4.22: Considerations for security for costs order
10.29: General rule for payment of litigation costs
14.5: Appeals only with permission

Case Summary

The Applicant, Thompson, unsuccessfully sought leave to appeal two Orders granted against him by the Case Management Judge: one which declared him a vexatious litigant and another which required him to post security for Costs. In the course of litigation against a local and an international union, the Applicant “filed a voluminous amount of documents, numerous and repetitious applications, and has launched unsuccessful complaints” which related to opposing counsel and several members of the judiciary.

Justice Schutz stated that Rule 14.5(4) “expressly precludes an appeal from an order denying leave to institute or continue proceedings”. Her Ladyship noted the general test for leave to appeal under Rule 14.5 is whether: (a) there is an important question of law; (b) the proposed appeal has a reasonable chance of success; and (c) the delay will not unduly hinder the action or cause undue prejudice. While Rule 14.5(1)(j) requires that a vexatious litigant obtain permission to appeal any decision, it does not deny the right to appeal outright. Rather, the general test for permission to appeal under Rule 14.5 applies, with the additional burden on the Applicant “to show the case does not amount to an abuse of process”.

The Applicant argued that the Case Management Judge was not entitled to order interim Costs because the terms of the Respondent union’s collective agreement “stated that no legal costs are to be paid until a dispute is resolved”. Schutz J.A. noted that Rule 10.29 provides that a successful party to an Application is entitled to Costs subject to various factors. The factors did not include collective bargaining agreements or other contractual relationships.

Rule 4.22 sets out the factors to consider when considering whether a party must post security for costs. With respect to the Application for permission to appeal the security for Costs Order, Justice Schutz held that the Case Management Judge had considered the applicable factors as the Order provided for payment of the security in two installments prior to Trial. In the result, Justice Schutz held that the Applicant had not raised any issues of general importance that had a reasonable chance of success on Appeal; therefore, the Applications for permission to appeal the vexatious litigant Order and the Security for Costs Order were denied.

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