Citation: Sable Mary Seismic Inc. v. Geophysical Services Inc.,
2011 NSCA 40
Date: 20110510
Docket: CA 325703
Registry: Halifax
Between:
Sable Mary Seismic Incorporated and
Matthew Kimball
Appellants
v.
Geophysical Services Incorporated
Respondent
Judge: Justice Duncan R. Beveridge
Motion Heard: April 28, 2011, in Halifax, Nova Scotia
Held: Motion by the respondent for the appellants to post security for costs for this appeal is granted in the amount of $35,000. Costs on this motion are fixed at $2,000, including disbursements, payable in the cause.
Counsel: Derrick J. Kimball and Sharon Cochrane, for the appellant, Sable Mary Seismic Inc.
Nash T. Brogan, for the appellant, Matthew Kimball
Colin D. Piercey and Jessica White, for the respondent
Decision:
[1] Geophysical Service Incorporated (GSI) brings a motion pursuant to Civil Procedure Rule 90.42 to require the appellants, Sable Mary Seismic Incorporated (SMSI) and Matthew Kimball, to post security for costs. Rule 90.42 provides:
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.
(2) A judge of the Court of Appeal may, on motion of a party to an appeal, dismiss or allow the appeal if an appellant or a respondent fails to give security for costs when ordered.
[2] As the wording of this Rule suggests, the power to order security for costs is discretionary, both in terms of whether to grant the order, and quantum. I agree with the applicant GSI that this Rule is substantively identical to the previous Rule 62.13 (Nova Scotia Civil Procedure Rules, 1972). Hence the case law under that Rule still governs how this discretionary power should be exercised. The earliest reported case on Rule 62.13 was Frost v. Herman (1976), 18 N.S.R. (2d) 167. Somewhat ironically, MacDonald J.A. in Frost, relied on the law developed under an even earlier, but differently worded Rule as the guide to the exercise of this discretion.
[3] Some of the history in Nova Scotia on ordering security for costs on appeal was set out by Chief Justice MacKeigan in L.E. Powell and Co. Ltd. v. Canadian National Railway Co. (1975), 11 N.S.R. (2d) 532. He wrote:
5 Prior to 1966 under Rules of the Supreme Court of Nova Scotia the power to order security for costs on appeal was very limited. Until 1966 our rules contained no provision such as 0.58, r.15 of the English Rules which provides by clause (2):
The Court of Appeal may in special circumstances order that such security shall be given for the costs of the appeal as the court may direct.
(Prior to 1928 the wording was slightly different.) The only Nova Scotian statutory base was then 0.57, r.13, dealing with stay of proceedings (and which now appears in a greatly changed version as Rule 62.02 (2)) and read:
An appeal shall not operate as a stay of execution, or of proceedings under the decision appealed from, except so far as the judge appealed from, or the court, orders; and no intermediate act or proceeding shall be invalidated, except so far as the court directs. Such deposit or other security shall be made or given as is directed by the court or a judge.
6 The Nova Scotia cases before 1966 almost always refused to order security for costs on appeal, and, in particular, where the only ground was the poverty of the appellant. In Fleckney v. Desbrisay, [1927] 1 D.L.R. 537 (N.S.C.A.), Harris, C.J., at pp. 537‑540 said:
The spirit of our Judicature Act and Rules, 1919 (N.S.), c.32, seems to be to give to every litigant, rich and poor alike, the right to have one appeal in every case in which he has, or claims to have, a cause of action in his own right, or if he is a defendant in every case in which he has, or claims to have, a defence to the action being prosecuted against him.
See also: Grant v. Baker, 60 N.S.R. 237.
7 By Rule 62.30, supra, this Court or a judge thereof, like the English courts, may now order security for costs on appeal in "special circumstances". The basic principle applied by the English courts in cases like the present has been set forth by Bowen, L.J., in Cowell v. Taylor (1885), 31 C.D. 34 (C.A.) at p.38:
The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law, and also, I believe, in equity. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty's Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another. There is also an exception introduced in order to prevent abuse, that if an insolvent sues as nominal plaintiff for the benefit of somebody else, he must give security. In that case the nominal plaintiff is a mere shadow.
[4] In Frost v. Herman, supra, MacDonald J.A. carried forward the requirement for the applicant to demonstrate “special circumstances” before the discretion could be exercised. He reasoned:
2 Prior to the coming into force on June 30, 1975, of the present Civil Appeal Rules it was provided by old Rule 62.30(1) that:
Unless by reason of special circumstances security is ordered by the Appeal Division, or a judge thereof, upon application made within fifteen days from the service of the notice of appeal, security for costs shall not be required on an appeal.
3 This provision was not specifically carried forward into the present rules. In my view, however, the discretion given a judge under the present Rule 62.13 to order security "as he deems just" should not be exercised in favour of an applicant unless special circumstances exist for so doing.
[5] Since Frost, there has been no dispute that an applicant must establish “special circumstances”. This begs the question as to what constitutes special circumstances, and even if they are found to exist, is there a residual discretion to decline to order security for costs.
Special Circumstances
[6] There are a variety of scenarios that may constitute “special circumstances”. There is no need to list them. All bear on the issue of the degree of risk that if the appellant is unsuccessful the respondent will be unable to collect his costs on the appeal. In Williams Lake Conservation Co. v. Kimberley-Lloyd Development Ltd., 2005 NSCA 44, Fichaud J.A. emphasized, merely a risk, without more, that an appellant 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 “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.
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 necessary condition that must be satisfied, but the court maintains a discretion not to make such an order, if the order would prevent a good faith appellant who is truly without resources from being able to prosecute an arguable appeal. This has sometimes been expressed as a need to 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 the admitted 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 court has denied security for appeal costs: Crandall v. Atlantic School of Theology (1993), 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 the breach of a duty of care owed to her by the respondent. Fichaud J.A., referred to the need to balance the respondent’s justifiable concern not to have another unsatisfied costs award with the appellant’s access to the court to present an arguable appeal. The application to require security for costs was dismissed.
[10] As will shortly be demonstrated, the appellants do not deny that they have acted in an insolvent manner towards the respondent. They say their conduct is not wilful, but because, like the appellant in Burris, they are truly impecunious and a requirement to post security would not be “just”: such an order would prevent them from pursuing what they say is a meritorious appeal. It is with these general principles in mind that I now turn to a consideration of the facts.
FACTS
[11] Affidavits were filed from Mr. Colin Piercey, of counsel for GSI, Sherry Cochrane, of counsel for SMSI, and Nash Brogan, counsel for Matthew Kimball. Objections were raised about some of the contents of Mr. Brogan’s affidavit. I need not recite how I dealt with those objections, as the objected to assertions have no material bearing on the outcome of the motion.
[12] Most of the basic facts are not in dispute. GSI is in the business of seismic exploration. Various contractual arrangements existed between GSI, and SMSI and Matthew Kimball. Mr. Kimball was the president and sole director of SMSI. Between 1998 and 2002 GSI contracted with SMSI for it, and Kimball, to provide crewing and other services with respect to GSI’s marine seismic business on the east coast. The arrangements changed over time.
[13] Whatever business arrangements existed, they were terminated in October 2002 by Matthew Kimball. The termination followed GSI’s request for backup documentation and explanation for historical invoices paid by GSI for crewing costs. GSI investigated. Based on its investigation it sued SMSI for breach of contract and both SMSI and Matthew Kimball for fraud. The claim was based on allegations that SMSI and Matthew Kimball had knowingly overcharged GSI. SMSI denied and counterclaimed for damages alleging a legally enforceable agreement for profit sharing.
[14] The claims were tried before Justice Gregory M. Warner of the Nova Scotia Supreme Court. The trial took 13 days. By written decision dated December 31, 2009 the trial judge found for GSI and dismissed the counterclaim by SMSI. He awarded damages to GSI of $1,764,251.70 for breach of contract by SMSI in overcharging GSI. He also found SMSI and Matthew Kimball jointly and severally liable for fraud in the amount of $451.855.41(this amount is not in addition to, but included in the award of $1,764,251.70). The decision is reported as 2009 NSSC 404.
[15] Warner J. later awarded significant additional amounts for prejudgment interest and costs (2010 NSSC 357). They are:
a) $459,328 against SMSI for prejudgment interest
b) $158,160 against SMSI and Matthew Kimball jointly and severally for pre-judgment interest
c) $407,882.94 against SMSI and Matthew Kimball jointly and severally for costs and disbursements
[16] In total, GSI is now owed approximately $2.7 million. There is no need to recite all of the various efforts by GSI to try to collect. Execution orders were issued in February 2010. The sheriff has been able to collect and remit to GSI only $518.91. SMSI is no longer active in business. It holds no real property in Nova Scotia, but has substantial amounts said to be due to it from associated companies. Matthew Kimball no longer has any real property registered in his name in Nova Scotia. He did have an interest in a property, but on October 29, 2002 conveyed it to his wife. Attempts to examine Matthew Kimball in aid of execution have been unsuccessful as he resides in Thailand.
ANALYSIS
[17] The appellants concede that they have not responded to the substantial orders for judgment and costs outstanding against them. They say they cannot respond to those, nor to any order I may make for security for costs. In my view, the burden is on the appellants to establish not only that they are truly impecunious, but have no resort to resources to post security for costs. Not only have they failed to establish either of these, the evidence before me demonstrates that they do have access to substantial resources. I will explain.
[18] The appellants filed no evidence from Matthew Kimball about his circumstances or those of SMSI. I have some opinion and hearsay assertions from his counsel, Mr. Brogan. In a letter of May 3, 2010 he said he believes the case will bankrupt his client. The letter also said he has instructions to argue the case fully on appeal in order to clear his client’s good name, regardless of the cost. Mr. Brogan’s affidavit of April 18, 2011 reaffirms these beliefs. It also references his “own investigation” that satisfies him that even without the judgments in the instant matter his client’s liabilities exceed his assets. I have no way of knowing what that investigation involved.
[19] The appellants have been on notice for a considerable period of time that the respondent intended to bring a motion for security for costs. I am unaware who could provide details about the financial resources of SMSI and Matthew Kimball. Mr. Matthew Kimball is an obvious source. I see no reason why evidence could not have been provided by Matthew Kimball. It may have required him to attend Nova Scotia to be cross-examined on his affidavit. There is no evidence he could not have done so.
[20] Even if I was prepared to draw the inference that given the size of the judgments outstanding against SMSI and Matthew Kimball, they lack the wherewithal to pay those amounts, or out of their own pocket, post security for costs, that is not the determinative issue. Nowhere in the affidavit material submitted by the appellants is there any assertion, let alone evidence, that if an order for security for costs is made, resources are not available to them to do so.
[21] In fact, the evidence is to the contrary. The appellants retained Stephen Kingston, of the law firm McInnes Cooper to bring a motion for an order from the Nova Scotia Supreme Court permitting SMSI to pay to Kimball Law Inc. funds to cover unbilled time charges and disbursements from the trial, this appeal, and a retainer of $85,000 to be applied against future time charges and disbursements for the appeal. An identical request was made for Matthew Kimball to advance funds to Brogan Law Inc., but with the retainer in the amount of $35,000. Similar requests were made to permit the appellants to pay unbilled charges to the appellants’ law firms for outstanding related litigation between them and the respondent including retainers in the total amount of $100,000. Lastly, to pay bills owing to McInnes Cooper, unbilled amounts plus a retainer of $25,000. The total payments came to approximately $360,000.
[22] The motion was heard by Justice M. Heather Robertson of the Nova Scotia Supreme Court on February 9, 2011. She released a written decision on February 15, 2011 (2011 NSSC 67), and a supplementary decision on February 16, 2011 (2011 NSSC 71). The source of the approximately $360,000 was described in an affidavit of December 16, 2010 by Sharon Cochrane, a partner with Kimball Law. She swore she was advised by Matthew Kimball and did verily believe that “With a loan or loans from a third party or third parties he believes he and SMSI will be able to pay the retainers and legal fees referred to above”.
[23] Initially Robertson J. was prepared to grant a declaration that the requested payments would not offend the terms of the execution orders. In her reasons of February 15, 2011 she said:
[8] Mr. Stephen Kingston, solicitor for the defendants has assured the court that the money contemplated as loans from third parties are not funds that would otherwise be available to the judgment creditor GSI, in satisfaction of the execution orders. However, he seeks the court’s agreement that such borrowings do not run afoul of the provisions of “the quoted provisions”.
...
[20] As I understand the evidence and the representations of counsel, the funds that may be available to the defendants constitute a loan of new money from third parties. I have not been provided with any particulars that suggest security would be offered involving the judgment debtors’ property.
[24] Mr. Kingston immediately wrote to Justice Robertson to advise he had not intended, through his submissions, to expand on the evidence before her on the motion. Further, he did not recall providing the assurance she referred in para. 8, supra, nor the representation referred to in para. 20; rather, he had submitted the source of the funds was not relevant.
[25] Justice Robertson then issued a supplementary decision (2011 NSSC 71). She denied the requested relief because the affidavit evidence did not reveal where the loans would come from or if they would reduce the exigible assets of the appellants otherwise available for execution.
[26] What is of course significant about the proceedings before Justice Robertson is the evidence that substantial resources, by loan or otherwise, appear to be available to the appellants. Sharon Cochrane, partner of Derrick Kimball swore an affidavit on April 21, 2011 affirming the contents of the affidavit she had sworn December 16, 2010 that was tendered in the proceedings before Robertson J.
[27] I am therefore not satisfied that if an order is made for security for costs it will prevent the prosecution of this appeal.
[28] Before turning to the issue as to the appropriate quantum to order, I want to mention two other issues raised by the appellants as to why it would not be just to require security for costs. They are related. The appellants submit that the timing and purpose of the motion for security for costs should influence me not to exercise my discretion to order security. They say that their chances of winning the appeal are so good that it would be unjust to order security for costs. In other words, the motion is in essence a ploy by the respondent to stifle a meritorious appeal from being heard. The affidavit of Ms. Cochrane appends a list of 90 errors she says the trial judge committed. She advises they are addressed in the factum of the appellants.
[29] The respondent does not suggest the appeal by the appellants is frivolous or vexatious. It concedes it is an arguable appeal. At this stage, and in these circumstances, it is not my function to go further. The contended for strength of the appeal is not relevant since I have already concluded that an order for security for costs will not deny the appellants their appeal.
[30] The appellants also say there was delay by the respondent in bringing its motion for security for costs, which delay is highly prejudicial to them. I disagree. I see no inordinate or inexcusable delay. The uncontradicted evidence is that collection efforts and investigations were continuing throughout 2010. Efforts were being made in early December 2010 to carry out examinations in aid of execution of Matthew Kimball and a former accountant of SMSI. Those attempts were unsuccessful. The respondents wrote to the appellants on December 14, 2010 seeking available dates to set down a motion to require security for costs. It was the appellants who requested this motion not be set down until after they had completed their motion that was heard by Robertson J.
[31] I see no inordinate delay, nor prejudice to the appellants.
QUANTUM
[32] The respondent seeks security for costs in the amount of $100,000. The appellants say no security for costs should be awarded, but submit a review of cases which demonstrate the range to be typically $1,000 to $10,000. The appellants acknowledge that there are cases where the security has been over $10,000, but the circumstances were unique and distinguishable.
[33] When asked to explain the basis of this request for security in the amount of $100,000, the respondent referred to the size of the award to it of costs at trial and the general rule on appeal that costs are 40% of the trial award. Counsel recognized the additional general rule that security for costs for an appeal may well be a lesser amount than the anticipated costs award.
[34] Costs at trial, exclusive of disbursements, were $275,000. Forty per cent of this amount is $110,000. Hence he says the request for $100,000 is less than the general rule for costs on appeal.
[35] It is frequently said that security for costs on appeal will be generally less than the amount likely to be awarded. This was to follow the English practice (L.E. Powell & Co. Ltd., supra at para. 5-10). However, such an approach does not dictate a calculation of 40% of trial costs and discounting that amount. An award of costs on appeal is discretionary. It is not simply an exercise in math. This was explained in Royal Bank of Canada v. Woloszyn (1999), 175 N.S.R. (2d) 352, [1999] N.S.J. No. 176 (C.A. in Chambers) where Flinn J.A rejected the use of 40% of trial costs as the appropriate yardstick in that case for ordering security for costs. In Woloszyn, the respondent argued for security of costs in the amount of $30,000 which would be slightly less than 40% of the trial costs of $82,575. He reasoned
10 The, so‑called, 40% rule is not a hard and fast rule. Therefore, I am unable to say that a panel hearing this appeal would, if the appeal was dismissed, probably order the appellants to pay costs equal to 40% of the trial costs.
...
12 The panel hearing this appeal may very well decide ‑ if this appeal is dismissed ‑ that an award of costs equal to 40% of the costs of the trial may be excessive, in which case the Court would assess an amount that it deemed just under the circumstances.
[36] On the other hand, security for costs has been intentionally set at or even more than 40% of the trial award, if to do otherwise would result in too low an amount (Pettigrew v. Pettigrew, 2005 NSCA 154; Smith v. Heron, 2003 NSCA 88; Crouse v. Crouse, 2002 NSCA 15).
[37] The case of Smith v. Michelin North America (Canada) Inc., supra, provides the best guidance at arriving at a just quantum. In Smith, the appellant claimed that the respondent owed $268 million to the pension fund. He lost at trial. The trial judge awarded almost $300,000 in costs. Cromwell J.A., as he then was, agreed special circumstances had been shown. In terms of quantum, he doubted the panel hearing the appeal would award 40% of trial costs, but appeal costs would be significant in light of the amount involved, and the length and complexity of the appeal. He explained:
[50] I turn to the question of the amount. The amount of security to be posted must be set in relation to the likely costs of the appeal, if awarded. I must also bear in mind the difficulty that may be encountered by the appellant in raising additional funds. The amount must be fair to both parties.
[51] Our approach has generally been to make our predictions for this purpose fairly conservative, “intentionally less” than the likely costs on appeal, as some of the cases have said: Arnoldin Construction & Forms Ltd. v. Alta Surety Co., supra; Royal Bank of Canada v. Woloszyn, [1999] N.S.J. No. 176 (Q.L.) (C.A. Chambers); Branch Tree Nursery & Landscaping Ltd. v. J & P Reid Developments Ltd., supra. I am not persuaded by the respondent’s submission that I should set an amount which is “intentionally more” in this case.
[52] The costs of an appeal are of course within the discretion of the panel deciding it. In setting an amount for security for these costs, all I can do is to make a rough estimate of the amount that falls within the likely range of a costs award on appeal based on past experience and the limited information now before me about this appeal.
[53] For this purpose (and of course I have not closely studied the merits of the appeal at this stage), I accept the respondent’s characterization of the case on the merits as requiring an interpretation of the specific language of the plan and the application to that language of the law as established by the Supreme Court of Canada. The costs appeal raises issues about the principles relating to when costs should be awarded out of a pension plan and when a representative plaintiff should be awarded costs as well as issues about the size of the costs award. The appeal book is in 6 volumes, running to over 3100 pages and the judge's decision is some 91 pages in length. As noted, 2 days have been set for the hearing and a very large amount of money – roughly $268 million – is potentially in issue. The parties' respective bills of costs for the hearing at first instance are staggering – roughly one million dollars each. In short, while the legal issues are not particularly intricate, the record is substantial, the arguments I anticipate will be fulsome, the hearing will be much longer than the usual appeal hearing in this Court, a lot is at stake and the costs to date have been extraordinary.
[54] I do not think it likely, as presently informed, that a panel of the court would apply the 40% rule to the costs of the appeal. However, I do think it likely that costs will be awarded in a substantial amount in comparison to the usual costs orders made by this Court.
[55] The appellant suggests a figure in the range of $35,000 if security is to be ordered. The respondent seeks $200,000. This latter amount seems to me to be unrealistic. I have never known the court to award costs in anything approaching that amount. 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. Moreover, I would be concerned that an order for security in that amount could well be beyond the financial capacity of the association which, to date, has raised only $300,000.
[56] While I do not necessarily accept the means by which the appellant has generated the $35,000 figure, I think it is closer to the right range, although somewhat too low given the exceptional amount of time set for oral argument, the very large amount of money in issue and the extraordinary legal expenses incurred by both parties to date. In my view, a figure of $50,000 is a reasonable, conservative estimate at this point.
[38] It is obvious that in deciding if security for costs is going to be required, and the quantum, is an exercise of judicial discretion. It must be set in light of the likely award of costs on the appeal if the appellants are unsuccessful. It only seems logical that a cautionary and conservative approach has been traditionally adopted out of concern in creating an unwarranted impediment to accessing the court. For reasons already given, I am not satisfied that even if an amount for security is as high as that requested by the respondent, the appellants do not have the assets or resources to meet it.
[39] Party and party costs at trial, or on appeal, are not meant to be a complete indemnity to the successful party. The eventual amount of costs on appeal is up to the panel of the court hearing the appeal. However, based on the information available, I doubt that the 40% rule would be applied. It seems likely it would result in a more than substantial contribution to the respondent’s party and party costs should it be successful on the appeal. Like Cromwell J.A., in Smith, I must make a rough estimate of the likely costs award on appeal.
[40] The appeal book is voluminous. The trial judge’s decision is 205 paragraphs. The notice of appeal cites 23 grounds of appeal. The appellants’ joint factum is just over 100 pages is length, arguing 90 putative errors. The respondent has been given permission to exceed the normal 40 page facta limit. The hearing is set for a full day. The amount involved is significant. In my opinion, a figure of $35,000 is a reasonable, conservative estimate for costs. In this case, I see no reason to again exercise caution and discount this amount. It is apparent the appellants have the resources to pay this amount, and it provides appropriate protection to the respondent. I am satisfied it is a fair and just quantum in these circumstances.
[41] I order the appellants to post $35,000 as security for costs for this appeal no later than July 15, 2011, failing which the respondent will be at liberty to bring a motion to have the appeal dismissed. I fix costs on this motion at $2,000 inclusive of disbursements, payable in the cause.
Beveridge, J.A.