In Bains v Adam, 2023 ABKB 491, Dr. Jagdev Singh Bains brought three actions against the various named defendants, relating to three separate motor vehicle accidents that occurred in 2017. These actions were tried together and were ultimately dismissed – the Court found Dr. Bains was not entitled to damages and ordered him to pay over $440,000 in costs to the defendants.

Dr. Bains then went through a series of attempted appeals of that decision, at the ABCA, including an unsuccessful appeal of the aforementioned substantial costs award against him - that history is available here, at paragraphs 3 and 4. These appeals ultimately culminated in the defendant Applicants bringing a security for costs application against Dr. Bains on January 29, 2025, which is the subject of this case comment: Bains v Adam 2025 ABCA 235.

The Applicants applied for security for costs totaling $76,905.48 against Dr. Bains. In advancing their application, they relied, heavily, on an email sent to them by Dr. Bains. In that email, Dr. Bains stated that he is on disability (AISH Benefits), lacks any other income, is in this situation due to his 2017 accidents, and that the Applicants were not entitled to any costs. The Applicants moved for security for costs in light of their anticipation that Dr. Bains was bringing another appeal concerning questions of mixed fact and law, which are subject to the palpable and overriding error standard of review. They argued that Dr. Bains “has no intention of paying costs and that he lacks any income or assets that a costs order could be enforced against”: Bains, para 12.

The test respecting security for costs comes from Rules 14.67(1) and 4.22 of the Alberta Rules of Court, Alta Reg 124/2010. It is a discretionary order in which the Court, if it considers it just and reasonable to make the order, takes into account:

1. the likelihood of the enforcement of such an order;
2. a respondent’s ability to pay the costs;
3. the merits of the subject action;
4. whether such an order would unduly prejudice the respondent in their ability to continue the action; and
5. any other matters the court considers appropriate: Bains, paras 9-10.

The Court dismissed the security for costs Application, and awarded costs to Dr. Bains in the amount of $3,375 (while noting that an award for costs favouring a self-represented litigant was discretionary). The Court stated that while Dr. Bains “expressed an unwillingness to pay the costs awards imposed by the trial judge,” there was conflicting evidence before them "regarding his ability or means to pay those awards, and any other costs award. In addition, the fact that Dr. Bains receives benefits from the Assured Income for the Severely Handicapped program does not necessarily establish an inability to pay”: Bains, para 19. The Court heard evidence that Dr. Bains was able to pay a sizeable fine levied against him during the trial for contempt of court, and that Dr. Bains had “offered to pay a significant amount representing the costs ordered following trial, if such amount was paid directly to the insurers” – an offer to which he received no response: Bains, para 15. The Court also considered that Dr. Bains was successful in obtaining permission to appeal, while noting that this was not conclusive as to whether such an appeal would be successful; they considered this relevant to determining whether an order to give security for costs would unduly prejudice Dr. Bains’ ability to continue the appeal: Bains, para 20.

Key Takeaways

In Alberta, when assessing the risk in bringing security for costs applications, it is certainly relevant whether a plaintiff is on income assistance, and whether that plaintiff intimates or expressly states in writing that they will not have the ability to pay costs to an applicant. Though the presence of these facts may seem favourable to an applicant, and justifiably so, these facts alone will not seal the plaintiff’s fate in defending themselves against such applications. Dr. Bains was able to show that he had made an offer to settle the costs (which was not replied to), and that he had paid a hefty fine to the court during his trial. In the end, the Court in Bains considered the entire context of what had occurred between the parties, in keeping with the factors enumerated under Rule 4.22. These applications require careful consideration of a plaintiff’s financial situation, but, just as importantly, their conduct throughout the proceedings – a cryptic email from the Plaintiff will not satisfy the evidentiary burden on its own.