Blois v. Blois, 2013 NSCA 39

NOVA SCOTIA COURT OF APPEAL Citation: Blois v. Blois , 2013 NSCA 39 Date: 20130322 Docket: CA 408553 Registry: Halifax Between: Steven Wade Blois Appellant/Respondent v. Arden Memory Blois Respondent/Applicant Judge: The Honourable Chief Justice Michael MacDonald Motion Heard: March 21, 2013, in Halifax, Nova Scotia, In Chambers Written Decision: March 22, 2013 Held: Motion granted. The appellant/respondent shall pay security for costs in the amount of $3000, payable into the Honourable Court on or before April 30, 2013. Counsel: Kim A. Johnson, for the appellant/respondent Lloyd I.

Berliner, for the respondent/applicant Decision : [ 1 ] The Appellant husband seeks to overturn a trial judge ’ s order, issued ancillary to his divorce. The respondent wife moves to have the husband post security for costs pending his appeal. Following oral argument, I granted this request and ordered the husband to pay $3,000 into court, on or before April 30, 2013. Here are my reasons for doing so. BACKGROUND

[ 2 ] The facts are not complicated and are succinctly set out by the respondent in her pre-motion brief: Facts The Appellant’s Appeal, and the present Motion, arise out of a divorce proceeding which was commenced by the Respondent on June 24, 2010. The divorce proceeding was heard before Justice Robert W. Wright of the Nova Scotia Supreme Court on May 27 and 28, 2012. A decision was issued by Justice Wright on August 3, 2012. By his decision, Justice Wright found in favour of the Respondent and her position on the issues which were subject of the Hearing.

Justice Wright’s directions are contained in the Corollary Relief Order issued on September 28, 2012. Before the Hearing took place, an interim proceeding was held in 2011. This interim proceeding was a Motion commenced by the Respondent, by which she sought permission to sell a disputed parcel of property and to hold the proceeds of that sale in trust pending the final resolution of the divorce proceeding. Justice Patrick J. Duncan, who heard the Respondent’s Motion, decided in favour of the Respondent, and also awarded costs in favour of the Respondent in the amount of $750.00.

Justice Duncan’s directions are contained in the Order issued on July 15, 2011. This award of costs has not been paid by the Appellant. As part of Justice Wright’s decision following the divorce proceeding, Justice Wright directed the Appellant to return of a number of items of property to the Respondent, which the Appellant had removed from the Respondent’s home. None of the items of property identified by Justice Wright’s decision have been returned by the Appellant.

While the Appellant has appealed the September 28, 2012 Corollary Relief Order, he has not applied for a stay of this Corollary Relief Order pending the outcome of the present Appeal. Costs were also awarded to the Respondent as a result of the divorce proceedings, following receipt of written submissions on behalf of the Respondent and on behalf of the Appellant. Justice Wright’s decision on costs, rendered on January 31, 2013, awarded costs to the Respondent in the amount of $7,500. This award of costs has not been paid by the Appellant.

The Appellant has not appealed Justice Wright’s January 31, 2013 decision on costs, nor asked for a stay of this decision pending the outcome of the present Appeal. ANALYSIS [ 3 ] I have a broad discretion to order a party to post security for costs, as set out in our Civil Procedure Rules : 90.42

(1) A judge of the Court of Appeal may, on motion of a party to an appeal, at any time order security for the costs of the appeal to be given as the judge considers just. [ 4 ] What then would make it “ just ” to grant such relief? First of all, we would not grant these orders routinely for fear that poverty might deny a litigant a right of appeal. Therefore, we require “ special circumstances ” . See for example Lienaux v. Campbell , 2011 NSCA 94 at ¶ 23; Sable Mary Seismic Inc. v. Geophysical Service Inc. , 2011 NSCA 40 at ¶ 5; Fotherby v. Cowan , 2012 NSCA 77 at ¶ 11; and Williams Lake Conservation Co. v. Kimberly-Lloyd Developments Ltd. , 2005 NSCA 44 at ¶ 9.

[5] My colleague, Beveridge J.A. in Sable Mary, supra, recently elaborated on our “special circumstance” prerequisite: ¶6 There are a variety of scenarios that may constitute “special circumstances”. There is no need to list them. All bear on the issue ofthe degree of risk that if the appellant is unsuccessful the respondent will be unable to collect his costs on the appeal. In Williams LakeConservation Co. v.

Kimberley-Lloyd Development Ltd., 2005 NSCA 44, Fichaud J.A. emphasized, merely a risk, without more, that anappellant may be unable to afford a costs award is insufficient to constitute “special circumstances”. He wrote: [11] Generally, a risk, without more, that the appellant may be unable to afford a costs award is insufficient to establish “specialcircumstances.” It is usually necessary that there be evidence that, in the past, “the appellant has acted in an insolvent manner toward therespondent” which gives the respondent an objective basis to be concerned about his recovery of prospective appeal costs.

The examplewhich most often has appeared and supported an order for security is a past and continuing failure by the appellant to pay a costs awardor to satisfy a money judgment: Frost v. Herman, at ¶ 9-10; MacDonnell v. Campbell, 2001 NSCA 123, at ¶ 4-5; Leddicote, at ¶ 15-16;White at ¶ 4-7; Monette v. Jordan (1997), 1997 NSCA 163 , 163 N.S.R. (2d) 75, at ¶ 7; Smith v. Heron, at ¶ 15-17; Jessome v.Walsh at ¶ 16-19. See also Branch Tree Nursery & Landscaping Ltd. v.

J & P Reid Developments Ltd., 2006 NSCA 131. ¶7 However, the demonstration of special circumstances does not equate to an automatic order of security for costs. It is a necessarycondition that must be satisfied, but the court maintains a discretion not to make such an order, if the order would prevent a good faithappellant who is truly without resources from being able to prosecute an arguable appeal. This has sometimes been expressed as a needto be cautious before granting such an order lest a party be effectively denied their right to appeal merely as a result of impecuniosity(2301072 Nova Scotia Ltd. v.

Lienaux, 2007 NSCA 28, at para. 6; Smith v. Michelin North America (Canada) Inc., 2008 NSCA 52). ¶8 In Burris v. Disabled Consumer Society of Colchester, 2009 NSCA 21, Fichaud J.A. declined to order security for costs despite theadmitted impecuniosity of the appellant Ms. Burris. Justice Fichaud observed: [14] ...Where security would prevent the prosecution of an arguable appeal, and no other circumstances justified security, this courthas denied security for appeal costs: Crandall v. Atlantic School of Theology (1993), 1993 NSCA 119 , 122 NSR (2d) 359(CA), at ¶ 3 per Jones JA; Ryan v.

Ryan 2000 NSCA 10, at ¶ 38-41 per Pugsley, J.A. ¶9 Ms. Burris presented uncontradicted evidence that her dire financial circumstances were caused by what she alleged was thebreach of a duty of care owed to her by the respondent. Fichaud J.A., referred to the need to balance the respondent's justifiable concernnot to have another unsatisfied costs award with the appellant's access to the court to present an arguable appeal. The application torequire security for costs was dismissed. [6] At the same time, a right of appeal is less sacred than a litigant’s “day in court” in the first instance.

For example, see the oft-quoted decision of Bowen L.J. in Cowell v. Taylor (1885), 31 Ch. D. 34 (Eng. C.A.), at page 38. [7] Here the Appellant has failed, not once but twice, to honour costs orders flowing from this litigation. Granted, this may bebecause he is impecunious. However, he has also failed to comply with an order that he return certain property to the Respondent. Onthis score, he cannot plead poverty. Instead, this may support the respondent’s theory that these orders have been ignored not because theappellant cannot comply but that he will not comply. She explains in her affidavit: 21.

Prior to, and even during the course of the divorce proceeding, I endured a great deal of harassment from the Appellant. Forexample, the Appellant forced his way into my home on a[sic] several occasions, removing some of my personal belongings anddestroying other items of property in my home. 22. By his actions, the Appellant has shown that he has very little respect for me or my interests, and I am fully satisfied that hecontinues to have strong feelings against me.

23. If the Appellant does not succeed in his Appeal, he will continue to refuse to fulfill any direction from any Court that requires him to pay money to me or to return property to me. 24. The Appellant’s continued hatred towards me, his refusal to comply with the above-noted directions from the Court, in addition to the fact that he has argued that he cannot pay any award of costs as a result of his financial circumstances, lead me to believe that the Appellant will again refuse to pay costs to me if I were to be successful at the conclusion of the present appeal. 25.

The Appellant has given no indication to me that he intends to pay either of the above-noted costs awards, nor has he given any indication that he will be returning any item of property to me. [ 8 ] Regardless of the appellant ’ s motives, history has proven that he will likely not honour an order to pay costs, should his appeal fail. Therefore, in these special circumstances justice commands an order for security for costs. [ 9 ] As to quantum, I agree with Cromwell J.A. (as he then was ) in Smith v.

Michelin North America (Canada) Inc. , 2008 NSCA 52 where at ¶ 55 he observed that “ Security for costs on appeal must be based on some reasonable estimate of what a panel of this Court might award by way of costs on appeal with the caution that the estimate should be fairly conservative ” . [ 10 ] Here the trial judge awarded $7500. We typically order 40% of trial costs which in this case would be $3,000. Being “ fairy conservative ” that, in my view would be a reasonable figure here. I so order, payable on or before April 30, 2013. MacDonald, C.J.N.S.