The Applicant filed a Notice of Appeal of a costs decision made by the Lower Court. The Court of Appeal considered, as a preliminary issue, whether permission to appeal the costs decision was required, and if so, whether permission should be granted. The Respondent also requested payment of advance costs pursuant to 12.36 to answer the Appeal.

The Court of Appeal held that permission to appeal the costs decision was required. Pursuant to Rule 14.5(1)(e), no appeal is allowed from a “decision as to costs only” without permission from the Court of Appeal, unless a substantive decision is also being appealed. The purpose of Rule 14.5(1)(e) is to bring finality to costs Orders and conserve the Court’s time by screening out hopeless Appeals on the issue of costs alone. The Court of Appeal held that Rule 14.5(1)(e) does not apply where a substantive decision and a related costs decision are delivered at different times, resulting in separate appeals. In those cases, the costs appeal and appeal of the related substantive decision would have otherwise been heard together if the case followed a more normal course. In this case, however, the costs decision included costs for various applications that were heard after the Trial on the merits, and from which no appeals were made. The Court of Appeal found that with the separation in time and scope between the costs decision and the Trial decision, the Applicant’s appeal was an appeal as to costs only.

The Court of Appeal ultimately granted permission to hear the Applicant’s costs appeal. The Court confirmed that permission to appeal a costs decision is granted sparingly, and that an applicant must meet the requirements of the following test:

(i)                a good, arguable case of sufficient merit to warrant scrutiny by this Court;

(ii)               the issues are important, both to the parties and in general;

(iii)              the costs appeal has some practical utility; and

(iv)              that the effect of delay in proceedings caused by the costs appeal does not weigh against granting the permission sought.

The Applicant met each of the requirements of the test.

The Court of Appeal also granted an advance of costs to the Respondent. The Court’s jurisdiction to make an advanced Costs Order is included under Rule 12.36. The considerations for granting advance costs as articulated by the Supreme Court of Canada in British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71, at para 36, are as follows:

1.                  The party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case.

2.                  The claim must be prima facie of sufficient merit to warrant pursuit.

3.                  There must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate

The Court of Appeal found that each of the considerations applied.