PACER HOLDINGS CONSTRUCTION CORPORATION v RICHARD PELLETIER HOLDINGS INC, 2020 ABCA 47
4.22: Considerations for security for costs order
4.23: Contents of security for costs order
14.67: Security for costs
The Respondent in the Appeal, Pacer Holdings Construction Corporation (“Pacer”), sought an Order directing the Appellant, Richard Pelletier Holdings Inc. (“Pelletier”), to pay Security for Costs, and to lift the statutory stay of the Bankruptcy Order granted to Pelletier.
In applying Rules 14.67(1) and 4.22, which set out the Court’s considerations in assessing whether Security for Costs should be ordered, the Court found that: (a) it was uncertain whether Pacer would be able to enforce an Order or Judgment against Pelletier’s assets in Alberta; (b) Pelletier had no assets to pay a Costs Award; (c) the merits of Pelletier’s Appeal were questionable; and (d) a Security for Costs Order would not unduly compromise Pelletier’s ability to continue the Appeal. O’Ferrall J. A. considered the above factors and found that Security for Costs was warranted.
Next, the Court addressed which column in Schedule C would be appropriate for the Security for Costs. The Court noted that if the appealed Bankruptcy Order was ultimately found to be valid, assets exceeding $1.5 million (the Column 5 amount) may ultimately become recoverable. Therefore, the Court awarded Security for Costs reflective of Column 5 of Schedule C.
The Court was prepared to order that the Security for Costs strictly comply with Rule 4.23, but gave the parties an opportunity to try to agree on their own arrangement first.
In regard to the Application to lift the statutory stay of the Bankruptcy Order, the Court found that “the appeal is not a strong one and…the applicant will be prejudiced if the stay is not lifted and the respondent will not.” The Court found that it was in the interests of justice to lift the stay.View CanLII Details