This decision addressed an Application for permission to Appeal a Costs endorsement. The Applicants sued the Defendant for oppression, among other causes of action, and brought an Application for various forms of interlocutory relief. However, a Chambers Judge dismissed the Application, finding that the Applicants had provided insufficient evidence. The Judge awarded solicitor-client costs against the Applicants in the maximum amount of $329,586.32, subject to assessment. The Judge directed that the parties make costs submissions. However, after approximately 5 months, the Applicants failed to file costs submissions, and the Judge issued the Costs Endorsement.

Justice Antonio emphasized that pursuant to Rule 14.5(1)(e), permission is required to Appeal a Costs Order. Costs Awards should not be set aside on Appeal unless the Judge below made an error in principle or the award is clearly wrong, as costs awards are discretionary and attract a high degree of deference. In order to grant permission to Appeal, the Applicant must demonstrate that (1) there is a credible and arguable case that merits the Court’s consideration; (2) the issues raised are significant both to the parties and in general; (3) the proposed Costs appeal serves a practical purpose; and (4) pursuing the Costs Appeal will not result in undue delay to the proceedings.

The Applicants argued that Costs Awards in oppression actions require unique consideration given that such actions involve serious allegations that may or may not be substantiated. Therefore, awarding enhanced costs merely because serious allegations were not substantiated would have a chilling effect on oppression litigation. The Applicants claimed that enhanced costs in the context of oppression actions should require additional intentional misconduct separate from unfounded claims. The Applicants also argued that the Chambers Judge erred in awarding solicitor-client costs due partly to the absence of cost submissions.

Justice Antonio dismissed the Appellants’ argument, finding that the Chambers Judge did not base the costs award on allegations that simply did not carry the day. Rather, the reasoning was grounded in the Applicants’ “near-complete failure” to provide supporting evidence of the serious allegations. Further, the Court found that it was not evident that the Chambers Judge awarded enhanced costs because the Applicants did not make costs submissions. Antonio J. acknowledged that, even if the Chambers Judge’s reference to the absence of cost submissions in the Costs Endorsement or the precedents cited within could be an arguable issue, it would depend sensitively on the facts of the case and the wording of the Costs Endorsement. Therefore, it was not an issue of general importance and did not merit the attention of an Appeal panel.

Lastly, the Appellants argued that the quantum of costs contributed to the importance of the Appeal for both parties and in general, citing case law for the proposition that an out of the ordinary costs award will ground an Appeal. Justice Antonio disagreed, affirming that the case law does not extend as far as an Applicant would hope and that the quantum of costs alone is not a reason to grant leave. Antonio J. was not satisfied that the proposed Appeal would be of public importance or engage arguable issues that merit consideration by an Appeal panel. The Application for permission was denied.