CARBONE v BURNETT, 2021 ABCA 432
14.5: Appeals only with permission
The Appellant appealed a Queen’s Bench Decision which upheld an Assessment Officer’s confirmation of the costs payable by the Appellant to the Respondents in the amount of $8,205.12.
The issues in this Appeal were: (1) whether permission to Appeal was required pursuant to Rule 14.5; and (2) if so, whether permission to Appeal ought to be granted.
Justice Rowbotham observed that permission to Appeal is required under Rule 14.5 when the Appeal is of a Decision as to costs only (Rule 14.5(1)(e)), and, separately, where the amount at issues does not exceed $25,000 (Rule 14.5(1)(g)). The Appellant argued that she was appealing a “substantive decision” of the Chambers Judge. The Court disagreed, finding instead that the only Decision before the Court was the confirmation of a costs assessment. The Appellant also argued that the dispute included significant costs which had been awarded against her earlier in the proceedings, such that the amount at issue was above $25,000. The Court held that the only controversy on Appeal was the assessment of costs in the amount of $8,205.12. The Court therefore held that both grounds were triggered in this case and that permission was required.
The Court then set out the test for granting permission to Appeal under Rule 14.5(1)(e), as described in Bun v Seng, 2015 ABCA 165. This test requires that the Applicant demonstrate: (1) a good arguable case; (2) issues of importance to the parties and in general; (3) that the Costs Appeal has practical utility; and (4) no delay in proceedings caused by the Costs Appeal. Justice Rowbotham held that the Appellant should not be granted permission as her Appeal did not have sufficient merit.
The Court also set out the test for granting permission to Appeal under Rule 14.5(1)(g), as described in Rocks v Ian Savage Professional Corporation, 2015 ABCA 77. This test requires that the Applicant demonstrate: (1) a reasonable prospect of success on Appeal; and (2) an issue of law or jurisdiction of importance to the public. For the same reasons, Justice Rowbotham held that permission should not be granted.
Justice Rowbotham therefore dismissed the Appeal with costs.View CanLII Details