There were four substantive decisions of the Court of Appeal last week.
Two were family law decisions. In Climans v. Latner, the Court confirmed that parties can be “spouses” for the purposes of spousal support under the Family Law Act even if they keep separate residences. The trial judge ordered over $50,000 per month in support for an indefinite period, having found that the “Rule of 65” applied. The Court of Appeal agreed that there was an entitled to support, but disagreed that the Rule of 65 applied based on the trial judge’s findings of fact. Accordingly, it reduced the duration of support from indefinite to ten years.
One decision related to a deceased’s intentions as to whether a loan made to her daughter would be forgiven upon her death or repayable to her estate. The other decision was a motion for leave to appeal a costs order arising out of litigation relating to a mortgage financing that did not materialize.
Auciello v. CIBC Mortgages Inc., 2020 ONCA 553
[Lauwers, Brown and Nordheimer JJ.A.]
Counsel:
VA, acting in person
Onofrio Ferlisi, for the responding party CIBC Mortgages Inc.
Amanda Jackson, for the responding party Home Trust Company
Keywords: Civil Procedure, Leave to Appeal, Costs, Adjournments, Colistro v. Tbaytel, 2019 ONCA 197, Carroll v. McEwan, 2018 ONCA 902, McNaughton Automotive Limited v. Co-operators General Insurance Company, 2008 ONCA 597, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9
Facts:
The moving party sought leave to appeal the costs order in the court below following a motion for summary judgment in a dispute regarding a failed mortgage financing.
Issues:
- Should this motion be adjourned?
- Should leave to appeal the costs order be granted?
Holding:
Motion dismissed.
Reasoning:
- No.
- No. The test for leave to appeal an order as to costs is stringent. Leave to appeal will not be granted save in obvious cases where the party seeking leave convinces the court there are strong grounds upon which the court could find that the judge erred in exercising his discretion. This approach is consistent with the principle that a court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong.
The moving party’s original submission to the court below that the responding parties’ requests were just too high is a submission losing parties often make, but the costs decision is conventional in its expression and the amounts awarded in light of the amount at issue are not obviously disproportionate. The moving party pointed to no error in principle or in fact that influenced the result.
The moving party submitted that the delay in and of itself caused him an injustice. However, initiating the machinery of the civil justice system as he did does not come cost free to those who do so. Nothing in this case proceeded with alacrity. The request for the mortgage refinancing was made in January 2010. The lawsuit was started in January 2012. An Amended, Fresh as Amended Statement of Claim was served in May 2016, and the summary judgment motion was argued and decided in April 2017. The appeal was argued and decided in April 2018. When the motion judge’s oversight in not issuing the costs decision was brought to her attention in June 2019, she decided it in October 2019. Then came this motion for leave. While the delay in the motion judge’s costs decision is regrettable, that does not, of itself, raise strong grounds upon which the Court could find that the motion judge erred in exercising her discretion.
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