Court of Appeal for Ontario

Date: 2023-09-07 Docket: COA-22-CV-0380

Before: Feldman, Benotto and Roberts JJ.A.

Between:

Kenneth Bunker and Christy O’Donnell as Executors of the Estate of Donald Harry Bunker Applicants (Respondents)

And:

Ian and Christine Veall, Attorney General of Canada, and Attorney General of Ontario Respondents (Appellants)

Counsel: Robert Frater, K.C. and Young Park, for the appellants Aaron Kreaden and Hamza Mohamadhossen, for the respondents

Heard: July 5, 2023

On appeal from the order of Justice Cory A. Gilmore of the Superior Court of Justice, dated October 28, 2022, with reasons reported at 2022 ONSC 6087.

Costs Endorsement

[1] On July 5, 2023, following submissions on a preliminary jurisdictional question raised by the court, this court allowed the appeal and set aside the application judge’s October 28, 2022 order, with reasons to follow. Reasons were released on July 21, 2023.

[2] We determined that the application judge and this court did not have the jurisdiction in the circumstances of this case to decide whether making a proposed payment would constitute an offence under s. 83.03(b) of the Criminal Code.

[3] The parties were invited to make written submissions regarding the disposition of costs below and on appeal, if they could not agree on their disposition. They could not and delivered submissions, which we have reviewed.

[4] Our disposition of the appeal turned on the threshold question of whether the court had jurisdiction to make the declaration of illegality requested by the respondents. The question of jurisdiction was not raised by the parties but by this court. In written and oral submissions, the parties maintained that the application judge and this court had jurisdiction to make the requested declaration. We determined that the court had no such jurisdiction, allowed the appeal and set aside the declaration of illegality.

[5] Given the unique circumstances of this case where the disposition of the appeal was based on a threshold jurisdictional question posed by the panel and did not determine the substantive issues underlying the appeal, it is reasonable and fair that the parties bear their own costs below and on appeal.

[6] Accordingly, we set aside the application judge’s costs order and order that there be no costs of the application or the appeal.

“K. Feldman J.A.”

“M.L. Benotto J.A.”

“L.B. Roberts J.A.”