At the conclusion of a Trial which resulted in a consent Judgment, the Judge awarded solicitor-client Costs to the mother on the basis that she was substantially successful and because the Trial Judge was of the view that the father’s conduct in advancing his case was reprehensible.

The father was granted Leave to Appeal the Costs award pursuant to Rule 505(3) of the Rules of Court before the new Appeal Rules came into force. Because the Judge who made the Costs Order retired shortly after making the Order, the Application for Leave to Appeal was heard by another Judge.

The mother applied to the Court of Appeal to have the Leave to Appeal Decision heard afresh in light of the new Appeal Rules; or in the alternative, permission to Appeal the Leave to Appeal Decision granted to the father. The Court noted that, prior to September 1, 2014, Appeals of Judgments with respect to Costs only were governed by Rule 505(3). As of September 1, 2014, Appeals of “decisions as to costs only” are governed by Rule 14.5(1)(e). The Court observed that the new Court of Appeal Rules require permission from a Court of Appeal Justice for Appeals of Decisions as to Costs only.

The Court referred to Rule 15.2(2), and stated that in light of this Rule “there can be no attack on the jurisdictional validity of the Queen’s Bench order granting leave to appeal”. The Court thus declined to grant the mother’s Application to have the Leave to Appeal heard afresh, stating that the Justice’s Decision was validly made pursuant to the Rules at the time.

With respect to the mother’s Application for permission to appeal the previous Leave to Appeal Decision, the Court noted that “the practice of this Court and many other courts is not to entertain appeals of applications for leave to appeal”. However, the Court found that in this instance the grounds for Leave to Appeal appeared problematic, and so granted the mother’s Application to Appeal the Leave to Appeal Decision. Both Appeals were to be consolidated or heard at the same time.