COURT OF APPEAL FOR ONTARIO
CITATION: Gill v. MacIver, 2023 ONCA 776
DATE: 20231116
DOCKET: M54554 (C70498)
Roberts J.A. (Motion Judge)
BETWEEN
Dr. Kulvinder Kaur Gill* and Dr. Ashvinder Kaur Lamba
Plaintiffs (Appellant/Responding Party*)
and
Dr. Angus MacIver, Dr. Nadia Alam, Andre Picard, Dr. Michelle Cohen, Dr. Alex Nataros, Dr. Ilan Schwartz, Dr. Andrew Fraser, Dr. Marco Prado, Timothy Caulfield, Dr. Sajjad Fazel, Alheli Picazo, Bruce Arthur, Dr. Terry Polevoy, Dr. John Van Aerde, Dr. Andrew Boozary, Dr. Abdu Sharkawy, Dr. David Jacobs, Tristan Bronca, Carly Weeks, The Pointer*, The Hamilton Spectator, Société Radio-Canada, The Medical Post
Defendants (Respondent/Moving Party*)
Brian Radnoff and David Seifer, for the respondent/moving party, The Pointer Group Incorporated
Jeff G. Saikaley and Albert Brunet, for the appellant/responding party, Dr. Kulvinder Kaur Gill
Heard: November 1, 2023
ENDORSEMENT
[1] The Pointer Group Incorporated moves for security for its costs of the appeal and its costs of the action and the anti-SLAPP motion below, under r. 61.06(1)(a) and (c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[2] For the reasons that follow, I am not satisfied that the moving party has met its onus to show that (1) there is good reason to believe that the appeal is frivolous and vexatious, and that Dr. Gill has insufficient assets to satisfy the costs of the appeal, or (2) there is other good reason to order security for costs. Nor am I persuaded that the justice of the case warrants such an order.
[3] The meaning of “frivolous and vexatious” under r. 61.06(1)(a) is not defined in the Rules of Civil Procedure but has been interpreted in the case law. A “frivolous” appeal includes an appeal “readily recognizable as devoid of merit, as one having little prospect of success”: Lavallee v. Isak, 2022 ONCA 290, at para. 19, citing Pickard v. London Police Services Board, 2010 ONCA 643, 268 O.A.C. 153, at para. 19. A “vexatious” appeal includes one taken to “annoy or embarrass the opposite party” or conducted “in a less than diligent” or vexatious manner, such as a failure to comply with court orders or the rules: Lavallee, at para. 19, citing Pickard, at para. 19, and Henderson v. Wright. 2016 ONCA 89, 345 O.A.C. 231, at para. 20.
[4] The moving party must show there is good reason to believe that the appeal is both frivolous and vexatious: York University v. Markicevic, 2017 ONCA 651, at para. 33. It has not done so. In her notice of appeal, Dr. Gill presents arguable errors of law in her grounds of appeal that apply to the moving party and all the other respondents remaining on this appeal, including that the motion judge fell into analytical error in misapplying the test and jurisprudence on an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act and in misapplying the test for defamation. For the purposes of this motion, I do not have to determine whether these grounds will ultimately prevail but simply whether there is good reason to believe the grounds are frivolous. Moreover, even accepting the submission that the appeal, although not frivolous, is weak, there is no indication that Dr. Gill has conducted this appeal in a vexatious manner.
[5] With respect to the question of sufficiency of assets, there is no evidence respecting Dr. Gill’s financial circumstances other than she is still working as a physician and has recently paid her counsel $20,000 (corresponding to the amount the moving party seeks as security for costs of the appeal[1]), which is being held in trust in response to this motion. The fact that there was a very large costs award made against Dr. Gill is not, without more, a factor that indicates insufficiency of assets. The payment of the costs award was automatically stayed by the appeal pursuant to r. 63.01(1) of the Rules of Civil Procedure.
[6] Nor does Dr. Gill’s lack of response to the moving party’s request for information about her financial circumstances support its allegations of insufficient assets. It is the moving party’s onus to demonstrate first that there is good reason to believe Dr. Gill has insufficient assets to satisfy the costs of the appeal. It is only when the moving party satisfies that onus that the evidentiary burden to show sufficiency of assets to satisfy the costs of the appeal shifts to Dr. Gill to respond: Chemical Vapour Metal Refinishing v. Terekhov, 2016 ONSC 7080, at paras. 15-21. As the moving party failed to meet that onus, there was nothing to which Dr. Gill had to respond and therefore nothing can be taken from her lack of response.
[7] With respect to r. 61.06(1)(c), the criterion of “other good reason” is not specifically particularized under the rules but its meaning is explored in the case law. As Jamal J.A. (as he then was) stated in Heidari v. Naghshbandi, 2020 ONCA 757, 153 O.R. (3d) 756, at para. 23, “[a]lthough the list of reasons justifying security under this residual category is not closed, the ‘other good reason’ must be: (1) consistent with the purpose for ordering security – namely, that the respondent is entitled to a measure of protection for costs; and (2) fairly compelling, because the residual category is only engaged where the respondent cannot meet the requirements of rules 61.06(1)(a) or (b).” An example of where this court has ordered security under this subsection includes where the appeal has a low prospect of success coupled with an appellant who has the ability to pay costs but from whom it would be nearly impossible to collect costs: see e.g., Henderson. There is no indication that it would be impossible or difficult to collect costs from Dr. Gill. I see no compelling circumstances here that would warrant the exercise of the court’s residual discretion.
[8] Accordingly, the motion for security for costs is dismissed.
[9] The responding party, Dr. Gill, as the successful party on this motion, is entitled to her partial indemnity costs from the moving party in the agreed upon amount of $5,000, inclusive of all amounts.
“L.B. Roberts J.A.”
[1] In addition, the moving party seeks security for its costs of the action, including the anti-SLAPP motion, in the amount of $64,170.15. However, as my colleague, van Rensburg J.A. stated in Tsai v. Dugal, “[s]uch orders are not granted routinely: some justification must be offered by the moving party when the amount of security sought under r. 61.06 includes security for the costs awarded in the court below”: 2021 ONCA 170, at para. 15, citing Foodinvest Limited v. Royal Bank of Canada, 2020 ONCA 387. The moving party has not provided “any reasonable basis” for making such an order: Tsai, at para. 15.