Waxman et al. v. Waxman et al., (2003) 168 O.A.C. 217 (CA)

• Judge: Morden, Doherty and Feldman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 17, 2002
• Jurisdiction: Ontario
• Citations: (2003), 168 O.A.C. 217 (CA)

Waxman v. Waxman (2003), 168 O.A.C. 217 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. JA.031

Morris Waxman and Morriston Investments Limited (plaintiffs/respondents) v. Chester Waxman, Chester Waxman, in trust, Chesterton Investments Limited, Robert Waxman, Gary Waxman, Warren Waxman, I. Waxman & Sons Limited, The Greycliffe Holdings Limited, Robix Financial Corporation Limited, Circuital Canada Inc., RKW Standardbred Associates Inc., RKW Standardbred Management Inc. and Glow Metal Trading Inc. (defendants/appellants)

(M29066; C38616; C38611; C38624)

Indexed As: Waxman et al. v. Waxman et al.

Ontario Court of Appeal

Morden, Doherty and Feldman, JJ.A.

January 20, 2003.

Summary:

Chester and Morris Waxman jointly ran a family business (IWS) until 1983. A dispute arose and five separate actions were commenced. The litigation pitted Chester and his family against Morris and his family.

The Ontario Superior Court, in a decision reported at [2002] O.T.C. 443, held, inter alia, that Chester cheated Morris out of his interest in the family business. Among other remedies, the court directed that 50% of the shares of IWS should be transferred to Morris. However, Chester still controlled IWS's affairs. Chester et al. appealed. Morris et al. moved for, inter alia, interim costs.

The Ontario Court of Appeal, per Goudge, J.A., in a decision reported at [2002] O.A.C. Uned. 239, dismissed the motion. Morris et al. moved to vary Goudge, J.'s order.

The Ontario Court of Appeal dismissed the motion.

Company Law - Topic 9735

Actions against corporations and directors - Practice - Costs - Interim - Section 248(3) of the Ontario Business Corporations Act provided that the "court" could make any interim or final order that it thought fit - Section 249(4) authorized the "court" to order a corporation, which was the subject of an oppression proceeding, to pay the complainant's interim costs - The Ontario Court of Appeal held that neither provision gave a single judge of the Court of Appeal or the Court of Appeal the power to make any order - The Act defined "court" as the Superior Court of Justice - The very specific definition of "court" in the relevant provisions of the Act provided a clear indication that those sections were meant to apply during the oppression proceedings in the Superior Court and not to appeals from orders made in those proceedings - See paragraphs 12 to 16.

Courts - Topic 7452

Provincial courts - Ontario - Court of Appeal - Jurisdiction - Interim orders - Section 134(2) of the Courts of Justice Act authorized a court to which a motion for leave to appeal was made or to which an appeal was taken to make an interim order that it considered "just to prevent prejudice to a party pending the appeal" - The Ontario Court of Appeal stated that "The jurisdiction under s. 134(2) is broad, but it is not unlimited. The focus of any remedy provided under the section must be on preventing prejudice in the context of the appeal. The prejudice must relate to a party's ability to meaningfully participate in the appeal or to the court's ability to hear and decide the appeal on its merits in a timely fashion. Nor should s. 134(2) be construed as supplanting specific provisions of the [Act] or the Rules of Civil Procedure governing orders lifting stays, imposing stays or orders for security for costs. ..." - See paragraph 21.

Courts - Topic 7452

Provincial courts - Ontario - Court of Appeal - Jurisdiction - Interim orders - [See Company Law - Topic 9735 ].

Practice - Topic 5777

Judgments and orders - Interlocutory or interim orders or judgments - When available - [See Company Law - Topic 9735 and first Courts - Topic 7452 ].

Practice - Topic 6923

Costs - General principles - Power to award or fix costs - Section 131(1) of the Courts of Justice Act gave courts the general jurisdiction to order costs in a proceeding or in a step in a proceeding - The Ontario Court of Appeal stated that "Assuming, without deciding, that s. 131(1), or the equitable jurisdiction of the court permit an order for costs in respect of proceedings or a step in a proceeding which has not taken place, I do not read that section as permitting a judge of the Court of Appeal or the Court of Appeal to make original orders for costs in relation to trial proceedings." - See paragraph 18.

Practice - Topic 8333

Costs - Appeals - Costs of appeal - Jurisdiction - [See Practice - Topic 6923 ].

Practice - Topic 8333.2

Costs - Appeals - Costs of appeal - Advance payment of costs - Respondents in an appeal of a monetary judgment applied for, inter alia, interim costs - Section 134(2) of the Courts of Justice Act authorized a court to which a motion for leave to appeal was made or to which an appeal was taken to make an interim order that it considered "just to prevent prejudice to a party pending the appeal" - The Ontario Court of Appeal stated that the circumstances in which an order for interim costs would be made under s. 134(2) would be rare - The civil process operated on the premise that the parties pay their own legal fees until the proceedings were over - It would take more than evidence of inability to pay one's lawyer to reverse that presumption - See paragraph 22.

Practice - Topic 8333.2

Costs - Appeals - Costs of appeal - Advance payment of costs - Respondents in an appeal of a monetary judgment applied for, inter alia, a lifting of the automatic stay and interim costs - A single judge of the Court of Appeal (Goudge, J.A.) refused to lift the stay and denied interim costs - The respondents moved to vary the denial of interim costs - They relied on s. 134(2) of the Courts of Justice Act - The Ontario Court of Appeal affirmed the denial of interim costs - In cases involving an appeal from a money judgment, a motion brought by a respondent under s. 134(2) for interim costs was tantamount to a motion to lift, at least in part, the automatic stay - Such a motion would be decided according to the principles for lifting the stay - The court held that Goudge, J.A.'s findings, which were not challenged, and his balancing of factors for refusing to lift the stay were equally applicable to the interim costs motion and there were no grounds for coming to a different conclusion - See paragraphs 19 to 26.

Practice - Topic 8333.2

Costs - Appeals - Costs of appeal - Advance payment of costs - Chester and Morris Waxman jointly ran a family business (IWS) - Morris and his family sued Chester, claiming oppression - The trial judge held, inter alia, that Chester cheated Morris out of his interest in IWS and directed that 50% of the shares of IWS be transferred to Morris - Chester still controlled IWS's affairs - Chester appealed - Morris et al. sought interim costs, claiming that Chester was using IWS's assets to fund the appeal - Section 134(2) of the Courts of Justice Act authorized a court to which a motion for leave to appeal was made or to which an appeal was taken to make an interim order that it considered "just to prevent prejudice to a party pending the appeal" - The Ontario Court of Appeal stated, inter alia, that it could not conclude that "the apparent unfairness inherent in only one of the two brothers accessing IWS resources for legal expenses amounts to 'prejudice' to the respondents in the context of the appeal" - See paragraphs 27 to 30.

Practice - Topic 8333.2

Costs - Appeals - Costs of appeal - Advance payment of costs - [See Company Law - Topic 9735 ].

Cases Noticed:

Alles v. Maurice (1992), 5 B.L.R.(2d) 146 (Ont. Gen. Div.), refd to. [para. 14].

Organ v. Barnett (1992), 11 O.R.(3d) 210 (Gen. Div.), refd to. [para. 18].

Jones v. Coxeter (1743), 26 E.R. 642, refd to. [para. 18, footnote 3].

Hill v. Hill (1988), 63 O.R.(2d) 618 (H.C.), refd to. [para. 18, footnote 3].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al. (2001), 161 B.C.A.C. 13; 263 W.A.C. 13; 208 D.L.R.(4th) 301 (C.A.), leave to appeal granted [2001] S.C.C.A. No. 629, refd to. [para. 18, footnote 3].

Falkiner et al. v. Director of Income Maintenance (Ont.) et al. (2000), 136 O.A.C. 100; 189 D.L.R.(4th) 377 (C.A.), refd to. [para. 19].

Peel (Regional Municipality) et al. v. Great Atlantic and Pacific Co. of Canada Ltd. et al. (1990), 40 O.A.C. 117; 74 O.R.(2d) 161 (C.A.), refd to. [para. 19].

Ahani v. Canada (Attorney General) (2002), 155 O.A.C. 1 (C.A.), refd to. [para. 20].

Horsefield v. Registrar of Motor Vehicles (Ont.) (1997), 102 O.A.C. 285; 118 C.C.C.(3d) 184 (C.A.), refd to. [para. 21].

CPC International Inc. et al. v. Seaforth Creamery Inc. et al. (1996), 94 O.A.C. 5 (C.A.), refd to. [para. 21].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 131(1), sect. 134(2) [para. 17].

Ontario Business Corporations Act, R.S.O. 1990, c. B-16, sect. 248(3), sect. 249(4) [para. 13].

Authors and Works Noticed:

Morgan, G., and Wurtzburg, E., A Treatise on the Law of Costs in the Chancery Division of the High Court of Justice (2nd Ed. 1882), p. 124 [para. 18, footnote 3].

Orkin, Mark M., The Law of Costs (2nd Ed. 1996) (Looseleaf), pp. 2-22 to 2-24.2 [para. 18, footnote 3].

Counsel:

Robert Harrison and Richard Swan, for the appellants;

Alan Lenczner and Lorne Silver, for the respondents.

This motion was heard on November 7, 2002, by Morden, Doherty and Feldman, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., delivered the following decision for the court on January 20, 2003.

Note by Court: After the motion was heard on November 7, the respondents sought leave to place additional material before the panel. That material and the appellants' responding material was received by December 17, 2002.