Date: 20010524
Docket: T-588-00
Neutral Citation: 2001 FCT 524
BETWEEN:
EARLY RECOVERED RESOURCES INC.
Plaintiff
- and -
GULF LOG SALVAGE CO-OPERATIVE
ASSOCIATION, HER MAJESTY IN RIGHT
OF THE PROVINCE OF BRITISH COLUMBIA,
and JIM DOYLE, MINISTER OF FORESTS
Defendants
REASONS
Mr. John A. Hargrave, Prothonotary
[1] The outcome of this motion hinges upon the burdens on the parties in a situation in which a Defendant brings a motion that a Plaintiff, a Corporation, provide security for costs. Here the Defendant, Gulf Log Salvage Co-Operative Association (also called "Gulf Log"), successfully asserts that the Plaintiff has insufficient assets in Canada to pay any substantial award of the costs to the Defendant and thus, under Rule 416(1)(b), it is entitled to security for costs.
[2] To summarize the procedure under Rule 416(1)(b), the burden of proof is on the person who asserts the affirmative of the issue, but only to a certain point. Here it is for the Defendant to make the prima facie case of insufficient assets with which to pay costs, if the Plaintiff were so ordered. There is then a passing of onus to the Plaintiff, or perhaps more aptly a requirement that the Plaintiff balance the evidence and thereby show that indeed it has appropriate exigible assets by which to satisfy an order as to costs. I will explore the case law on all of this in due course, but first some basic facts are in order.
FACTS
[3] Gulf Log Salvage Co-Operative Association, is composed of individuals representing logging companies, insurance companies, insurance brokers, transportation companies and log brokers, which is licensed to operate a station to receive loose logs which have been recovered by beachcombers who hold permits to gather up or salvage logs, all pursuant to Part 9 of the Forest Act of British Columbia R.S.B.C. 1996 c. 157, dealing with marine log salvage and to the Log Salvage Regulations, B.C. Regulations 220/81, made under the Forest Act.
[4] At issue is a constitutionality of Part 9 of the Forest Act. The Plaintiff says that the Log Salvage provisions under the Forest Act are ultra vires the Province of British Columbia by reason of the Federal Government's exclusive jurisdiction over navigation and shipping under section 91(10) of the Constitution Act of 1867 and by virtue of section 52 of the Constitution Act of 1867: in the alternative, the Provincial legislation is said to be inoperative to the extent that it conflicts with the Canada Shipping Act and with the International Convention on Salvage of 1989.
[5] All of this is not particularly straight forward. Counsel for the Defendant, who is experienced, estimates that the trial will last five days. Counsel's estimate of the taxable cost of the Defendant, Gulf Log Salvage Co-Operative Association, making the reasonable assumption that the matter will not settle, is $28,219.65. I accept that this is a conservative value for costs and disbursements.
[6] Gulf Log, being of the view that the Plaintiff would not have assets sufficient to satisfy such an award of cost, if matters went against it, requested the Plaintiff produce financial statements and other financial information which would demonstrate its ability to satisfy an award of costs. That material has not been forthcoming. Thus the present motion.
ANALYSIS
[7] The provision of security for costs by a corporate plaintiff is set out in Rule 416(1)(b):
Where, on the motion of the defendant, it appears to the Court that ...
(b) the plaintiff is a Corporation.... and there is reasons to believe that the plaintiff would have insufficient assets in Canada available to pay the costs of the defendant, if ordered to do so....
The Court may order the plaintiff to give security for the defendant's costs.
Here I would make two observations. First, the various sections setting out criteria under which security may be obtained, (a) through (h) of Rule 416(1), are disjunctive. Second, while the measure under Rule 416(1)(b) by which a plaintiff is required to give security for costs is an insufficiency of assets in Canada, on the plain reading of the Rule, it is not limited to foreign corporations with insufficient assets in Canada, the foreign plaintiff being dealt with, at the discretion of the Court, under Rule 416(1)(a). Here one may also look to Rule 416(1)(g), which again applies the test of availability of assets in Canada to costs in an action which is believed to be frivolous and vexatious.
[8] In that I will call the loose leaf edition of Orkin on Costs, 2nd Edition, 2000, Canada Law Book Inc. of Ontario, it is appropriate to note the similarity of our Rule, set out above, with Ontario Rule 56.01(1) which provides that a plaintiff may be order to put up security for costs in certain circumstances including where:
The plaintiff or applicant is a Corporation... and there is good reasons to believe that the plaintiff or applicant has insufficient assets in Canada to pay the costs of the defendant or respondent;...
Here, as a starting point, I will refer to a passage from Orkin (supra) at section 503.6, page 5-27, as follows:
On a motion for security under rule 56.01(1)(d) the onus is on the defendants to show that there is good reasons to believe the corporate plaintiff has insufficient assets to answer for costs. Once that has been established, the onus passes to the plaintiff to show either that it has sufficient assets or that it should be permitted to proceed to trial despite its lack of assets. As to the merits of the case, the onus is on the plaintiff to show, not that the claim is likely to succeed, but that it is almost certain not to fail.
I will return in due course to the concept of an impecunious corporate plaintiff being entitled to have the case heard, without posting security for costs, so long as the case is one which is almost certain not to fail. This passage from Orkin goes on to deal with the truly impecunious plaintiff, which is also dealt with in Federal Court Rule 417, however the principle situation here is not whether the corporate Plaintiff is truly impecunious, including that it cannot raise money elsewhere, but rather whether there is reason to believe that the Plaintiff has insufficient assets to meet an award of costs.
[9] Orkin makes it clear that the onus is initially on the defendant to establish good reason to believe the corporate plaintiff has insufficient assets, at which point the onus passes to the plaintiff to establish either a sufficiency of assets or that it be permitted to proceed to trial despite a lack of assets, all of this being discretionary.
[10] While the passage from Orkin is exceedingly well footnoted, I shall limit my consideration of the case law on the shifting of onus or burden, to three cases. The first in time is Ruko of Canada Ltd. v. C.I.B.C. (1991) 49 C.P.C. (2d) 105, a decision of the B.C. Supreme Court, at pages 106 and 108. The first reference is to a portion of the head-note:
Once the defendant has made out a prima facie case that the plaintiff might be unable to pay costs, the plaintiff was required to show that it had exigible assets of sufficient value to satisfy an award of costs.
Similarly, at page 108, Mr. Justice Spencer, comments, in part:
In my judgment what is required, once the defendant has shown a prima facie case that the plaintiff may be unable to pay costs, is evidence to show exigible assets.
[11] Also pertinent is Superstars Mississauga Inc. v. Ambler-Courtney Ltd. (1993) 15 O.R. (3d) 437, a decision of the Ontario General Division. There, at page 441, Master Peppiatt adopted a passage from an Ontario High Court of Justice decision in John Wink Ltd. v. Sico Inc. (1987) 57 O.R. (2d) 705 at 707, which again has an internal reference:
I agree with Trainor J.'s views on how a motion under rule 56.01(d) should proceed as set out in Warren Industrial Feldspar Co. Ltd. v. Union Carbide Canada Ltd. et al. (1986), 54 O.R. (2d) 213, 8 C.P.C. (2d) 1. The onus lies on defendant to show that there is a good reason to believe that the plaintiff has insufficient assets. Thereupon the onus passes to plaintiff to show either that it has sufficient assets, or that it should be permitted to proceed to trail in spite of the lack of them, with the consequent prospect that a successful defendant will not be able to collect the costs awarded.
In Superstars Mississauga Inc., at issue was whether an Ontario Corporation had sufficient assets to meet an award of costs and thus might be excused from posting security: the defendant was successful in showing a prima facie case, which the plaintiff was unable to rebut.
[12] The final case in this line of authorities is a decision of Mr. Justice Rouleau in Trekka Canada Inc. v. Guardian Insurance Ltd. (1999) 153 F.T.R. 233, in which the defendant believed that the trustee of Trekka Canada Inc., a bankrupt, would to be unable to meet any award of costs, a position upon which the defendant was successful. There Mr. Justice Rouleau adopted the head-note from Superstars Mississauga, referred to above, to the effect that once the defendants had raised a prima facie case, it was for the plaintiff to rebut that case: see page 235.
[13] In the present instance Gulf Log has succeeded in establishing that the Plaintiff had no employees and owned no real property. In passing I note that, at least in this instance, it is not relevant in establishing a prima facie case of lack of exigible assets that the Plaintiff operates out of the residence of its principles. On this aspect the Plaintiff refers me to Miraj S.A. v. Gerovital Inc. (1998) 142 F.T.R. 236, a decision of Mr. Justice Rothstein, as he then was. The motion in Miraj dealt with security for costs of a plaintiff ordinarily resident out of a jurisdiction, under Rule 446. Security for costs was denied as there were plaintiffs both within and outside the jurisdiction. Mr. Justice Rothstein noted the initial onus on the defendant (as is the situation under Rule 416) and that the defendant had merely established that the Ontario plaintiff was a one person company operating out of a residence and that it appeared to have no credit rating. However, Gulf Log does not take only this tack, that of a family company with no credit rating. Indeed, I put no stock in Gulf Log's submission that the Plaintiff, Early Recovered Resources Inc., is a private company, maintaining no employees and operating out of the family home.
[14] Gulf Log did establish that the Plaintiff owned a 1997 Ford pickup and a 1999 Ford Taurus automobile, obtain through an essentially even trade of an 1999 Chevrolet Silverado pickup truck, the trade being given a bill of sale value of $38,000.00, when it occurred early this year.
[15] I would again note that counsel for the defendant, Gulf Log, did request copies of the financial records of the Plaintiff. However, production of "financial statements or any other financial information" of the Plaintiff was refused by Plaintiff's counsel by letter of 5 February 2001. On cross-examination on the affidavit of Mrs. Weishuhn, a "co-owner" of the Plaintiff, counsel for Defendant confirmed that financial material had not been produced. On cross-examination Mrs. Weishuhn conceded that she did not know the current mileage on either vehicle, or indeed on the vehicle which had been traded-in to obtain the present Taurus automobile and Ford pickup, or the ages of the work boats owned by the Plaintiff. Nor had the Plaintiff obtained any independent appraisals of its equipment.
[16] Gulf Log was also able to establish that the Plaintiff owned a 22.2 foot aluminium work boat registered in the Port of Vancouver and shown as being built in 1980. In addition, Gulf Log established that the Plaintiff owned two small licensed vessels, an eighteen foot fibre glass vessel, age unknown, but which the Plaintiff had owned for 17 years and a twenty-four and a half foot fibre glass vessel, again age unknown, but owned by the Plaintiff for 17 years. Values ascribed to the vessels are those of the principals who are not vessel appraisers. All of this, coupled with a refusal by the Plaintiff to provide any financial records, or any reliable evidence as to age, mileage (in the case of vehicles), condition, or independently assessed market value, establishes a prima facie case that the Plaintiff lacks exigible assets by which it might satisfy a possible award of costs, should the Plaintiff loss its case.
[17] Turning to the position of the Plaintiff, counsel for the Plaintiff disputes any shift of burden or onus to the Plaintiff, maintaining, if I understand the position correctly, that counsel for Gulf Log ought to have cross-examined Mrs. Weishuhn further as to the value of the assets. The cross-examination was brief and to the point: it establishes Gulf Log's case. Moreover, it is neither an obligation of, nor a burden on Gulf Log, through its counsel to put in the Plaintiff's case by way of an extended cross-examination of the Plaintiff. I also have in mind that while cross-examination on an affidavit is not confined by the four corners of the affidavit, it is not as free ranging as an examination for discovery and cannot be used in order to obtain all of the information and documents which might be useful. Gulf Log merely has to establish a prima facie case and need not explore beyond that standard, nor, as I have said, put in the Plaintiff's case. One would expect the Plaintiff to put into evidence its financial status by way of affidavit evidence, in opposition to the motion.
[18] Counsel for Plaintiff also relies on the affidavit of Mrs. Weishuhn. The affidavit, reduced to its essentials, sets out a list of five assets, the Ford Taurus, the Ford pickup and three licensed vessels. Mrs. Weishuhn relies upon figures appearing on documentation prepared by the dealer at the time of the trade-in of the Silverado pickup and upon her own estimate of the values of the three vessels, admitting that she is not in the business of buying and selling vessels. Counsel for the Plaintiff was able to bolster this affidavit evidence somewhat on re-examination whereby Mrs. Weishuhn said that she based the value of the vessels on consultation with her husband and relied upon some twenty years of operating such craft.
[19] If one were able to take the affidavit of Mrs. Weishuhn at face value, the assets total some $90,000.00. Mrs. Weishuhn deposes that "there are no debts secured or leans (sic) registered against any of these assets." This is weak, for it ignores the possibility of claims of lien, including maritime liens, against the vessels, which would not appear in any register, but the existence of which might be either suggested or discounted by an examination of the Plaintiff's financial records. There is also some confusion, of which perhaps Mrs. Weishuhn was unaware, as to the documentation of the three vessels. Counsel for Gulf Log turned up an aluminum work boat 22.2 feet in length, registered to the Plaintiff at the Ship's Registry in Vancouver. The Plaintiff's material refers to three licensed small craft, one of which, one might surmise, is also the registered vessel. This is indicative either of loose ends and general sloppiness in the affidavit of Mrs. Weishuhn, or a weakness in her knowledge of the operation of the Plaintiff and in any event, registration and licencing of a vessel being mutually exclusive, of sloppy vessel documentation practices on the part of the Plaintiff. Here I would also note that the Plaintiff initially advised that it had no assets and claimed, in written representations, that it was impecunious. However, counsel later filed the Weishuhn affidavit, setting out several assets and withdrew the claim of impecuniosity. Again this is indicative of some confusion on the part of the Plaintiff as to its financial situation.
[20] The question now becomes whether the material in the affidavit of Mrs. Weishuhn rebuts the prima facie case established by Gulf Log, that there is reasons to doubt the Plaintiff's ability to satisfy an order for costs.
[21] I will begin with a fuller quote from the head-note of Ruko of Canada Ltd. (supra) at page 106.
Once the defendant has made out a prima facie case that the plaintiff might be unable to pay costs, the plaintiff was required to show that it had exigible assets of sufficient value to satisfy an award of costs. The prior assignment of book accounts might give the defendant bank security for its costs and the defendant bank's case for an order for security for costs, though appearing to be marginal on that basis, was reinforced by the fact that the plaintiff company appeared to have no other assets in the jurisdiction and by the fact that although the plaintiff's materials indicate that it had assets in Ontario, the nature of those assets, whether transitory or permanent, and the extent to which they may be encumbered, were not disclosed. Thus, no evidence of any sort had been led for the plaintiff to show what the nature of its assets was and whether they were exigible.
The requirement set out here is that there be some sort of evidence, from the Plaintiff, to show the nature of its assets, the extent to which they might be encumbered and whether the assets are exigible. In Ruko there were no assets in British Columbia, but there were some assets in Ontario, said to be worth three or four million dollars. However, there was no evidence by which to establish the net worth of the plaintiff, the nature of its assets, which might have been trade goods, and whether the assets were exigible:
... There is no evidence of any assets within this province except to show that whatever its book accounts are they were assigned to the defendant bank in 1977 and again to the Canadian Commercial and Industrial Bank in 1980. Neither assignment appears to have been discharged. The prior assignment may give the defendant bank security for its costs, but the bank's officer deposes that he knows of no other substantial and readily exigible assets in this province. That raises a marginal case for security to be posted, but it is reinforced by two other pieces of evidence about the plaintiff's ability to pay costs. The first is that its vice-president, Renate Koppe, is said by Mr. Van Soest who is apparently directing this litigation in British Columbia, to have informed him that the plaintiff has approximately 3 to 4 million dollars of assets in Ontario. Nothing is said of any in this province and I assume, from the silence on the point that there are none. I also note that the reference to Ruko's assets makes no mention whether they are net assets or encumbered assets. In my judgment what is required, once the defendant has shown a prima facie case that the plaintiff may be unable to pay costs, is evidence to show exigible assets. The defendant's concern is not satisfied by showing that there are assets that are subject to some priority and would not be available to the defendants in the event of their success. The absence of any reference to net worth is made more critical here because the plaintiff's primary corporate object is shown to be to import, export, and generally trade in merchandise. That raises the suggestion that its assets may consist of inventory of a transient nature rather than of more permanent and exigible assets. While that is not shown definitively to be the case, no evidence of any sort has been led for the plaintiff to show what the nature of its assets are and whether they are exigible. (Page 108).
On the basis of Ruko, the Plaintiff in this instance has failed to establish the net value of the vehicles and vessels, or to dispel the possibility of liens against the vessels, and to establish that the vessels and vehicles are exigible in the sense of appropriate assets of a kind that might be conveniently realized. This leads to Williams v. Turner (1986) 13 C.P.C. (2d) 55, a decision of Master Clark of the Ontario Supreme Court.
[22] In Williams v. Turner at issue was whether the various plaintiffs had appropriate assets to satisfy any award of costs which might be made. There a portion of the plaintiff's affidavit, sworn to satisfy the onus on the plaintiff to show appropriate assets, sets out a belief that one of the plaintiffs is the owner of a house... "which is unencumbered and has a value of approximately $180,000.00." Master Clark, after discussing and finding fault with the characterization of that plaintiff, goes on to raise a number of questions found to be unanswered:
If I am wrong in that, then I still find the evidence to be unsatisfactory in that the words "which is unencumbered and has a value of approximately $180,000.00," are vague and in need of substantiation. For instance, is Mr. Sherban married? If so, does his wife have a latent claim or interest in the property? Was Mr. Sherban qualified to evaluate the property in the first place? If the evaluation was the work of another, who was it, and when was it done? When Mr. Sherban says that the property is unencumbered, does he also mean that there are no executions outstanding against him? All of these unanswered questions and more, are relevant to a finding that Mr. Sherban's house is an "appropriate asset" . (Page 58)
Transposing these questions into the present setting, we have the issues as to whether Mrs. Weishuhn and her husband are qualified to evaluate the property held by the Plaintiff and whether the Plaintiff's assets are truly unencumbered in the sense of liens or perhaps even executions, for Mrs. Weishuhn's affidavit does not touch on those issues.
[23] In Williams v. Turner, Master Clark went on to view the affidavit as sparse. He then commented:
It is my view that in such circumstances as are present here, before supplying an affidavit a deponent should inform himself as to all relevant information and provide a full and complete affidavit designed to dispel in advance all of the obvious concerns. Otherwise, how can the onus be discharged? (Page 59)
Again, in the present instance, not only has the Plaintiff refused to provide financial information, which might well discharge the onus, but also Mrs. Weishuhn has failed to inform herself as to all relevant information, both in preparation for swearing the affidavit and in preparation for cross-examination on the affidavit and thus has been unable to dispel in advance a number of obvious concerns.
[24] The final case which I will touch upon, in this consideration of exigible assets and particularly a refusal to provide financial statements, is Serviceware Corp. v. Ensil Canada Ltd., an unreported 1 March 2000 decision of Master Beaudoin of the Ontario Superior Court, file 98-Cv-007273. There at issue was security for costs under Ontario Rule 56.01(1), which I have already set out in part, and whether there was good reasons to believe that Serviceware Corp. had insufficient assets to pay costs. Master Beaudoin noted the onus on the plaintiff to show that it had appropriate assets to satisfy an order as to costs.
[25] In Serviceware Corp. the plaintiff, without justification, provided only an unaudited financial statement which did not disclose the extent of any liabilities. There is a passage at paragraph 12 which is relevant to the present situation:
... Once again, however, the courts seem somewhat frustrated by the plaintiff's refusal to produce a complete financial picture. In short, the court is provided with an amount for accounts receivable in Ontario where the plaintiff refuses the disclose the identity of customers.
It concerned Master Beaudoin that there was no reference to the expenses of the plaintiff company and whether the plaintiff would be in a positive or negative financial position. In the present instance, there is a complete absence of financial material or financial statements to show whether the Plaintiff is in a positive or negative position.
[26] I should also comment further upon the valuations deposed to by Mrs. Weishuhn, who admits that no independent appraisal of the three vessels was ever done, but says, on re-examination, that she and her husband have had some experience, over some twenty years, having been in the business of operating vessels and repairing those vessels. In short she relied upon on her experience and the experience of her husband in valuing the three vessels. Here I would refer to Canada v. Crossan (2000) 169 F.T.R. 218, a decision of Mr. Justice Evans, as he was then. An issue was the accuracy of a land valuation. Counsel sought to rely upon a valuation in a transcript of an examination of discovery of a principle of one of the defendants who had owned and operated businesses in the national park in question for more than twenty years. Mr. Justice Evans said:
While appraisals may be almost as much an art as science, I can attach relatively little weight to the opinion of the value of land given by a person such as Mr. Murray, who is neither a professionally qualified appraiser, nor disinterested in the value of the property. (Page 222)
Here we have valuations given by Mrs. Weishuhn, who is neither professionally qualified nor disinterested in the value of the Plaintiff's assets. The Judgement of Mr. Justice Evans was upheld on appeal (2001) 265 N.R. 112.
[27] Fatal to the Plaintiff's attempt to rebut the prima facie case of the Defendant are various factors including a refusal to provide evidence of its financial position, an inability to provide reliable evidence of the age, condition and saleability of its vehicles and vessels, any evidence of vehicle mileage, any disinterested and professional valuation of the Plaintiff's assets, or material to help establish the absence of creditors interested in the assets and particularly any indications of the absence of in rem claimants to the vessels. All of this might have been accomplished by the Plaintiff presenting its financial report, copies of vessel and vehicle searches to negate the possibility of claims and some independent indication of value. This might have accomplished quickly and inexpensively, thus easily rebutting the obvious prima facie case which was being put into place by Gulf Log in its motion material.
[28] To complete the consideration, I must look at Rule 417, which deals with grounds for refusing security for costs and allowing the Plaintiff to get on with its case:
The Court may refuse to order the security for costs be given under any of paragraphs 416(1)(a) to (g) if the plaintiff demonstrate impecuniosity and the Court is of the opinion that the case has merit.
[29] The Plaintiff is probably not impecunious and here I would refer to both to the withdrawal of the plea of impecuniosity and to the establishment of the ownership of some assets which may or may not give the Plaintiff a positive net worth. Further, there is no evidence as to whether or not the Plaintiff might have the credit to borrow funds. However, leaving this aside, there is a question of whether the action has merit, a requirement for relief from security for costs under Rule 217. Counsel for the Plaintiff submits that the matter should go to trial as there are important constitutional challenges, live issues and immense implications. Without taking into account, for the moment, both that it may be very difficult for the Plaintiff to prove that a legislative scheme in place and operating in British Columbia is ultra vires the provincial legislature and whether to establish the Plaintiff can rely upon Article 14 of the International Convention on Salvage of 1989 and Article 14 thereof, which governs "... salvage operations in respect of a vessel which by itself or its cargo threatened damage to the environment...", the most telling fact is that the Federal Department of Justice has declined to intervene: this is more than a suggestion that the constitutional issues raised by the Plaintiff are viewed as of little merit by the Government of Canada.
[30] As I noted earlier the Ontario test, as set out in Orkin, for allowing an impecunious corporate plaintiff to proceed without posting security for costs, is that the claim be one which the plaintiff establishes not merely as likely to succeed, but as almost certain not to fail. This seems a rather high standard, one which might mitigate against an unusual claim or a difficult claim which has merit. Yet a defendant, faced with the claim of an impecunious corporate plaintiff, a claim to which there may well be a good defence, ought to have some protection. I do not need to decide if the appropriate test is the high standard of certainty that the claim will not fail, for the Plaintiff falls short of satisfying the plain wording of Rule 417.
[31] The present case does not attract the benefit of Rule 417, that is the grounds for refusing security for costs and allowing the Plaintiff to proceed, for I have not been convinced by the Plaintiff that the case has merit. I am not convinced that the case is such as to make it deserving or worthy of consideration on the basis of substance, elements or grounds of a cause of action, which entitle the Plaintiff to have the matter enquired into by the Court under the relief provided in Rule 417.
CONCLUSION
[32] While this action is a little over a year old, it would appear that Gulf Log has brought this application in a timely manner so that no delay has occurred to prejudice the Plaintiff. The case for security for costs brought by Gulf Log is a simple one dealing with the worth of the Plaintiff, whose assets consist of two vehicles of indeterminate mileage and condition and three small and perhaps elderly vessels of uncertain condition, used in log salvage work. Gulf Log points to a lack of any financial information or appraisal of assets of substance. By reason of all of this Gulf Log is concerned that costs, such as those represented in its reasonable draft bill of costs, would not be satisfied. Indeed, Gulf Log has made a prima facie case for want of exigible assets.
[33] It would have been simple for the Plaintiff, given the clear the direction of Gulf Log's motion for security for costs, to refute the motion, including by the production of material, and particularly financial material, within the knowledge of the Plaintiff and of which it is difficult for the Defendant or the Court to learn more than that which the Plaintiff chooses to reveal and here I would refer to Superstars Mississauga Inc. (supra) for a passage at page 441:
The plaintiffs have not filed any material dealing with their financial position. As I have observed in a number of cases, such as Smallwood v. Sparling (1983), 40 O.R. (2d) 796, 34 C.P.C. 24, affirmed (1983), 42 O.R. (2d) 53, 34 C.P.C. 24 at 29 (H.C.J.), per Galligan J., and McCormack v. Newman (1983), 35 C.P.C. 298, a plaintiff's financial circumstances are peculiarly within his, her or its own knowledge, and it is very difficult for a defendant or a court to learn anything more than that which the plaintiff chooses to reveal. This means that there is an onus upon such a plaintiff to rebut a prima facie case raised by a defendant under circumstances such as this.
[34] The Plaintiff having failed both to satisfy the onus to show sufficient exigible assets to satisfy an award of costs and to establish a meritorious case entitling it to relief from furnishing security for costs under Rule 417, the motion for security of costs of Gulf Log, in the amount of $28,219.65, succeeds, together with its claim for costs.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
24 May 2001
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