COURT FILE NO.: CV-17-577286
MOTION HEARD: 2019 11 06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hercules Michailidis
v.
Beata S. Vertes
BEFORE: MASTER R. A. MUIR
COUNSEL: Sjawal Bhutta for the defendant, moving party Stephen Whibbs for the plaintiff, responding party
REASONS FOR DECISION
[1] The defendant brings this motion for an order requiring the plaintiff to post security for costs pursuant to Rule 56.01(1)(a) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) as the plaintiff is currently a resident of the United States.
[2] The plaintiff is opposed to the relief sought by the defendant.
[3] At the outset of this motion, the plaintiff sought leave to file a further affidavit. Although this affidavit was delivered late and there is no reason why it could not have been served many weeks ago, I allowed it to be filed. This supplementary affidavit largely repeats the evidence of the plaintiff’s initial responding affidavit which was from a legal assistant based on information and belief. The defendant has had this further affidavit since November 4, 2019 and could have requested an adjournment if a reply was necessary. It is in the interest of justice that this evidence be considered by the court.
[4] This is a personal injury claim arising from a rear-end motor vehicle accident that took place on July 13, 2015.
[5] The relevant portion of Rule 56.01 provides, in part, 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 . . .
[6] The test on a motion of this nature is well settled. The initial onus is on the moving party who must demonstrate that the plaintiff fits within one or more of the provisions of Rule 56.01. Once the moving party does so, an inquiry is triggered, and the court must consider all relevant factors and make the order that is just in the circumstances of the action. The merits of the case are a relevant consideration as is the possible result of an order for security for costs preventing a bona fide claim from proceeding. If a plaintiff demonstrates impecuniosity, he or she can resist the motion by showing that the claim is not plainly devoid of merit. If impecuniosity is not established, closer scrutiny is warranted and the question of whether a plaintiff has shown a good chance of success becomes a relevant factor. However, it is important to note that a court hearing a motion for security for costs enjoys a broad discretion to make such order as is just in the circumstances of a particular proceeding. See Zeitoun v. Economical Insurance Group, 2008 CanLII 20996 (ON SCDC), [2008] OJ No. 1771 (Div Ct) at paragraphs 44 to 50; affirmed 2009 ONCA 415.
[7] These are the factors and principles I have applied in determining the issues on this motion. As stated above, I am guided by the central principle that an order for security for costs is discretionary. The role of the court on a motion such as this is to make the order that is just in the circumstances.
[8] The defendant has met her initial onus. The plaintiff concedes that he is ordinarily resident outside Ontario.
[9] The onus now shifts to the plaintiff to establish that an order for security for costs would not be just in the circumstances of this action. In my view, the plaintiff has met his onus. An order for security for costs would not be just.
[10] The plaintiff’s evidence on the issue of impecuniosity is clear. He has been mostly unemployed since the accident. His Canadian income tax returns from 2016 and 2017 confirm this. They show employment insurance benefits and very little income. For the tax year 2018, the plaintiff filed a joint income tax return in the United States with his partner. The plaintiff’s portion of the income on that return is less than $10,000.00 US. The plaintiff’s affidavit clearly states that he has no savings, liquid assets or other property to pay an order for security for costs. At least one credit card he possesses is in default and more than $4,000.00 US is owing on that account. The house he lives in with his spouse in Delaware is solely owned by his spouse who is not a party to this action. I am satisfied that the plaintiff has met his onus in terms of establishing impecuniosity.
[11] I am also satisfied that this action is not plainly devoid of merit. This was a rear-end collision. Liability is not in dispute. There is at least some evidence that the plaintiff suffered injuries arising from the accident resulting in ongoing back and neck pain leading to functional limitations. This claim clearly meets the very low test of being not plainly devoid of merit.
[12] When deciding a motion for security for costs, the court must take a holistic approach. It retains a broad discretion to make the order that is just in all the circumstances. For the reasons set out above, I have concluded that it would not be just to order security for costs in this case. The defendant’s motion is dismissed.
[13] The plaintiff has been successful and is entitled to costs. I accept that this was an important motion for the plaintiff as he faced the possibility of an order that would prevent him from continuing with his claim. However, this was not a complex motion. I am also of the view that there should be some costs sanction for the late delivery of the plaintiff’s supplementary evidence.
[14] In my view, it is fair and reasonable for the defendant to pay the plaintiff’s costs of this motion fixed in the amount of $1,000.00 inclusive of HST and disbursements. These costs shall be paid by December 6, 2019.
Master R. A. Muir
2019 11 06