We often receive inquiries from people who were sexually abused in Ontario, but now live outside of Ontario. This situation can raise challenges. One of these, which we routinely warn people about, is that they may be required to pay "security for costs" as a condition of proceeding with a lawsuit in Ontario.
What does "security for costs" mean? This is where a court orders a plaintiff (the person making the claim) to set aside money and pay it into court so there is a fund available to cover the defence's legal costs if, and only if, the defence ultimately wins the case. If the defence loses, the money is returned to the plaintiff. If the money is not paid into court as ordered by the court, the plaintiff will not be allowed to proceed with their case.
While this arises in all kinds of cases (not just sexual abuse) where someone is living elsewhere but claiming compensation in Ontario, there have been some recent court decisions dealing specifically with security for costs in the context of sexual abuse. Here, I will explain what considerations apply to security for costs by making reference to these court decisions, as they illustrate the potential challenges a survivor may encounter if they sue inside one province or territory because the events in question occurred there, but they live elsewhere.
Basic principles
There are many things a survivor should consider before starting a civil lawsuit. One is how you will pay your lawyer's legal fees. But it is not only your own lawyer's legal fees and expenses you may be required to pay during a lawsuit. You may also have to contribute to the legal fees and expenses of the person you are suing. These are called "costs."
In Canada, we have what is called a "loser pays" system. This means if a party loses at trial, or during an intermediate step, then that party will be required to pay some portion of the winning party's costs. Trouble can arise when the loser, although required to pay the other party's costs, is unable to do so. As a result, the winner is unable to collect from the loser and is stuck paying their own legal costs
Because of this, Canadian courts have a mechanism for the person who is being sued (the defendant) to ask the court to make an order for "security for costs" from the person suing them (the plaintiff). To make this request, the defendant must bring a motion before a judge. If the defendant is successful, the plaintiff will have to pay money (for example, $50,000) into court as "security" in case they are required to pay the defendant's costs in the future.
Every Canadian province and territory has rules that outline the types of situations where security for costs could be ordered. The primary example is where the person starting the lawsuit (the plaintiff) lives outside of the province or territory where they started the lawsuit.
Requiring a plaintiff to pay money into court up front as "security for costs" can be harsh. If a plaintiff is unable to come up with the money by a judge-imposed deadline, their case will be dismissed. In other words, requiring someone to pay security for costs may prevent the survivor from continuing with their lawsuit. This is particularly true for people who don't have the money to pay into the court. This then begs the question: should survivors who lack financial resources to cover defence costs be prevented from starting, or continuing, lawsuits against their perpetrators? This question raises access to justice issues.
Canadian courts agree that the fundamental question is whether it would be just in the circumstances of the case to make the plaintiff post security in order to be allowed to pursue their claim. While defendants are entitled to some protection for their legal costs incurred while defending themselves, it is equally important to consider whether an order for security for costs is likely to frustrate a survivor's ability to advance a meritorious legal claim.
Put differently, plaintiffs with an arguable case to be made, but who are financially disadvantaged should not be prevented from accessing the courts simply because they lack the financial means to post security. This is particularly true when the survivor's inability to pay is related to the abuse itself, which may have interfered with their ability to complete their education and enter the workforce, or otherwise achieve their income-earning potential.
Recent court decisions for and against security for costs
Two recent decisions from the Court of the King's Bench of Manitoba illustrate how these principles are treated in sexual abuse cases.
In C.A. v. N.S.C., 2024 MBKB 179, two sisters started a lawsuit for sexual abuse they said they experienced in the 1970s by a volunteer at their church. Their church was in Manitoba, where they grew up, but the sisters had moved to and were living in Alberta when they started their lawsuit. On a motion to the court, the defendants asked for a court order requiring the sisters to pay security for cost before the upcoming trial. The judge granted the request and the sisters were each ordered to pay $50,000 into the court within 30 days of the judge's decision.
In reaching her decision, the judge in C.A. considered that the sisters owned property in Alberta, but did not have assets in Manitoba. The judge did not explain how this factored into her decision making, but pointed to a general rule that a defendant should not be put to the trouble and expense of enforcing an order for costs in another province.
The next year, the same judge considered this issue again in Burton v. James, 2025 MBKB 50. The plaintiff started a lawsuit against his former teacher and the school board for sexual abuse he said he experienced in the 1980s. The school board was in Manitoba, but the plaintiff lived in Ontario when he started his lawsuit. The defendant teacher brought a motion and asked for the plaintiff to be required to pay security for costs. The judge said no.
There was evidence put forward on the motion that the plaintiff had little to no money. As such, if the plaintiff had been required to post security, he would have been unable to satisfy the order and, therefore, unable to advance his sexual abuse claim. The fact the plaintiff retained a lawyer on a contingency fee basis, as many survivors do, did not impact the judge's analysis. In addition, the judge considered the plaintiff's evidence that the teacher's sexual abuse impacted his mental health and ability to earn income over the years.
In reaching her conclusion, the judge put significant weight on the fact that, if the plaintiff was required to pay security for costs, his claim against the teacher would not continue due to his lack of financial resources. The judge also noted the plaintiff's argument that his lack of financial resources was caused by the teacher's sexual abuse and this argument weighed against granting an order for security for costs.
The judge in Burton distinguished her prior decision in the C.A. case. The judge said the sisters in the C.A. case had significant assets in the form of property and had the time and resources to prepare for a possible costs award. In the Burton case, no amount of time or preparation would have enabled the plaintiff to access the resources necessary to pay security into the court.
Ontario-specific factors
In Ontario, Rule 56 of the Rules of Civil Procedure, and the court decisions interpreting and apply this rule, govern security for costs. What many people do not appreciate is that, in Ontario, there is a statute that can also enter into the equation. The often-overlooked Victims' Bill of Rights can be another factor for a judge to consider when asked to order security for costs in sexual abuse cases. This legislation applies to victims of crime who are seeking compensation from someone who has been convicted of a crime against them.
The Victims' Bill of Rights states that a judge should not order victims to pay security for costs unless the judge, having considered the spirit and purpose of the Victims' Bill of Rights, considers it is necessary to do so in the interests of justice. The spirit and purpose of the Victims' Bill of Rights is to ensure the fair and compassionate treatment of those who have been victims of crime and suffered harm as a result.
In other words, Ontario's Victims' Bill of Rights provides a compelling basis for judges in Ontario to consider whether it is really just or fair to make a survivor pay security for costs simply to pursue their civil suit for compensation. In most cases, where the perpetrator of the abuse has been criminally convicted, the answer will be no. Where there is no criminal conviction, the answer may also be no, but the plaintiff must show their claim is meritious and they lack the financial means to be able to post security.
Take-aways
The key takeaways for survivors abused in Ontario but living outside of Ontario who are considering bringing a civil lawsuit in Ontario can be summarized as follows:
- Defendants are entitled to ask the court to order you to pay security for costs if you start a lawsuit in a province other than the one you live in, but the court may refuse to grant the defendant's request if you are unable to pay money into court because of financial constraints.
- The courts and lawmakers have acknowledged the importance of removing barriers, such as security for costs orders, that prevent survivors from seeking justice and compensation for the harms they suffered as a result of being sexually abused.
- If your perpetrator has been criminally convicted, the Victims' Bill of Rights provides judges with a compelling basis to decline order to you to post security for costs in a civil claim for compensation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
