Date: 20121109
Docket: A-360-12
Citation: 2012 FCA 286
Present: STRATAS
J.A.
BETWEEN:
PETER
DONALDSON
Appellant
and
WESTERN
GRAIN STORAGE BY-PRODUCTS
Respondent
REASONS FOR ORDER
STRATAS J.A.
[1]
The
respondent (“Western Grain”) brings a motion to quash this appeal, and, in the
alternative, a motion for security for costs.
The nature of the appeal
[2]
Mr.
Donaldson appeals from a judgment of the Federal Court dated June 21, 2012:
2012 FC 804. He raises issues concerning the merits of the Federal Court’s
decision. He also raises an issue of procedural fairness.
Preliminary issue
[3]
In
response to Western Grain’s motion, Mr. Donaldson has presented to the Registry
a document intended to be a record responding to the motion. Forming the view
that the document does not comply with Rule 365, the Registry has sought
direction under Rule 72 regarding whether it can be filed.
[4]
I
direct the Registry not to accept the document for filing. It falls far short of
the requirements in Rule 365.
[5]
Normally,
I would grant Mr. Donaldson an opportunity to file a proper record responding
to the motion. However, given my disposition of the motion, it is unnecessary
for him to do so.
Western Grain’s request for an
order quashing the appeal
[6]
The
following are Western Grain’s submissions in support of an order quashing the
appeal and the Court’s response to them:
a. There is a long
history of delay and abusive behaviour on the part of the respondent in the
Federal Court.
This Court can act only on the basis of evidence and the respondent has not
filed any evidence. In particular, Western Grain has not filed an affidavit
before the Court. The unsworn assertions in the notice of motion and written
representations, most of which concern Mr. Donaldson’s conduct in the Federal
Court, are not evidence. But even assuming these assertions are true, Western
Grain has presented no authority for the proposition that a long history of
delay and abusive behaviour in the Federal Court means that an appeal to this
Court should be quashed.
b. Mr. Donaldson is
ignoring the deadline for filing his appeal book in this Court. That may be so but
that, in itself, is not a recognized ground for quashing an appeal at this
time. However, the Court will soon issue a notice of status review (see Rule
382.2) and, among other things, Mr. Donaldson will have to account for his
delay, failing which his appeal will be dismissed.
c. Mr. Donaldson’s appeal
has no merit.
Here, Western Grain seems to be advancing some of the submissions the Federal
Court accepted and, on that basis, asserts that the appeal is “bereft of any
chance of success.” However, none of Western Grain’s submissions are in the
nature of a “show stopper” or a “knockout punch” – a submission of the
exceptional sort that strikes at the root of this Court’s power to entertain
the appeal or the appellant’s ability to prosecute the appeal any further: see,
e.g., David Bull Laboratories (Canada) Inc. v. Pharmacia Inc.,
[1995] 1 F.C. 588 (C.A.). Instead, Western Grain’s submissions concern the
substantive merits of the appeal and are akin to the sort routinely advanced by
respondents at the hearing of the appeal: Chrysler Canada Inc. v. Canada,
2008 FC 1049.
Western Grain’s
request for an order for security for costs
[7]
Western
Grain considers itself to be facing a pointless, expensive appeal and an
opposing party of insufficient means to satisfy a future costs award.
Therefore, it seeks an order for security for costs.
[8]
However,
Western Grain’s motion is inadequately formulated and insufficiently supported.
[9]
As
mentioned above, Western Grain has not filed an affidavit in support of its
motion. This means that there is no admissible evidence before the Court
establishing the prerequisites for an order for security for costs. Western
Grain asserts much in the grounds set out in the notice of motion and its
written submissions, but assertions are not admissible evidence. This Court
cannot grant an order merely on a party’s say so.
[10]
Further,
assuming Western Grain is entitled to an order for security for costs, the
Court has no evidence before it upon which it can determine the amount of
security that should be posted. What costs has Western Grain incurred to date?
What are its expected future costs? Taking these together, what award of costs
might the Court make at the end of the proceeding?
[11]
At
a more basic level, Western Grain simply asks for “security for costs.” It
does not ask for a particular amount. Should it be $10,000? Should it be
$50,000? The Court can only guess.
Conclusion
[12]
The
motion is dismissed. This is without prejudice to Western Grain’s ability to
bring a new motion for security for costs, properly formulated and properly
supported.
[13]
The
Court determined this motion without any responding material properly filed
before it. Therefore, in these circumstances, there shall be no costs.
"David
Stratas"
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