Black v. Black, 2016 ONSC 1984

Black v. Black, 2016 ONSC 1984

CITATION: Black v. Black, 2016 ONSC 1984

DIVISIONAL COURT FILE NO. DC-15-60-00

DATE: 20160315

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

J. WILSON, C. HORKINS AND PERELL JJ.

BETWEEN:

Joyce Eileen Black Applicant

– and –

David Eldon Black Respondent

No one appearing for the Applicant No one appearing for the Respondent

Jeremy Glick, non-party appearing for the Appellant, Her Majesty the Queen in Right of Ontario

HEARD at Brampton: March 15, 2016

J. WILSON J. (ORALLY)

The Application:

1Her Majesty the Queen in Right of Ontario, a non-party, (“Ontario”) seeks an order to quash or set aside the April 22, 2015, order of Justice R.M. Thompson. He ordered costs payable by Ontario to the parties in this proceeding, without any notice to Ontario.

2Ontario was only involved in this case as providing staffing of the courtroom and courthouse where the matter was heard. While Justice Thompson was out of the courtroom, one of his staff was reassigned by court management to other duties in the Ontario Court of Justice. When court resumed, there was only one staff member to perform the role of both registrar and court reporter. There was a delay of approximately one hour while Justice Thompson looked into this issue. He ordered Ontario to pay $300 to Ms. Black and $100 to Mr. Black for the delay in the proceedings.

3Mr. and Mrs. Black, litigants in a family case when the staffing issue took place, are not participating in this appeal nor are they seeking to uphold the cost order made in their favour.

4Ontario does not request the costs of this appeal.

Leave to appeal

5Ontario argues that leave to appeal pursuant to rule 62.02(1) and (4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is not necessary as this is a final order against Ontario.

6Rule 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 confirms that leave to appeal a cost order is required:

Leave to appeal required

133. No appeal lies without leave of the court to which the appeal is to be taken,

(a) from an order made with the consent of the parties; or

(b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs.

7We are of the view that leave to appeal is required for any cost order either against a party or a non-party.

8Brad-Jay Investments Ltd. v. Szijjarto, 2006 42636 (ON CA), [2006] O.J. No. 5078 at para. 21 (C.A.) (“Brad-Jay Investments”), the Court of Appeal confirmed our view:

Leave to appeal a costs order will not be granted save in obvious cases where the party seeking leave convinces the court that there are “strong grounds upon which the appellate court could find that the judge erred in exercising his discretion”.

9As an order for costs was made without notice to Ontario, we are of the view that leave to appeal shall be granted since the requirements of rule 62.02(4) are met. There is good reason to doubt the correctness of the decision and the appeal raises matters of public importance. We find in these circumstances that the test in Brad-Jay Investments is met.

The Appeal

Standard of Review

10The principles outlined in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 apply, outlined at paras. 36 and 37:

Where the trial judge made some error of law or principle that can be identified independent of the judge's application of the law to the facts of the case. In these circumstances, the error of law is extricable from the questions of mixed fact and law in issue and must be separated out and reviewed on a standard of correctness.

Test to Set Aside a Costs Award

11In McNaughton Automotive Ltd. v. Co-Operators General Insurance Co., 2008 ONCA 597, 95 O.R. (3d) 365, Armstrong J.A. outlined the test for when a cost award should be set aside at para. 26:

As to the grounds upon which an appellate court should set aside a costs order, Arbour J. said in Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303 at para. 27: A court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong (Duong v. NN Life Insurance Co. of Canada (2001), 2001 24151 (ON CA), 141 O.A.C. 307, at para. 14). [Emphasis added.]

Conclusions

12We find that Justice Thompson erred in principle by making a cost order without notice against Ontario. To make a cost order in these circumstances is plainly wrong.

13For these reasons leave to appeal is granted, and the appeal is granted. The cost order of Justice Thompson in favour of the parties in this proceeding is set aside.

___________________________ J. WILSON J.