What is the test for an application for security for the costs of an appeal?

The factors to consider on an application for security for the costs of an appeal are well known: 1) the appellant’s financial means; 2) whether the costs of the appeal will be readily recoverable if the respondent succeeds; 3) the timeliness of the application for security; and 4) the merits of the appeal. See Gardezi v. Positive Living Society of British Columbia, 2018 BCCA 84 at paras. 29‒32.

The ultimate question is whether the order is in the interests of justice: Lu v. Mao, 2006 BCCA 560 at para. 6. There is a presumption in favour of granting security for costs where there is a serious question whether recovery may be difficult: Braich (Re), 2008 BCCA 354 at para. 6. The onus is on the appellant to establish why security for the costs of the appeal should not be ordered. I note that the appellant, although duly served, has filed no materials and has not appeared to meet that onus.

For security for costs of trial, the onus is on the respondent/applicant to show why security for the costs of the trial should be ordered. The respondent must show that it is in the interests of justice to make the order and that he or she will suffer prejudice if the order is not made. In determining the interests of justice, the merits of the appeal and the effect of such an order on the ability of the appellant to continue the appeal are also to be considered: Chung v. Shin, 2017 BCCA 355 at para. 29. Generally, an order for security for trial costs will be made only where the costs have been certified. They have been certified in this case.