



COURT OF APPEAL FOR ONTARIO

CITATION: Fleming v. Ontario, 2018 ONCA 225

DATE: 20180308

DOCKET: C62876

Cronk, Huscroft and Nordheimer JJ.A.

BETWEEN

Randolph (Randy) Fleming

Respondent/Plaintiff

and

Her Majesty the Queen in right of the Province of
    Ontario, Provincial Constable Kyle Miller of the Ontario Provincial Police, Provincial
    Constable Rudy Bracnik of the Ontario Provincial Police, Provincial Constable Jeffrey
    Cudney of the Ontario Provincial Police, Provincial Constable Michael C. Courty
    of the Ontario Provincial Police, Provincial Constable Steven C. Lorch of the
    Ontario Provincial Police, Provincial Constable R. Craig Cole of the Ontario
    Provincial Police and Provincial Constable S.M. (Shawn) Gibbons of the Ontario
    Provincial Police.

Appellants/Defendants

Judie Im, Erin Rizok and Sean Hanley, for the appellants

Michael Bordin and Jordan Diacur, for the respondent

Heard: November 14, 2017

On appeal from the judgment of Justice Kim Carpenter-Gunn
    of the Superior Court of Justice sitting without a jury, dated September 22,
    2016.

COSTS ENDORSEMENT

[1]

On February 16, 2018, this court released its decision allowing the
    appeal, setting aside the trial judgment including all of the damage awards,
    and directing a new trial on the sole issue of whether excessive force was used
    when the respondent was arrested.  We invited the parties to make submissions
    on the issue of the costs of the appeal.  We have now received and reviewed
    those submissions.

[2]

The respondent submits that he ought not to have to pay the costs of the
    appeal because this is public interest litigation.  We do not agree.  The
    nature of the respondents proceeding does not fall within either of the two
    categories of public interest litigation as set out in
Odhavji Estate v.
    Woodhouse
, 2003 SCC 69, [2003] 3 S.C.R. 263.  As Iacobucci J. said, at
    para. 76:

The fact that the actions involve public authorities and raise
    issues of public interest is insufficient to alter the essential nature of the
    litigation.

[3]

The appellants are entitled to their costs of the appeal which we fix in
    the amount of $25,000 inclusive of disbursements and HST.

E.A. Cronk J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


