



COURT OF APPEAL FOR ONTARIO

CITATION: Novak v. St. Demetrius (Ukrainian Catholic)
    Development Corporation, 2017 ONCA 693

DATE: 20170906

DOCKET: M48213 & M48217 (C64044)

Epstein J.A. (In Chambers)

BETWEEN

Svitlana Novak

Plaintiff (Appellant)

(Responding Party on M48213/Moving Party on M48217)

and

St. Demetrius (Ukrainian Catholic) Development
    Corporation and Ukrainian Canadian Care Centre

Defendants (Respondents)

(Moving Parties on M48213/Responding Parties on M48217)

Svitlana Novak, acting in person

Mark Wiffen, duty counsel

Nicola Brankley, for St. Demetrius Ukrainian Catholic
    Development Corporation and Ukrainian Canadian Care Centre

REASONS FOR DECISION

[1]

The respondent, St. Demetrius (Ukrainian Catholic) Development
    Corporation owns and operates the other respondent, the Ukrainian Catholic Care
    Centre (the UCCC). On August 13, 2012, the appellant, Svitlana Novak, issued
    a statement of claim in this proceeding alleging that the respondents had
    wrongfully denied her a full-time position at the UCCC.

[2]

The respondents brought a motion for summary judgment. By order dated
    September 30, 2014, Belobaba J. struck all of Ms. Novaks claims except the
    claim based on an alleged pre-contractual promise to give her a full-time
    position when one came available.

[3]

On June 14, 2017, the action was dismissed after a trial by Diamond J. The
    trial judge found Ms. Novaks claim to be statute-barred and further held that
    Ms. Novak had failed to prove her claim on the merits.

[4]

On July 13, 2017, Ms. Novak served a notice of appeal.

[5]

On July 20, 2017, Diamond J. ordered Ms. Novak to pay the costs of the
    trial fixed in the amount of $110,000.

[6]

Both Ms. Novak and the respondents seek relief within Ms. Novaks
    pending appeal.

Ms. Novaks Motion for Access to Trial Exhibits

[7]

Ms. Novak asks for an order permitting her access to the original trial
    exhibits.

[8]

The request is not contested. However, the respondents do seek two
    conditions. First, they ask for a term that Ms. Novak pay all appropriate costs
    associated with her access to and copying of the exhibits. Second, the
    respondents request that access be provided only in the presence of a
    representative of the respondents. On this record, both requests are
    reasonable.

The Respondents Motion for Security for Costs

[9]

The respondents seek an order for security for costs under r. 61.06(1)
    of the
Rules of Civil Procedure

that allows a judge to order
    security for costs in an appeal where it appears that there is good reason to
    believe that the appeal is frivolous and vexatious and that the appellant has
    insufficient assets in Ontario to pay the costs of the appeal. The rule also
    gives the court broad discretion to award security for costs where it is just.

[10]

The respondents argue that there is good reason to believe that Ms.
    Novaks proposed appeal is both frivolous and vexatious.

[11]

To succeed in her appeal, Ms. Novak has to prove that the trial judge
    made a palpable and overriding error not only in concluding that she commenced
    the action out of time but also that she failed to prove her case on the
    merits.

[12]

With respect to the limitation period issue, the trial judges reasons
    contain the following at paras. 21, 22 and 27:

In my view, the trial evidence leads me to the
    conclusion that the plaintiff has failed to satisfy her evidentiary onus as
    prescribed in section 5(2) of the Act. To begin, I am satisfied that, at least
    initially, the plaintiff was led to believe by the union (and arguably the defendants)
    that her cause of action was properly subject to the grievance procedure set
    out in the Collective Bargaining Agreement. When the plaintiff learned of
    Goutars hiring, she complained to both Walpole and Lomaszewycz and received
    advice and assistance from the union to proceed with her grievance.
    Accordingly, I am satisfied that, at the outset of this matter, the plaintiff
    was not aware that a legal proceeding was the appropriate means to seek to
    remedy her loss/damage.

However, once the defendants dismissed her
    grievance, and the union took the position that they would not proceed any
    further with it, the plaintiff led no evidence whatsoever as to what had
    happened between June 2009 and April 2012. I have no facts upon which to even
    infer that the plaintiff was under a continuing mistaken belief that a legal
    proceeding was not the appropriate means to remedy her loss/damage. I do not
    know if the plaintiff received incorrect advice (whether from a lawyer, union
    or other person), nor do I know whether the plaintiff may have in fact been
    considering commencing a legal proceeding during that time period.



The provisions of the Act do not mention,
    directly or indirectly, a plaintiffs decision to commence a proceeding in the
    wrong forum as having the effect of preserving or tolling a limitation period.
    The plaintiff has failed to adduce any evidence in support of her obligation to
    rebut the statutory presumption that she knew or ought to have known that a
    legal proceeding was the appropriate means to remedy her loss/damage.

[13]

Ms. Novak points to no evidence that would support a finding that the
    limitation period may not have begun to run after June 2009 when the union
    advised all parties that it would not be taking any further action regarding
    Ms. Novaks grievance.

[14]

This is sufficient to lead me to believe that the appeal is frivolous.
    However, I add that the trial judges findings of fact in support of her
    conclusions on the merits, particularly that there is no evidence to support
    the essential argument that Ms. Novak was ever promised a full-time position
    with the UCCC, are supported by the record.

[15]

As I noted in
York University v. Markicevic,
2017 ONCA 651,
at para. 35, an appeal that
    appears to rise even to the level of "low prospect of success" or
    "unlikely to succeed" is not "frivolous
and
vexatious". To find that an appeal is frivolous and vexatious there must
    be something that supports the conclusion that the appeal is
    "vexatious" in order for security for costs to be available under r.
    61.06(1)(a).

[16]

I therefore turn to whether there is good reason to believe that the
    appeal is also vexatious in the sense that it is taken to annoy the
    respondents. In my view there is. I refer to Ms. Novaks conduct in the appeal
    including the email Ms. Novak sent to respondents counsel in which she refers
    to the court system as a circus and that includes the following:

And YOU WANT MONEY FROM ME? FOR WHAT? FOR YOUR COSTUMERS (sic)
    Lies I WILL PAY MONEy? ARE YOU Joking?

[17]

This takes me to the respondents argument that Ms. Novak does not have
    the resources to pay any costs of the appeal.

[18]

The respondents submit that there is no evidence she has any assets or
    income from employment. Moreover, they point to Ms. Novaks own evidence;
    namely the email referenced above that she sent to their counsel stating she
    (Ms. Novak) has no money, no house, not car (sic) and over $80,000 in debts. Ms.
    Novak went on to say that You will never ever gets (sic) from me any cents.

[19]

On the basis of the evidence of the respondents and of Ms. Novak herself
    there is good reason to believe that Ms. Novak has insufficient assets to pay
    the costs of the appeal.
[1]

[20]

I therefore exercise my discretion and order security for costs.

The Amount

[21]

The respondents estimate the costs of defending the appeal to be
    approximately $23,000, on a partial indemnity scale including disbursements and
    HST and ask for an order in that amount.

[22]

An appeal from a trial that took seven days that raises these factual
    issues will be expensive. I am of the view that the amount of security for
    costs sought is reasonable.

DISPOSITION

[23]

I therefore order Ms. Novak access to the original trial exhibits at her
    cost and in the presence of a representative of counsel for the respondents.

[24]

I also order Ms. Novak to post security for costs in the amount of
    $20,000. The security ordered shall be provided within 45 days of the date of
    the release of these reasons in a form satisfactory to counsel for the
    respondents, failing which a judge of this court may dismiss this appeal on a
    motion.

[25]

The respondents are entitled to their costs of their motion (I award no
    costs of Ms. Novaks motion regarding the exhibits) in the amount of $2,500,
    inclusive of disbursements and HST.

Gloria Epstein J.A.





[1]

In my view an order for security for costs under r. 56.01(c)
    would also be warranted.


