The defendant, Peter Cunnington, brought a motion seeking an order to stay or dismiss the plaintiff's action, or alternatively, to require the plaintiff to post security for defence costs pursuant to Rules 56.01 and 56.02 of the Rules of Civil Procedure.
The plaintiff, ordinarily resident in Michigan, opposed the motion.
The court found that the plaintiff's counsel had adequately responded to the demand regarding residency, thus declining to stay or dismiss the action under Rule 56.02.
However, the court determined that the defendant met the low onus under Rule 56.01(1)(a) by establishing the plaintiff's ordinary residency outside Ontario.
The plaintiff failed to provide sufficient evidence of assets in Ontario or a reciprocating jurisdiction to satisfy a potential costs order, relying on a hearsay affidavit from counsel.
While the claim was not deemed frivolous or vexatious under Rule 56.01(1)(e), the plaintiff, not being impecunious, failed to demonstrate a "real possibility of success" given significant causation and credibility issues.
The court also found the defendant's delay in bringing the motion was sufficiently explained and did not prejudice the plaintiff.
Consequently, the court ordered the plaintiff to post $15,000 as security for costs, prohibiting further steps in the proceeding until the security is posted.
