Michalyshyn j

4.22: Considerations for security for costs order
5.30: Undertakings

Case Summary

This was an Application to compel Undertakings arising from a cross-examination on an Affidavit sworn in support of a Security for Costs Application. The Respondent, Horton CBI Limited, argued that the Undertakings were overly onerous and were not necessary for this Application and inappropriate at such an early stage in the proceedings. The Court reviewed the case law and relevant authorities dealing with the scope of cross-examination in a Security for Costs Application.

Justice Michalyshyn noted that “the answering of undertakings must not be grossly disproportionate to the likely benefit of an answer”. However, the Court also noted that “the scope of cross-examination is wide if the merits of the suit are relevant to an application”, as is the case in an Application under Rule 4.22. Justice Michalyshyn reviewed recent prior authorities and noted that the test for a Rule 4.22 Application includes a review of the merits of the Action as well as the likelihood of success of the Plaintiff’s claims. In the result, Michalyshyn J. rejected the Respondent’s argument that answering the Undertakings would be overly onerous and that the efforts to produce them would be grossly disproportionate to the likely benefit of seeing them answered. The Application was granted.

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