BRUDERHEIM COMMUNITY CHURCH v MORAVIAN CHURCH IN AMERICA (CANADIAN DISTRICT), 2018 ABCA 134
4.22: Considerations for security for costs order
14.48: Stay pending appeal
14.67: Security for costs
In an Action involving a grant of land in 1897, the Court of Appeal had previously upheld the granting of an interim injunction which was to remain in place “until the conclusion of the trial of this Action, or until further order”. The Court of Queen’s Bench subsequently held, among other things, that the congregation of the Moravian Church at Bruderheim was the beneficiary of a trust created by the grant of land, and ruled that the injunction was no longer in force. The Appellants, Bruderheim Community Church and Bruderheim Moravian Church (the “Applicants”) who were not deemed to be the “congregation” applied pursuant to Rule 14.48 for a Stay pending Appeal so that the injunction would remain in place. The Respondent, the Board of Elders of the Moravian Church in America, filed a Cross-Application for Security for Costs against the Applicants.
Watson J.A. stated that while it may have been appropriate to grant a Stay in the circumstances, the Applicants lacked legal status as they were not beneficiaries under the trust. His Lordship noted that this was dispositive of the Application and it was not necessary to engage the test for granting a Stay pending Appeal, including whether there would be irreparable harm or the balance of convenience. The Stay Application was therefore dismissed.
The Respondents also sought Security for Costs under Rules 14.67 and 4.22, and specifically sought Costs under Column 5 of the Rules on the basis that the value of the land in dispute would place the Action in that column. Justice Watson held that while the value of the land was high, the matter was in fact a dispute over the administration of a trust for which the Attorney General could step in. As such, Watson J.A. held that in the circumstances, even Column 1 Costs would be too great, and instead fixed Security for Costs in the amount of $10,000. The Appeal was stayed until the amount was posted by the Applicants.
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