Simon's Megalomaniacal Legal Resources

Appeals - Leave to Appeal - Costs [CJA s.133(b)]

. Swan v. Firearms Safety Education Service of Ontario

In Swan v. Firearms Safety Education Service of Ontario (Ont CA, 2024) the Ontario Court of Appeal dismissed a costs appeal, here with an interesting costs appeal route issue [under CJA 19(1.2)(a)]:

[5] The only issue before us is the appellant’s appeal of the costs awarded against him. Given that the cumulative costs award falls below the $50,000 threshold in s. 19(1.2)(a) of the Courts of Justice Act, R.S.O. 1990, C. C.43, we do not have jurisdiction to hear this appeal. Although the monetary limit in s. 19(1.2)(a) is set “exclusive of costs”, the limit applies to costs when the costs order is the subject of the appeal: Mullin v. Lagace, 2015 ONCA 757, at para. 13. Accordingly, the appeal is dismissed. The costs of this appeal are payable by the appellant to the respondent, His Majesty the King, in the all-inclusive sum of $8,000 and to the respondents, the FSESO, Cindy Baldree, Doug Marshall and Don Bell, in the all-inclusive sum of $8,000.

. Duwyn v. Ross

In Duwyn v. Ross (Ont CA, 2024) the Ontario Court of Appeal cites the leave test for cost appeals under CJA 133(b):

[16] Leave to appeal costs shall not be granted absent “strong grounds upon which the appellate court could find that the 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; Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, [2024] O.J. No. 198, at para. 13; Legault v. TD General Insurance Company, 2024 ONCA 439, 50 B.L.R. (6th) 180, at para. 33.

[17] The trial judge’s costs order clearly fell well within the ambit of his discretion. He concluded that the respondent was entitled to higher costs based on the appellant’s conduct throughout the litigation and her unfounded allegations regarding the respondent. No error of principle warranting this court’s intervention with the costs order has been identified.

. Legault v. TD General Insurance Company

In Legault v. TD General Insurance Company (Ont CA, 2024) the Ontario Court of Appeal dismissed an insurance appeal where the trial court held the policy forfeit for the insured's claim fraud, here for "a false declaration with respect to her living expenses while residing outside her home".

Here the court considered the test for leave to appeal cost awards [under CJA 133(b)]:

[33] Finally, with respect to the third issue, the threshold for leave to appeal costs is a high burden. As this court stated in Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, at para. 13:

[l]eave to appeal a costs order will not be granted except in obvious cases where the party seeking leave convinces the court there are “strong grounds upon which the appellate court could find that the 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.

. Jones v. Quinn

In Jones v. Quinn (Ont CA, 2024) the Ontario Court of Appeal considers the test for leave to appeal a costs order [CJA 133(b)]:

[109] This court only grants leave to appeal a costs award in cases where it is obvious that there are strong grounds to believe that the judge erred in exercising their 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. ...

. Roe v. Roe

In Roe v. Roe (Ont CA, 2024) the Ontario Court of Appeal considered the test for leave to appeal a costs order [under CJA 133(b)]:

[5] As noted by this court in Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25 at para. 13:

Leave to appeal a costs order will not be granted except in obvious cases where the party seeking leave convinces the court there are “strong grounds upon which the appellate court could find that the 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 test is designed to impose a high threshold because appellate courts recognize that fixing costs is highly discretionary and that trial and motion judges are best positioned to understand the dynamics of a case and to render a costs decision that is just and reflective of what actually happened on the ground: Algra v. Comrie Estate, 2023 ONCA 811, at para. 48.

. Crescent Limited v. Jones

In Crescent Limited v. Jones (Div Court, 2024) the Divisional Court considered the test for granting leave to appeal a cost award and, if granted, the deference still accorded to it:

[61] Leave to appeal a costs award is only granted where a party can convince a court that there are strong grounds to believe that a judge erred in the exercise of his discretion. If leave is granted, a costs award will only be set aside on appeal if the trial judge made an error in principle or the award is “plainly wrong”: (Smith v. MacKinnon, 2017 ONSC 4638, at para. 13 (Div. Ct)

. Pletch v. Pletch Estate

In Pletch v. Pletch Estate (Div Court, 2024) the Divisional Court spelled out new estate costs doctrine ('blended costs'), here where the lower court held that the intestate "had not made adequate provision to support his children and for payment of his debts" under the SLRA [s.72 - 'Value of certain transactions deemed part of estate'].

Here the court considers the SOR and statutory authority for cost appeals:

Jurisdiction and Standard of Review

[25] The authority of the Divisional Court to hear this appeal comes from ss. 19(1)(a) and 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The denial of costs to the appellant as the estate trustee by the application judge was final in nature and comes within the monetary jurisdiction of the Divisional Court described in s. 19(1.2), with leave under s. 133 (b). Leave to bring this appeal was granted by Sachs, Corbett and Ramsay JJ. on April 21, 2023.

[26] The test for the intervention of the appellate court on a costs award is a high one to meet. Justice Coroza restated that standard recently in More v. 1362279 Ontario Ltd. (Seiko Homes), 2023 ONCA 527, at para. 30, writing that

Appellate courts are deferential to discretionary costs orders made by first instance judges and will intervene only if the judge “has made an error in principle or if the costs award is plainly wrong”: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

. Sokil v. Buffone

In Sokil v. Buffone (Ont CA, 2023) the Court of Appeal considered the CJA s.133(b) leave test for costs appeal:

[6] The appellant requires leave to appeal the costs award. Leave to appeal a costs order will not be granted except in obvious cases where the party seeking leave convinces the court there are “strong grounds upon which the appellate court could find that the 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. We are not satisfied that the appellant has met her onus, as we see no error in the trial judge’s awarding of costs.