Friday, May 25, 2012

Security for costs should be ordered less frequently with a greater focus on the merits of the proceeding?

Cinar Corp. v. Robinson, 2012 SCC 25 might be seen as a rather particular decision related only to Supreme Court practice but it has a suggestion of something more generally relevant. Security for cost motions are often brought for the tactical purpose of blocking litigation by applicants/plaintiffs/appellants with shallow pockets. The reference by the Supreme Court of "proper access" and its relation to "deterrent against frivolous or dilatory appeals" suggests that one might argue security for costs should be ordered less frequently with a greater focus on the merits of the proceeding:

[4] We will not grant the requested order for security. Although we do not mean to say that it would be impossible to order security - whether the deposit of a bond or any other form of security - in excess of $500, it appears that this Court has never granted such security as a condition for bringing an appeal unders. 60(1) <> (b) of the Supreme Court Act <> , which has traditionally been applied so as to require the deposit of only a symbolic amount of $500 in respect of the costs of the appeal (Lanificio Fratelli Bettazzi S.N.C. v. Tissus Ranchar Inc., September 6, 1990, No. 21373, per Cory J.; see H. S. Brown, Supreme Court of Canada Practice 2012 (2011), 12th ed., at pp. 134-36). The type of security the respondents are seeking has usually been granted as a condition for a stay of proceedings or a stay of execution under s. 65 <> or65.1 <> of the Supreme Court Act <> or under a statutory provision such asart. 522.1 <> C.C.P. <>


[6] It should be added that it would be difficult to reconcile security such as this with the requirements underlying proper access to the Supreme Court. Section 40 <> of the Supreme Court Act <> provides that an application for leave to appeal is to be decided on the basis of the importance of the case. Moreover, the procedure for granting leave to appeal is in itself a sufficient deterrent against frivolous or dilatory appeals.

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