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CIVIL PROCEDURE - Security for costs - Appeal costs

Monday, April 26, 2021 @ 9:43 AM  


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Application by the appellant for a declaration that the security for costs provisions for the Court of Appeal in Rule 14.67 of the Rules of Court were unconstitutional. The respondent sought an order for security of costs with respect to the appeal of an order finding the appellant in contempt of court and ordering him to pay a $3,000 fine.

HELD: Application dismissed. The appellant was ordered to pay security for costs of $21,630. He was impecunious and had no assets in Alberta and the likelihood his appeal would succeed was very low. A single judge of the Court of Appeal had the authority to hear the appellant's challenge to the constitutional validity of Rule 14.67 which empowered a single appeal judge to decide any application incidental to an appeal. Rule 14.67 was not inconsistent with the Constitution Act, 1867. Section 92(14) of the Constitution Act, 1867, authorized a province to enact laws related to the administration of justice in the province. By the exercise of this head of power, Alberta enacted statutes that created provincial courts and authorized the making of court rules. This grant of power was broad enough to justify the introduction of laws imposing various types of court fees that litigants must pay. Rule 14.67 did not transfer a core jurisdiction of a provincial superior court to a nonsuperior court. The jurisprudence interpreting Alberta's security-for-costs rules did not require a party who was indigent, for that reason alone, to furnish security for costs. A court was, however, likely to order a party who was indigent and advanced a hopeless or nearly hopeless position to put up security. Rule 14.67 had nothing to do with access to trial courts. Rule 14.67, in effect, only denied an impecunious appellant access to the Court of Appeal if he or she had an appeal whose prospects of success were very low. This was a justifiable limitation.

Trisura Guarantee Insurance Co. v. Duchnij, [2021] A.J. No. 290, Alberta Court of Appeal, T.W. Wakeling J.A., March 3, 2021. Digest No. TLD-April262021002