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Civil Litigation Dicta - Costs - Appeals. Akman v. Sonnet Insurance Company
In Akman v. Sonnet Insurance Company (Ont Div Ct, 2025) the Ontario Divisional Court considered a 'general principle' (really, a presumption) applicable for successful party cost awards, here in a challenging costs appeal situation:[6] In the circumstances of this appeal, the general principle to be applied is that “when an appeal is allowed […] the order as to costs below is set aide [SS: sic] and the costs below and of the appeal are awarded to the successful appellant”: see St. Jean v. Cheung, 2009 ONCA 9, at para. 4, citing Hunt v. TD Securities Inc. (2003), 2003 CanLII 48369 (ON CA), 43 C.P.C. (5th) 211 (ON CA), at para. 2.
[7] Another general principle to be applied is that where the disposition on the appeal is different from the outcome on the decision under appeal, leave to appeal costs is not necessary: St. Jean, at para. 4, citing Dines v. Harvey A. Helliwell Investments Ltd., [1992] O.J. No. 2107 (C.A.).
[8] Mr. Akman’s position is that, because the costs awarded at first instance were less than $3,500, Sonnet was prohibited from appealing the costs award. In support of that position, Mr. Akman relies on s. 2 of O. Reg. 626/00 titled, “Small Claims Court Jurisdiction and Appeal Limit”. Pursuant to that regulatory provision, there can be no appeal from an award, made in the Small Claims Court, that falls below $3,500. That provision applies to costs orders: Riddell v. Carefree Moving Inc., 2018 ONSC 1972 (Div. Ct.).
[9] If Mr. Akman’s position were to prevail in the circumstances before this court, the costs awarded at first instance would effectively be set off against the costs awarded on the appeal. Mr. Akman would be required to pay Sonnet a total of $900 ($2,500 - $1,600).
[10] Such an outcome makes no practical sense and is not in the interest of justice. The fact that Sonnet was not permitted to appeal the order as to costs at first instance does not mean that the order as to costs stands regardless of the outcome on the appeal. The general principles summarized in paras. 6 and 7, above, prevail over the regulatory provision upon which Mr. Akman relies. . Arcamm Electrical Services Ltd. v. Avison Young Real Estate Management Services LP
In Arcamm Electrical Services Ltd. v. Avison Young Real Estate Management Services LP (Ont CA, 2025) the Ontario Court of Appeal considered setting aside and amending trial cost awards where an appeal is allowed:[5] As a general principle, costs follow the event. Thus, when an appeal is allowed, this court’s general practice is to set aside the costs order below and award the successful appellant costs below and of the appeal: St. Jean v. Cheung, 2009 ONCA 9, at para. 4; Hunt v. TD Securities Inc. (2003), 2003 CanLII 48369 (ON CA), 40 B.L.R. (3d) 156, 66 O.R. (3d) 481 (C.A.), at para. 2, leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 473. For this reason, s. 18(1) of the court’s practice direction instructs parties to be prepared to address all costs issues at the hearing of the appeal (emphasis added): “Practice Direction Concerning Civil Appeals in the Court of Appeal”, (March 1, 2017).
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