- If a court orders security for costs, the plaintiff must deposit a sum of money (or provide some other acceptable form of security, such as a letter of credit) with the court, or the…
- Ontario's civil rules allow this kind of motion in a range of circumstances, generally centred on situations where enforcing a future costs award against the plaintiff would be difficult…
- Because requiring security for costs can, in a real sense, block access to justice for a plaintiff who cannot afford to post it, Ontario courts approach these motions carefully.
Ontario civil litigation generally follows a "loser pays" principle: the losing side is usually ordered to contribute toward the winning side's legal costs. That works well when both parties are in a position to pay if they lose. But what happens when a plaintiff is based outside the province, has no obvious assets in Ontario, or otherwise looks unlikely to be able to pay a costs award if the defendant wins?
In those situations, a defendant can bring a motion for security for costs — asking the court to require the plaintiff to post money or other security up front, before the case is allowed to continue. This article explains when that remedy is available and how it plays out.
What Security for Costs Means in Practice
If a court orders security for costs, the plaintiff must deposit a sum of money (or provide some other acceptable form of security, such as a letter of credit) with the court, or the case is typically stayed — meaning it does not move forward — until the plaintiff complies. The security acts as a fund the defendant can draw on for a costs award if the defendant ultimately wins and the plaintiff cannot or does not pay voluntarily.
It is important to understand what this order is not: it is not a penalty for bringing a weak case, and it does not decide the merits of the dispute. It is a practical, forward-looking protection against the risk that a defendant wins but is left with an unenforceable costs order because the plaintiff has nothing to collect against, or is out of the court's practical reach.
When a Defendant Can Seek Security for Costs
Ontario's civil rules allow this kind of motion in a range of circumstances, generally centred on situations where enforcing a future costs award against the plaintiff would be difficult or impossible. Common grounds include:
- The plaintiff is ordinarily resident outside Ontario and has no significant assets within the province to satisfy a costs order.
- The plaintiff appears to have insufficient assets in Ontario to pay costs if the defendant succeeds, regardless of residency.
- There is reason to believe the claim is frivolous or vexatious, or brought for an improper purpose, though this ground overlaps with — and is treated with particular caution alongside — the separate concept of a vexatious litigant order.
- The plaintiff has failed to pay costs from a related or previous proceeding.
Courts do not grant security for costs automatically just because one of these factors is present. The decision remains discretionary, and the court weighs the full picture, including whether ordering security would unfairly shut a legitimate plaintiff out of court altogether.
Factors Courts Weigh
Because requiring security for costs can, in a real sense, block access to justice for a plaintiff who cannot afford to post it, Ontario courts approach these motions carefully. Considerations typically include:
| Factor | Why It Matters |
|---|---|
| Strength of the plaintiff's claim | A strong, well-pleaded claim weighs against ordering security, since dismissing or stalling a meritorious case is a serious step |
| Plaintiff's ability to pay | If posting security would effectively end a legitimate claim because the plaintiff genuinely cannot afford it, courts consider that carefully |
| Timing of the motion | A motion brought late in the litigation, after significant costs have already been incurred, may be viewed differently than one brought early |
| Whether the difficulty enforcing costs is genuine | The core question is always whether a real, practical risk exists that a costs award would go unpaid — not simply that the plaintiff is from out of province |
| Public interest or access-to-justice considerations | Some claims — for example, matters raising genuine public interest questions — may weigh against ordering security even where other factors point toward it |
What Happens If the Plaintiff Cannot or Will Not Pay
If a court orders security for costs and the plaintiff does not post it within the time set, the usual consequence is that the action is stayed, and can ultimately be dismissed if the plaintiff continues not to comply. This gives the order real teeth — it is not simply a paper direction the plaintiff can ignore.
A plaintiff facing such a motion has options: they can argue against the motion in the first place, propose a lower amount or a different form of security, or in some cases seek an extension of time to arrange payment.
How This Differs From Other Litigation Remedies
Security for costs is sometimes confused with other protective orders in civil litigation, but it serves a distinct purpose:
- Unlike a mareva injunction, which freezes a defendant's assets to preserve them for a future judgment against that defendant, security for costs protects a defendant against the risk of an unenforceable costs award against the plaintiff.
- Unlike a Certificate of Pending Litigation, which relates to a specific property the lawsuit claims an interest in, security for costs is about the plaintiff's general ability to satisfy a costs order, regardless of what the lawsuit is about.
Frequently asked questions
Does being an out-of-province plaintiff automatically mean I will have to post security for costs?
No. Residency outside Ontario is a recognized factor courts can consider, but it does not automatically trigger an order. The defendant still has to bring a motion, and the court weighs the full circumstances, including whether there are practical obstacles to enforcing a costs award against you.
Can a defendant use a security for costs motion just to pressure a plaintiff into dropping a case?
Courts are alert to that risk and consider the strength of the plaintiff's claim, the timing of the motion, and access-to-justice concerns precisely to guard against security for costs being used as a tactical weapon rather than a genuine protective measure.
What form does the security usually take?
It is typically a sum of money paid into court, though courts can accept other acceptable forms of security depending on the circumstances. The exact amount is set by the court based on the anticipated costs exposure in the case.
Can this order be appealed or varied later?
Yes. Like most interlocutory (interim) orders in Ontario civil litigation, a security for costs order can potentially be varied if circumstances change materially, and is subject to the usual appeal routes for that type of order.
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