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N.S. Court finds Sections of Province’s Wills Variation Legislation Unconstitutional

We rarely comment on cases decided in other provinces as they generally have little to no applicability in British Columbia. Such is not the case with Lawen Estate v. Nova Scotia (Attorney General), 2019 NSSC 162. This decision of the Nova Scotia Supreme Court has the potential to drastically alter wills variation claims throughout the country.

In Lawen, the Court found that sections of Nova Scotia’s wills variation legislation were unconstitutional to the extent they permitted non-dependent, adult children to apply to vary their parent’s will.

The facts underscoring Lawen are not particularly remarkable. The deceased died leaving four adult children who he treated unequally under his will. The children who stood to inherit less subsequently brought a wills variation claim.

Instead of simply defending against the claim in the normal fashion, the respondents (those arguing that the will should be left only) argued that the province’s wills variation legislation breached sections 2(a) and 7 of the Canadian Charter of Rights and Freedoms. Section 2(a) guarantees everyone freedom of conscience and religion while section 7 guarantees everyone the right to life, liberty and security of the person. Specifically, the respondents said that the province’s wills variation legislation insofar as it permitted non-dependent, adult children to make claims violated a will-makers right to liberty.

After engaging in a lengthy analysis, the Court found that the legislation did not violate section 2(a) of the Charter as “conscience” means something analogous to a religious belief, which the legislation did not engage.

With respect to the section 7 argument, much time was spent on whether the right to liberty encompassed testamentary autonomy. The Court found that it did in that testamentary autonomy is not necessarily a purely economic or property matter, which are not protected. As well, testamentary autonomy can rise to the level of fundamental personal choice of the kind contemplated by prior cases.

That was not the end of the analysis, however. As with any Charter challenge, the fact that a piece of legislation violates a person’s rights or freedoms does not necessarily mean it is unconstitutional. Section 1 of the Charter says the rights and freedoms set out in the Charter are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democractic society.” To determine whether a particular Charter violation is justifiable, the Supreme Court of Canada developed what is called the Oakes Test, which gets its name from the case in which it was first articulated, R. v. Oakes. To justify a Charter violation, the government must prove:

  1. the goal of the law in question is pressing and substantial;
  2. the provisions of the law are rationally connected to the goal of the law;
  3. the provision minimally impairs the Charter right or freedom it violates; and
  4. the extent to which the law violates the Charter is proportionate to the extent to which the provision advances the goal of the law.

The Court found that Nova Scotia’s wills variation legislation, to the extent it applied to non-dependent, adult children, did not address a pressing or substantive goal, stating:

[85]         If testamentary freedom is an aspect of liberty under s. 7, it is difficult to see how a “pressing and substantial objective” that would justify setting it aside could be rooted in the “proprietary interest” of a non-dependent adult child of a testator. The Attorney General has not identified a coherent objective to be achieved by extending TFMA coverage to non-dependent adults. This conclusion is bolstered by a consideration of the uncertain position of “moral” considerations in Charter analysis. 

Having failed to satisfy the Oakes test, the Court found that Nova Scotia’s wills-variation legislation was unconstitutional to the extent it required will-makers to make adequate provision for their non-dependent, adult children.

Lawen is being appealed to the province’s Court of Appeal and is set to be heard in February 2021. We will report back on the outcome of that appeal.

Given the novelty and potential far-reaching effects of this decision, the case is arguably heading for the Supreme Court of Canada. If the decision is upheld, it will certainly affect British Columbia’s wills variation legislation so as to potentially extinguish the right of independent, adult children to apply to vary the will of a parent.

Evidence at the CRT

The Civil Resolutions Tribunal (or CRT) is an administrative tribunal established by the BC government in 2012 to handle disputes between strata councils and property owners. In 2017, the tribunal’s jurisdiction was expanded to allow them to hear small claims disputes of $5,000 or less. The current BC government drastically expanded the tribunal’s jurisdiction to decide several matters related to ICBC and motor vehicle accidents. Specifically, as of April 1, 2019, the CRT now has exclusive jurisdiction to decide:

  1. whether a person injured in a car accident is entitled to ICBC no-fault or Part 7 benefits;
  2. whether a person’s injuries are “minor” as defined by the BC government; and
  3. claims of $50,000 or less.

Considering the dramatic increase in jurisdiction it is important to know the type of evidence that can be presented and relied upon by the CRT.

Unlike our courts, the CRT is not bound by traditional rules of evidence that have been carefully developed over the decades. Rather, evidence of questionable relevance or probity is perfectly capable of being admitted and relied upon by the CRT. Due to this laxity, many have likened the CRT to the “Wild West” or a “Kangaroo Court”.

Bajracharya v. Rahul, 2020 BCCRT 564 is an example of the CRT basing its decision on evidence that would arguably have been rejected in our courts. In that case, the CRT was called upon to determine fault for an accident. Both drivers gave differing accounts as to the circumstances of the accident, and there were no independent witnesses. The claimant was self-represented while the respondent was represented by an ICBC adjuster.

The first problem was that the CRT made reference to the fact that ICBC had internally found the claimant to be 100% at-fault for the purposes of repairing his vehicle. That evidence would almost always be objectionable in court as it offends what is called the “ultimate issue” rule. This rule prevents the introduction of opinions on the exact issue the court is to decide upon.

The second problem was that the CRT relied on a brief statement made by an ICBC manager to the effect that the claimant’s vehicle was moving as opposed to stopped when it was hit, which, if true, would negate his claim. The ICBC manager didn’t witness the accident. The CRT found his statement didn’t qualify as expert evidence. The ICBC manager’s qualifications were not before the CRT. However, the CRT accepted that it was his “job to assess the condition of post-accident vehicles and that he is competent in that role”. Needless to say, that doesn’t mean that he was qualified to say whether a vehicle was moving or not on impact, but that didn’t matter to the CRT. They accepted his unqualified “opinion” anyways and ruled against the claimant.

This case demonstrates how the CRT’s slack approach to evidence can work against people injured in accidents.  

Part 7 Benefits Denied for Violating Terms of License

As discussed in our previous posts, the Civil Resolutions Tribunal (or CRT) is an administrative tribunal originally established by the BC government in 2012 to handle disputes between strata councils and property owners. In 2019, the jurisdiction of the CRT was significantly expanded by the BC NDP government to include determining when a person is entitled to ICBC no-fault benefits, also known as “Part 7” benefits.

Part 7 benefits are generally available to all British Columbia motorists involved in an accident regardless of whether they are at fault or not. These benefits primarily cover treatment expenses and disability benefits. In 2019, the government also made substantial changes to Part 7 benefits. Principally, they expanded the type of treatments which would be paid for and increased the amount paid for each benefit.

While a person’s entitlement to Part 7 benefits doesn’t depend on whether they were at-fault or not, a person can be denied Part 7 benefits for a host of reasons. For instance, if a driver is found to be in violation of a condition of their driver’s license they are not entitled to Part 7 benefits. This scenario was recently confirmed in Khanna v. Okamoto, 2020 BCCRT 1181.

In that case, Ms. Khanna was injured in an accident. At the time, she had a learner’s license, which required her to be supervised by a licensed adult while driving. Unfortunately, she wasn’t being so supervised when she got into the accident. This was in violation of both her license and the Motor Vehicle Act Regulations. Due to this violation, the CRT found that Ms. Khanna was not authorized or qualified by law to operate the vehicle and was therefore in breach of the Insurance (Vehicle) Regulations.

As a result, the CRT determined that Ms. Khanna was not entitled to Part 7 benefits from ICBC. Due to the fact that all the treatment Ms. Khanna was requesting would have been covered under Part 7 benefits, the CRT dismissed her entire claim for treatment coverage.

Risks of Settling Your “Minor Injury” Claim Early

Thanks to legislation brought in by the BC NDP government, people injured in motor vehicle accidents after April 1, 2019 could be subject to the “minor” injury cap on damages. Crucial to this determination is the definition of “minor” injury. If an injury is determined to be minor an individual’s award for pain and suffering is capped at $5,500.

According to the ICBC minor injury legislation, a “minor” injury includes sprains, strains, general aches and pains, cuts, bruises, road rash, persistent pain, minor whiplash, TMJ disorder, mild concussions, and short-term mental health conditions. An injury may later be determined not to be minor if it continues to impact a person’s life for more than 12 months and, in the case of concussions and mental health conditions, result in a significant impairment beyond 16 weeks.

There are risks if an individual agrees that the injury they sustained is minor and settles their claim with ICBC before it has been appropriately investigated by their medical providers. That’s what happened in Naqvi v. ICBC, 2020 BCCRT 995.

In Naqvi, the claimant was injured in a post-April 1, 2019 motor vehicle accident. He suffered an injury to his low back and missed two days of work after the accident. His family doctor assessed him as suffering from soft tissue injuries that would likely resolve in 6 to 8 weeks. Approximately 4 months after the accident in September 2019, Mr. Naqvi settled his claim for $6,890.

In January 2020, after a flare-up of pain it was determined that Mr. Naqvi had actually suffered a disc bulge in his lower back. He applied to the Civil Resolutions Tribunal (CRT) to overturn his settlement with ICBC and make a determination that his injuries were not in fact minor.

The CRT found that it was irrelevant to the settlement that Mr. Naqvi thought his injuries were minor at the time of settlement and later found out they were more severe. The CRT accepted that it was a risk of settling that a person’s injuries could be more severe than they were aware and determined that the settlement was valid and dismissed Mr. Naqvi’s case.

In this case, the irony of ironies was that Mr. Naqvi was actually an ICBC adjuster; a tidbit that wasn’t lost on the CRT:

[22]   At all material times, Mr. Naqvi was employed with ICBC as a Senior Bodily Injury Adjuster (now called a Claims Specialist). Mr. Naqvi argues his employment with ICBC left him at a disadvantage in negotiating as he did not want to seem “argumentative” or as a “problem maker”. However, I also note that Mr. Naqvi’s position made him uniquely positioned in that he was experienced in negotiating these settlement agreements from ICBC’s side. In fact, as a senior ICBC employee, Mr. Naqvi would have been very familiar with ICBC’s settlement processes and form of release. ICBC also argues Mr. Naqvi was well aware of the “minor injury” legislation, given his role. I find Mr. Naqvi knew the potential consequences of settling his claim. Mr. Naqvi also does not explain whether he sought legal advice about the settlement prior to signing it. There is no evidence Mr. Naqvi was under any sort of legal or medical incapacity when he signed the settlement agreement. I am satisfied ICBC did not take advantage of Mr. Naqvi.

Court Wallops ICBC for Low-Balling Injured Woman

For well over a year, ICBC has been making low-ball offers to injured people, forcing them to either accept much less than their claim is worth or go to trial. This perverse tactic has clogged up our court system resulting in many cases being adjourned to a later date due to a lack of judicial resources. What’s more frustrating, once such a case gets in front of a judge, ICBC often quickly retreats from its ridiculous low-ball offer and suggests something much more reasonable to the Court. It makes one wonder why ICBC doesn’t just make injured people reasonable offers to begin with. Forcing otherwise settleable cases to trial only drives up costs for drivers and taxpayers.

In Johnson v. Heer, 2020 BCSC 1751, ICBC did just that. In Johnson, ICBC offered an injured female plaintiff $41,000 to settle her claim. ICBC agreed that the plaintiff’s out-of-pocket expenses related to her injuries were over $13,000. That meant that ICBC was allocating less than $28,000 for her pain and suffering, past and future wage loss, and future care.

The plaintiff offered to accept $80,000 to settle her claim. When ICBC wouldn’t budge, the case went to trial.

Despite only offering the plaintiff $40,000, at trial, ICBC told the judge that they thought her claim was worth between $69,943 and $111,943! ICBC didn’t call any evidence and barely defended the claim at all.

In the end, the judge awarded the plaintiff over $147,000. This included $75,000 for pain and suffering, $9,500 for past wage loss, and $40,000 for future wage loss.

Because the Court awarded the plaintiff substantially more than the $80,000 she would have accepted, the plaintiff asked the Court to award her double costs. As we’ve discussed before, court costs are meant to compensate a successful litigant for some of their legal fees incurred in prosecuting a case. Double costs are meant to punish a litigant for failing to accept a reasonable offer.

In addition to asking for double costs, the plaintiff asked for “uplift” costs. Uplift costs are normal costs times 1.5. In this case, that meant the plaintiff was essentially seeking triple costs due to ICBC’s behaviour.

In ruling in favour of the plaintiff, the judge berated ICBC for their ridiculous tactics:

[33]         This brings me to what I consider to be the unusual circumstances that warrants an award of uplift costs on the specific facts of this case. At trial, the defendant submitted that the plaintiff’s damages ought to be in the range of $69,943 to $111,943. The lower range of the defendant’s submission was some $28,942 higher than the defendant’s own formal offer to settle, which remained open until the eve of trial. Even more unusual is that the upper range of the defendant’s submission was $31,943 higher than the plaintiff’s final formal offer to settle, (which also had remained open until the eve of trial), and $14,443 higher than the plaintiff’s original formal offer to settle. [Emphasis in original text]

[34]         In these circumstances, it would appear the only reason the defendant did not accept either of the plaintiff’s offers was to simply force the plaintiff to go to trial. This conduct required the plaintiff to expend even more funds than it already had. It is difficult to fathom why the defendant would force the trial to proceed when it could have settled the trial for less money than it submitted the plaintiff was entitled to at trial.

[35]         While the defendant is not required to make an offer, it did. Moreover, while the defendant is not required to accept an offer, they have agreed that they should have. Clearly, this concession is not based solely upon the benefit of hindsight after the judgment was rendered. The defendant knew at the time of trial that it should have accepted the plaintiff’s offer, as evidenced by their submission at trial that the range the plaintiff was entitled to was more than the plaintiff had offered. Instead, the defendant forced the plaintiff to trial to obtain what the defendant itself obviously considered to be a fair result, when there was a clear and open way to avoid the need for the trial at all.

[36]         Moreover, I note that this trial proceeded a matter of just a few weeks after the court resumed limited operations following its closure due to the COVID‑19 pandemic. The pandemic was at its relatively early stages at the time of the trial, and public health officials had urged British Columbians to limit their exposure to public places to only essential matters. In the circumstances I have described, attendance at this trial was not essential and it exposed the plaintiff, her husband, her mother, her counsel and defence counsel to an increased risk of exposure to the virus. In these unusual circumstances, I find that an award of costs on the usual scale would be unjust, and I exercise my discretion to award uplift costs to the plaintiff for trial preparation and attendance at trial for items 34 and 35 of the Tariff. [Emphasis added]

This case serves as a good example of the despicable tactics that ICBC is employing that further victimize already injured people and drive-up the cost of insurance in this province.

Pedrozo v. Hope, 2020 BCSC 1578

In this interesting case, the former spouse of the deceased sued his estate for breach of a family law separation agreement made between the parties while the deceased was alive.

The female claimant and the deceased had been married for 9 years before separating. The deceased was significantly older than the claimant. The claimant had a 4-year-old son from a previous relationship and brought him into the marriage.

The separation agreement entered into by the parties and filed with the Court provided that the deceased would pay the claimant an amount for spousal support and child support for a set period of time. To secure payment of those amounts in case of his death, the agreement required the deceased to maintain a life insurance policy in the amount of $250,000 naming the claimant as beneficiary.

While the deceased duly maintained a life insurance policy in the amount of $250,000, he named his children from a prior relationship as beneficiaries, not the claimant.

The deceased paid spousal and child support payments as required, but died unexpectedly. At the time of his death, he remained obligated to pay spousal and child support as per the agreement. Had he named the claimant as the beneficiary of the life insurance policy as required by the agreement, she would have received $250,000. When the claimant learned that she was not, in fact, the named beneficiary of the policy, she sued the deceased’s Estate.

At the hearing, which proceeded by way of summary trial, the deceased’s son, in his capacity as Executor of the deceased’s Estate, argued that the claimant was only entitled to the balance of spousal and child support owing for the remainder of the term set out in the separation agreement. This amounted to less than $80,000 and had, incidentally, already been paid to the claimant. As such, the parties were arguing over whether the claimant was entitled to a further $170,000.

In ruling in favour of the claimant, the Court found that the claimant would have received $250,000 but for the deceased’s breach of the separation agreement. This was the clear and final intention of both parties when they entered into the agreement following much deliberation involving senior counsel and a professional mediator. It would be manifestly inequitable to arrive at any other result.

Territorial Competence of BC Courts to Hear a Case

The Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, chapter 28 is a provincial statute that sets out the “territorial competence” of BC courts. Essentially, territorial competence has to do with whether a BC court or a court in another jurisdiction (be it another province, country, or subdivision of another country) is best suited to hear a particular case. 

Section 3 of the Act states that a BC court has territorial competence in a proceeding brought against a person (i.e. a defendant or respondent) only if:

  • that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim,
  • during the course of the proceeding that person submits to the court’s jurisdiction,
  • there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding,
  • that person is ordinarily resident in British Columbia at the time of the commencement of the proceeding, or
  • there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.

Section 10 of the Act contains a non-exhaustive list of circumstances that are presumed to amount to a real and substantial connection. Some common examples include lawsuits that concern:

  • property located in BC;
  • contracts entered into in BC or ones the parties agreed would be subject to BC law;
  • torts committed in BC. This would include negligence claims arising, for instance, from car accidents that happened in BC; and
  • a business carried on in BC.

Even if a BC court lacks territorial competence to hear a case, section 6 of the Act provides that it may nevertheless hear the case if there is no other court in which to commence the proceeding, or if commencing the proceeding in another court cannot reasonably be required.

Conversely, even if a BC court has territorial competence to hear a case, section 11 of the Act provides that it can nevertheless decline jurisdiction if there is a more appropriate court in which to hear the case. In deciding whether another court would be more appropriate, the BC court will consider:

  1. the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,
  2. the law to be applied to issues in the proceeding,
  3. the desirability of avoiding multiplicity of legal proceedings,
  4. the desirability of avoiding conflicting decisions in different courts,
  5. the enforcement of an eventual judgment, and
  6. the fair and efficient working of the Canadian legal system as a whole.

Jacobson Estate, 2020 BCSC 1280

We’ve previously written about section 58 of the Wills, Estates and Succession Act, which gives the Court discretion to cure deficiencies in a will or will-like document that would otherwise make it invalid. Until recently, section 58 had been used to give testamentary effect to defective wills or will-like documents. However, in Jacobsen Estate, Re, 2020 BCSC 1280, the Court utilized section 58 to give effect to a deceased person’s intentions even though her will was perfectly valid.

In Jacobsen, the deceased died leaving a will that left her estate to her then common-law spouse. After making the will but before her death, she and her spouse separated.

Following their separation, the deceased consulted a lawyer with respect to her separation as well as for estate-planning issues. When they discussed making a new will, the deceased eventually confirmed that she still wanted her former spouse to inherit notwithstanding their separation. The deceased’s capacity and health declined and she died never having made a new will.

Unfortunately, neither the deceased nor her lawyer seemed to be aware of section 56(2) of WESA, which automatically revokes any gifts made under a will to a will-maker’s spouse if they subsequently cease being spouses.

In order to give effect to the deceased’s intentions, the executor of the deceased’s will applied to the Court for an order reviving those clauses of the deceased’s will that left her estate to her former spouse. The application was unopposed.

In making an order under section 58 giving effect to those clauses so as to allow the deceased’s estate to pass to her former spouse, the Court made the following comments:

[35]       The Will complies with the WESA.  While the Will now includes, on its face, clauses that are ineffective by virtue of s. 56(2), that does not bear on Will’s validity.  Nor is there any another document that is said to be testamentary – there is only the Will.

[38]       Here, because the deceased was unaware of the revocation, her post-separation statements and conduct should be considered from her perspective.  To the deceased, all of the terms on the face of the Will constituted the terms of her intended testamentary document.   Post-separation, the deceased was aware of the specific terms set out on the face of the Will, and she regarded those terms as existing in fact (i.e., irrespective of their legal effect).  She unequivocally, repeatedly and consistently affirmed the terms appearing on the face of the Will as an accurate representation of her testamentary intentions both after separation and while of capacity. I am left without doubt that the terms on the face of the Will – including the Hyde clauses – represent the deceased’s true testamentary intention.

[43]       The WESA would have enabled the deceased to achieve her post-separation intentions in accordance with its provisions by undertaking certain formalities: e.g., re-executing the Will or executing a codicil: s. 57(1).  The deceased did not comply with any of those formalities, but she did unequivocally manifest her intentions repeatedly in statements to her solicitor and power of attorney.  The purpose of s. 58 is to ensure that discernible testamentary intentions are not thwarted “for no good reason” by a failure to comply with statutory requirements. Declaring the terms set out in the Will, in their entirety, effective as the deceased’s will as at the time of her death accomplishes exactly that.

This case is an example of the lengths to which the Court will go to give effect to the testamentary intentions of a deceased person.

Vexatious Litigants

As with any institutional process, the court system can be abused by individuals to frustrate and harass innocent parties for nefarious purposes. This generally happens when such individuals regularly sue other on baseless grounds. Fortunately, those on the receiving end of such lawsuits have a remedy.

Section 18 of the Supreme Court Act empowers the court to prevent a person from starting a lawsuit without prior permission of the court by providing that:

If, on application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court.

This section gives the court broad powers to control its own process. Nevertheless, it is a power that is to be used sparingly and only in the appropriate cases. In deciding whether or not to exercise that power, the court must balance allowing open access to the courts with the need to prevent the abuse of that right.  

Hallmarks of a vexatious proceeding include:

  1. bringing one or more actions to determine an issue which has already been determined by a court of competent jurisdiction;
  2. it is obvious that the action cannot succeed, would lead to no possible good, or no reasonable person can reasonably expect to obtain relief;
  3. the action is brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
  4. the grounds and issues in the first proceeding have been rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
  5. the person who instituted the proceedings has failed to pay the costs of the unsuccessful proceedings; and
  6. the person has persistently taken unsuccessful appeals.

Security for Costs

As we’ve discussed before, costs are an amount of money meant to compensate a party for the time and expense of having to participate in a Supreme Court case. Costs are generally paid to the successful litigant by the unsuccessful one.

While costs are not typically payable until the end of a lawsuit, in some cases a defendant, typically one who perceives the plaintiff’s claim to be particularly weak, may be concerned about being able to ever recover costs from the plaintiff should they be unsuccessful in proving their claim. In such cases, the defendant can make an interim application for an order that the plaintiff post security for costs. Essentially, the defendant is asking the court to require the plaintiff to pay a certain amount of money into court (or their lawyer’s trust account) as security for any costs award that is ultimately made against them. If such an order is made, the plaintiff typically cannot proceed forward with the lawsuit until such money has been posted. To put it more bluntly, an order for security for costs requires the plaintiff to “put up or shut up.”

The purpose of an order for security for costs is to protect a defendant from being unable to recover costs from the plaintiff should their claim fail. The legal test on an application for security for costs is as follows:

  1. the defendant must make out a prima facie case that the plaintiff would be unable to pay the defendant’s costs if the plaintiff’s claim fails;
  2. the plaintiff may resist an order for security by showing that it has sufficient assets to satisfy an award for costs, or that the defendant has no arguable defence to its claim;
  3. if a security is warranted, the amount is discretionary; and
  4. the court can consider whether an order for security would visit undue hardship on a plaintiff such that it would prevent the plaintiff’s case from being heard. This has also been described as the security order “stifling” the plaintiff’s claim.

Where the plaintiff is a corporation as opposed to an individual, the defendant is held to a lower standard of proof. In that case, additional principles apply:

  1. The court has a complete discretion whether to order security, and will act in light of all the relevant circumstances;
  2. The possibility or probability that the plaintiff corporation will be deterred from pursuing its claim is not, without more, sufficient reason for not ordering security;
  3. The court must attempt to balance injustices arising from use of security as an instrument of oppression to stifle a legitimate claim on the one hand, and use of impecuniosity as a means of putting unfair pressure on a defendant on the other;
  4. The court may have regard to the merits of the action, but should avoid going into detail on the merits unless success or failure appears obvious;
  5. The court can order any amount of security up to the full amount claimed, as long as the amount is more than nominal;
  6. Before the court refuses to order security on the ground that it would unfairly stifle a valid claim, the court must be satisfied that, in all the circumstances, it is probable that the claim would be stifled; and
  7. The lateness of the application for security is a circumstance which can properly be taken into account.