Ian Fellows

The applicants' motion for leave to appeal an order denying an interlocutory injunction was previously dismissed on jurisdictional grounds.

The respondent sought costs on a substantial indemnity scale, arguing the applicants unnecessarily ran up costs by pursuing the motion despite being warned the appeal route was to the Court of Appeal.

The court declined to award substantial indemnity costs, finding the jurisdictional issue was not straightforward.

Costs were fixed at $20,000 on a partial indemnity basis, reflecting the complexity of the jurisdictional issue and the need for the respondent to address the merits of the leave motion.

The applicants sought leave to appeal an order denying their application for an interlocutory injunction to prevent the respondent from implementing random drug and alcohol testing pending a grievance arbitration.

The respondent argued the Divisional Court lacked jurisdiction because the order was final, not interlocutory.

The court agreed, finding that because the injunction was sought by way of an application, the dismissal of that application finally determined the proceeding.

Consequently, the order was final and any appeal lies to the Court of Appeal.

The motion for leave to appeal was dismissed for want of jurisdiction.