



COURT OF APPEAL FOR ONTARIO

CITATION: Holterman v. Fish, 2018 ONCA 683

DATE: 20180815

DOCKET: C63361

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

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 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 $5000 inclusive of taxes and disbursements.

Robert J. Sharpe
    J.A.

S.E. Pepall J.A.

L.B. Roberts
    J.A.


