Jordan Shael Green

This is a costs decision arising from an appeal of an order made under s. 490 of the Criminal Code.

The pawnbroker successfully obtained an order for return of a stolen diamond that had been seized by police during a criminal investigation.

The estate of the original owner appealed the order.

The Court of Appeal allowed the appeal.

Both parties subsequently sought costs of the appeal.

The court held that it lacked jurisdiction to award costs, as s. 683(3) of the Criminal Code expressly prohibits the allowance of costs to either the appellant or respondent on the hearing and determination of an appeal.

A pawnbroker brought an application under s. 490(7) and (9)(c) of the Criminal Code seeking return of a diamond seized by police during a criminal investigation.

The diamond had been stolen from the deceased and pawned to the pawnbroker, from whom police seized it.

The application judge granted the order without notice to the estate of the deceased, who had an ownership interest in the diamond.

The estate appealed, arguing it was entitled to participate in the application.

The Court of Appeal allowed the appeal, finding that although the pawnbroker met the statutory notice requirements by notifying the Attorney General, the application was made on an ex parte basis and the pawnbroker failed to make full and frank disclosure of material facts, including the estate's competing claim to the diamond.