14.5: Appeals only with permission

Case Summary

The Applicant applied for permission to Appeal an Order that he post Security for Costs for every Application related to the estates of his parents (the “Estates”), pursuant to Rule 14.5(1)(h). The Applicant also applied for a Stay of an Order that he pay Costs of his Application for removal and replacement of the personal representative of the Estates (the “Personal Representative”). The Applications for permission to Appeal and for a Stay were both dismissed.

Feehan J.A. cited Zulu Publications Inc. v WestJet Airlines Ltd., 2021 ABCA 353 and Thompson v Procrane Inc. (Sterling Crane), 2016 ABCA 71 for the principle that generally, permission to Appeal will be granted only if the Appeal raises a serious question of general importance, and if there is a reasonable chance of success, having regard to the prejudice to each Party and whether the delay caused by an Appeal would unduly hinder the Action.

Citing Vysek v Nova Gas International Ltd., 2002 ABCA 112, Feehan J.A. commented that for an issue to raise a serious question of general importance, it must be a broad question which transcends the interests of the immediate Parties. Feehan J.A. held that this requirement was not met as the questions raised were of private importance to the Applicant alone.

Feehan J.A. further held that, given the Applicant’s often unsuccessful Applications in this Action over the past eight years, the Order that any further Application must be accompanied with Security for Costs was supportable and appropriate. Thus, there was no reasonable chance that on Appeal the Court would vary that requirement.

In addition, the Applicant failed to pay the $150,000 owing in Costs or further accruing Costs. The Applicant resided in Sweden for the entirety of this litigation and only complied with Court Orders after long delays. Based on that, Feehan J.A. held that there would be significant prejudice to the Estates by allowing the Applicant to bring further Applications without posting Security for Costs.

With respect to the Application for a Stay, Feehan J.A. noted that the Applicant was required to pay Costs of his Application by means of a transfer of funds held in the Court to counsel for the Personal Representative. At the time this Decision was made, the funds were held in trust pending resolution of the Estates. Having found that a decision as to whether that payment should have been stayed would have no practical effect on the rights of the Parties, Feehan J.A. dismissed the Application for Stay.

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