Date: 20020501
Docket: A-2-02
Neutral citation: 2002 FCA 168
PRESENT: SHARLOW J.A.
BETWEEN:
FARSIDE CLOTHING LTD. and
FARSIDE SKATEBOARDS & SNOWBOARDS LTD.
Appellants
and
CARICLINE VENTURES LTD.
Respondent
"Dealt with in writing without appearance of parties."
Order delivered at Ottawa, Ontario, May 1, 2002
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20020501
Docket: A-2-02
Neutral citation: 2002 FCA 168
PRESENT: SHARLOW J.A.
BETWEEN:
FARSIDE CLOTHING LTD. and
FARSIDE SKATEBOARDS & SNOWBOARDS LTD.
Appellants
and
CARICLINE VENTURES LTD.
Respondent
REASONS FOR ORDER
[1] The Respondent seeks an order for security for costs in the amount of approximately $164,000 and, if the order is granted, for a stay of the appeal pending the satisfaction of the order.
[2] I am satisfied that this is an appropriate case for an order for security for costs on the basis of Rule 416(1)(b), that is, that the Appellants are corporations and there is reason to believe that they have insufficient assets in Canada available to pay the Respondent's costs of the appeal if ordered to do so. However, I am not satisfied that the order for security should be in the amount claimed by the Respondent.
[3] In the decision under appeal, the Trial Judge allowed the Respondent's claim with costs. Of the total amount of security sought by the Respondent, approximately $139,000 relates to a bill of costs that has been submitted to the Trial Division in relation to the trial of this matter, with a motion for directions. That represents the upper limit of what the Respondent is seeking by way of costs in the Trial Division. However, the Respondent's application for directions has not yet been dealt with, nor has the Respondent's bill of costs in the Trial Division been assessed. The Respondent's claim for costs in the Trial Division does not yet comprise an unpaid bill of costs. Therefore, there is at this time no basis for the application of Rule 416(1)(f), even if I were to assume in the Respondent's favour that an order for security for costs in the Appeal Division may properly include costs awarded in the Trial Division.
[4] Approximately $25,000 of the security sought by the Respondent relates to its estimate of the costs that may be awarded to the Respondent if the appeal is not successful. This is based on a number of premises: that the costs will be assessed under Column IV of Tariff B, that costs for two counsel will be allowed, that the appeal will require two days, that the appeal will be heard in Ottawa rather than Edmonton where the trial was held, and that significant expenditures will be required for online legal research. I am not satisfied that any of these premises are justified, particularly in light of the Respondent's submissions that the grounds for appeal are essentially challenges to findings of fact. Accordingly, I have concluded that the order for security for costs should specify the amount of $12,000. "K. Sharlow"
J.A.
"K. Sharlow"
J.A.