



COURT OF APPEAL FOR ONTARIO

CITATION: Susin v. Susin, 2018 ONCA 220

DATE: 20180305

DOCKET: M48645 (C61734)

Fairburn J.A. (Motions
    Judge)

BETWEEN

Fermino Susin

Applicant (Responding Party)

and

Dorino Susin,
John Susin
, Anita Rahman, Dianne Susin, Sister Stella
    Marie, Gloria Devenz,
Esther Susin
and Theresa
    Lensborn

Respondents (Moving Parties)

AND BETWEEN

John Susin

Applicant

and

Fermino Susin, Dorino
    Susin, Anita Rahman, Dianne Susin, Sister Stella Marie, Gloria Devenz, Esther
    Susin and Theresa Lensborn

Respondents

John Susin, in person

Sarah Whitmore, duty counsel

Margaret Hoy, via teleconference

Heard: March 1, 2018

ENDORSEMENT

[1]

The moving parties seek an extension of time to file a motion to set
    aside the August 2, 2017 order of Gillese J.A. requiring that they each post $15,000
    as security for costs in their appeal from the decision of
Susin v. Susin,
2016 ONSC 311. For the reasons that follow, the motion is dismissed.

[2]

By way of background, the parties father passed
    away in 1997. His estate was a modest one. After years of litigation, his estate
    is virtually non-existent.

[3]

John Susin represented himself on this motion to
    obtain an extension of time. Duty counsel assisted him. John Susin also purports
    to speak on behalf of the other moving party, his sister Esther, who was not
    present in court during the motion and was not represented by counsel.

[4]

In September 2015, Esther brought a motion in
    the Superior Court of Justice for directions in relation to her fathers estate.
    The motion was dismissed as an abuse of process. She then moved before Ramsay
    J. to set aside that finding, claiming that it had been obtained by fraud. She
    also asked to have the executor of the estate, her brother Fermino Susin (the
    respondent on this motion), cited in contempt. Esther was wholly unsuccessful
    in obtaining the relief she sought. I have read Ramsay J.s reasons for
    dismissing the motion and they appear to be factually based and entirely sound.

[5]

The moving parties appeal from Ramsay J.s
    decision. It is this appeal that forms the backdrop for Gillese J.A.s order
    for security for costs. The moving parties are not permitted to pursue their appeal
    until the security for costs are paid. Pursuant to s. 7(5) of the
Courts
    of Justice Act
, the moving parties now wish to move
    before a panel of this court to have the security for costs order set aside
.

[6]

Rule 61.16(6) requires that where a person
    wishes to move to set aside or vary the order of a single judge of an appellate
    court under ss. 7(5) or 21(5) of the
Courts of Justice Act,
he or she shall do so by a notice of motion that is served and
    filed, with proof of service, within four days after the order is made.

[7]

John Susin maintains that he served his notice
    of motion on August 8, 2017 but, through inadvertence, failed to file the
    notice of motion in court. According to John Susin, the failure to file the notice
    of motion only came to his attention in mid-December. It is now almost seven
    months past what the rules require.

[8]

The test for an extension of time for filing a notice
    of appeal provides guidance on the relevant criteria for consideration in this
    context. The question is whether the justice of the case requires that the
    extension be given. In
Howard v. Martin
2014
    ONCA 309, 42 R.F.L. (7th) 47, the court sets out the relevant criteria at para.
    26:

Each case depends on its own circumstances, but the court is to
    take into account all relevant considerations, including:

1. whether the moving party formed a
    bona fide intention to appeal within the relevant period;

2. the length of, and explanation for, the delay in filing;

3. any prejudice to the responding party that is caused,
    perpetuated or exacerbated by the delay; and,

4. the merits of the proposed appeal.

[9]

I accept that within six days of the security
    for costs order being made, the moving parties formed an intention to seek to
    have the order set aside. Although the rules require service and filing within
    four days, not much turns on this two day differential. For all intents and
    purposes, the moving parties formed a
bona fide
intention to challenge the security for costs order within the
    required time. For the sake of argument, I am also prepared to accept that the
    failure to file the notice of motion resulted from an oversight on the part of
    the moving parties. Although these factors could be said to pull toward
    allowing the extension of time, the other factors pull strongly against
    granting this order. Not only is there no merit to the motion to set aside the
    order of Gillese J.A., but the respondent will be significantly prejudiced by
    allowing this matter to be taken any further.

[10]

The moving parties have failed to show any
    reason why the order for security for costs is wrong. A decision about whether
    to require security for costs is a discretionary one that must be afforded
    deference:
Yaiguaje v. Chevron Corporation,
2017
    ONCA 827, 138 O.R. (3d) 1, at para. 20. In determining whether an order for
    security for costs should be made, the overarching principle to be applied to
    all the circumstances is the justness of the order sought:
Pickard
    v. London Police Services Board,
2010 ONCA 643, 268 O.A.C.
    153, at para. 17. This court set out the applicable test for deciding a motion
    for security for costs in
Chevron
, at para. 22:

[J]udges are obliged to first consider the specific provisions
    of the Rules governing those motions and then effectively to take a step back
    and consider the justness of the order sought in all the circumstances of the
    case, with the interests of justice at the forefront.

[11]

Justice
    Gillese approached the matter in exactly this way. The decision demonstrates
    that she considered the rules governing the motion and focussed on the justness
    of the order in the circumstances of the case. Among other things, Gillese J.A.
    specifically considered: (i) the length of time that this matter had been under
    litigation; (ii) the adverse impact that the moving parties actions have had
    on the respondent; (iii) the fact that there are many outstanding costs orders
    left unpaid by the moving parties and, in particular, John Susin; (iv) the fact
    that the moving parties should not be permitted to proceed with impunity; and
    (v) the fact that the appeal appeared to be wholly devoid of merit.

[12]

The
    moving parties have failed to show any basis upon which the order for security
    for costs could be set aside. The proposed motion to set aside the security for
    costs order is without any merit.

[13]

In addition, I find that there would be significant prejudice to
    the respondent if the extension of time were granted.
The
    estate is virtually without funds. The respondents counsel says that, at this
    point, the unpaid legal fees outstrip the $5,000 left in the estate. Given John
    Susins well-documented history of failing to pay costs orders, I have no confidence
    that costs resulting from what appears to be an entirely frivolous motion would
    be paid.

[14]

Indeed, the respondent filed evidence on this motion
    that demonstrates a continuous and blatant flouting of costs orders since 2007.
    I accept this evidence as true. Although John Susin suggests he has paid all of
    the costs orders up to 2009, the respondents counsel maintains that Mr. Susin
    has paid nothing. It is suggested that, to the extent that legal fees have been
    paid, they have come from the estate and not from John Susin. Regardless, even if
    I were to accept that John Susin has paid costs orders up to 2009, it still means
    that he has not paid many thousands of dollars in costs since that time.

[15]

Having regard to all of the circumstances,
    including the seemingly meritless attempt to challenge Gillese J.A.s order and
    the multiple and hefty unpaid costs orders, the interests of justice require
    that the request for an extension of time to bring a motion to set aside the
    security for costs order be dismissed.

[16]

I conclude by making the following observation.
    John Susin was declared a vexatious litigant by Quinn J. in 2008. This court
    upheld the vexatious litigant finding in
Susin v. Susin,
2009 ONCA 231, holding, at para. 1:

[T]he record shows that there was ample
    evidence to support his finding that the appellant is a vexatious litigant. His
    conduct in this case is indicative of his persistent and unwarranted pursuit of
    legal proceedings that are both meritless and frivolous. His conduct has
    resulted in enormous inconvenience and expense, over many, many years, to
    opposing litigants and in this era of strained court resources, he can no
    longer be permitted unrestrained access to the courts of Ontario.

[17]

Since this court dismissed John Susins effort
    to have the vexatious litigant designation set aside almost a decade ago, at a
    minimum, it appears that he has brought motions before over fifteen different
    judges, on over twenty different days, in at least four different
    jurisdictions. The respondent has faced the daunting task of attempting to navigate
    his way through this labyrinth of litigation brought by John Susin, all the
    while facing an increasingly dwindling estate.

[18]

The sea of court orders, endorsements and
    decisions in this matter reinforce the status of John Susin as a vexatious
    litigant, one who frequently manages to obtain court dates in defiance of the
    2008 order that he not commence or continue any judicial proceeding or motion
    except with leave of the Superior Court of Justice. As noted by Ramsay J. in
Susin
    v. Susin,
2015 ONSC 5896: This is one of the most
    extreme examples of persistent vexatious litigation that I have ever
    encountered. Further abuse of the court system must be halted decisively and
    without delay.

[19]

In the hope that it might assist those who may
    be confronted with John Susins attempts to file documents in court, I refer to
    the 2008 order of Quinn J. As noted in that order, John Susin is not permitted
    to commence or continue any judicial proceeding or motion except with leave of
    the Superior Court of Justice. Nor is he permitted to seek leave to commence or
    continue any judicial proceeding, action or motion against Fermino Susin or the
    estate or beneficiaries of the estate of John Susin Sr., or its executors,
    unless all outstanding cost awards owing to Fermino Susin and the Estate of
    John Susin Sr. by John Susin Jr. are paid in full. For convenience, I append
    the 2008 vexatious litigant order to these reasons.

Conclusion

[20]

The motion to extend time to file a notice of
    motion to set aside the security for costs order is dismissed. The moving
    parties are ordered to pay the respondent costs fixed in the amount of $1,000
    all inclusive.

Released: March 5, 2018

Fairburn J.A.

Appendix A





