



COURT OF APPEAL FOR ONTARIO

CITATION: Bukshtynov v. McMaster University, 2018 ONCA 1006

DATE: 20181207

DOCKET: M49680 / M49816 (C65552)

Huscroft J.A. (Motions Judge)

BETWEEN

Vladislav Bukshtynov,
    Katerina Bukshtynova and Ksenia Bukshtynova, a minor under the age of 18 years,
    by her Litigation Guardian, the said Vladislav Bukshtynov

Responding Parties (Appellants)

and

McMaster University, Flying Angels Running Club,
    George Kerr, Hwang Lee and/or John Doe Runner

Moving Parties (Respondents)

Bonnie Roberts Jones, for the appellants (responding
    parties)

Alexander B. Paul and Kaleigh Sonshine, for the
    respondent (moving party), McMaster University

Bradley M. Remigis, for the respondents (moving
    parties), Flying Angels Running Club, George Kerr and Hwang Lee

Heard: December 6, 2018

REASONS FOR DECISION

[1]

The respondents bring motions for an order requiring the appellant
    Vladislav Bukshtynov to post security for costs incurred and expected to be
    incurred on the appeal.

[2]

The motion is granted for the reasons that follow.

Background

[3]

The appellant Vladislav Bukshtynov was injured while running on an
    indoor track at McMaster University. The appellant fell after coming into
    contact with a member of the Flying Angels Running Club and required emergency
    surgery to repair his shoulder. He sued the respondents, alleging negligence
    and breach of statutory duty.

[4]

Following a three-week trial, the jury returned a verdict that McMaster
    University and Hwang Lee were not liable. The Flying Angels Running Club and
    George Kerr were found 60% liable, while the appellant was found 40%
    contributorily negligent.

[5]

The appellant was awarded damages of $101,885. The appellant was
    required to pay McMaster Universitys costs of $95,000, and $69,156 for the
    costs of the Running Club. The Running Club was required to pay costs of
    $43,108 to the appellant.

Security for trial costs

[6]

McMaster University sought security for costs prior to the trial. The
    motion was settled on the basis that the appellant would purchase After the
    Event insurance covering $100,000 in costs.

[7]

Prior to trial, the insurance provider suspended the appellants
    insurance coverage when he refused to accept a settlement offer pursuant to r. 49
    of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. McMaster then
    brought a second motion for security for costs, and this was settled on the
    basis that the appellant agreed to post $86,161.37 as security.

The positions of the parties

[8]

McMaster University takes the position that the appeal is frivolous and
    vexatious within the meaning of r. 61.06(1)(a). In the alternative, it says
    that security for costs should be awarded under r. 61.06(1)(b), on the basis
    that the appellant is ordinarily resident outside of Ontario, in Florida; the
    appeal has no merit; and the appellant is not impecunious. The Running Club,
    George Kerr and Hwang Lee support McMaster Universitys position and emphasize
    that the appellant cannot demonstrate that his appeal has a good chance of
    success.

[9]

The appellant argues that his appeal cannot be said to be frivolous, in
    the sense that it is readily recognizable as devoid of merit with little
    prospect of success, or vexatious, in that it is brought for some other
    improper purpose. The appellant argues, further, that although he is ordinarily
    resident outside of Ontario, it would not be just to impose security for costs
    because his appeal has a good chance of success and it would be financially
    difficult or impossible for him to post security for costs. The appellant does
    not assert impecuniosity.

Discussion

[10]

I
    see no basis to grant security for costs under r. 61.06(1)(a). It cannot be
    said that the appeal is frivolous and vexatious. The fact that the jury
    returned a zero liability verdict in favour of McMaster and Hwang Lee does not
    demonstrate that the appeal is frivolous and vexatious. Nor do I regard the
    appellants conduct during the litigation  in particular, his unwillingness to
    accept what the trial judge considered to be reasonable settlement offers and
    his refusal to engage in any midtrial pretrial  as support for the conclusion
    that the appeal is frivolous and vexatious. Nothing in the material before me
    rises to the high standard required to establish that an appeal is frivolous
    and vexatious.

[11]

Turning
    to r. 61.06(1)(b), this court discussed the overarching approach to be taken in
Yaiguaje v. Chevron Corporation
,
    2017 ONCA 827, 138 O.R. (3d) 1,
at paras. 24-25:

Courts in Ontario have attempted
    to articulate the factors to be considered in determining the justness of
    security for costs orders. They have identified such factors as the merits of
    the claim, delay in bringing the motion, the impact of actionable conduct by
    the defendants on the available assets of the plaintiffs, access to justice
    concerns, and the public importance of the litigation. See:
Hallum v.
    Canadian Memorial Chiropractic College
(1989), 70 O.R. (2d) 119 (H.C.);
Morton
    v. Canada (Attorney General)
(2005), 75 O.R. (3d) 63 (S.C.);
Cigar500.com
    Inc. v. Ashton Distributors Inc.
(2009), 99 O.R. (3d) 55 (S.C.);
Wang
    v. Li
, 2011 ONSC 4477 (S.C.); and
Brown v. Hudsons Bay Co.
, 2014
    ONSC 1065, 318 O.A.C. 12 (Div. Ct.).

While this case law is of some assistance,
    each case must be considered on its own facts. It is neither helpful nor just
    to compose a static list of factors to be used in all cases in determining the
    justness of a security for costs order. There is no utility in imposing rigid
    criteria on top of the criteria already provided for in the Rules. The correct
    approach is for the court to consider the justness of the order holistically,
    examining all the circumstances of the case and guided by the overriding
    interests of justice to determine whether it is just that the order be made.

[12]

In
    my view, having regard to the relevant circumstances, an order for security for
    costs is in the interests of justice in this case.

[13]

I
    begin with the fact that the appellant is not a resident of Ontario. He resides
    in Florida. That is not determinative, but it is significant.

[14]

Secondly,
    his appeal does not appear to be strong. It concerns evidentiary decisions made
    by the trial judge about the admission of hearsay evidence and the exclusion of
    correspondence from McMaster University to the Ministry of Labour, to which it
    was required to report Mr. Bukshtynovs accident. Those decisions are entitled
    to deference and are difficult to disturb on appeal.

[15]

The
    appellant also argues that the trial judge erred in instructing the jury, in
    particular concerning the
Occupiers Liability Act
, R.S.O. 1990, c. O.2,
and loss of future
    income. Although these arguments allege legal errors that are subject to review
    for correctness, they do not appear to me to be strong.

[16]

Thirdly,
    the appellant does not claim to be impecunious. On the scant evidence before
    me, I am not satisfied that costs of the appeal is a matter of financial
    hardship for the appellant. The appellant says that it will be financially
    difficult or impossible for him to raise the money required to post security
    for costs, yet he lists an annual joint income of just under USD$140,000, from
    which he manages to fund his daughters education at a cost of $57,000 annually.
    The appellant attests that he had to open four credit lines in order to fund
    the order for security for trial costs, but he has not provided anything close
    to a complete financial picture.

[17]

In
    my view, it is significant that the appellant agreed to post security for costs
    for the trial. His circumstances have not changed so as to require a different
    result for the appeal. Indeed, security sought for the appeal is much less than
    the amount the appellant posted for the trial.

[18]

I
    do not accept that it is appropriate to deny McMaster University security for
    costs simply because it is a large enterprise. The circumstances of this case
    have nothing in common with
Chevron
.

[19]

In
    all of the circumstances of this case, it is in the interests of justice to
    order security for costs. That said, in my view the amounts sought by the
    respondents  $25,000 each  are excessive. I would reduce the amounts to
    $15,000 on the McMaster University motion and $10,000 on the Running Club
    motion.

Disposition

[20]

The
    appellant is ordered to post security for costs of $15,000 on the McMaster
    University motion and $10,000 on the Running Club motion.

[21]

McMaster
    University is entitled to its costs on this motion in the agreed amount of
    $5,000 and the Running Club is entitled to costs in the agreed amount of
    $2,500, both amounts inclusive of taxes and disbursements.

Grant
    Huscroft J.A.


