Simon's Megalomaniacal Legal Resources

Appeal - Leave to Appeal - CJA s.133 Cost and Consent Orders

Section 133 of the Courts of Justice Act require leave to appeal costs and consent orders. When a costs appeal is commenced with a substantive appeal 'as of right', see R61.03.1(17) for the merging of procedures.

. Algra v. Comrie Estate

In Algra v. Comrie Estate (Ont CA, 2023) the Court of Appeal reviews the [CJA 133(b)] test for granting leave to appeal cost orders:

[48] Leave to appeal a costs order will not be granted save for in obvious cases where the party seeking leave convinces the court that 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 CanLII 42636 (ON CA), at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92; More v. 1362279 Ontario Ltd. (Seiko Homes), 2023 ONCA 527, at para. 32. This test imposes 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 in a case.

. Hughes v. Mehraban

In Hughes v. Mehraban (Div Court, 2023) the Divisional Court considered an appeal from an LTB consent order:

[3] While s. 210(1) of the Residential Tenancies Act, 2006, provides that an appeal lies to the Divisional Court from a decision of the LTB, but only on a question of law, s. 133(a) of the Courts of Justice Act stipulates that no appeal applies lies from a consent order without leave of the court: Ravadgar v. Kaftroudi, 2023 ONSC 5471, at paras. 11 to 19.

[4] Accordingly, leave to appeal is required in the present case, and the Notice of Appeal in this case must therefore be quashed.

. Benjamin Cochrane Trust (Re)

In Benjamin Cochrane Trust (Re) (Ont CA, 2023) the Court of Appeal considered the test for granting leave to appeal a CJA s.133(b) costs order, here a discretionary order:

[79] This court recently articulated the test for granting leave to appeal a discretionary costs award and the standard for setting aside such an award in The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381, at para. 167:

To grant leave, there must be 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. Setting aside a costs award on appeal may only follow where the motion judge has made an error in principle or if the costs award is plainly wrong [citation omitted].

[80] Here, the trial judge found that the respondent was entitled to costs as the prevailing party. She fixed costs at $90,000 on a partial indemnity basis. She took into account the respondent’s conduct in deciding that substantial indemnity costs were not appropriate, finding that the respondent “should not be rewarded for his unreasonable behaviour with an enhanced cost order”. She also took the respondent’s conduct into account in determining the quantum of costs.

[81] I would refuse leave. There are not strong grounds to doubt the trial judge’s discretionary costs decision. She explained why the respondent was entitled to costs and why the costs were payable on a partial indemnity scale, and she justified the quantum. In doing so, she took into account the respondent’s conduct, among other factors. Her decision is entitled to deference.

. More v. 1362279 Ontario Ltd. (Seiko Homes)

In More v. 1362279 Ontario Ltd. (Seiko Homes) (Ont CA, 2023) the Court of Appeal considered a leave to appeal motion under CJA 133(b):

[32] This court has previously stated the test for leave, as follows: “Leave to appeal a costs order will not be granted save 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’”: see Brad-Jay Investments Limited v. Village Developments Limited, 2006 CanLII 42636 (ON CA), at para. 21.

. The Catalyst Capital Group Inc. v. West Face Capital Inc.

In The Catalyst Capital Group Inc. v. West Face Capital Inc. (Ont CA, 2023) the Court of Appeal considered messy, three-appeal litigation between private equity corporate actors, here a costs appeal issue under CJA s.133(b):

[167] To grant leave, there must be 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. Setting aside a costs award on appeal may only follow where the motion 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, citing Duong v. NN Life Insurance Co. of Canada (2001), 2001 CanLII 24151 (ON CA), 141 O.A.C. 307, at para. 14.

. Davies v. Clarington (Municipality)

In Davies v. Clarington (Municipality) (Ont CA, 2023) the Court of Appeal considered whether CJA 133(b) applies to a costs appeal to require leave, and as well the test for appealing costs under CJA 133(b):

[43] The second concern is whether the appeal requires leave. Section 133(b) of the CJA requires that leave be obtained for appeals “only as to costs”. However, that section does not apply in this case.

[44] An appeal from an award of costs against a non-party made pursuant to the court’s inherent jurisdiction does not require leave to appeal: Hunt v. Worrod, 2019 ONCA 540, 48 E.T.R. (4th) 177, at paras. 24-25, leave to appeal refused, [2019] S.C.C.A. No. 354. It follows that an appeal from a refusal to order costs against a non-party under the court’s inherent jurisdiction may also be brought without leave.

....

[87] Leave to appeal a costs order will only be granted where there are “strong grounds upon which [this 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.

. Gannes v Chhabra

In Gannes v Chhabra (Div Court, 2023) the Divisional Court considered what might be called an 'exception' to CJA 133(b), the rule that requires leave to appeal where the only issue is one of costs. The appellants argued the CJA 133(b) only applied "where the appeal is only as to costs that are in the discretion of the court ...", and that 'their' costs issue involved no such discretion - it being under the R49.07(5) offer rules which provides for a (firmer) "entitlement" to a cost award (where costs are not expressly included in the offer). The case does not resolve the issues (reserving it) but it raised an interesting issue regarding the R49.07(5) cost provisions:

[5] Section 133(b) of the CJA states as follows:

No appeal lies without leave of the court to which the appeal is to be taken,

...

(b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs[.]

[6] The Appellants take the position that s. 133(b) of the CJA does not apply to their appeal because costs were not “in the discretion of the court” below. The Appellants rely on Rule 49.07(5) of the Rules of Civil Procedure, which states as follows:

(5) Where an accepted offer to settle does not provide for the disposition of costs, the plaintiff is entitled,

(a) Where the offer was made by the defendant, to the plaintiff’s costs assessed to the date the plaintiff was served with the offer; or

(b) Where the offer was made by the plaintiff, to the plaintiff’s costs assessed to the date that the notice of acceptance was served.

[7] Sub-rule 49.02(2) states that rules 49.03 to 49.14 also apply to motions, with necessary modifications. The Appellant submits that in this case, “plaintiff” in Rule 49.07(5)(b) would be replaced with “moving party”.

[8] The Appellants made an offer to settle the motion that contained no disposition as to cost and that was accepted by the Respondents. The Appellants submit that pursuant to Rule 49.07(5)(b), they were entitled to a mandatory order for costs to the date that notice of acceptance was served. The Appellants take the position that once an offer falls under Rule 49.07(5), there is no discretion to decline to award costs and that, as a result, the motion judge lacked jurisdiction to refuse to order costs.

[9] While I am not inclined to view the issue as one of jurisdiction, there is case law that finds that, unlike Rule 49.10, which includes the words “unless the court orders otherwise,” Rule 49.07(5) leaves the court with no discretion to depart from the presumptive costs disposition specified in the rule. See, e.g.: Atlas Holdings & Investments v. Vratsidas, [2009] O.J. NO. 823 (Div. Ct.) at paras. 12-14; Ontario (Attorney General) v. $19,570.00 in Canadian Currency (in rem), 2013 ONSC 3322.

. Jagtoo & Jagtoo, Professional Corporation v. Grandfield Homes Holdings Limited

In Jagtoo & Jagtoo, Professional Corporation v. Grandfield Homes Holdings Limited (Ont CA, 2023) the Court of Appeal considers how leave to appeal a costs order [CJA 133(a)] is advanced with a substantive appeal as of right [under 61.03.1(17)]:

[25] The appellant also seeks leave to appeal the costs order from the respondent’s unsuccessful cross-motion. The appellant submits that, pursuant to s. 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and r. 61.03.1(17) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the request for leave can be joined with the main appeal as of right.

[26] However, this is not a proper application of r. 61.03.1(17). As noted above, the cross-motion was heard and decided before the application. Its dismissal resulted in a final order. Consequently, the cross-motion is separate from the application, which is the main proceeding under appeal. As this court explained in Byers (Litigation Guardian of) v. Pentex Print Masters Industries Inc. (2003), 2003 CanLII 42272 (ON CA), 62 O.R. (3d) 647 (C.A.), at para. 16, a costs order from a separate or collateral proceeding constitutes its own appealable judgment, governed by its own procedures:

On the basis of this analysis, the CJA and the Rules of Civil Procedure clearly contemplate that a costs judgment, when the subject of a separate or collateral proceeding as in this case, is a separate determination rather than a part of the main merits proceeding. As such, it is a separate appealable judgment governed by its own procedure. [Emphasis added.]

[27] It is, therefore, not permissible for the appellant to join its request for leave to appeal the costs order from the cross-motion with its appeal of the application. Nevertheless, given the lack of prejudice to either party, and for the purpose of expediency, we will grant the appellant an indulgence and decide the matter.

[28] Leave to appeal a costs order will not be granted save in obvious cases where the party seeking leave establishes that 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.

. Bowen v. JC Clark Ltd.

In Bowen v. JC Clark Ltd. (Ont CA, 2023) the Court of Appeal considered, but denied a two-pronged R59.06 set aside motion on the basis that the issues raised (costs) were properly the subject of appeal, which here [under CJA 133] required the court's leave to appeal:

[2] The appellants now bring a motion to set aside, amend, or vary this court’s order regarding trial costs and seek an order that trial costs of $160,000 be awarded to them. In support of the motion, the appellants rely on rules 59.06(1) and (2)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

....

[7] Pursuant to rule 61.16(6.1), “[s]ubject to rules 37.14 and 59.06, an order or decision of a panel of an appellate court may not be set aside or varied under these rules.”

[8] This court’s authority under rule 59.06 is limited, and will be exercised “sparingly” and only “where it is clearly in the interests of justice”: Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 840, at para. 6.

[9] Rule 59.06(1) is not applicable in the circumstances of this motion. The motion does not raise an issue of an accidental slip or omission or seek an amendment on a particular on which the court did not adjudicate: Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 512, at paras. 7, 9. In their Notice of Appeal and their appeal factum, the appellants sought trial costs. This court adjudicated on trial costs. There was neither an accidental slip or omission nor a failure to adjudicate.

[10] With respect to rule 59.06(2), the appellants rely on subrule (d), which permits a party to bring a motion in a proceeding to “obtain other relief than that originally awarded” (emphasis added). Rule 59.06 cannot be read as being so broad as to apply to any request by a moving party for a different order than that made by the court. If that were sufficient to invoke rule 59.06(2)(d), finality of judgments would be illusory. The appellants are not seeking relief other than that originally awarded. The nature of the relief they seek is the same as what the court ordered – costs. What the appellants challenge is to whom the costs are payable. This is not relief other than that originally awarded. Rather, the appellants are seeking relief that this court considered and declined to grant: Render, at para. 8.

[11] The substance of the appellants’ motion is a challenge to the appropriateness of this court’s discretionary order with respect to trial costs, the procedural fairness of the manner in which this court made its order regarding trial costs, and the adequacy of the court’s reasons for the order in relation to trial costs. That relief is appropriately sought by seeking leave to appeal to the Supreme Court of Canada: Mullings v. Robertson, 2020 ONCA 369, at paras. 4 and 6.

. Palichuk v. Palichuk

In Palichuk v. Palichuk (Ont CA, 2023) the Court of Appeal considered whether a costs appeal required leave [under CJA 133(b)], here in an estates context. Here the case heard and decided a substantive appeal at the same time:

F. The appeal against the award of costs

[80] As noted in the introduction to this judgment, the application judge made a combined costs award against Linda in the amount of $100,224.11. Linda contends that the quantum of this award was excessive in the circumstances. However, Linda has not sought leave to appeal from this court. In McFlow Capital Corp. v. James, 2021 ONCA 753, Thorburn J.A. said, at para. 50:

Since the substantive appeal is dismissed, the appellants are required to seek leave to appeal the discretionary costs award: CJA,s. 133; Gary Anthony Bennett Professional Corporation v. Triella Corp., 2019 ONCA 225, at para. 7. To grant leave, there must be “strong grounds upon which the appellate court could find that the trial 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.

[81] A court should set aside a costs award 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. I would not grant leave to appeal.

. Greta Energy Inc. v. Pembina Pipeline Corporation

In Greta Energy Inc. v. Pembina Pipeline Corporation (Ont CA, 2023) the Court of Appeal sets out the test for costs appeals [which also requires leave under S.133(b)]:

[4] An award of costs is a discretionary decision that is entitled to deference. This court will set aside a costs award only if the motion 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.

[5] The appellants sought leave to appeal costs on several bases, but at the hearing argued that the costs award was plainly wrong. We do not agree.

. Pletch v. Pletch Estate

In Pletch v. Pletch Estate (Div Court, 2022) the Divisional Court discusses an interesting costs appeal issue. The appellant relied in SLRA s.76 which provides “(a)n appeal lies to the Divisional Court from any order of the court made under this Part” - as support that no leave to appeal is required - while the court considered the view that CJA s.133(b) required leave to appeal "where the appeal is only as to costs":

[16] On a plain reading of s. 76 of the SLRA, the position taken by the appellant that no leave is required, or, at least, with respect to the relief sought at para. 1 of the Notice of Appeal (unchanged under the Amended Notice of Appeal) would appear to have some merit.

[17] However, that view gives rise to an apparent conflict with the requirement that leave is required to appeal a costs decision, as set out under s. 133 of the Courts of Justice Act, RSO 1990, c. C.43 (the “CJA”). S. 133 reads as follows:

No appeal lies without leave of the court to which the appeal is to be taken,

(a) from an order made with the consent of the parties; or

(b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs. R.S.O. 1990, c. C.43, s. 133.

[18] At the Case Conference, and without the benefit of any caselaw on point, I expressed the view that, given that the only issue to be determined on the appeal was costs – by whom they should be paid and in what amount – leave to appeal ought to have been sought pursuant to r. 62.02.

[19] Notwithstanding the view I expressed at the Case Conference, I advised the parties that I would make inquiries of my judicial colleagues at the Divisional Court in Toronto to determine whether there exists is a practice or protocol in a case in which the appeal provisions in two statutes appear to conflict. From my inquiries I understand that:

1) written motions for leave should be brought under r. 62.02 by all parties; 

2) in their written motions for leave, the parties may make submissions on whether the motion is required, given the apparent conflict between the SLRA and the CJA; and

3) these motions should be identified as brought in consequence to the Case Conference held on December 16, 2022.

[20] To further inform myself, after the Case Conference, I carried a very brief CanLII search. I found the decision of Corredato v. Corredato, 2016 ONSC 6252. This was a decision on a motion for leave to appeal, brought under r. 62.02 and pre-dates the current procedure for seeking leave by way of a motion in writing to a Toronto panel.

[21] Corredato is a decision of (then) Justice Thorburn, sitting as single judge of the Divisional Court. The order appealed from was made under Part V of the SLRA; that leave to appeal was required, appeared to have been assumed. In Corredato the order under appeal was interlocutory whereas in this case, the order appealed from is a final order. However, the wording under s. 76 of the SLRA that states that leave lies to the Divisional Court does not differentiate between final and interlocutory orders.

[22] While Corredato may be distinguishable, it does appear to offer an example of the procedure followed on an appeal of an order made under Part V, that supports a view s.133 of the CJA applies, notwithstanding the language used in s. 76.

. Ducharme Estate v. Thibodeau

In Ducharme Estate v. Thibodeau (Ont CA, 2022) the Court of Appeal considered an estates appeal, and stated that by adding a cost appeal to a substantive appeal, the costs appeal did not require leave:

[4] Despite having withdrawn her Notice of Objection to probate, Ms. Thibodeau is now appealing the decision of the application judge to uphold the validity of the will (the “substantive appeal”), but she has not sought to reverse or stay the probate decision. She has coupled a “costs appeal” with the substantive appeal. Had she filed a costs appeal without a substantive appeal, she would have required leave to appeal but by combining the substantive and costs appeal, leave to appeal costs is not required.

. Go Fleet Corporation v. So.

In Go Fleet Corporation v. So. (Div Ct, 2021) the Divisional Court makes these practical CJA 133 comments, while confirming that appeals on the merits and on costs are separate appeals:

[16] The appellant argues, relying on the 2003 Court of Appeal decision in Byers v. Pentex Print Master, 2003 CanLII 42272 (ON CA), 62 O.R. (3d) 647 (C.A.), that there is some confusion as to when the appeal period begins to run when a merits decision is separately issued from a costs decision. For counsel or a paralegal to argue that there remains confusion in 2021 is simply not acceptable. Byers made it crystal clear, in 2003, that a merits judgment and a costs judgment are separate appealable judgments. This is reflected in the Rules of Civil Procedure. For the merits judgment, the 30-day period under rule 61.04(1) in which to serve a notice of appeal commences from the date of the judgment on the substantive merits.

[17] Leave is required for appeal from costs judgments, even when joined with an appeal as of right (see Courts of Justice Act, R.S.O. 1990, c. C.43, section 133(b), and Rule 61.03 (7)). If costs are appealed as part of the appeal of the merits of the order, the request for leave to appeal should be included in the notice of appeal or in a supplementary notice of appeal (Rule 61.03(7)). ...

. Capital One v. Jonathan

In Capital One v. Jonathan (Div Ct, 2022) the Divisional Court heard an appeal from Small Claims Court, with one of the appealed orders being with respect to costs (another was with respect to interest). The appellant sought leave under s.133 to appeal the costs order, the need for which was supported by the court:

[23] S. 133 of the Courts of Justice Act provides: "No appeal lies without leave of the court to which the appeal is to be taken... (b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs."

[24] In the case of Mullin v. Lagace, 2015 ONCA 757 the Court of Appeal stipulated at para. 8 that, when the appeal is both substantial and as to costs, leave is required for the cost component.

[25] In the case of Smith v Mackinnon, 2017 ONSC 4638 (Div. Ct.) Mew, J. summarized the principles governing motions for leave to appeal a costs order at para. 13 as follows:

a. Leave to appeal a costs order will not be granted save in obvious cases where the party seeking leave convinces the court that there are "strong grounds upon which the judge erred in exercising his discretion";

b. Leave to appeal a costs order, standing alone, is granted only sparingly;

c. A court should set aside a costs award on appeal only if the trial judge has made an error in principle or the costs award is "plainly wrong";

d. A costs award is a discretionary order and the judge at first instance is in the best position to determine the entitlement, scale and quantum of any such award.

See: McNaughton Automotive Ltd. v. Co-operators General Insurance Co., 2008 ONCA 597 (Ont. C.A.) , at paras. 24-27; F.L. Ravin Ltd. v. Southwestern Ontario Student Transportation Services, 2013 ONSC 6500 (Ont. S.C.J.) at para. 16.

. McFlow Capital Corp. v. James

In McFlow Capital Corp. v. James (Ont CA, 2021) the Court of Appeal noted the interesting point that when the substantive appeal is dismissed, a co-joined costs appeal (if made without leave) then requires leave under CJA s.133:

[49] The appellants also challenge the discretionary costs award. They argue that the trial judge erred in principle by relying on the same conduct that gave rise to her award of punitive damages as the basis of her decision to award costs on a substantial indemnity scale. This, they submit, is contrary to this court’s decision in Sliwinski v. Marks (2006), 2006 CanLII 18348 (ON CA), 211 O.A.C. 215 (C.A.), at para. 29.

[50] Since the substantive appeal is dismissed, the appellants are required to seek leave to appeal the discretionary costs award: CJA, s. 133; Gary Anthony Bennett Professional Corporation v. Triella Corp., 2019 ONCA 225, at para. 7. To grant leave, there must be “strong grounds upon which the appellate court could find that the trial 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 includes errors in principle or a costs award that is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 9, at para. 27, citing Duong v. NN Life Insurance Co. of Canada (2001), 2001 CanLII 24151 (ON CA), 141 O.A.C. 307 (C.A.), at para. 14.

. Feinstein v. Freedman

In Feinstein v. Freedman (Div Ct, 2021) the Divisional Court considered the leave to appeal test for appealing cost awards:

[113] The test for leave to appeal a costs award is a stringent one. To obtain leave, an appellant must show “strong grounds upon which an appellate court could find that the trial judge erred in the exercise of his or her discretion”: Brad-Jay Investments Ltd. v. Szijjarto (2006), 2006 CanLII 42636 (ON CA), 218 O.A.C. 315 (Ont. C.A.), at para. 21, leave to appeal to S.C.C. refused, 31879 (June 21, 2007) [2007 CarswellOnt 4071 (S.C.C.)]; Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101, 119 O.R. (3d) 81, at para. 77. An appellate court will not set aside a costs award unless it can be shown that the trial judge made an error in principle or that the costs award was plainly wrong. The appellants’ submissions fail to meet this test.