Court File and Parties

Court File No.: 2860 999 08 0414/0415 Date: March 16, 2012

Ontario Court of Justice

(Central East Region)

Between:

RICHARD VALLANCE and WEB-TECH SAFETY PRODUCTS Richard Vallance for the Appellant

THE CORPORATION OF THE CITY OF PICKERING D.S. Reiter, Counsel for the Respondent

Ruling on Costs

BELLEFONTAINE, J:

Decision

[1] During the hearing of the Appeal in this matter the issue of costs were reserved. I have been asked to fix costs against the appellants pursuant to Section 129 (1) of the Provincial Offences Act and received written submissions from the parties. For the reasons that follow I decline to exercise my jurisdiction to award costs.

[2] The appellants appealed their convictions pursuant to the Building Code Act and the sentences imposed of fines totaling $47,500.00 exclusive of the additional victim fine surcharge. I upheld the convictions (see [2011] O.J. No. 6107), but reduced the fines to a total of $21,000.00 exclusive of the additional victim fine surcharge. Unbeknownst to me, the Respondent city, in an effort to avoid the costs of conducting the appeal had made an offer to settle the appeal for $21,000.00 on a reduced number of convictions.

[3] Solicitor and client costs of $18,258.00 were incurred by the City following their offer to settle in order to defend the appeal.

Legal Principles

[4] Cost awards are an exception in Provincial Offences litigation, which are intended to be informal proceeding in which lay persons can participate as litigants; see R. v. Cox Construction (2009) Carswell Ont. 8874 and R. v. Felderhof, [2003] O.J. No. 393 and R. v. Garcia, [2005] 195 O.A.C. 64 and R. v. Wells [2003] O.J. No. 2025.

[5] I do not consider this case to be an exceptional one that merits departing from the rule that each side should bear their own costs. The appeal was not meritless and bad faith or impropriety cannot be attributed to either party. Counsel for the City is to be commended for taking steps to resolve the matter and serving an offer to settle to further encourage a resolution. However, I do not consider the appellant's lack of success at obtaining a better result than the offer to settle served on them to be functionally different from their attaining no success at all on the appeal, in which case they would equally have not normally been liable for costs.

As stated by Justice Lamer in R. v. C.A.M. (1996), 105 C.C.C. 3d 327 at para. 97:

"The prevailing convention of criminal practice is that whether a criminal defendant is successful or unsuccessful on the merits of the case, he or she is generally not entitled to costs".

Analysis and Conclusion

[6] While I accept that the costs accrued have in the end result been completely unnecessary, the City is not in the position of a civil litigant. In their position as prosecutor under the Building Code Act, they do not win or lose cases. They conduct the prosecutions and make decisions respecting the prosecutions in the public interest to ensure compliance with the Act. Defendants are entitled to rely on the presumption of innocence and burden on the Crown and pursue their rights to trial without being punished for doing so and similarly should be equally entitled to pursue their appeal remedies without punitive cost sanctions being imposed in the absence of mala fides on their part. Both parties chose to obtain senior specialists in municipal law in this matter to represent them as opposed to appearing on their own behalf as they could have done. I do not consider that any of the parties should be prejudiced by virtue of the other party having chosen to retain highly paid counsel, when litigants in identical cases where the parties chose to represent themselves or to be represented by agents would not have to face similar significant financial repercussions to exercising their appeal rights.

[7] Accordingly the application for costs is dismissed. Both sides shall bear their own costs.

P.L. Bellefontaine, Justice