Sep 10, 2015

Nova Scotia Civil Procedure Rules annotation of Rule 90.42

Leigh v. Belfast Mini-Mills Ltd., 2013 NSCA 86 (CanLII)
Rule 90.42 – Security for costs
In 2006 the appellants brought an action, alleging that the equipment the respondents manufactured had design flaws, which caused the appellants' business to lose revenues. In 2008 an appellant stalled discovery examinations by refusing to produce relevant documents and answer specific questions. The appellants brought numerous unsuccessful motions, applications and appeals, thereby incurring $7,900 in costs awards, which the appellants refuse to pay. Held, security for costs of $4,000 granted. Rule 90.42 is substantively identical to the former Rule 62.13; the same interpretive principles apply. Security for costs is ordered only where the applicant demonstrates 'special circumstances' and may not be ordered if doing so would prevent a good faith but impecunious appellant from pursuing an arguable appeal. In this case, the respondents' affidavit and brief enumerated their many attempts to secure payment of the $7,900 in outstanding costs awards, thereby demonstrating special circumstances. Despite the appellants' impecuniosity and the fact that compelling them to post security would likely terminate the appeal, this was one of those rare cases where the appellants' conduct made security for costs appropriate. The appellants pursued frivolous and futile motions, had no respect for court orders, thumbed their noses at the respondents' request to pay costs, failed to attend discovery and appealed each and every decision, thereby complicating and prolonging litigation.