Court of Appeal for Ontario

Date: 2021-04-08 Docket: C66667

Judges: Lauwers, Brown and Nordheimer JJ.A.

Between:

Paul Bruno, Martha Bruno, Mary Catherine Bruno, Paul John Bruno, and Jake Bruno under the age of 18 by his Litigation Guardian Martha Bruno Plaintiffs (Respondents / Appellants by way of cross-appeal)

And:

Joshua Dacosta, Guy Gibson, Daniel Ashenden, Terry Empey, Her Majesty the Queen in the Right of Ontario Represented by the Ministry of Community Safety and Correctional Services, the Niagara Detention Center, Wendy Southall as the Chief of Police of the Niagara Regional Police Service, Police Officers Jane Doe and John Doe, the Niagara Regional Police Services Board, the Corporation of the Regional Municipality of Niagara and William Shilson Defendants (Appellant / Respondent by way of cross-appeal)

Counsel:

Ian MacLeod and Robert Trenker, for the appellant Her Majesty the Queen in Right of Ontario Gregory P. McKenna and Sabrina L. Seibel, for the respondents Paul John Bruno, Martha Bruno and Jake Bruno

Heard: August 28, 2020 by video conference

On appeal from the judgment of Justice Paul R. Sweeny of the Superior Court of Justice, dated February 7, 2019, with reasons reported at 2019 ONSC 99, and from the costs decision dated February 26, 2020, with reasons reported at 2020 ONSC 1258.

Costs Endorsement

[1] This court allowed the appeal by Her Majesty the Queen on the basis that the reasons for decision were insufficient to permit meaningful appellant review. We remitted the case to the Superior Court for trial by another judge. At the conclusion of the decision we invited written costs submissions.

[2] The Crown seeks costs of the appeal in the all-inclusive amount of $25,000 and asks that the costs of the first trial be remitted to the judge hearing the new trial.

[3] The respondents ask that there be no order for costs of the appeal or cross-appeal and that the costs of the first trial be remitted to the judge hearing the new trial.

[4] We noted in the decision that the need for a new trial is “truly a regrettable outcome, particularly for the respondent who lacks the resources of the state.” In these circumstances we award no costs for the appeal, and direct that the costs of the first trial be remitted to the trial judge hearing the new trial.

“P. Lauwers J.A.”

“David Brown J.A.”

“I.V.B. Nordheimer J.A.”