The Applicants sought permission to appeal a Costs Decision. If permission to appeal was granted, the Applicants would then argue that the Trial Judge’s Decision should be set aside and the Court should grant the Applicants’ Costs on a solicitor-client full indemnity basis.

Rule 14.5(1)(e) requires permission to appeal a decision as to Costs only. Prior jurisprudence held that permission to appeal Costs Orders should be granted sparingly. The reason for this was to bring finality to Costs Orders and to conserve the Court of Appeal’s time by screening out hopeless Appeals on the issue of Costs alone.

Hughes J.A. confirmed that the test for permission to appeal a Costs award established under the former appellate Rules continues to apply: (i) the Applicant must identify a good, arguable case having enough merit to warrant scrutiny by the Court; (ii) the issues must be important, both to the parties and in general; (iii) the Appeal must have practical utility; and (iv) the Court should consider the effect of delay in proceedings caused by the Appeal.

Hughes J.A. held that the Trial Judge’s reasons indicated that he did not view the actions of the Respondent as constituting misconduct that might attract solicitor-client Costs, and that this finding was entitled to deference and showed no reviewable error. Hughes J.A. also found that the Trial Judge proceeded reasonably in finding that the Applicants were not entitled to solicitor-client Costs as contemplated by previously executed mortgage documents, and was also reasonable in applying the usual rule of awarding the successful party Costs on a party and party basis.

Hughes J.A. found that the Applicants had not demonstrated that the proposed Costs Appeal had any arguable merit, and dismissed the Application.