LIU v CALGARY CHINATOWN DEVELOPMENT FOUNDATION, 2018 ABCA 4
4.22: Considerations for security for costs order
14.16: Filing the Appeal Record – standard appeals
14.47: Application to restore an appeal
14.64: Failure to meet deadlines
14.65: Restoring appeals
14.67: Security for costs
The Applicants, Liu and others, applied to restore an Appeal which had been struck for failure to file the Appeal record. The Respondent Cross-applied for Security for Costs of the Appeal.
Veldhuis J.A. noted that the Application was filed within the six-month time frame mandated by Rule 14.47, and the test for restoring an Appeal is whether it is in the interests of justice to restore it. Further, in applying this test, the following factors may be considered:
(a) whether the applicant intended in time to proceed with the appeal;
(b) the applicant's explanation for the defect or delay that caused the appeal to be struck or deemed abandoned;
(c) whether the applicant moved with reasonable promptness to cure the defect and have the appeal restored;
(d) whether the appeal has arguable merit; and
(e) whether the respondents have suffered any prejudice (including taking into consideration the length of the delay).
Veldhuis J.A. noted that the cause of the failure to file in time appeared to be a technical error by Appellant’s counsel, and that a mere slip or inadvertence on the part of counsel will generally not prevent restoration of an Appeal. Once the Appellants learned that the Appeal had been struck, they moved promptly. The Court noted that the Appellants appeared to intend to move forward with the Appeal and that they had been working to resolve the dispute with the Respondent. Finally, the Court noted that the Appeal had arguable merit.
The Respondent argued that it would suffer prejudice if the Appeal proceeded given that it was a non-profit organization, that it was staffed by volunteers, and that there were outstanding Costs from the Action in the Court of Queen’s Bench.
Justice Veldhuis noted that a single Justice of Appeal was capable of awarding Security for Costs pursuant to Rules 14.67 and 4.22, and that Security for Costs is a discretionary remedy that involves the balancing of the right of the Appellant to legal process with the right of the Respondent to economic security. Justice Veldhuis set out the test for awarding Security for Costs as:
(a) whether it is likely that the applicant for an order will be able to enforce an order or judgment against assets in Alberta;
(b) the ability of the respondent to pay the costs award;
(c) the merits of action;
(d) whether an order to give security for costs would unduly prejudice the respondent’s ability to continue the action; and
(e) any other matter the court considers appropriate.
Justice Veldhuis held that the Respondent had satisfied the test for Security for Costs. Further, the Respondent’s defence had succeeded before the Master and the Chambers Justice and had arguable merit. Veldhuis J.A. noted that the Appellants had little financial means, and that Security for Costs may prejudice their ability to continue the Action, but Appellants’ counsel was acting pro bono.
The Applications to restore the Appeal and for Security for Costs were granted.View CanLII Details