Defendant was prima facie entitled to security for costs

Federal appeal | Civil Practice and Procedure

Costs

Security for costs

Defendant was prima facie entitled to security for costs

Plaintiff was serving life sentence for murde­­r and, in recent years, commenced 17 actions, applications and appeals against defendant Canada in various courts. These appeals arose from plaintiff’s action for damages and two applications for judicial review of grievance decisions. Plaintiff conceded he was indebted to defendant for unpaid costs, now totaling over $31,000. In light of outstanding costs and R. 416(1)(f) of Federal Court Rules, defendant was prima facie entitled to security for costs, and motions judge found accordingly. R. 417 provided poverty should not be bar to litigation, and security for costs should be denied when it would preclude impecunious plaintiff from advancing otherwise meritorious claim. Motions judge found plaintiff did not meet threshold of impecuniosity as he was able to pay court fees to commence numerous proceedings, and able to pay those litigation disbursements. Plaintiff brought appeal from three orders for security for costs made by motions judge. Appeal dismissed. Plaintiff filed financial documentation that showed he had limited financial means, and motions judge’s inference was questionable, as plaintiff’s ability to pay court fees and disbursements was not indicative of ability to pay much larger amount of costs. Motions judge made decision on basis of one factor rather than assessment of plaintiff’s overall financial situation. Plaintiff also had to establish impracticality of borrowing from third party with robust particularity and failed to discharge his onus. Plaintiff’s family members had helped in in past and affidavits filed were short on particulars to explain change in circumstances. There was no direct evidence plaintiff’s wife was ill and unable to work, medical evidence was not up to date, and there was no information on her financial resources or assets.
Mapara v. Canada (Attorney General) (2016), 2016 CarswellNat 6498, 2016 FCA 305, J.D. Denis Pelletier J.A., A.F. Scott J.A., and Yves de Montigny J.A. (F.C.A.).

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