



COURT OF APPEAL FOR ONTARIO

CITATION: Novak v. St. Demetrius (Ukrainian Catholic)
    Development Corporation, 2018 ONCA 219

DATE: 20180305

DOCKET: M48583 (C64044)

Juriansz, Miller and Nordheimer JJ.A.

BETWEEN

Svitlana Novak

Plaintiff/Appellant (Moving Party)

and

St. Demetrius (Ukrainian Catholic) Development
    Corporation and Ukrainian Canadian Care Centre

Defendants/Respondents (Responding Parties)

Svitlana Novak, acting in person

Nicola Brankley, for the responding parties

Heard: March 1, 2018

REASONS FOR DECISION

[1]

The appellant brings this motion to review the decision of Epstein J.A.
    sitting as a single judge in motions court ordering her to post security of
    costs of the appeal in the amount of $20,000. At the conclusion of the hearing,
    we dismissed the motion with reasons to follow. These are our reasons.

[2]

The appellant confirms that she has not got the ability to pay any costs
    that may be awarded against her in the event that she loses the appeal.
    Further, she hints that she would refuse to pay costs in any event.

[3]

We agree with Epstein J.A.s assessment that the appeal has scant
    prospects of success and so there is good reason to believe the appeal is
    frivolous. To succeed, the appellant would have to show that the trial judge
    made a palpable and overriding error in concluding she commenced the action out
    of time, and also in dismissing her case on the merits.

[4]

On the limitations issue the appellant will have to dislodge the trial
    judges factual finding that she led no evidence whatsoever as to what
    happened between June 2009 and April 2012. The trial judge did not find any
    facts upon which to infer that she was under a continuing mistaken belief that
    a legal proceeding was not the appropriate means to remedy her loss or damage.
    The burden was on the appellant in this regard.

[5]

The dismissal of the appellants claim on the merits rested on findings
    of fact and credibility. The trial judge found the appellant had failed to
    establish that the respondent had promised her a full-time job. We are not
    persuaded that the existence of different versions of her part-time employment
    contract is sufficient to undermine the credibility findings of the trial
    judge.

[6]

Justice Epsteins reasons for finding the appeal vexatious are well
    supported by the appellants communications that Epstein J.A. quoted in her
    reasons.

[7]

Justice Epsteins order was made prior to the release of this courts
    decision in
Chevron Corp. v. Yaiguaje,
138 O.R. (3d) 1, 2017 ONCA 827, which was included in the appellants
    materials
. We do not read that decision as altering the established
    test for ordering security for costs. The established test requires a judge,
    after analysing the specific factors spelled out in the rules, to consider the
    overall justness of the order sought. In
Yaiguaje v. Chevron Corp
. the
    court found that the motion judge had erred in principle in her consideration
    of the justness of the order.

[8]

In this case, we are satisfied the Epstein
    J.A. did not err in considering the ordering of security for costs to be just.
    Unlike in
Yaiguaje v. Chevron Corp
, the appellant in this case
    has a direct economic interest in the appeal. The respondent is not a global
    enterprise but a not-for-profit senior citizens care centre operated by a
    church. Unrecoverable costs will reduce the respondents resources it can
    dedicate to the care of its clients. There is no indication the respondent
    sought security for costs as a litigation tactic to end the appeal. The appeal
    raises no overarching, important, or novel issue. There is no apparent
    overriding public interest in allowing the appeal to proceed without the
    posting of ordered security for costs.

[9]

It is for these reasons that the motion
    was dismissed. Costs are awarded to the respondent fixed in the amount of
    $3,500.00 all inclusive.

R.G. Juriansz
    J.A.

B.W. Miller
    J.A.

I.V.B.
    Nordheimer J.A.


