13.1: When one judge may act in place of or replace another
14.5: Appeals only with permission

Case Summary

The Applicant sought permission to Appeal a Decision ordering her to pay $7,500 in thrown-away Costs to another Party (the “Permission to Appeal Application”) and (2) an Order staying a $7500 Costs Award pending determination of the Permission to Appeal Application (the “Stay Application”).

The Court determined that it was bound by Rule 14.5(2) and was required to adjudicate the Permission to Appeal Application, including any issue that arises in the course of so doing so; and that another Judge probably did not have the jurisdiction to rule on the Permission to Appeal Application, noting that it was doubtful whether Rule 13.1(c) applied at this stage.

The Court noted that the Permission to Appeal Application incorrectly invoked Rule 14.5(1)(e) and found that the applicable provision was Rule 14.5(1)(a), as the Applicant had sought permission to Appeal from a Decision of a single Appeal Judge. The Court found that a single Appeal Judge exercising authority under Rule 14.5(2) to determine whether to grant permission to Appeal must ascertain whether the issue is of general importance to the community or of sufficient importance to the Parties to justify the allocation of private resources (the Parties’ legal costs) and public resources (the assigning of three more Judges to hear the Appeal).

The Court set out that (1) an issue is of general importance to the community if the issue presents a legal question the answer to which will be of precedential value in the area of law engaged, (2) a single Appeal Judge may also grant permission to Appeal if the controversy is of sufficient importance to the Parties and the product of misunderstanding of the law or misapprehension of the evidence or both; and that (3) the merit based component of the test can be assessed by considering the prospects of success if permission to Appeal is granted.

The Court found that the Applicant’s arguments were not persuasive, specifically noting (1) that the Applicant’s decision to ask for an adjournment prior to August 11, 2022 hearing and her obstructive conduct in the period were part of the same strategy; (2) the Court had jurisdiction to make an order as to Costs when the issue came up for determination; (3) the Applicant raised no error in the Court’s assessment of the Applicant’s conduct as amounting to litigation misconduct; (4) there was nothing unfair or improper about the Court estimating full-indemnity thrown away Costs in the case at issue;  and (5) the Applicant did have an adequate opportunity to contest the notion that she had engaged in litigation misconduct.

The Court found that the Permission to Appeal Application was baseless and accordingly relieved it of its obligation to resolve the Stay Application.

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