On October 20, 2025, a single judge of the Court of Appeal for Ontario made an Order requiring an appellant to post security for costs of her appeal in the amount of $50,000.

On March 5, 2026, the appellant brought a motion under s.7(5) of the Court of Justice Act, asking a panel of the Court of Appeal to set aside the order for security for costs. The motion was dismissed, with Reasons for Decision released in Peng v. Cheng Estate, 2026 ONCA 174 (CanLII).

The Court of Appeal will only interfere with such an order if the motion judge erred in principle, reached an unreasonable result, or if the decision reflects a legal error or a misapprehension of material evidence. No such factors were present in this case.

The Court of Appeal’s authority to grant an order for security for costs is permissive, not mandatory. Under  r.61.06(1)(a) of the Rules of Civil Procedure, the Court may grant an order for security if there is good reason to believe an appeal is frivolous and vexatious, and the appellant has insufficient assets in Ontario to pay the costs of the appeal. The order is discretionary and the motion judge has discretion to refuse to make the order, even where the test is met. In determining whether to make the order, the overarching principle to be applied is the justness of the order sought.

Under r.61.06(1)(b) and r. 56.01(c), the Court can make an order for security for costs of an appeal where there is an outstanding order for costs that is unpaid in whole or in part in favour of the respondent.

In the present case, the motion judge considered the fact that the appellant had 11 outstanding costs orders against her totalling over $146,000, and that some had been outstanding for over two years. The appellant had only paid one cost award in the amount of $500.

In addition, the motion judge had good reason to believe the appeal lacked merit and was frivolous, because:

• The appellant was challenging the application judge’s findings of fact, which are entitled to considerable deference on appeal;
• The appellant lacked diligence in perfecting her appeal, even though she had been granted extensions;
• The respondents were prejudiced. As a result of the appellant’s claims, the estate was unable to make distributions to pay the costs of care of a party under disability who was a beneficiary.

The Court imposed a two-week deadline for the appellant to pay the security for costs ordered by the motion judge, failing which, the respondents could move on notice for a dismissal of the appeal. In addition, the appellant was ordered to pay $10,000 to the respondents in respect of the motion.

Take Away

The Court of Appeal is a court of errors, and appellants should carefully consider the merits of their appeal, and satisfy any outstanding costs awards, before lodging appeals.