DIVISIONAL COURT FILE NO.: 06-000016-ML
Court File No: 05-FA-013855FIS (Toronto Action)
Court File No: 06-4328 (Kenora Action)
DATE: 2006-09-14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
WENDY LEE GALE,
Elliot Birnboim, for the Applicant (Appellant)
Applicant (Appellant)
- and -
JOHN PAUL GALE,
Bernd Richardt, agent for Aaron Franks, for the Respondent (Respondent)
Respondent (Respondent)
HEARD: September 8, 2006, via teleconference, at Thunder Bay, Ontario
Mr. Justice G. P. Smith
Reasons On Motion For Leave
Overview
[1] This is a motion by the applicant, Wendy Lee Gale, (“the wife”) for an order granting leave to appeal the order of Stach J. dated August 3, 2006 in which he ordered costs payable by the wife in the amount of $32,107.82 for her unsuccessful motion for partition and sale of a family cottage located near Kenora, Ontario.
[2] On June 23, 2006 I released my reasons refusing to grant the wife leave to appeal the decision of Stach J. regarding his decision to dismiss the motion for partition and sale. The wife now asks for leave to appeal his order as to costs.
[3] The central ground for the motion is that the judge erred in principle in awarding costs and in finding that there was no justification for the wife to have brought the motion for partition and sale of the cottage.
Legal Framework
[4] Section 19(1)(b) of the Courts of Justice Act provides that an appeal lies to the Divisional Court from an interlocutory order of a judge of the Superior Court of Justice only with leave. Section 133(b) of the act states that no appeal lies from an award of costs alone except with leave.
[5] The test for granting leave to appeal an interlocutory order is set out in Rule 38(1) of the Family Law Rules and in Rule 62 of the Rules of Civil Procedure.
[6] Rule 62.02(4) of the Rules of Civil Procedure provides as follows:
(4) Grounds on which leave may be granted – Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[7] Rule 24(1) of the Family Law Rules provides that a successful party is presumptively entitled to an order for costs.
[8] In cases involving a motion for summary judgment, Rule 16(10) of the Family Law Rules provides that costs are to be awarded on a full recovery basis payable forthwith unless, despite being unsuccessful, the motion was justified.
Dicussion
[9] In awarding costs against the wife Stach J. made the following comments at paragraph 6 of his reasons:
The conduct complained of bore the character of being brazen, egregious and destructive. The allegations describing it were set out in detail in the affidavit of John Paul Gale sworn March 27, 2006. the allegations remained unanswered and essentially unaddressed in the responding affidavit of Wendy Lee Gale, sworn April 15, 2006. Her unwillingness or inability to address these serious allegations foredoomed her ability to demonstrate that there was no genuine issue which would bear on the exercise of judicial discretion. I conclude that, by the end of March 2006 it ought to have been objectively apparent that the motion for summary judgment which initially appeared so attractive would not likely succeed. John Paul Gale is therefore entitled to costs of the motion. Save for the order of Shaw J. made March 29, 2006, he shall have costs on a partial indemnity basis to March 30, 2006, and full recovery thereafter.
[10] The wife’s position is that the costs of her failed motion for partition and sale should have been reserved to the trial judge or not awarded at all. Some of the reasons in support of this position included:
the motion was reasonable in that partition and sale orders are routinely made in family law matters and can promote an early resolution of an application;
the wife had a strong prima facie case and, if successful at trial, will have suffered substantial damage by losing the spring selling season and use of the funds that will be generated from the sale;
if the wife is ultimately successful and the husband’s position to be found unreasonable, it will have been an unjust result to have the wife pay costs of the failed motion;
there is no support order in place and there is a huge discrepancy between the financial position of the parties with the husband earning more than $1.7 million per annum compared to the wife’s salary of $65,000.00; and
the wife’s motion was reasonable and likely in the final result. The fact that the husband has raised a triable issue which may turn out to be based upon “a brazen lie or completely exaggerated ought to affect the timing and scale of costs awarded”.[^1]
[11] Leave to appeal a costs award should only be granted under s. 133 of the Courts of Justice Act where the court is convinced that there are strong grounds to believe that the motions court judge erred in principle or if the costs award is plainly wrong.[^2]
[12] There is no doubt that the trend of recent decisions is against granting leave and that leave to appeal an award of costs should be used sparingly and only in very obvious cases.[^3]
[13] The question of whether the wife has satisfied the first part of the test that there are conflicting decisions, requires a review the principles that Stach J. relied upon in exercising his discretion to award costs.
[14] An exercise of discretion that leads to a different result based upon different factual circumstances cannot be considered a conflicting decision.[^4]
Conclusion
[15] My review of the reasons of Stach J. indicate that he has correctly applied the proper principles in arriving at his decision. His decision is well-reasoned and articulate and I can find no error in principle sufficient to constitute a legal error.
[16] The fact that other judges may have exercised their discretion differently is immaterial and does not satisfy this aspect of the Rule.
[17] I find that the wife has failed to meet the first part of the test set out in Rule 62.02(4)(a) of the Rules of Civil Procedure in that she has not shown that there are decisions that conflict with Justice Stach’s decision.
[18] The second branch of the test in Rule 62.02(4)(b) is conjunctive - it is incumbent for the wife to show that there is good reason to doubt the correctness of the decision and that the appeal raised matters of importance. Both aspects of the rule must be established in order for leave to appeal is granted.[^5]
[19] I find that the wife has also failed to satisfy this aspect of the Rule as well.
[20] For a matter to be of importance it must “…transcend the immediate interest of the parties and involve matters of public importance and matters relevant to the development of the law and the administration of justice.”[^6]
[21] While undoubtedly the award of costs is of considerable importance to the wife it in no way can be regarded as a matter of general or public importance justifying leave to appeal.
Disposition
[22] Leave to appeal is refused. The wife’s motion is dismissed.
[23] If the parties cannot agree on the disposition of the costs of this motion, they may make written submissions to me. The defendant’s submissions are to be filed within 10 days of the release of these reasons and the plaintiff’s response is to be delivered within 10 days thereafter. No reply submissions are to be filed without leave. The submissions shall include the requisite material that will permit me to fix the costs of the motion should I determine that costs are to be awarded.
The Hon. Mr. Justice G. P. Smith
Released: September 14, 2006
DIVISIONAL COURT FILE NO.: 06-000016-ML
Court File No: 05-FA-013855FIS (Toronto Action)
Court File No: 06-4328 (Kenora Action)
DATE: 2006-09-14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
WENDY LEE GALE,
Applicant (Appellant)
- and –
JOHN PAUL GALE,
Respondent (Respondent)
REASONS ON MOTION FOR LEAVE
Patrick Smith
Released: September 14, 2006
/mls
[^1]: Paragraph 16 of the Wife’s factum.
[^2]: Doung v. NN Life Insurance Co. of Canada (2001), 2001 24151 (ON CA), 141 O.A.C. 307; Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303; Yakabuski v. Yakabuski Estate (1998), 36 C.P.C. (2d) 189.
[^3]: Axelrod v. Betx Jacob, 1943 366 (ON SC), [1943] 2 D.L.R. 115; Bellissimo Excavating Ltd. v. Ding, [2004] O.C. No. 5276.
[^4]: Comtrade Petroleum Inc. V. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542; SLM Soft.com v. Rampart Securities (2005), 2005 41549 (ON SCDC), 78 O.R. (3d) 521.
[^5]: Greslik v. Ontario Legal Aid Plan (1998), 1988 4842 (ON SCDC), 65 O.R. (2d) 110.
[^6]: SLM Soft.com v. Rampart Securities, supra.