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Appeals - Leave to Appeal - Costs of the Motion. Gillespie v. Gillespie
In Gillespie v. Gillespie (Div Ct, 2025) the Divisional Court considers costs on a leave to appeal motion, here at the Divisional Court in a family law context:[51] This Court’s approach to determining costs for leave to appeal is found at para. 5 of 2265535 Ontario Inc. v. Vijayant Sood, 2017 ONSC 4738 (Div. Ct.), which states:The issue of broader application is the question of the normal expectation for costs arising out of a motion for leave to appeal under this new process. It may provide some guidance to the profession to know that we consider the normal award of costs on a motion for leave to appeal will be in the range of $5,000 (inclusive of disbursements and HST). By providing that guidance, we do not mean to suggest that there will never be instances where the costs for a motion for leave to appeal will be larger or smaller than that amount. The particular circumstances of each motion will always be considered in arriving at the appropriate amount for costs. [52] The general principle for Motions for Leave to Appeal to the Divisional Court from interlocutory Orders is to reserve costs in the cause or to reserve costs for the Divisional Court appeal panel (Hanemaayer v. Freure, 2004 CanLII 34935 (ON SC), at paras. 8-9; Park v. Park, 2011 ONSC 5954, at para. 2). As explained by Justice Price at para. 23 of Brown v. Hudson’s Bay Co., 2014 ONSC 5079 (Div. Ct.), this is an exception to the general approach in r. 57.03(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 “based on the fact that the judges who determine an appeal are sometimes in the best position to determine who should have been responsible for the costs of a Motion for Leave to Appeal.”
[53] Justice Fredak expanded on this rational in Hanemaayer, at para. 10, holding that there was no reason to deviate from the general rule and listed several reasons for that particular matter:a. Grounds on which leave to appeal an interlocutory Order as set out in Rule 62.02(4) of the Rules of Civil Procedure are partially discretionary and relate primarily to issues of public importance or the administration of justice. They do not therefore relate to the merits of the appeal itself. The test for determining whether or not leave should be granted has little or no impact on whether or not the moving party will ultimately be successful on its appeal;
b. Bearing in mind the discretion that motion judges possess, it is not always so clear that the motion for leave will not be opposed;
c. There is no evidence to substantiate the plaintiffs’ submission that the defendants’ opposition to the motion was a tactical decision;
d. There is no question that requiring leave to appeal serves a gatekeeper function for the appellate court. In this way the court regulates access to the appeal process, thereby preserving scarce judicial resources. This supports the view that costs of a motion for leave to appeal should be awarded in the cause;
e. The requirement that the court consider whether or not there is “good reason to doubt the correctness of the decision” is not a valid reason to depart from the normal rule of awarding costs in the cause in the appeal; and
f. When one of the reasons in granting leave to appeal is an apparent discrepancy in legal interpretation by learned authors, the determination of a cost award should reflect the result. This is consistent with the principle that costs are normally awarded in accordance with the result of that proceeding as envisioned in Rule 57.01 of the Rules of Civil Procedure. [54] In Brown, at para. 19, the court also compares r. 57.03(1)(a) to r. 24(10) of the Family Law Rules, pointing out that the rationale of r. 24(10) [now r. 24(1)] of the Family Law Rules is to give parties “prompt feedback about the real cost of litigation at each step of their case” and serve “as a valuable reality check and as persuasive inducement to engage in negotiations with a view to settlement”. Rule 57.03(1)(a) of the Rules of Civil Procedure has a similar design, to “bring home to litigants the expense of motions and should be departed from only in ‘special circumstances’”: Brown, at para. 16.
[55] In Gavriluke v. Mainard, 2013 ONSC 1161, an appellant was successful on the motion for leave but lost on appeal. The approach of deferring the decision on costs until the disposition of the appeal was confirmed at paragraphs 3 and 5 because the appeal may ultimately be dismissed, and therefore, “the time and expense spent on the motion for leave to appeal may have no value” or end up being “worthless.” At the same time, if one is both successful on the motion for leave and the appeal, it would be logical for that party to have their costs of the motion for leave to appeal, and their costs of the appeal itself: see Gavriluke, at para. 4.
[56] I see no basis to depart from the general principle that costs for the Motion for Leave be determined at the conclusion of the appeal and that costs ought to reflect the result on the appeal pursuant to r. 57.01 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.48. Given the multiple grounds of appeal addressed by the respondent in the leave motion and the appeal result, costs for the leave motion are granted to the respondent in the amount of $7,500 plus HST. . Infor Financial Inc. v. CentriLogic, Inc.
In Infor Financial Inc. v. CentriLogic, Inc. (Ont CA, 2024) the Ontario Court of Appeal considered costs in a leave to appeal motion:[57] Leave to appeal cost orders is granted only when there are “strong grounds upon which the appellate court can find that the trial judge erred in exercising his discretion”, including errors in principle or an award that is plainly wrong: McFlow Capital Corp v. James, 2021 ONCA 753 at para. 50. Leave to appeal costs is granted “sparingly and only where the order is tainted by palpable and overriding error or error of law”: Shaulov v. Law Society of Ontario, 2023 ONCA 95, at para. 24. . 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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