Background
Vem Yenovkian retained Shirtliff-Hinds Professional Corporation in 2018 to act for him in family-law custody proceedings. After the custody motion failed and the firm ended the retainer, Yenovkian obtained an assessment order under Ontario’s Solicitors Act concerning the firm’s fees.
The parties later settled the assessment dispute, but Yenovkian declined to sign a release, initially objecting to its confidentiality clause and continuing to refuse after the firm agreed to remove it. A case-conference judge enforced the settlement. Yenovkian appealed. On the firm’s motion, Thorburn J.A. ordered him to post $26,375.32 in security for costs, stayed his appeal until compliance, and permitted the firm to seek dismissal if security was not posted. A Court of Appeal panel dismissed his review motion and gave him seven days to post the security.
Yenovkian then sought a stay of the panel’s order while he intended to seek leave to appeal to the Supreme Court of Canada.
The Court’s Holding
Monahan J.A. dismissed the stay motion. Applying the three-part RJR-MacDonald test, the court held that Yenovkian met none of its requirements and that a stay was not in the interests of justice.
His proposed Supreme Court application raised no issue of public or national importance: the security-for-costs decision applied the correct principles and was a discretionary ruling tied to the case’s facts. He also showed no irreparable harm. He acknowledged having sufficient funds to post security, and the claimed costs of liquidating investments, converting U.S. dollars, and losing investment returns were quantifiable and potentially remediable through costs. The possibility that his appeal could be dismissed if he did not comply was not harm flowing from compliance with the order.
The balance of convenience also favoured the firm. The underlying appeal had been found frivolous and vexatious, and Yenovkian had no Ontario assets from which a future costs award could be satisfied. The court ordered him to pay the firm $2,500 in all-inclusive partial-indemnity costs.
Key Takeaways
- A stay pending a proposed Supreme Court leave application requires satisfaction of the RJR-MacDonald framework, assessed in light of the Supreme Court’s public- or national-importance leave standard.
- Financial effects of posting security for costs, including investment liquidation and lost returns, are ordinarily quantifiable rather than irreparable harm.
- Potential dismissal for failure to comply with a security-for-costs order is not irreparable harm caused by compliance with that order.
Why It Matters
The decision underscores that an intended application for leave to the Supreme Court does not itself justify suspending an Ontario appellate order. A party seeking a stay must identify a genuinely qualifying issue and concrete, non-compensable harm arising from obeying the order.
It also reinforces the protective role of security for costs where an appeal is found frivolous and vexatious and the appellant lacks local assets to satisfy a possible costs award.