Court File and Parties

COURT FILE NO.: CV-22-90607 DATE: 2023/05/09 SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN: CHANTRS BLINDS & SHUTTERS INC. Plaintiff

- and -

2037208 ONTARIO INC. and SONIA PERNA Defendants

BEFORE: Justice H.J. Williams

COUNSEL: Joseph Griffiths, Lawyer for the Plaintiff Andrew Lister, Lawyer for the Defendants

HEARD: May 9, 2023

Endorsement

[1] The defendants have brought a motion to dismiss the action for failure to pay security for costs and costs.

[2] On December 5, 2022, the plaintiff was ordered to pay $45,000 in security for costs within 60 days. In February 2023, the plaintiff’s counsel informed the defendants’ counsel that the plaintiff had secured 50 per cent of the ordered security and expected to have the balance by the end of February. The plaintiff’s counsel requested an extension of time to the end of February and also asked that the security be kept “in our trust accounts” pending the outcome of the trial. The defendants rejected both proposals.

[3] On March 8, 2023, the plaintiff was ordered to pay, within 30 days, $8,400 in costs of the security for costs motion.

[4] To date, the plaintiff has neither posted nor paid any amount toward the security for costs or the costs.

[5] Rule 56.06 of the Rules of Civil Procedure provides that an action “may” be dismissed for failure to post security for costs if ordered.

[6] In deciding whether to dismiss the action, I must weigh the principle that compliance with procedural orders is an important goal and the principle that the risk of unjustly depriving a plaintiff of a fair and just resolution of a claim on the merits, due to the effect of security for costs, is to be avoided. (Whitty v. Wells, 2019 ONCA 397, at para. 12).

[7] I am very hesitant to deprive a litigant of its right to access the courts. I also recognize that the amount of the security for costs ordered in this case is not insignificant.

[8] However, “[t]he law is clear that a court will dismiss the action of a party who does not comply with an order for security for costs if that party does not provide the court with a compelling reason to exercise its discretion to grant it another indulgence”: Bokserman v. MacDonald Associates PC, 2021 ONSC 977, at para. 7, citing Belende v. Greenspoon, at para. 4. Further, a plaintiff facing a motion under Rule 56.06 “must put ‘their best foot forward’”: Bokserman, citing Leonard v. Prior.

[9] The plaintiff filed no evidence in response to the defendants’ motion.

[10] In a factum, the plaintiff argued that a plaintiff in its situation should be given an opportunity to cure its default. The plaintiff also submitted that, because the action has been stayed pending payment of the security, allowing it more time to pay would not result in prejudice to the defendants.

[11] The plaintiff also said in its factum that it had raised half of the amount of the security and that it required time to raise the balance. However, the only evidence in support of the assertion that it had raised half of the ordered security was an email sent by the plaintiff’s counsel to the defendants’ counsel. In that email, the plaintiff’s counsel had requested an extension of time to the end of February to pay the full amount. The email is not admissible for its truth and there was no evidence, such as a bank or trust account statement, in support of the plaintiff’s assertion that some of the security had been raised. The end of February has come and gone, and no amount has been posted. The plaintiff has not proposed a timetable for payment of the security. In its factum, it simply asked for dismissal of the defendants’ motion.

[12] Five months have passed since the security for costs order was made. There is no evidence that the plaintiff is making efforts to raise the amount ordered or that it expects to be able to raise the amount ordered by a specific date or at all. By failing to file any evidence in response to the motion, the plaintiff has given me no basis to conclude that not dismissing the action at this time would be anything other than delaying the inevitable. The defendants’ interests must also be considered in this case. As the plaintiff has not complied with the security for costs order, the defendants want the litigation to stop now.

[13] For these reasons, the motion is granted. The action is dismissed under Rule 56.06 due to the plaintiff’s failure to comply with the security for costs order.

[14] The defendants filed a bill of costs and the parties made oral costs submissions. Having considered the factors listed under Rule 57.01, I order the plaintiff to pay the defendants’ costs of the motion on a partial indemnity basis, in the fixed amount of $3,682.76, inclusive of disbursements and HST.

Justice H. J. Williams Released: May 9, 2023