



COURT OF APPEAL FOR ONTARIO

CITATION: 1806700 Ontario Inc. v. Dmuchowski, 2018 ONCA 557

DATE: 20180614

DOCKET: M49036 (C64654)

Strathy C.J.O., Feldman and Brown JJ.A.

BETWEEN

1806700 Ontario Inc.

Plaintiff (Respondent)

and

Marian Dmuchowski and Leonila Fajardo

Defendants (Respondents)

Muhammad Aslam Khan, acting in person

Joga Singh Chahal, for the plaintiff

Tim Gleason, for the intervenor Sandeep Singh Johal

Heard and released orally: June 13, 2018

ENDORSEMENT

[1]

Mr. Khan moves before a panel of this court, pursuant
    to s. 7(5) of the
Courts of Justice Act
, R.S.O.
    1990, c. C.43, to set aside the order of MacPherson J.A., made April 5, 2018,
    requiring that, before perfecting the appeal, he pay into court the sum of
    $10,000 to stand as security for costs.

[2]

The underlying appeal is from the order of
    Bielby J. of the Superior Court of Justice, dated November 3, 2017, dismissing
    Mr. Khans motion to set aside the final report of a referee. The history of
    this matter is set out in the reasons for judgment of Bielby J. (2017 ONSC
    6626) and in the endorsement of Nordheimer J.A., dated December 22, 2017.

[3]

The endorsement of MacPherson J.A. indicates
    that he took into account the history of the proceedings and an assessment of
    the merits of the appeal.

[4]

An order for security for costs is discretionary
    and is entitled to deference.

[5]

The history of the proceeding is fully set out
    in the record before us, which indicates a multiplicity of proceedings at the
    instance of Mr. Khan, some of which were found to be unnecessary or
    inappropriate, and which were out of all proportion to what was reasonably
    required for a fair and just resolution of the issues in this proceeding. This
    was an appropriate consideration on the motion. Moreover, the appeal can
    reasonably be characterized as weak.

[6]

The moving party has not persuaded us that we
    should interfere with the exercise of discretion in this case, which was
    exercised in the context of granting the appellant an indulgence, namely an
    extension of time.

[7]

The motion is therefore dismissed, with costs to
    the responding party Johal, fixed at $2,500, inclusive of disbursements and HST.

[8]

The moving party shall pay into court the sum
    ordered for security for costs of $10,000, and shall pay to the respondent the
    sum of $2,500 ordered for costs of this appeal, before perfecting the appeal.
    The deadline for perfecting the appeal is extended to June 25, 2018. Failing
    payment of both amounts and perfection of the appeal by June 25, 2018, the
    appeal shall be dismissed as abandoned.

G.R. Strathy C.J.O.

K. Feldman J.A.

David Brown J.A.


