



COURT OF APPEAL FOR ONTARIO

CITATION: 9383859 Canada Ltd. v. Navaratnam, 2021 ONCA 210

DATE: 20210401

DOCKET: M52312, M52313, and M52314 (C68695)

Paciocco J.A. (Motions
    Judge)

BETWEEN

9383859 Canada Ltd.

Plaintiff
(Appellant/Responding Party)

and

Kubeskaran Navaratnam,
Ronald Lachmansingh and Marilyn Reiter Nemetz

Defendants
(Respondents/Moving Parties)

and

Musab Saeed, Mian Imran
    Saeed,
Nirmalarajah Gunarajah, Viveka Ramesh, Mohinder Sansoye,
Ramesh Senthilnathan

Defendants

M. Scott Martin, for the moving party Marilyn Reiter
    Nemetz (M52312)

James R.G. Cook, for the moving party Kubeskaran
    Navaratnam (M52313)

Bronwyn M. Martin, for the moving party Ronald
    Lachmansingh (M52314)

Sandeep Singh, as representative of the responding party

Heard: March 29, 2021 by video conference

ENDORSEMENT

OVERVIEW

[1]

The moving parties, Kubeskaran Navaratnam, Ronald Lachmansingh, and
    Marilyn Reiter Nemetz, each bring motions pursuant to r. 61.06(2) to dismiss an
    appeal brought by 9383859 Canada Ltd., (938) from the August 17, 2020
    decision of C.J. Brown J. (the Motion to Strike Order) on the basis that 938
    has failed to comply with the order for security for costs made by Pepall J.A.
    on December 11, 2020 (the Security for Costs Order). The Security for Costs
    Order required 938 to post security for costs of the appeal in the sum of
    $15,000 by January 22, 2021. It is not disputed that 938 has not paid this
    amount into court.

[2]

For reasons that follow, it is in the interests of justice to grant the
    moving parties motions and dismiss 938s appeal, bearing court file number
    C68695 (the Main Appeal).

MATERIAL FACTS

[3]

The actions underlying the instant motions arose from a failed real
    estate transaction and assignment of an agreement of purchase and sale (the
    APS). 938 was the original purchaser and assignor of the APS.

[4]

More than two years after the deal fell through, 938 sued the moving
    parties, who are all lawyers involved in the failed transaction or related
    litigation. None of the moving parties acted for 938 in connection with the
    APS: Ms. Reiter Nemetz acted for the vendor; Mr. Navaratnam acted for the
    assignee, Musab Saeed, on the transaction; and Mr. Lachmansingh acted for Mr.
    Saeed in related litigation

The Motion to Strike Order

[5]

On August 17, 2020, pursuant to rule 21.01(1)(b), C.J. Brown J. issued
    the Motion to Strike Order, which dismissed 938s actions, without leave to
    amend, as disclosing no reasonable cause of action. In her reasons, C.J. Brown
    J. found,
inter

alia
, that none of the moving parties
    owed a legal duty to 938 that could support legal action, that Mr. Lachmansingh
    had absolute immunity to the claims made against him, and that all the actions
    were statute-barred and an abuse of process.

[6]

As indicated, 938 has appealed the Motion to Strike Order to this court
    in the Main Appeal.

The Security for Costs Order

[7]

On December 11, 2020, Pepall J.A. granted leave to 938s sole director
    and shareholder, Sandeep Singh, to represent 938 on the Main Appeal. She also
    issued the Security for Costs Order, which required 938 to post security in the
    amount of $5,000 per lawyer before January 22, 2021

The panel review and extension motions

[8]

Rather than comply, 938 attempted to file materials for a panel review of
    the Security for Costs Order but failed to do so within the required four-day
    period. 938 then brought a motion for an order extending the time to file
    materials for the panel review.

[9]

On March 9, 2021, van Rensburg J.A. denied the motion for extension of
    time as contrary to the interests of justice (the Extension Denial Decision).
    On March 22, 2021, 938 filed a request for a panel review of the Extension
    Denial Decision, evidently in hopes of re-opening the door to persuade a panel
    to set aside or vary the Security for Costs Order.

[10]

While
    938 is seeking this domino of rulings, the date set for the Main Appeal is
    approaching; it is currently scheduled to be heard on May 19, 2021.

ANALYSIS

[11]

In
Virc v. Blair

(2016), 134 O.R. (3d) 795 (C.A.), at paras. 4-5, Juriansz
    J.A. agreed with the proposition that [o]nce a failure to comply with an order
    to pay security for costs is established, the onus then shifts to the
    appellant to provide compelling reasons why dismissal is not in the interests
    of justice.

[12]

It
    is not disputed that 938 has failed to comply with the Security for Costs
    Order. I find that 938 has not provided compelling reasons why dismissal is not
    in the interests of justice. Indeed, I am satisfied in the circumstances of
    this case that it is positively in the interests of justice to dismiss the Main
    Appeal.

[13]

As
    Juriansz J.A. recognized in
Virc
, at para. 5, discretion under r.
    61.06(2) should be exercised in light of the particular subsection of r.
    61.06(1) under which the initial order was made:

Different determinations justify an order for security for
    costs under each of rule 61.06(1)(a), (b) and (c). In paying careful attention
    and deference to the initial decision, a judge hearing a motion under subrule
    (2) should be mindful of the different considerations that applied in the
    particular case.

[14]

The
    Security for Costs Order at issue was made pursuant to rr. 61.06(1)(b) and
    56.01(1)(d). In her endorsement, Pepall J.A. found there was good reason to
    believe that if the moving parties were successful in the Main Appeal, they
    would be unable to recover their costs because 938 is a single-purpose
    corporation and has no assets.

[15]

In
    my view, Pepall J.A.s findings are sound. The Security for Costs Order was
    made based on the admitted fact that 938 was incorporated solely to acquire the
    property in issue and has no assets.

[16]

Further,
    while I recognize that Mr. Singh is not a lawyer and that this inhibits his
    ability to identify grounds for appeal, I have closely examined the Motion to
    Strike Order and see no realistic basis upon which it could have been
    challenged. Frankly, the actions 938 has commenced are legally without hope,
    yet they are vexing the moving parties, who are pointlessly incurring
    significant costs to defend them which they will never recover.

[17]

I
    appreciate the public interest in permitting litigants to have their day in
    court so that an appeal may be determined by a panel on its merits. However, in
    the circumstances of this case, particularly 938s lack of assets and the
    manifest weakness of the Main Appeal, that interest does not prevail. Moreover,
    the amount Pepall J.A required 938 to post by way of security is modest and
    does not unfairly impede 938s opportunity to access justice. If 938 wanted its
    day in court, this amount should have been paid.

[18]

I
    have also considered whether these motions for dismissal are premature, given
    that the panel review of the Extension Denial Decision remains outstanding. In
    my view, the interests of justice are not served by waiting for that review to
    play out.

[19]

In
Susin v. Susin
, 2008 ONCA 66, 37 E.T.R. (3d) 159, Laskin J.A.
    similarly dismissed an appeal for failure to post security for costs while an
    effort to obtain a panel review was outstanding because the appellant had not
    put forward any basis to resist the dismissal motion: at para. 5.

[20]

938s
    position in this case is even more dire than that of the appellant in
Susin
.
    938 has provided no meaningful basis to resist the Security for Costs Order, no
    meaningful basis to resist the Extension Denial Decision and seek a panel
    review of the Security for Costs Order, and no meaningful basis to doubt the
    Motion to Strike Order, which is the subject of the Main Appeal.

CONCLUSION

[21]

Accordingly,
    it is in the interests of justice to grant the orders sought by the moving parties.
    The Main Appeal, court file number C68695, is dismissed.

[22]

Costs
    are payable on these motions to each moving party in the amount of $1,500.00,
    inclusive of disbursements and HST.

David M. Paciocco
    J.A.


