motion to dismiss, to review and re-consider the original
decision for security” (para. 20).
— Once a failure to comply with an order to pay security for
costs is established, the “onus then shifts to the appellant
to provide compelling reasons why dismissal is not in the
interests of justice” (para. 25).
— An “appellant who simply re-argues that security is unwarranted, will likely be unsuccessful” (para. 28).
— “[I]mpecuniosity and the reasons for it” may be considered
(para. 30).
— The merits of the appeal are a factor to be considered in
such an analysis: para. 34.
[5] I agree that this is a useful list of principles to govern the
exercise of the discretion under rule 61.06(2). I would add that
the discretion under rule 61.06(2) should be exercised in light
of the particular subsection of rule 61.06(7) under which the
initial order was made. Different determinations justify an
order for security for costs under each of rule 61.06(1)(a), (b)
and (c). In paying careful attention and deference to the initial
decision, a judge hearing a motion under subrule (2) should
be mindful of the different considerations that applied in the
particular case.
[6] For example, where an order is made pursuant to rule
61.06(1)(a), a judge will already have determined that the
appeal is without merit and the responding party has insufficient assets in Ontario to pay the costs of the appeal. Therefore, in hearing a motion under subrule (2), the judge should
begin with the premise that the appeal is without merit and
the responding party has insufficient assets in Ontario. In such
cases, one would expect that the responding party would face
an uphill battle in persuading a judge the appeal should not
be dismissed.
[7] Usually, where an order is made “for other good reason”
under rule 61.06(1)(c), it is because the judge who made the
order was not satisfied that security for costs could ordered
under rule 61.06(1)(a) or (b). It seems to me that, where an
order is made under rule 61.06(1)(c), the motion judge under
rule 61.06(2) ought to attend carefully to the reasons given by
the judge ordering security for costs and the different considerations that applied in the particular case. Those should inform
the analysis of whether a dismissal order is appropriate.
