2008 BCCA 299 Siekham v. Hiebert

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	*Siekham v. Hiebert,*
	2008 BCCA 299

Date: 20080715

Docket: CA035918

Between:

Jasbinder Siekham

Appellant

(Plaintiff)

And

Clifford Hiebert and Gloria Hiebert

Respondents

(Defendants)

Before:	The Honourable Mr. Justice Chiasson
	(In Chambers)

S. Grewal	Counsel for the Appellant
M. Misner	Counsel for the Respondents
Place and Date of Hearing:	Vancouver, British Columbia
26 June 2008
Place and Date of Judgment:	Vancouver, British Columbia
15 July 2008

Reasons for Judgment of the Honourable Mr. Justice Chiasson:

Introduction

[1] The appellant was the purchaser of property owned by the respondents. A few days before the completion date he advised the real estate broker involved in the transaction that he did not want to complete and wanted his $100,000 deposit returned. Through the broker, the vendors stated they were ready, willing and able to complete. The appellant did not complete. The vendors did nothing immediately, but after a month or so, sold the property. The appellant sued for the return of his deposit. Brine J. dismissed the appellant’s Rule 18A application for judgment on February 22, 2008, and also ordered that costs were to follow the event. The appellant filed a Notice of Appeal on March 20, 2008.

[2] Since filing the Notice of Appeal, the appellant has not taken any steps in the appeal and counsel for the appellant has not been able to contact the appellant. Counsel’s last contact was receiving instructions to file a Notice of Appeal. Counsel subsequently was told by the appellant’s wife that he went to India, but counsel has not been able to contact her recently. There is a feeling that generally the appellant is out of contact.

[3] The respondents apply for orders as follows:

1. the Appellant Jasbinder Siekham’s appeal in the British Columbia Court of Appeal action number CA035918 be dismissed as abandoned; or in the alternative;

2. the Appellant Jasbinder Siekham pay or deposit security for costs resulting from the February 22, 2008 Order of Mr. Justice Brine in the Supreme Court of British Columbia Action number S104104, and that the Appellant pay or deposit the amount in the sum of $15,109.01 within 14 days of the date of the pronouncement of this Order by depositing that amount with the Registrar of this Court;

3. the Appellant Jasbinder Siekham pay or deposit security for costs for British Columbia Court of Appeal action number CA035918 (the “Appeal”) in the sum of $2,000.00 within 14 days of the date of the pronouncement of this Order by depositing that amount with the Registrar of this Court;

4. the Appeal is stayed until such time as the Appellant Jasbinder Siekham pays security for costs into this Court as set out in this Order; and,

5. the costs of this application be paid by the Appellant Jasbinder Siekham to the Respondents Clifford and Gloria Hiebert in a settled amount of $800.00 forthwith.

[4] For the reasons that follow I adjourn the respondents’ applications to September 8, 2008. This will enable counsel for the appellant to take further steps to attempt to obtain instructions and will give the respondents an opportunity to consider further the material they filed to support their applications for security for costs.

Discussion

[5] I shall not comment at length on the merits of the application to dismiss the appeal as abandoned. The criteria on such an application are well known (Davies v. C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 at 260 (C.A.)). Counsel for the appellant states the merits of his appeal cannot be assessed because the grounds of appeal are not known. Although counsel on appeal is shown as having been counsel at the chambers hearing, it is agreed he was not, but he did file the Notice of Appeal and the reasons of the judge are available (2008 BCSC 207).

[6] The appellant has a right to appeal and he brought his appeal in time. The delay in prosecuting the appeal has been caused by his apparent absence from the jurisdiction. Although there has not been a great deal of delay, the respondents are entitled to have this matter brought to an end in a timely way and in accordance with the Court of Appeal Rules, B.C. Reg. 297/2001. In my view, the interests of justice are served by providing reasonable time to allow counsel for the appellant to take further steps to contact his client. He advises he can do this in seven or eight weeks.

[7] If counsel does make contact and obtain instructions, he must immediately inform the respondents whether the appellant intends to prosecute the appeal. If he were to do so, steps must be taken immediately to prepare and file an appeal record and to abide in a timely way by the other requirements of the Rules. If the parties were unable to agree on a timeline for preparation they could seek further guidance of the Court.

[8] If counsel for the appellant is unable to contact his client prior to September 3, 2008, he should so advise the respondents who may proceed with the hearing of their application on September 8, 2008 or thereafter as is practical.

[9] The material filed by the respondents to support their applications for security for costs provides no evidence they would be unable to collect their costs of either the summary trial or the appeal if they were successful on appeal.

[10] In oral reasons for judgment in In the Matter of the Bankruptcy of Erwin Singh Braich (29 February 2008), Vancouver CA035593 (B.C.C.A Chambers), I said:

[6] My authority to order security for costs is found in s. 24(1) of the Court of Appeal Act, R.S.B.C. 1996, c. 77. There is a presumption in favour of granting security for costs if there is a serious question whether recovery may be difficult (Edwards (Guardian ad litem of) v. Moran, 2003 BCCA 443, 186 B.C.A.C. 31 (Chambers), Hall J.A.). In Austin v. Goerz (01 February 2007), Vancouver CA034249 (B.C.C.A. Chambers), I had this to say about applications for security for costs:

[2] I address the application for security for costs. In a recent decision of this Court in Kedia v. Shandro Dixon Edgson, 2007 BCCA 57, Smith J.A. summarized the criteria that apply on such an application. Counsel today has helped by referring to a number of authorities. I refer to Mr. Justice Smith simply because he puts them all in one place. At para. 4 he said:

[4] The burden is on the appellant on an application for security for costs of an appeal to show that costs should not be ordered. The primary consideration is the financial position of the appellant. As Mr. Justice Lowry said in Life Investors Insurance Co. of America v. TIS Management Ltd. (2005), 248 D.L.R. (4th) 438, 2005 BCCA 11 at ¶ 6:

Security for costs of an appeal should be ordered unless the appellant shows that it should not be ordered: WHA 820 Holdings Ltd. v. Daymax Management Inc., 2004 BCCA 414, 331 W.A.C. 191, para. 19, citing Milina v. Bartsch (1985), 5 C.P.C. (2d) 124 (B.C.C.A.). The primary consideration is the financial position of the appellant. If the appellant's financial position is so weak that an order requiring it to post security would preclude it from prosecuting the appeal, the court will be slow to order it to do so in the absence of the appeal being frivolous. Conversely, if the appellant's financial position is sufficiently strong that security is unnecessary, requiring that security be posted may not be appropriate.

[3] His Lordship continued at para. 5:

Madam Justice Southin described the reasons for this approach and referred to other relevant factors in Lindholm v. HY-Wave Inc. (1997), 89 B.C.A.C. 197, [1997] B.C.J. 536 (Q.L.):

[11] There is a good deal to be said in favour of requiring appellants to put up security for respondents' costs in this Court.

[12] A respondent having succeeded in the court below, is being forced to defend his victory at substantial expense. That he can levy execution for these costs is so, but execution proceedings in themselves are time consuming and expensive and, until those execution proceedings bear fruit, the successful respondent must pay his own costs and expenses.

[13] Because a respondent has a judgment in his favour, the ordering of security for costs in this Court is on quite a different footing from ordering a litigant to post security in the court below.

[14] Among the considerations on such an application are the merits of the appeal, the means of the parties, and the ease with which the respondent, if successful, will be able to collect the costs which in the usual course of things will be awarded to him.

[4] Based on the authorities, in my view, there are four factors that need to be considered: (1) the financial means of the appellant; (2) the merits of the appeal; (3) the timeliness of the application; and (4) whether costs will be recovered readily.

[11] Lowry J.A. recently provided a concise statement of the applicable principles on an application for security for costs for a trial judgment or for trial costs (Creative Salmon Company Ltd. v. Staniford, 2007 BCCA 285, 242 B.C.A.C. 299 (Chambers)):

[10] The jurisdiction to order security for a judgment and for the costs awarded by the trial court, as recognized in Cadinha v. Chemar Corporation Inc. (1995), 17 B.C.L.R. 347 (C.A. Chambers), Lambert J.A., and Paz v. Hardouin (c.o.b. Fiesta Travel and Fiesta Wayfarer) (1995), 10 B.C.L.R. (3d) 232 (C.A. Chambers), Lambert J.A., respectively, can be found under s. 10 of the Act:

10 (2) In an appeal or other matter before the court, a justice may do one or more of the following:

* * *

(b) make an interim order to prevent prejudice to any person; …

[11] From the several authorities of this Court cited, which include Canadian Imperial Bank of Commerce v. Sayani (1995), 16 B.C.L.R. (3d) 191 (C.A.); Strata Plan 1229 v. Trivantor Investments International Ltd. (1996), 24 B.C.L.R. (3d) 292 (C.A.); and Fraser Canyon Transport Ltd. v. 5391945 B.C. Ltd. (2002), 19 C.L.R. (3d) 167 (B.C.C.A.), the principles that govern the exercise of discretion in ordering that security be posted under s. 10(2)(b) can be said to be as recently stated in Kedia v. Shandro Dixon Edgson, supra, at para. 14, quoting from Aikenhead v. Jenkins, 2002 BCCA 234, 166 B.C.A.C. 293 at para. 30 (Chambers) Ryan J.A.:

1. The onus is on the applicant to show that it is in the interest of justice to order posting for security of a trial judgment and/or of trial costs.

2. The applicant must show prejudice if the order is not made.

3. In determining the interests of justice the chambers judge should consider the merits of the appeal and the effect of such an order on the ability of the appellant to continue the appeal.

[12] In Kedia v. Shadro Dixon Edgson, 2007 BCCA 316, Rowles J.A. cited Chan v. Vancouver Trade Mart Inc. (1997), 91 B.C.A.C. 144 at para. 16, for the proposition that “[a]n order can be made under s.10 (2)(b) only to prevent prejudice to the respondent.” The circumstances in Chan were outlined by Esson J.A. at para. 16:

In this case, the appellant resides in the jurisdiction. He does not seek a stay of execution and there is no basis for holding that he has abused or intends to abuse the process of the court. Once the costs of the appeal are secured, there will be no prejudice to be prevented. It may, of course, turn out that the plaintiff [respondent] will succeed on the appeal and yet be unable to recover its judgment. But that is the situation now. To order security for the judgment would not prevent that, it would merely deprive the appellant of his right of appeal. In those circumstances, in my view, there is no proper basis for requiring the appellant to secure the judgment.

[13] The respondents say, correctly, that the Court more readily orders security for costs of the appeal than security for trial costs. They also say that establishing a “serious question whether recovery may be difficult” leads to a presumption security will be ordered. This undoubtedly is true, but it does not obviate the need to establish that there is some risk costs will not be recovered.

[14] The respondents are the applicants. They can benefit from a presumption if they establish a “serious question whether recovery may be difficult”, but barring that they must show some risk of non-recovery as part of their case for requiring security.

[15] The respondents' applications are adjourned to September 8, 2008.

“The Honourable Mr. Justice Chiasson”