What is the test for securing security for costs against a plaintiff?

British Columbia, Canada


The following excerpt is from Scotford Electrical et al v. Blue Mountain Log Sales et al, 2005 BCSC 538 (CanLII):

In Grant v. Henderson Development (Canada) Ltd., 2003 BCSC 1473, the defendant sought an order for security for costs against three corporate plaintiffs. Allan J., at ¶ 6, stated that once a defendant made out a prima facie case that the plaintiff would not be able to pay costs, the plaintiff must either show it has exigible assets sufficient to pay costs or that equitable factors make an order for security inappropriate. At ¶ 7 Allan J. states that one such equitable factor is impecuniosity, where an order may stifle the claim and deprive the plaintiff of their day in court. At ¶ 11 Allan J. stated: 11 One of the principals of Punto [one of the corporate plaintiffs] deposes that if he is required to pay security for costs, he may not be able to continue with the lawsuit. He says that his company has no assets because of the conduct of the defendants. After setting out the seven principles for the awarding of security from Kropp, Allan J. reached the following conclusion with respect to Punto, at ¶ 23: “Punto is likely to be deterred from pursuing its claims against the defendants if security is ordered against it; its impecuniosity is tied to its claims in this action.” No other reasons were given for declining to award security against Punto.

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