DATE: 20010222

DOCKET: C31438, C32935, C32938 and C32939

COURT OF APPEAL FOR ONTARIO

CATZMAN, BORINS AND FELDMAN JJ.A.

BETWEEN:

THE ESTATE OF MANISH ODHAVJI, DECEASED, PRAMOD ODHAVJI, BHARTI ODHAVJI AND RAHUL ODHAVJI Plaintiffs (Appellants) / Respondents by cross-appeal

and

MARTIN WOODHOUSE, PHILIP GERRITS, OFFICER JOHN DOE, OFFICER JANE DOE, METROPOLITAN TORONTO CHIEF OF POLICE DAVID BOOTHBY, METROPOLITAN TORONTO POLICE SERVICES BOARD AND HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Defendants (Respondents) / Appellants by cross-appeal

Counsel: Julian N. Falconer and Richard Macklin for the Estate of Manish Odhavji et al K. McGivney and Cheryl Woodin for Martin Woodhouse and Philip Gerrits R. Mackay for David Boothy and The Metropolitan Toronto Police Services Board John Zarudny and T. Harrison for Her Majesty the Queen in Right of Ontario

Heard: April 5 and 6, 2000 On appeal from the judgment of Day J. dated December 30, 1998.

SUPPLEMENTARY REASONS

BORINS J.A.:

[1] In my reasons for judgment released on December 15, 2000, Feldman J.A. dissenting, the appeal of the Estate of Manish Odhavji and the other plaintiffs was dismissed with costs, as were the appeals of Chief Boothby and the Metropolitan Police Services Board. The appeals of Woodhouse, Gerrits and Her Majesty the Queen in Right of Ontario (“Ontario”) were allowed with costs. On the argument of the appeal, the parties did not address costs.

[2] Subsequent to the release of the court’s reasons for judgment, counsel for the parties obtained permission to make written submissions respecting costs. Submissions have now been received raising the disposition of costs in the courts below, namely, costs of the motions decided by Day J. from which this appeal was taken, and costs of the motions for leave to appeal to the Divisional Court by Woodhouse, Gerrits and Ontario. Wright J. granted leave to appeal and reserved the costs of the motions to the panel hearing the appeal. By order of Laskin J.A., all appeals were ordered to be heard together by this court.

[3] In my reasons of December 15, 2000, the costs of the motions before Day J. and Wright J. were not dealt with. After considering the submissions of the parties, I would award Woodhouse, Gerrits and Ontario their costs of the motion before Day J. and of their motions for leave to appeal to the Divisional Court, in addition to their costs of the appeal.

[4] We were informed by counsel for the plaintiffs and Chief Boothby and the Metropolitan Police Services Board that they had come to an agreement as to costs. Given the divided success of the appeals affecting these parties, they have agreed that no costs be awarded, as among them, of the motion before Day J. and the appeal.

[5] The disposition of costs in paragraphs 57 and 58 of my earlier reasons is varied accordingly.

Released: February 22, 2001

“S. Borins J.A.”

“I agree M. A. Catzman J.A.”