ELKOW v SANA

The Court considered an Application by the Respondent, Elkow, for an Order for Security for Costs in regards to the Appeal filed by the Appellant, Sana. After having been found to have defamed Elkow at Trial, Sana appealed the damages assessment following that ruling.

Pentelechuk J.A. confirmed that Rule 14.67(1) allows a single Appeal Judge to award Security for Costs, and if the security is not paid as ordered, the Appeal is deemed to have been abandoned and the Applicant party is entitled to Costs. Pentelechuk J.A. also noted that the factors to be considered when assessing whether Security for Costs is warranted are listed under Rule 4.22.

The Court found that the factors weighed in favour of granting the Application. It is unlikely that Sana could pay a Costs award at the conclusion of the Appeal. Sana had outstanding Costs awards against her and was heavily indebted to Legal Aid. Moreover, it was very unlikely that Sana’s Appeal would be successful, as it was limited to the question of damages which is assessed on a very deferential standard.

Pentelechuk J.A. granted the Application for Security for Costs.