Veldhuis JA

12.36: Advance payment of costs
14.5: Appeals only with permission

Case Summary

The Applicant, Ms. Nutbrown claimed unjust enrichment and sought the determination of parenting rights. The Chambers Judge denied her Application for advance payment of Costs on the basis that the Applicant’s annual earnings of $85,000 did not render her impecunious, her Claim faced significant challenges, and that the circumstances of the case were not exceptional. Ms. Nutbrown sought permission to Appeal the Chambers Judge’s Decision.

Justice Veldhuis confirmed the test for permission to Appeal requires that the Applicant demonstrate: i) a good arguable case with sufficient merit to warrant the scrutiny of the Court of Appeal; ii) issues of importance to the parties and in general; iii) practical utility of the Appeal; and iv) that no delay in proceedings will be caused by the costs Appeal.

Veldhuis J.A. considered the factors as applied to the facts and held that the Chambers Judge’s finding that the Applicant had sufficient resources to carry on the litigation was supported by the evidence and disclosed no reviewable error. Further, the finding that the case was not an exceptional one warranting an Order for Advance Costs was within the Chambers Judge’s discretion to determine, and so did not warrant the intervention of the Court of Appeal. The Application for permission to Appeal was denied.

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