Civil Procedure – Appeal – Costs, Civil Procedure – Leave to Appeal – Costs – Court of Appeal, Statutes – Court of Appeal Act, Section 5, Subsection 7(3), Section 20, Statutes – Queen’s Bench Act, Section 38(b)
The applicants obtained leave to appeal against the costs order made in the chambers decision. The threshold question for the appeal court was whether the single appeal judge sitting in chambers had the jurisdiction to grant the relief and alternative relief sought by the applicants.
HELD: The appeal judge concluded that a single judge in chambers did not have jurisdiction to grant the relief and alternative relief sought by the applicants. The right to appeal is limited by s. 7(3) of The Court of Appeal Act, 2000 and s. 38(b) of The Queen’s Bench Act in circumstances where litigants seek to appeal against an order of costs alone. Where the appeal is only with respect to the costs order, there is no appeal unless leave to appeal has been granted by the Court of Queen’s Bench judge who made the cost order. The chambers judge had not granted the required leave to appeal as the applicants had not sought it. The applicants said that they did not apply for leave to appeal from that chambers judge because the judge had recused himself in the chambers decision. The applicants argued that the chambers judge lost jurisdiction to grant leave under s. 38 of The Queen’s Bench Act, 1998 so the appeal court judge should assume the jurisdiction. The applicants did not point to any authority or legislation that would allow the appeal court to stand in the shoes of a Court of Queen’s Bench judge for the purposes of granting leave to appeal from a costs order alone. The appeal court also found that neither s. 5 nor s. 20 of The Court of Appeal Act provided the authority the applicants sought. The appeal court was unable to conclude that a single judge had the jurisdiction necessary to grant the relief sought. After the jurisdiction issue was raised in the oral hearing, the applicants sought an extension of time to file a notice of appeal against the costs order as final order, i.e., one that does not require leave. The application for extension of time to appeal was granted. Costs of the application were left to the panel of the court that hears the appeal.