LAY v LAY, 2023 ABKB 260


4.22: Considerations for security for costs order
14.67: Security for costs
14.90: Sanctions
14.37: Single appeal judges

Case Summary

The Applicants applied to strike an Appeal by the Respondents and to obtain Security for Costs. Appeal Justice Ho granted the Application for Security for Costs and directed that the strike Application be brought before a Panel of the Court rather than a single Appeal Judge.

With respect to the strike Application, the Applicants argued that an Order striking the Appeal should be granted because: (i) one of the Appellants was not a proper party to the Appeal, (ii) the second Appellant was bankrupt and unable to file an Appeal in her own name, and (iii) the first Appellant could not act on behalf of the second Appellant as he was not a lawyer within the meaning of section 106 of the Legal Profession Act, RSA 2000, c L-8.

Rule 14.37(2)(b) gives a single Appeal Judge jurisdiction to strike an Appeal if it does not comply with a mandatory Rule, prior Order, or direction of the Court of Appeal. However, the Applicants could not explain what mandatory Rule, prior Order, or direction was not observed by the Respondents. Instead, the Applicants tried to rely on Rule 14.90(1)(b), generally. However, Rule 14.90(1)(b) falls under a subdivision related to sanctions and states that in the event of non-compliance with a Rule, Order, or direction, a single Appeal Judge may strike an Appeal.

Appeal Justice Ho found that she did not have jurisdiction to hear the strike Application because a determination of whether a proper party to the Appeal - notwithstanding that it has been identified as a respondent in the Court below - is an issue that should be more appropriately considered by a panel of the Court.

With respect to the Security for Costs Application, a single Appeal Judge may award Security for Costs pursuant to Rule 14.67(1). The considerations for issuing a Security for Costs Order are outlined in Rule 4.22. In determining whether it is just and reasonable to order Security for Costs, the Court looks at: (a) whether it is likely that the Applicant can enforce a Judgment against the Respondent’s assets in Alberta; (b) the Respondent’s ability to pay the Costs Award; (c) the merits of the Action in which the Application is filed; (d) whether the Security for Costs Order would unduly prejudice the Respondent’s ability to continue the Action; and (e) any other matter the Court considers appropriate. The Applicant has the onus of establishing that these factors weigh in favour of a Security for Costs Award.

Appeal Justice Ho found that on the record it was just and reasonable that the Respondents pay Security for Costs for the fees for the Appeal. The Respondents had an outstanding $350,000 in unpaid Cost Awards from litigation in the Court below. While some of the Costs Awards had been outstanding for more than five years, the Court stressed that access to justice "does not equate to access to civil processes without fear of costs consequences”. 

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