Motion judge’s exercise of discretion to dismiss individual plaintiff’s action was reversible error

Order for security for costs imposed joint and several obligation on individual and corporate plaintiffs

COSTS - Security for costs

Plaintiffs brought four actions against government and government employees and were ordered to pay $230,000 in security for costs, on joint and several basis, in two installments. Individual plaintiff funded half of first installment of $100,000. Prior to due date for second installment, plaintiffs brought motion to vary security for costs order and defendants moved to have actions dismissed for failure to pay second installment. Motion judge refused to vary amount of security for costs, granted corporate plaintiffs, but not individual plaintiff, extension of time to post second installment of security, and dismissed individual plaintiff’s claims. Individual plaintiff appealed. Appeal allowed. Motion judge’s exercise of discretion to dismiss individual plaintiff’s action was reversible error. Order for security for costs imposed obligation on individual and corporate plaintiffs that was joint and several, which meant that compliance by any party would satisfy it for all. Motion judge did not engage in balancing of principle that compliance with procedural orders was important goal against principle that risk of unjustly depriving plaintiff of fair and just resolution of claim on merits, due to effect of security for costs, was to be avoided. Inferences made by motions judge, that individual plaintiff was no longer interested in being plaintiff because he expressly declined to post further security and because his claim was modest, were not available. Individual plaintiff did not expressly decline to post further security.

Whitty v. Wells (2019), 2019 CarswellOnt 7451, 2019 ONCA 397, Alexandra Hoy A.C.J.O., P. Lauwers J.A., and B. Zarnett J.A. (Ont. C.A.); varied (2018), 2018 CarswellOnt 15571, 2018 ONSC 5572, F.L. Myers J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 16709, 2018 ONSC 6012, F.L. Myers J. (Ont. S.C.J.).

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