FENOGLIO v THOMPSON, 2022 ABCA 401
14.5: Appeals only with permission
The Applicant applied under Rule 14.5(1)(h) for permission to Appeal the Chambers Justice’s Order (the “Order”) requiring the Applicant to pay Security for Costs totalling $594,429.03.
The Court noted that the applicable to test for permission to Appeal the Order under Rule 14.5(1)(h) requires that the Applicant must show: (1) that there is an important question of law or precedent; (2) there is a reasonable chance of success on Appeal; and (3) the delay will not unduly hinder the progress of the Action or cause undue prejudice. The Court additionally noted that the test may manifest slightly differently depending on the Appeal’s subject matter and context, however the basic principles set out apply to all types of Applications for permission to Appeal.
The Court determined that the Applicant’s grounds relating to whether the Applicant had assets in Alberta sufficient to pay a Costs Award upon determination of the matter and whether the Chambers Justice properly accounted for economies of scale in the circumstances, were insufficient to amount to an important question of law or precedent. The Court found that the Chambers Justice’s exercise of discretion was reasonable on the record and determined that appellate intervention was not warranted with respect the Applicant’s argument that the Security for Costs set out in the Order should be reduced.
Additionally, the Court noted that granting the Application for permission to Appeal would unduly hinder the progress of the Action because the Security for Costs Application and resulting Order was the first of several interlocutory Applications to be heard in litigation proceedings where the Applicant had named over thirty defendants with wide-ranging allegations. The Court determined that allowing an Appeal to proceed in the context of an interim Security for Costs Award, where the funds are held by the Clerk of the Court and subject to further Order, would not be an efficient use of resources.
As a result, the Court dismissed the Application for permission to Appeal.View CanLII Details