The Plaintiffs brought claims against two groups of Defendants, alleging solicitor negligence and improper conduct in defending a complaint to the Law Society of Alberta. In respect of the first claim, the Plaintiffs noted the Defendants in default, which was later set aside by an Applications Judge, who found that the Order was procedurally flawed. This decision was subsequently upheld by a Chambers Judge (the “Setting Aside Decision”).

Regarding the second claim, the Defendants applied for Security for Costs against the Plaintiffs, which was granted. The Plaintiffs’ appeal of the Security for Costs Order was dismissed for failure to prosecute. The Appeal was not restored, and the Security for Costs was not posted. Accordingly, the second claim was dismissed after the Plaintiffs failed to post Security for Costs as ordered by the Court (the “Dismissal Decision”).

The Plaintiffs appealed both the Setting Aside Decision and the Dismissal Decision.

The Court noted that a single Appeal Judge may award Security for Costs in accordance with Rules 14.67(1) and 4.22. Rule 14.67 permits a single Appeal Judge to order a party to provide Security for Costs. Rule 4.22 provides that the Court may order a party to provide Security for Costs if the Court considers it just and reasonable to do so, considering all of the factors provided in Rule 4.22, which an Applicant must prove.

In respect of the Setting Aside Decision, the Court found that it was difficult to conceive of any argument or evidence that could displace the fact that the Noting in Default was improper because one of the Plaintiffs, while disbarred, purported to act for the other Plaintiff, contrary to section 106(1) of the Legal Profession Act, and Rule 2.23(3)(a). Therefore, the Court found that the merits of the Appeal were weak, and the decisions of the Applications Judge and the Chambers Judge were owed deference.

On the Dismissal Decision, the Court found that it was procedurally questionable for a litigant to fail to appeal the original orders dismissing the appeals for a failure to prosecute and ordering security for costs, and instead appeal the subsequent Order which dismissed the appeals after failure to post security as directed. By advancing their appeal in this way, Justice Friesen found that the Plaintiffs had avoided application of Rule 14.5(1)(h) and launched an improper collateral attack on unchallenged orders of the Court of King’s Bench.

The Court found that the appeals were weak, the Plaintiffs were impecunious and there were no issues that would make it unjust or unreasonable to order payment of security for costs. The Court ordered that the Plaintiffs must each provide security for costs of the appeals in the amount of $48,850.00, which represented double the Column 5 Schedule C costs for each of the appeals.