Olympia Interiors Ltd. v. Canada
T-1436-92
Gibson J.
15/10/93
10 pp.
Application for security for costs-R. 446 providing where nominal plaintiff suing for benefit of another, and reason to believe unable to pay costs if ordered to do so, Court may order plaintiff to give security for costs -- Defendant submitting as plaintiff undertaking to use monies recovered in litigation to first pay debts to financial institutions, nominal plaintiffs to extent of indebtedness -- Also arguing as two court orders against plaintiffs remaining unpaid, good reason to believe insufficient assets to pay any award of costs -- Application dismissed -- Not nominal plaintiff if having real interest in result of litigation: Elia v. Spring, [1941] O.W.N. 407 (H.C.J.) -- Plaintiffs having very "real interest" at level of principle and reputation in result of litigation -- Individual plaintiff pursuing Crown and employees for years in related litigation -- Corporate plaintiff party to litigation since individual plaintiff acquired control -- Litigation history commencing prior to undertakings to financial institutions -- Plaintiffs clearly bound into fabric of litigation -- Not front men, "men of straw" for financial institutions -- Plaintiffs having direct, significant interest in results of litigation -- Even if only economic interest constituting "real interest" for purpose of test of nominal plaintiff, plaintiffs not nominal as monies recovered if action proceeds might exceed amounts covered by undertakings to financial institutions -- Fact court orders relating to individual plaintiff's personal bankruptcy remaining unpaid not constituting "cogent evidence" respondents unable to pay costs, but merely evidence not complying with court orders -- No evidence defendant moving to enforce orders -- If enforcement measures futile, then cogent evidence reason to believe plaintiffs unable to pay costs if so ordered -- Costs in the cause -- Federal Court Rules, C.R.C., c. 663, RR. 344 (as am. by SOR/87-221, s. 2), 446 (as am. by SOR/90-846, s. 14).