CITATION: Davenport v. Dobreff, 2008 ONCA 721
DATE: 20081020
DOCKET: C48398
COURT OF APPEAL FOR ONTARIO
Weiler, Watt and Epstein JJ.A.
BETWEEN:
Paul Davenport, Fred Longstaffe, Roma Harris, Joanna Blom, Amarjeet Bassi, Ajay Ray, Vasili Glibin, Franco Berruti, Theresa Morrisey
Applicants (Respondents in appeal)
and
Peter Dobreff and Her Majesty the Queen in Right of Ontario (Attorney General)
Respondents (Appellant in appeal) (Respondent in appeal)
Peter Dobreff, in person
Peter Scrutton, for the respondent, Her Majesty the Queen in Right of Ontario (Attorney General)
Paul Morrissey, for the respondents, Paul Davenport, Fred Longstaffe, Roma Harris, Joanna Blom, Amarjeet Bassi, Ajay Ray, Vasili Glibin, Franco Berruti and Theresa Morrisey
Heard: October 17, 2008
On appeal from the judgment of Justice Wolfram U. Tausenfreund of the Superior Court of Justice, dated January 29, 2008.
APPEAL BOOK ENDORSEMENT
[1] The judge at first instance did not err in granting the individual respondents the relief he did. The appellant failed to meet the onus of establishing that the individual respondents had material evidence to give in relation to the issues that are likely to be raised in the proceedings under the Trespass to Property Act.
[2] The Crown took no position with respect to the subpoenas that were issued and did not join in the individual respondents’ request for relief. Thus, any allegation of Crown misconduct in this regard is without foundation and could not constitute an abuse of process giving rise to a stay of the appellant’s outstanding charges under the Trespass to Property Act.
[3] This appeal is not the proper forum in which to determine the other allegations of Crown misconduct. These issues may be litigated at trial. Accordingly the appeal is dismissed.
[4] The individual applicants are seeking their costs in this appeal. The application judge at first instance awarded costs in favour of the individual applicants fixed in the amount of $7500 without giving reasons. Mr. Morrison has explained the extensive work that went into that application and has indicated that his costs on a substantial indemnity basis were $11,000. The appellant is on social assistance.
[5] In all of the circumstances, we are not inclined to award any costs on this appeal. This is no reflection on counsel whose assistance we appreciate.