2018 MBCA 28, 2018 MBCA 28

Citation: Lenko v The Government of Manitoba et al , Date: 20180323 2018 MBCA 28 Docket: AI17-30-08934 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) G. D. Lenko ) on his own behalf ) ) W. M. Onchulenko GARY D. LENKO ) for the Respondent ) The Canada Mortgage and ) Housing Corporation (Plaintiff) Appellant ) ) D. Fenske ) for the Respondents - and - ) The Government of ) Manitoba and The Manitoba ) Housing and Renewal THE GOVERNMENT OF MANITOBA, and ) Coporation THE MANITOBA HOUSING AND ) RENEWAL CORPORATION, THE CITY OF ) V. F. Y.

Li WINNIPEG, THE CANADA MORTGAGE ) on a watching brief AND HOUSING CORPORATION ) for the Respondent ) The City of Winnipeg ) (Defendants) Respondents ) Chambers motion heard: ) March 1, 2018 ) ) Decision pronounced: ) March 23, 2018 cameron JA [ 1 ] This is an application by the plaintiff (Mr. Lenko) to extend the time to pay into court an order of security of costs made against him on November 16, 2017 by a judge in Chambers of this Court (the Chambers judge).

That order stipulated that he pay to the court, by way of security of costs, $1,000 to the defendants the Government of Manitoba (Manitoba) and the Manitoba Housing and Renewal Corporation (MHRC); and $1,000 to the defendant the Canada Mortgage and Housing Corporation (CMHC) (collectively, the defendants). [ 2 ] A little background is necessary. On July 11, 2017, by endorsement sheet, the Court of Queen’s Bench granted

summary judgment to the defendants dismissing all of Mr. Lenko’s claims against them in this proceeding. [ 3 ] The July 11, 2017 judgment was in response to the decision of this Court in Lenko v The Government of Manitoba et al , 2016 MBCA 52 . In that case, the Court upheld the motion judge’s decision granting

summary judgment dismissing Mr. Lenko’s claim for damages for negligent misrepresentation against the defendants in this proceeding, but overturned the

summary dismissal respecting the defendant the City of Winnipeg. Thus, the action against the City of Winnipeg is continuing in the Court of Queen’s Bench. [ 4 ] In dismissing the appeal against the defendants in Lenko , Beard JA stated (at para 64): To the extent that Mr. Lenko may have claims against [the defendants] on some other bases, [aside from negligent misrepresentation] they were not dealt with by the motion judge and are not the subject of this appeal.

[ 5 ] Mr. Lenko appealed the July 11, 2017 judgment. That appeal is the subject of the order for security of costs in this application. Briefly, after Mr. Lenko filed his appeal, CMHC applied for, and the Chambers judge granted, the order for security of costs. Pursuant to that order, the costs were to have been paid by November 23, 2017. The Chambers judge also ordered that the appeal was to be stayed pending the payment of costs and that, if the costs were not paid within 90 days, the appeal would be dismissed, subject to the right of Mr. Lenko to file an application. [ 6 ] Mr. Lenko did not appeal the decision of the Chambers judge pursuant to

section 46 of the Manitoba, Court of Appeal Rules , Man Reg 555/88 R. Neither did he pay the costs within the 90 days. Rather, he brought this application to extend the time to do so. [ 7 ] Since the time of the order, Mr. Lenko has not made any payment toward the costs. In his affidavit filed in support of this application, Mr. Lenko stated that he might have more money in the spring as he is a self-employed contractor and that he might be able to collect on a debt owed to him. At the hearing of this application, I canvassed with him whether he could make payments toward the order.

He advised that he could only make a payment of $100 forthwith and perhaps payments of $100 every three months. However, when later asked at the hearing when he could have the money paid into court, he stated that he did not know when he would be able to do so, let alone whether the money could be paid within the 30-day extension that he requested. [ 8 ] Mr. Lenko has also not paid any money toward the $13,312.50 in costs he currently owes to CMHC. Furthermore, he has repeatedly refused to attend any examination in aid of execution arranged by CMHC.

To elaborate, he failed to attend examinations scheduled for October 24, 2017, December 13, 2017 and February 7, 2018. At the hearing of this matter, he stated that he disputed the costs. [ 9 ] At the end of the day, I have to determine whether to extend the time to pay the order for security of costs. In my view, Mr. Lenko has not shown good faith regarding the order made by the Chambers judge. He has not attempted to make even a nominal payment toward the order nor has he offered any reasonable payment

schedule to pay the order. Simply put, he cannot indicate when he would be able to satisfy the order. [ 10 ] At the hearing of this matter, counsel for CMHC advised that the trial involving the City of Winnipeg is scheduled for June 11, 2018. The practical effect of the continued stay of this appeal resulting from Mr. Lenko’s non-compliance with the order to pay security of costs would be to further delay that action which has already been ongoing since 2008. In my view, that trial should proceed as scheduled. [ 11 ] Therefore, for the above reasons, the application to extend the time to pay is dismissed. JA