



COURT OF APPEAL FOR ONTARIO

CITATION: 2363523 Ontario Inc. v. Nowack, 2018 ONCA 286

DATE: 20180321

DOCKET: M48928 (C63990)

Brown J.A. (Motion Judge)

BETWEEN

2363523 Ontario Inc.

Plaintiff (Respondent/Responding Party)

and

Steven Nowack
, Melissa Frishling, John Doe
    1 to 10, Jane Doe 1 to 10 and Doe Corporations 1 to 10

Defendants (
Appellant
/
Moving Party
)

Paul Slansky, for the moving party

Norman Groot, for the responding party

Heard: March 20, 2018

ENDORSEMENT

[1]

The appellant, Steven Nowack, is appealing the
    order of Dunphy J. dated June 30, 2017, which imposed a further term of
    imprisonment of 21 days for what the parties call Contempt No. 2. In that
    appeal, Hoy A.C.J.O. made an order dated December 6, 2017 requiring the
    appellant to post security for costs of $10,000 within 30 days (the Order).

[2]

The appellant seeks an extension of time to file
    a notice of motion for a panel review of the Order pursuant to s. 7(5) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43 (the 
CJA
) and Rule 61.16(6) of the
Rules of Civil Procedure
. The respondent vigorously opposes the motion.

[3]

The appellant served respondents counsel with a
    notice of motion on January 10, 2018. However, Rule 61.16(6) required the
    service and filing of the notice of motion within four days after the Order was
    made, that is by December 10, 2017.

[4]

Motions for the extension of time to file a
    court document require looking at several factors. Most importantly, they
    require looking at the justice of the case in all the circumstances:
Paulsson
    v. University of Illinois
, 2010 ONCA 21 (In Chambers), at para. 2.

[5]

In the present case, a combination of factors
    leads me to grant the appellant an extension of time:

(i)

I accept that the appellant formed an intention to seek a review of
    the security for costs Order shortly after it was made. The appellant has
    sought to review most orders made in this lengthy proceeding, so I have no
    doubt he quickly formed an intention to review the Order. That would be
    consistent with his usual habit;

(ii)

The appellant moved with some dispatch to serve and file a notice of
    motion to review, albeit outside the very short four-day service window in the
Rules
;

(iii)

The underlying appeal engages the liberty of the subject;

(iv)

Two judges of this court have described the merits of the appeal
    from the order of Dunphy J. as not frivolous and having merit: Decision of
    Hoy A.C.J.O., at paras. 18 and 19; and

(v)

Although orders for security for costs are discretionary in nature
    and usually entitled to deference, a panel of this court recently reversed an
    order for security for costs because the chambers judge had erred in principle
    in determining the justness of the order sought:
Yaiguaje v. Chevron
    Corporation
, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21. It therefore is
    difficult to predict the degree of deference that a panel will afford to any
    particular order for security for costs made by a single judge. As a result, I
    cannot assess the merits of the appellants desired panel review of the Order
    with any degree of precision.

[6]

However, Rule 3.02(1) states that the court may
    extend any prescribed time on such terms as are just. As a general practice,
    motions to a panel to review an order of a single judge of this court are heard
    orally. Given the history of this proceeding, I am concerned that following the
    general practice of an oral hearing would result in undue delay in scheduling
    and then hearing the motion. Consequently, I direct that the appellants review
    motion be heard by a panel of this court in writing.

[7]

In fashioning this remedy, I am influenced by
    the most unfortunate, but increasing, practice of parties seeking panel reviews
    of single judge decisions pursuant to s. 7(5) of the
CJA
. That provision, quite unintentionally, is now fuelling the
    emergence of a motions culture in this court. Decisions of single judges on the
    simplest of procedural matters, such as the extension of time, now prompt a
    further motion demanding an internal appeal of the decision to a panel.
    Motion time is heaped upon motion time, which delays hearing an appeal on its
    merits.

[8]

As a result, the terms that I am imposing in
    granting the appellant the indulgence of an extension of time are designed to
    bring the issue of the finality of the Order to a conclusion by the end of next
    month. Directing a motion in writing will ensure that result; leaving it to the
    parties to schedule an oral hearing only invites further delay.

[9]

The appellant has had ample time to prepare his
    materials for a
CJA
s. 7(5) review of the
    Order. Accordingly, the schedule for filing materials  with sufficient copies
    for the panel in accordance with the
Rules
 is as follows:

(i)

The appellant shall serve and file all materials for his
CJA
s. 7(5) review of the Order no later than Thursday, March 29, 2018;

(ii)

The appellant may not file any further materials after March 29,
    2018;

(iii)

If the appellant fails to file his materials by 4:30 p.m. on
    Thursday, March 29, 2018, I direct the Registrar to dismiss his motion for a
    panel review as abandoned;

(iv)

The respondent shall serve and file all responding materials no
    later than April 11, 2018; and

(v)

The motion materials shall be placed before a civil panel for its consideration
    during the week of April 23, 2018.

[10]

The costs of this motion are reserved to the panel hearing the
    motion to review the Order.

David Brown J.A.


