J. Q.B. A.D. 1996 J.C.R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: WIND POWER INC. and DOVE INDUSTRIES, INC. PLAINTIFFS (RESPONDENTS) and SASKATCHEWAN POWER CORPORATION DEFENDANT (APPLICANT) Murray R. Sawatzky for the applicant Patrick N. McDonald for the respondents FIAT GEATROS J. April 7, 1998 [1] The defendant "SaskPower" seeks an order pursuant toQueen\'s Bench Rule 547 requiring the plaintiffs to postsecurity for its costs in this action, on the ground:. . . that Wind Power Inc. is a non-resident plaintiff with little or noassets in the province of Saskatchewan andDove Industries, Inc., while a corporationin the province of Saskatchewan, wasincorporated specifically for a wind powerdemonstration project which did notproceed (and which is related to thesubject matter of this action) andaccordingly has little or no assets in theprovince. [2] Rule 547 reads in part: 547(1) Where plaintiff in any action or issue, or the petitioner or applicant in any proceeding by way of originating notice resides out of Saskatchewan, or, although temporarily resident within Saskatchewan is ordinarily resident out of Saskatchewan, or where under the provisions of any statute defendant may be entitled to security for costs, and the defendant by himself or his agent alleges by affidavit that he has good defence on the merits and stating the nature of such defence, the defendant shall be entitled to serve notice of motion for an order requiring the plaintiff within time to be limited by the court to give security for the defendant's costs in such amount and in such manner and form as the court may direct. [3] The question arises whether this Court has jurisdiction to direct security in the present circumstances and, if so, whether it should do so. [4] Basic facts alleged are not in dispute. Wind Power Inc. is an Alberta company extra-provincially registered in Saskatchewan. It has developed wind power installations in Alberta. Dove Industries, Inc. is Saskatchewan company. It was formed for the purpose of initiating and developing pilot project in Saskatchewan. Its shareholders are farmers in the Swift Current district. So we have situation where we have resident and non-resident plaintiffs. [5] Rule 547 is limited to cases where the plaintiff is non-resident, or where the defendant is given statutory right to apply. The latter prerequisite does not exist here. The former applies only as to one of the plaintiffs. [6] The plaintiffs contend that their claims are joint. They cite Willowtree Investments Inc. et al. v. Brown (1985), 48 C.P.C. 150 (Ont. S.C.) for authority that where there is more than one plaintiff and their claims are joint, security will not be ordered from non-resident plaintiff where there is plaintiff within the jurisdiction. The headnote of the report fairly summarizes the ruling that was made: Where there is more than one plaintiff and the claims are joint so that all plaintiffs must succeed or all must fail, security will not be ordered from non- resident plaintiff where there is plaintiff within the jurisdiction. Conversely, where the claims are several so that one plaintiff may succeed while another fails, non-resident plaintiff may be ordered to post security. In this case, all of the claims to which was party were joint and therefore security could not be ordered. [7] am inclined to agree with Mr. McDonald that the reason for that rule is because in the case of joint claims both plaintiffs must succeed or both must fail, and if both fail each plaintiff is liable for 100 percent of the costs. Be that as it may, am firmly of the view that am empowered to direct security for costs in the present instance against both plaintiffs even if accept that their claims are joint, notwithstanding the circumstances may not fall in the categories enumerated by Rule 547. [8] In Ontario, it has been held that the court has no jurisdiction to do so. Referring to the rule in that province, at the time Rule 373, covering the situations where security for costs may be ordered, Fraser J., in K.V.C. Electric Ltd. v. Louis Donolo Inc. (1964), 1964 CanLII 295 (ON SC), O.R. 565 (H.C.J.), said, at p. 573: am of the opinion that, subject to any specific statutory provisions, security for costs may be ordered only in the categories enumerated in R. 373. That assessment appears to be in place in Ontario to this time. In Saskatchewan, it is otherwise. [9] In McRobb Holdings Ltd. v. Chelico's Restaurants Ltd., 1993 CanLII 9035 (SK QB), [1993] W.W.R. 752 (Sask. Q.B.), my brother Halvorson J. alluded to the analogous rule in Ontario then in place (R. 56.01) and said: Because most conceivable situations are encompassed by r. 56.01, it has been adjudged that the rule is code. Therefore, the court has no jurisdiction to order security except in the instances enumerated in the rule. Inherent jurisdiction of the court at common law to order security no longer exists in Ontario (see Mark M. Orkin), The Law of Costs, 2nd ed. (Toronto: Canada Law Book, 1993), para. 501). This rationale should not be superimposed on R. 547 which is not as expansive as its Ontario counterpart. It cannot be said R. 547 was intended to be codification of all situations where security could be ordered. comparison with r. 56.01 underscores the many shortcomings of R. 547. Rule 547 is not code which confines the court's jurisdiction to those areas particularly mentioned in the rule. The common law has not been supplanted entirely by the rule. The court is still permitted to invoke its inherent jurisdiction to regulate its own procedure by ordering security for costs in instances not covered by the rule. [10] Reference is made to the statement of Lord Alverstone C.J. in J.H. Billington, Limited v. Billington, [1907] K.B. 106, at p. 109: have always understood that the power of the Superior Courts of common law to order security for costs arose from the inherent jurisdiction of those Courts over their own procedure. [11] Halvorson J., in asserting his inherent jurisdiction, ordered deposit by way of security for the costs of the defence in the circumstances before him that did not fall within Rule 547. In my judgment, this court has the power to order that security be given in all cases where it is thought just to do so. Mr. McDonald makes reference to Clark Window Products Ltd. v. Remai Investment Corp. (1992), 1992 CanLII 7954 (SK QB), 99 Sask. R. 239 (Q.B.) where the court dismissed the application for the reason that the defendant did not meet the requirements of Rule 547. In that case, any questions of inherent jurisdiction were neither raised nor dealt with. [12] have further observation in the matter of inherent jurisdiction. This is Superior Court having specific characteristic that is stated by Furlong C.J. in Bursey v. Bursey (1966), 58 D.L.R. (2d) 451 (Nfld. S.C.) to be as follows, at p. 455: That characteristic is the manner in which plenary powers of superior Court may be cut down or limited. The matter was considered just 300 years ago in Peacock v. Bell and Kendal (1667), Wms. Saund. 73 at p. 74, 85 E.R. 84, when, as it is reported, it was held: And the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of Superior Court, but that which specially appears to be so; and on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is expressly so alleged. It would appear that this dictum has remained undisturbed by time as find it is repeated in substantially the same words in Hals., 3rd ed., p. 349, as follows: Prima facie, no matter is deemed to be beyond the jurisdiction of superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognisance of the particular court. and later at p. 457: can only say then, that in my opinion the jurisdiction of this Court is sufficiently ample for it to dispose of all matters which come before it and which the Court is not specifically forbidden to [13] See also Camosun Commercial Co. Ltd. v. Garetson Bolster (1914-15), VII W.W.R. 219 (B.C.S.C. Ch.). [14] Viscount Haldane stated at an earlier time in Board v. Board, 1919 CanLII 546 (UK JCPC), [1919] A.C. 956 (P.C.), on an appeal from the Supreme Court of Canada, at p. 963: it is the rule as regards presumption of jurisdiction in (a Superior Court) that, as stated by Willes, J. in London Corporation v. Cox (1867) L.R. H.L. 239, 259), nothing shall be intended to be out of the jurisdiction of Superior Court, but that which specially appears to be so. [15] It follows, in my judgment, that the powers conferred by the Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the Court, unless, in the words of Stark J. in Re Michie Estate and City of Toronto et al. (1968), 66 D.L.R. (2d) 213 (Ont. H.C.) at p. 215, ". the Legislature divests from this universal jurisdiction by legislation in unequivocal terms." Accordingly, it is open to me to make the order sought if the circumstances warrant. [16] Given that assessment, it is not necessarily fatal to the applicant's motion if it is determined the plaintiffs' claims are joint. Only that it is consideration, seriously to be looked at. SaskPower insists that the plaintiffs' claims are several, not joint. It argues that even with respect to the joint submission made on the particular proposal concerned, the claims for damages sustained by each plaintiff are different as each performed different work sustaining allegedly different damages. In short, it is urged, that it is not necessarily true that if one plaintiff succeeds at trial the other will necessarily succeed at trial as well. [17] To analyse the nature of the claims in depth at this stage in order to determine whether they are joint or several would be to essentially make findings that are only for the trial judge. At all events, it would be open for me to direct that security be posted in either event against either or both of the plaintiffs. In McRobb Holdings Ltd., supra, Halvorson J. required the plaintiff, not non- resident, to deposit security for costs, in circumstances where the plaintiff no longer carried on business and was without assets. [18] In the present case, given the amount of the claim against SaskPower in the amount of $6,400,000.00 and the significant claim for costs which could be awarded to it in the event of successful defence, in excess of $55,000.00, with little or no assets in the province held by either plaintiff, one being non-resident, would be inclined to grant SaskPower the relief it seeks. But there is significant factor that precludes me from making that kind of an order. It has to do with the delay by SaskPower in bringing its application. [19] This action was commenced in April, 1996. The plaintiffs point out that SaskPower knew that Wind Power Inc. was an Alberta company. SaskPower would know that the action was not going to proceed quickly. There was an exchange of documents, and motion in September 1996, by the plaintiffs for production of documents claimed as privileged. The disclosure of documents is completed, as well as the examinations for discovery. The parties made joint request for pre-trial conference signifying that thereafter they were ready for trial. Yet, an application for security for costs had not yet been launched. The pre-trial conference took place on January 28, 1998. trial date was set for September 28 to October, 1998. SaskPower has only now made this application. [20] It is disclosed that SaskPower raised with plaintiffs' counsel the issue of security for costs back in September, 1996. It was advised of the plaintiffs' position. SaskPower held the matter in suspense before resorting to the present application. [21] Mr. McDonald refers to cases that have held that failure to move promptly for security for costs may be fatal to later application if, through delay, plaintiff has been lulled into the false belief that he may proceed with his action without being called upon to advance security. Included is McCormack v. Newman et al. (1983), 35 C.P.C. 298 (Ont. S.C.). Given the correspondence between the parties in September, 1996, when SaskPower raised the matter of security for costs and nothing was done as regards thereto until the present time, after the pre-trial conference and the fixing of trial date, would that not foster the belief that the plaintiffs could proceed without being called on to advance [22] At all events the delay, which find to be substantial, has to be explained. In general, unexplaineddelay by the defendant in seeking security for costs willprevent an order being obtained: Gosselin v. Wong (1983), 33 C.P.C. 262 (Ont. S.C.). See also Cohen v. Power et al. (1971), 1970 CanLII 228 (ON SC), O.R. 742 (Ont. S.C.). It is obvious that motions of this sort should be taken as early as reasonably possible, so that the plaintiffs will not proceed very far in ignorance of the fact that they are going to be asked to provide security for costs: Petter v. Roberts, [1949] O.W.N. 611 (Ont. H.C.). The practice, suggest, is that the proper time to move for an order for security for costs is immediately after the close of pleadings, in order that the plaintiff, before entering upon discoveries and preparing for trial, may know whether he will be called upon to provide security, and if so, the amount of security. Here SaskPower not only did not move upon the close of pleadings but not even reasonably soon after some discussion of the matter that took place in September, 1996, without resolution. [23] In Thole v. McKenna (1988), 1988 CanLII 5343 (SK QB), 71 Sask. R. 106 (Q.B.) my brother Grotsky said, at p. 108, "In this jurisdiction, delay has been treated as sufficient ground, in appropriate circumstances, for refusing an application for security for [24] SaskPower says that it did not proceed with an application at an earlier stage of the proceedings as it wished to provide an opportunity at the pre-trial conference stage for the matter to be resolved. am not persuaded that thereby the parties would be more inclined to enter into meaningful settlement discussions, as alleged. accept the reason advanced by SaskPower for the delay, but it does not suffice to grant it the relief it seeks. To make an award forsecurity for costs at this stage would place a burden on theplaintiffs and possibly prevent the action from taking placeat the scheduled time. See Perentes et al. v. Cordogianes Estate et al. (1985), 1984 CanLII 2232 (SK QB), 36 Sask. R. 159 (Q.B.). [25] Again, the time to have brought the application was at least soon after September, 1996. The fact that it was not made until now would have left the plaintiffs with the distinct possibility that, ultimately, the court was not going to be asked by SaskPower to have them furnish security. [26] In my judgment, there are "appropriate circumstances", per Grotsky J. in Thole v. McKenna, supra, to deny the defendant an order that the plaintiffs post security for costs at this stage of the action. In the exercise of mydiscretion, I would dismiss SaskPower\'s motion. The plaintiff shall have one set of costs of the application in any event of
FIAT. SaskPower sought an order pursuant to Queen's Bench Rule 547 to require the plaintiffs to post security for costs on the ground Wind Power was a non-resident plaintiff with little or no assets in the province of Saskatchewan. HELD: The motion was dismissed.  1)Rule 547 is limited to cases where the plaintiff is a non-resident or where the defendant is given a statutory right to apply. Wind Power is an Alberta company extra-provincially registered in Saskatchewan. Dove Industries, a Saskatchewan company incorporated specifically to develop a pilot project in Saskatchewan which did not proceed, had shareholders in the province. 2)Given the amount of the claim against SaskPower in the amount of $6,400,000 and the significant claim for costs in excess of $50,000 the Court would have granted the security for costs but for the delay by SaskPower in bringing its application. The action was commenced in April 1996. Unexplained delay by a defendant in seeking security for costs will prevent the grant of an order. To make an award for security for costs at this stage would place a burden on the plaintiffs and possibly prevent the action from taking place at the scheduled time.  3)The plaintiff was awarded one set of costs in any event of the cause.