strekaf j

4.22: Considerations for security for costs order
7.3: Summary Judgment (Application and decision)

Case Summary

The Defendants applied for Summary Dismissal of an Action brought against them by their son-in-law who was seeking to recover proceeds from the sale of two properties and damages for pain and suffering allegedly inflicted on him. In the alternative, they sought an Order for Security for Costs against the Plaintiff. The Defendants counterclaimed for damages against the Plaintiff for mental anguish.

With respect to the claim related to the proceeds from properties, Strekaf J. noted that there was conflicting Affidavit evidence which required credibility findings with respect to, inter alia, the nature of the transactions involving the properties, the properties’ beneficial owner, and who contributed to the purchase and renovation of the properties. As such, Her Ladyship held that the Claim relating to the properties could not be dismissed.

However, Strekaf J. summarily dismissed the Claim related to the Plaintiff’s allegations of pain and suffering. Justice Strekaf held that the Plaintiff had failed to provide evidence to satisfy the elements of the tort of intentional infliction of mental suffering. Further, after a review of the authorities, Strekaf J. held that it was inappropriate to extend the tort of intentional infliction of mental suffering to this case.

Strekaf J. considered whether Security for Costs should be ordered as the Action was not dismissed in its entirety. Her Ladyship noted that the test for Security for Costs involves two steps: the Court must consider the factors outlined in Rule 4.22, and then should consider whether ordering Security for Costs is just and reasonable in the circumstances. Considering all the factors listed in Rule 4.22, Strekaf J. held that factors in Rule 4.22(a)-(d) militated in favour of granting Security for Costs; however, the Counterclaim militated against it. Although the Counterclaim sought damages for mental anguish, the Plaintiff had not applied to dismiss it. So long as it was outstanding, it would not be just and reasonable for the Plaintiff to post Security for Costs, as he would have to participate in the Trial of the Counterclaim. Justice Strekaf observed that, if the Counterclaim were discontinued, Security for Costs would be appropriate for future steps. Strekaf J. did not grant the Application for Security for Costs, but ordered Security for Costs in the event the Counterclaim was discontinued within two months from the date of the Judgment.

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