Security for costs and the 'overwhelming case'

Bruno Appliance v. Cassels Brock, 2011 ONSC 5070 deals with security for costs in a civil claim.

Generally, where security for costs is prima facie required the usual defence is impecuniosity.

That said, another defence is "the case is overwhelming". Here the Court held a case cannot be overwhelming if a motion for summary judgment led to a finding there was a genuine issue for trial.

The Court held:

[6]          In light of Justice Grace's conclusion that there is a genuine issue requiring trial, I cannot find that there is an "overwhelming" likelihood of success on the plaintiffs' claims against Cassels and Peebles.  While the plaintiffs sought to establish the strength of their claims based on the factual findings of Justice Grace, a conclusion that a case is "overwhelmingly" likely to succeed requires that both the factual basis and liability be "overwhelmingly" demonstrated.  Justice Grace found on the evidence that there was a genuine issue requiring trial with respect to the claims against Cassels and Peebles, and I adopt his analysis and conclude that the plaintiffs have not established an overwhelming case against the moving party defendants.