Wednesday, October 23, 2013

Leave to appeal for costs is not required if the substantive disposition is different from that of the decision under appeal

Chiaramonte v. Chiaramonte, 2013 ONCA 641:

The husband also asks this court to set aside the costs order of Snowie J. dated February 1, 2013, which ordered costs in favour of the wife on a full indemnity basis in the amount of $90,616.91 for fees and $10,724.89 for disbursements. The wife argues that this court cannot consider the costs order of Snowie J. without leave to appeal. However, the general principle is that, when an appeal is allowed, the order for costs below is set aside and the costs below and the costs of the appeal are awarded to the successful appellant: St. Jean (Litigation Guardian) v. Cheung, 2009 ONCA 9; Hunt v. TD Securities Inc. (2003), 43 C.P.C. (5th) 211 (Ont. C.A.). Leave to appeal is not required if the substantive disposition is different from that of the decision under appeal: Dines v. Harvey A. Helliwell Investments Ltd., [1992] O.J. No. 2107 (Ont. C.A.). Accordingly, the motion judge's costs order is set aside. However, given that the husband does not seek an order for costs below, and because the result of this appeal leaves the wife with partial success on the motion, no costs below are awarded to the husband.

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