Court of Appeal for Ontario

Date: 2018-03-08 Docket: C62876

Judges: Cronk, Huscroft and Nordheimer JJ.A.

Between

Randolph (Randy) Fleming Respondent/Plaintiff

and

Her Majesty the Queen in right of the Province of Ontario, Provincial Constable Kyle Miller of the Ontario Provincial Police, Provincial Constable Rudy Bracnik of the Ontario Provincial Police, Provincial Constable Jeffrey Cudney of the Ontario Provincial Police, Provincial Constable Michael C. Courty of the Ontario Provincial Police, Provincial Constable Steven C. Lorch of the Ontario Provincial Police, Provincial Constable R. Craig Cole of the Ontario Provincial Police and Provincial Constable S.M. (Shawn) Gibbons of the Ontario Provincial Police Appellants/Defendants

Counsel

For the appellants: Judie Im, Erin Rizok and Sean Hanley

For the respondent: Michael Bordin and Jordan Diacur

Heard

November 14, 2017

On Appeal

On appeal from the judgment of Justice Kim Carpenter-Gunn of the Superior Court of Justice sitting without a jury, dated September 22, 2016.

Costs Endorsement

[1] On February 16, 2018, this court released its decision allowing the appeal, setting aside the trial judgment including all of the damage awards, and directing a new trial on the sole issue of whether excessive force was used when the respondent was arrested. We invited the parties to make submissions on the issue of the costs of the appeal. We have now received and reviewed those submissions.

[2] The respondent submits that he ought not to have to pay the costs of the appeal because this is "public interest" litigation. We do not agree. The nature of the respondent's proceeding does not fall within either of the two categories of public interest litigation as set out in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263. As Iacobucci J. said, at para. 76:

The fact that the actions involve public authorities and raise issues of public interest is insufficient to alter the essential nature of the litigation.

[3] The appellants are entitled to their costs of the appeal which we fix in the amount of $25,000 inclusive of disbursements and HST.

"E.A. Cronk J.A."

"Grant Huscroft J.A."

"I.V.B. Nordheimer J.A."