The Plaintiff sought permission to appeal a Decision of the Case Management Judge denying the Plaintiff’s Application for Security for Costs (the “Security for Costs Application”). Berger J.A. noted that an Order for Security for Costs is a discretionary matter, and permission to appeal will be withheld absent an error of law, an unreasonable exercise of discretion apparent on the record, or a misapprehension of an important fact.

In the Security for Costs Application, the Case Management Judge stated that the Defendants’ evidence was unchallenged because the Affiant had not been cross-examined. The Plaintiff argued that the Case Management Judge improperly and erroneously ignored previous and contradictory Affidavit evidence from the same Affiant.

Justice Berger agreed that there was an arguable error, but found that the Security for Costs Application would have failed in any event. The Case Management Judge was entitled to, and did conclude that, based on the relative merit of the Parties’ claims, the Plaintiff’s prospect of success was problematic given the Defendants’ meritorious limitations defence. For this reason, Berger J.A. dismissed the Plaintiff’s Application for permission to Appeal.