COURT OF APPEAL FOR ONTARIO
CITATION: Mullin v. Lagace, 2015 ONCA 757
DATE: 20151106
DOCKET: M45554 (C60974)
Hoy A.C.J.O., MacFarland and Lauwers JJ.A.
BETWEEN
Brenda Mullin
Plaintiff (Appellant)
and
Randy Lagace and Allstate Insurance Company of Canada
Defendant (Respondent)
Todd J. McCarthy and Sophia Chaudri, for the moving party Allstate
A. Patrick Wymes, for the respondent
Heard: November 2, 2015
Motion to quash an appeal from the decision of R. Dan Cornell J. of the Superior Court of Justice, dated August 5, 2015, with reasons reported at 2015 ONSC 4267.
ENDORSEMENT
[1] The appellant, Brenda Mullin, was injured in a car accident as a passenger in a vehicle driven by Randy Lagace. She added her own insurance company, the respondent Allstate, as a defendant when she discovered that Mr. Lagace was uninsured. The action settled before trial for $190,000 plus costs to be agreed upon or assessed.
[2] At the assessment, Ms. Mullin sought $528,522.25 in costs and $20,000 for disbursements. The assessment officer issued a Certificate of Assessment of Costs in the amount of $231,137.93.
[3] Allstate appealed to the Superior Court of Justice under s. 17(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and under r. 62.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194. The appeal judge allowed the appeal and substantially reduced the costs award to $102,000 all-inclusive. Ms. Mullin wishes to appeal that decision to this court.
[4] Allstate moves to quash the appeal, arguing that the appeal concerns costs, for which leave to appeal must be sought under s. 133(b) of the Courts of Justice Act. This provision applies, says counsel, because the whole appeal is about costs.
[5] Counsel for the responding party, Ms. Mullin, notes that in Rabbani v. Niagara (Regional Municipality) 2012 ONCA 280 this court heard an appeal of the order of a Superior Court judge on an appeal from a certificate issued by an assessment officer; and there is no evidence that leave to appeal was sought or obtained. The appellant asserts that Rabbani is uncontroverted authority that the appeal is as of right. However, we note that the jurisdictional point was not directly addressed by the court.
[6] Section 133 of the Courts of Justice Act provides: “No appeal lies without leave of the court to which the appeal is to be taken… (b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs.”
[7] The moving party argues that the appeal judge found the assessment officer’s decision to be wrong in principle and substituted his own decision, which thereupon became a discretionary decision to which s. 133 applies.
[8] When appeals come to this court, if the appeal relates only to costs, leave is required. When the appeal is both substantive and as to costs, leave is required for the costs component. Had this case proceeded to trial, and had the trial judge fixed costs, then an appeal of the trial judge’s costs decision would have been subject to the leave requirement under s. 133. The moving party submits that it would be anomalous and inconsistent for an appeal of a decision of an appeal judge from the certificate of an assessment officer to be permitted to circumvent the leave requirement altogether.
[9] The moving party further argues that the appeal should be to the Divisional Court, and not to the Court of Appeal, based on the old authority of Rickwood et al. v. The Town of Aylmer, 1955 115 (ON CA), [1955] O.R. 470 (C.A.), 1955 CarswellOnt 60. The case involved an appeal from a decision of a High Court judge disposing of an appeal from a taxation of party-and-party costs. The argument was that such an appeal was “interlocutory” in that the “order was one made in working out the judgment,” and not one that “finally disposed of the whole or some part of the matter”: CarswellOnt paras. 11 and 16. At the time there was no Divisional Court. The Judicature Act, R.S.O. 1950, c. 190, s. 25 required leave to appeal interlocutory matters, and the Act did not address appeals from costs awards directly. Speaking for the court, Aylesworth J.A. found, at para. 18:
I conclude that we are now bound to hold, and I do hold, that the order of a Judge of the High Court pronounced in review of a taxation of party-and-party costs is an interlocutory order, and therefore not appealable to this Court without leave.
[10] The moving party argues that the appeal is therefore to the Divisional Court with leave under s. 19 of the Courts of Justice Act since, according to Rickwood, the decision is interlocutory.
Analysis
[11] Since the appeal of a costs award of a trial judge would come directly to this court with leave, there seems to be no good reason why an appeal of an order of the Superior Court of Justice, on appeal from the Certificate of an Assessment Officer, should go to the Divisional Court with leave, and then possibly to this court with further leave.
[12] We are persuaded by the moving party’s argument that s. 133(b) of the Courts of Justice Act signals the Legislature’s intent that costs appeals only be heard with leave of the court that would hear the appeal. The appeal in question is entirely about costs and therefore falls squarely within the reach of s. 133(b).
[13] The appeal route for costs appeals is now set out expressly in s. 133(b) of the Courts of Justice Act. In our view, the addition of s. 133(b) has changed the legal analysis, and Rickwood has been superseded. A simple and consistent approach would be preferable. We consider the appeal judge’s decision to be a final order relating to costs and therefore appealable to this court with leave under s. 133 of the Courts of Justice Act, since the amount in issue exceeds the threshold of $50,000 referred to in s. 19(1.2)(a) of the Courts of Justice Act.
[14] The motion to quash the appeal is allowed without prejudice to the appellant’s right to seek leave of this court to appeal in the usual way, in writing pursuant to Rule 61.03.1 (1). The moving party does not seek costs of this motion.
“Alexandra Hoy A.C.J.O.”
“J. MacFarland J.A.”
“P. Lauwers J.A.”