DATE: 20010219

DOCKET: C30682

COURT OF APPEAL FOR ONTARIO

BORINS, MACPHERSON AND SHARPE JJ.A.

BETWEEN: )

MICHAEL ONIEL ) Michael Oniel ) for the appellant (Plaintiff/Appellant) )

and )

JACK MARKS, CHIEF OF POLICE OF ) Andrew M. Stikuts THE MUNICIPALITY OF ) for the respondents METROPOLITAN TORONTO POLICE ) FORCE, THE ESTATE OF ) JAMES HUGHES (now deceased) and ) MARK HEGENAUER ) (Defendants/Respondents) ) Heard: June 2, 2000

On appeal from the judgment of Justice William P. Somers dated June 12, 1998 and September 22, 1998.

SUPPLEMENTARY REASONS

BORINS J.A.:

[1] In my reasons for judgment released on January 18, 2001, MacPherson J.A. dissenting, the appellant was awarded his costs of the trial and the appeal, costs being limited to costs to which a self-litigant is entitled. On the argument of the appeal, neither Mr. Oniel, nor counsel for the respondent, addressed costs.

[2] Subsequent to the release of the reasons for judgment, Mr. Oniel obtained permission to make written submissions respecting costs. Written submissions have been received from him and counsel for the respondents.

[3] The trial before Somers J., from whose judgment this appeal was taken, was the second trial of this action. This trial came about as a result of the decision of this court on July 24, 1995, setting aside the result of the first trial and ordering a new trial. In its endorsement, this court ordered: “The costs of the first trial will be reserved to the judge presiding at the new trial”. Somers J. awarded the costs of the first and second trials to the respondents. In doing so, he accepted the position of counsel for the respondents that where an appellate court, in ordering a new trial, has reserved the costs of the first trial to the judge presiding at the new trial, costs of the first trial should normally follow the result of the second trial. In his notice of appeal, Mr. Oniel asked this court to award him costs of both trials, on a solicitor and client basis, in the event that his appeal was successful.

[4] Given the result of this appeal and the position taken by the respondents before Somers J., I would award Mr. Oniel his costs of both trials on a party and party basis. I see no reason why those costs should be on a solicitor and client basis. Costs of both trials and the appeal are to be assessed.

[5] Mr. Oniel has pointed out that from April, 1987, when this action commenced, until the completion of the first trial on April 28, 1993, he was legally represented. As well, it may be that he also received some legal assistance in respect to the second trial. If so, this will, no doubt, be brought to the attention of the assessment officer. I mention the fact that Mr. Oniel has been legally assisted by way of direction to the assessment officer that in assessing costs Mr. Oniel is entitled to costs normally awarded to a legally assisted litigant when he was legally assisted and to costs normally awarded to a self-litigant when he was not legally assisted.

[6] Therefore, I would vary the costs previously awarded and order that Mr. Oniel is to have his costs of the first trial, this trial and the appeal on a party and party basis. He is entitled to costs normally awarded to a legally assisted litigant when he was legally assisted, and when he was not legally assisted, to costs normally awarded to a self-litigant.

[7] As it is necessary to issue supplementary reasons respecting costs, I feel it is appropriate to refer to an oversight in my reasons for judgment of January 18, 2001. In paragraphs 60, 61, 62 & 63 reference was made to the reasons of the trial judge, Munroe J., in Watters v. Pacific Delivery Service Ltd. (1964), 1963 CanLII 549 (BC SC), 42 D.L.R. (2d) 661 (B.C. Sup. Ct.), in support of the proposition that the failure of a police officer to make adequate inquiries before charging a person, or continuing a prosecution, may constitute malice. In that case, the police officer was found liable for damages for malicious prosecution.

[8] Subsequent to the release of my reasons, it has come to my attention that the decision of Munroe J. was reversed by the British Columbia Court of Appeal on the ground that malice had not been proved: (1964), 1964 CanLII 550 (BC CA), 45 D.L.R. (2d) 638. I have read the reasons for judgment of the Court of Appeal, which, in my view, do not detract from the legal principal stated by Munroe J. in the passage from his reasons for judgment quoted in paragraph 61 of my reasons for judgment.

[9] The British Columbia Court of Appeal concluded at p. 641 that there was no evidence that the defendant police officer’s actions were “induced otherwise then by an honest belief in the facts as presented” by the complainant. That factual conclusion does not contradict or reverse the legal proposition stated by Munroe J. at p. 668 that malice may be found where the police officer’s actions “displayed a reckless disregard of his duties and of the legal rights of the plaintiff”.

Released: February 19, 2001

(signed) “S. Borins J.A.”

(signed) “I agree Robert J. Sharpe J.A.”