PETER DONALDSON Appellant v. WESTERN GRAIN STORAGE BY-PRODUCTS, 2012 FCA 286

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 Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on November 9, 2012. REASONS FOR ORDER BY: STRATAS J.A. 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 forcosts. 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 concerningthe 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 recordresponding to the motion.

Forming the view that the document does not comply with Rule 365, the Registry has sought direction underRule 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 mydisposition 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 onlyon the basis of evidence and the respondent has not filed any evidence. In particular, Western Grain has not filed an affidavit before theCourt. The unsworn assertions in the notice of motion and written representations, most of which concern Mr.

Donaldson’s conduct inthe Federal Court, are not evidence. But even assuming these assertions are true, Western Grain has presented no authority for theproposition 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 arecognized 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 Courtaccepted and, on that basis, asserts that the appeal is “bereft of any chance of success.” However, none of Western Grain’s submissionsare 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’spower 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., (FCA), [1995] 1 F.C. 588 (C.A.).

Instead, Western Grain’s submissions concern thesubstantive merits of the appeal and are akin to the sort routinely advanced by respondents at the hearing of the appeal: Chrysler CanadaInc. 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 tosatisfy 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" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-360-12 STYLE OF CAUSE: Peter Donaldson v. Western Grain Storage By-Products MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY: Stratas J.A. DATED: November 9, 2012 WRITTEN REPRESENTATIONS BY : Chantelle Bryson FOR THE RESPONDENT SOLICITORS OF RECORD : Buset & Partners LLP Thunder Bay , Ontario FOR THE RESPONDENT