

Diversitel Communications Inc. (respondent/plaintiff) v. Glacier Bay Inc. (appellant/defendant)

(M30636; C40887)

Indexed As: Diversitel Communications Inc. v. Glacier Bay Inc.

Ontario Court of Appeal

Labrosse, Sharpe and Armstrong, JJ.A.

January 7, 2004.

Summary:

A plaintiff sued the defendant for breach of contract. The defendant counterclaimed. The defendant moved for production of documents. The plaintiff sought summary judgment under the Simplified Rules Procedures.

The Ontario Superior Court, in a decision reported at [2003] O.T.C. Uned., dismissed the defendant's application and granted summary judgment for the plaintiff. The defendant appealed. The plaintiff sought an order quashing that part of the appeal relating to the refusal to order the production of documents. The plaintiff also sought an order requiring the defendant to post security for costs of the trial and the appeal.

The Ontario Court of Appeal quashed that part of the appeal relating to the production issue. The court dismissed the motion for security for costs.

Practice - Topic 8207

Costs - Security for costs - Security for costs of an appeal - Persons against whom security may be ordered - Rule 61.06(1)(b) provided for an order for security for costs against an appellant - The Ontario Court of Appeal held that rule 61.06(1)(b) was confined to the making of an order against a plaintiff/appellant - Security for costs under rule 61.06(1)(b) could be imposed on an appellant who was a plaintiff by counterclaim, but not if the counterclaim arose out of the same transaction or circumstances as the claim and was in substance a defence to the claim - See paragraphs 8 to 9.

Cases Noticed:

Cole v. Hamilton (City) (2002), 60 O.R.(3d) 284 (C.A.), refd to. [para. 6].

GEAC Canada Ltd. v. Erickson (Craig) Systems Inc. et al. (1994), 74 O.A.C. 136; 26 C.P.C.(3d) 355 (C.A.), refd to. [para. 8].

Toronto-Dominion Bank v. Szilagi Farms Ltd. (1988), 29 O.A.C. 357; 65 O.R.(2d) 433 (C.A.), refd to. [para. 8].

Toys "R" Us (Canada) Ltd. v. Rotisseries St-Hubert Ltée/St-Hubert Bar-B-Q Ltd. (1994), 75 O.A.C. 242 (C.A.), refd to. [para. 8].

Macpherson v. Masini (1879), 5 Q.B.D. 144, refd to. [para. 9].

Wilkins v. Towner, [1936] O.W.N. 137 (H.C.), refd to. [para. 9].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 61.06(1)(b) [para. 7].

Counsel:

Richard Marks, for the appellant/defendant;

Paul Lepsoe and Laurie Livingstone, for the respondent/plaintiff;

This motion was heard on December 11, 2003, by Labrosse, Sharpe and Armstrong, JJ.A., of the Ontario Court of Appeal. Armstrong, J.A., delivered the following decision for the court on January 7, 2004.