



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
    officers 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 judges 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] 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 partys argument that s. 133(b) of the
Courts
    of Justice Act
signals the Legislatures 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 judges 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 appellants
    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.


