SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 07-CV-346289SR
MOTION HEARD: December 6, 2011

RE: Elfreda Williams et al

AND:
City of Toronto et al

BEFORE: Master Hawkins

COUNSEL:
Christopher Stanek and Erin Farrell for moving defendant City of Toronto
Fax: (416) 862-7661

Derek Smith for responding plaintiffs
Fax: (416) 408-3811

No one for defendant Royalcrest Paving & Construction Inc.

REASONS FOR DECISION

[ 1 ] This is a motion by the defendant the City of Toronto (the “City”) for an order under subrule 56.01 (1)(a) for security for costs against the plaintiff Elfreda Williams (“Ms Williams”) on the ground that she is ordinarily resident out of Ontario, namely in Jamica in the West Indies.

[ 2 ] Subrule 56.01(1)(a) provides as follows.

The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,

(a) the plaintiff or applicant is ordinarily resident outside Ontario.

[ 3 ] No order is sought against the three other plaintiffs. They are the adult children of Ms. Williams. They bring claims under the provisions of the Family Law Act, R.S.O. 1990 cF-3.

[ 4 ] There is no parallel motion by the second defendant Royalcrest Paving & Construction Inc. The parties are agreed that Royalcrest is to be let out of the action.

[ 5 ] Ms. Williams alleges that she was injured on January 7, 2006 when she slipped and fell on snow and ice on a Toronto sidewalk.

[ 6 ] Ms. Williams concedes that she is ordinarily resident out of Ontario and has no assets in Ontario. Ms. Williams resists this motion on the ground that she is imprecunious.

[ 7 ] This action is brought under the simplified procedure in Rule 76. Master Sproat conducted a pre-trial of this action on January 6, 2011. At that time Master Sproat set a trial date with the consent of the City. Because of this, the City requires leave under subrule 48.04(1) to bring this motion.

[ 8 ] Subrule 48.04(1) provides as follows.

Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.

[ 9 ] The simplified procedure motion form filed by the City in support of this motion does not expressly seek leave to bring this motion. Instead the City sought leave to bring this motion during argument. I decline to dismiss this motion on the ground that leave was not expressly sought in the City’s motion form.

[ 10 ] In 885191 Ontario Ltd. v. Turner , 2011 ONSC 918 Lauwers J. held (at paragraph 14) that the exercise of the court’s discretion to grant leave under subrule 48.04(1) is dependent on the circumstances of the case.

[ 11 ] The following circumstances are relevant to the issue of whether I should grant the City leave to bring this motion.

[ 12 ] At the time of the accident Ms. Williams was resident in Toronto and held a work visa. She returned to Jamaica in March 2010 after that visa expired and she could not quickly obtain a new work visa.

[ 13 ] Counsel for the City concedes that the City was aware that Ms. Williams was in Jamaica at the time of this action went to mediation in the fall of 2010 and at the time of the pre-trial on January 6, 2011. At the pre-trial Ms. Williams’ counsel stated that she intended to reapply for a work visa in March 2011.

[ 14 ] In my view, this motion has been brought very late. Counsel for the City submits that the City was entitled to postpone bringing this motion until the City became aware that Ms. Williams was not returning to Canada. He says he first learned of this in a telephone conversation with Ms. Williams’ counsel on September 15, 2011. It seems to me that counsel for the City should have had that conversation in April, 2011. He should have called Ms. Williams’ lawyer at that time to see if Ms. Williams had successfully applied for a new work visa in March, 2011 and intended to return to Canada. If he had had that conversation in April 2011 this motion could have been disposed of far enough in advance of the December 5, 2011 trial date that no adjournment of the trial would be necessary. Instead, the City’s motion record was served in early October with the result that Ms. Williams has been prejudiced by the fact that the trial has now been postponed to April 16, 2012.

[ 15 ] That said, this prejudice is not such that it is mentioned in the affidavit which Ms. Williams’ lawyer filed in response to this motion. That affidavit does not complain of prejudice resulting from the City’s delay in bringing this motion.

[ 16 ] In these circumstances I have come to the conclusion that the City should be granted leave to bring this motion. So ordered.

[ 17 ] As I have said, Ms. Williams resists this motion on the ground that she is impecunious. In John Wink Ltd. v. Sico Inc. (1987), 57 O.R. (2d) 705 Reid J. said the following (at pages 709-9) about impecunious litigants and motions for security for costs.

There can be no question that an injustice would result if a meritorious claim were prevented from reaching trial because of the poverty of a plaintiff. If the consequence of an order for costs would be to destroy such a claim no order should be made. Injustice would be even more manifest if the impoverishment of the plaintiff were caused by the very acts of which the plaintiff complains in the action.

In my respectful opinion, unless a claim is plainly devoid of merit, it should be allowed to proceed. That is the only “special circumstance” that I would require. While the adoption of this standard might allow some cases to go to trial that the trial will prove should not have proceeded, nevertheless, the danger of injustice resulting from wrongly destroying claims that should have been permitted to go to trial is to my mind a greater injustice. In my experience, there are very few claims that are entirely without merit that go to and through a trial. The onus on plaintiff is therefore not to show that the claim is likely to succeed. It is merely to show that it is not almost certain to fail.

[ 18 ] Counsel for the City submits that the evidence before me of Ms. Williams’ financial circumstances is not sufficient to prove that Ms. Williams is impecunious. Certainly that evidence is terse. If Ms. Williams lived in Canada or in a country with an economy like that of Canada, I would expect much more information about her financial circumstances. However, Ms. Williams does not live in Canada. She lives in Jamaica.

[ 19 ] I believe that I can take judicial notice of the notorious fact that there is a lot of poverty in Jamaica.

[ 20 ] The evidence before me is to the effect that while she lived in Canada, she worked off and on as a caregiver for seniors. That sort of employment does not lead to material wealth. The affidavit which Ms. Williams’ lawyer filed in response to this motion indicates that Ms. Williams is currently unemployed. Ms. Williams is currently supported by her son, who pays for her groceries and provides for her accommodation. (I take this son to be the plaintiff Jason Copeland, who, according to the statement of claim, resides in the town of Mandeville in Jamaica. Her other son, the plaintiff Richard Kelly, resides in Toronto.) Ms. Williams has no property and no savings. If ordered to post security, she could not do so.

[ 21 ] The evidence before me is silent on the subject of whether Ms. Williams could raise security for costs by borrowing the money. However, based on what I do know about Ms. Williams’ financial circumstances, she could not offer a lender any security and could not service any loan. In those circumstances, I would be utterly astonished if someone were to lend Ms. Williams even a fraction of the over $56,000 which the City wants in security for costs.

[ 22 ] All in all, the evidence of Ms. Williams’ impecuniosity has an air of reality about it. Having reviewed that evidence, I have come to the conclusion that Ms. Williams has established that she is impecunious.

[ 23 ] Counsel for the City pointed to a number of difficulties which Ms. Williams faces should her action proceed to trial. Ms. Williams says that there was a considerable amount of ice and snow on the sidewalk where she fell. However, a City employee patrolled the relevant street the day before Ms. Williams fell and did not report any hazard at the accident location. Ms. Williams must prove that the City was grossly negligent.

[ 24 ] That said, I do not regard Ms. Williams’ action as one which (to use the words of Reid J. in John Wink ) is plainly devoid of merit or almost certain to fail.

[ 25 ] For all these reasons, this motion is dismissed. The plaintiffs have been successful on this motion and are entitled to the costs of it. I fix those costs at $2,500 and order the City to pay such costs to the plaintiffs within 30 days.

Master T.R. Hawkins

Date: January 10, 2012