Security for Costs of Appeal (Cont’d)

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Security for Costs of Appeal (Cont’d)

“For other good reason”

In my November 9, 2016 blog, I discussed motions for security for costs of appeal where there is good reason to believe the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the cost of the appeal: Rule 61.06(1)(a) of the Rules of Civil Procedure.

There is in the appellate context, however, an additional basis for a court to issue an order for security for costs, viz: where there is “other good reason” (Rule 61.06(1)(c)).

This rule does not necessarily require that the respondent to the appeal establish that the appellant has insufficient assets in Ontario to pay the costs of the appeal, or even that the appeal is frivolous and vexatious.

Even when the case is not frivolous and vexatious, a low prospect of success is a factor that may lead the Court ot conclude that it is appropriate to order security for costs.  For instance, in Perron v. Perron, the Court of Appeal for Ontario made an order for security for costs despite not finding the appeal to be frivolous or vexatious.  The low prospect of success on appeal, coupled with the behavior of the appellant which included lengthening the trial process and avoiding liability for his costs at trial was sufficient to allow the Court to make an order for security for costs “for other good reason.”

See Perron v. Perron, 2011 ONCA 776 ONCA 776 (CanLII) at paras 21 and 23
In the circumstances, the Court held, it would be very unfair to expose the respondent to the risk that the appellant will not satisfy the costs of appeal.
Rule 61.06 of the Rules of Civil Procedure:
          SECURITY FOR COSTS OF APPEAL
In an appeal where it appears that,
(1)(a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;
(c) for other good reason, security for costs should be ordered,
a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.
(2) If an appellant fails to comply with an order under subrule (1), a judge of the appellate court on motion may dismiss the appeal.



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