



COURT OF APPEAL FOR ONTARIO

CITATION: Wiseau Studio, LLC v. Harper, 2021
    ONCA 504

DATE: 20210707

DOCKET: M52604 (C68580)

Fairburn
    A.C.J.O. (Motions Judge)

BETWEEN

Wiseau
    Studio, LLC and Tommy Wiseau d.b.a. Wiseau-Films

Plaintiffs/Defendants
    by Counterclaim

(Appellants
/
Moving Parties)

and

Richard
    Harper, Fernando Forero McGrath, Martin Racicot d.b.a. Rockhaven Pictures, Room
    Full of Spoons Inc., Parktown Studios Inc. and Richard Stewart Towns

Defendants/Plaintiffs by Counterclaim

(Respondents/Responding Parties)

Daniel Brinza, for the moving parties

Meredith Bacal and Matthew Diskin, for the responding
    parties

Heard: July 7, 2021 by video conference

ENDORSEMENT

[1]

This is a motion pursuant to s. 65.1(1) of the
Supreme
    Court Act
, R.S.C. 1985, c. S-26, seeking a stay of a decision of this
    court, which decision requires the moving parties to post security for costs of
    their appeal and the costs awarded from trial by no later than 4:00 p.m. today,
    failing which the
[responding parties]
may move
ex parte
in writing before [that] panel for an
    order dismissing the appeal:
Wiseau Studio, LLC v. Harper
, 2021 ONCA
    396, at para. 10.

[2]

The request for a temporary stay of this courts
    panel decision is predicated on the moving parties efforts to obtain leave to
    appeal to the Supreme Court of Canada.

[3]

For the following reasons, the moving parties motion
    to stay the panel decision is dismissed.

[4]

First, there is no serious issue raised by the moving
    parties application for leave to appeal to the Supreme Court.

[5]

The order of Thorburn J.A. required the posting
    of security for costs of the appeal and the costs awarded at trial:
Wiseau
    Studio, LLC v. Harper
, 2021 ONCA 31, at para. 41. That order was upheld by
    a panel of this court on June 2, 2021, with reasons released on June 7, 2021.
    As the panel noted, the Thorburn J.A. decision was a discretionary one based
    upon the record before her at that time. Moreover, the moving parties failed to
    justify why fresh evidence should be admitted on review. As such, according to
    the panel, at para. 7 of their reasons, the review turned on the fact that it
    was reasonably open to [Thorburn J.A.] in the exercise of her discretion to
    make the order she made, specifically as it related to security for costs of
    both the trial and appeal pursuant to r. 61.06(1) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194. I see no error in that approach.

[6]

It is largely the facts that drove the final
    decision about the posting of costs in this case. Those facts are well
    documented in Thorburn J.A.s decision, most notably at para. 10, and I will
    not repeat them here. Needless to say, as reflected in Thorburn J.A.s review
    of the record below, there had been findings regarding the fact that the moving
    parties (normally resident outside of Ontario) had put up roadblocks to
    scheduling at almost every attendance and engaged in other improper acts that
    interfered with the efficient course of the litigation.

[7]

For purposes of this motion, and the first
    question on the stay application pertaining to whether there is a serious
    issue to be dealt with, the moving parties have failed to demonstrate that
    there is a an issue of public or national importance raised in the Notice of
    Application for Leave to Appeal to the Supreme Court of Canada that could
    possibly rise to the level of meeting the stringent requirements of s. 40(1)
    of the
Supreme Court Act
:
Livent Inc. v. Deloitte & Touche
,
    2016 ONCA 395, 131 O.R. (3d) 784, at para. 7. This is particularly true given
    the completely discretionary nature of the original order in this case, as
    upheld by the panel on review. It is well settled that these types of
    discretionary orders are owed deference on review:
Yaiguaje v. Chevron
    Corporation
, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 20. This is even
    more the case when discretionary orders, such as the one in dispute here, are
    heavily predicated on fact-finding.

[8]

The second issue to be considered is whether the
    moving parties will suffer an irreparable harm if the stay is not imposed:
Deloitte
,
    at para. 4. They will not.

[9]

Having reviewed the evidence on this motion, at
    its highest, there is a suggestion by the moving parties, as reflected in the
    affidavit of Tommy Wiseau, dated June 28, 2021, that he does not have
    sufficient funds, or access to sufficient funds, to meet the demands of this
    courts order. I am not satisfied that this evidence reflects anything more
    than, as the responding parties put it, a request to imagine the irreparable
    harm that may flow. While there is discussion in Mr. Wiseaus affidavit about
    the general financial implications of the COVID-19 pandemic in the United
    States and on the entertainment industry in particular, and a suggestion that
    it is impossible for
[Mr. Wiseau]
to be able to obtain liquidity on a short notice, there are no
    specifics given about why that is so. This is nothing more than a request to
    trust Mr. Wiseau. In light of the history of this matter, cogent evidence would
    be required to satisfy me that the security for costs required as a result of
    this courts decision cannot be posted.

[10]

In any event, even if the court was inclined to
    extend the trust requested, the responding parties have provided an in-writing
    undertaking that alleviates any harm that may flow to the moving parties pending
    resolution of the application for leave to appeal to the Supreme Court. That
    correspondence, dated July 4, 2021, is written by counsel to the responding
    parties, Matthew Diskin, and includes the following undertaking:

Further to your July 7 motion in the Wiseau
    matter, our clients and my firm undertakes that any funds recovered as relates
    to the cost awards and judgments in this matter will be held in trust, pending
    the leave to appeal motion to the Supreme Court of Canada. If leave is granted,
    and the order of the panel upholding security for costs of the appeal and
    judgment reversed, then such funds would remain in trust pending the hearing of
    the appeal of Justice Schabas judgment. If leave is not granted or if the
    proposed appeal is dismissed, then such funds would be released.

The point is that there is no need for a stay
    motion in view of the foregoing undertaking. My position is, and will be before
    the Court of Appeal on July 7, that the stay motion should be dismissed on
    various bases, but that to the extent there is any question, it is entirely
    resolved by the undertaking.

[11]

Even if there could be harm flowing from
    dismissing this stay motion, the potential for harm has been significantly
    mitigated by the responding parties by way of this undertaking. In essence, any
    recovered funds will be held in trust pending the decision on the leave to
    appeal application before the Supreme Court of Canada. Of course, were the moving
    parties to be successful on that leave application, they could make a request
    of the Supreme Court of Canada to grant any necessary, interim remedies deemed
    necessary.

[12]

Third, and finally, I will address whether the
    balance of convenience favours a stay:
Deloitte
, at para. 4.

[13]

As reflected in Thorburn J.A.s reasons, at
    para. 7, this litigation commenced with an
ex parte
injunction that
    restrained the release of the documentary that is at the heart of this dispute.
    Unbeknownst to the court that granted that injunction, at the same time that
    the
ex parte
motion was brought by the moving parties, the parties
    were negotiating about the documentarys release.

[14]

I pause to note that in a clearly different
    vein, but carrying the same element of surprise, during the hearing of this motion,
    the responding parties came to know for the first time, through a public
    website, that just yesterday the moving parties sued them in Federal Court. The
    responding parties have not yet seen the Statement of Claim because it has not
    yet been served on them. When asked about whether this was true, the moving
    parties counsel acknowledged that in fact this claim had been filed in court yesterday
    without any notice to the responding parties, suggesting that it was really
    nothing more than a cheap insurance policy to keep the moving parties
    options open going forward.

[15]

It falls beyond the scope of the motion before
    me to comment upon that turn of events, other than to observe this behaviour appears
    somewhat consistent with many of the factual observations recounted by and made
    by Thorburn J.A. in her reasons.

[16]

In any event, focusing on the balance of
    convenience here, I accept what Thorburn J.A. sets out in her reasons, at para.
    34, that there is evidence that the responding parties will suffer prejudice if
    the order of this court to post security for costs is not granted (and
    therefore if it is stayed). That prejudice includes the fact that, as noted by
    multiple case management judges in the past and the trial judge, Mr. Wiseau
    seems to be engaging in tactical attempt(s)  to delay and obstruct the
    release of Room Full of Spoons.

[17]

Conversely, I see no compelling evidence of harm
    to the moving parties, other than the fact that they may not be able to post
    the security for costs today. Of course, the panel hearing the review from
    Thorburn J.A.s order gave them one month to do so. I am hearing this motion
    mere hours before the deadline.

[18]

In all of these circumstances, including the responding
    parties written undertaking, the overarching consideration involving the
    interests of justice leads me to conclude that this motion to stay the panel
    decision of this court should be dismissed.

[19]

If the moving parties do not comply with this
    courts panel decision, and the responding parties decide to move
ex parte
in writing before
[
the
]
panel for an order dismissing the appeal,
    the responding parties must include these reasons and their undertaking as part
    of the record to be placed before the panel on that
ex parte
application.

Disposition

[20]

The moving parties motion to stay the panel
    decision of this court is dismissed.

[21]

Costs submissions will be heard in writing.

[22]

The responding parties may provide written costs
    submissions of no more than two pages no later than July 9, 2021. The moving
    parties may respond with written costs submissions of no more than two pages no
    later than July 13, 2021.

Fairburn
    A.C.J.O.


