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