Executive Summary: Key Legal and Evidentiary Issues

• The plaintiff’s action was subject to dismissal due to failure to pay outstanding costs orders from previous motions and appeals.

• Costs orders in favor of the Crown defendants totaled $34,465, while those in favor of the Fire Safety defendants totaled $27,121.96.

• The plaintiff’s request for an explanatory hearing before the Divisional Court panel was denied, with the court confirming no such process exists once an order is settled.

• The Divisional Court and court staff repeatedly informed the plaintiff that his interpretation of the February 7, 2025 order was incorrect and that all appeal rights had been dismissed.

• The court found that the plaintiff’s arguments regarding ambiguity in the orders and justification for non-payment were without merit.

• Additional costs of $7,500 to the Crown defendants and $8,000 to the Fire Safety defendants were awarded as a result of the unsuccessful motion.

Facts and outcome of the case

Background and procedural history

Leslie Arthur Swan, the plaintiff, brought an action against His Majesty the King in Right of Ontario, as represented by the Minister of Community Safety and Correctional Services, the Firearms Safety Education Services of Ontario ("FSESO"), the Chief Firearms Office of Ontario ("CFO"), Don Bell, Kevin Culhane, Cindy Baldree, Douglas Marshall, Andrew Ferguson, and Bryan Martin. The defendants sought an order dismissing the plaintiff’s action due to his failure to comply with a history of costs orders.

On 5 June 2023, Justice Shin Doi granted the defendants’ motion to strike the plaintiff’s claim, with leave to amend, and ordered the plaintiff to pay the Crown defendants $22,890 as costs of that motion. On 27 September 2024, the Court of Appeal dismissed the plaintiff’s appeal on jurisdictional grounds and ordered the plaintiff to pay the Crown defendants costs of $8,000. On 7 February 2025, the Divisional Court refused leave to appeal the order of Shin Doi, J. and ordered the plaintiff to pay the Crown defendants costs of $3,575. The total outstanding costs orders in favor of the Crown defendants amounted to $34,465.

On 5 June 2023, Justice Shin Doi also ordered the plaintiff to pay the Firearms Safety Education Services of Ontario ("FSESO"), Don Bell, Cindy Baldree, and Douglas Marshall (“the Fire Safety defendants”) $14,121.96 in respect of their motion to strike the plaintiff’s statement of claim. On 27 September 2024, the Court of Appeal ordered the plaintiff to pay the Fire Safety defendants costs of $8,000. On 7 February 2025, the Divisional Court ordered the plaintiff to pay the Fire Safety defendants costs of $5,000. The total outstanding costs orders in favor of the Fire Safety defendants amounted to $27,121.96.

Plaintiff’s arguments and court’s response

The plaintiff argued that he was entitled to a hearing before a panel of the Divisional Court for clarification of the order that granted him an extension of time to seek leave to appeal Justice Shin Doi’s order and then dismissed the motion for leave to appeal. He asserted that, once he received such a hearing, he could have the issue of his appeal rights clarified and would then pay the costs he was ordered to pay, if any.

The court identified four difficulties with the plaintiff’s argument: (1) there is no process for an explanatory attendance or appointment before a panel once their order has been settled; (2) the plaintiff’s request for such an appointment had already been dismissed by the Divisional Court; (3) even if an audience were granted, the order was clear on its face; and (4) the argument did not explain why none of the costs orders had been paid.

The court found that Rule 59.04 does not allow for a request to the court to explain its order once the form of the order has been settled. The Divisional Court and court staff repeatedly advised the plaintiff that his interpretation of the February 7, 2025 order was incorrect and that leave to appeal from Justice Shin Doi’s entire January 26, 2024 order, including costs, was dismissed. The court also stated that there was no further route to Divisional Court open to the plaintiff to address his issues.

The plaintiff admitted that he had not appealed the Court of Appeal costs order or the Divisional Court costs order and had not paid those costs. The court found that the plaintiff could not unilaterally determine not to pay outstanding costs until the occurrence of some future event, especially when that event had been requested and declined.

Costs of the motion and conclusion

The plaintiff sought substantial indemnity costs if successful on the motion, arguing that the defendants should have facilitated his request for an explanatory appointment with Divisional Court. The defendants sought partial indemnity costs. The court found the defendants entitled to those costs, awarding $7,500 to the Crown defendants and $8,000 to the Fire Safety defendants.

The plaintiff was directed to pay the outstanding costs by 22 September 2025, excluding the costs of the present motion, which are due in 30 days. If costs are not paid, the defendants are to submit a supplementary affidavit confirming non-payment, after which an order shall follow dismissing the plaintiff’s action. The successful parties in this motion were the Crown defendants and the Fire Safety defendants, with the amounts ordered as specified above.