Simon's Megalomaniacal Legal Resources

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

. 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.