Respondents did not provide evidence they would suffer financial hardship if stay not lifted

Civil Practice and Procedure - Costs - Security for Costs

Appellants were unsuccessful in defamation action against respondents and were ordered to pay costs of action in amount of $1,478,766.64. Appellants appealed dismissal of action and award of costs. Prior to trial, appellants paid into court $300,000 as security for costs. Respondents brought motion for order requiring appellants to pay additional security for costs of appeal and for costs awarded at trial. Motion dismissed. Appeal was not vexatious. While appellants lost at trial, they had statutory right of appeal and bringing appeal to vindicate reputation of individual and corporate appellants was not improper or oblique purpose. Appellants had pursued appeal in appropriate litigation manner and had perfected it and there was nothing to suggest appeal was brought to annoy or embarrass respondents or that appeal was conducted in vexatious manner. Although ground of appeal, biased conduct by trial judge, had high burden, there was no good reason to believe appeal was devoid of merit. Appellants had sufficient assets in Ontario to pay estimated costs of appeal. There was no other good reason to order security for costs of appeal. There was no basis to lift automatic stay in respect of award of costs of trial as respondents had not provided evidence they would suffer financial hardship if stay not lifted and respondents had not established conditions for entitled to order for security for costs.

Health Genetic Center Corp. (Health Genetic Center) v. New Scientist Magazine (2019), 2019 CarswellOnt 10858, 2019 ONCA 576, David Brown J.A. (Ont. C.A.).

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