Williams Lake Conservation Company v. Chebucto Community Council of Halifax Regional Municipality

Williams Lake Conservation Company v. Chebucto Community Council of Halifax Regional Municipality Court Court of Appeal Date 2005-03-15 Citation 2005 NSCA 44 Docket CA 236932 Judge/Registrar/Adjudicator Fichaud, Joel E. (Honourable Justice) (CA) Document Type Decision Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Williams Lake Conservation Company v. Chebucto Community Council of Halifax Regional Municipality, 2005 NSCA 44 Date: 20050315 Docket: CA 236932 Registry: Halifax Between: Williams Lake Conservation Company Appellant v. Chebucto Community Council of Halifax Regional Municipality Respondent Nova Scotia Utility and Review Board Respondent Kimberly-Lloyd Developments Ltd. Interested Party Judge: The Honourable Justice Joel Fichaud Application Heard: March 10, 2005, in Halifax, Nova Scotia, In Chambers Held: Application is dismissed with costs in the cause. Counsel: Michael J. Wood, Q.C., for the applicant Kimberley-Lloyd Developments Ltd. Kathleen Hall, for Williams Lake Conservation Company Lisa Richards, for Chebucto Community Council of Halifax Regional Municipality Decision: [1] The applicant Kimberly-Lloyd Developments Ltd. is named as an Interested Party in the notice of appeal. Kimberly-Lloyd applies for security for costs from the appellant further to Rule 62.13 and s. 152 of the Companies Act, R.S.N.S. 1989, c. 81. [2] Rule 62.13 (1) states that a judge may grant security for costs of an appeal “as he deems just”. Section 152 permits a judge to order security “if it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs of the defendant if successful in his defence.” [3] The appellant, Williams Lake Conservation Company (“WLCC”) is incorporated under the Companies Act. In March 2003 the Chebucto Community Council of Halifax Regional Municipality (“Community Council”) approved a re-zoning of lands owned by Kimberly-Lloyd known as the Governor’s Brook Development. WLCC appealed the approval of the re-zoning to the Nova Scotia Utility and Review Board (“URB”). WLCC also applied to the Nova Scotia Supreme Court for certiorari to quash the decision of the Community Council. [4] The Supreme Court dismissed the certiorari application. WLCC appealed to the Court of Appeal which dismissed the appeal on June 11, 2004, and ordered WLCC to pay $500 costs of the appeal to each of the Community Council and Kimberly-Lloyd: Williams Lake Conversation v. Chebucto Community Council, 2004 NSCA 79. [5] In November 2004 the URB released its decision dismissing WLCC’s appeal from the re-zoning. WLCC appealed from the URB, which is the present proceeding. On February 3, 2005 Justice Cromwell scheduled the hearing of this appeal for one-half day on June 1, 2005. [6] On February 10, 2005 Kimberly-Lloyd filed this interlocutory notice seeking security for costs from WLCC. [7] Counsel for Kimberly-Lloyd says that $10,000 would be an appropriate pre-estimate of taxable costs. WLCC’s current bank balance does not include sufficient funds to afford such an amount. [8] Counsel for WLCC points out that WLCC has no unpaid debts, has paid the only costs award which has been ordered against it ($500 to each respondent ordered by this court in the 2004 appeal) and that, if necessary, WLCC would raise funds from its shareholders to pay a costs award. [9] The practice in Nova Scotia is that security for costs on appeal is ordered only if the evidence shows “special circumstances” which justify security: Frost v. Herman (1976), 18 N.S.R. (2d) 167 (C.A.) at p. 168 per Macdonald, J.A. Justice Macdonald’s statement in Frost has been followed in numerous later decisions of this court, of which the following is only a sampling: Jessome v. Walsh, 2002 NSCA 130, at ¶ 14; Smith v. Heron, 2003 NSCA 88, at ¶ 15; Ryan v. Ryan, 2000 NSCA 10, at ¶ 39; White v. White, 2000 NSCA 69, at ¶ 4; MacDonnell v. Campbell, 2001 NSCA 123, at ¶ 4; Leddicote v. Nova Scotia (Attorney General), 2001 NSCA 152, at ¶ 15; Campbell v. Lienaux, 2001 NSCA 122 at ¶ 26, 30. [10] I will not try to define everything which may constitute “special circumstances”. Kimberly-Lloyd’s concern is that, given the current bank balance of WLCC, the appellant may not be able to afford to pay Kimberly-Lloyd’s costs of this appeal, should the appeal be dismissed and costs awarded. I will focus on the category of “special circumstances” which encompasses such a concern. [11] Generally, a risk, without more, that the appellant may be unable to afford a costs award is insufficient to establish “special circumstances”. It is usually necessary that there be evidence that, in the past, “the appellant has acted in an insolvent manner toward the respondent” which gives the respondent an objective basis to be concerned about his recovery of prospective appeal costs. The example which most often has appeared and supported an order for security is a past and continuing failure by the appellant to pay a costs award or 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), 163 N.S.R. (2d) 75, at ¶ 7; Smith v. Heron, at ¶ 15-17; Jessome v. Walsh at ¶ 16-19. [12] There is no evidence here that WLCC has acted in an insolvent manner towards Kimberly-Lloyd, or to anyone else. There is no evidence that Williams Lake has an unpaid judgment debt, or has defaulted in its current obligations, or has outstanding costs orders owing to Kimberly-Lloyd or HRM. As a result of the 2004 appeal, this court ordered WLCC to pay costs. The affidavit evidence includes the correspondence between counsel for Kimberly-Lloyd and WLCC respecting these costs. Kimberly-Lloyd made several requests, to which WLCC replied that the amount would be raised in an autumn 2004 fundraising drive, which occurred, and the costs were paid with a letter from WLCC dated November 29, 2004. [13] Neither is there support for Kimberly-Lloyd’s suggestion that $10,000 would be the amount of prospective taxable costs resulting from this appeal. This is an appeal from a decision of the URB. WLCC is preparing the appeal books. Factums will be filed and one-half day is scheduled for argument. The costs award from the appeal last year between these parties, also involving one-half day of argument, was $500 to each respondent. If I am to consider that the likely taxable costs award from the current appeal is to be $10,000, then Kimberly-Lloyd should tender evidence including a draft bill of costs to support such a number. There is no such evidence. [14] Kimberly-Lloyd’s memorandum refers extensively to Campbell v. Lienaux. That decision does not assist Kimberly-Lloyd. Justice Bateman (¶ 26) recognized that security should not be ordered on appeal unless “special circumstances” exist. The circumstances in that application involved numerous examples of the appellant acting in an insolvent manner. These included a substantial unpaid costs judgment, a ruling by the trial judge that the real proponent of the litigation had advanced the law suit in the name of others to protect himself from litigation costs, a personal bankruptcy by that proponent, an order for solicitor-client costs by the trial judge because of the appellant’s abusive litigation, and the acknowledgment of the appellants that any appeal costs likely would be unpaid. It is difficult to envisage a more robust list of acts of insolvency. Nothing of that nature appears in the evidence for the present application. [15] In summary, Kimberly-Lloyd has not shown that WLCC has acted in an insolvent manner towards Kimberly-Lloyd, or toward anyone else, and has not established any other “special circumstance” required for an order for security on appeal. Even if the appeal fails and if costs are awarded, there is no evidence that the amount of costs would be substantially higher than the amount which, in the past, has been ordered against WLCC, and which WLCC has paid. [16] I dismiss the application with costs in the cause. Fichaud, J.A.