Executive Summary: Key Legal and Evidentiary Issues

• Panel review jurisdiction confined to correcting legal, principled, or evidentiary misapprehensions by single motion judges, not conducting a de novo rehearing.
• Appropriateness of refusing leave to order and file the transcript of the security-for-costs motion, given its limited relevance to panel review grounds.
• Application of res judicata and abuse of process principles arising from prior related proceedings dismissing Mr. Byrd’s claims.
• Justification for ordering security for costs under rr. 61.06(1) and 56.01 based on meritless, repetitive litigation and non-payment of previous costs awards.
• Assessment of whether the motion judge misapprehended the evidence or misinterpreted exchanges during the earlier motion (including questions put to opposing counsel).
• Calibration of costs consequences for unsuccessful panel review motions, including fixed costs and extensions of time to pay security for costs.

Facts and procedural background

The litigation arises from a long-running dispute between the appellant, Darryl Byrd, and the respondents, Douglas K. Murdoch (in his capacity as Trustee of the Douglas K. Murdoch Revocable Trust) and Scott Murdoch. Mr. Byrd commenced an action against the respondents in the Superior Court of Justice. That action was dismissed by Justice Kalajdzic on February 27, 2025. The dismissal rested on three interrelated procedural doctrines: res judicata, abuse of process, and Mr. Byrd’s failure to satisfy costs orders made in earlier, related proceedings involving the same underlying dispute. The decision recognized that the issues Mr. Byrd was attempting to litigate had already been determined, that further proceedings were therefore improper and duplicative, and that his continued failure to pay previously ordered costs further undermined the proper administration of justice.

From that dismissal, Mr. Byrd launched an appeal to the Court of Appeal for Ontario. In the appellate phase, the central developments were not about the substantive trust-related rights between the parties, but about whether Mr. Byrd should be permitted to proceed with his appeal without providing security for costs and without satisfying prior costs obligations. The matter thus evolved into a contest over appellate procedure, the scope of single-judge motions authority at the Court of Appeal, and the limited grounds on which a panel may intervene in such discretionary decisions.

The security for costs motion before Monahan J.A.

In the course of the appeal, the respondents sought security for costs. Justice Monahan of the Court of Appeal heard the motion and, in a decision dated June 11, 2025, ordered Mr. Byrd to post security for costs of the appeal in the amount of $15,000. In addition, he ordered Mr. Byrd to pay costs of the security-for-costs motion to the respondents in the amount of $11,836, all within 30 days. In making this order, Monahan J.A. applied rule 61.06(1) of the Rules of Civil Procedure, which governs security for costs in the Court of Appeal, and which in turn incorporates the criteria and grounds set out in rule 56.01. The judge concluded that there were compelling reasons for requiring security: the appeal represented a continuation of what the court regarded as meritless and repetitive litigation, and Mr. Byrd had not complied with prior costs orders made in related proceedings. Those features placed the case squarely within the accepted grounds for security for costs, intended to protect respondents from the burdens of defending unmeritorious appeals where recovery of costs is uncertain.

Mr. Byrd took the position that Monahan J.A. had erred in his understanding of both the record and the colloquy at the motion hearing. He believed that comments or questions made by the motion judge, particularly in exchanges with opposing counsel, indicated an intention not to impose security or at least not to impose security in the manner ultimately ordered. On this basis, he sought to challenge the security-for-costs order through a panel review.

The motion for leave to order and file the transcript

Anticipating a panel review of the security-for-costs order, Mr. Byrd brought a further motion before another single judge of the Court of Appeal, Lauwers J.A. In that motion, he requested leave to order, obtain, and file the transcript of the security-for-costs hearing before Monahan J.A. Mr. Byrd’s stated rationale was that the transcript would support his argument that the motion judge had either misunderstood or mischaracterized what had transpired during the hearing, especially with respect to his likelihood of ordering security and the particular categories of costs for which security would be required.

In a decision dated July 17, 2025, Justice Lauwers refused Mr. Byrd’s request. He concluded that the transcript was not necessary for the panel review of the security-for-costs order. From the materials and Mr. Byrd’s explanation, Lauwers J.A. reasonably inferred that Mr. Byrd may have misconstrued the thrust of Monahan J.A.’s questioning of opposing counsel—questions that Mr. Byrd read as indicating that the judge would refuse any order for security, when in fact they more likely went to the scope or extent of the security (including whether it should cover costs in the court below as well as the appeal). On that basis, Lauwers J.A. held that a transcript was not required to mount a proper panel review, particularly where the governing test on review is not a fresh rehearing but a search for legal or principled error in the motion judge’s reasons.

The panel review framework

Both of these single-judge decisions—Monahan J.A.’s order for security for costs and costs, and Lauwers J.A.’s refusal to authorize the transcript—became the subject of panel review motions under section 7(5) of the Courts of Justice Act. Under that framework, a three-judge panel of the Court of Appeal does not rehear the motion de novo. Instead, it reviews the motion judge’s discretionary decision with deference, intervening only if the judge erred in principle, reached an unreasonable outcome, misapplied legal standards, or misapprehended material evidence. The court reiterated this standard by reference to case law recognizing that panel review is not intended as a second full-scale argument on the same issues, but as a safeguard against significant mistakes that undermine the integrity or fairness of single-judge rulings.

In Mr. Byrd’s case, the panel comprised van Rensburg, Miller, and Sossin JJ.A. The panel heard the two panel review motions together on November 26, 2025 and issued written reasons on November 28, 2025.

Panel review of the refusal to order the transcript

The panel first addressed the review of Justice Lauwers’ decision concerning the transcript. That sequencing was logical: had Mr. Byrd succeeded in overturning the refusal to authorize the transcript, it might have been necessary to adjourn the panel review of the security-for-costs order to allow time to obtain and file the transcript. By dealing with the transcript issue first, the panel clarified whether any such adjournment or additional evidentiary record was required.

The panel dismissed the review of Lauwers J.A.’s order. It held that the refusal to grant leave to order and file the transcript was a proper and reasonable exercise of discretion. Justice Lauwers had carefully considered Mr. Byrd’s reasons for wanting the transcript and concluded that they did not demonstrate any necessity for panel review purposes. The panel accepted that view, agreeing that Mr. Byrd had likely misinterpreted the exchanges before Monahan J.A. and that the essential issues—whether the legal principles for security for costs had been correctly identified and applied—could be fully evaluated on the written reasons and existing record. There was no suggestion that critical evidence had been omitted or that the transcript would reveal a misapprehension of facts that could not be understood from the material already available to the court.

Accordingly, the panel found no legal error, misapprehension of evidence, or unreasonable exercise of discretion in Justice Lauwers’ decision. The motion to review that order was dismissed.

Panel review of the security for costs order

Having confirmed that the transcript would not be added to the record, the panel turned to the review of Justice Monahan’s order requiring Mr. Byrd to post $15,000 as security for costs and to pay $11,836 in costs of the motion. Again, the panel approached the matter through the lens of deference, focusing on whether the motion judge had correctly applied rules 61.06(1) and 56.01 and whether his factual conclusions were supported by the record.

The panel concluded that Monahan J.A. had both identified and properly applied the governing principles for security for costs in appellate proceedings. It accepted his assessment that the appeal represented a continuation of meritless litigation—echoing the foundation for the underlying dismissal on res judicata and abuse of process grounds—and accepted as well that Mr. Byrd’s ongoing failure to comply with prior costs orders was a powerful indicator that the respondents faced real risk of being unable to recover their costs if the appeal failed. The panel expressly recognized these as proper and established grounds on which to impose security for costs, emphasizing that the purposes of the remedy include preventing abuse of the court’s processes, discouraging repetitive and unmeritorious litigation, and ensuring that successful respondents are not unfairly burdened with unrecoverable costs.

The panel saw no misapplication of legal standards, no misunderstanding of the evidentiary record, and no unreasonable conclusion. It therefore declined to interfere with the security-for-costs order or the related costs disposition.

Outcome and financial consequences

In its final disposition, the panel dismissed both panel review motions brought by Mr. Byrd. As a result, Justice Lauwers’ refusal to authorize the transcript of the earlier motion was upheld, and Justice Monahan’s order for security for costs and costs remained in full force. The panel also imposed additional costs consequences for the unsuccessful panel review motions themselves, awarding the respondents fixed costs of $2,500, all-inclusive. Recognizing the practical impact of the security for costs requirement, the panel granted Mr. Byrd a further 30 days to pay the $15,000 security into court to the credit of the appeal. It further ordered that, if Mr. Byrd failed to pay the security within that time, his appeal would be dismissed without the need for any further motion.

In aggregate, the successful parties at this stage are the respondents, Douglas K. Murdoch (as Trustee of the Douglas K. Murdoch Revocable Trust) and Scott Murdoch. By virtue of the single-judge and panel decisions considered together, Mr. Byrd is liable to pay them $11,836 in costs of the security-for-costs motion and a further $2,500 in fixed costs for the panel review motions, for a total of $14,336 in costs awarded in their favour, in addition to being required to post $15,000 as security for costs of the appeal payable into court rather than directly to the respondents.