Dagher v. Thompson, 2011 ABQB 499

Court of Queen ’ s Bench of Alberta Citation: Dagher v. Thompson, 2011 ABQB 499 Date: 20110808 Docket: 0901 16987 Registry: Calgary Between: Danny H. B. Dagher Appellant/Plaintiff - and - Dirk A. Thompson and Dirk A. Thompson Professional Corporation Respondents/Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A.G. Park _______________________________________________________ Appeal from the Order by Master J. L.

Mason Dated the 7 th day of October, 2010 Filed on the 21 st day of October, 2010 (Docket: 0901-16987) [ 1 ] The Defendants (Thompson) brought a Notice of Motion in Masters Chambers on October 7, 2010. The Motion sought an Order for Security for Costs against the Plaintiff (Dagher). The grounds for that application were: 1. The Plaintiff has brought another action or proceeding for the same cause, being Action No. 0901-07869; 2. This action in the case at bar is frivolous and/or vexatious;

3. It is fair and reasonable to grant security for costs against the Plaintiff in the circumstances; 4. The Defendants have a good defence to this present action based on having met or exceeded the standard of care, and not having caused any injury to the Plaintiff; and 5.

The Plaintiff does not have sufficient exigible assets in Alberta to satisfy a judgment for costs. [ 2 ] The application was based on an Affidavit of Thompson and the pleadings and proceedings in this action. [ 3 ] In response to Thompson’s application Dagher filed an Affidavit. [ 4 ] Thompson’s Affidavit set out he treated Dagher as a dental patient between September 8, 2006 and April 17, 2008. His dental work related to the restoration of crowns on Dagher’s central incisors (Teeth 2-1, 3-1, and 4-1).

Those three crowns had been installed previously by other dentists. [ 5 ] Thompson swore his dental treatments were reasonable and carefully undertaken and he did not injure Dagher. Thompson believed he had good and true defences to Dagher’s claims. Thompson advised his dental work was entirely successful.

He attached as exhibits, two letters of a dental specialist dated November 15, 2007 and April 8, 2008 which opined that Thompson’s restorative dental work “looked great” and was “well done”. [ 6 ] On December 2, 2008, Dagher laid a complaint against Thompson with the Alberta Dental Association and College, (the College), respecting the quality of work he received. On December 15, 2009 the Complaints Director of the College responded to the complaint. The Complaints Director noted Dagher attended upon Thompson to finish dental work commenced by another dentist.

She found Thompson treated Dagher and received telephone calls from Dagher fifty times between September 8, 2006 to September 26, 2008. The Complaints Director noted Thompson provided a detailed description and supporting clinical records of the many attempts he made to satisfy Dagher’s aesthetic demands. She noted Thompson referred Dagher to two dental specialists and a chiropractor to assist Dagher’s bite, back and other treatments Dagher desired. She further noted Thompson’s numerous attempts to satisfy Dagher included referrals, custom lab work, repeated adjustments and unappointed treatment.

The Complaints Director found Thompson’s record- keeping, clinical notes, consent and medical history more than met the required dental standards of practise. She found the photographs presented by Thompson indicated the form and aesthetics provided were excellent. Informed consent was provided by Thompson according to the Complaints Director. She went on to indicate Dagher’s expectations could not be met by Thompson. She found the failure of Thompson to meet Dagher’s expectations was not evidence Thompson engaged in unprofessional conduct.

Her findings set out Dagher had extensive and repetitive treatment of his teeth which had threatened the integrity of the teeth. In

summary, the Complaints Director concluded there was insufficient evidence of unprofessional conduct under the Health Professions Act , R.S.A. 2000 ch. H-7 and dismissed Dagher’s complaint. [ 7 ] On January 8, 2010 Dagher by letter appealed the decision of the Complaints Director to the Complaint Review Committee of the College. In his appeal letter Dagher referenced his complaints against Thompson. He further set out that he attended upon 2 further dental specialists who apparently advised him Thompson’s work was negligent.

Neither in that appeal letter or in the application before the Master did Dagher provide any evidence from those two specialists setting out such advice. In that appeal letter he referenced other complaints against Thompson. Further he made a request that the Complaint Director resign her position due to the unprofessional conduct exhibited by her in the investigation of his complaint. He advised in his belief the College was “picking” on him. [ 8 ] On March 10, 2010 the Complaint Review Committee dismissed Dagher’s appeal due to its opinion there was insufficient evidence of unprofessional conduct by Thompson.

In dismissing the appeal the Committee noted Dagher presented no additional evidence from that which had been provided to the Complaints Director. It further noted Dagher’s refusal to provide the dental models he possessed for a possible review by the Committee. It opined from its review of the extensive documentation provided by all dentists in this complaint and in prior complaints of Dagher, the quality of the dental treatment was “great”. It further opined Dagher’s expectations were unrealistic and unachievable as Dagher found fault with the extensive restoration provided by more than one dentist.

It noted his continued requests for re-treatment jeopardized the long-term prognosis for his teeth. The Committee finally found Dagher had been provided every opportunity to approve the treatment provided and in almost all cases he approved the aesthetics. Finally it noted Thompson’s records and clinical documentation were far above the standard required for Alberta dentists.

[ 9 ] In his written complaints Dagher represented Thompson’s dental work was poor and negligent. In his specific letter of appeal to the Complaint Review Committee Dagher advised a Dr. Ceyhan, a certified prosthodontic specialist, told him on October 15, 2008 that “all the work done by Dr. Thompson was wrong”. Thompson in his Affidavit of July 29, 2010, placed before the Master, disagreed with Dagher’s assertion regarding Dr. Ceyhan’s advice. Thompson indicated his review of Dr. Ceyhan’s treatment records did not identify his work as negligent. As a consequence Thompson deposed he had a good defence to Dagher’s claims because: (

a) I did not injure Dagher; (

b) My dental treatments, history taking and record keeping were more than reasonable in the circumstances; (

c) Dagher gave his full and informed consent to all treatments; and (

d) Dagher was apprised of the risks of repeatedly re-treating his teeth. [ 10 ] In that Affidavit of July 29, 2010 Thompson noted Dagher’s dental treatments between February 2003 and November 2009 had been subsidized by the Assured Income for the Severely Handicapped (“A.I.S.H.”) of the Province of Alberta. [ 11 ] In that Affidavit Thompson further referenced the letter of Dagher of December 2, 2008 to the College’s Complaints Director.

In that letter Dagher stated: “I am heavily in debt on my credit card and I know that I will never be able to pay my credit card down as I can only afford to make the minimum payments”. [ 12 ] As a result, Thompson deposed to a belief that Dagher did not have a steady income due to a heavy reliance on social assistance and as a result Dagher was impecunious. Thompson further deposed a belief Dagher did not have any exigible assets in Alberta. [ 13 ] In his Affidavit Thompson further set out his belief this present action is vexatious.

He conveyed the fact Dagher has initiated disciplinary proceedings against himself and four other dentists. He noted Dagher’s alienation with the Complaints Director in her investigation of the complaints. He outlined Dagher’s conduct in pursuing subsequent complaints to the College and to the Ombudsman’s Office of the Province of Alberta respecting the investigation completed by the College on Dagher’s complaints to that body. Thompson’s Affidavit cited Dagher’s involvement in five active legal proceedings in this Court.

In particular Thompson referenced Dagher’s claim against a former solicitor filed on May 26, 2009 involving the former solicitor’s alleged negligence in failing to file a Statement of Claim within the two year time limitation period against a Dr. Mickelson (Mickelson) and a Dr. Singh (Singh) for allegedly providing negligent dental services to Dagher. Thompson advised that his dental work on Dagher was undertaken to restore the upper and lower central incisors after Singh and Mickelson had installed crowns on those incisors.

Thompson deposed Dagher had indicated to him those teeth have been damaged before his attendance upon Thompson. Thompson referenced two letters set out as exhibits in his Affidavit, wherein Dagher on March 14, 2007 and January 10, 2008 addressed letters to the College expressing his dissatisfaction with the dental work performed by Singh and Mickelson on the same teeth. Finally Thompson noted one week after Dagher filed his Statement of Claim against him, Dagher pursued a position with the College that Mickelson was responsible for the full repair of his teeth due to Mickelson’s shoddy work.

In consequence Thompson deposed the only reason Dagher instituted this present action against him was due to Dagher’s proposed action against Singh and Mickelson being statute barred due to time limitations. [ 14 ] Thompson observed Dagher has a long dental history which will require complex documentation and discovery processes in the present action. Interlocutory applications will likely be required. An independent medical examination to evaluate the extent of Dagher’s injuries will likely be needed in Thompson’s belief.

Finally Thompson deposed two expert witnesses will probably be called to provide trial opinions on standard of care and the quality of his dental work. As a consequence Thompson claimed the costs of defending the claim will perhaps exceed $36,400 (including reasonable disbursements) before trial. He sought security for costs in that approximate amount.

[ 15 ] In response Dagher deposed in an Affidavit filed on September 23, 2010 he was on A.I.S.H. Benefits due to chronic long term pain preventing him from being employed regularly. [ 16 ] Dagher’s Affidavit set out that he instructed a prior counsel to sue Mickelson and Singh in negligence for dental work performed on him. The negligent dental work allegedly performed by Mickelson involved teeth 2-1 and 1-1. Dagher indicated Mickelson improperly positioned his teeth before he retained Thompson to do the remedial work. Dagher alleged his prior legal counsel did not commence such legal action.

As a result Dagher has in turn sued his prior legal counsel for negligence. [ 17 ] In respect to Thompson’s work Dagher asserted Thompson’s assistant in her work ruined tooth 1-1. He alleged Thompson further provided incorrect work on tooth 1-6, caused a pinched nerve and broke a previously installed crown in attempting to rehabilitate the pinched nerve. Dagher avowed Thompson failed to properly apply crowns to teeth 3-1 and 4-1. Further Dagher indicated Thompson in preparation for inserting the crowns, installed 2 carbon fibre posts.

As a result Dagher complained of lasting pain and a required need to have his gums properly contoured. [ 18 ] Dagher further advised of his subsequent attendances upon two further dental specialists for remedial work to repair Thompson’s negligent work. According to Dagher, one of those specialists orally advised him the crown work performed by Thompson was incorrect and would have to be redone.

Dagher noted that specialist would not provide him with written confirmation of that advice. [ 19 ] Dagher further set out in his Affidavit that as a result of Thompson’s improper dental services he endured further subsequent restorative treatment by other dental specialists. He paid for such treatment with his credit card. [ 20 ] In addition, Dagher advised in his Affidavit that he has experienced extreme reluctance from his subsequent dental providers to commit their oral advice on Thompson’s negligent work to written form.

He alleged his law suit suffers from a reluctance on the part of those dental providers to comment on negligent work by other dentists. [ 21 ] In response to Thompson’s allegation that the quality of his restorative dentistry was confirmed by the College, Dagher alleged the College is a protective organization of the Alberta Dental Association with a prime duty to protect the interests of dentists in Alberta through Alberta Dentist Protection Insurance and does not possess an arbiter’s duty to determine whether dental work was completed properly.

Dagher continued in the Affidavit to note the dismissal of his complaint by the Complaints Director against Thompson does not determine the work was not negligent.

He claimed the function of the Complaint Chairperson and the Complaint Review Committee is not to comment on negligence but to confirm whether the rules and strictures of the College have been contravened. [ 22 ] In argument before me, as a result of Dagher’s long and complicated dental history provided by many dentists over the years, Thompson pointed out the evidence strongly suggested Dagher’s injuries were pre-existing. [ 23 ] Thompson submitted before the Master that Dagher should be ordered to post security for costs because: (

a) Under former Rule 593(1)(

c) Dagher is pursuing other proceedings “for the same cause”; (

b) Under former Rule 593(1)(

g) there is good reason to believe that this Action is frivolous and vexatious, and that Dagher is without sufficient property to answer for costs; and (

c) Under former Rule 593(1.1) it is just and reasonable in the circumstances. [ 24 ] Thompson further pointed out the dismissal of Dagher’s complaint by the College was based on its finding the allegations were unsubstantiated and devoid of merit.

[ 25 ] It was observed by Thompson that Dagher is also pursuing a separate civil action in which he is alleging Mickelson and Singh are responsible for the same injuries which he is attributing to Thompson. Thompson submitted Dagher’s repeated efforts to re-iterate the same issues against various dentists demonstrates Dagher’s intolerance to accept unfavourable rulings. As a consequence Thompson submitted this action is frivolous and vexatious.

Thompson argued Dagher should be required to post security for costs due to Dagher’s failure to adduce any evidence to substantiate his allegations of negligence and Dagher’s failure to demonstrate an order for security for costs would be unjust or inequitable in the circumstances. [ 26 ] The Master found Thompson by affidavit evidence had satisfied the relatively low threshold of establishing a reasonably arguable defence. Thompson’s evidence set out his restorative dental work on Dagher was successful and no injuries occurred.

The Master further noted the College dismissed those complaints at the Complaints Director level and through the Complaints Review Committee level. She compared those complaints to the complaints put forth by Dagher in this action and found them to be the same. She commented the College is charged with assessing the conduct of dentists including their skill and standard of practise. In that vein the Master noted the College concluded Dagher had excessive repetitive treatment on his teeth which threatened their integrity and Thompson is not responsible for any further treatment.

The Master noted the Complaints Review Committee found from the extensive documentation provided in this complaint and in Dagher’s previous complaints, the quality of Thompson’s dental treatment was “great”.

She further noted that the Complaints Review Committee stated Dagher’s expectations were unrealistic and unachievable; Dagher found fault with everyone’s work; and Dagher made contra-indicative requests which had jeopardized the long term prognosis of his teeth. [ 27 ] Combined with her analysis of the strength of Dagher’s claim and the defence put forward the Master found no evidence from Dagher that he could not raise the money to pay a security for costs award. She found no evidence of the source or manner of financing of Dagher’s legal action.

The Master did recognize Dagher is an A.I.S.H. recipient whose only asset is founded on the potential proceeds of three protracted motor vehicle accident claims. However, she found no evidence that Dagher will be deprived of his right to litigate this action if he is ordered to post security for costs. Accordingly, under then Rule 593(1.1) she ordered security for costs on column two of

Schedule “C” for pleadings, document discovery and for oral discoveries of 2 ½ days for Dagher and 1 day for Thompson. She further granted $16,000.00 for Thompson’s disbursements which she found to be mainly comprised of expert reports. [ 28 ] The Master’s Order stated in part: 1. The Plaintiff shall pay into Court the sum of $7,500.00 as security for the Defendants’ costs within ninety (90) days from the date of this Order; 2. The within Action is stayed until the Plaintiff pays the said $7,500.00 into Court as security pursuant to paragraph 1 of this Order; 3.

The Plaintiff shall pay into Court a further sum of $16,000.00 as security for the Defendants’ costs within one hundred and fifty (150) days from the date of this Order; 4. The within Action shall be dismissed without further Order if the Plaintiff fails to pay all or part of the security into Court pursuant to either of paragraphs 1 or 3 of this Order; 5.

The Plaintiff shall pay the costs of this Application forthwith; [ 29 ] Rule 593(1.1) of the former Alberta Rules of Court stated: 1.1 Notwithstanding subsection (1), the Court may order security for costs against any party where the Court, on its own motion or on the motion of any other party, finds that it is just and reasonable to do so in the circumstances. [ 30 ] In proceeding under Rule 593 (1.1) the Master found it just and reasonable to order security for costs based on all of the circumstances and the evidence adduced. It is evident the Master exercised her discretion in making the Order.

[31] In support of his application to appeal the Master’s Order, Dagher filed a further Affidavit on October 14, 2010. The newAlberta Rules of Court came into effect on November 1, 2010. I am required under the transitional provisions of the new Alberta Rulesof Court to apply the new rules to every existing proceeding. New Rule 6.14(3) as amended, sets out:

(3) An appeal from a master’s judgment or order is an appeal on the record of proceedings before the master and, may also be based onadditional evidence that is, in the opinion of the judge hearing the appeal, relevant and material. [32] Although no application was made by Dagher in this appeal for that Affidavit to be filed, it was put before me in the appeal.However, in reviewing that Affidavit it did not add any evidence which, in my opinion, was relevant and material.

The only new factualallegations in that Affidavit as compared to Dagher’s Affidavit which was before the Master, were contained in paras. 12, 13, 18, 20 and21. They dealt with subsequent attendances and advice given by other dentists before and after Thompson’s dental work. These paras.further dealt with Dagher’s subsequent payments to rectify Thompson’s alleged negligent dental services and finally Dagher’s belief asto the ineffectual conduct of the College in dealing with his complaints. In this appeal, I paid minimal heed to any of those additionalfactual allegations.

Rather I will proceed primarily on the record of proceedings before the Master as set out in Rule 6.14(3). I will notproceed on the basis of the appeal being a hearing de novo. In this connection I am instructed by Rules 15.2(1); 15.2(2); 15.12; 6.14(3);6.14(4).

Those four rules state: 15.2(1) Except as otherwise provided in an enactment, by this Part or by an order under rule 15.6 [Resolution of difficulty or doubt],these rules apply to every existing proceeding. 15.2(2) Every order or judgment made under the former rules and everything done in the course of an existing proceeding is to beconsidered to have been done under these rules and has the same effect under these rules as it had under the former rules. 15.12 Where these rules impose a new test, provide new criteria or provide an additional ground for making an application in an existingproceeding, these rules apply in respect of the application if the application was made but has not been heard prior to the coming intoforce of these rules. 6.14(3) supra 6.14(4) The record of proceedings is (

a) the application before the master, (

b) affidavits and other evidence filed by the parties respecting the application before the master, (

c) any transcript of proceedings before the master, which must be ordered and paid for by the appellant, unless the Courtdetermines, or the parties agree, that transcripts are not needed, and (

d) the master’s judgment or order and any written reasons given for the decision. [33] For an appeal on the record the standard of review must be determined initially before the appeal court considers the appealon its merits. [34] In Janvier v. 834474 Alberta Ltd., 2010 A.R.Q.B. 800 Macklin, J. of this Court drew upon the considerations of Housen v.Nikolaisen, (2002) 2002 SCC 33 , 2 S.C.R. 235 (S.C.C.) and stated as follows at para. 18 of his decision:

[18] In

summary, the standard of review on a decision from the Master on a question of law is correctness. The standard of review forfacts accepted by the Master or factual inferences drawn by the Master from the evidence is reasonableness. The finding must amount toa palpable and overriding error. The imputed error must be plainly identified and must be shown to have affected the result. On aquestion of mixed fact and law, if the principle of law cannot be extricated from the question, then the standard of review is again one ofreasonableness only to be interfered with if a palpable and overriding error can be shown.

If the principle of law can be extricated fromthe question, then the standard of review on the principle of law is correctness. [35] In Royal Bank v. Place,

(2010) ABQB 733 Manderscheid, J. in this Court recognized and set out the added standards ofreview to be applied in the exercise of a judge’s discretion. He stated at paras. 29 and 30: [29] The standard of review of facts underlying a judge’s exercise of discretion has been summarized in Balogun v. Pandher, 2010ABCA 40 (at para. 7): As such, the standard of review for the factual underpinnings of the exercise of discretion is deferential absent palpable and overridingerror: L. (H.) v. Canada, [2005] 1 S.C.R. 401, [2005] S.C.J.

No. 24 (QL), 2005 SCC 25 at paras. 52 to 56. [30] Further, reasonableness is applied to the actual exercise of discretion: R. v. Nicholson, 2003 ABCA 283 (at para. 3) in part: The standard of review for an exercise of discretion is reasonableness. The decision can only be interfered with if it is so clearly wrong asto amount to an injustice or is based on some improper principle: R. v. Regan, [2002] 1 S.C.R. 297, [2002] S.C.J. No. 14, 2002 SCC 12. [36] The issues raised by Dagher in this appeal are issues involving mixed fact and law and issues involving the exercise of theMaster’s discretion.

As such, the standard of review is one of reasonableness only to be interfered with if a palpable and overriding errorcan be shown. Absent palpable and overriding error the exercise of her discretion is subject to deference. [37] It is easily observed the purpose of security for costs is to “ensure the Plaintiffs are able to answer the costs at the end of theproceedings”. See Liu v. Tangirala, 2005 ABQB 246 at para. 15 of the decision of Lefsrud, J. in this Court. [38] The Alberta Court of Appeal succinctly recognized the objective of the rule awarding security for costs in its decision inCrothers v.

Simpson Sears Ltd.; Attorney General of Alberta (Intervener) 1988 ABCA 155 , 59 Alta. L.R. (2d) 1 at para. 43 inpart: 43 Security for costs is designed to protect a defendant from a plaintiff who wants to gamble and collect if he wins, but not pay if heloses. Indeed, such a plaintiff acts more unfairly than that, for by his groundless suit he inflicts serious expenses on the defendant. [39] It is evident the Master weighed all of the evidence put before her. She found the College buttressed Thompson’s defencewith its dismissal of Dagher’s complaints respecting Thompson’s dental work.

The Master observed the College found Thompson wasnot responsible for any further treatment on Dagher’s teeth. [40] The findings by the Complaints Director and the subsequent findings by the Complaint Review Committee do buttressThompson’s submission that he has a reasonably arguable defence. Those findings reference whether Thompson engaged inunprofessional conduct during his treatment of Dagher as defined under the provisions of the Health Professions Act.

Dagher’scomplaints were dismissed due to the findings, that there was insufficient evidence of unprofessional conduct based, inter alia, on thedocumentation provided by all of the dentists involved in Dagher’s complaint. Those findings do not touch upon any negligencecommitted by Thompson other than in a superficial and cursory manner. In that connection I note there was no sworn evidence providedby any dentist to the College and Dagher certainly had no opportunity of cross examining any dentist as to any issues of negligenceinvolving Thompson.

While the findings do portray a reasonably arguable defence available to Thompson, they only provide a

preliminary assessment on the issue of negligence. They do not foreclose Dagher in his pursuit of a cause of action based on negligence until, at the very least, he has proceeded through the discovery process and a possible cross examination of any dentists in the area of the extent and scope of any subsequent examinations of the allegedly negligent work performed by Thompson. In the interim, Dagher has provided evidence through his Affidavit placed before the Master that the dental work provided by Thompson was negligent.

There is insufficient evidence to indicate Dagher’s action is without merit or that it is frivolous and vexatious. Indeed Thompson has third partied Singh and Mickelson in this action, claiming indemnity and contribution from them in the event he is held liable to Dagher. [ 41 ] It was adduced through the Affidavit evidence that Dagher has brought another action for possibly the same cause, which is pending in Alberta.

That action involves Dagher suing his former Counsel for failing to commence a legal action based in negligence within the statutory limitation period against Mickelson and Singh for improper dental services provided to him. [ 42 ] It is apparent that the Master did not err in finding Dagher should post security for costs in the circumstances. She properly exercised her discretion in light of the total evidence demonstrating Thompson has a reasonably arguable defence and further the evidence that Dagher is pursuing two or more proceedings for the same cause.

Not only could she have properly made her Order under old Rule 593(1), but she was quite correct in exercising her discretion and ordering security for costs under old Rule 593(1.1) as being just and reasonable in the circumstances. [ 43 ] The new Alberta Rules of Court provision dealing with security for costs is found in Rule 4.22. It states: 4.22 The Court may order a party to provide security for payment of a costs award if the Court considers it just and reasonable to do so, taking into account all of the following: (

a) whether it is likely the applicant for the order will be able to enforce an order or judgment against assets in Alberta; (

b) the ability of the respondent to the application to pay the costs award; (

c) the merits of the action in which the application is filed; (

d) whether an order to give security for payment of a costs award would unduly prejudice the respondent’s ability to continue the action; (

e) any other matter the Court considers appropriate. [ 44 ] In addition Rule 4.23(4) may be relevant and applicable to this application. It states: 4.23(4) As circumstances require, the Court may (

a) increase or reduce the security required to be provided, and (

b) vary the nature of the security to be provided. [ 45 ] I note the wording of Rule 4.22 is different than the old Rule 593 under which the Master proceeded. It is different in that it specifically sets out as a factor to be considered by the Court in its discretion, the ability of the respondent to the application to pay the costs award, and further whether an Order to provide a security for costs award would unduly prejudice the respondent’s ability to continue the action.

[46] In the application before the Master she observed the following: While Mr. Dagher would like the Court to presume that if he just post (sic) security, he will be deprived of his right to litigate. The lawdoes require evidence that the plaintiff’s claim will be stifled if security is required. And Justice Clark’s decision in Stinchcombe makesthis clear. That is just one example of this principle. I cannot draw this conclusion on this evidence.

The plaintiff has not given evidence that he cannot raise the money to pay a costs award.There’s no evidence of who is financing the action, nor how it is being financed. [47] The Master found no evidence that Dagher cannot raise the money to pay a costs award. Although not set out specifically, inthe old Rule 593, the case authority certainly made it clear that Dagher must adduce evidence his claim would be stifled if security isrequired. See Crothers v. Simpson Sears Ltd.(supra), at paras. 26, 27 and 28. See further Law Society (Alberta) v. Stinchcombe 2009 ABQB 27 , 4 Alta.

L.R. (5th) 304 at paras. 25 and 29. [48] Did Dagher meet his onus of showing why security for costs should not be awarded due to his allegation that he will bedeprived of his right to litigate? His Affidavit evidence before the Master indicated he paid $7,100.00 for dental services from Thompsonin 2007. He further deposed he paid an additional $12,890.00 for subsequent dental services performed by other dentists.

In his Affidavitfiled in support of this appeal he swore that he has no income, save and except for A.I.S.H., but that he did pay out more than $32,000.00for subsequent dental work through his credit cards. He further indicated he has no savings and he has no means of raising an initial$7,500.00 and the subsequent $16,000.00 ordered by the Master as security for costs. He finally deposed if the Master’s Order remainsin place that is the end of his legal action.

The foregoing is the only recognition I give to Dagher’s subsequent Affidavit which he putforward on this appeal and which was not before the Master. [49] Dagher only referenced in evidence that he has no savings, little income, and an assertion the Master’s Order will result in theend of his action. No evidence was provided as to the quantum of his income, any assets he holds, and whether he can take any furthercash advances on his credit card. There was no definitive evidence of his ability to borrow from other sources other than the utilization ofhis credit cards.

There was no evidence to demonstrate that he cannot access assets elsewhere or that he is not able to fund the litigation.In

summary Dagher did not adduce sufficient evidence to demonstrate his impecuniosity. His general statement that the Master’s Orderwill result the end of his action is not sufficient. [50] Indeed the Master correctly identified the test as being whether or not Dagher has the ability to raise funds for the litigation.She found Dagher failed to give evidence that he cannot raise the money to pay a security for costs order and failed to provide evidencewho is financing the litigation nor how it is being financed.

In respect to the possibility whether Dagher would suffer undue prejudice tobe able to continue the action, the Master found the evidence in that area to be insufficient. [51] The Master’s decision to award security for costs demonstrated no inextricable error in principle or any palpable andoverriding error. Her decision is owed deference and I uphold her decision to award security for costs. [52] I turn now to the area of the amount of the security for costs ordered. The Order provided Dagher shall pay into Court the sumof $7,500.00 as security for Thompson’s costs within 90 days from the date of the Order.

That portion of the Order appeared to be inaccordance with the Master ordering security for costs on column 2 of

Schedule “C” of the Alberta Rules of Court for the pleadings,document discovery and oral discovery of 2 ½ days for Dagher and 1 day for Thompson. She declined to order any fees for anticipatedspecial chambers applications, as set out in Exhibit “X” of Thompson’s Affidavit. The Order continued to provide payment of a further$16,000.00 for disbursements. The Master observed the provision of expert reports mainly comprised this further disbursement portion.The security for costs was set somewhat in accordance with the draft Bill of Costs submitted by Thompson as set out in Exhibit “X” tohis Affidavit.

In that draft Bill of Costs disbursements paid to the date of the Master’s Order amounted to $569.05 inclusive of G.S.T.The anticipated future disbursements amounted to $22,837.50 inclusive of G.S.T. Of that latter sum, the amount of anticipated expertreports and future clinical evaluation amounted to $19,000.00 exclusive of G.S.T. The Master correctly observed the provision of thefuture expert reports amounted to the larger proportion of the anticipated future disbursements. [53] The amount of $7,500.00 was correct under column 2 of

Schedule “C” of the Alberta Rules of Court for the requisite steps as

[53] The amount of $7,500.00 was correct under column 2 of

Schedule “C” of the Alberta Rules of Court for the requisite steps asset out by the Master in her Order. Further the sum of $569.05 for disbursements incurred by Thompson up to the date of the Order is notout of step with necessary disbursements incurred for steps taken by Thompson in his defence up until the date of the Order. I do notinterfere with the discretion of the Master in ordering a security for costs reflecting approximate fees incurred of $7,500.00 until the dateof the Order.

Nor do I interfere with the discretion of the Master including the sum of $569.05 for disbursements incurred by Thompsonuntil the date of the Order. That sum of $569.05 would appear to be included in the sum of $16,000.00 awarded for disbursements.Accordingly, Dagher’s appeal is dismissed as to that part of the Master’s Order setting security for costs in the sum of $7,500.00 for feesunder column 2 of

Schedule “C” and setting out security for costs for disbursements in the amount of $569.05. [54] I do have some difficulty in accepting the anticipated disbursements set out by Thompson in his draft bill of costs and for partof which the Master ordered the sum of $16,000.00 to be provided by Dagher as security for costs. To me, those disbursements appear tobe a best guess scenario.

Further there is no defining limit or foundation over the course of the litigation for a date or a time when theymight be incurred. [55] It can be inferred from a review of the Master’s Order that security for costs were awarded to the proposed end of the oraldiscovery process. There can be no doubt the estimated cost of the discovery process of $1,750.00 for the court reporter and transcripts isa required disbursement and in keeping with the tenor and spirit of the Master’s Order. This anticipated expenditure will occur after thecompletion of the discovery process.

Further, the discovery process may very well shed additional light on the merits of the overall caseand may lead to a resolve of the litigation in some fashion. [56] However, the anticipated disbursement of $3,500.00 for future non-confirmed and non-scheduled clinical evaluations ofDagher and anticipated disbursements for future unknown expert reports in the total sum of $15,500.00 are vague and uncertain. Thesedisbursements in all likelihood will occur after the completion of the discovery process.

Indeed in submissions made before me byThompson’s Counsel it was admitted that no experts have been retained to this date. Again at this stage the use of experts by Thompson,while perhaps proposed, remains non-confirmed and non-scheduled. To disallow such current speculative future expenses is in keepingwith the spirit and tenor of the Master’s Order. I note further that Order expressly excluded Thompson’s possibly anticipated, but non-confirmed and non-scheduled, future special chambers applications to compel document production from Dagher and from the College.See Pocklington Foods Inc. v.

Alberta, (1994) (AB KB), 153 A.R. 288 at 295 where McDonald, J. held “anticipatedfuture costs” or “reasonable estimates” are not sufficient without provision of evidentiary support. [57] The question of an amount to be set for security for costs is largely a manner of judgment or speculation about the future, plusthe intentions of counsel. See Coté, J.A. in Sprung Enviroponics Ltd. v. City of Calgary, et al, 1990 ABCA 23 , 72 Alta. L.R.(2d) 237 at para. 34.

In the case at bar there was no evidence other than a possible intent by Thompson to have Dagher subjected to anindependent medical examination and a further possible intent to call 2 experts at trial.

In my opinion, if the Master’s Order inferred theend of the discovery process was the cut off point for future steps for fees for security for costs, then equally the end of the discoveryprocess should be the cut off point for possible future disbursements to be ordered as part of security for costs, at this juncture of thelitigation. [58] The Master exercised her discretion in awarding security for costs for mostly future disbursements in the sum of $16,000.00.The standard of review for an exercise of discretion is reasonableness absent palpable and overriding error.

The decision can only beinterfered with if it is so clearly wrong as to an amount to an injustice or is based on some improper principle. See Manderscheid, J. inRoyal Bank v. Place, 2010 ABQB 733 at para. 30 and Hunt, J. A. in Moses v.

Weninger, 2006 CarswellAlta 177, 2006 ABCA 52.Having reviewed the Master’s decision in awarding future disbursements for a possible medical examination or possible experts in theface of the apparent reasoning to award fees for security for costs only to the end of the discovery process, it is my opinion thesubsequent award for these future disbursements is based upon the exercise of an improper principle where there is an absence ofdefinitive evidence of Thompson’s necessity in requiring disbursements for such possible witnesses at this early stage of the litigation.The awarding of security for costs for disbursements to retain experts is premature.

There was no evidence from Thompson that anyexperts had been retained or even consulted at this stage of the litigation. In addition, if the law suit proceeds, there perhaps will be trialevidence from Thompson and the two Third Party dentists who may very well be qualified as experts themselves, albeit active dentalpractitioners.

In conclusion the Master’s Order for security for costs in this future area of disbursements yet to be incurred is an over-indemnification and is a palpable and overriding error and further is not reasonable. [59] Although Dagher did not demonstrate he was impecunious, he did adduce evidence to demonstrate some poverty. That partialpoverty is also a ground for greatly reducing the amount of the security for costs. See Crothers v. Simpson Sears Ltd., et al, supra, atpara. 28 of the judgment of Coté, J.

A. for the Court. [60] An amount set for security for costs which is too rich for an impoverished plaintiff, but who has funded the law suit to date,will mean perhaps the case will not proceed and an injustice could occur. In the case at bar there is no definitive evidence at this stage todemonstrate Dagher’s claim is plainly devoid of merit. It should be allowed to proceed once he posts the reasonable amount of security

for costs of $7,500.00 and allowed disbursements of $2,319.05. Thompson, after completion of discoveries, can bring a further application for security for costs if he can demonstrate on the evidence gathered through the discovery process that Dagher’s case is without merit or that he has retained required experts who have provided and defined their projected fees. Finally it must be borne in mind a trial judge may decide the cost of a given expert may not be fully borne by the losing party.

Factors in assessing which party bears the cost of an expert report include the report’s necessity at the time it was commissioned, whether it proved useful in advancing the successful party’s position at trial and the reasonableness of the expert’s fees. [ 61 ] Consequently under Rule 4.23(4) I lower the security for costs required to be provided by Dagher. [ 62 ] Finally, Thompson argued before me this action has already been dismissed because Dagher failed to post security for costs as ordered. Thompson noted the Master’s Order took effect from its pronouncement and is binding unless stayed or varied.

See current Rule 9.6(

a) of the Alberta Rules of Court Thompson pointed out an appeal does not operate as a stay of proceedings. Rather if there is no stay of proceedings, an appellant is required to abide by the terms of the order being appealed. Thompson submitted Dagher is not permitted to ignore the provisions of the Order even if an appeal is underway. It was argued that by Dagher’s failure to post security for costs or by his failure to stay or vary the Master’s Order, the Order of the Master takes effect.

It provided for the dismissal of the action if Dagher fails to pay all or part of the security into Court pursuant to paras. 1 or 3 of the Order. [ 63 ] Accordingly Thompson submitted Dagher ignored the Order of the Master at his peril. Failing to post the security for costs or to vary or stay the Order combined with the passage of time, meant this action has already been dismissed in accordance with the Order.

As a result Thompson submitted this appeal has become moot. [ 64 ] I am mindful of a general rule that time should be extended if enforcement of the original time limit would work serious harm to the party applying for an extension and no irreparable harm would be done to the party opposing the extension. I have the jurisdiction to extend the time limit for posting the security for costs as set out in the Master’s Order and secondly for extending the date for dismissing the action if security for costs are not posted. Rule 13.5(2) and Rule 13.5(3) of the new Rules of Court provide that authority.

They state: 13.5(2) The Court may, unless a rule otherwise provides, stay, extend or shorten a time period that is (

a) specified in these rules, (

b) specified in an order or judgment, or (

c) agreed on by the parties. 13.5(3) The order to extend or shorten a time period may be made whether or not the period has expired. [ 65 ] In keeping with my decision in this appeal I exercise my discretion under those 2 Rules and set aside the Master’s Order in part. I note failure to do so would cause serious harm to Dagher and replacing it will cause no irreparable harm to Thompson. Accordingly the Order will read as follows:

(1) The Plaintiff shall pay into Court the sum of $9,819.05 as security for the Defendant’s costs by November 15 th , 2011.

(2) The within Action is stayed until the Plaintiff pays the said $9,819.05 into Court as security pursuant to paragraph 1 of this Order.

(3) The within action shall be dismissed without further Order if the Plaintiff fails to pay all or part of the security into Court pursuant to paragraph 1 of this Order. [ 66 ] Counsel may make an appointment with me to speak to costs of this application if necessary. Heard on the 3 rd day of March, 2011. Dated at the City of Calgary, Alberta this 8 th day of August, 2011. A.G. Park J.C.Q.B.A. Appearances: Richard J. Glenn for the Plaintiff D. Aaron Stephenson for the Defendants