Judges may be reluctant to let procedural errors stand in the way of what they perceive as justice. But that is not to say they do not notice when significant procedural errors occur. The Ontario Court of Appeal’s recent decision in Knew Order Co. Ltd. v. 2291955 Ontario Inc., 2013 ONCA 559 demonstrates as much.

The appellant sought to set aside a declaration which had been made in the context of an interlocutory motion. The Court first satisfied itself that it had jurisdiction and ought to exercise it:

[1]          Although the appellants may have erred in the procedure followed to set aside the declaration contained in para. 2 of the order of Chapnik J., dated May 22, 2012, both parties agree that that declaration is a final order and, if made in error, is subject to review in this court.

[2]          The jurisdiction and propriety of having made the declaration in the context of an interlocutory motion has been fully argued on this appeal. Thus, in our view, it is in the interest of justice that we deal with the issue despite the appellants’ procedural errors. The only prejudice that might be suffered by the respondent is with respect to costs.

The Court allowed the appeal, holding that the impugned declaration had not been sought by the respondent, should not have been granted on an interlocutory motion on a preliminary record, and “deprived the appellants of a substantive defence and did so at a preliminary stage of the proceeding without affording the appellants the opportunity to prepare a complete record” (para. 3).

Accordingly, the declaration was set aside. But the appellants’ procedural errors (which were not specified) nonetheless ended up costing the appellants – quite literally:

[5]          In our view, this appeal stems mainly from procedural errors committed by the appellants. Accordingly, we would not interfere with the costs below.  We are also of the view that the costs of the appeal ought to be awarded to the respondent fixed in the amount of $7000, inclusive of disbursements and applicable taxes, even though the respondent was not successful on appeal.