Test for leave to appeal

Johal v. Virdi, 2011 BCCA 412, deals with leave applications in a costs context. While arising under British Columbia legislation the case has useful language:

Leave to appeal an order respecting costs only

[2]               Under s. 7(2)(b) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, leave is required to appeal an order respecting costs only.  An order respecting costs only generally involves the exercise of discretion and therefore attracts limited appellate review.  The burden an applicant faces in establishing the foundation for granting leave to appeal such an order is an onerous one: see Oliveira v. McIntyre, [1998] B.C.J. No. 1682 (Q.L.) (C.A.) (Donald J.A. in Chambers).  A trial judge has a broad discretion with respect to cost awards and an appellate court will not interfere with the exercise of that discretion short of misdirection on a matter of legal principle or a decision so clearly wrong as to amount to an injustice:  Seminoff v. Seminoff, 2007 BCCA 403 (CanLII), 2007 BCCA 403 (Low J.A. in Chambers) and Raffele v. Janzen, [1989] B.C.J. No. 1733 (Q.L.) (B.C.C.A.).

[3]               On this application, some of the points on which the defendants seek leave appear to call into question the judge's findings of fact.  The standard of review that applies to findings of fact is well established.  In Toneguzzo-Norvell v. Burnaby Hospital, 1994 CanLII 106 (SCC), [1994] 1 S.C.R. 114 at p. 121-122, McLachlin J. stated (for the Court):

It is by now well established that a Court of Appeal must not interfere with a trial judge's conclusions on matters of fact unless there is palpable or overriding error.  In principle, a Court of Appeal will only intervene if the judge has made a manifest error, has ignored conclusive or relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions from it: [citations omitted].  A Court of Appeal is clearly not entitled to interfere merely because it takes a different view of the evidence.  The finding of facts and the drawing of evidentiary conclusions from facts is the province of the trial judge, not the Court of Appeal.

[4]               Housen v. Nikolaisen, 2002 SCC 33 (CanLII), 2002 SCC 33, [2002] 2 S.C.R. 235, affirmed that standard and held, beginning at para. 21, that the same standard applies with respect to inferences a trial judge draws from findings of fact.  In that regard, Iacobucci and Major JJ. stated (for the majority):

[21]      … the standard of review is not to verify that the inference can be reasonably supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, which implies a stricter standard.

[22]      … Although we agree that it is open to an appellate court to find that an inference of fact made by the trial judge is clearly wrong, we would add the caution that where evidence exists to support this inference, an appellate court will be hard pressed to find a palpable and overriding error. As stated above, trial courts are in an advantageous position when it comes to assessing and weighing vast quantities of evidence.  In making a factual inference, the trial judge must sift through the relevant facts, decide on their weight, and draw a factual conclusion.  Thus, where evidence exists which supports this conclusion, interference with this conclusion entails interference with the weight assigned by the trial judge to the pieces of evidence.

(Emphasis removed.]

[5]               In Barker v. Hayes, 2007 BCCA 51 (CanLII), 2007 BCCA 51, 64 B.C.L.R. (4th) 90, at para. 14, Smith J.A. observed: "The purpose of requiring leave to appeal is to weed out cases that do not warrant the time and attention of the Court".  The criteria or factors that are considered when leave is sought to appeal an interlocutory order serve that purpose.  The same criteria may be applied when leave is sought to appeal an order as to costs only.  As stated in Power Consolidated (China) Pulp Inc. v. B.C. Resources Investment Corp. (1988), 19 C.P.C. (3d) 396 (B.C.C.A.) those criteria include:

(1)      whether the point on appeal is of significance to the practice;

(2)      whether the point raised is of significance to the action itself;

(3)      whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and

(4)      whether the appeal will unduly hinder the progress of the action.

[6]               Where the order sought to be appealed is very specific to the action, an appeal would have limited significance to the practice generally:  Gulamani v. Chandra, 2009 BCCA 206 (CanLII), 2009 BCCA 206 at para. 15.