COURT OF APPEAL FOR ONTARIO
CITATION: Rathod v. Chijindu, 2024 ONCA 625
DATE: 20240819
DOCKET: M55276 & M55279 (COA-24-CV-0272)
Fairburn A.C.J.O. (Motions Judge)
BETWEEN
Harsha Rathod
Plaintiff/Moving Party (Respondent/Moving Party)
and
Christian Chukwuedozie Chijindu*, Nkiruka Chijindu also known as Nkiruka Ochei, Joy Chijindu*, Ijeoma Chijindu*, The Chijindu Law Firm, Autopoietic Telemetric Solutions Ltd., RVL Masonry Ltd., 2153801 Ontario Ltd. cob as The Leon Group, Meridian Credit Union Limited, YDB Investments Corp., Bluekat Capital Corp.**, Great Northern Insulation Contracting Ltd., Obuba Law Firm and Peter Obuba Kalu
Defendants/Responding Parties (Appellants*/Responding Parties*/ Respondent**/Moving Party**)
Amandeep Sidhu, for the moving party, Harsha Rathod
Brian Belmont, for the moving party, Bluekat Capital Corp.
Christian Chijindu, acting in person
Nkiruka Chijindu, also known as Nkiruka Ochei and Joy Chijindu, acting in person
Ijeoma Chijindu, acting in person
Heard: August 13, 2024
ENDORSEMENT
[1] This is a motion brought by Harsha Rathod and Bluekat Capital Corp. (“the moving parties”) for the following relief:
i. An order dismissing the responding parties’ appeal due to their failure to pay the costs orders made by this court;
ii. In the alternative, an order that the responding parties pay the outstanding costs orders by a prompt and final deadline;
iii. In the further alternative, an order that the responding parties be required to pay further security for costs in the amount of the outstanding costs order.
[2] For the reasons that follow, I order the first alternative form of relief: the responding parties shall pay the outstanding costs orders of this court no later than August 28, 2024.
(1) Background
[3] The responding parties borrowed considerable sums of money from the moving parties who gave them mortgages over two properties. Those mortgages went into default a long time ago. The properties were sold under a power of sale and the net proceeds (after payment of the relevant mortgages and expenses) were paid into court.
[4] The responding parties on this motion appealed the February 13, 2024 judgment of Woodley J., who ordered that monies paid into court be distributed to the moving parties to satisfy their mortgages and several outstanding costs orders that the responding parties had failed to pay: Rathod v. Chijindu, 2024 ONSC 939.
[5] To provide a flavour of the litigation before the Superior Court of Justice, one need look no further than paras. 104-106 of Woodley J.’s decision. Justice Woodley described the 16 proceedings related to the case and found, at para. 106, that the responding parties “both collectively and separately, have consistently provided untruthful, unreliable, and unsubstantiated evidence to the Court to further their own interests and are not credible witnesses” (emphasis in original).
[6] The moving parties’ motions for security for costs of this appeal were heard by Roberts J.A. on April 17, 2024: Rathod v. Chijindu, 2024 ONCA 317. She granted the motions after determining, among other things, that the appeal appears to be frivolous and vexatious. She found, at para 8, that the appeal is “devoid of merit and appears to be brought for the collateral purpose of delaying payment to the parties.” I do not intend to repeat or revisit what Roberts J.A. said in that regard. I accept all of her characterizations and determinations.
[7] Ultimately, Roberts J.A. ordered that costs in a total amount of $35,605.12 be posted as security. If the responding parties did not post that security for costs by May 27, 2024, the moving parties were permitted to bring an ex parte motion to dismiss the appeal with proof of the failure to pay. She also ordered costs of the motions in the following amounts:
1. $15,000 to be paid to Bluekat Capital Corp. and
2. $6,780 to be paid to Ms. Rathod.
[8] The responding parties then moved to set aside the decision of Roberts J.A. That motion was dismissed on May 27, 2024: Rathod v. Chijindu, 2024 ONCA 420.
[9] Although the responding parties suggested to both Roberts J.A. and the panel hearing the motion that they were unable to pay the security for costs, they did so on May 27, 2024, which was the deadline set by Roberts J.A and the date that the motion to set aside was dismissed.
(2) The moving parties’ motion
[10] The moving parties now ask that a single judge of this court dismiss the appeal because Roberts J.A.’s costs orders remain outstanding.
[11] Even if I were inclined to do so, a single judge of this court has no jurisdiction to dismiss an appeal: see Serra v. Serra, 2007 ONCA 465, 225 O.A.C. 236, at para 2. Rule 61.16(2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that:
(2.2) A motion in the Court of Appeal for an order that finally determines an appeal, other than an order dismissing the appeal on consent, shall be heard and determined by a panel consisting of not fewer than three judges sitting together, and always of an uneven number of judges.
[12] Accordingly, I move to the first alternative remedy, which is to require the responding parties on this motion to pay the outstanding costs orders made by Roberts J.A.
[13] The responding parties say that I have no jurisdiction to make this order because it would be akin to varying Roberts J.A.’s costs orders. As she did not place a time limit on paying the costs, the responding parties suggest that I cannot now do so.
[14] I disagree.
[15] The responding parties’ submission implies that a costs order is in the nature of a suggestion that you should pay what you are ordered to pay when you feel that the time is right. Nothing could be further from the reality of the situation. With or without a deadline, when a costs order is made, it is a valid from the time it is made and must be paid, not at a future date convenient to the debtor, but right away and not later than 30 days from the date of the order. This accords with r. 57.03(1):
57.03(1) On the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall,
(a) fix the costs of the motion and order them to be paid within 30 days; or
(b) in an exceptional case, refer the costs of the motion for assessment under Rule 58 and order them to be paid within 30 days after assessment.
[16] While the Rule seems to suggest that the judge shall impose the 30-day deadline, an order that is silent on the issue is to be interpreted as having imposed that deadline: Sears v. Sears (2005), 195 O.A.C. 376 (Div. Ct.), at para 18; Bank of Nova Scotia v. Gillespie, 2008 CanLII 31415 (Ont. S.C.). Clearly, the presumption is that if an order is silent on the time within which it is to be paid, it is payable within 30 days. The order speaks from the moment it is made and the costs must be paid.
[17] The responding parties seem to suggest that they do not have to pay the costs orders made by this court several months ago now. They are wrong. Although they suggest that they have no money to pay those orders, there is no reliable evidence to support this suggestion. Further, as already noted, the same suggestion was made before Roberts J.A. on the security for costs motion and yet the security was paid into court at the very last moment.
[18] I have no hesitation in saying that the responding parties must now pay the outstanding costs orders, which are overdue ─ payments which must be made and orders complied with before they have another audience in this court for purposes of their appeal.
[19] By making such an order, I am not amending Roberts J.A.’s order, I am simply ordering that the responding parties comply with her outstanding costs orders before their appeal is heard.
[20] Accordingly, the responding parties will pay the outstanding costs orders no later than August 28, 2024, failing which the moving parties may bring a motion before a panel of this court to have the appeal dismissed.
[21] During the hearing of this motion, I canvassed possible dates for the hearing of this appeal. The parties all confirmed that they are available on September 24, 2024.
[22] The appeal will be heard on September 24, 2024. Even if the moving parties bring a motion to dismiss the appeal on the basis of the responding parties’ failure to comply with this order, the date for the hearing of the appeal will not be changed. In other words, assuming that the appeal is not dismissed by a panel of this court before September 24, 2024, the appeal will be heard on that day. Given the history of this matter, the mounting legal fees, and the extraordinary use of public resources that have been taken up with this litigation, the time has come that this matter be concluded.
[23] The moving parties will perfect their materials no later than September 3, 2024.
[24] The costs of this motion seem somewhat high to me, at least from the Bluekat Capital Corp. perspective. The first form of relief sought was not available because of a very clear lack of jurisdiction. At the same time, the moving parties should not have had to bring this motion at all. The costs should already have been paid.
[25] Accordingly, I order costs of this motion in the following amounts:
i. $6,000 to Ms. Rathod
ii. $8,500 to Bluekat Capital Corp.
[26] These costs will be paid within 15 days of the release of this decision and no later than September 3, 2024.
“Fairburn A.C.J.O.”