Court File and Parties

COURT FILE NO.: CV-18-595542 COURT FILE NO.: CV-18-595997 DATE: 20190408 SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-18-595542 RE: SYLVIETTE RITA BROWN, Trustee, GREENWORLD DISABILITY TRUST and GREENWORLD FARMING as Applicable to Property Roll No. 1970 000 012 76100 (Lot 7W Con. 2) Applicants

AND:

DEPARTMENT OF JUSTICE, CANADA, MINISTRY OF THE ATTORNEY GENERAL, ONTARIO, LAKE SIMCOE REGION CONSERVATION AUTHORITY Respondents

COURT FILE NO.: CV-18-595997 AND RE: MURRAY BROWN, and SYLVIETTE RITA BROWN, Trustee, GREENWORLD DISABILITY TRUST and GREENWORLD FARMING as Applicable to Property Roll No. 1970 000 012 76100 (Lot 7W Con. 2) Appellants (Applicants)

AND:

LAKE SIMCOE REGION CONSERVATION AUTHORITY, MINISTRY OF THE ATTORNEY GENERAL, ONTARIO Respondents

BEFORE: Cavanagh J.

COUNSEL: Murray Brown and Sylviette Rita Brown, In Person John A. Olah and Francesca D’Aquila-Kelly, for the Respondent, Lake Simcoe Region Conservation Authority Ravi Amarnath, for the Respondent, Ministry of the Attorney General, Ontario

HEARD: By Written Submissions

COSTS ENDORSEMENT

[1] There were two related proceedings before me on March 4, 2019: an application and an appeal. Both proceedings related to convictions for provincial offences against Murray Brown, one of the appellants, and the sentence given for these convictions.

[2] The applicants in the application are Sylviette Rita Brown, trustee, Greenworld Disability Trust and Greenworld Farming as applicable to Property Roll No. 1970 000 012 76100 (Lot 7W Con. 2). Murray Brown is not an applicant.

[3] Mrs. Brown, as trustee, and the Greenworld entities are named as appellants on the appeal. Mr. Brown is also named as an appellant. The appellants brought a motion in the appeal proceeding that was before me on March 4, 2019.

[4] Mr. and Mrs. Brown are husband and wife. Mr. and Mrs. Brown appeared in person at the hearing on March 4, 2019.

[5] The respondents to the application and on the appeal are the Lake Simcoe Region Conservation Authority (the “Authority”) and the Attorney General of Ontario (“Ontario”). The Authority and Ontario each brought a motion in each of these proceedings to strike out, stay, or dismiss the proceeding.

[6] For written reasons released on March 5, 2019, the application was struck out and dismissed and the appeal (and the appellants’ motion brought in the appeal) was struck out.

[7] I invited the parties to make written submissions with respect to costs. This is my endorsement with respect to costs of the application and of the appeal.

Costs claimed by the Authority

[8] The Authority seeks costs of the application and costs of the appeal on a substantial indemnity scale. The Authority submits:

a. There were serious and unsubstantiated allegations of fraud made in the applicants’ written submissions and in the oral submissions of Mr. Brown on the application. b. The applicants and appellants abused the process of the court by their improper conduct by (i) initiating the appeal in the wrong court and in the wrong jurisdiction in an effort to avoid the payment of the fines imposed by the trial court before filing an appeal, (ii) disregarding the schedule for delivery of documents set by Gans J. on May 28, 2018, and (iii) failing to serve an application record and factum in accordance with rule 38.09 of the Rules of Civil Procedure. c. Mr. and Mrs. Brown made tactical choices to initially fail to appear of the hearing on March 4, 2019 and by failing to confirm the application and the appeal with the court office, and these improper tactical choices should be sanctioned through an award of costs.

[9] The Authority submits that the overall conduct of the applicants and the appellants, represented at the hearing by Mr. and Mrs. Brown, is such that it should be viewed as reprehensible, scandalous and outrageous conduct that is deserving of sanction through an award of costs on a substantial indemnity scale.

[10] The Authority seeks costs of the application in the amount of $19,001.35 and costs of the appeal in the amount of $11,825.03.

[11] Mrs. Brown, as trustee, and Mr. Brown submit that the allegation of fraud was not advanced in a malicious or high-handed manner and that the submissions made by Mr. Brown represented his honest belief that the proceedings taken in the Provincial Offences Court violated his constitutional rights and that documents relied upon at the trial were fraudulently misrepresented.

[12] Mrs. Brown and Mr. Brown submit that the interests of justice and proportionality support an order that there be no costs, or that costs should be reserved to be determined in Mr. Brown’s pending appeal of his convictions and sentence at the Ontario Court of Justice or in a separate civil action by Mrs. Brown, as trustee, against the Authority.

[13] In support of its request for costs on a substantial indemnity scale, the Authority relies upon statements made in paragraphs 1.6 and 12 of the applicants’ written submissions on the application which read:

1.6 Writ of Certiorari: the Applicant further seeks a review of LSRCA’s Jurisdiction by way of the Writ of Certiorari to determine its power of enforcement and jurisdiction to act wherein there are fraudulent misrepresentations on the face of the Provincial Offence Court (POC) Record and where no appeal is available to the Applicants, no Orders and no judgement pertains to finding of guilt as applicable to the Trust as an Entity under the exclusive care and control of the registered Trustee;

12. ... In this case the POC acting on fraudulent misinformation advanced by way of LSRCA did result in both LSRCO and the POC acting without jurisdiction and in excess of jurisdiction. The POC not only take away the Trusteeship but also took away the Trustee’s right to protect both Trusts, Green World Disability Trust and GreenWorld Farming Trust.

The Authority also relies upon Mr. Brown’s oral submissions against the Authority and its counsel including statements that the Authority prosecuted him using “fraudulent photographs” that were “doctored”.

[14] In the reasons for my orders, I was not required to make any findings with respect to factual matters raised by the applicants or the appellants. The application was struck out and dismissed because the applicants lacked standing and because the application was an impermissible collateral attack on the convictions and sentence. The appeal was struck out because it was brought in the wrong court and, in any event, Mrs. Brown and the Greenworld entities lacked standing.

[15] In the absence of findings with respect to the allegations against the Authority, I exercise my discretion not to sanction Mr. Brown or Mrs. Brown for statements in relation to factual matters that did not require adjudication through an award of substantial indemnity costs. In exercising my discretion in this way, I wish to be clear that I did not find that there was any factual basis in the record before me for statements made by the applicants and the appellants that the Authority acted fraudulently or improperly. I do not regard the procedural steps taken and not taken in this case to rise to the level of reprehensible conduct that would justify an award of costs on a substantial indemnity scale.

[16] The Authority is entitled to costs of the application and the appeal on a partial indemnity scale.

[17] The Authority submits that if costs of the application are awarded on a partial indemnity scale, fees of $12,331.30 plus a counsel fee for appearance at the hearing of $795 are reasonable and proportionate in the circumstances. The Authority submits that I should consider as relevant factors under rule 57.01(1) of the Rules of Civil Procedure that it was forced to respond to an improperly brought application where the applicants had no standing, and that the application was an impermissible attempt to collaterally attack the decisions of Justice of the Peace Seglins.

[18] I accept these submissions, and I fix costs of the application to be paid by the applicants to the Authority in the amount of $14,727.41 inclusive of fees and disbursements of $1,601.11.

[19] The Authority submits that if costs of the appeal are awarded on a partial indemnity scale, fees of $7,680 plus a counsel fee for appearance of counsel at the hearing of $795 are reasonable and proportionate in the circumstances. The Authority claims disbursements of $560.67. The Authority submits that I should consider as relevant factors under rule 57.01(1) of the Rules of Civil Procedure that it was forced to respond to an appeal that was brought in the wrong court, the appellants failed to comply with the Rules of Civil Procedure, and the motion brought in the appeal was improperly brought and sought relief that was not available.

[20] I accept these submissions, and I fix costs of the appeal to be paid by the appellants to the Authority in the amount of $9,035.67 inclusive of fees and disbursements.

Costs claimed by Ontario

[21] Ontario seeks costs of the application and the appeal fixed in the amount of $1,000 inclusive of disbursements. Ontario submits that one of the purposes of costs is to deter frivolous actions. Ontario submits that it was not a party in the underlying proceeding against Mr. Brown and, nonetheless, it was named as a party in the application and the appeal. Counsel for Ontario spent 93 hours preparing written materials and attending court proceedings in respect of both proceedings. Ontario submits that the amount claimed is more than reasonable in light of the factors set out in rule 57.01(1) of the Rules of Civil Procedure.

[22] I accept these submissions.

[23] I fix costs of the application to be paid by the applicants to Ontario in the amount of $500.

[24] I fix costs of the appeal to be paid by the appellants to Ontario in the amount of $500.

Cavanagh J. Date: April 8, 2019