D. Stoddard

The plaintiff and defendants brought cross-motions to compel answers to undertakings, under advisements, and refusals arising from examinations for discovery in a construction dispute.

The plaintiff sought information regarding its trust claims and the defendants' set-off claim, while the defendants sought the plaintiff's pricing and cost documentation for a fixed-price contract.

The Master ordered the defendants to produce a final copy of a change directive and clarify their set-off documentation, adjourning the remaining trust questions.

The Master also ordered the plaintiff to produce documentation supporting a specific credit it had agreed to, finding that the fixed-price nature of the contract did not insulate it from producing documents related to a variation of that price.

The defendant sought leave under s. 67(2) of the Construction Lien Act to bring a motion for security for costs against the plaintiff, a US-based corporation.

The court applied the test for security for costs and the narrower 'instability and insolvency' test for construction lien actions.

The court found that while the plaintiff lacked liquid assets in Ontario, leave should not be granted because the defendant knew of the plaintiff's non-resident status when entering the contract, and ordering security for costs was neither necessary to level the playing field nor likely to expedite the resolution of the dispute.

The motion for leave was denied.