In Best v. Cox, Justice Feldman of the Ontario Court of Appeal considered two motions related to appellate practice. The appeal emerged from a finding of civil contempt. The first motion was brought by the appellant to remove counsel for the respondents due to alleged misconduct in the court below. Second, the respondents sought security for costs.

Regarding the removal motion, Feldman J.A. was clearly not impressed that it had been brought, dismissing it in a pithy judgment, and awarding the respondents full indemnity costs. She held:

[3]          The appellant seeks to have the court remove counsel and their law firms from the record for alleged misconduct in the contempt proceedings and in the proceeding to set aside the contempt order. The allegations against the lawyers that are raised on this motion were raised and rejected by Shaughnessy J. in his May 3, 2013 ruling where he refused to withdraw the contempt order. All of the allegations and submissions made on this motion are also grounds of appeal on the main appeal.

[4]          The allegations relate primarily to the events surrounding the appellant’s failure to attend for examination as ordered and what he knew about the order requiring him to attend and when he knew about it. He alleges that counsel for the respondents deliberately misled the motion judge on what occurred. This was not only rejected by the motion judge, but he made it clear that his findings were based on the appellant’s own letters, recorded words and actions. The appellant also argues that the lawyers now have a conflict of interest as they now have an interest in protecting their own reputations which conflicts with their clients’ interest on the appeal. He also says that he intends to bring a fresh evidence motion where the respondents’ lawyers will be witnesses.

[5]          The appellant is effectively asking the court on the motion to make a preliminary determination that Shaughnessy J. erred in rejecting the allegations of misconduct, or that he may have erred or that it is arguable that he erred, and on that basis, to remove counsel at this stage.

[6]          Clearly that cannot be done. The record as it stands is that there was no misconduct. Shaughnessy J. stated repeatedly that the allegations were spurious and baseless. He was the case management judge over a period of several years. Considerable deference is owed to his findings. To the extent that the misconduct issue is relevant to the finding of contempt, it will be determined on the appeal. The conflict of interest allegation arises directly from and depends on the misconduct allegations.

[8]          This court has recently re-iterated the principle that a court will only in the rarest of cases grant a removal motion: …


[9]          I am satisfied that a fair-minded and reasonably informed member of the public would not conclude that removal of respondents’ counsel is necessary for the proper administration of justice. The motion is therefore dismissed.

[10]       The appellant, through his counsel, has made serious allegations of deliberate misconduct against the two counsel for the respondents both in writing and in open court in the face of a finding to the contrary. In my view, that tactic requires the court to express its condemnation by awarding costs on the full indemnity scale. …

Turning to the security for costs motion, Feldman J.A. had to consider Rules 61.06(1)(a) and (c) of the Rules of Civil Procedure, which provide:

In an appeal where it appears that,

(a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal; … [or]

(c) for other good reason, security for costs should be ordered,

a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.

The appellant was impecunious. The second criterion in Rule 61.06(1)(a) was thus met. Nonetheless, Feldman J.A. held that the appeal was “not frivolous” and, moreover, it involved the appellant’s liberty interests (he had been sentenced to incarceration if he refused to purge himself of the contempt). In the result, she held it was not just to order security for costs but she ordered costs of this motion to be payable in the cause.