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

Case Summary

The Applicant applied to set aside a Stay of Enforcement and for Security for Costs. It succeeded on both.

In May 2021, a Justice of the Alberta Court of King’s Bench upheld an Order by an Applications Judge permitting the Applicant to register a 2017 Ontario Judgment against the Respondent under the Reciprocal Enforcement of Judgments Act, RSA 2000, c R-6. Further, the Order required the Respondent to complete a Financial Statement of Debtor Form and answer questions in aid of enforcement in favour of the Applicant.

The Alberta Court of Appeal stayed the enforcement proceedings against the Respondent pending the outcome of two matters before the Ontario Courts. The two Ontario matters were concluded and decided against the Respondent, with the Ontario Superior Court recently declaring the Respondent a vexatious litigant.

Accordingly, the Applicant applied to set aside the Stay and for Security for Costs.

The Court of Appeal noted that to set aside a Stay, the Court will apply the tri-partite test set out by the Supreme Court of Canada in RJR-MacDonald v Canada (Attorney General), [1994] 1 SCR 311. The first question asks whether there is a serious question arguable on Appeal. The Court held that considering the Ontario Court’s findings, there was no serious question on Appeal. The second question asks whether there is irreparable harm to the Respondent. The Respondent would not suffer irreparable harm by completing a Financial Statement of Debtor Form and submitting to Questioning in aid of enforcement. Lastly, the third question looks to determine whether the balance of convenience favours the Applicant or Respondent. Given that this matter had been before the Courts for a long time and that the matter was a money Judgment, the balance of convenience favoured the Applicant. Therefore, the Stay was lifted but no steps could be taken until the Respondent’s Appeal was heard.

After considering the factors in Rule 4.22, the Court of Appeal noted that it had discretion to grant Security for Costs. The Court of Appeal found that it was inappropriate to order Security for Costs for steps taken because the parties had already filed their Factums. However, the Respondent was asked to post Security for Costs within two months of the Decisions otherwise his Appeal would be deemed abandoned under Rule 14.67(2).

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