Alisha joined Kornfeld LLP as an associate in 2015 after completing her articles with the firm.
Dan is a partner at the firm of Kornfeld LLP. He helps resolve commercial disputes for clients including investors, brokerage houses and financial institutions in the realization of claims by creditors and over disputed investments; entrepreneurs in claims over business assets, shareholder and partnership interests and commercial property; estates, trusts and beneficiaries over disputed wills, trusts and related claims; clients of realtors, lawyers, accountants, brokers and investment advisors; and businesses in the telecom, oil & gas and high-tech industries.
Defending a legal action can be an expensive process, even where a defendant is ultimately successful in having the claims against it dismissed. Normally, legal costs are “in the event”, so that a successful defendant will have some of its legal costs awarded to it. However, there may be serious difficulty recovering legal costs depending on the circumstances of the plaintiff – the plaintiff may have no assets, for example.
As a result, in certain cases, it will be appropriate to seek an order for “security for costs”, so that the plaintiff is required to pay a sum of money into court or into a trust account prior to trial of the action and the defendant can have quick recourse for its legal costs against those funds if it succeeds. An order for security can be an important defendant’s tool since a plaintiff who is ordered to, but does not post, security for costs will be precluded from pursuing its claims.
Interestingly, courts apply a different test in deciding whether to order security for costs depending on whether the plaintiff is a corporation or an individual. Where the plaintiff is an individual, the underlying concern is that poverty should not be a bar to the litigation proceeding. Thus, the “fact that the plaintiff resides outside the jurisdiction, has no assets within the jurisdiction, or is impecunious, is not sufficient in itself” to order security for costs. A defendant must show that special circumstances exist for the order, which “could arise if an impecunious plaintiff also has a weak claim, or has failed to pay costs before, or refused to follow a court order for payment of maintenance”.
In contrast, once a defendant can demonstrate that a corporate plaintiff will not likely be able to pay costs if the defendant is successful, security for costs is generally ordered unless the court is satisfied there is no arguable defence to the plaintiff’s claim. The likelihood that a corporate plaintiff will be barred from proceeding with a claim is an insufficient reason, without more, to refuse to order security for costs.
However, a corporate plaintiff may be wholly or substantially controlled by an individual who is also a plaintiff in the proceeding – in this scenario, an order requiring the corporate plaintiff to post security will likely affect the individual plaintiff as well. The question arises whether in such a situation the court should be less inclined to compel a corporate plaintiff to post security?
The British Columbia Court of Appeal recently considered this question and answered in the negative – the test remains the same against a corporate plaintiff even if there is a single shareholder who is also a plaintiff in the action.
In Ocean Pastures Corporation v. Old Masset Economic Development Corporation, 2016 BCCA 12 (“Ocean Pastures”), the two plaintiffs (a corporation and its sole shareholder) sued several defendants, including two corporations and three individuals. Early on, these defendants argued that the plaintiffs would not be able to pay costs if the action was dismissed because neither plaintiff appeared to have assets. The judge first hearing the application ordered security for costs for the actions against the three individual defendants, as the claims against them were weak, but refused to order security for costs for the claims against the corporate defendants.
Despite finding that security for costs would have been warranted if the corporate plaintiff’s claim had been considered in isolation from its shareholder’s claim, the chambers judge denied security, reasoning that (a) any security posted by the corporate plaintiff would have to be supplied by the individual plaintiff; and (b) there were no “special circumstances” which would have justified granting security against the individual plaintiff.
The corporate defendants appealed the decision, arguing that the chambers judge erred in law by applying the “special circumstances” test to the corporate plaintiff. In agreeing with the defendants, the Court of Appeal relied on an older English decision, for the principle that the existence of an individual plaintiff should not shield a corporate plaintiff from an order for security for costs, and that a stricter test for security for costs against corporations is appropriate to prevent individuals from using companies (with the benefit of limited liability) to abuse the litigation process.
Since an order requiring a plaintiff to post security for costs can be a decisive factor early in the litigation process, this decision of our Court of Appeal has both legal and practical implications. Notably, in Ocean Pastures, as the plaintiffs had failed to post security for costs for the actions against the individual defendants, those claims were dismissed. The Court of Appeal decision threatened to have the same result on the balance of the plaintiffs’ claims.
Ocean Pastures v. Old Masset Economic Development Corporation, 2016 BCCA 12 at para. 19
Ibid at para. 20, citing Han v. Cho, 2008 BCSC 1229
Ibid at para. 18, citing Fat Mel’s Restaurant Ltd. v. Canadian Northern Shield Insurance Co., (1993), 76 BCLR (2d) 231 (CA)
Ibid at para. 17, citing Kropp v. Swaneset Bay Golf Course Ltd. (1997), 29 BCLR (3d) 252 (C.A.)
Ibid at paras. 24 to 25, citing Pearson v. Naydler,  3 ER 531 (Ch. D)
Ibid at para. 10