



COURT OF APPEAL FOR ONTARIO

CITATION: Wiseau Studio, LLC v. Harper, 2021 ONCA 396

DATE: 20210607

DOCKET: M52157 & M52464 (C68580)

Doherty, Pepall and Trotter JJ.A.

BETWEEN

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

Plaintiffs/Defendants by Counterclaim (Appellants)

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)

Daniel Brinza, for the appellants

Matthew Diskin and Meredith Bacal, for the respondents

Heard: June 2, 2021 by video conference

A motion by the appellants to set aside the order of
    Thorburn J.A., dated January 15, 2021, and a motion by the respondents to
    dismiss the appeal for non-compliance with the order of Thorburn J.A.

REASONS FOR DECISION

[1]

At the end of oral argument, the court advised the parties the appellants
    motion to set aside the order of Thorburn J.A. (the motion judge) was granted
    in part and the respondents motion to dismiss the appeal was dismissed as
    moot. These are our reasons for those dispositions.

[2]

The appellants did not file any material in response to the respondents
    motion for security. Before the motion judge, counsel for the appellants
    conceded the appeal as framed in the Notice of Appeal was frivolous. The motion
    judge relied on that concession in making her order.

[3]

The appellants have fleshed out their grounds of appeal since the
    motion. They have also perfected the appeal and filed a factum.

[4]

We are prepared, in the circumstances, to permit the appellants to
    resile from the concession made before the motion judge as to the merits of the
    appeal. Absent the concession the appeal was frivolous, we are satisfied the part
    of the order requiring the appellants to post security for the amount of the
    judgment should be set aside.

[5]

We would not, however, interfere with the order for security for costs,
    both with respect to the trial costs and the costs of appeal. In challenging
    that part of the motion judges order, the appellants relied on material placed
    before this court, which was not before the motion judge. The appellants did
    not seek leave to adduce fresh evidence, nor did the appellants offer any justification
    for receiving fresh evidence.

[6]

A motion to review proceeds on the record that was before the motion
    judge unless the moving party can justify the court receiving fresh evidence.
    There is no such justification here and we will not admit any of the new material
    filed on this motion for review.

[7]

Based on the record as it was before the motion judge, it was reasonably
    open to her in the exercise of her discretion to make an order for the security
    of the costs of both the trial and the appeal pursuant to r. 61.06(1).

[8]

At the end of oral argument, the court made the following order.

[9]

The motion to review the order of the motion judge is allowed in part.
    The order for security on the amount of the judgment is set aside. The order
    for security for costs, both with respect to trial costs and the costs of the appeal,
    is affirmed.

[10]

The
    appellant shall post the required security by no later than July 7, 2021 at
    4:00 p.m., failing which the respondent may move
ex parte
in writing
    before this panel for an order dismissing the appeal. Any further application
    by any party in relation to the security for costs order shall be made to this
    panel and in writing.

[11]

The
    motion judge ordered costs against the appellants in the amount of $3,500. In
    our view, that order should stand, even though we have varied the terms of the
    motion judges order. The motion judge proceeded on the basis of the
    appellants concession as to the absence of any apparent merit to the appeal.
    In light of the position taken by the appellants before the motion judge, the
    appellants should remain obliged to pay the costs of the motion, even though we
    have varied the result.

[12]

As
    success is divided before this court, we order no costs with respect to the
    proceedings before us.

[13]

Given
    the result of the appellants motion, the respondents motion to dismiss the
    appeal for non-compliance with the order of the motion judge is dismissed as
    moot.

Doherty J.A.

S.E. Pepall J.A.

G.T. Trotter J.A.


