Greckol JA

4.22: Considerations for security for costs order
4.28: Confidentiality of formal offer to settle
4.33: Dismissal for long delay
14.42: Applications to court of appeal panels
14.45: Application to admit new evidence
14.67: Security for costs

Case Summary

The Respondent (“Mr. Parker”) applied for an Order for Security for Costs against the Appellant (“Ms. Parker”) under Rule 4.22 in advance of Ms. Parker’s Appeal. Additionally, Mr. Parker sought that if Ms. Parker failed to pay the Costs by a set date, her Appeal should be struck. Further, Mr. Parker also applied to have parts of Ms. Parker’s Factum struck for referring to without prejudice communications under Rule 4.28 and for containing fresh evidence which did not conform with Rules 14.42 and 14.45.

Mr. Parker deposed that Ms. Parker was judgment-proof and had refused to pay any of the previous Costs awarded against her. She had also previously provided financial statements which indicated that she had no exigible assets. Mr. Parker further argued that, in the past year, property belonging to Ms. Parker was transferred to a numbered corporation and thus evaded previous Costs Orders.

Greckol J.A. noted that Rule 14.67(1) permits a single Appeal Judge to order Security for Costs pursuant to Part 4, Division 4 of the Rules. After reviewing the factors for consideration under Rule 4.22, Greckol J.A. found that it was appropriate to require that Security for Costs be posted before the Appeal could proceed given that: (1) it was unlikely that Mr. Parker would be able to recover any of his Costs on Appeal if he was successful unless security was posted; (2) the Appeal was not so meritorious as to make an order for Security for Costs inappropriate; and (3) while Ms. Parker asserted that she would be unable to continue her Appeal if Security for Costs was awarded against her, there was no sworn evidence to support that assertion.

Turning to the issue of striking portions of the Ms. Parker’s Factum, Justice Greckol noted that paragraphs of Ms. Parker’s Factum did contain information about without prejudice communications that took place during the litigation. Rule 4.28 prohibits sharing information about Formal Offers until either the offer is accepted or a Court has decided the claim. Her Ladyship found that neither a single Judge, nor a full panel, has the power to create exceptions to Rule 4.28. Accordingly, Her Ladyship directed that these paragraphs be struck.

Mr. Parker also argued that parts of the Factum argued that Mr. Parker’s Actions should be dismissed for long delay pursuant to Rule 4.33, which was a new argument not before the Trial Judge. Greckol J.A. held that it would be for the Appeal panel to determine if new arguments made on Appeal should be struck.

Justice Greckol also noted that some paragraphs of Ms. Parker’s Factum referred to new evidence on Appeal for which no Application had been made. Accordingly, Her Ladyship directed that these paragraphs also be struck. Justice Greckol concluded that the panel that would hear Appeal shall deal with the Costs of the Application.

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