SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NOS.: 14-CV-511932 and 511934
MOTION HEARD: September 8, 2015

14-CV-511932

Re: Ethel Wiafe

Plaintiff

and

Carl Wagstaff

Defendant

AND BETWEEN:

14-CV-511934

Kwame Otcherie Awuah

Plaintiff

and

Carl Wagstaff

Defendant

BEFORE: Master Thomas Hawkins

APPEARANCES:
Grant D. Bodnaryk for moving defendant
F (416) 977-1241

Seta Boyadjian for responding plaintiffs
F (416) 352-1686

REASONS FOR DECISION

Nature of Motion

[1] I have before me two parallel motions for security for costs in two parallel actions against the same defendant for damages arising out of the same motor vehicle accident. The plaintiffs are husband and wife.

[2] Both motions were brought in part under subrule 56.01(1)(a), and in part under subrule 56.01(1)(e). These subrules 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..,

(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 ….

[3] When these actions were commenced both plaintiffs resided in Ontario. However, by the time these motions were brought, the plaintiffs had both moved to the Republic of Ghana in West Africa. They concede that they are now ordinarily resident outside Ontario. That being so, the defendant is prima facie entitled to security for costs from both plaintiffs, but for the developments I have described in paragraphs [7] to [8] below.

[4] The defendant submits that he is also entitled to security for costs from both plaintiffs because their actions are frivolous and vexatious. This is so despite the fact that the defendant has admitted liability for the motor vehicle accident giving rise to both actions because, the defendant submits, the injuries the plaintiffs suffered in that accident are so minor that neither plaintiff will clear the injury threshold and damages deductible set out in the Insurance Act, R.S.O. 1990 c I.8 as amended.

[5] The evidence before me on these motions is such that I am not able to determine whether or not the plaintiffs suffered injuries so severe that each plaintiff will succeed in clearing the statutory threshold and that their damages will each be assessed in an amount that exceeds the statutory deductible. I am therefore unable to determine whether or not each action is frivolous and vexatious.

[6] This is not fatal to the defendant’s motions for security for costs because the defendant is prima facie entitled to security for costs on the ground that both plaintiffs are ordinarily resident out of Ontario, but for the following.

[7] Before I released any decision on these motions plaintiffs’ counsel undertook to transfer these actions to the Small Claims Court. The registrar may make orders transferring these actions to the Small Claims Court under subsection 23(2) of the Courts of Justice Act, R.S.O. 1990 c.C.43 as amended if all parties consent. If the defendant will not consent the plaintiffs may move for transfer orders based on the inherent jurisdiction of the court to control its own proceedings.

[8] If these actions are transferred to the Small Claims Court, these motions will not succeed. The Small Claims Court does not have jurisdiction to order a plaintiff to post security for costs.

[9] For the above reasons I will reserve the balance of my decision for 120 days to give the plaintiffs an opportunity to (a) require the registrar to transfer these actions to the Small Claims Court if the defendant consents, or, (b) to bring two motions for orders transferring these actions to the Small Claims Court if the defendant will not consent.

[10] If after 120 days have elapsed neither event has occurred the parties may advise me by letter and I will release the balance of my decision. Either way, I will have to decide what orders to make respecting the costs of these motions before me.

(original signed)

Date: October 19, 2015
Master Thomas Hawkins