What is the current state of the law on leave to appeal from an order for special costs made separately from the substantive order?
British Columbia, Canada
The following excerpt is from Smithies Holdings Inc. v. RCV Holdings Ltd., 2016 BCCA 311 (CanLII):
The circumstances on this application have not been the subject of decision by a judge in chambers, to my knowledge. Circumstances in two cases I have been referred to, straddle the issue posed by this application. On one side is Bradshaw v. Stenner, 2012 BCCA 481, in which the appeal was from an order for special costs made separately from the substantive order. The main appeal was already heard when the issue of leave came before the court. Mr. Justice Hinkson held that leave to appeal was required. A division of this court, on a review, concluded he was correct.
On the other side is Popat v. MacLennan, 2015 BCCA 198, in which the respondent brought a cross-appeal on costs before the main appeal was heard. Mr. Justice Harris concluded the order of special costs was related to the conduct of the petition that led to the order appeared as of right. He said:
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