This was a Security for Costs decision. The Appellant appealed an Order of a Chambers Judge setting aside a without notice interlocutory injunction that she obtained from a different Chambers Judge. The Applicants, as Respondents to the Appeal, sought Security for Costs against the Appellant for the Appeal. The Application was granted.

Pentelechuk J.A. emphasized that security for costs is a discretionary remedy. The test includes balancing the reasonable expectations and rights of the parties to come to a just and reasonable conclusion, informed by the considerations set out in Rule 4.22. The onus is on the applicant to prove the factors in Rule 4.22 weigh in their favour. If the application is not made promptly and there is a risk of resulting prejudice, the Court has discretion to refuse to order security for costs. However, if there are doubts about a party’s ability to pay costs and the appeal has limited chances of success, security for costs may be justified.

The Court disagreed with the Applicants’ proposition that the Security for Costs test is disjunctive such that it may be granted if it is just and equitable to order security for costs or if the Appellant will be unable to pay costs that may be awarded. Pentelechuk J.A. emphasized that the authority for the disjunctive proposition, PricewaterhouseCoopers Inc v Perpetual Energy Inc, 2020 ABCA 36, must be read in context and that the Court did not set out a disjunctive test of universal application. Therefore, Appeal Justice Pentelechuk applied the test as set out in Rule 4.22.

Pentelechuk J.A. considered the Appellant’s ability to pay, the likelihood of enforcing a costs award, the merits of the Appeal, and any potential prejudice. The Court found that the Appellant had minimal or no assets in Alberta. The Appellant admitted financial vulnerability and had not paid a previous costs award. The Court was satisfied that even if the Appellant had the ability to pay a costs award, the collection of those costs would be prolonged and difficult.

Further, the Appeal faced challenges, particularly on the application of the interlocutory injunction test and the admissibility of new evidence. Although the Appellant claimed financial hardship, the Court found that she had demonstrated the ability to pursue the Appeal thus far and was not persuaded that an Order for Security for Costs would unduly prejudice her ability to do so. However, the Court found there was a delay in bringing this application which the Applicants failed to explain, and which weighed against an Order for Security for Costs.

Pentelechuk J.A. determined that a Security for Costs Order was appropriate but for a significantly reduced amount, limited to forward-looking costs and calculated at single Column 1 rates. The Appellant was directed to provide security for costs of the Appeal totaling $10,200 within 30 days of the decision, failing which, the Appeal would be deemed abandoned under Rule 14.67(2). The Application was granted.