Miraj S.A. v. Gerovital, Inc.
T-2745-97
Rothstein J.
27/2/98
7 pp.
Appeal from refusal of application for security for costs-Refusal based on fact plaintiff in Canada-Defendant alleging Canadian plaintiff, Jordache, nominal plaintiff-Court exercising discretion de novo because order not mentioning status of Jordache Corp.-Federal Court Rules, R. 446(1) providing where on defendant's application, appearing to Court (a) plaintiff ordinarily resident out of jurisdiction, (b) plaintiff nominal plaintiff, and reason to believe will be unable to pay costs of defendant if ordered to do so, Court may order plaintiff to give security for defendant's costs of action-General rule when both foreign, domestic plaintiffs, security for costs not normally ordered against foreign plaintiffs because plaintiffs within jurisdiction are defendant's security for costs-No reason why defendants in cases where plaintiffs both outside, within Court's jurisdiction should be entitled to security for costs when would not be entitled to such security when plaintiffs all within Court's jurisdiction-But if claims of foreign, domestic plaintiffs arising under different causes of action or otherwise so different defendants not able to look to domestic plaintiffs for costs ordered against foreign plaintiffs, order for security for costs could be made-Onus on defendants to show such divergence of result between plaintiffs outside, within jurisdiction could arise, and that plaintiffs within jurisdiction could therefore not be resorted to to satisfy order for costs in favour of defendants-Defendants not doing so here-No reason why general rule should not operate in this case-Existence of Canadian plaintiff, barring application of R. 446(1)(b), sufficient to justify refusing order for security for costs against plaintiffs-Therefore defendants required to show both (1) Jordache Corp. nominal plaintiff, and (2) reason to believe unable to pay costs if ordered to do so-Defendants failing on both grounds-For purposes of appeal Jordache not nominal plaintiff-No evidence Jordache unable to pay costs-Appeal dismissed-Federal Court Rules, C.R.C., c. 663, R. 446(1).