October 23, 2019 – Orders For Costs When Appeal Is Successful

“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. Cheung2009 ONCA 9 (CanLII)Hunt v. TD Securities Inc. (2003), 2003 CanLII 48369 (ON CA), 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.).”

Chiaramonte v. Chiaramonte, 2013 ONCA 641 (CanLII) at 41.