Gregory Wrigglesworth

The defendants moved for security for costs against the plaintiff, Hockeyfest Incorporated, under Rule 56.01 of the Rules of Civil Procedure.

The court applied a two-stage test: first, whether the plaintiff was a corporation with insufficient assets (which was conceded), and second, whether justice demanded the case proceed without security, considering impecuniosity and the merits.

The court found Hockeyfest failed to provide adequate financial disclosure to prove impecuniosity and that its claims against all defendants had very little chance of success due to its own non-compliance with contractual terms and misrepresentations.

Consequently, the court ordered Hockeyfest to post significant security for costs to each defendant, prohibiting further steps until paid, and allowing for dismissal if not posted within 30 days.

The plaintiff, The Canada Trust Company, Trustee, brought a motion under Rule 37.14 to set aside a Registrar's dismissal order from May 3, 2013, which administratively dismissed the action for delay.

The court applied the four-pronged Reid test, considering the explanation for delay, inadvertence in missing the deadline, promptness of bringing the motion, and prejudice to the defendants.

While the court found the missed deadline was inadvertent, it determined that the plaintiff failed to adequately explain the full extent of the delay and did not bring the motion promptly.

Crucially, the court found significant non-compensable prejudice to the defendants, Boulos and Henriette Daher, due to the inordinate passage of time, the nature of their *non est factum* defence relying on faded memories, and their declining health, which rendered them unfit to participate in trial.

The motion to set aside the dismissal was therefore dismissed.

The defendants brought a motion to dismiss the plaintiff’s action for delay and failure to comply with a case conference order requiring answers to written discovery questions.

The court considered the principles governing dismissal for delay under Rule 24.01 of the Rules of Civil Procedure and sanctions for failure to comply with interlocutory orders under Rule 60.12.

The plaintiff failed to provide responding motion materials, failed to comply with a court-ordered timetable, and delayed approximately 21 months in responding to written discovery questions.

The court found the delay inexcusable and contumelious and held that the plaintiff failed to rebut the presumption of prejudice arising from delay after the limitation period.

The action against the moving defendants was dismissed with costs.