



COURT OF APPEAL FOR ONTARIO

CITATION: Payne v. Mak, 2018 ONCA 622

DATE: 20180710

DOCKET: C63346

Strathy C.J.O., Feldman and Brown JJ.A.

BETWEEN

Gloria Payne, Hilary Payne and Laura Munro
    personally and as Litigation Guardian for Tara Munro and Shane Munro, minors

Plaintiffs (Appellants)

and

Christine Mak
,
Mike Owens
, Eerik Randsalu, The Office of the Fire
    Marshal,
Richard Cote
,
Windsor
    Police Services Board
,
Richard Marr
,
Windsor Fire and Rescue Services Department
,
Mario Sonego
,
The Corporation of
    the City of Windsor

Defendants (
Respondents
)

Raymond G. Colautti and Anita Landry, for the appellants

Sheila C. Handler and Paul Shand, for the respondents, Richard
    Cote, Windsor Police Services Board, Richard Marr, Windsor Fire and Rescue
    Services Department, Mario Sonego and The Corporation of the City of Windsor

Jeremy Glick and Heather Burnett, for the respondents, Christine
    Mak and Mike Owens

Heard: June 15, 2018

On appeal from the judgment of Justice Thomas A. Heeney
    of the Superior Court of Justice dated January 16, 2017, with reasons reported
    at 2017 ONSC 243.

Strathy C.J.O.:

[1]

Gloria
    Payne and her husband Hilary Payne (the appellants) appeal the dismissal of
    their action alleging negligent investigation, malicious prosecution, abuse of
    process and
Charter
damages, arising out of the respondents
    investigation of a fire at a house in Windsor, Ontario, which the appellants rented
    to university students.

[2]

The appellants
    purchased a house on Mill Street, near the University of Windsor, in 1996 (the
    Mill Street house or the house). It was a two-storey building with a
    basement and a loft above the second floor. There were seven bedrooms, which
    the appellants rented to students on an individual basis.

[3]

The Mill
    Street house was classified by the City as a duplex, although it was clearly
    not one. Following a previous fire at the house in 1999, a Fire Prevention
    Officer identified several violations of the provisions applying to duplexes in
    Ontario Regulation 388/97, passed under the
Fire Protection and Prevention
    Act, 1999
, S.O. 1999, c. 4 (the 
Fire Code
). The officer
    prepared a report noting the violations and requiring compliance by the owners.
    The appellants never received the report. The City did not follow up with the appellants
    to confirm the status of the Mill Street house.

[4]

After
    the 1999 fire, the appellants continued to rent the seven bedrooms to
    individual occupants. By early 2006, there were five individuals living in the
    house. On the night of January 25, 2006, one resident intentionally started a
    fire. There were five people in the house at the time of the fire: four
    residents and one guest.

[5]

The
    fire spread quickly throughout the main floor and up an open staircase to the
    second floor, and then to the loft. The evidence indicated that the fire
    separations protecting the main floor bedroom were not up to the standards
    prescribed by the
Fire Code
. The guest, who was trapped in the main
    floor bedroom, suffered critical injuries as a result.

[6]

The
    evidence also indicated that the fire spread rapidly up to the second floor and
    the loft, because the stairway was open and unprotected. The occupants of one
    second floor bedroom and the loft were unable to escape the fire by means of
    the stairway. Since no other fire escape was accessible, they were forced to
    jump from the roof to the ground and were injured. Two other residents escaped
    without injury.

[7]

The respondent,
    Detective Richard Cote (Cote), an employee of the Windsor Police Services
    Board, led a police investigation into the fire. Cote was assisted by the
    respondents Mike Owens and Christine Mak of the Office of the Fire Marshal (the
    OFM), and the respondent Richard Marr of the Windsor Fire and Rescue Services
    Department. The respondent Mario Sonego was the Chief Building Official for the
    City of Windsor (the City) at the time of the fire.

[8]

The
    investigation revealed that the Mill Street house was being used as a boarding,
    lodging and rooming house despite its classification in City records as a
    duplex, and that the house breached a number of requirements in s. 9.3 of the
Fire
    Code
applicable to boarding, lodging and rooming houses. These included
    the absence of a fire separation between the first and second floors, allowing
    the rapid spread of fire, inadequate fire separations between the rooms, and
    insufficient protection in stairways.

[9]

Given
    the breaches of the
Fire Code
, the extensive damage and the severity
    of the resulting injuries, Owens directed Cotes attention to s. 436 of the
Criminal
    Code
. That section, which is described in the marginal note as arson by
    negligence, provides:

(1) Every person who owns, in whole or in part, or
    controls property is guilty of an indictable offence and liable to imprisonment
    for a term not exceeding five years where, as a result of a marked departure
    from the standard of care that a reasonably prudent person would use to prevent
    or control the spread of fires or to prevent explosions, that person is a cause
    of a fire or explosion in that property that causes bodily harm to another
    person or damage to property.

(2) Where a person is charged with an offence under
    subsection (1), the fact that the person has failed to comply with any law
    respecting the prevention or control of fires or explosions in the property is
    a fact from which a marked departure from the standard of care referred to in
    that subsection may be inferred by the court.

[10]

Cote undertook a
    criminal investigation in relation to the appellants regarding possible charges
    of arson by negligence. He swore in the Information to Obtain a search warrant that
    he had reasonable and probable grounds to believe that they were guilty of an
    indictable offence. Following his investigation, Cote charged the appellants with
    arson by negligence contrary to s. 436.

[11]

The charge against
    Gloria Payne was subsequently withdrawn when it became clear that she was not
    involved in the operation of the Mill Street house and her husband Hilary Payne
    admitted that he had control of the premises. The charges against Mr. Payne
    proceeded to a preliminary inquiry.

[12]

The preliminary
    inquiry judge found that there was insufficient evidence to make out the
    essential elements of the offence of arson by negligence. He found that there
    was no causal link between the spread of the fire and the resulting bodily
    harm. Further, the judge was not satisfied that Mr. Payne possessed the
    requisite
mens rea
. The confusion over the classification of the Mill
    Street house as a duplex or a boarding, lodging and rooming house, and the
    failure of City employees to notify the appellants that the Mill Street house
    was operating contrary to the
Fire Code
, meant that Mr. Payne was not
    morally blameworthy. The preliminary inquiry judge discharged him.

[13]

The appellants subsequently
    brought this action alleging negligent investigation, malicious prosecution and
    abuse of process against the individual respondents and seeking to hold their
    employers (the OFM, the Windsor Police Services Board, the Windsor Fire and
    Rescue Services Department, and the City) vicariously liable. The appellants also
    sought s. 24 damages for violations of their s. 7
Charter
rights.
[1]

A.

The TRIAL Judges Reasons

[14]

The trial judge
    considered as a threshold issue whether he was bound by the factual findings of
    the preliminary inquiry judge. He concluded that he was not. Cote, Owens and
    Mak were simply witnesses at the preliminary inquiry. The other respondents did
    not participate in the preliminary inquiry at all. Moreover, the evidentiary
    record at the preliminary inquiry was considerably different than at trial.

[15]

The trial judge proceeded
    to consider whether the elements of the torts of malicious prosecution and
    abuse of process had been proven. The appellants argued that the City and the
    OFM pressured Cote to lay criminal charges against them for the improper
    purposes of discouraging landlords from renting houses to students and
    cracking down on illegal student housing.

[16]

The trial judge found
    that Cote acted independently in charging the appellants. There was no evidence
    that anyone pressured him to lay the charges. The respondents had acted in good
    faith, without malice or negligence. He found as a fact, at para. 70, that Cote
    laid the charges because he honestly concluded that he had reasonable and
    probable grounds to believe that an offence had been committed, and not for any
    ulterior or improper purpose, nor as a result of any malice towards the
    plaintiffs.

[17]

He came to similar
    conclusions with respect to Owens and Mak, finding that there was no evidence
    that they desired or intended that the plaintiffs be charged, nor that they
    subverted the investigation, and indeed that they acted in good faith in the
    execution of their duties. He found that this was a complete defence to all
    personal claims against them and dismissed the action against them in its
    entirety.

[18]

Given the trial
    judges finding that no malice had been proven, he dismissed the appellants claims
    based on malicious prosecution and abuse of process. No appeal is taken from
    that disposition.

[19]

The trial judge then
    turned to the appellants
Charter
claim. The appellants argued that
    the police were liable for a breach of their s. 7 rights for proceeding with charges
    without reasonable and probable grounds, even in the absence of malice.

[20]

The trial judge noted
    that the fatal flaw in the appellants
Charter
claim was that they had
    brought it against individual defendants and not against the state. Further, he
    found that the appellants were attempting to advance a malicious prosecution
    claim in the guise of a s. 24
Charter
claim, in an effort to get
    around the clear requirement that malice be proven. Finally, the appellants
Charter
claim rested on the argument that the laying of the charges was arbitrary state
    action because the
Fire Code
definition of a boarding, lodging and
    rooming house was vague. The judge disagreed. He found that the definition is
    capable of being understood by an ordinary person based on the plain language
    used and the application of common sense. He dismissed the appellants
Charter
claim.

[21]

With respect to the appellants
    claim of negligent investigation, the trial judge noted the general rule that
    expert evidence is required to determine professional negligence. There was no
    evidence before him as to the prevailing standard of care, nor any evidence
    that Cote had breached that standard. However, the trial judge noted that
    [t]he requirement of reasonable and probable grounds for arrest and
    prosecution informs the standard of care applicable to some aspects of police
    work, such as arrest and prosecution:
Hill v. Hamilton-Wentworth Regional
    Police Services Board
, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 55.
    Since the issue of whether Cote had reasonable and probable grounds to believe
    that the appellants were guilty of arson by negligence was a nontechnical
    matter within the knowledge and experience of the ordinary person, it fell
    within the exception to the rule requiring expert evidence.

[22]

The trial judge
    considered whether Cote had reasonable and probable grounds to believe that the
    appellants had committed arson by negligence contrary to s. 436 of the
Criminal
    Code
.

[23]

The judge was
    satisfied, on all the evidence, and found as a fact that the Mill Street house
    was a boarding, lodging and rooming house within the meaning of s. 9.3 of the
Fire Code
, which applied to the house. Cote had reasonable and
    probable grounds to believe: (a) that the appellants owned the Mill Street
    house at all material times; (b) that s. 9.3 of the
Fire Code
applied
    to the house because it was being operated as a boarding, lodging and rooming
    house; (c) that a marked departure from the standard of care could be inferred from
    the appellants failure to comply with s. 9.3 of the
Fire Code
; and
    (d) that this marked departure was a cause of the spread of the fire, which in
    turn caused the damage or injury.

[24]

The trial judge
    concluded that Cotes belief that he had reasonable and probable grounds to lay
    charges against the appellants under s. 436 was both subjectively and
    objectively justifiable in the circumstances of the case. This was not negated
    by the absence of evidence of the appellants moral blameworthiness. Cote had
    reasonable grounds to believe the elements of the offence existed. He did not
    need to go beyond that assessment. The trial judge noted that Cote was not
    required to establish a
prima facie
case for conviction before laying
    the charges:
R. v. Storrey
, [1990] 1 S.C.R. 241, at p. 251.

[25]

The trial judge held
    that the failure to prove that charges were laid absent reasonable and probable
    grounds was fatal to the appellants claim for negligent investigation.
    Accordingly, he dismissed the claim against the individual respondents for
    negligent investigation. It followed that the vicarious liability claims
    against their employers were also dismissed.

[26]

In the result, the
    trial judge dismissed the appellants action in its entirety.

B.

the parties submissions

[27]

Against this background of findings of
    fact firmly grounded in the evidence, the appellants acknowledge that the issue
    in this appeal boils down to whether Cote had reasonable and probable grounds
    to charge them with arson by negligence.

[28]

The appellants assert that reasonable
    and probable grounds did not exist, because Cote had no evidence of
mens
    rea
or moral culpability. They clearly had
    nothing to do with the origin of the fire. They reasonably believed that they
    had observed all applicable laws and reasonably relied on prior inspections and
    the Citys classification of the Mill Street house as a duplex. Cote, they say,
    knew or ought to have known that they believed that the house complied with the
Fire Code
. They received no notice
    that it had been re-classified as a boarding, lodging and rooming house, to
    which more stringent provisions of the
Fire Code
applied. This was particularly the case for Mrs. Payne,
    who was simply an owner of the house.

[29]

The respondents submit that the
    appellants conflate what is required in order to obtain a conviction with what
    is required to charge an accused in a case such as this. They say the
    appellants fail to consider the appropriate
mens rea
for a penal negligence case. They rely on
R. v.
    Beatty
, 2008 SCC 5, [2008] 1 SCR 49, for the
    proposition that a modified objective test applies. If there is a finding of a marked
    departure from the standard of care that a reasonable person would use, the
    trier of fact may draw the necessary inference of
mens rea
, subject to any evidence that may be introduced as to the
    accuseds actual state of mind or capacity to appreciate the risk.

C.

analysis

[30]

The trial judges factual findings are
    reviewable on a palpable and overriding error standard and are entitled to
    deference. Whether those facts are sufficient in law to constitute reasonable
    and probable grounds is reviewable on a correctness standard: see
Tremblay
    v. Ottawa (Police Services Board)
, 2018 ONCA 497,
    at paras. 43-45, referring to
R. v. Shepherd
, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20;
R.
    v. Anang
, 2016 ONCA 825, at para. 13.

[31]

It is well-settled
    that a police officers personal belief that there are reasonable and probable
    grounds is not sufficient to arrest and charge an individual. It must be
    objectively established that a reasonable person standing in the shoes of the
    officer would have believed that reasonable and probable grounds existed to
    make the arrest: see
R. v. Storrey
, above, at p. 250.

[32]

The trial judge set
    out the elements of the offence of arson by negligence at paras. 113-116 of his
    reasons. To establish the
actus reus
of the offence, the Crown must
    prove beyond a reasonable doubt that:

(a) the accused owned or controlled the property in question;

(b) the accuseds behaviour represented a marked departure from
    the standard of care that a reasonably prudent person would use to prevent or
    control the spread of fires or to prevent explosions; and

(c) that the culpable behaviour was a cause of a fire, or of
    its spread, or of an explosion causing damage.

[33]

The trial judge noted
    that it was not necessary for the Crown to prove that the marked departure from
    the standard of care actually
caused
the fire. It
    was sufficient that the Crown prove beyond a reasonable doubt that the marked
    departure of the owners was
either
a cause of the
    fire, or a cause of the spread of the fire, which in turn caused damage or
    injury.

[34]

Moreover, the trial
    judge noted that subsection (2) provides that a marked departure from the
    standard of care may be inferred by the court where the owner fails to comply
    with any law respecting the prevention or control of fires  in this case, the
Fire
    Code
.

[35]

The leading case on s.
    436 is the decision of this court in
R. v. Harricharan
(1995), 23 O.R.
    (3d) 233 (C.A.), which was considered by the trial judge. The majority, Morden A.C.J.O.
    and Catzman J.A., agreed that the section imposes a duty to control the spread
    of a fire that, in turn, causes bodily harm or damage to property, even if the
    fire was originally caused by some agency other than that of the accused. The
actus
    reus
of the offence is an act or omission that is a breach of the duty to
    prevent or control the spread of fires. Morden A.C.J.O. noted, at para. 40,
    that [t]he accused, as a result of a breach of the duty, may be a cause of
    the spread of a fire that, in turn, causes bodily harm or damage. He is,
    therefore, a cause of a fire that causes injury or damage. All three members
    of the court, Morden A.C.J.O., Catzman and Abella JJ.A., agreed that the Crown
    must prove a causal connection between the accuseds breach of duty, the
    resulting spread of the fire and the bodily injury or damage to property.

[36]

The appellants say
    that Cote did not have actual or objectively reasonable grounds to charge them with
    the offence, because he knew or ought to have known that they did not have the
    requisite
mens rea
. Cote, they say, failed to consider whether they knew
    or ought to have known that the house violated the
Fire Code
.

[37]

This raises the issue
    of the requisite
mens rea
in negligence-based criminal cases such as
    this.

[38]

In
R. v. Beatty
,
    above, a case dealing with the offence of dangerous operation of a motor vehicle
    (s. 249(4)), the Supreme Court of Canada confirmed that the modified objective
    test remains the appropriate test to determine the requisite
mens rea
for negligence-based criminal offences. Charron J., who gave the majority
    judgment, summarized the test in terms of both the
actus reus
and the
mens
    rea
of the offence.

[39]

Charron J. defined the
actus reus
by the words of the statute. The trier of fact was required
    to be satisfied beyond a reasonable doubt that, viewed objectively, the accused
    was driving in a manner that was dangerous to the public, having regard to all
    the circumstances: see
Beatty
, at para. 43.

[40]

With respect to the
mens
    rea
, Charron J. stated that in making the objective assessment, the trier had
    to be satisfied on the basis of all the evidence, including any evidence about
    the accuseds actual state of mind, that the conduct amounted to a marked
    departure from the standard of care that a reasonable person would observe in
    the accuseds circumstances. If an explanation is offered by the accused, then
    in order to convict the trier must be satisfied that a reasonable person in
    similar circumstances ought to have been aware of the risk and of the danger
    involved in the conduct manifested by the accused:
Beatty
, at para.
    43.

[41]

She noted, however,
    that the requisite
mens rea
can be satisfied by applying the modified
    objective test. Unlike offences that can only be committed if the accused has a
    subjective
mens rea
, it is not necessary for the Crown to prove that
    the accused had a positive state of mind such as intent, recklessness or
    willful blindness. Charron J. noted, at para. 48:

[W]hile proof of subjective
mens rea
will clearly
    suffice, it is not essential. In the case of negligence-based offences such as
    this one, doing the proscribed act with the absence of the appropriate mental
    state of care may instead suffice to constitute the requisite fault. The
    presence of objective
mens rea
is determined by assessing the
    dangerous conduct as against the standard expected of a reasonably prudent driver.
    If the dangerous conduct constitutes a marked departure from that norm, the
    offence will be made out.

[42]

McLachlin C.J. who,
    with Binnie and LeBel JJ., concurred in the result, made the following
    important observation about the elements of the offence, at para. 58:

The jurisprudence of this Court offers assistance on what
    constitutes the
actus reus
and
mens rea
of dangerous driving
    and how the two elements of the offence should be described.
R. v. Hundal
,
[1993] 1
    S.C.R. 867
, confirmed in
R. v. Creighton
,
[1993] 3
    S.C.R. 3
, indicates that the characterization of marked departure
    from the norm applies to the
actus reus
of the offence, and that
the
mens rea
of the offence flows by inference from that finding, absent an
    excuse casting a reasonable doubt on the accuseds capacity
. [Emphasis
    added.]

[43]

McLachlin C.J. referred
    again, at para. 62, to her majority decision in
R. v. Creighton
. In
    that case, at pp. 73-74, McLachlin C.J. set out a line of inquiry for cases of
    penal negligence. The first question is whether the
actus reus
is
    established. The
actus reus
will be established where the negligence
    constitutes a marked departure from the standards of the reasonable person in
    all the circumstances of the case. She continued:

The next question is whether the
mens rea
is
    established. As is the case with crimes of subjective
mens rea
,
the
mens rea
for objective foresight of risking harm is normally inferred
    from the facts.
The standard is that of the reasonable person in the
    circumstances of the accused.
If a person has committed a
    manifestly dangerous act, it is reasonable, absent indications to the contrary,
    to infer that he or she failed to direct his or her mind to the risk and the
    need to take care. However, the normal inference may be negated by evidence
    raising a reasonable doubt as to lack of capacity to appreciate the risk.
Thus, if a
prima facie
case for
actus reus
and
mens rea
are
    made out, it is necessary to ask a further question: did the accused possess
    the requisite capacity to appreciate the risk flowing from his conduct? If this
    further question is answered in the affirmative, the necessary moral fault is
    established, and the accused is properly convicted. If not, the accused must be
    acquitted. [Emphasis added.]

[44]

Turning to the offence
    of arson by negligence, the
actus reus
is defined in s. 436(1) as a
    marked departure from the standard of care that a reasonably prudent person
    would use to prevent or control the spread of fires or to prevent explosions.
    And subsection (2) contains a statutory inference that the failure to comply
    with any law respecting the prevention or control of fires or explosions in the
    property is a fact from which a marked departure from the standard of care may
    be inferred. If the requisite marked departure, aided by the statutory
    inference, is present, it is reasonable for the trier to infer that the accused
    failed to direct his or her mind to the risk and to the need to take care. It
    remains open, of course, to point to other evidence or an explanation of the
    accuseds conduct, to raise a reasonable doubt as to whether a reasonable
    person in similar circumstances would have been aware of the risk. I agree with
    the respondents submission that the trier of fact must consider evidence about
    the actual state of mind of the accused, if any, to determine whether it raises
    a reasonable doubt about whether a reasonable person in the position of the
    accused would have been aware of the risk created by the accuseds conduct.
    And, if there is no such evidence, to convict.

[45]

Faced with the
    appellants ownership of the house, and in the case of Mr. Payne, his control
    of the house, the terms of the
Fire Code
, the evidence of their breach
    and the statutory inference of a marked departure from the standard of care, Cote
    had reasonable and probable grounds with respect to all of the elements of the
    offence, including both
actus reus
and the
mens rea
. The
    marked departure from the norm flowing from the statutory inference
    demonstrates sufficient blameworthiness to support penal liability: see
Beatty
,
    at para. 36.

[46]

As it happened, Mr. Payne
    was discharged at the preliminary hearing, apparently on the basis that there
    was no evidence that he had the necessary
mens rea
because there was
    no evidence that he had ever been informed that the house was classified as a boarding,
    lodging and rooming house or was otherwise operating contrary to the
Fire
    Code
. Whether that determination was correct, in light of the statutory
    inference, is not before us. What it does illustrate is that notwithstanding
    the objectively dangerous conduct and the inferences, statutory or otherwise,
    flowing from it, it remains open to an accused to point to evidence raising a
    reasonable doubt about whether a reasonable person in his or her position would
    have been aware of the risk created by that conduct.

[47]

Based on the evidence
    before him and the statutory inference, Cote had reasonable and probable
    grounds to believe that the appellants had committed an offence under s. 436.
    He had no obligation to determine whether the charge would succeed at trial. He
    was not required to evaluate the evidence to a legal standard or to make legal
    judgments. Nor was he required to exhaust all possible investigations, to
    interview all potential witnesses prior to arrest, to obtain the accuseds
    version of events or determine that the accused had no valid defence to the
    charge, before being able to establish reasonable and probable grounds:
Tremblay
    v. Ottawa (Police Services Board)
, above, at para. 60, referring to
495793
    Ontario Ltd. (Central Auto Parts) v. Barclay
, 2016 ONCA 656, 132 O.R. (3d)
    241 (C.A.).

[48]

In sum, the trial judge gave comprehensive and cogent reasons for
    his conclusion that Cote had reasonable and probable grounds to charge both Hilary
    and Gloria Payne under s. 436 of the
Criminal Code
. The appellants
    have demonstrated no palpable and overriding error in his findings of fact,
    which fully support the existence of reasonable and probable grounds to arrest.
    This conclusion applies to both Mr. and Mrs. Payne, who were statutorily liable
    as joint owners of the house. Once Hilary Payne admitted that he had control of
    the premises, the charges against his wife, Gloria Payne, were withdrawn. This
    was reasonable in the circumstances.

D.

costs

[49]

The appellants seek
    leave to appeal the trial judges costs awards of $260,000 in favour of the
    Windsor defendants and $231,100 to the OFM defendants. They submit that the
    costs were disproportionate, having regard to the trial judges assessment of damages
    at approximately $150,000.

[50]

It is well-settled
    that an appellate court should not interfere with a trial judges costs award unless
    the judge has made an error in principle or the award is plainly wrong:
Hamilton
    v. Open Window Bakery Ltd.
, 2004 SCC 9,
[2004] 1
    S.C.R. 303
, at para. 27.

[51]

There are no such
    circumstances here. While the costs were substantial, a high degree of
    deference should be given to the trial judge who identified the relevant
    principles, observed the conduct of the trial, considered offers of settlement
    and counter-offers made by the parties at various times and was well-
    positioned to determine the scale and quantum of costs.

[52]

He noted that at the
    outset of trial, the plaintiffs claimed damages of $4.7 million, although this
    was reduced to approximately $500,000 by the time of closing addresses. The
    respondents had to defend the action based on what was claimed, not on what
    ultimately might be awarded. Moreover, the plaintiffs had made unfounded allegations
    of misconduct and bad faith against the defendants, who were public servants.

[53]

The reasonable
    expectations of the parties are always significant in the award of costs. Here,
    at the outset of the trial, the trial judge asked the parties for their
    estimate of their costs of a three-week trial. He received a response of
    $200,000 from both. These expectations reasonably informed his costs award.

[54]

While I would grant
    leave to appeal costs, I would dismiss the appeal of costs.

E.

order

[55]

For these reasons, I
    would dismiss the appeal, with costs fixed at $20,000, inclusive of
    disbursements and all applicable taxes, to the respondents Mak and Owens and
    $30,000, inclusive of disbursements and all applicable taxes, to the respondents
    the City of Windsor
et al
.

Released: G.R.S. JUL 10 2018

G.R. Strathy C.J.O.

I agree. K. Feldman J.A.

I agree. David Brown J.A.





[1]

Before trial, the claims against the Office of the
    Fire Marshal were dismissed on consent. The claim against Eerik Randsalu was
    dismissed on summary judgment,

as were claims under ss. 8, 11(d)
and 11(g) of the
Charter
, leaving only the s. 7 claim under the
Charter
.
At trial, the claim for negligence was limited to negligent
    investigation and the claim for malfeasance in office was not pursued.


