Her Majesty the Queen v. Rankin [Indexed as: R. v. Rankin]

86 O.R. (3d) 399

Court of Appeal for Ontario,

Gillese J.A. (In Chambers)

June 12, 2007

Criminal law -- Provincial offences -- Costs -- Court not having jurisdiction to award costs on dismissal of motion for leave to appeal under s. 131 of Provincial Offences Act -- Even if jurisdiction existed, general rule in proceedings under Act being that no costs are awarded against either party -- Provincial Offences Act, R.S.O. 1990, c. P.33, s. 131.

The respondent sought his costs of an unsuccessful motion by the Ontario Securities Commission for leave to appeal under s. 131 of the Provincial Offences Act.

Held, costs should be denied.

The court has no jurisdiction to award costs on the dismissal of a motion for leave to appeal under s. 131 of the Act. Even if jurisdiction existed, the general rule in proceedings under the Act is that no costs are awarded against either party. There were no circumstances in this case warranting a departure from the general rule.

RULING on costs.

Cases referred to R. v. 1353837 Ontario Inc. (2005), 2005 4189 (ON CA), 74 O.R. (3d) 401, [2005] O.J. No. 656, 195 O.A.C. 213, 249 D.L.R. (4th) 720, 193 C.C.C. (3d) 468, 6 M.P.L.R. (4th) 51 (C.A.); R. v. Felderhof (2003), 2003 37346 (ON CA), 68 O.R. (3d) 481, [2003] O.J. No. 4819, 235 D.L.R. (4th) 131, 180 O.A.C. 288, 180 C.C.C. (3d) 498, 17 C.R. (6th) 20 (C.A.); R. v. Laundry, 1996 1334 (ON CA), [1996] O.J. No. 3007, 93 O.A.C. 100, 32 W.C.B. (2d) 49 (C.A.), apld Statutes referred to Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 129, 131, 134, 142(5)

Michael Code and Kelley M. McKinnon, for moving party, the Ontario Securities Commission. Brian H. Greenspan and Joanne K. Stuart, for responding party.

[1] Cost Endorsement by GILLESE J.A.: -- In a decision dated February 27, 2007, I dismissed the Ontario Securities Commission's motion for leave to appeal brought pursuant to s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the "POA"). [page400]

[2] Mr. Rankin seeks costs of the motion. He argues that this court has jurisdiction to make such an order and that it is appropriate to award costs as the Ontario Securities Commission sought leave on grounds that failed to respect the principles relating to the threshold test for leave and was an "attempt to advance a policy objective at the expense of an individual".

[3] As Mr. Rankin observed, a similar request was considered in R. v. Landry, 1996 1334 (ON CA), [1996] O.J. No. 3007, 93 O.A.C. 100 (C.A.) and rejected. In Landry, Austin J.A. reviewed ss. 129, 131 and 134 of the POA and concluded that he was without authority to award costs on the dismissal of a motion for leave to appeal under s. 131 of the POA. For the reasons given by Austin J.A., I am of the same view: I do not have the jurisdiction to make the requested order.

[4] However, even if there were jurisdiction to make such an award, I would decline to do so. In R. v. Felderhof (2003), 2003 37346 (ON CA), 68 O.R. (3d) 481, [2003] O.J. No. 4819, 180 O.A.C. 288 (C.A.), Rosenberg J.A., writing on behalf of the court, considered the issue of costs in proceedings under the POA and stated"The rule in proceedings under the Act is that generally no costs are awarded either against the Crown or the defendant" (para. 100). In R. v. 1353837 Ontario Inc. (2005), 2005 4189 (ON CA), 74 O.R. (3d) 401, [2005] O.J. No. 656, 249 D.L.R. (4th) 720 (C.A.), this court affirmed the approach in Felderhof and held that costs should only be awarded when there are factors justifying a departure from the general rule against such awards.

[5] Although both Felderhof and 1353837 Ontario Inc. concerned appeals under s. 142(5) of the POA rather than leave motions under s. 131, should there be jurisdiction to award costs on a leave motion, I see no principled reason to adopt a different approach. On that approach, I see nothing justifying a departure from the general rule -- although the motion for leave was unsuccessful, there was nothing improper in the Commission bringing the motion.

Disposition

[6] Accordingly, the costs request is denied.

Order accordingly.