Vallance v. Pickering (City), 2012 ONCJ 147

COURT FILE NO.: 2860 999 08 0414/0415 DATE: March 16, 2012 Citation: Vallance v. Pickering (City), 2012 ONCJ 147 ONTARIO COURT OF JUSTICE (Central East Region) B E T W E E N: ) ) RICHARD VALLANCE and WEB-TECH SAFETY PRODUCTS ) ) Richard Vallance for the Appellant ) ) ) ) ) ) THE CORPORATION OF THE CITY OFPICKERING ) ) D.S. Reiter, Counsel for the Respondent ) RULING ON COSTS BELLEFONTAINE, J: [1] During the hearing of the Appeal in this matter the issue of costs were reserved.

I have been asked to fix costs against theappellants pursuant to Section 129 (1) of the Provincial Offences Act and received written submissions from the parties. For the reasonsthat follow I decline to exercise my jurisdiction to award costs. [2] The appellants appealed their convictions pursuant to the Building Code Act and the sentences imposed of fines totaling $47,500.00exclusive of the additional victim fine surcharge. I upheld the convictions (see [2011] O.J. No. 6107), but reduced the fines to a total of$21,000.00 exclusive of the additional victim fine surcharge.

Unbeknownst to me, the Respondent city, in an effort to avoid the costs ofconducting the appeal had made an offer to settle the appeal for $21,000.00 on a reduced number of convictions. [3] Solicitor and client costs of $18,258.00 were incurred by the City following their offer to settle in order to defend the appeal. [4] Cost awards are an exception in Provincial Offences litigation, which are intended to be informal proceeding in which lay personscan participate as litigants; see R. v. Cox Construction

(2009) Carswell Ont. 8874 and R. v. Felderhof (ON SC),[2003] O.J. No. 393 and R. v. Garcia (ON CA), [2005] 195 O.A.C. 64 and R. v. Wells [2003] O.J. No. 2025. [5] I do not consider this case to be an exceptional one that merits departing from the rule that each side should bear their own costs.

The appeal was not meritless and bad faith or impropriety cannot be attributed to either party. Counsel for the City is to be commendedfor taking steps to resolve the matter and serving an offer to settle to further encourage a resolution. However, I do not consider theappellant’s lack of success at obtaining a better result than the offer to settle served on them to be functionally different from theirattaining no success at all on the appeal, in which case they would equally have not normally been liable for costs. As stated by Justice Lamer in R. v.

C.A.M. (1996) (SCC), 105 C.C.C. 3d 327 at para. 97: “The prevailing convention of criminal practice is that whether a criminal defendant is successful or unsuccessful on the meritsof the case, he or she is generally not entitled to costs”. [6] While I accept that the costs accrued have in the end result been completely unnecessary, the City is not in the position of a civillitigant. In their position as prosecutor under the Building Code Act, they do not win or lose cases. They conduct the prosecutions andmake decisions respecting the prosecutions in the public interest to ensure compliance with the Act.

Defendants are entitled to rely onthe presumption of innocence and burden on the Crown and pursue their rights to trial without being punished for doing so and similarlyshould be equally entitled to pursue their appeal remedies without punitive cost sanctions being imposed in the absence of mala fides ontheir part. Both parties chose to obtain senior specialists in municipal law in this matter to represent them as opposed to appearing ontheir own behalf as they could have done.

I do not consider that any of the parties should be prejudiced by virtue of the other partyhaving chosen to retain highly paid counsel, when litigants in identical cases where the parties chose to represent themselves or to berepresented by agents would not have to face similar significant financial repercussions to exercising their appeal rights. [7] Accordingly the application for costs is dismissed. Both sides shall bear their own costs. P.L. Bellefontaine, Justice