Litigant's age, financial status were extraordinary circumstances warranting advanced costs order
The Prince Edward Island Court of Appeal has awarded advanced costs to an elderly and financially struggling litigant despite staying the proceedings in favour of the other party.
In Doucette v. City of Charlottetown, 2022 PECA 5, Gail Doucette owned a home in the City of Charlottetown. In 2013, she sued the city for damages resulting from an oil leak from property owned by the city that permeated the soil at her home.
The trial judge found that Doucette suffered stress and anxiety and found her home uninhabitable. The judge ordered the city to pay general damages, moving expenses, special damages, and costs. Along with an appeal, the cJeffrity sought a stay of the proceedings.
The appellate court agreed.
While successful litigants should not be deprived of “fruits of their litigation,” exceptional circumstances may justify a stay of proceedings, said the court.
The test for stay requires the court to assess whether there is a serious question to be tried, the risk of irreparable harm if the stay is denied, and a balance of convenience that favours the stay, said the court.
The appellate court ruled that the there was a serious question to be tried on appeal.
As to irreparable harm, the appellate court agreed with the city that since Doucette had little money to advance the appeal, there was a risk of non-payment should the city be successful in appeal.
As for the balance of convenience, the appellate court considered Doucette’s personal circumstances, including her age, health, and unbearable living conditions, in addition to the city’s argument on irreparable harm.
As a result, while the appellate court ordered a stay of the proceedings, it imposed several conditions in consideration of Doucette’s living conditions.
The city was ordered, as conditions to the stay, to deposit the amount of general damages and special damages with the Prothonotary. Further, should Doucette decide to move out, the city was to pay her moving costs and monthly rent and utilities until the appeal was decided or abandoned.
The city was also ordered to pay $10,000 in advance costs to allow Doucette to participate in the appeal.
The appellate court explained in Doucette v. City of Charlottetown, 2022 PECA 6 that Doucette’s case involved special circumstances allowing the extraordinary exercise of power to award advanced costs.
An award of advance costs requires that the applicant cannot pay for litigation, that the claim is prima facie meritorious, and there are special circumstances that make it an exceptional case, said the court.
The appellate court found that Doucette had sufficiently established that she genuinely could not afford to pay for the appeal. Her only option was to borrow money, since her current counsel took the matter pro bono, and her only property was contaminated with oil and was uninhabitable, said the court.
The appellate court also found that Doucette’s claim also had sufficient merit since she was successful on appeal. Lastly, Doucette was elderly, widowed, and her home uninhabitable, and financial assistance would somewhat level the playing field in litigation, said the court.
