The Applicant applied for Security for Costs against the Respondent, a condominium owner, submitting that their Appeal of a Chambers Judge’s Order had no merit and that they would be unable to pay Costs in the event they were unsuccessful.

The Court reviewed the Alberta jurisprudence regarding Security for Costs Orders, and noted that concerns regarding a party’s ability to pay Costs coupled with modest prospects of an Appeal’s success have been sufficient to justify granting an Application for Security for Costs. Further, the Court noted that granting Security for Costs is discretionary and requires the Court to look to the equities of the case before making an Order. The Court may make Orders if it “considers it just and reasonable to do so”, taking into consideration the elements set out in Rule 4.22.

Justice Feehan determined that the majority of factors under Rule 4.22 did not support granting a Security for Costs Order. The evidence, taken in its totality, did not show that it was likely the Applicant would be unable to enforce a Costs Order against the Respondent; nor that the Respondent would be unable to pay a Costs Award. The Respondent was employed full-time in a steady position, had property assets, a savings and chequing account, could make an immediate Costs Award payment of $10,000, but would have to take on debt to repay the Costs paid to her following the Applications Judge’s decision and any further Costs Award. The Court determined that this did not establish an impecuniosity or unwillingness to pay any potential Costs Award.

Further, the Appeal was considered to have merit as it was not frivolous or vexatious, and the Respondent had been successful in the initial Applications Court decision. Further still, it was concluded that requiring Security for Costs would not unduly prejudice the Respondent’s ability to continue the Appeal, as they had agreed that they would be able to pay an immediate Security for Costs award of $10,000.

Therefore, the Court concluded that most of the factors in Rule 4.22 weighed against granting a Security for Costs Order.