



COURT OF APPEAL FOR ONTARIO

CITATION: Best v. Cox, 2014 ONCA 167

DATE: 20140304

DOCKET: M43185, M43214 and M43229 (C57123)

MacPherson, Gillese and Pardu JJ.A.

BETWEEN

Donald Best

Plaintiff
    (Appellant/Moving Party/Responding Party)

and

Richard Ivan Cox, Gerard Cox, Alan Cox, Philip
    Vernon Nicholls, Eric Ashby Bentham Deane, Owen Basil Keith Deane, Marjorie Ilma
    Knox, David Simmons, Elneth Kentish, Glyne Bannister, Glyne B. Bannister,
    Philip Greaves A.K.A. Philip Greaves, Gittens Clyde Turney, R.G. Mandeville
    & Co., Cottle, Catford & Co., Keble Worrell Ltd., Eric Iain Stewart
    Deane, Estate of Colin Deane, Lee Deane, Errie Deane, Keith Deane, Malcolm
    Deane, Lionel Nurse, Leonard Nurse, Edward Bayley, Francis Deher, David Shorey,
    Owen Seymour Arthur, Mark Cummins, Graham Brown, Brian Edward Turner, G.S.
    Brown Associates Limited, Gold Barbados Inc.,
Kingsland
    Estates Limited
, Classic Investments Limited, Thornbrook International
    Consultants Inc., Thornbrook International Inc., S.B.G. Development
    Corporation, The Barbados Agricultural Credit Trust, Phoenix Artists Management
    Limited, David C. Shorey and Company, C. Shorey and Company Ltd., First
    Caribbean International Bank (Barbados) Ltd., PricewaterhouseCoopers
    (Barbados), Attorney General of Barbados, The Country of Barbados, and John
    Does 1-25, Philip Greaves, Estate of Vivian Gordon Lee Deane, David Thompson,
    Edmund Bayley, Peter Simmons, G.S. Brown and Associates Ltd., GBI Golf (Barbados)
    Inc., Owen Gordon Finlay Deane, Classic Investments Limited and Life of
    Barbados Limited C.O.B as Life of Barbados Holdings, Life of Barbados Limited,
    David Carmichael Shorey,
PricewaterhouseCoopers East
    Caribbean Firm
, Veco Corporation, Commonwealth Construction Canada Ltd.,
    and Commonwealth Construction Inc.

Defendants
    (
Respondents/Responding Parties/Moving Parties
)

Paul Slansky, for the appellant

Gerald L.R. Ranking, for the respondent
    PricewaterhouseCoopers East Caribbean Firm

Lorne S. Silver, for the respondent Kingsland Estates
    Limited

Heard: February 27, 2014

On motion to review single judge orders made November 14,
    2013, December 3, 2013 and December 12, 2013 on the appeal from the judgment of
    Justice J. Bryan Shaughnessy of the Superior Court of Justice, dated May 3,
    2013.

ENDORSEMENT

[1]

Three motions to review orders of a single judge of this court, pursuant
    to s. 7(5) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43, are
    before this panel.

[2]

The appellant Donald Best brings two motions.  The respondents
    PricewaterhouseCoopers East Caribbean Firm (PwC) and Kingsland Estates
    Limited (Kingsland) bring one motion.

[3]

The underlying appeal is scheduled to be argued on June 2, 2014 with a
    time allocation of three hours.

The appellants motions

(1)

Blair J.A.s decision dated December 12, 2013

[4]

The appellant seeks an order setting aside the decision of Blair J.A.
    dated December 12, 2013, directing that the appellants motions brought under
    s. 7(5) of the
Courts of Justice Act
be heard today, February 27, 2014. 
    The appellant contends that these motions should be adjourned and heard
    together with the appeal on June 2, 2014.

[5]

We disagree.  The appellants principal motion seeks the removal of the
    respondents counsel from the appeal on the grounds of professional misconduct,
    including allegations of criminal obstruction of justice, abuse of process,
    inappropriate dissemination of information, and fraud.

[6]

In our view, it makes no sense to adjourn the removal of counsel motion
    to the date set for the appeal hearing.  Such a result would be prejudicial to
    the respondents and wasteful of this courts time and resources.  If the
    appellants motion is heard today and granted, the respondents will have ample
    time to retain new counsel for the appeal hearing in June.  If the motion is
    dismissed, all parties can proceed to the June hearing knowing that there is no
    chance of it being derailed on the actual hearing date by a motion seeking
    removal of the respondents counsel.  In short, Blair J.A.s order makes
    perfect sense.

[7]

The appellants motion is dismissed.

(2)

Feldman J.A.s decision dated November 14, 2013

[8]

The appellant seeks an order setting aside the decision of Feldman J.A.
    dated November 14, 2013, dismissing the appellants motion to remove both
    respondents counsel from the record and fixing costs, on a full indemnity
    scale, at $24,000 for PwC and $48,000 for Kingsland.

[9]

On the basis of the original record on this motion, there is no basis
    for making the order now requested.  We explicitly agree with Feldman J.A.s analysis
    and disposition.

[10]

The
    appellant has filed fresh evidence.  In his motion record relating to the fresh
    evidence, the appellant asserts:

The Appellant has recently discovered evidence that one of the
    most important pieces of evidence relied upon below, an affidavit to obtain
    substituted service and ratification of service, sworn by a private
    investigator, Jim Van Allen in October 2009, was a product of criminal and/or
    quasi-criminal misconduct.  It is alleged that Mr. Ranking, and likely Mr.
    Silver, Respondents Counsel, were aware of this situation and were thereby
    parties to these offences.



The Appellant was told by the O.P.P. that Van Allen was a
    former O.P.P. police officer who had retired in 2008.  What has recently been
    discovered is that this is a lie.  In fact, Van Allen was a serving police
    officer, with likely official police involvement in this very case, until 2010.

[11]

We
    would not admit the fresh evidence.  It suffers from an overwhelming problem:
    it is utterly irrelevant to Feldman J.A.s decision which was explicitly
    anchored in recognition that Shaughnessy J. was the case management judge for
    several years; accordingly, said Feldman J.A., [c]onsiderable deference is
    owed to his findings.

[12]

The
    entire thrust of the fresh evidence is to attack Mr. Van Allens affidavit in
    support of the respondents attempt to obtain substituted service for the
    appellant because his whereabouts were difficult to ascertain.  On this point,
    two crucial observations must be made.  First, Shaughnessy J. did not rely on
    substituted service or the Van Allen affidavit in his contempt reasons which
    form the subject matter of the appeal.  Second, the appellant himself
    confirmed, in an affidavit and during cross-examination on his affidavits, that
    he obscured his residential address.  In an affidavit, the appellant deposed
    that I have used unlisted phone numbers and post box offices to conceal my
    home address.  In the cross-examination, he said: Sir, I have had and have
    used various addresses that are not my residence address since 76, 78,
    somewhere around there.

[13]

In
    short, the proposed fresh evidence is irrelevant to the appeal and, therefore,
    would have been irrelevant to the disposition of the motion before Feldman J.A.

[14]

The
    appellants motion is dismissed.

The respondents motion

(3)

Feldman J.A.s decision dated December 3, 2013

[15]

The
    respondents seek an order setting aside or varying the decision of Feldman J.A.
    dated December 3, 2013, which did not impose a date for the appellant to pay
    the costs ($72,000) she had awarded to the respondents in her earlier decision
    on November 14, 2013.

[16]

In
    her November 14, 2013 endorsement, Feldman J.A. said:

The appellant, through his counsel, has made serious
    allegations of deliberate misconduct against the two counsel for the
    respondents both in writing and in open court in the face of a finding to the
    contrary.  In my view, that tactic requires the court to express its
    condemnation by awarding costs on the full indemnity scale.  Costs are fixed in
    the amount of $24,000 for PricewaterhouseCoopers and $48,000 for Kingsland, all
    inclusive.

[17]

Following
    the release of this endorsement, the appellant brought another motion seeking
    an order varying the costs order made by Justice Feldman to costs in the
    cause.

[18]

In
    an endorsement dated December 3, 2013, Feldman J.A. said:

[T]he concern of the appellant is that he says he is unable to
    pay the costs ordered against him on the removal motion.  He is concerned that
    if he is unable to pay before the hearing of the appeal, then he will not be
    able to have his appeal against the contempt order heard and will therefore be
    re-incarcerated for contempt.

The respondents have drafted the order to make those costs
    payable forthwith.  That condition was not part of my reasons.  The appeal
    has been scheduled for January 14, 2014.  Although the respondents may ask the
    panel not to hear the appeal if the costs are not paid by then, that condition
    is not part of my order.

[19]

The
    appeal is now scheduled for June 2, not January 14, 2014.  The respondents say
    that the expression of condemnation in Feldman J.A.s November 14, 2013
    decision reflected in her award of $72,000 in costs on a full indemnity basis
    will be lost if the appellant does not have to pay these costs before the
    appeal hearing.  The respondents also assert that there is no evidence that the
    appellant is impecunious; on the contrary, the record established that he has
    been able to retain, and pay, two senior lawyers throughout these proceedings.

[20]

We
    agree with both of these submissions.  The reality is that, even after Feldman
    J.A.s two decisions and Blair J.A.s decision, the appellant continues to
    bring motions seeking to remove the respondents counsel from the record and
    trying to postpone such motions to the scheduled appeal hearing in June, a
    procedure which makes no sense.  Moreover, there is no evidence suggesting that
    the appellant is impecunious; indeed, the appellant has never personally made
    such an assertion under oath.

[21]

The
    respondents motion is granted.  The appellant shall pay the $72,000 costs
    ordered by Feldman J.A. in her November 14, 2013 decision by Tuesday, April 1,
    2014, failing which the Registrar is directed to dismiss the appeal.

Costs

[22]

The
    respondents are entitled to their costs of the three motions.  The costs of the
    appellants two motions should be on a full indemnity scale; the costs of the
    respondents motion should be on a partial indemnity scale.  We fix these costs
    at $60,000 for each respondent, inclusive of disbursements and HST.  These
    costs must also be paid by April 1, 2014, failing which the appeal cannot
    proceed.

J.C. MacPherson J.A.

E.E. Gillese J.A.

G. Pardu J.A.


