Travaglione v. Wawanesa Mutual Insurance Co. et al., 2010 ABQB 765

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 02, 2010
• Citations: 2010 ABQB 765;(2010), 511 A.R. 43 (QB)

Travaglione v. Wawanesa Mutual (2010), 511 A.R. 43 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MR.063

Bruno Travaglione (plaintiff) v. Wawanesa Mutual Insurance Company and James G. Burkinshaw (defendants)

(0803 17990; 2010 ABQB 765)

Indexed As: Travaglione v. Wawanesa Mutual Insurance Co. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

December 3, 2010.

Summary:

The plaintiff appealed a Master's order requiring him to pay security for costs to each of the defendants.

The Alberta Court of Queen's Bench allowed the appeal.

Practice - Topic 8113

Costs - Security for costs - General principles - Where plaintiff resident out of jurisdiction - General - A Master ordered that the plaintiff provide security for the defendants solely on the ground that the plaintiff, incarcerated in Ontario, was resident outside of Alberta - Rule 593(1)(a) gave a discretion to order security for costs where the plaintiff "resides out of Alberta" - The Alberta Court of Queen's Bench set aside the order - "Residence", for the purposes of rule 593(1)(a), meant "ordinary residence" - The plaintiff's residence in a federal institution in Ontario was temporary - Notwithstanding the plaintiff's temporary residence in an Ontario institution, he remained ordinarily resident in Alberta - The court noted that "prisoners are not in a position to make a choice about where they live; therefore, prison is not their ordinary residence." - Accordingly, the basis for ordering security was not present - See paragraphs 31 to 38.

Cases Noticed:

Singh v. Dura (1988), 86 A.R. 268 (C.A.), refd to. [para. 9].

Crothers v. Simpson Sears Ltd. - see Singh v. Dura.

Newman v. Garnet Barlow and Joe Lang Insurance Ltd. and Saskatchewan Government Insurance (1983), 27 Sask.R. 28 (Q.B.), refd to. [para. 9].

Stevenson v. Minister of National Revenue, 2008 TCC 76, refd to. [para. 10].

Liu v. Tangirala et al. (2005), 375 A.R. 161; 2005 ABQB 246, refd to. [para. 10].

Denisov v. Minister of National Revenue, 2010 TCC 327, refd to. [para. 10].

Bouchard v. Minister of National Revenue, 2009 TCC 38, refd to. [para. 10].

Spek v. Provincial Director of Ontario Legal Aid Plan (Lawson) and Area Director for Frontenac, Ontario Legal Aid Plan (Cunningham) (1983), 1 O.A.C. 15 (C.A.), refd to. [para. 10].

Statutes Noticed:

Rules of Court (Alta.), rule 593(1), rule 593(1.1), rule 593(1.2) [para. 20].

Counsel:

Bruno Travaglione, on his own behalf;

Vaugh Cox (Chatwin LLP), for Wawanesa Mutual Insurance Co.;

Kemper Handzic, for Mr. Burkinshaw.

This appeal was heard on December 2, 2010, before Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on December 3, 2010.