L. Lutwak

The defendant brought a motion for an order requiring the plaintiff to post security for costs.

The plaintiff, a corporation registered in the Netherlands, sued the defendant for breach of a consulting agreement.

The plaintiff argued that it was forced to litigate in Ontario due to a choice of forum clause and that the motion was delayed.

The court found that the choice of forum clause did not militate against an order for security for costs and that the merits of the claim were neutral.

Although the motion was brought late, the court ordered the plaintiff to post security for costs limited to prospective costs, fixed at $20,000 payable in tranches.

The moving plaintiff and third party sought leave to bring a refusals motion and to compel answers to questions refused during discovery after the action had been set down for trial.

The responding defendant consented to answering undertakings and to certain pleading amendments but opposed the refusals relief on the basis that Rule 48.04 of the Rules of Civil Procedure barred the motion without leave.

The court held that once an action has been set down for trial, leave is required to bring a refusals motion and adopted prior authority distinguishing undertakings from refusals.

Applying the established test, the court found the moving parties had not demonstrated a substantial or unexpected change in circumstances.

Leave to bring the refusals motion was denied, while other relief was granted on consent and each party bore their own costs.