HENDERSON (RE), 2022 ABCA 43
4.22: Considerations for security for costs order
14.67: Security for costs
The Applicant applied for an Order for Security for Costs. Justice Pentelechuk noted that Rule 14.67(1) permits a single appeal judge to order Security for Costs, and Rule 4.22 outlines the considerations in determining whether Security for Costs is just and reasonable, based on the following factors:
(a) whether it is likely the applicant for the order will be able to enforce an order or judgment against assets in Alberta;
(b) the ability of the respondent to the application to pay the costs award;
(c) the merits of the action in which the application is filed;
(d) whether an order to give security for payment of a costs award would unduly prejudice the respondent’s ability to continue the action;
(e) any other matter the Court considers appropriate.
Pentelechuk J. stated that the onus is on an applicant to establish that these factors weigh in their favour. The Court found that failure to pay costs in a previous trial court process, along with a demonstrated inability to pay costs if an appeal is successful, is sufficient to grant a Security for Costs Order in most cases.
The Court held that it was appropriate to grant Security for Costs. The Respondents had an outstanding costs award arising from the proceedings leading to the Order under appeal, and failed to pay those costs despite requests for payment and execution attempts.View CanLII Details