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Security for Costs III

. Richardson v. Arsenov

In Richardson v. Arsenov (Ont CA, 2022) the Court of Appeal considered a security for costs issue in an appeal:
(2) Security for Costs

[8] The second motion seeks an order for security for costs. A court may make an order for security for costs pursuant to r. 61.06(1) where certain circumstances are present:
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.
[9] In addition to the three factors enumerated in s. 61.06(1), a court must also consider whether it would be just to order security, having regard to the circumstances and the interests of justice: Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 22.


[14] I am also satisfied that it is in the interests of justice to order security. The moving parties have not delayed in bringing this motion, and the amount of the security sought is not prohibitive. While I am conscious of the responding parties’ current unfortunate situation regarding the power of sale proceedings and counsel’s submissions that the responding parties not be denied the opportunity to pursue their appeal, in my view they have not established impecuniosity or any other legitimate access to justice concerns: Zeitoun v. Economical Insurance Group (2008), 2008 CanLII 20996 (ON SCDC), 91 O.R. (3d) 131 (Div. Ct.), at paras. 45-46, aff’d 2009 ONCA 415, 96 O.R. (3d) 639.

[15] Given my finding that security for costs is justified under s. 61.06(1)(a), I need not consider s. 61.06(1)(c). I am mindful that resort to this latter section should be used sparingly: Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633, 268 O.A.C. 172, at para. 8.


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