Date: 20030116
Docket: T-1638-00
BETWEEN:
REX OFFREY
Plaintiff
and
PHILIP RYAN
and
ANTHONY RYAN
and
THE VESSEL "AVALON MIST" et al
and
MARTIN CAINES
and
THE VESSEL "WALLY AND SISTERS" et al
Defendants
[1] The defendants' motion for an order requiring the plaintiff to post security for costs pursuant to Rule 416(1)(b) of the Federal Court Rules, 1998, was adjourned by me on May 27, 2002 in order to enable the parties to ascertain the necessary facts underpinning the application of Rule 416(1)(b). I also ordered the parties should proceed with the motion in writing pursuant to Rule 369 of the Rules. The record for the motion was recently completed.
[2] Rex Offrey is the plaintiff in this action involving a collision between fishing vessels. Mr. Offrey is said to be the owner of the "Lady Madge", an 18 year old fishing vessel at the time of the collision. His claim is for $86,395 plus pre-judgment and post-judgment interest.
[3] It is conceded this is a subrogated insured claim, the vessel being insured for $250,000 with a $5,000 deductible which Mr. Offrey claims to have paid.
[4] The reason for the adjournment was to enable the Court to be informed of the exact situation because on discovery Mr. Offrey stated he did not have sufficient assets to pay $20,000 or $10,000 in costs should he be ordered to do so while stating to be the full owner of the "Lady Madge".
[5] Pursuant to my order of May 27, 2002, counsel for the defendants posed four questions to the plaintiff including asking what was the current written valuation of the value of the "Lady Madge" and for a copy of an encumbrance on the "Lady Madge" and its current balance.
[6] These questions have remained unanswered by the plaintiff despite Prothonotary Morneau's peremptory order of November 6, 2002.
[7] Rule 416(1)(b) reads:
| 416. (1) Where, on the motion of a defendant, it appears to the Court that . . . (b) the plaintiff is a corporation, an unincorporated association or a nominal plaintiff and there is reason to believe that the plaintiff would have insufficient assets in Canada available to pay the costs of the defendant if ordered to do so. |
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416. (1) Lorsque, par suite d'une requête du défendeur, il paraît évident à la Cour que l'une des situations visées aux alinéas a) à h) existe, elle peut ordonner au demandeur de fournir le cautionnement pour les dépens qui pourraient être adjugés au défendeur : . . . b) le demandeur est une personne morale ou une association sans personnalité morale ou n'est demandeur que de nom et il y a lieu de croire qu'il ne détient pas au Canada des actifs suffisants pour payer les dépens advenant qu'il lui soit ordonné de le faire. |
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[8] I am of the view Rex Offrey is a nominal plaintiff within the meaning of the Rule notwithstanding he has a $5,000 interest in recovering the deductible. When an insurance company with a subrogated claim sues for that claim in the name of the insured, that person, the insured, is a nominal plaintiff. (See, Gough v. Toronto and York Radial Co. (1918), 42 O.L.R. 451 (C.A.).
[9] It appears that Mr. Offrey has an interest in recovering the deductible he has paid. In my view, he does not have a substantial interest in the action. (See, Steinberg v. Blum, [1953] O.W.R. 246, so as to take him out of the category of a nominal plaintiff.
[10] I am satisfied it appears there is reason to believe the plaintiff would have insufficient assets in Canada to pay the defendants' costs. He had an opportunity to reveal his true financial picture which he failed to do despite the Court's order.
[11] In the circumstances, the defendants are entitled to security for costs. I might have been inclined not to order security for costs if counsel for the plaintiff, on proper instructions from the insurance company, had undertaken to pay the defendants costs if ordered against him. That was not forthcoming.
[12] The defendants' draft bill of costs was for the entire proceeding including trial and disbursements. I prefer to adopt a step approach. For now, I order the plaintiff to post security for costs in the amount of $5,000 within 30 days from the date of this order with liberty granted to the defendants to seek additional security as costs are incurred or reasonably anticipated to be incurred.
[13] Costs of this motion shall be in the cause.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JANUARY 16, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1638-00
STYLE OF CAUSE: REX OFFREY and PHILIP RYAN and others
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF THE PARTIES
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: January 16, 2003
WRITTEN REPRESENTATIONS BY:
Mr. Alexandre Sami FOR THE PLAINTIFF
Mr. Frederic G. Scalabrini FOR THE DEFENDANTS
SOLICITORS OF RECORD:
GOWLING LAFLEUR HERDERSON LLP FOR THE PLAINTIFF
Montréal, Québec
MARLER & ASSOCIATES FOR THE DEFENDANTS
Montréal, Québec