Background
Donna Lee Smith appealed from an order of the Superior Court of Justice. She received notice that her appeal would be dismissed for delay if not perfected by the deadline and brought a motion for an extension of time. The motion judge granted the extension but declined to award costs in her favour, commenting that while her appeal appeared weak on the merits, she should not be denied her right to appeal for a relatively minor procedural delay.
Smith then brought a motion for review before a panel of the Court of Appeal, seeking to vary the costs order and obtain $15,000 from the responding parties, to delete the motion judge’s unfavourable comments about her appeal’s strength, and to challenge the court staff’s handling of her file. She argued the responding parties had acted unreasonably in not consenting to her extension motion.
The Court’s Holding
The Court of Appeal dismissed Smith’s motion for review entirely, finding no reversible error in the motion judge’s decision. Applying the standard under s. 7(5) of the Courts of Justice Act, the court emphasized that costs decisions are highly discretionary and entitled to deference. A reviewing panel may only interfere if the motion judge failed to identify applicable principles, erred in principle, or reached an unreasonable result.
The court rejected Smith’s request to delete the motion judge’s comments from the reasons, stating no authority exists for such a deletion and that the strength of the appeal was a legitimate and relevant consideration for the motion judge’s discretion. The court found the motion judge properly granted an indulgence (the extension) despite identifying weak merits and appropriately declined to award costs in those circumstances. The court dismissed as unfounded Smith’s allegations of inappropriate behaviour by court staff.
As a cost consequence, the court ordered Smith to pay $1,500 all-inclusive to Unifund Assurance Company and Johnson Inc.
Key Takeaways
- Motion judges possess broad discretion in awarding costs on procedural motions, and appellate review is highly deferential unless a reversible error is shown
- An extension of time to perfect an appeal may be granted based on equitable considerations despite weak merits of the underlying appeal
- The strength of an appellant’s case is a relevant factor in determining whether costs should follow on procedural motions
- Judicial reasons, including adverse comments about a party’s position, cannot be deleted or redacted retroactively at a party’s request
- Unfounded allegations of court misconduct will be dismissed without detailed consideration
Why It Matters
This decision reinforces the principle of deference to motion judges’ discretionary decisions and clarifies the intersection between appellate indulgence and cost consequences. For litigants and practitioners, it establishes that procedural relief granted on equitable grounds does not guarantee a favourable costs award, particularly when the underlying appeal appears weak. Self-represented appellants should understand that seeking extensions or other procedural accommodations does not shield them from potential costs liability.
The decision also makes clear that judicial reasons are final documents: comments about case strength, even if unfavourable to a party, form part of the record and cannot be edited out simply because a party dislikes them. This principle protects judicial independence and the integrity of appellate records across Canadian courts.