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Appeals - Leave to Appeal - Costs of the Motion. Grimm v. Ontario (Children's Lawyer)
In Grimm v. Ontario (Children's Lawyer) (Ont CA, 2023) the Court of Appeal considers the high deference accorded appeals against leave to appeal cost awards:[23] Finally, Mr. Smith challenges the motion judge’s $10,000 costs order in favour of Ms. Grimm. Mr. Smith requires leave to appeal costs in accordance with s. 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. This court reiterated the high test for leave to appeal costs in Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884, 58 C.P.C. (8th) 318, at para. 14, as follows:The test for leave to appeal costs is high: there must be "strong grounds upon which the appellate court could find that the judge erred in exercising his [or her] discretion": McNaughton Automotive Limited v. Co‑Operators General Insurance Company (2008), 2008 ONCA 597 (CanLII), 95 O.R. (3d) 365 (C.A.), at para. 24, citing Brad-Jay Investments Ltd. v. Szijjarto, 2006 CanLII 42636 (ON CA), 218 O.A.C. 315 (2006) (C.A.), at para. 21. A costs award should be set aside on appeal "only if the trial 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. . Elguindy v. Elguindy
In Elguindy v. Elguindy (Ont CA, 2020) the Court of Appeal sets out the test for leave to appeal to the Court of Appeal from an exercise of discretion, such as costs:[6] It is well established that leave to appeal costs should only be granted sparingly where there are strong grounds upon which this court could find that the trial judge erred in exercising his discretion: Brad-Jay Investments Limited v. Village Developments Limited, 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 see none here.
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