Simon's Legal Resources

Appeal - Leave to Appeal - Costs [CJA s.133b)] (2)

. 2748204 Ontario Inc. v. Syphus [costs on leave to appeal motion]

In 2748204 Ontario Inc. v. Syphus (Div Ct, 2026) the Divisional Court gave reasons on a motion for leave to appeal, focussing on costs:

[2] With respect to costs, we note that since a rule change in 2017, the Divisional Court, like the Court of Appeal and the Supreme Court of Canada, does not normally provide reasons for its decision on a motion for leave to appeal. However, in this instance, we are providing some reasons to address the issue of costs.

[3] In 2017, this court gave general guidance about costs on motions for leave to appeal in 2265535 Ontario Inc. v. Vijayant Sood, 2017 ONSC 4738 (Div. Ct.). The court observed that the normal expectation for costs of a leave motion is partial indemnity costs in the range of $5,000, although the court may nonetheless order more or less in its discretion.

[4] Due to the passage of time, something in the range of $7,000 continues to reflect the narrow, well-established nature of the leave test and the streamlined leave motion process. Often (as is the case here) a leave motion challenges a decision where the parties have already fully briefed the merits with motion materials for the hearing that gave rise to the decision at issue. The pre-existing motion materials ought to be of assistance in preparing the leave materials. Ordinarily, the costs of the leave motion should be modest.

[5] In this case, the moving parties have submitted a costs outline for partial indemnity costs of $6,734.57. However, the respondents seek substantial indemnity costs of $53,176.52. The respondents’ costs outline also sets their partial indemnity costs as $32,157.39. We have considered the reasons put forward by the respondents, including the submissions about the merits of the motion (or lack thereof), the numerous issues raised on the motion and their delegation of a significant amount of the work to a student who apparently did over 80 hours of work (in addition to the about 40 hours spent by lawyers).

[6] Considering all the relevant factors in the exercise of our discretion, we find that this costs claim is grossly disproportionate, even if costs were awarded on a substantial indemnity basis, and we are not persuaded to use that increased basis here. Although the motion was unsuccessful, there is no doubt that the decision from which leave was sought has serious consequences for the moving parties.

[7] We therefore take this opportunity to emphasize that ordinarily the costs of a leave motion should be modest, in the range discussed above. We award costs to the respondents in the total amount of $7,000, all inclusive.

. Lang-Newlands v. Newlands [leave unnecessary where appeal varies trial order]

In Lang-Newlands v. Newlands (Ont CA, 2026) the Ontario Court of Appeal considers a family law appeal, here brought against a final order which determined a support order and the NFP treatment of trust interest.

Here the court holds that CJA 133b leave to appeal cost awards is unnecessary when the appeal results in variation of the substantive trial orders:

[102] Section 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that leave is required where the appeal is only as to a discretionary costs order. However, when "the disposition on appeal changes the decision under appeal, leave to appeal from a costs order is not necessary": Climans v. Latner, 2020 ONCA 554, 152 O.R. (3d) 369, at para. 84; Tadayon v. Mohtashami, 2015 ONCA 777, 341 O.A.C. 153, at para. 70; see also Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 2, leave to appeal refused, [2019] S.C.C.A. No. 82.

. Sergovich v. Trinca

In Sergovich v. Trinca (Ont Div Ct, 2026) the Ontario Divisional Court dismissed cross-appeals, here firstly brought against a decision "dismissing their motion to dismiss the action for delay", and wrt the cross-appeal seeking "leave to bring a cross-appeal on the cost decision".

Here the court considers a 'leave to appeal' costs order issue [CJA s.133(b)]:

[58] Leave is required where an appeal to this court is only on the issue of costs. The test is stringent: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(b). There must be strong grounds upon which the appellate court could find that the judge erred in exercising her 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. Discretionary cost decisions should only be set aside on appeal if there is an error in principle or if the award is “plainly wrong”: Hamilton v. Open Window Bakery, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

[59] 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: Canadian Tire Corporation Limited v. Eaton Equipment Ltd., 2024 ONCA 25, C.C.L.T. (4th) 175, at para. 13 and see Giacomodonato v. PearTree Securities Inc ., 2024 ONCA 437 (CanLII) at para. 10.

. Sanasie v. Chateramdas

In Sanasie v. Chateramdas (Ont Div Ct, 2026) the Ontario Divisional Court dismissed two appeals related to title and mortgage fraud, here brought against orders "granting partial summary judgement, setting aside both the transfer of the home and registration of the mortgage, and ordered punitive damages to be paid by the adult child".

Here the court considered the test for granting leave to appeal cost awards [CJA s.133b]:

[62] The appellants submit the judge erred in ordering costs in the sum of $90,000. Specifically, the appellant alleges that the judge erred in awarding costs on a substantial indemnity basis having already made an order for significant punitive damages.

[63] 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 and Brad-Jay Investments Limited v. Village Developments Limited (2006), 2006 CanLII 42636 (ON CA), 218 O.A.C. 315 (C.A.), at para. 21. 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.

. Head v. 859530 Ontario Inc.

In Head v. 859530 Ontario Inc. (Ont CA, 2026) the Ontario Court of Appeal dismissed a defendants' appeal, this brought against an order which certified a class proceeding against "a long-term care residence, by residents who contracted COVID-19 there, the estates of those residents who died of COVID-19, and their families".

Here the court considers the CJA s.133b leave for costs appeal test:

[20] The governing principles are well known. Appellate deference is owed to discretionary cost awards made by first instance judges: Barry v. Anantharajah, 2025 ONCA 603, 178 O.R. (3d) 742, at para. 28. Leave to appeal a costs order is only granted in obvious cases where the party seeking leave demonstrates “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; see Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.