In this case, argued by Stevenson Whelton partner Richard Macklin and associate Lucinda Bendu, the main issue was: what nature and quality of assets will be sufficient to defeat the other side’s assertion that the plaintiff corporation has insufficient assets and therefore security for costs should be ordered.
Many cases, including this case, involve small business plaintiffs with imperfect financial statements and earnings histories. However, Security for Costs Orders, especially in the $1,000,000 range, have dramatic tactical implications on the proceedings as a whole, in the defendant’s favour. Therefore, such orders should only be granted in circumstances where careful consideration of the available assets and other issues has been given.
Justice Hainey of the Commercial List wrestled with these issues in 7868073 Canada Ltd. et al. v. 1841978 Ontario Inc. et al., 2019 ONSC 1708.
His Honour dismissed the motion for $1.0 million in security for costs and also ordered $43,000 in costs, in our client’s favour, in a later unreported endorsement.