10.44: Appeal to judge
10.45: Decision of the judge
14.5: Appeals only with permission

Case Summary

This Appeal related solely to Costs, and therefore permission to Appeal to a full Appeal Panel pursuant to Rule 10.5(1)(e) was required. The Applicants appealed the Decision of a Chambers Judge who had denied their Application under Rule 10.45(3)(c) to waive the requirement to file the transcript of Cost assessment proceedings before an Assessment Officer for a certification of Costs which the Applicants had appealed. The Chambers Judge denied the Application, relying on Rule 10.44(2), as the Appeal was a true Appeal on the record and was necessary to determine if the Assessment Officer’s decision was reasonable. The Applicants alleged that they were denied procedural fairness in front of the Chambers Judge and that the Chambers Judge exhibited bias against them.

Justice Antonio noted that the test an Applicant seeking permission to Appeal must meet requires demonstrating: i) a good arguable case having enough merit to warrant scrutiny by the Court; ii) important issues to the parties and in general; iii) practical utility of the Appeal; and iv) the effect of delay in the proceedings caused by the Appeal will not be unduly prejudicial. 

Justice Antonio found that the Appeal did not have arguable merit as the Chambers Judge’s comments were directed at allowing all arguments to be made in an orderly fashion without interruption - they did not raise fairness concerns. Further, Antonio J.A. found that the Decision was not of importance within the meaning of the test, as the Decision under Appeal was a discretionary one for which the Decision and the process by which it was made would have no precedential value. Justice Antonio noted that the Applicants had already obtained the transcript of the proceedings and filed them with the Appeal materials, and thus, there was no practical utility to the Appeal. Given the above factors, Justice Antonio held that there was no reason to delay the Appeal in the Court of Queen’s Bench. The Application for permission to Appeal was dismissed.

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