Access to Justice – A Concern Only for Plaintiffs?

Access to justice, the availability of our Court system to average people today, is a real, a profound, problem. While the public may have long ago been well aware of this important issue, lawyers, judges and the legal system are now, albeit perhaps belatedly, acutely aware that the cost of retaining capable legal counsel to represent and protect one's legal interests has become, and is fast becoming, prohibitive for more and more people.

To date, these concerns most commonly have been perceived as barriers only to Plaintiffs, those persons suing, pursuing or establishing their legal rights and remedies. Seldom has thought been given to the Defendant, the person being sued or claimed against. However, in an appeal I recently argued before the Ontario Divisional Court (Westbrook v Jewell & 327867 Canada Corp. o/a Scouts Canada - 2014 ONSC 2968) a three-Judge panel unanimously held that the economic circumstances of a Defendant, and the fact that Defendant may be paying for his legal defence "out of his own pocket", ought be carefully considered in a Motion for security for costs. As the Court stated "there must be a balance so as to ensure that both Plaintiffs and Defendants receive meaningful access to justice".

While this decision addresses a relatively fine point, namely the entitlement of a Defendant to security for costs pursuant to Rule 56 of the Ontario Rules of Civil Procedure, I would suggest respectfully that it breaks the ice for further and better acceptance of, and appreciation for, the fact that it is not only those claiming to be aggrieved that ought be entitled to access to justice, but also those who are, by the legal process itself, obliged to respond, and to defend themselves against what may be unjust, unfair, improbable and unprovable claims.

Westbrook v Jewell et al is an action for damages for historical sexual assault. The Plaintiff claims that decades ago he was assaulted by a Scout Leader. The Plaintiff resides out of Ontario, or at least he did at the time that the Motion for security for costs was brought. The Defendants delivered their respective Statements of Defence wherein they challenged both liability and damages and thereafter brought their Motions.

At the original hearing, the Honourable Motions Court Judge granted an Order for security for costs, but in an amount of only $10,000.00 on account of both Defendants. Further she did not provide the opportunity to the Defendants, or either of them, to return at a later stage in the proceedings for a further Order for security for costs. Costs of the Motion, in spite of the Defendants' success on the Motion, were reserved to the Trial Judge, presumably so as not to place any further barriers before the Plaintiff in pursuing his action.

In support of their Motions for security for costs each of the Defendants filed draft Costs Outlines wherein they each estimated their costs of defending the action through trial to be $100,000.00 or thereabouts. The Motions Court Judge noted that the Plaintiff would have some difficulty in proving the identity of the Defendant Scout Leader as the person who alleged sexually assaulted him, however identity of the alleged abuser was but one element of the defences as raised by the Defendants. In fact, every defence generally raised in historical sexual assault claims, regarding both liability, damages, limitation periods, laches and the like were pleaded and the action shall be vigorously defended and hotly contested.

The Motions Court Judge considered the Plaintiff's argument as to his impecuniosity and that therefore he was absolutely unable to post security for costs and that were he ordered so to do he could not proceed with his action. The Motions Court Judge found however, after careful consideration of all of the evidence before her, that the Plaintiff was not impecunious. He was gainfully employed. He had made no efforts to raise funds. As the Judge wrote, he no doubt was a hard working man living pay cheque to pay cheque, but that being a bad money manager was not sufficient to satisfy the test of impecuniosity. However, the Motions Court Judge went on to state that even an Order providing for only $40,000.00 security for costs, jointly as between the Defendants, would, in her view, "be tantamount to dismissing the action".

On appeal to the Ontario Divisional Court, obviously leave having been granted, the Appellants/Defendants submitted that the $10,000.00 security for costs ordered in the first instance was nothing more than a "nominal" amount, particularly given the $200,000.00 or thereabouts suggested by the Defendants as the cost of the defence. The Plaintiff argued that the Motions Court Judge gave proper consideration to his situation and that had the Motions Court Judge made a greater Order for security for costs that would effectively have prevented him from advancing his claim, thereby denying him access to justice.

The Ontario Divisional Court was of the view that the Judge at first instance committed an error in law by misapplying the relevant principles when finding that $10,000.00 was an appropriate amount for security for costs. The appellate Court noted that an award of security for costs "ought not be a token amount". It found that $10,000.00 awarded for security, in the face of not inherently unreasonable estimates as to defence costs of $200,000.00, was such a token award. Accordingly, the Divisional Court ordered that the Plaintiff pay $20,000.00 security ($10,000.00 for each Defendant) to completion of discoveries, at which time the Defendants are free to return to Court to seek an Order for further security. In ordering $20,000.00 security for costs at this time, the Court took into account the costs realistically required to defend the action through discoveries as well as the means of the Plaintiff/Respondent. In that regard the Court noted that the Respondent earned some $45,000.00 income per annum and that he had failed to make any efforts to borrow money to fund his litigation.

From my perspective, it is not the fact that the appeal to the Divisional Court was successful, or that the Court increased the amount of security for costs required paid by the Plaintiff, or that it provided the Defendants the opportunity to return to Court for further security following discoveries that is seminal to the Decision. It is not even the fact that the Divisional Court panel was of the view that the costs of the original Motion ought properly have followed the cause and awarded the Defendants their costs of on the original Motion fixed at $6,000.00. Rather, the import of this decision is, in my respectful opinion, found in the following paragraph of the Decision:

"Awarding $20,000.00 in security for costs until completion of discoveries should enable the Respondent to proceed with his action while providing comfort to the Applicants (one of whom appears to be defending this action out of pocket) that, if they are successful in their defence, they will not be met with the Respondent's inability to pay a cost award at the end of the trial. Such a balance ensures that both the Applicants and the Respondent receive meaningful access to justice."