Can a judge order costs to be paid forthwith on the grounds of impecuniosity?

Ontario, Canada


The following excerpt is from Hillier and Maverick Paintball Inc. v. Hutchens et al, 2014 ONSC 1579 (CanLII):

In Bottan v. Vroom, [2001] O.J. No. 2737 (S.C.J.), Nordheimer J. dealt with an identical motion. In that case, the plaintiff claimed impecuniosity, and argued that the matter should be determined on the merits at trial. At para. 23 Nordheimer J. pointed out that failing to give effect to a costs order made by another judge amounts to second-guessing that judge’s order, which he lacks jurisdiction to do: Third, even assuming that these parties are impecunious, I do not know of any authority, and I was not referred to any, which would permit one judge, on the basis of a party's impecuniosity, to relieve against an order made by another judge that costs be paid forthwith. To do so, I would either have to be sitting in appeal from the order (which I am not) or I would have to have a basis to vary the order. The grounds upon which an order may be varied are set out in rule 59.06 and none of those are applicable here. Further, assuming there remains a residual authority to do so in order to prevent an injustice or to reflect extraordinary circumstances, I find none here. The orders for costs which were made by Somers J., Then J. and B. Wright J. were made with full knowledge of the facts and circumstances of this case. They clearly viewed it as appropriate to order that the costs be paid forthwith in the circumstances. I am not in a position to second guess the exercise of their discretion regarding the payment of costs nor would it be appropriate for me to do so.

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