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Security for Costs

Norseman Construction & Development Ltd. v. Evdemon Ont SCJ (MC)

Owner moved for lien claimant to post security for costs. The Master granted leave to bring the motion to achieve procedural fairness as set out in the Biotechnic decision of Master Sandler. However, the Master held that the owner did not satisfy the initial test that the defendant had insufficient assets to pay costs. The owner had to provide enough information to raise a belief of insufficiency going beyond mere conjecture, hunch, or speculation. Evidence that the defendant owned no land and had PPSA registrations against was not evidence of an insufficiency of assets. A credit rating of “fair” was certainly not evidence of insolvency. Even if the Master had found that the owner had met the the onus, the Master indicated that he would probably not have granted the order simply because the owner waited far too long to bring the motion, over a year after the owner had first contemplated doing so.

Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.