Background
Jiaqi Wu brought a civil claim arising from a failed residential property purchase in Coquitlam, British Columbia. In January 2023, Wu entered into a back-up offer to purchase a home at 573 Orkney Court, subject to an earlier contract held by the Perrys. Under that earlier contract, the sellers could issue a 48-hour notice requiring the Perrys to waive their conditions — unless the Perrys already had an accepted offer on their own property. When Wu removed her conditions and requested the 48-hour notice be issued, the Perrys claimed the clause was inoperative because they had just accepted an offer on their own home. That purchase ultimately fell through, but by late January 2023 the Perrys had committed to buying the Orkney Property regardless. Wu sought a refund of her deposit and later sued for damages on grounds including breach of contract, inducement to breach of contract, and civil conspiracy. Her claims were dismissed at summary trial.
Wu appealed, but Justice Edelmann of the Court of Appeal ordered her to post $15,000 as security for costs within 60 days, finding the appeal lacked merit and that Wu had provided no meaningful evidence of her financial circumstances despite having furnished a $120,000 deposit in 2023. Wu did not post the security and did not apply to vary that order. On January 9, 2026, Justice Horsman dismissed the appeal as abandoned, finding no realistic assurance the security would ever be posted, no merit in the bias grounds advanced on appeal, and clear prejudice to the respondents.
Wu then applied under s. 29 of the Court of Appeal Act, S.B.C. 2021, c. 6, to vary Justice Horsman’s dismissal order before a three-justice division. She argued the appeal should not have been dismissed without considering whether the underlying security for costs order ought to have been dispensed with or varied, and she renewed her arguments regarding reasonable apprehension of bias by the summary trial judge.
The Court’s Holding
The Court of Appeal dismissed the application to vary. Writing for a unanimous panel, Justice Abrioux held that an application to vary is not a rehearing and requires the applicant to demonstrate a legal error — that the reviewing justice was wrong in law or principle, or misconceived the facts — a highly deferential standard where, as here, the underlying order is discretionary. No such error was shown. Justice Horsman had identified the correct legal test drawn from Quinn v. Coutts, 2018 BCCA 433, and Ashraf v. Jazz Aviation LP, 2023 BCCA 434, applied the relevant factors, and was entitled to conclude it was in the interests of justice to dismiss the appeal as abandoned given the absence of merit and Wu’s failure to provide any realistic assurance of posting security.
The Court also rejected Wu’s argument that the dismissal should not have proceeded without first considering whether the security order should be dispensed with or varied. The Court noted that had Wu filed a variation application based on changed circumstances, Justice Horsman would ordinarily have considered it before ruling on abandonment — but no such application was made, and Wu relied on identical evidence before both Justices Edelmann and Horsman. The Court further confirmed Justice Horsman’s costs order, noting no error, and directed that the certificate of costs assessed by the Registrar at $7,080.15 would now issue, with Wu retaining seven days to seek variation or cancellation of the certificate under Rule 63(2)(b). Costs of the variation application itself were awarded to the respondents, to be assessed by the Registrar.
Key Takeaways
- A s. 29 application to vary a single justice’s order is not a rehearing; the applicant must identify a legal error or misconception of fact, and the standard is highly deferential for discretionary orders.
- Where an appeal lacks merit and the appellant provides no realistic assurance of posting ordered security for costs, dismissing the appeal as abandoned is within the interests of justice, even if the appellant is of limited means.
- An appellant who wishes to challenge a security for costs order on the basis of changed circumstances must bring a formal variation application before the abandonment hearing; failure to do so forfeits the opportunity to have that issue considered.
- Prior adverse rulings by the same judge and a disclosed historical connection between the judge and an opposing law firm (a routine conveyancing matter, not objected to at the time) do not, without more, establish a reasonable apprehension of bias.
Why It Matters
This decision reinforces the procedural rigour governing security for costs in the British Columbia Court of Appeal. Appellants facing such orders cannot simply ignore the compliance deadline and then seek relief at the abandonment stage on grounds they could have raised earlier; the Court expects timely applications and proper evidentiary foundations. The ruling also signals that bare assertions of financial inability — unaccompanied by disclosure of assets or access to funds — will carry little weight, particularly where the record raises questions about the appellant’s actual means.
For practitioners, the case is a reminder that reasonable apprehension of bias arguments face a high bar: a judge’s prior rulings against a party and routine, disclosed historical connections to opposing counsel’s firm will not ordinarily suffice. The decision also confirms the interplay between ss. 29 and 35 of the Court of Appeal Act, clarifying that a change-of-circumstances variation under s. 35 should be pursued before, not as part of, an abandonment application.