Henderson v. Wright, (2016) 345 O.A.C. 231 (CA)

• Judge: Strathy, C.J.O.
• Court: Court of Appeal (Ontario)
• Case Date: January 22, 2016
• Jurisdiction: Ontario
• Citations: (2016), 345 O.A.C. 231 (CA);2016 ONCA 89

Henderson v. Wright (2016), 345 O.A.C. 231 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. FE.002

John Roy Henderson (plaintiff/appellant/responding party) v. Muriel Evelyn Wright (defendant/respondent/moving party)

(M45958; C60624; 2016 ONCA 89)

Indexed As: Henderson v. Wright

Ontario Court of Appeal

Strathy, C.J.O.

February 1, 2016.

Summary:

The respondent applied for an order for security for costs of the appeal under rule 61.06 of the Rules of Civil Procedure.

The Ontario Court of Appeal, per Strathy, C.J.O., allowed the application.

Evidence - Topic 4716

Witnesses - Examination - Cross-examination - On testimony to be contradicted - The respondent applied for an order for security for costs of the appeal - The Ontario Court of Appeal, per Strathy, C.J.O., allowed the application where, inter alia, there was good reason to believe that the appeal was frivolous and vexatious - It did not raise any arguable error in law, and challenged findings of fact and credibility for which the trial judge set out detailed, facially sound reasons - The court stated that "The appellant's alleged error in law - his submission that the trial judge's observations in paras. 40 and 41 of his reasons violates the rule in Browne v. Dunne - is ... misconceived. That rule applies to counsel or a party who seeks to discredit a witness without having given the witness a fair opportunity to respond to the allegation. I do not believe it prevents a trial judge from asking himself a rhetorical question and then finding a witness's evidence to be illogical or incredible based on the judge's assessment of his or her behaviour in the circumstances." - See paragraphs 15 to 20.

Practice - Topic 8120.4

Costs - Security for costs - General principles - Where claim frivolous or vexatious - [See Evidence - Topic 4716 ].

Practice - Topic 8208

Costs - Security for costs - Security for costs of an appeal - Grounds for - General - [See Evidence - Topic 4716 ].

Practice - Topic 8208

Costs - Security for costs - Security for costs of an appeal - Grounds for - General - The respondent applied for an order for security for costs of the appeal - The Ontario Court of Appeal, per Strathy, C.J.O., allowed the application where, inter alia, there was good reason to believe that the appellant had insufficient assets in Ontario to pay the costs of the appeal - The appellant's only asset of any significance (apart from a 9 year old car and a 12 year old motorcycle) was a one-quarter interest in a cottage property, which he owned with other family members - That interest was allegedly worth $50,000 - The court doubted the marketability of a part-interest in a family cottage, which could probably only be realized, if at all, after litigation - Even assuming one could execute against the part interest, one would be acquiring a lawsuit and potentially a liability - Moreover, this left nothing for the outstanding judgment and costs - Requiring the respondent to rely on such an illiquid and unmarketable asset was contrary to the purpose of rule 61, namely, that a respondent was entitled to a measure of protection for costs incurred and to be incurred in the proceeding, now on appeal - See paragraphs 21 to 25.

Practice - Topic 8209

Costs - Security for costs - Security for costs of an appeal - Grounds for - Special circumstances or other good reasons - The respondent applied for an order for security for costs of the appeal - The Ontario Court of Appeal, per Strathy, C.J.O., allowed the application where there were good reasons to believe that the appeal was frivolous and vexatious and that the appellant had insufficient assets in Ontario to pay the costs of the appeal (Rules of Civil Procedure, rule 61.06(1)(a)) - Alternatively, there was a good reason to order the appellant to post security for costs considering the low merit of the appeal and to remedy the imbalance between the appellant's relative invulnerability to costs awards and the respondent's corresponding exposure (rule 61.06(1)(c)) - See paragraphs 26 to 33.

Cases Noticed:

Schmidt v. Toronto-Dominion Bank (1995), 82 O.A.C. 233; 24 O.R.(3d) 1 (C.A.), refd to. [para. 16].

Combined Air Mechanical Services Inc. et al. v. Flesch et al. (2010), 268 O.A.C. 172; 2010 ONCA 633, refd to. [para. 24].

Perron v. Perron (2011), 286 O.A.C. 178; 345 D.L.R.(4th) 513; 2011 ONCA 776, refd to. [para. 27].

Baker et al. v. Rego et al., [2013] O.A.C. Uned. 401; 31 R.F.L.(7th) 323; 2013 ONSC 3309 (Div. Ct.), refd to. [para. 27].

Children's Aid Society of York Region v. G.S. (2010), 98 R.F.L.(6th) 179; 2010 ONSC 3804, refd to. [para. 27].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 61.06(1)(a), rule 61.06(1)(c) [para. 1].

Rules of Court (Ont.) - see Rules of Civil Procedure (Ont.).

Counsel:

Robert Hammond, for the respondent/moving party;

Clinton Culic, for the appellant/responding party.

This application was heard in Chambers, on January 22, 2016, by Strathy, C.J.O., of the Ontario Court of Appeal, who delivered the following endorsement on February 1, 2016.