4.22: Considerations for security for costs order
14.67: Security for costs

Case Summary

The Plaintiff’s claims had been summarily dismissed and/or struck. On Appeal, the Defendants sought Security for Costs.

As the Plaintiff was a body corporate, the Court noted the unsettled authority respecting whether Security for Costs is to be assessed against Rule 4.22, as referred to in Rule 14.67 for the purposes of Appeal, or section 254 of the Business Corporations Act, RSA 2000, c B-9 (the “Business Corporations Act”). Justice Veldhuis declined to resolve the relation between Rule 4.22 and section 254, finding that both tests thereunder were satisfied in favour of the Defendants in the circumstances. The Plaintiff’s Trustee in bankruptcy had refused to provide current financial disclosure to rebut the dated evidence of impecuniosity advanced by the Defendants.

With respect to quantum, the Court was not satisfied that Costs estimated on a solicitor-client basis were appropriate, but did elect to grant Costs estimated on an enhanced basis to account for the volume of evidence in the Appeal Record and the Plaintiff’s intention to seek leave to file a 50-page Factum. The Costs award was then reduced by 20%, reflecting the proportion of the Plaintiff’s claim which Justice Veldhuis characterized as relating to oppression, in light of the prohibition in section 243 of the Business Corporations Act on awarding Security for Costs against a complainant of oppression.

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