2020 NLCA 22, 2020 NLCA 22

North Atlantic Marine Supplies & Services Inc. (applicant) v. Louise Hickey (respondent) (19/101) Indexed As: North Atlantic Marine Supplies & Services Inc. v. Hickey 2020 NLCA 22 5 C.A.N.L.R. 557 Court of Appeal of Newfoundland and Labrador Butler J.A. June 29, 2020

Summary: This is an application by Ms. Hickey for security for costs on an appeal pursuant to Rule 43 of the Court of Appeal Rules . Held: Application allowed. Butler J.A.: Special circumstances relating to the timely nature of the application, the amount at issue, the status of the appellant, and corporate changes undertaken by the appellant, justified security for costs (paragraphs 1-3). Security for costs on column 4 was appropriate based on the amount at issue, the appellant’s conduct, the necessity of conveying to the appellant the requirement to pay an outstanding judgment, and seniority of Ms.

Hickey’s counsel (paragraphs 4-8). Cases Cited: NPV Management Ltd. v. Anthony , 2007 NLCA 66 Rules Considered: Court of Appeal Rules , NLR 38/16 rule 43 , scale of costs, columns 3, 4 and 5 Counsel: Sarah G. Fitzgerald, for the applicant; and Peter O’Flaherty Q.C., for the respondent. The application was heard on June 29, 2020 with decision rendered orally by Butler J.A. The following memorandum of disposition was filed on June 29, 2020 by Butler J.A. ______________________________________________________________ Butler J.A.: [ 1 ] This was an application by Ms.

Hickey for security for costs pursuant to Rule 43 of the Court of Appeal Rules NLR 38/16 which states:

(1) Security for costs shall not be required in an appeal unless, upon application, by reason of special circumstances, security is ordered by the Court.

(2) Unless the Court otherwise orders, an appellant who fails to give security for costs as ordered shall be deemed to have abandoned the appeal and the respondent is entitled to costs. [ 2 ] As the transcript reflects, I was satisfied that special circumstances were established. With the guidance provided by this Court’s decision in NPV Management Ltd. v. Anthony , 2007 NLCA 66 , the key features of this case are:

(1) There has been no delay in Ms. Hickey’s request for security for costs;

(2) On a judgment (including costs and interest) of approximately $120,000, Ms. Hickey has collected approximately $22,000 over a period of five months. No payments were made voluntarily;

(3) The Appellant is a federally incorporated company which last filed records at the Provincial Registry of Companies in 2016. It is not in good standing in this Province despite registration of a recent easement agreement;

(4) The Appellant has had significant corporate changes. While many occurred before the

Summary Trial was held, the effect is that it now has no real estate in this jurisdiction. [ 3 ] I was therefore satisfied that there is a reasonable prospect that the Appellant would or could not pay costs if ordered by this Court and that it is unfair to Ms. Hickey to incur further legal expense on this appeal. [ 4 ] As to quantum, Ms. Hickey’s draft bill of costs estimated counsel fees on the appeal between $5,200 (Column 3) and $8,700 (Column 5). Counsel fees make up the bulk of the estimated total costs between $6,700 and $10,700.

Estimated total costs for Column 4 would total $8,700 and I concluded were justified by: • the amount in issue (approximately $100,000); • the fact that the Appellant had made no voluntary payments; • without a stay of execution, the Appellant must understand the requirement that it pay an outstanding judgment; and • Ms. Hickey’s counsel has 30 years at the bar and qualifies as senior counsel. [ 5 ] I ordered security for costs in the amount of $8,700 to be paid by July 17, 2020 failing which the appeal would be deemed abandoned. [ 6 ] I ordered Ms.

Hickey file her factum and any portions of the transcript on which she relies by September 3, 2020 following which counsel shall advise the Registry of dates when they are available for the hearing of the appeal. [ 7 ] In light of the change in the Appellant’s name, I ordered that the style of cause on a go forward basis should refer to the Appellant as: North Atlantic Marine Supplies & Services Inc. now known as North Atlantic Offshore Inc. [ 8 ] I awarded Ms. Hickey her taxed costs of the Rule 43 application on Column 3. Application allowed.