Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20241003 DOCKET: COA-23-CV-0698

Before: Hourigan, Trotter and Gomery JJ.A.

BETWEEN:

Leslie Arthur Swan Plaintiff (Appellant)

and

Firearms Safety Education Service of Ontario*, Cindy Baldree*, Doug Marshall*, Don Bell*, Bryan Martin*, Jane Do, John Doe, ABC Corporation and XYZ Corporation Defendants (Respondents*)

Counsel: Frances Marinic, for the appellant Chris Afonso and Lujza Csanyi, for the respondents, Firearms Safety Education Service of Ontario, Cindy Baldree, Doug Marshall and Don Bell Brendan Haynes and Michael Saad, for the respondents, His Majesty the King in Right of Ontario, as represented by the Ministry of Community Safety and Correctional Services, the Chief of Firearms Office of Ontario, Andrew Ferguson and Bryan Martin

Heard and released orally: September 27, 2024

On appeal from the order of Justice Julia Shin Doi of the Superior Court of Justice, dated June 1, 2023, with reasons reported at 2023 ONSC 4960.

REASONS FOR DECISION

[1] The appellant was a licensed firearms instructor with the Firearms Safety and Education Service of Ontario (the “FSESO”) and was designated by the Chief Firearms Officer to teach and test firearms safety courses.

[2] An investigation into the appellant’s teaching resulted in a de-designation as a firearms instructor. The appellant commenced two actions arising from his de-designation: one against the FSESO and certain individuals (the “2018 Action”) and one against His Majesty the King in Right of Ontario as well as the FSESO (the “2022 Action”). Both contained overlapping allegations based on the same underlying events.

[3] On the respondents’ motion to strike the 2022 Action, the motion judge found the 2022 Action to be significantly duplicative of the 2018 Action. She struck the 2022 Action as against His Majesty the King in Right of Ontario because no notice was given to the Crown pursuant to the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17. Certain claims in the 2022 Action were found to be statute-barred and were struck as against the FSESO. The remaining claims in the 2022 Action were stayed as against the FSESO. Leave was granted to amend the statement of claim in the 2018 Action to incorporate the struck or stayed claims from the 2022 Action.

[4] The appellant was ordered to pay costs to the respondents on a partial indemnity basis: $22,890.00 payable to His Majesty the King in Right of Ontario; and $14,121.96 payable to the FSESO.

[5] The only issue before us is the appellant’s appeal of the costs awarded against him. Given that the cumulative costs award falls below the $50,000 threshold in s. 19(1.2)(a) of the Courts of Justice Act, R.S.O. 1990, C. C.43, we do not have jurisdiction to hear this appeal. Although the monetary limit in s. 19(1.2)(a) is set “exclusive of costs”, the limit applies to costs when the costs order is the subject of the appeal: Mullin v. Lagace, 2015 ONCA 757, at para. 13. Accordingly, the appeal is dismissed. The costs of this appeal are payable by the appellant to the respondent, His Majesty the King, in the all-inclusive sum of $8,000 and to the respondents, the FSESO, Cindy Baldree, Doug Marshall and Don Bell, in the all-inclusive sum of $8,000.

“C.W. Hourigan J.A.”

“Gary Trotter J.A.”

“S. Gomery J.A.”