Michalyshyn J

4.22: Considerations for security for costs order

Case Summary

The Defendant applied for additional Security for Costs following a previous Security for Costs Decision. In the previous Decision, the Court concluded that the Plaintiff would be unable to pay Costs if it was unsuccessful at Trial; considered the factors set out in Rule 4.22; and ordered the quantum of security at $780,000.00 plus GST. In this Application, the Defendant applied for security in the amount of $557,195.00 for disbursements already incurred and that would be incurred.

Michalyshyn J. first dealt with a preliminary issue regarding Practice Note 4, the Guidelines for the Use of Technology in any Civil Litigation Matter. His Lordship determined that despite a previous Decision regarding e-discovery Costs, the matter had now become complex enough such that if the Defendant decided to follow Practice Note 4, it would not be precluded from seeking Costs for that effort and expense.

Michalyshyn J. then reviewed the Defendant’s Security for Costs Application and analyzed each of the claimed disbursement amounts. A significant portion of the claimed disbursements were related to e-discovery expenses. His Lordship held that it was not his role to determine if the e-discovery expenses were or were not best practice in the context of large-scale litigation. Rather, His Lordship had to decide on the record before him whether the approach taken by the Defendant was reasonable. The Court found that the Defendant adequately explained both the e-discovery services provided and the need for them. After discounting the e-discovery disbursement expense, the Court awarded the Defendant Security for Costs relating to e-discovery in the sum of $165,000.00 plus GST.

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