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Appeals - Security for Costs (5). Bogue v. Miracle
In Bogue v. Miracle (Ont CA, 2024) the Ontario Court of Appeal allows a motion for security for costs on appeal:[17] A single judge of this court has discretion to award security for costs of an appeal pursuant to r. 61.06(1):61.06(1) In an appeal where it appears that,
(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;
(b) an order for security for costs could be made against the appellant under rule 56.01; or
(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. [18] In Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474, 156 O.R. (3d) 551, at para. 17, Zarnett J.A. described the two-step reasoning process to be followed in assessing whether to make an order pursuant to r. 61.06(1):The ordering of security for costs is discretionary; a two-step reasoning process is involved. The first question is whether the requirements of r. 61.06(1)(a), (b), or (c) are met. If so, the second question is whether it would be just to order security, considering the circumstances and the interests of justice: Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at paras. 18-19. [19] Mr. Bogue submits that security for costs may be ordered under r. 61.06(1) (a), (b) and (c).
....
[22] Mr. Bogue also relies on r. 61.06(1)(b) on the basis that r. 56.01(1)(c) applies:56.01 (1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,
(c) the defendant or respondent has an order against the plaintiff or applicant for costs in the same or another proceeding that remain unpaid in whole or in part; ....
[25] Turning to r. 61.06(1)(c), there is “other good reason” to grant security for costs.
[26] Under r. 61.06(1)(c), the reason must be a “fairly compelling reason” and one that is related to the purpose for ordering security: Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633, 268 O.A.C. 172, at para. 8.
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