10.29: General rule for payment of litigation costs
10.50: Costs imposed on lawyer
14.5: Appeals only with permission

Case Summary

The Applicant, who was former counsel for Maurice Stoney, a party in the underlying Action, sought to Appeal a portion of a Judgment in which she was held jointly and severally liable for solicitor client Costs along with her client. Watson J.A. referred to Rule 14.5(1)(e), which provides that permission to Appeal must be obtained for any Decision relating to Costs only. Watson J.A. stated that the test for permission to Appeal was as set out in a related Appeal Action. The test was whether the Applicant could show (1) a good arguable case having sufficient merit to warrant scrutiny by a full panel of the Court of Appeal; (2) issues of importance to the parties and in general; (3) that the Costs Appeal has practical utility; and (4) no delay in proceedings would be caused by the Costs Appeal.

Justice Watson observed that:

The Rules of Court contain a number of presumptions about costs awards. For example, R. 10.29 creates a presumption that the successful party is entitled to costs, and a presumption that costs are awarded on a “pay as you go” basis, not just at the end of the litigation. Schedule C creates a presumptive scale of costs. Costs that are consistent with the presumptions, guidelines and rules set out in the Rules of Court are resistant to appellate review, making appeals inappropriate. …

Further, Costs awards against lawyers as a form of sanction are recognized by Rule 10.50. Justice Watson noted that there was no direct appellate authority on Rule 10.50, but that such awards were considered to be extraordinary. Watson J.A. concluded that the Applicant had met the test and granted the Application for permission to Appeal.

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