R. v. Ontario (Review Board), 2009 ONCA 16

CITATION: R. v. Ontario (Review Board), 2009 ONCA 16

DATE: 20090109

DOCKET: C47796

COURT OF APPEAL FOR ONTARIO

Rosenberg and Simmons JJ.A. and Speyer J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

The Royal Ottawa Health Care Group

Respondent (Respondent)

and

Ernest John Andrew Leyshon-Hughes

Applicant (Respondent)

and

The Ontario Review Board

Intervener (Appellant)

David M. Humphrey for the Ontario Review Board

Sarah Loosemore and Marlys Edwardh for Ernest John Andrew Leyshon-Hughes

Heard: June 26, 2008

On appeal from the order of Justice M. Linhares de Sousa of the Superior Court of Justice dated November 5, 2007 and reported at [2007] O.J. No. 3309.

Simmons J.A.:

I. Overview

[1] The main issue on this appeal involves the test to be applied in relation to a request for costs against the Ontario Review Board (the “ORB”).

[2] On December 18, 2006, the ORB adjourned Mr. Leyshon-Hughes’s annual review hearing of its own motion, without hearing any evidence, for the stated purpose of permitting the parties to obtain additional evidence.

[3] In May 2007, Mr. Leyshon-Hughes (the “respondent”) applied successfully for an order quashing the adjournment order and for a further order directing the ORB to convene a new panel to conduct his annual review. After making these orders, de Sousa J. ordered the ORB to pay the respondent’s costs of the application, costs submissions and aborted annual review hearing.

[4] The issues on this appeal relate solely to the costs award.

[5] The ORB appeals from the costs order, claiming that the application judge: i) lacked jurisdiction to award costs of the aborted annual review hearing; ii) applied the wrong test in deciding that costs should be awarded; iii) failed to consider relevant factors; iv) reached an unreasonable conclusion; and v) misinterpreted and misapplied the decision in R. v. Curragh, 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537.

[6] In addition to contesting the ORB’s submissions, the respondent contends that leave to appeal is required and should not be granted on the facts of this case.

[7] For the reasons that follow, I would allow the appeal, set aside the costs order and substitute an order that there be no order as to costs of the proceedings below or before the ORB.

II. Background

i) Events leading up to the aborted 2006 annual review hearing

[8] On September 15, 1986, the respondent was found not guilty of first degree murder by reason of insanity. The respondent was 15 years old when the index offence took place. The victim was a 25-year-old woman who had befriended him and who on occasion provided him with a place to stay. Following such an occasion, the respondent stabbed the victim 21 times, left her apartment and forged some cheques, and then returned to the apartment and engaged in sexual activity with the corpse.

[9] Senior forensic psychiatrists testified at the respondent’s trial that his mental state, which they attributed to neonatal brain damage amplified by a personality disorder, rendered him incapable of appreciating the nature and quality of his acts.

[10] Following the verdict, the respondent was detained in the maximum security Oak Ridge Division of the Penetanguishene Mental Health Centre and became subject to the jurisdiction of the ORB under Part XX.1 of the Criminal Code. While detained at Oak Ridge, the respondent scored 34 on a psychopathy assessment (PCL-R), placing him in a small sub group, 100% of which were likely to re-offend violently within seven years. He was diagnosed with Personality Disorder, Antisocial and Narcissistic.

[11] On July 8, 1992, the respondent was transferred to the medium secure unit of the Kingston Psychiatric Hospital. By 1998 he had reached a therapeutic impasse--there was no treatment and no treatment plan. During his 1999 annual review hearing, the respondent was sent for an independent assessment by Dr. John Bradford at the Royal Ottawa Hospital. Upon Dr. Bradford undertaking to serve as his attending psychiatrist, the respondent was transferred to the Royal Ottawa Hospital.

[12] Dr. Bradford formulated a new diagnosis of Personality Deterioration due to Organic Brain Injury. Based on this diagnosis, he excluded the previous diagnosis of Personality Disorder and prescribed medication to treat the underlying condition, with the result that the respondent began to improve. Dr. Bradford’s psychopathy assessment yielded a score of 14; another expert’s assessment, which he adopted, yielded a score of 18.

[13] Following his transfer to Ottawa, the respondent made dramatic progress. He furthered his education, began living in the community and was able to achieve full-time employment. However, despite this progress, as of 2006, the respondent remained subject to a conditional discharge order.

[14] The events surrounding the respondent’s 2005 annual review bear some relevance to events at the aborted 2006 annual review hearing. The respondent was not represented at his 2005 annual hearing. Following the hearing but prior to the release of the ORB’s reasons, the Alternate Chairperson of the 2005 annual hearing (also the Alternate Chairperson of the 2006 annual hearing) contacted Dr. Bradford and indicated that he intended to review some of the matters raised at the 1999 annual hearing. Dr. Bradford informed the respondent of this development.

[15] In its reasons for disposition relating to the 2005 annual review hearing, the ORB indicated that Dr. Bradford’s evidence, standing alone, would have left it with little choice but to grant an absolute discharge to the respondent. However, the panel indicated that it had reviewed documents dating back to the respondent’s 1999 hearing, including documentation relating to the controversy around the respondent’s risk assessments and his release into the community when he was transferred to the Royal Ottawa Hospital.

[16] In light of this information and a finding that there were outstanding questions about the circumstances surrounding the index offence, the panel indicated that, in the absence of the continuing support of the hospital team, they were not satisfied that the respondent would not succumb to “impulsive acts” and “outbursts of aggression”. The panel found that the respondent continued to pose a significant threat “based on his history and the nature of his psychiatric condition” and continued the conditional discharge order with the suggestion that the respondent be represented at the next annual review and that counsel have available the ORB’s 1999 reasons for disposition.

[17] Prior to the December 18, 2006 annual review hearing, two pre-hearing teleconferences took place. At the initial pre-hearing teleconference, Crown counsel indicated he would be asking at the hearing that the respondent’s conditional discharge status continue. Crown counsel also stated that he was considering asking the ORB to order an independent assessment. In response, Dr. Bradford indicated he would expand his 2006 report to respond to the concerns raised about the index offence.

[18] At the second pre-hearing teleconference, Crown counsel said it was unlikely that he would request an independent assessment. He confirmed this position in writing after receiving Dr. Bradford’s final report.

[19] The ORB member who conducted the pre-hearing teleconferences did not participate in the December 18, 2006 annual review hearing.

ii) The 2006 Annual Review Hearing

[20] Prior to commencing the December 18, 2006 annual hearing, the ORB panel held an in-camera meeting. Following the meeting, the panel indicated it wanted to get another opinion, suggested that the hearing be adjourned to permit the parties to do so, and asked for submissions on its suggestion. During the course of these submissions, counsel for the respondent asked the Alternate Chairperson to recuse himself based on a reasonable apprehension of bias.

[21] Ultimately, the Alternate Chairperson declined to recuse himself and the panel adjourned the hearing for up to six months to enable the parties to obtain further evidence. The Alternate Chairperson gave oral reasons for this decision, which were accompanied by a handwritten endorsement and a promise of more detailed reasons to follow.

[22] The application judge described the oral reasons as follows:

Briefly, those reasons expressed the panel’s “concern or discomfort about the completeness of the evidence it would like to hear and the fact that the only expert medical evidence that it will hear is from Dr. Bradford.” Of equal concern to the Board was that Dr. Bradford seemed to be “dismissive of other experts’ conclusions and test results without concomitant reconciliation of their’s with his own to the satisfaction of the Board.” The Board could not ignore the legitimate medical controversy.

The Board went on to conclude … that it “is suggested, and it would be preferred if [the respondent’s] medical history be subject to a qualitative review by another expert, less close to [the respondent’s] circumstances and who is not part of the diagnostic disagreement and who can simply provide a fresh perspective.” While recognizing that it did not have the power to order an assessment under s. 672.12(1) [of the Criminal Code], it stated that its inquisitorial duties dictated that it seek a broader medical perspective in [the respondent’s] case.

[23] The oral reasons concluded as follows:

In anticipation that Dr. Bradford’s evidence reflects the hospital report--which we should mark as Exhibit 1 today--and his evidence in prior hearings, this Board simply isn’t satisfied that it can have the in-depth analysis that it needs to evaluate the accused’s risk.

Without it this Panel could likely not come to an informed decision about [the respondent’s] risk.

[24] The handwritten endorsement indicated the adjournment was “to allow the parties to obtain additional evidence, suggested by the Board to consist of an independent overview of the accused’s entire history, his diagnosis & risk, treatment, and the medical controversy which surrounded these factors at the time of the accused’s transfer to Dr. Bradford’s care.”

[25] On January 23, 2007, the ORB released its promised additional reasons for the adjournment, which also contained a list of nine issues for review by any expert chosen by the parties to provide additional evidence. As part of that list, the ORB suggested that the expert be asked about the possibility of a trial withdrawal of the respondent’s medication to “support or refute the organic diagnoses.”

iii) The Respondent’s Application and Request for Costs

[26] Following the ORB’s December 18, 2006 decision to adjourn his annual review hearing, the respondent brought an application for habeas corpus with certiorari and mandamus in aid. The respondent withdrew his request for habeas corpus at the outset of the hearing but proceeded with his requests for certiorari and mandamus.

[27] In his initial application, the respondent requested costs against the Crown. At the opening of the hearing, he withdrew that request and substituted a request for costs against the ORB.

iv) The ORB’s Request to Intervene on the Application

[28] The ORB was not initially a party to the application. The respondent consented to the ORB intervening to address its jurisdiction to make the order in issue as well as its practice and procedure in relation to such an order but resisted its request to intervene on substantive issues. The application judge dismissed the ORB’s motion to intervene in relation to the substantive issues.

v) The Application Judge’s Reasons concerning the Merits of the Application

[29] The application judge granted the respondent’s request for an order for certiorari with mandamus in aid. She concluded that the ORB had no statutory jurisdiction to adjourn the respondent’s annual review hearing for a period of more than 30 days without the respondent’s consent. In addition, although she found, at para. 88, that the ORB “has the statutory authority to embark on such a broad scope of inquiry with respect to a NCR accused’s past and present medical diagnosis and treatment”, she concluded that the ORB made jurisdictional errors by making a premature decision concerning the sufficiency of the evidence and by failing to allow the respondent to exercise all of his procedural rights concerning the presentation and testing of evidence.

[30] Concerning the suggestion that the respondent submit to a trial withdrawal of his medications, the application judge said, “there is a basis for concluding that the ORB was attempting to do indirectly what it knew it could not do directly.” Finally, the application judge concluded that the ORB lost jurisdiction by demonstrating a reasonable apprehension of bias in that it had “pre-judged both the evidence and the conclusions to be drawn from evidence prior to hearing all of the evidence and prior to giving the parties the opportunity of testing the evidence.”

III. The Application Judge’s Reasons on Costs

[31] Early in her reasons on costs, the application judge noted that “the inherent jurisdiction of this Court to award costs in favour of and against any party and the Intervener was not contested and in fact was positively acknowledged.” Soon thereafter, she commented on the usual rule that costs follow the event unless there is some reason for the court not to exercise its discretion in that way. She concluded that because the ORB is a “unique tribunal” with a “significant public mandate”, success could not be the determinative factor in awarding costs in this case.

[32] The application judge accepted the respondent’s submission that the jurisprudence dealing with costs against the Crown has no application to this case and stated, “[o]f more relevance is the jurisprudence dealing with costs awards made by courts against administrative tribunals or quasi-judicial tribunals and interveners.”

[33] Although she found that the ORB overreached on its intervener motion, the application judge rejected the respondent’s request for costs of that motion, holding that some participation by the ORB was necessary and taking account of the fact that it may have been the first time the ORB was involved in litigation relating to the substantive issues.

[34] The application judge granted the respondent costs on a partial indemnity basis with respect to the application, the aborted annual review hearing and the costs submissions. In doing so, the application judge accepted the ORB’s submission that “in matters where administrative or quasi-judicial tribunals are concerned costs do not necessarily follow the event.”

[35] However, she said, “the jurisprudence is equally clear that the Court reserves the right to exercise its discretion to award costs against a tribunal in the face of tribunal misconduct to the detriment of an individual before it or where the tribunal has conducted itself in such a way as to call for strong disapproval.”

[36] The application judge found both factors applicable in this case. She said the ORB exceeded its jurisdiction by “denying [the respondent] procedural fairness and natural justice and by having an apprehension of bias.” She found prejudice to the respondent in the form of the costs of the aborted annual review hearing, the application and the new annual review hearing that would be required. She said, “[s]uch a result cannot be condoned nor remain without a concrete remedy. It justifies, if not calls out for, the application of the compensatory function of a costs award.”

[37] Further, although she rejected the respondent’s request for full indemnity costs, likening this case to Curragh, the application judge concluded a partial indemnity costs order was appropriate. She said:

While the details of the facts differ, I find the circumstances of this case very comparable to the circumstances found in the case of R. v. Curragh Inc. [citation omitted] where the Supreme Court of Canada in concluding that the Court acted with an obvious apprehension of bias towards the accused stated as follows:

…The appellants have suffered and will continue to suffer from the grievous financial burden of legal costs. Ordinarily this is something which must be accepted by those charged with criminal offences. Yet, in this case the delays and much of the legal costs incurred arise from systemic problems that were beyond the control of the appellants. They were to a large extent occasioned by the words and actions of the trial judge which gave rise to an apprehension of bias. This was followed by his refusal to grant the motion for recusal. In these unique circumstances the appellants should recover their reasonable legal costs of the proceedings to date. As well they should be paid the reasonable legal costs incurred in the new trial for which they cannot in any way be held responsible.

Counsel for [the respondent] has requested that costs be awarded on a solicitor-client scale which effectively amounts to full indemnity of costs. The threshold test for an award of such scale of costs is a high one set by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration) [citation omitted]. It is the level of costs awarded where the conduct in question is found to be “reprehensible, scandalous or outrageous” on the part of one of the parties.

Taken in isolation, the conduct of the Ontario Review Board may be considered in such a way. However, one must put the issues before the Court and the Ontario Review Board hearing in its proper context. This was the first time this question has arisen for the Ontario Review Board. As I indicated in my reasons of May 31, 2007, the jurisprudence indicates that the duty of procedural fairness when it comes to tribunals is not absolute but must necessarily be flexible and variable depending on the purpose and an appreciation of the governing statute in question. [Citations omitted.] While it acted erroneously and while it was misguided in its actions, the Ontario Review Board did not act maliciously. In light of that finding I am not prepared to find that the Board has crossed that high threshold of misconduct which would justify an award of costs on a full indemnity basis. This does not however, exonerate it from paying any costs to [the respondent] for the prejudice suffered by him. [Emphasis added.]

IV. Analysis

i) The leave issue

[38] The respondent submits that leave to appeal is required under s. 676.1 of the Criminal Code. Section 676.1 is in Part XXI of the Criminal Code, dealing with appeals involving indictable offences. It states:

676.1 A party who is ordered to pay costs may, with leave of the court of appeal or a judge of a court of appeal, appeal the order or the amount of costs ordered.

[39] Relying on the discretionary nature of a costs order, the respondent contends there is no basis for granting leave.

[40] The ORB contends that since the underlying proceeding was an application for an extraordinary remedy, Part XXVI of the Criminal Code applies, and leave to appeal is not therefore required.

[41] In my view, leave to appeal is required. Section 784(1), contained in Part XXVI of the Criminal Code, provides a right of appeal to the court of appeal from decisions granting or refusing relief sought by way of extraordinary remedy. Section 784(2) states:

784(2) Except as provided in this section, Part XXI applies, with such modifications as the circumstances require, to appeals under this section.

[42] I see nothing in s. 784 that in any way ousts or limits the application of s. 676.1 in relation to an appeal from a costs order made on an application for an extraordinary remedy.

[43] However, as I have concluded that the application judge applied the wrong test in ordering costs in this matter, I would grant leave to appeal.

ii) The Test for Making a Costs Order against the ORB in this Proceeding

[44] Apart from an issue raised in this court about whether a costs order can properly be made generally against an intervener tribunal for the costs of the proceeding in front of the tribunal, the ORB did not contest the application judge’s jurisdiction to make a costs order against it.

[45] Assuming, without deciding, that the application judge had jurisdiction to make a costs order against the ORB in this proceeding, in my opinion the application judge erred by applying the wrong test for awarding costs. Given the nature and function of the ORB and the nature of this proceeding, the application judge ought to have applied a test that is at least as stringent as the test that applies for making a costs order against the Crown. I say that for four reasons.

[46] First, the ORB is a specialized statutory tribunal created under Part XX.1 of the Criminal Code and must act in the public interest, not unlike the Crown. The principles that have guided the awarding of costs against the Crown should apply to cost awards against the ORB.

[47] As noted in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, under Part XX.1 of the Criminal Code, review boards bear the responsibility for the ongoing assessment and management of persons found to have committed criminal offences for which they are held not criminally responsible.

[48] Under s. 672.54 of the Criminal Code, review boards have a duty to protect the public from significant threats to their safety but, at the same time, to impose the least onerous and least restrictive disposition on NCR accused.

[49] As described in Winko, s. 672.54 “is remarkable among provisions in the Canadian Criminal Code in that it does not place burdens of proof on either party. It is not adversarial in the usual sense”. Rather, it creates a regime that is inquisitorial, and it is the review boards that bear the ultimate responsibility for gathering and reviewing all available evidence and for protecting the interests of the public as well as the interests of the NCR accused: see Winko at paras. 29-55 and 60-62.

[50] This court reviewed the rationale for the principles involved in making costs orders against the Crown in R. v. Ciarniello (2006), 2006 CanLII 29633 (ON CA), 81 O.R. (3d) 561. As noted at para. 31 of that decision, ““… whether the criminal defendant is successful or unsuccessful on the merits of the case, he or she is generally not entitled to costs.” It is only where the accused can show “a marked and unacceptable departure from the reasonable standards expected of the prosecution” that a costs order will be made”.

[51] After noting that “[r]outine costs awards are a feature of civil, not criminal proceedings”, Sharpe J.A. explained the rationale for the principles involved in making costs orders against the Crown at para. 33:

Different considerations apply to criminal proceedings. Criminal proceedings are brought in the public interest, not by one party to vindicate his or her private interests as against another. As Devlin L.J. explained in Berry v. British Transport Commission, [1962] 1 Q.B. 306, [1961] 3 All E.R. 65 (C.A.), at p. 327 Q.B.: "A plaintiff brings an action for his own ends and to benefit himself; it is therefore just that if he loses he should pay the costs. A prosecutor brings proceedings in the public interest, and so should be treated more tenderly." Costs are not usually deployed in criminal law to influence the conduct of litigation. The threat of conviction and loss of liberty provides an adequate incentive to the accused to defend the case. As the Crown acts in the public interest when conducting criminal prosecutions, it is said that its discretion should not be influenced or fettered by the threat of a costs award… [Emphasis added.]

[52] Given the crucial role of the ORB in protecting the public from significant threats to its safety and also in protecting and preserving the dignity and liberty interests of NCR accused, I view it as being equally important that, in the absence of egregious misconduct constituting a marked departure and unacceptable departure from the reasonable standards expected of a review board, the discretion of the ORB “should not be influenced or fettered” by the threat of a costs order.

[53] Second, unlike the proceedings before other tribunals against which costs orders may have been made on other occasions, the proceedings before the ORB and before the application judge were conducted under the Criminal Code. There is no provision in the Criminal Code for making a costs order against the ORB. Although the respondent made some submissions before the application judge relating to s. 24(1) of the Canadian Charter of Rights and Freedoms, the application judge made no findings in that regard and did not invoke any Charter jurisdiction to award costs that may exist.

[54] Accordingly, to the extent that jurisdiction exists to make a costs order against the ORB in this proceeding, it must be found within the inherent jurisdiction of the Superior Court to award costs in criminal matters.

[55] Third, apart from the remedial powers under s. 24(1) of the Charter, the jurisdiction for awarding costs in criminal matters is extremely narrow and the threshold is very high.

[56] As noted in R. v. Chapman (2006), 2006 CanLII 1178 (ON CA), 78 O.R. (3d) 778 (Ont. C.A.), and Canada (Attorney General) v. Foster (2006), 2006 CanLII 38732 (ON CA), 274 D.L.R. (4th) 253 (Ont. C.A.), the jurisdiction in issue is not a broad discretionary jurisdiction, but rather it is based on the inherent jurisdiction of the court to control its own process. In Quebec (Attorney General) v. Cronier (1981), 1981 CanLII 3179 (QC CA), 63 C.C.C. (2d) 437 (Que. C.A.), L'Heureux-Dubé J.A. described that jurisdiction as follows, at pp. 449 and 451:

[TRANSLATION] A superior court has the power to maintain its authority and to control its procedure so as to put justice in order and efficiently. That this implies sometimes ordering one of the parties and even lawyers to pay the costs of a proceeding in cases of the abuse or of the frivolity of proceedings, of misconduct or dishonesty or of taken for some other ulterior motive, is a recognized principle. But the conditions for the exercise of this inherent power must exist.

In my view, nothing in the present case authorized the Superior Court Judge to order the appellants to [pay] costs by virtue of his inherent powers of control and supervision.

On the one hand, the Judge cannot authorize himself to do indirectly what the Canadian criminal law does not expressly authorize him to do, in the present case, the ordering to pay costs with respect to extraordinary remedies in criminal matters. In the absence of reprehensible conduct by the appellants, or a serious affront to the authority of the Court or of a serious interference with the administration of justice, which is not the present case, the imposition of costs on appellants in the context of the present debate is in no way justified. [Emphasis added.]

[57] Fourth, I see no basis for treating this matter as if it is somehow akin to a civil matter in which Superior Courts may exercise a much broader inherent discretionary jurisdiction in awarding costs. Although NCR accused are found not criminally responsible, they are subject to the jurisdiction of the ORB because they committed an act that was contrary to the Criminal Code. The ongoing assessment and management of NCR accused is dealt with under Part XX.1 of the Criminal Code and forms a part of the criminal justice system.

[58] Moreover, proceedings under Part XX.1 of the Criminal Code are not similar to civil proceedings. As already noted, they have an important public interest component that must outweigh factors that may mandate an award of costs in civil cases. As explained by Sharpe J.A. in Ciarniello, costs awards in civil cases serve several purposes that are generally either not applicable in criminal cases or at least not at the forefront in terms of making costs awards. At paras. 32 and 33, Sharpe J.A. said the following:

Routine costs awards in favour of the winning party are a feature of civil, not criminal proceedings. Costs awards in civil litigation serve several purposes. Costs in civil cases are awarded on the compensatory principle that it is just to allow the successful civil litigant at least partial indemnity for the costs of the action. Costs sanctions are also an important tool at the disposal of civil courts to control proceedings and to discourage unreasonable or inappropriate behaviour. Especially when fortified with offer to settle rules that penalize unreasonable litigation, the threat of an adverse costs award serves to discourage unnecessary or frivolous litigation and encourages parties to settle their disputes.

Different considerations apply to criminal proceedings… Costs are not usually deployed in criminal law to influence the conduct of litigation. The threat of conviction and loss of liberty provides an adequate incentive to the accused to defend the case. As the Crown acts in the public interest when conducting criminal prosecutions, it is said that its discretion should not be influenced or fettered by the threat of a costs award.

[59] Accordingly, to the extent that the application judge had jurisdiction to award costs against the ORB, that jurisdiction must surely reside within and be circumscribed by the Superior Court’s inherent jurisdiction to award costs in criminal law matters.

iii) Application of the Test to the Facts of this Case

[60] Assuming that a costs order can be made against the ORB, the circumstances of this case do not meet the high threshold necessary for making such an award.

[61] The application judge rejected the respondent’s request for full indemnity costs because this was the first time the ORB had dealt with the present issues relating to its inquisitorial role and because she was satisfied that although the ORB “acted erroneously and… was misguided… [it] did not act maliciously.”

[62] In my opinion, the application judge’s findings that this was the first time the ORB had to deal with the issues relating to the exercise of its inquisitorial role and that the ORB did not act maliciously negate the propriety of a costs award in this case. Such findings simply do not reflect “marked and unacceptable departure from the reasonable standards” expected of a review board.

[63] Moreover, these findings stand in sharp contrast to the facts in Curragh, in which the trial judge presiding over a criminal trial telephoned a senior member of the Attorney General’s staff and recommended that the Crown attorney involved in the trial be removed. Although the Supreme Court of Canada did not identify the source of its jurisdiction to award costs payable by the Crown in that case, such conduct is patently a “marked and unacceptable departure” from the norm.

[64] Whatever standard may be applicable in making an award of costs against other administrative or quasi-judicial tribunals, just as the application judge’s findings did not support an award of substantial indemnity costs, they do not meet the high threshold that would be necessary to support a costs award against the ORB based on the inherent jurisdiction of the Superior Court to award costs in criminal cases.

V. Disposition

[65] Based on the foregoing reasons, I would grant leave to appeal, allow the appeal, set aside the application judge’s award of costs and substitute an order that there be no costs of the application. There will be no order as to costs of this appeal.

Released: January 9, 2009 “MR”

“Janet Simmons J.A.”

“I agree M. Rosenberg J.A.”

“I agree C. Speyer J. (ad hoc)”