Ronna M. Brott

The defendant trustee in bankruptcy moved for security for costs against a corporate plaintiff under Rule 56.01(d) of the Rules of Civil Procedure, alleging the plaintiff lacked sufficient assets in Ontario to satisfy a potential costs award.

The court held the defendant established good reason to believe the plaintiff had insufficient assets, triggering the second stage of the analysis.

However, the plaintiff demonstrated sufficient assets through equity in the shareholder’s condominium and ownership of moulds with significant value.

Alternatively, the court held that even if the plaintiff were impecunious, it would be unjust to order security for costs where the alleged wrongful conduct of the defendant contributed to the plaintiff’s financial circumstances and such an order could prevent the action from proceeding.

Following dismissal of a malicious prosecution action for delay and the subsequent dismissal of a motion to set aside the registrar’s order, the court addressed costs.

The responding police defendants sought partial indemnity costs and reduced their request due to the moving party’s limited financial means.

The moving party argued that costs should not be awarded on public policy and access to justice grounds, relying on authorities where unsuccessful litigants were spared costs to avoid discouraging public interest litigation.

The court distinguished those authorities because the action had not been adjudicated on its merits but had been dismissed for delay and failure to comply with procedural rules.

Costs were awarded in a reduced amount payable within six months.

The plaintiff moved to set aside a Registrar’s order dismissing a civil action for delay arising from alleged workplace sexual assault and related constructive dismissal claims.

The court applied the contextual analysis described in Reid v Dow Corning Corp, considering explanation for litigation delay, inadvertence in missing the deadline to set the action down for trial, promptness of the motion, and prejudice to the defendants.

Although the action progressed slowly and counsel cited workload pressures, the court found there was no intentional delay and that the plaintiff had taken steps toward advancing the litigation.

The motion to set aside the dismissal was brought promptly and the defendants failed to demonstrate significant prejudice.

The court set aside the dismissal order and permitted the action and a related crossclaim to proceed.

The moving parties sought an order requiring the responding party, a franchisee corporation, to post security for costs in relation to a counterclaim and third party proceedings arising from a franchise dispute.

The court considered Rule 56.01 of the Rules of Civil Procedure and whether the circumstances justified ordering security for costs against the counterclaim plaintiff.

The court held that the third parties were not entitled to security for costs because none of the recognized exceptions permitting recovery of third party costs from a plaintiff applied.

However, the defendant by counterclaim established that the responding party had previously pursued substantially identical relief in earlier proceedings and had failed to satisfy outstanding costs orders exceeding $40,000.

The court exercised its discretion to order security for costs in favour of the defendant by counterclaim.

The plaintiffs brought a motion to amend the statement of claim to add the estate of a deceased youth as a defendant, add the deceased rescuer through a litigation administrator as a plaintiff, increase damages, and have related actions tried together.

The court considered Rule 5.04(2) of the Rules of Civil Procedure and the doctrine of special circumstances under the Trustee Act permitting addition of parties after expiry of the limitation period.

Applying authorities including Joseph v Paramount Canada’s Wonderland and Bikur Cholim Jewish Volunteer Services v Penna Estate, the court found special circumstances and no non‑compensable prejudice to the proposed defendant estate.

The court also found the presumption of prejudice rebutted given the existence of related proceedings and prior involvement of the estate in litigation arising from the same incident.

Leave to amend the claim and add the parties was granted and the related actions were ordered to be tried together.

The defendants brought a motion to strike a lengthy and verbose statement of claim under Rules 25.06, 25.11, and 27.02 of the Rules of Civil Procedure.

The pleading alleged fraudulent mortgage conduct, wrongful eviction, and related damages totalling $3.3 million.

The court found the statement of claim contained excessive evidence, argument, inflammatory language, and failed to plead material facts disclosing a reasonable cause of action.

It also improperly attempted to advance a counterclaim in a separate action after a statement of defence had already been filed in the related proceeding.

The court concluded the pleading was scandalous, frivolous, vexatious, and an abuse of process, and struck the statement of claim in its entirety without leave to amend.

The plaintiff brought a motion to set aside a Registrar’s order dismissing an action for delay.

The underlying claim alleged wrongful dismissal and related torts arising from the plaintiff’s cessation of employment as a delivery driver.

Applying the factors from Reid v Dow Corning Corp, the court held the plaintiff failed to adequately explain the litigation delay, did not demonstrate that missing the deadline was inadvertent, and failed to rebut the presumption of prejudice arising after the expiry of the limitation period.

The evidence showed the plaintiff had deliberately served a notice of discontinuance and focused instead on employment insurance appeals before later attempting to revive the action.

In the circumstances, it would be unjust to revive the litigation.