Litigation Strategy vs. Justness Of The Case: When Are Security For Costs Appropriate?

We previously wrote about the Court of Appeal for Ontario's decision in Yaiguaje v. Chevron Corporation to order the Ecuadorian plaintiffs to post nearly $1,000,000 as security for costs. Since that post, the plaintiffs brought a motion to vary the decision ordering security for costs to a panel of the Court of Appeal. The Court of Appeal varied the decision of the motion's judge.

This decision provides appellate authority on the suitability of security for costs orders, and a caution against using such orders as a litigation tactic where the justness of the case demands that it be heard on its merits.

The Court released its reasons for decision on October 31, 2017. In its reasons, the Court first established that the standard of review applicable to the motion judge's decision was one of deference, as orders for security for costs are discretionary in nature. However, notwithstanding this deferential standard of review, the Court acknowledged that interference