The Ontario Court of Appeal ("ONCA") has broken new ground by ordering security for a trial judgment in Wiseau Studio, LLC v Harper, 2021 ONCA 31. While appellate courts in other jurisdictions have made such orders, this decision of Justice Thorburn was a first for Ontario.

History of the Case

The cinematic backdrop to this judicial action was a dispute between filmmakers: in 2017, Tommy Wiseau, creator of the cult-classic film The Room, and his company, Wiseau Studio LLC, (together, "Wiseau") commenced an action against the documentarians behind a film about The Room and its cult following. Richard Harper, Fernando Forero McGrath, and Martin Racicot, doing business as Room Full of Spoons Inc., (collectively, "Room Full of Spoons") were in negotiations for the distribution of the documentary, Room Full of Spoons, before Wiseau turned to the courts to block its release.

Wiseau obtained an ex parte injunction to restrain the release of Room Full of Spoons in June 2017. In November 2017, the injunction was dissolved with costs awarded to Room Full of Spoons, after a motion judge found that Wiseau had not made full and frank disclosure and that they had engaged in litigation misconduct. Wiseau refused to pay the costs award until, after 11 months, the court advised unless the award was paid, the action would be dismissed. It was later held that Wiseau engaged in "roadblocks to scheduling at almost every attendance" among other "improper acts" throughout the litigation process. Wiseau's claim was subsequently dismissed in April 2020 after an eight-day trial, leading to an award of over $1 million in favour of the documentary makers. Following the trial judgment, Wiseau failed to attend examinations in aid of execution and did not comply with court orders compelling attendance to provide information about his assets. Wiseau then brought a Notice of Appeal, and Room Full of Spoons moved for an order for security of the trial judgment.

Court of Appeal Decision

The ONCA granted Room Full of Spoons' motion, and set out three principles to govern when a court exercises its discretion in making an order for security of a trial judgment:

  1. The order must be in the interest of justice.
  2. The order must avoid some prejudice.
  3. The order should not have the effect of precluding the appellant from pursuing the appeal with merit.

When considering these principles, Justice Thorburn found that the interest of justice favour an order for security of the trial judgment where there exist barriers to enforcement, such as the ex juris residence of an appellant or their lack of assets in the jurisdiction. Wiseau was not resident in Ontario, had refused to provide information of any assets in Ontario, and had admitted that the order would not prevent their pursuit of the appeal. Considering these factors and the evidence of prejudice Room Full of Spoons would otherwise suffer, the motion for security was granted.

Conclusion

This development in the law brings helpful clarity to the many parties bringing motions for security of trial judgments in Ontario. Although Justice Thornburn asserted in her reasons that such an order remains an extraordinary remedy reserved for exceptional circumstances, this decision confirms that the order is available in Ontario and sheds light on the conditions under which it may be obtained.