Two of the most common preliminary applications in the Court of Appeal are applications for security for costs and applications for a stay of execution or a stay of proceeding. A security for costs order requires the appellant to pay money into the Court’s account in case the appellant loses the appeal and must pay costs; a stay of execution or stay of proceedings pauses execution of the trial judgment or continuing proceedings in the trial court.
What is Security for Costs?
In Wu v. Murray 2025 BCCA 376, the BCCA recently allowed an application for securityfor costs where the appellant did not provide adequate evidence of her financial circumstances. In doing so, the court reiterated the test as set out in Lungu v. Cabrita 2025 BCCA 105: that the court shall consider theinterests of justices, in light of the appellant's financial situation, the merits of the appeal, the timeliness of the application, and whether the costs will be readily recoverable if the appeal fails. Importantly, in Lunguthe court emphasized the appellant bears burden on a security for costs application in the Court of Appeal, and not the respondent applying for the order. This means the appellant must atleast provide financial information satisfying the court costs will be paid if their appeal fails, even though they are responding to the application. [Note: applications for security for costs inthe BC Supreme Court require the applicant to prove the plaintiff would be unable to pay costs, amongst other elements.]
What is a Stay of Execution or a Stay of Proceedings?
By contrast,a respondent who seeks a stay of execution of the trial judgment (or otherwise staying proceedings below) on appeal has the burden of proof, as the appellant is entitled to the fruits of their judgment. The test for a stay of execution application is summarized nicely in Gill v. Dunbar 2003 BCCA 3,"the applicant must show that there is some merit in the appeal, that the applicant will suffer irreparable harm if the stay should be refused, and that, on balance, the inconvenience to the applicant if the stay should be refused would be greater than the inconvenience to the respondent if the stay should be granted" [para 7] If the trial judgement is a monetary judgment, then the irreparable harm is the appellant/defendant will not be able to recover any reduction in damages if they have to pay the damages pending appeal. In this case, the appellant/defendant willhave to show the respondent does not have the financial resources to repay any reduction in monetary damages (the implication being the respondent will likely have spent the damages). It can be tricky for appellants to show the respondent is impecunious, as the respondent’s financial situation may not have been in issue on appeal. When the appellant is a plaintiff, they will need to show they will suffer some harm that can’t be compensated for with money; for instance, loss of a particularly unique parcel of land.
Does the shifting burden of proof make sense?
From an academic perspective, it is curious that the burden of appeal shifts on security for costs applications but not for stay of execution applications. The difference can be reconciled simply on the basis there is a presumption of correctness on appeal – a presumption the trial judge’s decision is correct. Not only is the victor at trial entitled to the fruits of their judgment, but they’re entitled to some security they’re costs will be paid if the appeal fails.
Practical considerations
Practically,in cases where the respondent either cross appeals or brings their own appeal, the defendant at trial can bring both a stay application and security for costs application and leverage the security for costs application to provoke the plaintiff at trial to provide the financial information necessary to address irreparable harm on the stay of execution application.
Conclusion
Both applications need to be filed in a timelyway, just like your notice of appeal must be filed and delivered to the other side within 30 days of the decision.
If you want to appeal a trial judgment, contact Ken Armstrong, KC of our office to discuss not only whether you should appeal, but whether you should seek a stay of execution. If you’ve received a notice of appeal speak to us for help on how to respond, and to discuss whether you should seek security for costs.