Dated: 20020423 2002 SKCA 55 Docket: 496 THE COURT OF APPEAL FOR SASKATCHEWAN Before: Lane J.A. in chambers SEAGROVE CAPITAL CORPORATION and SHAUN SPELLISCY and DANIEL TAPP and LEADER MINING INTERNATIONAL INC. COUNSEL: Mr. R.A. Watson for the Appellants Mr. M.O. Laprairie, Q.C. for the Respondent DISPOSITION: On Appeal From: Q.B.G. No. 2340 of 1996, J.C. of Regina Application Heard: April 10, 2002 Application Dismissed: April 10, 2002 (orally) Written Reasons: April 23, 2002 Reasons By: The Honourable Mr. Justice Lane LANE J.A. (orally) [1] The proposed appellants applied to extend the time for filing a notice of appeal of a Court of Queen’s Bench trial judge’s order awarding costs to the proposed respondent payable by Spelliscy and Tapp, jointly and personally. They propose to appeal essentially on the basis the award was punitive and inordinately high. [2] had orally refused to grant the extension for the reason saw little chance of success on appeal. Counsel for the proposed respondent advised the court the cost award was based on costs thrown away after the trial judge ordered mistrial because of the prejudice caused by the proposed appellants’ address to the jury. Counsel further advised the Court there was an affidavit filed before the Queen’s Bench trial judge setting out the costs and expenses. [3] Subsequently, counsel for the proposed respondent filed the memorandum of argument for costs filed below. It did not contain an affidavit but did detail the expenses, fees and hours of work, some of which will be used at the new trial. Because there was no affidavit as claimed the proposed appellants argue there was no evidentiary foundation for the award and asked for rehearing of the application. [4] The parties have not taken out the order and thus have maintained jurisdiction to decide the matter. [5] Having read the material and the relevant portions of the Queen’s Bench file I am still of the view the proposed appellants would have little chance of success on appeal. Costs are a discretionary award and there was material on file upon which the trial judge could base his decision. [6] I note the proposed appellants failed to firstly apply to the trial judge to obtain leave to appeal as required by section 38 of The Queens Bench Act, 1998[1] which reads as follows: 38 Except with leave of the judge giving the judgment or making the order, the following judgments and orders are not subject to appeal: (a) judgments given or orders made by judge with the consent of the parties; (b) subject to the rules of court, judgments given or orders made by judge as to costs only that, by law, are left to the discretion of the judge. [7] The application is therefore dismissed with costs on double Column V. [1]S.S. 1998, c.Q.-1.01.
The proposed appellants applied to extend the time for filing a notice of appeal of an order awarding costs payable jointly and personally by Tapp and Spelliscy on the basis the award was punitive and inordinately high. HELD: The application was dismissed with costs on double Column V. The Court is still of the view the proposed appellants would have little chance of success on appeal. Costs are a discretionary award and there was material on file upon which the trial judge could base his decision. The appellants failed to first apply to the trial judge to obtain leave to appeal as required by Queen's Bench Act s.38.