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Appeals - Costs. Vastis v. Kommatas
In Vastis v. Kommatas (Div Court, 2024) the Divisional Court considers awarding costs on the abandonment of an appeal:[14] As a starting point, the court has jurisdiction to award costs after an appeal has been abandoned: see 31 Kingsbury Inc. v. Delta Elevator Company Limited, 2021 ONCA 656. I am further guided by Rule 64.14, which as worded permits the court to order “otherwise.” This is the issue: should the court order costs where no response to the appeal has been filed, but where work was done in responding to a stay within the appeal and on the appeal proper?
[15] Fairness would dictate that the respondent should have his costs of preparing for the stay in cases where the appeal was later abandoned. This is time consuming work that will include arguments as to the issues on appeal, prejudice and a balancing of the impact of a stay on the parties. Comprehensive stay materials, as were prepared here, will often cover much of the same information that is required to argue the ultimate appeal.
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[20] When I consider the trajectory of the litigation, the lack of time detail in the costs outline for both the appeal and on the stay motion, coupled with the fact that the respondent received his costs for all of the work required to defend the stay motion, I am not persuaded I should deviate from the starting point principle in Rule 61.14 that no costs are payable where the responding party has not responded to the appeal. . Doria v. Warner Bros. Entertainment Canada Inc.
In Doria v. Warner Bros. Entertainment Canada Inc. (Ont CA, 2023) the Court of Appeal criticized an appeal of a costs award where the appellant had not objected to the respondent's costs position below:[22] Mr. Doria is not well-situated to argue that the $14,863.24 awarded to the WB parties was unreasonable, given that he did not object to the amount they sought before the motion judge. . Di Santo v. Di Santo Estate
In Di Santo v. Di Santo Estate (Ont CA, 2022) the Court of Appeal usefully clarified the point that costs order below, being orders for "the payment of money", are automatically stayed under R63.01(1):The Motion to Lift the Stay of the Costs Order
[12] The Costs Order was automatically stayed by the filing of the appeal: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 63.01(1). We see no basis for lifting that stay. . Cheng v. Grigoras
In Cheng v. Grigoras (Ont CA, 2022) the Court of Appeal considered a test for appealing costs awards:[27] We see no basis for disturbing the motion judge’s discretionary costs order. ... The appellant has not shown that the motion judge made an error in principle or that the costs award is plainly wrong: see Hamilton v. Open Window Bakery, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27, referring to Duong v. NN Life Insurance Company of Canada (2001), 2001 CanLII 24151 (ON CA), 141 O.A.C. 307 (C.A.), at para. 14. . Golden Oaks Enterprises Inc. v. Scott
In Golden Oaks Enterprises Inc. v. Scott (Ont CA, 2022) the Court of Appeal considered a test for appealing costs awards:[7] The overriding principle in assessing costs is that the award must be fair and reasonable: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 24. . Leaf Homes Limited v. Khan
In Leaf Homes Limited v. Khan (Ont CA, 2022) the Court of Appeal considered the normal rule around setting appeal costs, that settlement offers are disregarded:[154] Typically, this court does not consider settlement offers when deciding costs of the appeal: see Niagara Structural Steel (St. Catharines) Ltd. v. W.D. Laflamme Ltd. (1987), 1987 CanLII 4149 (ON CA), 58 O.R. (2d) 773 (C.A.). ... . Perlmutter v. Smith
In Perlmutter v. Smith (Ont CA, 2020) the Court of Appeal considered an issue of costs in an appeal case:[7] Yet another is that offers to settle are generally not considered in deciding costs in this court. Rule 49 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 does not apply to appeals. That said, an offer to settle an appeal prior to argument may be taken into account when fixing costs but this power is exercised only on rare occasions: Smith Estate v. Rotstein, 2011 ONCA 833 at para. 16. This is not one of those rare occasions.
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