



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Floward Enterprises Ltd. (H. Williams and
    Co.), 2017 ONCA 643

DATE: 20170804

DOCKET: C61163

Gillese, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Floward Enterprises Ltd. o/a H. Williams and Co.

Applicant (Respondent)

and

The Estate of Martin
    Winberg

(Appellant)

Paul Adam, for the appellant, the Estate of Martin
    Winberg

Jordan Green, for the respondent, Floward Enterprises
    Ltd.

Michael Fawcett, for the respondent, Her Majesty the Queen

Heard: May 1, 2017

On appeal from the order of Justice Nola E. Garton of the Superior
    Court of Justice, dated September 21, 2015.

COSTS DECISION

Gillese J.A.:

Overview

[1]

This proceeding relates to a stolen diamond that
    Toronto police seized from a pawnbroker as part of a criminal investigation.  When
    the criminal proceedings relating to the diamond were over and it was time for
    the police to release the diamond, a contest emerged between the pawnbroker and
    the estate of the individual from whom the diamond had been stolen.

[2]

The pawnbroker successfully brought an
    application under ss. 490(7) and (9)(c) of the
Criminal Code
,
    R.S.C. 1985, c. C-46
for the return of the diamond.

[3]

The estate appealed, pursuant to s. 490(17).

[4]

The Crown took a limited role on the appeal. 
    Its submissions addressed only the s. 490 process.  It took no position on the
    factual matters that divided the parties or on the question of entitlement to
    the diamond.

[5]

By reasons dated June 2, 2017 (the Reasons),
    this court allowed the appeal.

[6]

The estate and the pawnbroker (the Parties)
    each seek costs of the appeal.  For the reasons that follow, i
n the
    circumstances of this case, I am of the view that the court does not have the power
    to order costs in favour of either of the Parties.

The Parties Positions

[7]

Both Parties claimed costs of the appeal in their
    written documentation filed on the appeal.  In the Reasons, this court
    indicated that if the Parties wished to pursue the matter of costs of the
    appeal, they were to file further written submissions on the matter, including
    a statement of this courts jurisdiction to make such an award.

[8]

The Parties filed such further submissions, each
    taking the position that it was entitled to costs of the appeal from the other.

[9]

The estate submits that this court has inherent
    jurisdiction to award costs under s. 131 of the
Courts of Justice
    Act
,
R.S.O. 1990, c. C.43
    and that other applicable statutory provisions do not abridge this inherent
    jurisdiction.  It seeks costs on a substantial indemnity basis of
    approximately $30,000.  It claims entitlement to costs as the successful party
    on the appeal.  It claims substantial indemnity costs on the basis that counsel
    for the pawnbroker unreasonably complicated the appeal process and failed to
    abide by the norms that govern lawyers, including by failing to make full and
    frank disclosure on the application.

[10]

In its submissions, the pawnbroker indicates
    that it is not aware of this Courts jurisdiction to award costs.  Nonetheless,
    it seeks costs of $3,000 from the estate because it contends that the estate
    unnecessarily complicated the appeal and caused it to suffer costs thrown away.

[11]

Based on s. 490(17), the Crown submits that this
    court does not have jurisdiction to make a costs award on the appeal.

Analysis

[12]

In the circumstances of this case, in my view, this
    court does not have the power to award costs to either of the Parties.

[13]

It will be recalled that the estate brought its
    appeal under s. 490(17).  The relevant parts of s. 490(17) read as follows:

490(17)
A
    person who feels aggrieved by an order made under subsection
(8),
(9)
, (9.1) or (11)
may appeal
from the order

(a)
to the court of appeal as defined in section 673 if the order was
    made by a judge of a superior court of criminal jurisdiction,
in which case
    sections 678 to 689 apply
with any modifications that the circumstances
    require  [Emphasis added.]

[14]

In my view, in accordance with s. 490(17)(a),
    ss. 678 to 689 of the
Criminal Code

apply. 
    The estate was the person who felt aggrieved by the order and brought the
    appeal.  The order was made under ss. 490(9)  the pawnbroker having brought
    its application for return of the diamond under ss. 490(7) and (9)(c).   And,
    the order was made by a judge of the Ontario Superior Court of Justice, a superior
    court of criminal jurisdiction.

[15]

Section 683 sets out various powers of this
    court on an appeal under Part XXI of the
Criminal Code
.  Subsection 683(3) expressly deals with the matter of costs.  It
    reads as follows:

683(3)
A court
    of appeal may exercise in relation to proceedings in the court, any powers not
    mentioned in subsection (1) that may be exercised by the court on appeals in
    civil matters, and may issue any process that is necessary to enforce the
    orders or sentences of the court, but
no costs shall be allowed to the
    appellant or respondent on the hearing and determination of an appeal or on any
    proceedings preliminary or incidental thereto
.  [Emphasis added.]

[16]

For ease of reference, I will refer to the emphasized
    part of s. 683(3) as the Costs Part.

[17]

The Costs Part of s. 683(3) provides that no
    costs shall be allowed to the appellant or respondent on the hearing and
    determination of an appeal.  In this matter, the estate is the appellant and
    the pawnbroker is the respondent.  Therefore, in my view, on a plain reading of
    the Costs Part of s. 683(3), this court does not have the power to order costs
    of the appeal to either of the Parties.

[18]

The estate recognizes that s. 683(3) addresses the
    matter of costs but submits that s. 683(3) is to be read in relation to the
    overall purpose of s. 683, which is to deal with the powers of the court of
    appeal to receive and order the production of evidence.  Therefore, the estate
    submits, there is no statutory provision governing costs of the appeal and this
    court is free to rely on its inherent jurisdiction to award the same.

[19]

The estate relies on the following passage in
R
    v. Geauvreau
,

[1982] 1 S.C.R. 485, at p. 490, for
    this submission:

Section [683]
[1]
of the
Criminal Code
is primarily concerned with evidentiary questions
    and the following passage taken from the dissenting judgment of Chief Justice
    Laskin in
Elliott v. The Queen
, [1978] 2 S.C.R. 393 at p. 409 reads as
    follows:

I am unable to
    accept the view that s. [683(3)] confers any power upon a court of appeal to
    amend an indictment.  That subsection takes its context from the preceding
    provisions of s. [683] which concern evidentiary questions.  The opening words
    of s. [683(3)] show its limited range; they provide that A court of appeal may
    exercise  any powers not mentioned in subsection (1) that may be exercised 
    on appeals in civil matters.  The subsection cannot, therefore, be read as if
    it was a detached and separate provision.  Although Wilson J.A. purported to
    find support for his view in this Courts judgment in
Kissick v. The King
[1952]
    1 S.C.R. 343, that case was concerned with an issue as to admissibility of
    evidence and thus related to the very subject-matter of s. [683].  Still less
    can s. [683(3)] be relied upon to authorize a court of appeal to substitute a
    different charge from the one on which the case came before it.

[20]

I
    do not accept the estates submission.

[21]

The
    words of the Costs Part of s. 683(3) are clear, broad and mandatory  no costs
    shall be allowed  on the hearing and determination of an appeal.  There is
    nothing in this wording to indicate that the prohibition against costs is
    limited to evidentiary questions.

[22]

Further,
    I do not find that
Geauvreau

assists the estate.

[23]

In
Geauvreau
, the accused was convicted of having in his possession an
    outboard motor knowing it to have been obtained by the commission of an
    indictable offence.  On his appeal, the Crown sought to have the Court of
    Appeal uphold the conviction by amending the information to read derived
    indirectly from rather than obtained by, to conform to the evidence.  The
    Court of Appeal allowed the appeal, quashed the conviction, and ordered a new
    trial on the amended information.

[24]

The
    Crown appealed.

[25]

The
    Supreme Court dismissed the appeal, stating that an appellate court would
    require the clearest statutory basis to materially amend the information and
    uphold a conviction based on it.  In affirming the Court of Appeal decision, it
    noted that a new trial on the amended information ensured that the accused was
    informed of the charge against him before his trial commenced and provided him
    with a continuing opportunity to meet the amended charge as the trial
    progressed.

[26]

It
    is within this context that the Supreme Court stated, in the above-quoted
    passage in
Geauvreau
, that s. 683 is primarily concerned with
    evidentiary questions.  Two points show why that statement does not
    circumscribe the Costs Part of s. 683(3).

[27]

First,
    s. 683(3) did not expressly address the matter in issue in
Geauvreau

    namely, whether the court of appeal had the power to amend an indictment or
    information.  Contrast that with this case, where s. 683(3) expressly addresses
    the power of the court to order costs of the appeal, stipulating that the court
    shall not allow such costs to the appellant or respondent.

[28]

Second,
    in
Geauvreau
,
the Supreme Court was considering the first part
    of s. 683(3), which expressly refers to s. 683(1).  Recall the first part of s.
    683(3)  A court of appeal may exercise  any powers
not mentioned in
    subsection (1)
that may be exercised by the court on appeals in civil
    matters (emphasis added).  The Supreme Court stated that s. 683(3) could not
    be read as if it was a detached and separate provision from s. 683(1), which deals
    with the powers of the court of appeal on evidentiary matters such as the
    production of documents and the calling of witnesses.    It was in this context
    that the Supreme Court stated that s. 683 is primarily concerned with
    evidentiary questions.

[29]

But
    this case is different.  The Costs Part of s. 683(3) does not refer to s.
    683(1).  It makes the clear and simple statement that no costs shall be
    allowed to the appellant or respondent  on the hearing and determination of an
    appeal.  I see no reason to depart from the plain meaning of those words.

DISPOSITION

[30]

Accordingly,
    I would order that there shall be no costs of the appeal to either the estate
    or the pawnbroker.

E.E.
    Gillese J.A.

I
    agree. Grant Huscroft J.A.

I
    agree. G.T. Trotter J.A.





[1]

When
Geauvreau
was decided, s. 683 was s. 610 and s.
    683(3) was s. 610(3).


