Docket: T-181-16
Citation:
2016 FC 325
Ottawa, Ontario, March 16, 2016
PRESENT: The Honourable Mr. Justice Locke
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BETWEEN:
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ADE OLUMIDE
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Plaintiff
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and
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HER MAJESTY THE
QUEEN IN RIGHT OF CANADA
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Defendant
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ORDER AND REASONS
[1]
The defendant moves for an Order requiring the
plaintiff to pay costs already ordered payable forthwith as well as security
for costs and the costs of the present motion, and prohibiting the plaintiff
from taking any further steps in this proceeding, except an appeal of this
Order, until such amounts have been paid. The defendant’s notice of motion was
served on the plaintiff on February 23, 2016, and the defendant’s motion record
was served on March 10, 2016. The motion was made returnable on March 16, 2016.
I.
Plaintiff’s Submissions and Availability
[2]
The plaintiff did not submit a formal motion
record in response to the present motion, but he submitted a request for
direction dated February 24, 2016, as well as a supplementary request for
direction dated March 7, 2016, a second supplementary request for direction
dated March 11, 2016, and a third supplementary request for direction dated
March 16, 2016, all in relation to the motion.
[3]
One thrust of the plaintiff’s requests for
direction is that the defendant’s motion should not be heard before and
separate from his own motion for reconsideration of the Order of Madam Justice
Sylvie Roussel dated February 16, 2016, which ordered costs payable forthwith.
The plaintiff also opposes any hearing of the present motion before a decision
is issued on other costs orders currently on appeal in the Supreme Court of
Canada. I am not persuaded by the plaintiff’s submissions in this regard. In my
view, the just, most expeditious and least expensive determination of this
proceeding will be secured by considering the defendant’s motion now.
[4]
Contrary to the plaintiff’s assertion in his
first supplementary request for directions, I see no suggestion in Prothonotary
Mireille Tabib’s Direction dated March 2, 2016, that the defendant may not
bring the present motion.
[5]
The plaintiff indicated several times that he was
not available to attend the hearing of the present motion, but provided no
reason for his unavailability, nor requested an alternative date, nor provided
any alternative dates of availability.
[6]
I am not satisfied that the plaintiff had a good
reason for his unavailability. In addition to his failure to explain his
unavailability, I note that he did not take the position that he would be
unavailable until the defendant’s counsel confirmed, on March 4, 2016, that she
intended to proceed with the motion despite the plaintiff’s concern that the
motion is an abuse of process. I also note that the plaintiff stated at that
time that he was no longer available, and that “[i]n
the next 90 days, I am ONLY available on the date for the oral hearing before
Honourable Madam Justice Roussel.” (Emphasis in original.) This leaves
me with the impression that the plaintiff’s unavailability was an attempt to
avoid the defendant’s motion.
[7]
The plaintiff’s third supplementary request for
direction indicates that there has been no confirmation that the motion will
proceed or direction from the Court in that regard. Though the Federal
Courts Rules do not require any such confirmation or direction, I am
advised by the Registry of the Court that several attempts were made to contact
the plaintiff before the hearing to inquire whether he would be present. He did
not respond.
[8]
The plaintiff has acknowledged that he was given
notice on February 23, 2016, of the March 16, 2016 date for the hearing of this
motion. He has also acknowledged receiving confirmation on March 4, 2016, that
the defendant intended to proceed with the motion as planned. In the absence of
a satisfactory explanation for his unavailability, I proceeded with the hearing
in the plaintiff’s absence. I agreed with the defendant’s counsel that I would
consider the motion on the basis of the record and submissions already provided
to the Court. This includes the four requests for direction submitted by the
plaintiff. My only oral exchange with the defendant’s counsel on the substance
of the motion concerned a clarification as to the amount of security for costs
sought.
II.
Analysis
[9]
Rule 416(1)(f) of the Federal Courts Rules,
SOR/98-106, provides that the Court may order a plaintiff to give security for
a defendant’s costs where, on the motion of the defendant, it appears to the
Court that the defendant has an order against the plaintiff for costs in the
same or another proceeding that remains unpaid in whole or in part. In
addition, Rule 416(3) provides that, unless the Court orders otherwise, until
the security required by an order under Rule 416(1)(f) has been given, the
plaintiff may not take any further steps in the action, other than an appeal
from that order.
[10]
The defendant identifies 22 such costs orders in
this and a number of other proceedings totaling $16,027.70. The plaintiff does
not dispute the existence of these costs orders, but has taken steps to have
some of them set aside. Nevertheless, I conclude that the requirements of Rule
416(1)(f) are satisfied such that security for costs may be ordered. Also, the
amount of security for costs sought is limited and would be reasonable even if
one or more of the existing costs orders were set aside.
[11]
Rule 417 provides that the Court may refuse to
order that security for costs be given under paragraph 416(1)(f) if the
plaintiff demonstrates impecuniosity and the Court is of the opinion that the
case has merit. The wording of Rule 417 clearly indicates that, in order for it
to apply, the plaintiff bears the onus of establishing both his impecuniosity
and that his case has merit. I am not persuaded on either count. This is
largely because the plaintiff has not addressed Rule 417 directly and has not
provided any evidence in response to the present motion.
[12]
With regard to impecuniosity, I note that the
plaintiff’s first supplementary request for direction includes a copy of a
motion record before the Supreme Court of Canada in which the plaintiff states
that:
…costs enforcement would prevent applicant
[the plaintiff] from being able to participate in the application for leave to
appeal, by leading to foreclosure, homelessness, bankruptcy and increased
reckless cruel and unusual ongoing foreseeable destruction of applicant’s 15 year
political career below.
[13]
Apart from the fact that I have seen no evidence
to support any prejudice to the plaintiff if the order requested in the present
motion is granted, there is not even any explanation surrounding the references
to foreclosure, homelessness and bankruptcy to give these assertions any
credibility.
[14]
Much of the plaintiff’s first, second and third
requests for direction appears to be directed to the merits of his claim, but
his submissions in this regard are rambling and lacking background information.
In my view, they are insufficient to establish that the plaintiff’s case has
merit, even acknowledging the relatively low threshold for establishing merit,
per Sauvé v Canada (Attorney General), 2014 FC 119 at para 41.
[15]
The defendant’s submissions persuade me that the
plaintiff has a history of not paying costs and of bringing numerous motions in
his various proceedings against the defendant, and that the plaintiff should
therefore not be permitted to take any further steps in this action until the
requested security for costs have been paid into Court.
[16]
I am also persuaded that the plaintiff should
likewise not be permitted to take any further steps in this action until the
costs ordered payable forthwith in Justice Roussel’s February 16, 2016 Order
have been paid. The defendant notes that these costs are subject to a motion
for reconsideration, and could therefore be varied. Of course, if that were to
happen, the plaintiff could seek a further order reducing the amount of
security for costs that should be held by the Court.
[17]
I will grant the Order as sought (with the
amount of security for costs modified as discussed during the hearing) except
that the costs of the present motion shall be reduced to $1,200 to reflect the
fact that the hearing was very short (due to the plaintiff’s absence).
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