Wiseau Studio, LLC v. Harper

Wiseau Studio, LLC v. Harper

Given appellants' residence outside Ontario, failure to disclose Ontario assets, history of tactical delay and misconduct including an improper ex parte injunction, and a frivolous appeal on its face, the court concluded exceptional circumstances exist to order security for the trial judgment and for costs to prevent prejudice and to preserve the ability to satisfy the judgment; appellants must post prescribed security within 90 days or respondents may seek dismissal of the appeal as abandoned.

Citation
2021 ONCA 31
Parties
Plaintiffs / Defendants by Counterclaim (appellants / Responding Parties): Wiseau Studio, LLC and Tommy Wiseau d.b.a. Wiseau-Films; Defendants / Plaintiffs by Counterclaim (respondents / Moving Parties): Richard Harper; Fernando Forero McGrath; Martin Racicot d.b.a. Rockhaven Pictures; Room Full of Spoons Inc.; Parktown Studios Inc.; Richard Stewart Towns
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
15 January 2021
Procedural Posture
Civil / Motion for Security for Judgment and Security for Costs; Motion Heard on Videoconference Pending Appeal
Outcome
Motion granted in part; security for trial judgment and security for costs ordered; costs of the motion awarded to moving parties
Legal Topics
Security for Judgment, Security for Costs, Mareva Style Relief, Frivolous Appeal, Litigation Misconduct, Ex Juris Enforcement
Source Language
English
Civil Procedure Appeal Enforcement of Judgments Costs Security for Judgment Security for Costs Mareva Style Relief Frivolous Appeal +2 more

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Parties

Wiseau Studio, LLC and Tommy Wiseau d.b.a. Wiseau-Films

Plaintiffs / Defendants by Counterclaim (appellants / Responding Parties)

Richard Harper; Fernando Forero McGrath; Martin Racicot d.b.a. Rockhaven Pictures; Room Full of Spoons Inc.; Parktown Studios Inc.; Richard Stewart Towns

Defendants / Plaintiffs by Counterclaim (respondents / Moving Parties)

Procedural Posture

Civil / Motion for Security for Judgment and Security for Costs; Motion Heard on Videoconference Pending Appeal

Legal Issues

  1. 1 Whether security for the trial judgment should be ordered against appellants resident outside Ontario
  2. 2 Whether security for costs of trial and appeal should be ordered under Rule 56.01
  3. 3 Whether the appellants' appeal is frivolous and justifies exceptional relief including dismissal if security is not posted

Ratio Decidendi

Given appellants' residence outside Ontario, failure to disclose Ontario assets, history of tactical delay and misconduct including an improper ex parte injunction, and a frivolous appeal on its face, the court concluded exceptional circumstances exist to order security for the trial judgment and for costs to prevent prejudice and to preserve the ability to satisfy the judgment; appellants must post prescribed security within 90 days or respondents may seek dismissal of the appeal as abandoned.

Court Disposition

Motion granted in part; security for trial judgment and security for costs ordered; costs of the motion awarded to moving parties

Orders

  • Appellants ordered to post security for the trial judgment within 90 days: CAD 200000 and Canadian currency sufficient to purchase USD 575488.36 at an Ontario Schedule I bank at close of business on first day bank quotes before payment is due, with liberty to apply for directions on form of security
  • Appellants ordered to post security for costs of the trial judgment in the amount of CAD 481521.8