Defendants Succeed In Getting Security For Costs Despite Plaintiffs’ Action Not Being Frivolous (Walker v. Smith)

Under rule 56 of the Rules of Civil Procedure, a defendant can seek an order for security of costs against a plaintiff in certain limited circumstances. This is an important rule because it protects a defendant from being required to defend a case for years, only to be denied recovery for their costs if successful at trial. In Ontario, the costs of litigation are governed by the “loser pays” principle. This principle is designed to impose discipline on litigants, and to act as a disincentive to the commencement of meritless claims.

In Walker v. Smith, (Court File No. CV-22-00683420-0000, May 13, 2026, Myers J. (not on CanLII)), lawyers at Gardiner Roberts LLP successfully obtained an order for security of costs against the plaintiffs under subrules 56.01(c) and (d).