Hofer v Hofer, 2018 MBCA 43

Citation: Hofer v Hofer, 2018 MBCA 43 Date: 20180425 IN THE COURT OF APPEAL OF MANITOBA Docket: AI18-30-09014 ) BETWEEN : ) ) RODNEY HOFER ) ) (Applicant) Applicant ) ) K. D. Toyne - and - ) for the Applicant ) CORNY HOFER JR. ) ) D. G.

Douglas (Respondent) Respondent ) for the Respondents ) - and - ) ) Chambers motion heard: Docket: AI18-30-09015 ) March 15, 2018 BETWEEN : ) ) RODNEY HOFER ) Decision pronounced: ) April 25, 2018 (Applicant) Applicant ) ) - and - ) ) GERALD HOFER ) ) (Respondent) Respondent ) BEARD JA [ 1 ] The applicant has filed a motion in each proceeding for an order permitting him to file a notice of appeal in each dealing only with the costs awarded in the lower Court, without first obtaining leave pursuant to section 90(1) (

b) of The Court of Queen’s Bench Act , CCSM c C280, from the Queen’s Bench judge who made the order (the judge). [ 2 ] While I was initially of the view that, due to the restricted jurisdiction of a judge sitting in chambers as set out in section 7(1) of The Court of Appeal Act , CCSM c C240, this matter should be referred to a panel of this Court, having done some further research, I find that the issue has already been determined by this Court.

As a result, I can hear and determine these motions in my capacity as a judge sitting in chambers. [ 3 ] The applicant attempted to file appeals in these two matters to appeal only the costs that were awarded by the judge. When he presented his appeals for filing, he was advised that they would not be accepted unless he either obtained leave to appeal from the judge or leave from this Court to file the appeals. [ 4 ] The requirement for leave is found in section 90(1) (

b) of The Court of Queen’s Bench Act , which states as follows: Consent order, costs not appealable 90(1) An order that is made (

a) with the consent of the parties; or

(

b) as to costs only; is not subject to an appeal except by leave of the judge making the order. [ 5 ] While the appeals are limited to costs only, the orders to be appealed that contain the costs provisions are not limited to costs only; they each contain a substantive provision as well. Thus, the applicant’s position is that, not being an order as to costs only, it is not an order that comes within the wording of section 90(1)(

b) and, therefore, the requirement for leave is not engaged. [ 6 ] The applicant argues that a review of corresponding legislation in several Canadian jurisdictions shows that the leave requirement can be tied to either the contents of the order being appealed or to the grounds of appeal. He states that, according to the Manitoba legislation, the requirement to obtain leave is determined by the contents of the order to be appealed, wherein leave is only required where the order, itself, is limited to costs only. He contrasts that with the corresponding Ontario legislation, being

section 133 of the Courts of Justice Act , RSO 1990, c C.43, which states: Leave to appeal required 133 No appeal lies without leave of the court to which the appeal is to be taken, (

a) from an order made with the consent of the parties; or (

b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs. [ 7 ] In this legislation, leave is required where the only ground of appeal is that of costs. The applicant’s position is that this is the

interpretation being adopted by this Court; however, it is not supported by the wording of the Manitoba legislation that is the source of the requirement. [ 8 ] While I have some sympathy for his position, which seems, on the wording of the provisions, to be logical, that argument was made and rejected by this Court in J-Sons Inc v N M Paterson & Sons Ltd , 2004 MBCA 25 .

This Court, in a unanimous decision, stated (at paras 11-13): On the question of leave that is required on an appeal against an order as to costs alone, the applicants have this to say: Leave is only required when the order under appeal deals with nothing but costs. The Order of Darichuk J. was not an order as to costs only. It was an order finding a party in contempt as well as an order as to costs. Sec. 90(1)(b) (of The Court of Queen’s Bench Act ), it is respectfully submitted, should not be read as stating otherwise. Piggybacking (the Court’s expression at s. 24) is not an issue at all.

No leave was required to appeal the order as to costs because it was not an order as to costs only. That argument also makes no sense. As the defendant points out in its memorandum of argument, “(r)arely, if ever, is an order made that deals with the issue of costs only. An award of costs is secondary to the matter in dispute before the court.” The applicants’ argument overlooks the long-established legal principle upon which s. 90(1) (

b) of The Court of Queen’s Bench Act is founded – leave is required where an appeal relates only to an order as to costs, whether or not other substantive orders are contained in the judgment in which the order as to costs is found. See Harris v. Aaron (1877), 4 Ch. D. 749 (C.A.) , in which it was held that the court had no authority to vary an order as to costs where the appellant was content with the rest of the order, and Crystall v. Crystall , [1963] 2 All E. R. 330 (C.A.) , at pp. 333-34 . [ 9 ] In my view, the applicant’s argument has already been made and dismissed by this Court.

Thus, I am dismissing his motions to permit him to file his notices of appeal without first obtaining leave from the judge who made the order. If the applicant wishes to appeal this decision, he should notify the Court that the appeal will have to be heard by a panel of five judges. [ 10 ] I am prepared to grant the applicant’s motions to extend the time for filing his notices of appeal to give him time to apply to the judge pursuant to section 90(1) (

b) of The Court of Queen’s Bench Act for leave to appeal or, alternatively, to appeal this decision. I will extend the time to file the notices of appeal to June 28, 2018. I will remain seized to deal with any motion for a further extension, if this issue has not been resolved by that date. [ 11 ] The costs of these motions will be costs in the appeal.

JA