CITATION: R. v. Morrison, 2007 ONCA 175

DATE: 20070315

DOCKET: M34780, (C45487)

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (Appellant) – and – HARVEY MORRISON, JEANETTE BERKUTA, STEVEN COOPER, JIM DOUGLAS, GORDON BUTSON, JOHN SCHIPANI AND J. SCHIPANI DESIGN LTD. AND ENBRIDGE GAS DISTRIBUTION INC. (Respondents)

BEFORE: BLAIR, LANG and MACFARLAND JJ.A.

COUNSEL: Wes Wilson for the Crown

Gregory Lafontaine for Enbridge Gas Distribution Inc., Steven Cooper and John Schipani

John R. Hart for Gordon Butson

HEARD & RELEASED ORALLY: March 9, 2007

Motion for an order to quash the appeal by the appellant from the order of Justice O’Driscoll of the Superior Court of Justice dated May 11, 2006.

E N D O R S E M E N T

[1] The Crown has appealed from the order of the Honourable Justice O’Driscoll dated, May 11, 2006, quashing search warrants obtained by the prosecutor under s. 56 of the Occupational Health and Safety Act R.S.O. 1990, c.O.1, as amended. On this motion, the respondents seek to quash that appeal as being moot.

[2] In our view, the appeal is moot. The Crown made a deliberate and considered choice not to execute the impugned warrants as a concession to keep the trial process moving ahead before the POA judge. There is accordingly no need to pursue the appeal from Justice O’Driscoll’s order quashing the warrants on the merits, and no basis for doing so.

[3] Whether or not leave is necessary to appeal the costs order, the costs order is ancillary to the main appeal and we do not think the main appeal – moot as it is – can be successfully piggy-backed on the appeal of the costs award.

[4] The appeal is therefore quashed in its entirety.

“R.A. Blair J.A.”

“S.E. Lang J.A.”

“J. MacFarland J.A.”