Court of Appeal for Ontario

Date: 2017-08-04 Docket: C61163

Judges: Gillese, Huscroft and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Floward Enterprises Ltd. o/a H. Williams and Co. Applicant (Respondent)

and

The Estate of Martin Winberg (Appellant)

Counsel

Paul Adam, for the appellant, the Estate of Martin Winberg

Jordan Green, for the respondent, Floward Enterprises Ltd.

Michael Fawcett, for the respondent, Her Majesty the Queen

Heard: May 1, 2017

On appeal from: the order of Justice Nola E. Garton of the Superior Court of Justice, dated September 21, 2015.

COSTS DECISION

Gillese J.A.:

Overview

[1] This proceeding relates to a stolen diamond that Toronto police seized from a pawnbroker as part of a criminal investigation. When the criminal proceedings relating to the diamond were over and it was time for the police to release the diamond, a contest emerged between the pawnbroker and the estate of the individual from whom the diamond had been stolen.

[2] The pawnbroker successfully brought an application under ss. 490(7) and (9)(c) of the Criminal Code, R.S.C. 1985, c. C-46 for the return of the diamond.

[3] The estate appealed, pursuant to s. 490(17).

[4] The Crown took a limited role on the appeal. Its submissions addressed only the s. 490 process. It took no position on the factual matters that divided the parties or on the question of entitlement to the diamond.

[5] By reasons dated June 2, 2017 (the "Reasons"), this court allowed the appeal.

[6] The estate and the pawnbroker (the "Parties") each seek costs of the appeal. For the reasons that follow, in the circumstances of this case, I am of the view that the court does not have the power to order costs in favour of either of the Parties.

The Parties' Positions

[7] Both Parties claimed costs of the appeal in their written documentation filed on the appeal. In the Reasons, this court indicated that if the Parties wished to pursue the matter of costs of the appeal, they were to file further written submissions on the matter, including a statement of this court's jurisdiction to make such an award.

[8] The Parties filed such further submissions, each taking the position that it was entitled to costs of the appeal from the other.

[9] The estate submits that this court has inherent jurisdiction to award costs under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and that other applicable statutory provisions "do not abridge this inherent jurisdiction". It seeks costs on a substantial indemnity basis of approximately $30,000. It claims entitlement to costs as the successful party on the appeal. It claims substantial indemnity costs on the basis that counsel for the pawnbroker unreasonably complicated the appeal process and failed to abide by the norms that govern lawyers, including by failing to make full and frank disclosure on the application.

[10] In its submissions, the pawnbroker indicates that it is "not aware of this Court's jurisdiction" to award costs. Nonetheless, it seeks costs of $3,000 from the estate because it contends that the estate unnecessarily complicated the appeal and caused it to suffer costs "thrown away".

[11] Based on s. 490(17), the Crown submits that this court does not have jurisdiction to make a costs award on the appeal.

Analysis

[12] In the circumstances of this case, in my view, this court does not have the power to award costs to either of the Parties.

[13] It will be recalled that the estate brought its appeal under s. 490(17). The relevant parts of s. 490(17) read as follows:

490(17) A person who feels aggrieved by an order made under subsection (8), (9), (9.1) or (11) may appeal from the order

(a) to the court of appeal as defined in section 673 if the order was made by a judge of a superior court of criminal jurisdiction, in which case sections 678 to 689 apply with any modifications that the circumstances require … [Emphasis added.]

[14] In my view, in accordance with s. 490(17)(a), ss. 678 to 689 of the Criminal Code apply. The estate was the person who felt aggrieved by the order and brought the appeal. The order was made under ss. 490(9) – the pawnbroker having brought its application for return of the diamond under ss. 490(7) and (9)(c). And, the order was made by a judge of the Ontario Superior Court of Justice, a superior court of criminal jurisdiction.

[15] Section 683 sets out various powers of this court on an appeal under Part XXI of the Criminal Code. Subsection 683(3) expressly deals with the matter of costs. It reads as follows:

683(3) A court of appeal may exercise in relation to proceedings in the court, any powers not mentioned in subsection (1) that may be exercised by the court on appeals in civil matters, and may issue any process that is necessary to enforce the orders or sentences of the court, but no costs shall be allowed to the appellant or respondent on the hearing and determination of an appeal or on any proceedings preliminary or incidental thereto. [Emphasis added.]

[16] For ease of reference, I will refer to the emphasized part of s. 683(3) as the "Costs Part".

[17] The Costs Part of s. 683(3) provides that "no costs shall be allowed to the appellant or respondent on the hearing and determination of an appeal". In this matter, the estate is the appellant and the pawnbroker is the respondent. Therefore, in my view, on a plain reading of the Costs Part of s. 683(3), this court does not have the power to order costs of the appeal to either of the Parties.

[18] The estate recognizes that s. 683(3) addresses the matter of costs but submits that s. 683(3) is to be read in relation to the overall purpose of s. 683, which is to deal with the powers of the court of appeal to receive and order the production of evidence. Therefore, the estate submits, there is no statutory provision governing costs of the appeal and this court is free to rely on its inherent jurisdiction to award the same.

[19] The estate relies on the following passage in R v. Geauvreau, [1982] 1 S.C.R. 485, at p. 490, for this submission:

Section [683][1] of the Criminal Code is primarily concerned with evidentiary questions and the following passage taken from the dissenting judgment of Chief Justice Laskin in Elliott v. The Queen, [1978] 2 S.C.R. 393 at p. 409 reads as follows:

I am unable to accept the view that s. [683(3)] confers any power upon a court of appeal to amend an indictment. That subsection takes its context from the preceding provisions of s. [683] which concern evidentiary questions. The opening words of s. [683(3)] show its limited range; they provide that 'A court of appeal may exercise … any powers not mentioned in subsection (1) that may be exercised … on appeals in civil matters'. The subsection cannot, therefore, be read as if it was a detached and separate provision. Although Wilson J.A. purported to find support for his view in this Court's judgment in Kissick v. The King, [1952] 1 S.C.R. 343, that case was concerned with an issue as to admissibility of evidence and thus related to the very subject-matter of s. [683]. Still less can s. [683(3)] be relied upon to authorize a court of appeal to substitute a different charge from the one on which the case came before it.

[20] I do not accept the estate's submission.

[21] The words of the Costs Part of s. 683(3) are clear, broad and mandatory – "no costs shall be allowed … on the hearing and determination of an appeal". There is nothing in this wording to indicate that the prohibition against costs is limited to evidentiary questions.

[22] Further, I do not find that Geauvreau assists the estate.

[23] In Geauvreau, the accused was convicted of having in his possession an outboard motor knowing it to have been "obtained by the commission of an indictable offence". On his appeal, the Crown sought to have the Court of Appeal uphold the conviction by amending the information to read "derived indirectly from" rather than "obtained by", to conform to the evidence. The Court of Appeal allowed the appeal, quashed the conviction, and ordered a new trial on the amended information.

[24] The Crown appealed.

[25] The Supreme Court dismissed the appeal, stating that an appellate court would require the "clearest statutory basis" to materially amend the information and uphold a conviction based on it. In affirming the Court of Appeal decision, it noted that a new trial on the amended information ensured that the accused was informed of the charge against him before his trial commenced and provided him with a continuing opportunity to meet the amended charge as the trial progressed.

[26] It is within this context that the Supreme Court stated, in the above-quoted passage in Geauvreau, that s. 683 is "primarily concerned with evidentiary questions". Two points show why that statement does not circumscribe the Costs Part of s. 683(3).

[27] First, s. 683(3) did not expressly address the matter in issue in Geauvreau – namely, whether the court of appeal had the power to amend an indictment or information. Contrast that with this case, where s. 683(3) expressly addresses the power of the court to order costs of the appeal, stipulating that the court "shall" not allow such costs to the appellant or respondent.

[28] Second, in Geauvreau, the Supreme Court was considering the first part of s. 683(3), which expressly refers to s. 683(1). Recall the first part of s. 683(3) – "A court of appeal may exercise … any powers not mentioned in subsection (1) that may be exercised by the court on appeals in civil matters" (emphasis added). The Supreme Court stated that s. 683(3) could not be read "as if it was a detached and separate provision" from s. 683(1), which deals with the powers of the court of appeal on evidentiary matters such as the production of documents and the calling of witnesses. It was in this context that the Supreme Court stated that s. 683 is "primarily concerned with evidentiary questions".

[29] But this case is different. The Costs Part of s. 683(3) does not refer to s. 683(1). It makes the clear and simple statement that "no costs shall be allowed to the appellant or respondent … on the hearing and determination of an appeal". I see no reason to depart from the plain meaning of those words.

DISPOSITION

[30] Accordingly, I would order that there shall be no costs of the appeal to either the estate or the pawnbroker.

"E.E. Gillese J.A."

"I agree. Grant Huscroft J.A."

"I agree. G.T. Trotter J.A."

[1] When Geauvreau was decided, s. 683 was s. 610 and s. 683(3) was s. 610(3).