This was a joint Application by three parties, each of whom had successfully defended personal injury Actions at Trial, seeking Security for Costs from the Appellant, Dr. Bains, in relation to his Appeal. After the underlying Actions were tried together and dismissed in 2023, Dr. Bains was ordered to pay over $440,000 in costs. The Applicants jointly brought the present Application under Rules 14.67(1) and 4.22, seeking $76,905.48 in security for their anticipated Costs of responding to the Appeal.

At the outset, Dr. Bains objected to the Applicants proceeding jointly on the basis that it breached the Rules and infringed his Charter rights. He also argued that having to respond to a single joint Application by three parties was unfair and overwhelming. The Court dismissed this objection, holding that because the underlying Actions were tried together and the Appeal arose from a single Judgment, it was both efficient and procedurally fair to address the Security for Costs Application jointly.

Ho J.A. applied the five factors set out in Rule 4.22 to determine whether it would be just and reasonable to order Security for Costs: whether the Applicants would likely be able to enforce a Costs Award in Alberta, Dr. Bains’ ability to pay it, the merits of the Appeal, whether ordering Security would unduly prejudice his ability to continue the Appeal, and any other relevant considerations. The burden was on the Applicants to establish that these factors weighed in favour of granting Security.

The Applicants argued that Dr. Bains was unlikely to satisfy any Costs award, citing his own statements that he had no income or assets, received AISH benefits, and did not intend to pay the Trial Costs. The Applicants also submitted that the Appeal lacked merit, noting that it raised questions of mixed fact and law subject to a deferential standard of review. Dr. Bains responded that he had offered to make conditional payments directly to the Applicants’ insurers, had been able to pay a contempt fine at Trial, had already invested time and resources in preparing for the Appeal, and had obtained leave to Appeal on specific legal questions, which he argued should be taken as an indicator of arguable merit.

The Court declined to order Security for Costs. Appeal Justice Ho found that while Dr. Bains had expressed an unwillingness to pay, there was conflicting evidence regarding his actual ability to pay, and receiving AISH did not in itself demonstrate inability. The Court also accepted that the granting of permission to Appeal, though not determinative, was a relevant consideration in assessing the merits. On balance, the Court concluded that ordering security could unduly prejudice Dr. Bains’ ability to proceed with the Appeal and that the Applicants had not met their burden under Rule 4.22.

The Application was dismissed.