CITATION: JIA Development Inc. v. 2708320 Ontario Ltd. (Viceroy Homes), 2024 ONSC 6519
DIVISIONAL COURT FILE NO.: 213/24 DATE: 20241121
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MCSWEENEY, DAVIES, O’BRIEN, JJ.
BETWEEN:
JIA DEVELOPMENT INC., CB BRIDLE
Peter B. Cozzi, for the Appellant, JIA
PATH INC., and KINGSETT MORTGAGE
Development Inc.
CORPORATION
Andrea Gorys, for the Appellant, CB
Appellants
Bridle Path
– and –
2708320 ONTARIO LTD. c.o.b. as
Nafi Yujiao Zhou and Catherine Qin, for
VICEROY HOMES
the Respondent
Respondent
Brendan Bowles and Isa Dookie for the
Respondent, Fogler, Rubinoff LLP
HEARD at Toronto: November 21, 2024
REASONS FOR DECISION
O’Brien J. (Orally):
[1] The appellants seek to appeal a decision of Associate Justice Wiebe dated March 18, 2024 in which he declined to award costs against Fogler Rubinoff LLP under s. 86(1)(b)(i) of the Construction Act, R.S.O. 1990 c. C.30. Pursuant to that provision, the court may exercise its discretion to order costs against a person who represented a party to an action where the person “knowingly participated in the preservation or perfection of a lien, or represented a party at the trial of an action, where it is clear that the claim for a lien is without foundation, is frivolous, vexatious or an abuse of process, or is for a willfully exaggerated amount, or that the lien has expired.”
[2] There is a preliminary question as to whether leave is required for the appellants to bring the appeal. During the case management process and at today’s hearing, the appellants took the position that leave was not required. They submit s. 86 of the Construction Act makes entitlement to costs of an improperly brought lien action a substantive issue for which there should be a substantive right of appeal. They rely on s. 71 of the Construction Act, which provides that an appeal lies to the Divisional Court from a judgment under the Construction Act. In their submission, the provisions of the Construction Act supersede more general costs provisions of the Courts of Justice Act, R.S.O. 1990 c. C. 43 and Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[3] In case management directions, Justice Davies directed the issue of whether leave was required to be raised before the panel. This would allow the panel at the hearing to deal with all issues, including if leave was not required, and was more efficient than scheduling a preliminary motion to strike the notice of appeal.
[4] In our view, the appellants are required to obtain leave to bring their appeal. Section 133(b) of the Courts of Justice Act provides that “No appeal lies without leave of the court to which the appeal is to be taken where the appeal is only as to costs that are in the discretion of the court that made the order for costs.” The decision the appellants seek to appeal is only as to the claim for costs against Fogler Rubinoff, which were in the discretion of the court.
[5] Nothing in the Construction Act is inconsistent with this provision. Section 71 provides an appeal to the Divisional Court from a “judgment.” Subsection 50(2) of the Construction Act provides that the Courts of Justice Act and the rules of court apply to actions under Part VIII of the Act except to the extent of any inconsistency.
[6] The Construction Act does not define “judgment,” but the Rules of Civil Procedure do. Rule 1.03 defines a judgment to mean in relevant part “a decision that finally disposes of an application or an action on its merits.” We do not accept the appellants’ submission that the costs order in this case constitutes a judgment. It was an order that followed the result in the lien proceeding and not a separate action or application.
[7] Furthermore, s. 71 of the Construction Act does not address costs, whereas the [C]ourts of Justice Act expressly requires that leave be obtained from an order only as to costs that are in the discretion of the court. Subsection 86(1) of the Construction Act states that costs under that provision are in the discretion of the court.
[8] We conclude that leave to appeal from this costs order is required.
[9] Motions for leave to appeal in this court are usually heard in writing and no reasons are provided. Having reviewed the parties’ written submissions and heard the oral submissions of the appellants, we conclude the appellants have not met the test for leave to appeal in this case.
[10] Leave is denied and the appeal is therefore dismissed.
[11] As agreed by the parties, the appellants are to pay costs to Fogler Rubinoff in the amount of $22,000 all inclusive. The payment shall be made to Fogler Rubinoff’s counsel in trust.
O’Brien J.
I agree:
McSweeney J.
I agree:
Davies J.
Oral Reasons Released: November 21, 2024
Written Endorsement Released: November 25, 2024
CITATION: JIA Development Inc. v. 2708320 Ontario Ltd. (Viceroy Homes), 2024 ONSC 6519
DIVISIONAL COURT FILE NO.: 213/24 DATE: 20241121
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MCSWEENEY, DAVIES, O’BRIEN, JJ.
BETWEEN:
JIA DEVELOPMENT INC., CB BRIDLE
PATH INC., and KINGSETT MORTGAGE
CORPORATION
Appellants
– and –
2708320 ONTARIO LTD. c.o.b. as
VICEROY HOMES
Respondent
ORAL REASONS FOR DECISION
O’BRIEN J.
Oral Reasons Released: November 21, 2024
Written Endorsement Released: November 25, 2024