Trifield Construction Company Ltd. v. HC Matcon Inc. et al., 2014 ONSC 3318 (Ont. Div. Ct.)
RE: whether the Divisional Court has jurisdiction to hear an Appeal from a costs award in a motion before that Court
In this action we successfully opposed a motion by a plaintiff to for leave to appeal a costs award of the Divisional Court on a prior motion. The Court found that the Motion Judge’s award should be entitled to deference but, more importantly, dismissed the motion for lack of jurisdiction. First, the costs order was interlocutory and, as it was made in a construction lien proceeding, it could not be appealed from pursuant to s. 67(2) of the Construction Lien Act, R.S.O., 1990 c.C30. Second, the moving party had moved for leave to appeal, when it should have moved to vary or amend the costs order as it was made on a motion to quash which was before the Divisional Court.