4.22: Considerations for security for costs order
4.31: Application to deal with delay
14.67: Security for costs

Case Summary

The Applicants, CPI Crown Properties International Corporation, CPI Crown Development Corporation, and Camrose Crown Care Corporation applied to restore their Appeal that was struck for failing to file their factum on time. Their factum was filed two days past the limitation date. The Respondents, Finlay Masonry 1980 Ltd., Annie’s Stucco Ltd., Pradip K. Misra Architect, and A.D. Williams Engineering Inc. objected to the Application to restore the Appeal and in the alternative, requested an Order requiring the Applicants pay Security for Costs.

Schutz J.A. reviewed the five-part test to restore an Appeal. There must be: 1) arguable merit; 2) explanation for the defect or delay that caused the Appeal to be taken off the list; 3) reasonable promptness in moving to cure the defect; 4) timely intention to proceed with the Appeal, and 5) potential prejudice to the Respondents including the length of the delay. No single factor is determinative.

Justice Schutz noted that the only factor to be considered in this case was whether the Claim had arguable merit. The basis for the Appeal was the dismissal of the Action due to long delay pursuant to Rule 4.31. Schutz J.A. confirmed that Rule 4.31 allows the Court to dismiss a Claim when the delay is inordinate or inexcusable. Inordinate and inexcusable delay results in a rebuttable presumption of significant prejudice suffered by the moving party, and it is then incumbent on the non-moving party to prove on a balance of probabilities that significant prejudice has not been suffered. Schutz J.A. then ruled that the Applicants had met the “very low bar” for proving arguable merit, and granted the Application to restore the Appeal.

In regards to the Cross-Application for Security for Costs, Schutz J.A. confirmed that the Court has jurisdiction to grant Security for Costs according to Rules 14.67 and 4.22 upon consideration of several factors: the likelihood of enforcement of a Judgment or Order by an Applicant; a Respondent’s ability to pay; the merits of the underlying Action; any resulting and undue prejudice to the Respondent’s ability to continue in the Action; and any other matter the Court considers appropriate. Applying the factors, Schutz J.A. held that Security for Costs was appropriate in this case. The Application to restore the Appeal was granted pending the posting of Security for Costs by the Applicants.

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