Overriding consideration was whether order for security for costs would be just

Plaintiffs were unsuccessful in defamation action against defendants and were ordered to pay costs of action in amount of $1,478,766.64. Plaintiffs appealed dismissal of action and award of costs. Prior to trial, plaintiffs paid into court $300,000 as security for costs. Defendants were unsuccessful on their motion for order requiring plaintiffs to pay additional security for costs of appeal and for costs awarded at trial as appeal was found not to be vexatious and there was no other good reason to order security for costs of appeal. Further, there was no basis to lift automatic stay in respect of award of costs of trial as defendants had not provided evidence that they would suffer financial hardship if stay was not lifted, and had not established conditions for entitlement to order for security for costs. Defendants brought motion to vary or set aside motion judge's dismissal. Motion dismissed. Motion judge considered record and concluded that information that was provided demonstrated that plaintiffs had sufficient assets in Ontario to pay costs of the appeal. Under R. 61.06(1)(a) of Civil Rules of Procedure (Rules), test in respect of sufficiency of assets is tied only to ability to pay costs of appeal. Even if defendants’ interpretation of R. 61.06(1)(b) and R. 56.01(1)(d) of Rules were accepted, or if there were some other reason to consider sufficiency of corporate plaintiff’s assets to satisfy costs order in court below, overriding consideration was whether order for security for costs would be just, which was question that needs to be considered holistically, taking into consideration circumstances of particular case. Motion judge was correct that s. 12 of Libel and Slander Act does not provide automatic right to obtain security of costs of trial which had already occurred, where such security would not otherwise be granted. Further, motion judge was correct that there was no other good reason to order security for costs under R. 61.06(1)(c) of Rules.

Health Genetic Center Corp. v. New Scientist Magazine (2019), 2019 CarswellOnt 19992, 2019 ONCA 968, K. van Rensburg J.A., David M. Paciocco J.A., and Thorburn J.A. (Ont. C.A.); affirmed (2019), 2019 CarswellOnt 10858, 2019 ONCA 576, David Brown J.A. (Ont. C.A.).

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