Case information

Civil procedure — Costs — Security for costs — Whether appellate court erred in allowing order for security for costs of appeal and all costs below to stand — Whether discretion under Rules Of Civil Procedure, Rule 61.06(1), can be exercised before deadline to perfect appeal — Whether motion for costs can be considered without full appeal materials.<br>

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Richard Harper, Fernando McGrath, Martin Racicot doing business as Rockhaven Pictures, Room Full of Spoons Inc., Parktown Studios Inc. and Richard Towns (collectively, “RFS”) moved for security for the trial judgment, costs of that judgment and the appeal, and, in the alternative, an order lifting the stay pending appeal. In 2003, Wiseau Studio LLC and Tommy Wiseau, residents of California doing business as “Wiseau Films”, had released a feature film called The Room. In 2016, Ontario filmmakers Mr. Harper, Mr. McGrath, Mr. Racicot and Mr. Towns completed a documentary film called Room Full of Spoons about the cult like status that had been acquired by The Room and Mr. Wiseau. Wiseau Films obtained an ex parte injunction restraining the release of the documentary. The injunction was later dissolved based on a finding that Wiseau Films had failed to make full and frank disclosure and had engaged in litigation misconduct.

Wiseau Films’ request to discontinue the claim on the eve of trial was refused and the eight-day trial went ahead. Its claim was dismissed and RFS’s counterclaim was granted. RFS was awarded punitive damages, damages arising from the improper ex parte injunction, pre judgment interest, and costs. Wiseau Films’ request to vary the judgment was dismissed.

After Wiseau Films filed a Notice of Appeal, but before the appeal was perfected, RFS moved before a single judge of the Court of Appeal for security for the trial judgment, costs of the trial and the appeal. All three requests were granted. Wiseau Films moved before a three member panel of the Court of Appeal to review that decision. Having allowed Wiseau Films to resile from the earlier concession that the appeal was frivolous, the panel was satisfied that the order for security for the trial judgment should be set aside. However, it affirmed the order for security for costs of the trial and the appeal. As success was divided, there was no award of costs.