Paperny JA

4.22: Considerations for security for costs order
14.67: Security for costs

Case Summary

The Applicant wife sought Security for Costs in an Appeal filed by her husband in a family matter. The husband had appealed the striking of his pleadings by the Case Management Judge, which were struck because he had previously persistently failed to provide disclosure, was held in contempt of Court as a result, and had failed to purge his contempt or pay fines for the non-disclosure for over a year.

Justice Paperny explained that pursuant to Rules 4.22 and 14.67, the Court of Appeal may order an Appellant to provide Security for Costs where it is just and reasonable, having regard to the Appellant’s ability to pay a Costs award; the likelihood of the Respondent being able to enforce a Judgment or Order against the Appellant’s assets in Alberta; the merits of the proposed Appeal; whether an Order for Security for Costs would unduly prejudice the Appellant’s ability to move forward with the Appeal; and any other appropriate consideration. Her Ladyship noted that the Appellant had not filed materials in response to the Application, but his counsel had submitted orally that a Security for Costs Order would have an “injunctive effect against the Appeal”.

Her Ladyship noted that the Appellant’s submissions were not supported by the record, and that the onus was on the Appellant to establish that the Appeal had a reasonable prospect of success. Based on the record, Justice Paperny was not satisfied that there was any reasonable prospect of success, and noted that “access to justice principles do not entitle a person to engage in litigation without cost consequences”. As such, Security for Costs was ordered in the amount of $8,000.

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