Simon's Megalomaniacal Legal Resources

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

. Rebello v. Ontario (Attorney General)

In Rebello v. Ontario (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal addresses what are IMHO an unjust oddity regarding the interpretation of CJA s.133(b):

[23] Since the appellant’s substantive appeal is being dismissed, she is required to seek leave to appeal the motion judge’s discretionary costs award: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(b). As explained in McFlow Capital Corp. v. James, 2021 ONCA 753, at para. 50:

To grant leave, there must be “strong grounds upon which the appellate court could find that the trial judge erred in exercising his discretion”. This includes errors in principle or a costs award that is plainly wrong. [Citations omitted.]

[24] Ms. Rebello has not sought leave. In any event, even if she had done so, we see no basis for interfering with the motion judge’s exercise of his discretion to award cost

. Beaumont v. Beaumont

In Beaumont v. Beaumont (Ont CA, 2025) the Ontario Court of Appeal considered when leave to appeal regarding a costs award must be sought under CJA 133(b):

[20] Where an appeal from the main award is dismissed, the appellant needs leave to appeal the costs order pursuant to s. 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. 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”: Baker, at para. 40. This test is designed to impose a high threshold because appellate courts recognize that fixing costs is highly discretionary and that trial 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: Baker, at para. 40. The appellants have not met their onus in this regard.

. BH Frontier Solutions Inc. v. 11054660 Canada Inc. (Canadian Choice Supply)

In BH Frontier Solutions Inc. v. 11054660 Canada Inc. (Canadian Choice Supply) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of a successful contract action, where fraudulent misrepresentation and piercing the corporate veil were conflated.

Here the court notes the high standard for leave to appeal costs awards:

[37] .... Leave to appeal a costs order is granted sparingly, where there are strong reasons to believe that the lower court erred: Colistro v. Tbaytel, 2019 ONCA 197, 145 O.R. (3d) 538, at para. 65; and McNaughton Automotive Ltd. v. Co-operators General Insurance Co., 2008 ONCA 597, 95 O.R. (3d) 365, at paras. 23-27.

. Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town)

In Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town) (Ont CA, 2024) the Ontario Court of Appeal considered an indigenous claim seeking damages and a declaration that "excluded coastline (the “Disputed Beach”) forms part of the Reserve, that no third parties have any interest in the Disputed Beach, and that the honour of the Crown and its fiduciary duties were breached by the wrongful demarcation of the Reserve boundaries".

Here the court considered the test for leave to appeal a costs order:

(a) The Town bears a heavy onus to obtain leave from the costs award and to set it aside

[247] In Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, 95 C.C.L.T. (4th) 175, at para. 13, this court recently summarized the test for granting leave to appeal a 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”. 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. [Citations omitted.]

[248] An appellate court may set aside a trial judge’s costs award only if the trial judge 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. This places a heavy onus on the Town: Legault v. TD General Insurance Company, 2024 ONCA 439, 50 B.L.R. (6th) 180, at para. 33.

. JIA Development Inc. v. 2708320 Ontario Ltd. (Viceroy Homes)

In JIA Development Inc. v. 2708320 Ontario Ltd. (Viceroy Homes) (Div Court, 2024) the Ontario Divisional Court considered whether leave to appeal was required under CJA s.133(b) ['costs'], here in a Construction Act context (which has it's own costs provisions):

[1] The appellants seek to appeal a decision of Associate Justice Wiebe dated March 18, 2024 in which he declined to award costs against Fogler Rubinoff LLP under s. 86(1)(b)(i) of the Construction Act, R.S.O. 1990 c. C.30. Pursuant to that provision, the court may exercise its discretion to order costs against a person who represented a party to an action where the person “knowingly participated in the preservation or perfection of a lien, or represented a party at the trial of an action, where it is clear that the claim for a lien is without foundation, is frivolous, vexatious or an abuse of process, or is for a willfully exaggerated amount, or that the lien has expired.”

[2] There is a preliminary question as to whether leave is required for the appellants to bring the appeal. During the case management process and at today’s hearing, the appellants took the position that leave was not required. They submit s. 86 of the Construction Act makes entitlement to costs of an improperly brought lien action a substantive issue for which there should be a substantive right of appeal. They rely on s. 71 of the Construction Act, which provides that an appeal lies to the Divisional Court from a judgment under the Construction Act. In their submission, the provisions of the Construction Act supersede more general costs provisions of the Courts of Justice Act, R.S.O. 1990 c. C. 43 and Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[3] In case management directions, Justice Davies directed the issue of whether leave was required to be raised before the panel. This would allow the panel at the hearing to deal with all issues, including if leave was not required, and was more efficient than scheduling a preliminary motion to strike the notice of appeal.

[4] In our view, the appellants are required to obtain leave to bring their appeal. Section 133(b) of the Courts of Justice Act provides that “No appeal lies without leave of the court to which the appeal is to be taken where the appeal is only as to costs that are in the discretion of the court that made the order for costs.” The decision the appellants seek to appeal is only as to the claim for costs against Fogler Rubinoff, which were in the discretion of the court.

[5] Nothing in the Construction Act is inconsistent with this provision. Section 71 provides an appeal to the Divisional Court from a “judgment.” Subsection 50(2) of the Construction Act provides that the Courts of Justice Act and the rules of court apply to actions under Part VIII of the Act except to the extent of any inconsistency.

[6] The Construction Act does not define “judgment,” but the Rules of Civil Procedure do. Rule 1.03 defines a judgment to mean in relevant part “a decision that finally disposes of an application or an action on its merits.” We do not accept the appellants’ submission that the costs order in this case constitutes a judgment. It was an order that followed the result in the lien proceeding and not a separate action or application.

[7] Furthermore, s. 71 of the Construction Act does not address costs, whereas the Courts of Justice Act expressly requires that leave be obtained from an order only as to costs that are in the discretion of the court. Subsection 86(1) of the Construction Act states that costs under that provision are in the discretion of the court.

[8] We conclude that leave to appeal from this costs order is required.

. 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.