Security for Costs – Individual Plaintiffs – Residence Outside the Jurisdiction
Stephen Antle and Alan Cofman for the Petitioners

The Respondents in a proceeding seeking certain shareholders remedies for allegedly unfair treatment of minority shareholders brought an application for an order requiring the Petitioners (several individuals and a family trust) to post security for costs in the amount of $66,000. The Petitioners resided in Pennsylvania, which is not a reciprocating jurisdiction under the B.C. Court Order Enforcement Act. The Petitioners presented evidence that they had assets in British Columbia, notably a fund residing with BLG in trust for the purpose of paying any costs awards made in the proceeding, and that they had significant assets in Pennsylvania.

The court noted that its inherent jurisdiction to order security for costs be posted by individual claimants cannot be exercised merely because the claimants reside outside of and/or have no assets in British Columbia. It further noted that the factors to be considered in determining whether to order security for costs against a corporate claimant are different than the considerations where the claimants are individuals, and said that such an award will only be made against an individual in “egregious or special circumstances”. It found none in this case and made particular note of the Respondents' failure to show that a cost award in their favour would not be satisfied in dismissing the application.