The applicants, commercial landlords, sought leave to appeal a costs order after successfully obtaining a writ of possession against the respondent tenants for unpaid rent.
The applications judge had denied costs to the successful landlords, citing unconscionability and relying on unresolved factual issues from separate ongoing litigation between the parties.
The Divisional Court granted leave to appeal, finding strong grounds that the applications judge erred in principle by relying on factual issues that were explicitly not before him when exercising his costs discretion.
