Court of Appeal for Ontario

Date: August 15, 2018 Docket: C63361 Judges: Sharpe, Pepall and Roberts JJ.A.

Between

F. Marc Holterman and Thomas S. Tiffin Appellants

and

S. Andrew Fish and The Attorney General of Canada Respondents

Counsel

Marc Holterman and Thomas Tiffin, self-represented

Edward Harrison and Nancy Arnold for the respondents

Heard and released orally: August 14, 2018

On appeal from: the order of Justice Thomas R. Lederer of the Superior Court of Justice, dated January 19, 2017.

Reasons for Decision

[1] The appellants, who were unsuccessful at trial, appeal the award of costs made by the trial judge in favour of the respondents. The appellants failed to seek leave to appeal costs, but in the circumstances, we will treat this oral hearing as a request for leave to appeal.

[2] The appellants argue that no costs should be awarded because of the conduct of the respondents.

[3] The fundamental problem with that submission is that the very same complaint about the conduct of the respondents was the subject of the appellants' unsuccessful claim for misfeasance in public office.

[4] The appellants discontinued their claim midway through trial after the trial judge pointed out that they bore the onus of establishing an essential element of their case for which they had no evidence. They then sought to reopen the claim based on fresh evidence. The trial judge rejected that motion on the basis that the fresh evidence could not have affected the outcome: 2016 ONSC 3275. This court dismissed an appeal from that decision: 2017 ONCA 769. Both the trial judge and this court found that the fresh evidence did not provide the essential facts needed to make out a case of misfeasance in public office. The Supreme Court of Canada dismissed the appellants' motion for leave to appeal: July 5, 2018.

[5] The appellants' contention that they should not have to pay costs because of the conduct of the respondents is based upon the same evidence and amounts to a collateral attack on those decisions.

[6] Moreover, the trial judge, who is fully conversant with the background of this case, considered whether the respondents' conduct should deprive them of costs. He took their conduct into account and he reduced the costs claimed by the respondents to less than partial indemnity. We see no basis upon which we could properly interfere with the exercise of his discretion.

[7] Accordingly, leave to appeal costs is refused. Costs to the respondents fixed at $5,000 inclusive of taxes and disbursements.

Robert J. Sharpe J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.