Williamson et al. v. Gillis et al., 2011 NBCA 53

In Williamson v. Gillis, the New Brunswick Court of Appeal clarified whether, when seeking security for costs pursuant to Rule 58.01 of the Rules of Court, a defendant must expressly depose to having a bona fide defence. The court ruled that no such affidavit is required.

Justice Richard reached this conclusion because other rules of court mandate specific language in support of applications or motions, whereas Rule 58.01 has no such language. As well, this approach is consistent with the jurisprudence surrounding Rule 58.10 (security for costs upon appeal). The Court held that the merits of the defense’s case should be considered when exercising judicial discretion in adjudicating a motion seeking security for costs, but a failure to set out sufficient facts is not fatal to the motion.

June 2, 2011
Link to Decision

Sam Golder & Dominik Swierad