SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-402338

DATE: 20130214

RE: Salih Amir Carey, Plaintiff

AND:

Her Majesty the Queen in Right of Ontario as represented by The Ministry of Community Safety and Correctional Services, Niagara Detention Centre, Metin Ahmed, Rafet Ahmed and James Rice, Defendants

BEFORE: Himel J.

COUNSEL:
Vanessa A. Tanner, for the Plaintiff, Responding party

Ann Christian-Brown, for the Defendants, Moving party

HEARD: February 11, 2013

ENDORSEMENT

[1] The defendant, Her Majesty the Queen in right of Ontario as represented by the Ministry of Community Safety and Correctional Services (the “Crown”), brings a motion for an order for security for costs under Rule 56.01(1) on the basis that the plaintiff is ordinarily resident outside of Ontario.

FACTUAL BACKGROUND:

[2] Salih Amir Carey was incarcerated at the Niagara Detention Centre for an immigration violation. On May 4, 2008, he sustained serious personal injuries while he was an inmate at the facility. The plaintiff alleges that while he was playing chess in the dormitory, he was assaulted from behind by three inmates who used a weapon known as a “jailhouse toffee” which is made from sugar and coffee whitening powder packed in a plastic cup until it is hard. The area where the assault took place was dark, there were no cameras and there were no guards present. When he was assaulted, the guards appeared and he was taken to the hospital where he remained for two days. He sustained severe lacerations, the loss of his eye, a broken nose and he required sutures. No weapon was located in the facility. The three inmates were charged with aggravated assault. When he was released from custody on January 27, 2009, he was advised that he was being deported back to the United States. He has been residing in Texas since that date. According to his counsel, he has retained an immigration paralegal to assist in returning to Ontario and maintains that his intention is to reside in Ontario.

[3] The plaintiff commenced an action on May 3, 2010 for damages in the amount of $5 million and $1 million in aggravated and punitive damages plus interest and costs. The Crown has defended the action on behalf of the government. The three inmates have not defended the action and have been noted in default. The matter has not progressed much past the pleadings stage. The parties scheduled examinations for discovery which did not proceed. At a status hearing, the parties agreed on a timetable which was ordered by the court on consent. Affidavits of documents have not been exchanged and discoveries have not taken place. When the parties were attempting to schedule examinations for discovery, the plaintiff’s counsel requested that the plaintiff attend examinations by Skype or telephone as the plaintiff was not in Ontario. The defendant says that is when it learned that the plaintiff had been deported to the United States and was no longer in Canada. The defendant would not agree to these arrangements. The Crown then moved for an order for security for costs.

POSITIONS OF THE PARTIES:

[4] The defendant takes the position that, pursuant to Rule 56.01, where a plaintiff is ordinarily resident outside Ontario, the court may grant an order for security for costs where it is just to do so. The defendant argues that the plaintiff has not provided evidence of impecuniosity or that he has sufficient assets within the jurisdiction to justify any award of costs in the Crown’s favour. The Crown has produced a draft bill of costs and submits that the court should make an order for security for costs in the amount of $15,153.60 representing fees and disbursements to the conclusion of examinations for discovery and that the payment should be made within 30 days to the Accountant of the Superior Court of Justice. The Crown also requests an order that the plaintiff be prohibited from taking any steps in the proceeding until such time as the security for costs ordered has been made.

[5] The plaintiff opposes the motion and asks that it be dismissed on the basis that (1) it does not appear that the plaintiff is ordinarily resident outside of Ontario; (2) there is no reason to believe that the plaintiff has insufficient assets in Ontario or in Texas where he now resides; and (3) with respect to the merits of the plaintiff’s claim, the plaintiff’s claim is not devoid of merit and is not certain to fail. In the alternative, the plaintiff argues that the defendant’s motion is premature as the merits of the case cannot be demonstrated as documents with respect to liability have not been exchanged and examinations for discovery have not yet occurred.

THE LAW:

[6] Rule 56.01(1) provides as follows:

56.01(1) 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.

(e) there is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent;

[7] On a motion for an order under Rule 56.01, the moving party must demonstrate that the responding party falls within the ambit of the rule. Once the defendant demonstrates that the plaintiff is ordinarily resident outside Ontario and falls within the ambit of Rule 56.01(1), the plaintiff bears the onus of showing why an order for security for costs should not be granted in favour of the party seeking it. The court has the discretion to make such an order for security for costs as is just. “In exercising its discretion, the court must consider various factors including any alleged impecuniosity of the plaintiff, the merits of the plaintiff’s claim and the ability of the plaintiff to proceed with the claim if an order were made”: see West v. Casino Niagara [2006] O.J. No. 693 (Sup. Ct.) at para. 4.

[8] Where the plaintiff asserts that he is impecunious, he has the onus of proving that through evidence concerning his financial situation. In Hallum v. Canadian Memorial Chiropractic College (1989), 1989 4354 (ON SC), 70 O.R. (2d) 119, [1989] O.J. No. 1399 (H.C.J.), Doherty J. wrote at para. 18:

A litigant who falls within one of the categories created by rule 56.01(a) to (f), and who relies on his impecuniosity to avoid an order requiring that he post security, must do more than adduce some evidence of impecuniosity. The onus rests on him to satisfy the court that he is impecunious: City Paving Co. v. Port Colborne (City) (1985), 3 C.P.C. (2d) 316 (Ont. Master’s Ch.). The onus rests on the party relying on impecuniosity, not by virtue of the language of rule 56.01, but because his financial capabilities are within his knowledge and are not known to his opponent; and because he asserts his impecuniosity as a shield against an order as to security for costs.

[9] Where impecuniosity is shown, the plaintiff needs only to demonstrate that the claim is not plainly devoid of merit. Where impecuniosity has not been shown, a higher threshold is required: see Zeitoun v. Economical Insurance Group, (2008) 2008 20996 (ON SCDC), 91 O.R. (3d) 131 (Div.Ct.) at paras. 50-1; affirmed 2009 ONCA 415, [2009] O.J. No. 2003 (C.A.). In Zeitoun, the court wrote as follows:

Where impecuniosity has not been shown however, a closer scrutiny of the merits of the case is warranted; in those cases there is no compelling argument that there is a danger that poverty of the plaintiff will cause an injustice by impeding pursuit of a claim that otherwise would have been permitted to be tried. Where impecuniosity has not been shown, a legitimate factor in deciding whether or not it would be just to require security for costs is whether the claim has a good chance of success.

The fact that the plaintiffs adduced no evidence going to the merits of the action is clearly a failure to show that the claim has a good or even a reasonable chance of success and is, in my view, also a failure to show that the claim is not devoid of merit or not bound to fail….

[10] Where the plaintiff asserts he has assets within the jurisdiction to satisfy any costs awards, the onus is on the plaintiff to show assets and establish they are of a sufficient value to meet an award of costs. He must demonstrate how he arrived at the valuation for each asset tendered: see McNamee v. Rikona Food Corp. [2001] O.J. No. 1331 (Master, Sup.Ct.).

DECISION:

[11] Under Rule 56.01, the moving party must demonstrate that the responding party falls within the ambit of the rule. Once the moving party has met that initial onus, the onus shifts to the responding party. The court may make such an order for security for costs as is just. The exercise of discretion requires an examination of all the circumstances including the merits of the claim, a balancing of the interests of the parties, a review of the financial circumstances of the plaintiff, the possible effect of an order in preventing a bona fide claim from proceeding and permitting frivolous matters to continue where there is no prospect of recovering costs of the litigation: see Cigar500.com Inc. v. Ashton Distributors Inc., (2009) 90 O.R. (3d) 55 (Sup. Ct.) at para. 35.

[12] In this case, the moving party relies on subsection (1)(a) that the plaintiff is not ordinarily resident in the province. While the plaintiff disputes this and argues that his residency is at issue as he intends to return to Ontario and is making efforts to challenge his deportation and return, the documentary evidence does not support that conclusion. First, his counsel wrote in correspondence to counsel for the Crown on August 20, 2012 saying, “…since our client was deported to the United States and may find it difficult to get a visa to return to Canada….” Second, the documentation from the Niagara Regional Centre indicates that the plaintiff is an American citizen who has been deported twice from Canada before he was deported on this last occasion. In fact, he was deported in 2007, returned to Ontario and was held in custody since June 2007 on an immigration hold until he was injured in May 2008 and then ordered deported. The reality is that he can hardly be said to be resident in Ontario. I am satisfied that the Crown has met the onus of demonstrating that he falls within the ambit of Rule 56.01(1)(a). That the first step is made out does not determine the matter. It triggers an inquiry with reference to the second step. I now turn to an examination of the circumstances to decide whether it is just to make an order for security for costs.

[13] The plaintiff argues that Texas is a potential reciprocating jurisdiction which is a circumstance that should be considered.

[14] The financial circumstances of the plaintiff is a relevant factor to consider. As was set out in Zeitoun, supra at paras. 48-50 and referred to above, where the plaintiff has shown impecuniosity, the plaintiff needs only to demonstrate that the claim is not plainly devoid of merit. Where impecuniosity has not been shown, a closer scrutiny of the merits of the cause is warranted. The Crown argues that there is no evidence of the plaintiff’s financial situation. I agree. The plaintiff has filed no evidence regarding his financial situation. I am unable to conclude whether he is impecunious or whether he has sufficient assets in either Ontario or in Texas.

[15] I now turn to the merits of the case which is a factor in the exercise of discretion. The plaintiff argues that the test is as set out in Stojanovich v. Bulut 2011 ONSC 874, [2011] O.J. No. 840 (Sup. Ct.) where the Master held that the court must determine whether the case is “not devoid of merit” or that “it has some chance of success”: at para. 12. Counsel submits that unless it is plainly devoid of merit, it should be allowed to proceed. She argues that the plaintiff had merely to show that the claim was not almost certain to fail: see Zeitoun, supra at para. 28; Padnos v. Luminart Inc. (1997) 1996 11781 (ON SC), 32 O.R. (3d) 120 (Gen. Div.); John Wink Ltd. v. Sico Inc. (1987), 1987 4299 (ON SC), 57 O.R. (2d) 705.

[16] In the case at bar, where there is no evidence of financial circumstances and impecuniosity cannot be shown, the plaintiff must meet the higher burden of proof concerning the merits of the case. Here, the plaintiff argues that the Crown has a fiduciary duty in providing for the care and custody of inmates of its facilities: see Corrections and Conditional Release Act, SC 1992, c. 20, s. 5. Prison guards and correctional officials have an obligation to take reasonable steps to protect an inmate from fellow inmates: see Norman Corner v. The Queen, unreported decision released December 11, 2002, at para 32. The Crown does not dispute that a duty of care is owed by correctional officials to a prisoner in their custody to take care for his safety: see R. v. Rosa (2012) ONSC 279 at para. 41; R. v. Feeney, (2008) ONCA 756 at paras. 4-5. However, counsel for the Crown argues that there is no evidence of a breach of the duty and the standard of care owed by the Crown to the plaintiff. Counsel submits that there is an absence of evidence concerning the potential liability of the defendant. In particular, she argues that counsel for the plaintiff should have made a request for information concerning the policies, procedures and security precautions taken in the Niagara Detention Centre and presented that to the court in support of her position on the liability of the Crown.

[17] In my view, it would be unjust to require the plaintiff at this early stage to produce evidence concerning the prison procedures and security measures taken at the Niagara Detention Centre, information which is in the possession of the defendant. The plaintiff made a request under the Freedom of Information and Protection of Privacy Act concerning the assault and received partial information about the incident. However, certain information was withheld concerning the detention centre where he was incarcerated. That type of information will be available as a result of disclosure and discovery between the parties.

[18] I conclude that the motion for an order for security for costs is premature. It is impossible to consider the merits of the plaintiff’s case in the absence of evidence concerning the procedures and security precautions taken in the facility and the circumstances of the plaintiff’s incarceration at the time of the incident. The plaintiff cannot be expected to provide a fuller evidentiary record. The plaintiff has filed evidence through the affidavit of his solicitor that while he was in custody, he was attacked from behind by three inmates with an object that was created in the facility and that it was dark, there were no cameras and no guards present at the time. He suffered very significant injuries. Three inmates have been charged with aggravated assault. Even, with the evidentiary record being somewhat light, there is still sufficient evidence before me that the plaintiff’s claim has merit.

RESULT:

[19] The defendant has demonstrated that the plaintiff is not ordinarily resident in Ontario. An order for security for costs involves “consideration of two fundamental values in our system of litigation”…, “The first is that everyone should be able to have their day in court; the second that defendants must have reasonable protection from claims that have no merit.”: see Wall v. Horn Abbot Ltd., 1999 7240 (NS CA), [1999] N.S.J. no. 124, 29 C.P.C. (4th) 204 (C.A.) at p. 208 per Cromwell J.A. (as he then was).

[20] In considering those competing values and examining the circumstances of the case, I find that it would not be just to order that the plaintiff post security for costs on the present record filed and at this time. For these reasons, the defendant’s motion under Rule 56.01(1) is dismissed. Costs are fixed in favour of the plaintiff on the partial indemnity scale, in the amount of $2,500 inclusive of fees and disbursements and HST, an amount I deem fair and reasonable in the circumstances of the case, payable by the defendant to the plaintiff within thirty days.

Himel J.

Date: February 14, 2013