



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Almasri v. Saska,









2019 BCCA 10




Date: 20190114

Docket: CA45059

Between:

Badia Almasri

Respondent

(Claimant)

And

Laszlo Saska,
Terezia Rehak and 0774925 BC Ltd.

Appellants

(Respondents)

Corrected
Judgment:  The text of the judgment was amended at
paragraphs 1 and 8 on February 15, 2019.




Before:



The Honourable Chief Justice Bauman

The Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Hunter




Supplementary
Reasons to
Almasri v. Saska,
2018 BCCA 351






The Appellant appearing in person:



L. Saska





Counsel for the Respondent:



K.J. Hauer





Place and Date of Hearing:



Victoria, British
  Columbia

September 11, 2018





Place and Date of Judgment:



Vancouver, British
  Columbia

September
  12, 2018





Written Submissions received:



December 5 and 12,
  2018







Date of Supplementary Judgment:



January 14, 2019








Summary:

The appellant sought leave
to appeal a costs order but the application was dismissed. An application to
review the leave judgment was also dismissed. The respondent applies for costs.
Held: The respondent is entitled to costs of both the unsuccessful leave
application and the review application.

Supplementary Reasons of the
Court

[1]

On June 11, 2018, Justice Savage, sitting as a single judge in chambers,
heard and dismissed an application by Laszlo Saska and Terezia Rehak for leave
to appeal an order for costs made in the Supreme Court of British Columbia. Mr. Saska
and Ms. Rehak applied pursuant to s. 9(6) of the
Court of Appeal Act,
R.S.B.C.
1996, c. 77,

for an order discharging or varying the order of
Justice Savage. That application was heard by this division on September 11,
2018 and dismissed on September 12, 2018.

[2]

In keeping with the usual practice of this Court, neither the judgment
of Savage J.A. nor the review judgment of this Court addressed the question of
costs. The respondent now applies for costs of both applications.

[3]

Costs in this Court are normally governed by s. 23 of the
Court
of Appeal Act
, which states that:

Unless the court or a justice
otherwise orders, the party who is successful on an appeal is entitled to costs
of the appeal including the costs of all applications made in the appeal.

[4]

In this case, however, the appeal was never properly brought, because
leave to appeal was required and was denied. Although Mr. Saska is
identified as the appellant in the style of cause, it would be more accurate to
characterize him as an applicant. As the appeal was not perfected, there are no
costs of the appeal to allocate. What is left are the costs of two
applications, the leave application before Savage J.A. and the review
application before this division.

[5]

The usual rule is that an unsuccessful applicant for leave to appeal
will be required to pay the costs of the application. That rule applies unless
there is good reason to depart from it:
Cosgrove v. L & C Canada Coastal
Aviation Inc
., 2009 BCCA 397 at para. 3. We can see no reason to
depart from the usual rule in this case. Although the order of Savage J.A. was
entered without a reference to costs, this Court has the jurisdiction under
s. 9(6) of the
Court of Appeal Act
to vary the order of Savage
J.A. in relation to costs, and we consider it appropriate do so:
Pearlman v.
Atlantic Trading Company Ltd
., 2011 BCCA 183. The respondent should have
her costs of the unsuccessful leave application.

[6]

In our view, the same principle should apply to the costs of an
unsuccessful application to review an order dismissing an application for leave
to appeal. Costs should be awarded to the successful respondent unless there is
good reason to make some other order. In this case, we see no reason to depart
from the usual rule.

[7]

Submissions were made to us concerning other applications made prior to
the order made by this division, but we do not consider it appropriate for this
division to deal with costs of those applications.

[8]

For these reasons, we order that costs of the application before Savage
J.A. and the review application before this division be paid by Mr. Saska and
Ms. Rehak to the respondent at Scale 1.

The
Honourable Chief Justice Bauman

The
Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Hunter


