In this Application, the Court was asked to determine whether a nunc pro tunc (“now for then”) Order was the appropriate recourse when the Respondents were unexpectedly unable to meet a Court-ordered deadline for payment of Security for Costs and the Applicants refused to accept payment one day after the deadline.

Citing CIBC v Green, 2015 SCC 60, the Court noted the general principle that Courts have inherent jurisdiction to issue Orders nunc pro tunc, which would give an Action retroactive legal effect, as though it had been performed at an earlier date. The Court also noted that pursuant to Rule 9.6, a Court Order takes effect from the date of pronouncement or, if the Court orders otherwise, the date so ordered. Further, under Rule 9.14, a Court is permitted, after a Judgment has been entered, to make a further or other Order which provides a remedy to which a party is entitled in connection with the Judgment so long as doing so does not require variance of the original Judgment.

The Court highlighted the fact that the Respondents could not have anticipated that their multiple emails to Counsel for the Applicants for the Applicants’ banking information would go unanswered on the payment deadline. The Respondents had done what was necessary to complete the required step on time but were unable to complete the step for reasons beyond their control, which were unforeseen and unintentional. The Court also found that a nunc pro tunc Order would not cause prejudice to the Applicant, and would facilitate access to justice.

Further, the Court noted that in the event the nunc pro tunc Order was not granted, relief from forfeiture would be available to the Respondents since the result of non-compliance (i.e., not meeting the deadline for payment) was disproportionate in light of the facts of this case.

In the result, the Court granted a nunc pro tunc Order, allowing the transfer of funds forthwith and deeming that payment to have been made on the payment deadline.