The Defendant, Arres Capital Inc. (“Arres”) was adjudged bankrupt and a bankruptcy Order was issued against it. Arres appealed. Access Mortgage Corporation (2004) Limited (“Access”), who was a Judgment Creditor and Respondent to the Appeal applied for Security for Costs for the Appeal in the amount of $14,750.

Justice Rowbotham reviewed Rules 14.67 and 4.22 which related to Security for Costs, and specifically considered whether the requirement of “special circumstances” in former Rule 524. Rowbotham J.A. observed that former Rule 524 was repealed on September 1, 2014, and the current Rule 14.67 did not include the “special circumstances” language which meant that prior authorities referencing the test which included “special circumstances” were no longer applicable to Applications for Security for Costs in an Appeal. However, Rowbotham J.A. stated that special circumstances might be considered under Rule 4.22(e), if the Court deemed such consideration appropriate.

Justice Rowbotham considered the factors set out in Rule 4.22, and determined that the Application should be granted since the Respondent to the Application had no exigible assets, was not able to pay a costs award, was bringing an Appeal based on facts not law which would be reviewed for palpable and overriding error, and had submitted no evidence regarding prejudice.