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CIVIL PROCEDURE - Costs - Security for costs - Where action frivolous or vexatious

Thursday, March 29, 2018 @ 8:38 AM  


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Appeal by Marques, Paul and Proenca from an order requiring them to post security for costs, with a motion seeking representation by a non-lawyer. The respondent, Bambrick, was a contractor who sued to recover approximately $15,000 allegedly owed by the appellants under a residential construction contract. The appellants filed a counterclaim seeking in excess of $500,000. The parties each sought security for costs. The motion judge ruled that the counterclaim was apparently frivolous and vexatious, and that the appellants had insufficient assets in the province to pay costs. They were ordered to post security for costs in the amount of $18,000. The appellants challenged the decision to order security, and the quantum ordered. They brought a preliminary motion seeking representation by a non-lawyer.

HELD: Motion dismissed; appeal allowed. The court's inherent jurisdiction to permit representation by a non-lawyer involved consideration of the extent of the representation requested, the non-lawyer's relationship to the parties, the vulnerability of the parties, the complexity of the case, the competence of the non-lawyer, and the integrity of the proceeding. Based on the relevant factors, this was not an instance in which the court should exercise its discretion. The appellants based their position on an unwarranted and baseless mistrust of lawyers. Moreover, their proposed representative had a pattern of involvement in proceedings that lacked merit, and raised troubling issues regarding respect for the administration of justice. The motion judge's order for security for costs was quashed. In assessing whether the counterclaim was frivolous and vexatious, the motion judge erred in applying a prima facie case test rather than the good reason to believe test, and further erred by focusing on the remedy sought rather than the nature of the claim.

Marques v. Bambrick (c.o.b., Do All Home Improvements), [2018] P.E.I.J. No. 8, Prince Edward Island Court of Appeal, D.H. Jenkins C.J.P.E.I., M.M. Murphy and J.K. Mitchell JJ.A., March 8, 2018. Digest No. TLD-March262018013