Can an action be struck for failure to pay security for costs?

In Bottan v. Vroom[5] the court considered whether an action should be struck for failure to pay costs orders and orders for payment of security for costs. It was argued in that case that the striking out of pleadings is not justified because it results in a determination of an action other than on its merits. In striking out the statement of claim, Nordheimer J. held that this argument was contradicted by the very existence of rules 57.03(2) and 60.12. He explained: The rationale for those rules is predicated on the fact that there will be situations where a party’s position ought to be determined for procedure reasons arising from the failure of that party to abide by orders made by the court. If it was the case that the merits of the matter always had to be determined before such remedies could be imposed, there would be little room for the effective application of . . . these rules. . . .

In Baksh v. Sun Media (Toronto) Corp.[6], in the context of a case managed action under Rule 77, the Master considered whether the action should be dismissed given the plaintiff’s failure to comply with several orders to pay costs, an order to pay security for costs, a procedural order and a timetable order. The plaintiff sought to have the costs orders set aside on the basis that he was impecunious. In making an order dismissing the action, the Master found that the court had granted sufficient indulgences to the plaintiff and that the breaches had become contumelious. He stated that for orders of the court to have any meaning they must be enforced. Although the Master was not satisfied that the plaintiff was impecunious, he found that even if he were satisfied, a party should not be able to set up his own impecuniosity as a shield against costs sanctions. To allow that would mean that a plaintiff could bring, resist, or appeal motions with no fear of consequences, and would emasculate the powers provided in rules 57.03(2) and 60.12.