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Appeal - Leave to Appeal - CJA s.133 Cost and Consent Orders

Section 133 of the Courts of Justice Act require leave to appeal costs and consent orders. A big s.133 theme is whether appealing a cost order, when appealed with a non-cost 'substantive' order, still requires leave. I don't think so, but the courts think differently.

. Go Fleet Corporation v. So.

In Go Fleet Corporation v. So. (Div Ct, 2021) the Divisional Court makes these practical CJA 133 comments, while confirming that appeals on the merits and on costs are separate appeals:
[16] The appellant argues, relying on the 2003 Court of Appeal decision in Byers v. Pentex Print Master, 2003 CanLII 42272 (ON CA), 62 O.R. (3d) 647 (C.A.), that there is some confusion as to when the appeal period begins to run when a merits decision is separately issued from a costs decision. For counsel or a paralegal to argue that there remains confusion in 2021 is simply not acceptable. Byers made it crystal clear, in 2003, that a merits judgment and a costs judgment are separate appealable judgments. This is reflected in the Rules of Civil Procedure. For the merits judgment, the 30-day period under rule 61.04(1) in which to serve a notice of appeal commences from the date of the judgment on the substantive merits.

[17] Leave is required for appeal from costs judgments, even when joined with an appeal as of right (see Courts of Justice Act, R.S.O. 1990, c. C.43, section 133(b), and Rule 61.03 (7)). If costs are appealed as part of the appeal of the merits of the order, the request for leave to appeal should be included in the notice of appeal or in a supplementary notice of appeal (Rule 61.03(7)). ...
. Capital One v. Jonathan

In Capital One v. Jonathan (Div Ct, 2022) the Divisional Court heard an appeal from Small Claims Court, with one of the appealed orders being with respect to costs (another was with respect to interest). The appellant sought leave under s.133 to appeal the costs order, the need for which was supported by the court:
[23] S. 133 of the Courts of Justice Act provides: "No appeal lies without leave of the court to which the appeal is to be taken... (b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs."

[24] In the case of Mullin v. Lagace, 2015 ONCA 757 the Court of Appeal stipulated at para. 8 that, when the appeal is both substantial and as to costs, leave is required for the cost component.

[25] In the case of Smith v Mackinnon, 2017 ONSC 4638 (Div. Ct.) Mew, J. summarized the principles governing motions for leave to appeal a costs order at para. 13 as follows:
a. Leave to appeal a costs order will not be granted save in obvious cases where the party seeking leave convinces the court that there are "strong grounds upon which the judge erred in exercising his discretion";

b. Leave to appeal a costs order, standing alone, is granted only sparingly;

c. A court should set aside a costs award on appeal only if the trial judge has made an error in principle or the costs award is "plainly wrong";

d. A costs award is a discretionary order and the judge at first instance is in the best position to determine the entitlement, scale and quantum of any such award.

See: McNaughton Automotive Ltd. v. Co-operators General Insurance Co., 2008 ONCA 597 (Ont. C.A.) , at paras. 24-27; F.L. Ravin Ltd. v. Southwestern Ontario Student Transportation Services, 2013 ONSC 6500 (Ont. S.C.J.) at para. 16.
. McFlow Capital Corp. v. James

In McFlow Capital Corp. v. James (Ont CA, 2021) the Court of Appeal noted the interesting point that when the substantive appeal is dismissed, a co-joined costs appeal (if made without leave) then requires leave under CJA s.133:
[49] The appellants also challenge the discretionary costs award. They argue that the trial judge erred in principle by relying on the same conduct that gave rise to her award of punitive damages as the basis of her decision to award costs on a substantial indemnity scale. This, they submit, is contrary to this court’s decision in Sliwinski v. Marks (2006), 2006 CanLII 18348 (ON CA), 211 O.A.C. 215 (C.A.), at para. 29.

[50] Since the substantive appeal is dismissed, the appellants are required to seek leave to appeal the discretionary costs award: CJA, s. 133; Gary Anthony Bennett Professional Corporation v. Triella Corp., 2019 ONCA 225, at para. 7. To grant leave, there must be “strong grounds upon which the appellate court could find that the trial judge erred in exercising his discretion”: Brad-Jay Investments Limited v. Village Developments Limited (2006), 2006 CanLII 42636 (ON CA), 218 O.A.C. 315 (C.A.), at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92. This includes errors in principle or a costs award that is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 9, at para. 27, citing Duong v. NN Life Insurance Co. of Canada (2001), 2001 CanLII 24151 (ON CA), 141 O.A.C. 307 (C.A.), at para. 14.
. Feinstein v. Freedman

In Feinstein v. Freedman (Div Ct, 2021) the Divisional Court considered the leave to appeal test for appealing cost awards:
[113] The test for leave to appeal a costs award is a stringent one. To obtain leave, an appellant must show “strong grounds upon which an appellate court could find that the trial judge erred in the exercise of his or her discretion”: Brad-Jay Investments Ltd. v. Szijjarto (2006), 2006 CanLII 42636 (ON CA), 218 O.A.C. 315 (Ont. C.A.), at para. 21, leave to appeal to S.C.C. refused, 31879 (June 21, 2007) [2007 CarswellOnt 4071 (S.C.C.)]; Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101, 119 O.R. (3d) 81, at para. 77. An appellate court will not set aside a costs award unless it can be shown that the trial judge made an error in principle or that the costs award was plainly wrong. The appellants’ submissions fail to meet this test.


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