John McDonald

Following an unsuccessful motion by the plaintiff to compel answers to questions refused at an examination for discovery, the court determined the issue of costs.

The moving party argued that costs should be in the cause, but the court rejected that position.

The responding party had been entirely successful on the motion and was therefore entitled to costs on a partial indemnity scale.

The court found the responding party’s bill of costs reasonable and ordered payment forthwith.

The defendant bank brought a motion for security for costs against a corporate plaintiff claiming over $1.8 million in damages arising from an alleged breach of duty after the bank took possession of the plaintiff’s premises pursuant to a bankruptcy application.

Evidence established that the plaintiff had no significant assets and an unpaid prior judgment owed to the defendant.

The court held that once a prima facie case for security for costs under Rule 56.01(d) was established, the plaintiff bore the onus of proving both impecuniosity and that it could not raise funds from shareholders or associates.

The plaintiff failed to provide sufficient evidence regarding the financial circumstances of its shareholders or its inability to raise funds.

The court ordered the plaintiff to post $10,000 as security for costs, failing which the action would be stayed.