CHALUPA ESTATE v CHALUPA, 2014 ABCA 104
4.22: Considerations for security for costs order
Rule 505: When appeal available
The Applicant sought leave to Appeal an Order for Security for Costs made by a Queen’s Bench Justice. The Applicant, Ms. Goch, resided in Poland, and was married to the deceased testator for approximately ten years, during which time they lived in Alberta.
With respect to the right to Appeal, the Court stated there was no question that leave was required to Appeal, pursuant to Rule 505(3) and (4). The Court found that the test for leave to Appeal “requires that the appeal raise an important question of law and have a reasonable chance of success”.
The Court of Appeal reviewed the reasons given by the Chambers Judge for making the Security for Costs award, including:
1. Ms. Goch resided in Poland and there was no indication she had assets in Alberta;
2. Ms. Goch was impecunious but for the condominium she owned in Poland;
3. There was significant detail of the allegations of theft and fraud against Ms. Goch;
4. There was no evidence to suggest her ability to continue with the Action would be prejudiced by an award for security for costs; and
5. Delays in the action attributable to the Applicant were thwarting the orderly administration of the estate.
Berger J.A. stated that he had some concern about the Chambers Judge’s finding in respect of item 4 above, given the inevitable prejudice to the Applicant to pursue her action as a result of her impecuniosity. Nonetheless, Berger J.A. noted that the Applicant’s ability to pay the award of Security for Costs was but one factor, and was not dispositive.
In the result, the Court found that no error of law warranting Appellate intervention had been identified by the Applicant, and the Queen’s Bench Justice had applied Rule 4.22 correctly. The Application for leave to Appeal was denied.View CanLII Details