Executive Summary: Key Legal and Evidentiary Issues

• WOW604 Enterprises Inc. sought to vary or cancel orders requiring it to post security of $5,000 for the appeal and $2,500 for the costs ordered below.

• The appellant contended that Justice Fenlon's security requirement imposed a financial barrier effectively stifling what it says is a meritorious appeal.

• Procedural fairness was contested on grounds that the hearing proceeded on an incomplete record, as the reasons for judgment of Justice Francis had not been provided to Justice Fenlon.

• A claim of reasonable apprehension of bias was raised based on the justice's characterization of the application as "very straightforward" and the repetition of a description by the respondents of Mr. Hakemi's role as "boots on the ground."

• The standard of review applied was highly deferential, requiring demonstration of an error of law, an error of principle, or a misconception of the facts.

• Boughton Law Corporation and Shaun Driver were properly added as respondents as they had an interest that is directly affected by the appeal.

Background of the dispute

WOW604 Enterprises Inc. advances claims against NCAH B.C. Holdings Ltd. arising from alleged breach, or breaches, of an agreement concerning management of a portfolio of real properties. In August 2025, WOW604 brought an application to remove Boughton Law Corporation and Shaun Driver, a lawyer with that firm, as counsel for NCAH on the basis of an alleged conflict of interest and a reasonable apprehension of misuse of confidential information. The alleged conflict of interest arose as a result of Mr. Hakemi having spoken to Mr. Driver about a matter in his personal life involving the public guardian and trustee and his involvement in a dispute involving one of the properties under management by NCAH. Mr. Hakemi confirmed Mr. Driver had not actually acted for him as counsel and that his argument was Boughton and Mr. Driver fell into the category of an "associated or closely associated or involved person."

The lower court proceedings

On September 22, 2025, Justice Francis (as she then was) dismissed WOW604's application and ordered that WOW604 pay costs of $2,500 to Boughton—which were not paid. WOW604 filed its appeal of the order of Justice Francis on September 24, 2025, naming only NCAH as a respondent. After WOW604 refused to add them as respondents, Boughton and Mr. Driver brought an application to be added and sought security of $10,000 for the appeal and $2,500 for the costs awarded by Justice Francis in the court below. Justice Fenlon granted the orders sought, which included ordering that WOW604 post security of $5,000 for the appeal and $2,500 for the costs ordered below—approximately 50 percent of that sought by Boughton and Mr. Driver.

WOW604's application to vary the security orders

WOW604 applied pursuant to s. 29(2) of the Court of Appeal Act, S.B.C. 2021, c. 6 to vary or cancel Justice Fenlon's orders made in chambers on October 8, 2025, advancing two arguments. First, it contended the order of Justice Fenlon imposed a financial barrier effectively stifling what it says is a meritorious appeal. Next, it said the hearing was procedurally unfair as it proceeded on an incomplete record, in that the reasons for judgment of Justice Francis had not been provided to Justice Fenlon. Justice Fenlon had noted the reasons had not been provided in application materials before her and confirmed she was relying on the description of the parties with respect to what happened in the court below. Mr. Hakemi advised he had not ordered the transcript of Justice Francis' reasons but did not object to the hearing proceeding.

The Court's analysis of the security requirement

The Court of Appeal applied a highly deferential standard of review, noting that a review application can only succeed if the decision under review is tainted by an error of law, an error of principle, or a misconception of the facts. Justice Fenlon had set out the relevant factors from Creative Salmon Company Ltd. v. Staniford, 2007 BCCA 285, to be applied in deciding whether to order security for costs of the appeal, which include: the appellant's financial means; the merits of the appeal; the timeliness of the application; and whether the costs will be readily recoverable if the appellant loses. With respect to WOW604's ability to pay a costs award, Justice Fenlon was satisfied that WOW604 had no assets. She noted Mr. Hakemi's submission that WOW604 could not proceed with the appeal if security were ordered. She commented that "the flip side of that" is that the respondents would not be able to recover costs from WOW604 if it were not successful in its appeal. As was stated by the Court in Chung v. Shin, 2017 BCCA 355, if an appeal appears to be weak, the impecuniosity of an appellant will not prevent an order for security for costs from being issued, as "without an order for security for costs, the appeal is a gamble by the appellants with the respondents' money." Justice Fenlon's determination that there was little merit to the appeal is owed deference. No error in law or principle or misapprehension of evidence was identified by WOW604.

Procedural fairness and bias claims

Regarding procedural fairness, counsel for the respondent correctly noted it is not unusual for this Court, especially in chambers proceedings, to make orders without the benefit of transcribed reasons for judgment. Despite the fact Justice Fenlon had not been provided with the reasons of Justice Francis, it is clear she understood the relevant issues and considered the argument of the parties with respect to the merits of the appeal. Having had the opportunity to review Justice Francis' reasons and the record, there is no basis to conclude Justice Fenlon's determination that there was little merit to the appeal would have been different if the reasons were before her. WOW604's claim of reasonable apprehension of bias on the part of Justice Fenlon, based on the justice's characterization of the application as "very straightforward" and the repetition of a description by the respondents of Mr. Hakemi's role with WOW604 as "boots on the ground," was rejected. The test for reasonable apprehension of bias set out in Wewaykum Indian Band v. Canada, 2003 SCC 45, being whether an informed person would conclude the decision maker might not decide fairly, was not made out.

The ruling and outcome

The Court of Appeal dismissed WOW604's application, with Justices Abrioux and Winteringham concurring with Justice Mayer's reasons. Costs were ordered payable to the respondents in any event of the cause. The security orders requiring WOW604 to post $5,000 for the appeal and $2,500 for the costs ordered below remain in effect. The respondents—NCAH B.C. Holdings Ltd., Boughton Law Corporation, and Shaun Driver—were the successful parties. No specific monetary amount was awarded beyond the costs of this application; the exact quantum of costs payable to the respondents for this application was not specified in the decision.