Lapointe v. Mount Polley Mining Corporation and HMQ Date:, 2017 BCPC 140

Citation: Lapointe v. Mount Polley Mining Corporation and HMQ Date: 20170510 2017 BCPC 140 File No: 34472-1 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal IN THE MATTER OF Ugo Lapointe v. Mount Polley Mining Corporation and HMQ in Right of British Columbia AND IN THE MATTER OF an application for costs by the private informant, Ugo Lapointe RULING ON APPLICATION OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for Ugo Lapointe : L. Lysenko

Counsel for Federal Crown: A. Clarkson Place of Hearing: Williams Lake, B.C. Date of Hearing: March 27, 2017 Date of Judgment: May 10, 2017 Introduction [1] On August 4th, 2014 there was a massive spill of mining waste at the Mount Polley mine near Likely, B.C. On October 18th,2016, frustrated by what he perceived as inaction or slow action on the part of government, Ugo Lapointe, of MiningWatch Canada, laida private information against Mount Polley Mining Corporation and HMQ in Right of British Columbia charging them with a number of offences under the Fisheries Act.

On January 13th, 2017, the day set for the ‘pre-enquete’ or process hearing, federal Crown Counseldirected a stay of proceedings pursuant to s. 579(1) of the Criminal Code with respect to this information.[1] Mr. Lapointe applies forcosts against the Crown[2] saying that the Crown negligently delayed its decision to stay proceedings until the last possible moment,thereby causing MiningWatch Canada to waste close to $65,000 in salaries, legal costs and travel expenses preparing for the processhearing.

Summary of Decision [2] I decline to award costs to Mr. Lapointe and dismiss his application. [3] The court has no jurisdiction to consider Mr. Lapointe’s application for costs because proceedings have been stayed. In legalterms, I am functus officio[3], or without jurisdiction as it concerns Mr. Lapointe’s information or anything related to it including hisapplication for costs.

In reaching this conclusion I am guided principally by a decision of the British Columbia Court of Appeal, R. v.Smith, (BC CA), [1992] B.C.J. 2730 and by a decision of my own court, the Provincial Court of British Columbia, R. v.Booth, [2002] B.C.J. 782. [4] In the event that the court retains a rarely exercised jurisdiction even after a stay of proceedings has been entered to grant aremedy where the Crown’s act of staying proceedings or other conduct amounts to a marked and unacceptable departure from thereasonable standard expected of the prosecution, I have gone on to consider whether the Crown’s actions in this matter meet this highlevel of misconduct.

See R. v. Fach, [2004] O.J. No. 4637 (CA), R. v. Martin, 2016 ONCA 840 and R. v. Fercan, 2016 ONCA 840.

Seealso R. v. 974649 Ontario Inc. (‘Dunedin’), 2001 SCC 81 at para. 87. [5] I have concluded that the evidence fails to establish that the Crown deliberately postponed staying proceedings until the eve ofthe process hearing in order to cause MiningWatch Canada fruitless work and expense or that the Crown’s actions otherwise constitutedan abuse of the court’s process or a marked and unacceptable departure from the reasonable standard expected of the Crown. [6] The weight of the evidence establishes that this was a very complex prosecution based in part on a number of expert reports.

Seventeen business days elapsed between December 14th, 2016, when the Crown received the documents from the private informant, and January 11th, 2017 when it advised Ms. Lysenko that a stay of proceedings would be entered. The documents are voluminous,amounting to more than 800 pages. I find seventeen business days is a reasonable amount of time for the Crown to take before reachingthe important and difficult decision of whether or not to prosecute Mr.

Lapointe’s information. [7] Therefore, even if this court does still have jurisdiction in rare cases to award costs after proceedings have been stayed, theevidence fails to establish a basis for doing so in the case at bar. Evidence and Law Considered [8] On this application I have received and considered the following: 1. Affidavit of Ugo Lapointe, sworn 11th of April, 2017; 2. Affidavit of Lilina Lysenko, sworn 10th of April, 2017; 3. Affidavit of Amanda Buksh, sworn 27th of March, 2017; 4. Affidavit # 2 of Amanda Buksh, sworn 28th of March, 2017; 5. Oral and written submissions of Ms.

Lysenko, 27th March, 2017; 6. Oral and written submissions of Mr. Clarkson, 27th March, 2017; 7. Supplementary submissions on costs of Ms. Lysenko filed 11th April, 2017. [9] In addition I have considered the following cases: R. v. Smith, (BC CA), [1992] B.C.J. No. 2730 (CA); [1993] S.C.C.A. No. 7 (Application for leave to appeal to theSupreme Court of Canada dismissed for delay.)

R. v. Power, (SCC), [1994] S.C.J. 29 R. v. 974649 Ontario Inc. (“Dunedin”), 2001 SCC 81 R. v. Booth, [2002] B.C.J. No. 784 (PC) R. v. B.M., [2002] O.J. No. 4501 (CJ); (ON SC), [2003] O.J. No. 1373 (SCJ) R. v. Larosa (2002) (ON CA), 166 C.C.C. (3d) 449 (ONCA) R. v. Fach, [2003] O.J. No. 3205 (CJ); [2004] O.J. No. 4637 (CA) R. v. Deacur, [2005] O.J. No. 4812 (SCJ) R. v. Ciarniello (2006) (ON CA), 81 O.R. (3d) 561 (ONCA) R. v. Singh, 2016 ONCA 108 Her Majesty the Queen v. Fercan Developments Inc. et. al. (“Fercan”), 2016 ONCA 269 R. v. Martin, 2016 ONCA 840 Her Majesty the Queen v.

Sayers et. al. (“Sayers”), 2017 ONCJ 77 Analysis 1. Overview [10] Costs are rarely applied for and rarely granted in criminal court. This is in contrast to civil court where costs are routinelygranted. In criminal court costs are an “exceptional tool” used only in cases where, the conduct of the Crown constitutes a “marked andunacceptable departure from the reasonable standards expected of the prosecution.” See R. v. 974649 Ontario Inc. (‘Dunedin’), 2001SCC 81 at paras. 85 and 87. [11] When costs are awarded against the Crown in criminal court it will be in one of three circumstances: “(

i) where there has been aCharter violation; (ii) where there has been Crown misconduct; and (iii) where there are exceptional circumstances.” See R. v. FercanDevelopments, 2016 ONCA 269 at para. 37. [12] In the case at bar the application falls into the second category - it is alleged that there has been Crown misconduct. The thirdcategory - exceptional circumstances - may also apply. [13] The circumstances of this case are unique. First, the applicant is not the accused but, rather, a private informant.

He is a thirdparty; an “innocent bystander” to the actual event - the mining waste spill - that was the subject of the information. Second, theapplication for costs is being brought after the prosecution has ended by way of a stay of proceedings. 2. Does the Court Have Jurisdiction to Award Costs After a Stay of Proceedings? (

a) The Law [14] The Crown argues that the simple answer to Mr. Lapointe’s application for costs is that the court is functus - withoutjurisdiction to consider the issue - because the proceedings have been stayed. [15] I have not been able to find any case that is exactly on all fours with this one. There is certainly strong authority to support theCrown’s position.

But, there is also authority that supports the applicant’s position to the effect that even after charges have been stayedor withdrawn the court retains jurisdiction to control its own process and, accordingly, that it can award costs in those rare cases wherethere is serious Crown misconduct. [16] I will review the authorities now. [17] In R. v. Smith, (BC CA), [1992] B.C.J. No. 2730 (BCCA) Crown counsel directed a stay of proceedings at thestart of the trial.

Defence counsel objected to the Crown exercising its discretion to stay proceedings pursuant to s. 579 of the CriminalCode because it would expose his client to extradition proceedings. Defence counsel sought to continue the proceedings in Canada bychallenging the constitutionality of s. 579. The issue of whether or not the trial judge had any jurisdiction to consider that issue after astay had been entered came before the Court of Appeal by way of a petition for an order of prohibition brought by the Crown. [18] Hollingrake, J.A., writing for the court, quoted from R. v.

Beaudry, (BC CA), [1967] 1 C.C.C. 272 regardingthe effect of a stay of proceedings by the Crown. That was a case in which the Crown directed a stay of proceedings in a murder casejust before the jury came back with their verdict. The trial judge in that case went on to receive the jury’s verdict of acquittal despite thefact that the Crown had stayed the proceedings.

Bull, J.A. found that the jury’s verdict was a nullity because the judge had nojurisdiction to receive the verdict once proceedings were stayed: …It follows that the said decision of the trial Judge to take the verdict notwithstanding the stay was beyond his power to do, as he had nojurisdiction, authority or discretion with respect to whether or not a stay should be entered or, if entered, when it should become effectiveor what effect it should have.

The entry of a stay is a statutory administrative discretion given to the Attorney-General, and, if exercised,his direction is to the Clerk of the Court as such and is outside any control of the judge. It follows that the verdict of acquittal was anullity, the proceedings on the murder indictment having been previously stayed prior to its delivery….

[19] Hollingrake, J.A. went on to grant the Crown’s appeal and direct that the provincial court judge be prohibited from continuingto hear any proceedings in connection with R. v. Smith. He explained his decision as follows, at paragraph 20 and 22: …it is clear that once the Crown exercises its s. 579 right to direct a stay be entered, the judge hearing the prosecution is functus andwithout jurisdiction to proceed further…. Here, the direction to the clerk of the court to enter a stay is a statutory administrative discretion given to the Attorney General which isoutside the direction or control of the judge.

That is what Beaudry tells us. When the stay has been entered there is no contest betweenthe individual and the state. The prosecution has come to an end…. [emphasis added] [20] R. v. Smith was followed by Judge Lenaghan of the British Columbia Provincial Court in R. v. Booth, [2002] B.C.J. No. 784. The issues in that case are closer to those in play in the case at bar in that it was an application for costs because of an alleged abuse ofthe court’s process by the Crown.

Although very concerned by various aspects of the Crown’s conduct of that case - including itsapparent use of its power to stay proceedings as a tactic to avoid having the court rule on the issue of costs - Judge Lenaghan concludedthat he was “…functus following the entry of the stay of proceedings by the Crown...and I therefore lacked jurisdiction to continuehearing the application of the defendants [for costs]…thereafter.” See paragraphs 28, 32 and 36. [emphasis added] [21] The Ontario Court of Appeal has reached a similar conclusion - that the provincial court is functus - without jurisdiction - once astay of proceedings is entered.

See R. v. Fach, [2003] O.J. No. 4637 at paras. 3 and 4, and R. v. Martin, 2016 ONCA 840 at paras. 45and 48. [22] However, in contrast to R. v. Booth, these cases both suggest that the court would have jurisdiction to grant a remedy even afterthe Crown has stayed proceedings in those rare cases where the Crown’s actions constitute “…abuse or flagrant impropriety…” (Fach).

In Martin, the standard is expressed in different words - the court would retain jurisdiction to grant a remedy after a stay of proceedingsonly in those rare cases where the Crown’s actions constitute “a marked and unacceptable departure from the reasonable standardsexpected of the Crown.”[4] [23] These cases acknowledge that in the rare case where the Crown’s act of staying proceedings amounts to an abuse of the court’sprocess the court would have jurisdiction even after the stay was entered to make an order for costs as a way of disciplining the Crownfor misconduct and maintaining control of its own process.

In Martin the court emphasizes that negligence on the part of the Crown isnot sufficient to give the court jurisdiction once a stay has been entered. “Nor is the question of jurisdiction discretionary based on theapplicant’s financial position or the judge’s personal view of what is fair.” See paras. 47 and 48. [24] R. v. B.M., [2002] O.J. No. 4501 (ONCJ) is cited by the Crown. The Youth Court judge in that case, following the B.C.decisions, R. v. Smith and R. v. Booth cited above, concluded that he was functus and could not award costs against the Crown becausethe charges had been withdrawn.

However, this case later came before the Ontario Superior Court ( (ON SC), [2003]O.J. 1373 (ONSCJ)), where Justice Fuerst effectively reached a different conclusion and made an order for costs. The case was heard asan exercise of concurrent jurisdiction rather than as an appeal and perhaps, for that reason, Justice Fuerst does not comment on thecorrectness of the trial judge’s conclusion that the court was functus once the charges were withdrawn.

The basis for her decision washer finding that the Crown had conducted itself in a way that amounted to an abuse of process (see para. 50) which violated the accused’ss. 7 Charter rights. She found that this was “one of those exceptional cases in which an order for costs should be made” and awardedcosts pursuant to s. 24(1) of the Charter. [25] Justice Fuerst’s decision appears to be consistent with R. v. Fach and R. v. Martin in that both recognize there will be rareinstances where the Crown’s conduct amounts to an abuse of process.

In those rare cases the court would not be functus to order costs todiscipline the Crown even after proceedings have been stayed or withdrawn, because of the court’s inherent power to control its ownprocess. [26] R. v. Sayers, 2017 ONCJ 77 is cited by the applicant as a case where the court ordered costs after the information had beenwithdrawn. In that case, which involved aboriginal and treaty rights, the Crown conceded that an award of costs should be made infavour of the defendants when it withdrew the charges some 8 years after they had been laid. See para. 55.

Perhaps because of thatconcession, the court does not address the issue of whether it was functus once the charges were withdrawn. [27] Her Majesty the Queen v. Fercan Developments Inc. et. al. (“Fercan”), 2016 ONCA 269, is a case relied upon by theapplicant. This was a forfeiture application under s. 16 of the Controlled Drugs and Substances Act. After more than 30 days ofevidence the Crown abandoned its application against one of the respondents and the application was dismissed against the other two.

The application judge found that the Crown’s case was completely without merit and that the Crown’s conduct of the matter constituteda “marked and unacceptable departure from the reasonable standards expected of the prosecution.” (para. 71). The applicants wereawarded costs totaling more than $800,000.00. This decision was upheld on appeal. [28] Writing for the court, H.S. Laforme, J.A. examined the jurisdiction of the provincial court to award costs on the basis of Crownmisconduct and defined the applicable standard against which Crown conduct should be assessed.

See generally, paragraphs 36 to 77. [29] While the provincial court does not have any inherent jurisdiction, “it does have the authority to control its own process” andthat authority extends to awarding costs in those rare cases where the Crown’s misconduct is particularly bad: paras. 53, 64 and 81. [30] With respect to the applicable standard against which to assess Crown conduct, Laforme, J.A. adopted the test promulgated inR. v. 974649 Ontario Inc. (‘Dunedin’), 2001 SCC 81 at para. 87: “marked and unacceptable departure from the reasonable standardsexpected of the prosecution”.

The court rejected the Crown argument that this standard should be applicable only when awarding costsunder s. 24(1) of the Charter and that some higher threshold should apply when assessing an allegation of Crown misconduct. At para.76 Laforme, J.A. commented that the “marked and unacceptable departure” test is a stringent one: …[I]t bears noting that the marked and unacceptable departure standard represents a stringent threshold. It will generally require that theCrown exhibit a flagrant or marked departure from the norm: R. v. Singh, 2018 ONCA 108 at para. 40. [emphasis added]

[31] As comprehensive as the court’s reasons are in R. v. Fercan, it does not consider the precise jurisdictional issue posed by thecase at bar which is whether this court is functus - without jurisdiction to award costs - given that the Crown has entered a stay ofproceedings. [32] Finally, I have considered R. v. Ciarniello, (2006) (ON CA), 81 O.R. (3d) 561 (ONCA). This was anapplication for costs after the police seized the applicant’s property under a deeply flawed search warrant that was ultimately quashed.

The applicant was a “by stander” to the criminal investigation and was never charged with any criminal offence. In this respect the caseis similar to the case at bar where the applicant is also an innocent “by stander” to the criminal investigation rather than the accused as isthe situation in many of the cases.

In Ciarniello the court assessed the Crown’s conduct against the “traditional Crown misconduct rule”as the court in Fercan termed it (para. 74), of “marked and unacceptable departure from the reasonable standards expected of theprosecution” and the award of costs made by the application court was upheld. (

b) Jurisdiction of the Court to Award Costs After Proceedings Have Been Stayed [33] I make the following comments and draw the following conclusions from this review of the cases: 1. In R. v. Smith, decided in 1992, the British Columbia Court of Appeal, held that the court was functus - had no jurisdiction - once theCrown stayed the information. 2. Smith was followed in a 2002 case from the Provincial Court of British Columbia, R. v. Booth. R. v.

Booth is particularly significantbecause the issues in that case bear some similarity to the issues on the current application: an application for costs based on allegedmisconduct by the Crown. Relying on R. v. Smith, my brother Judge Lenaghan, concluded that once the Crown had stayed proceedingshe was functus - without jurisdiction - to consider the issue of costs even though he was very concerned about Crown misconduct in thatcase. 3. Subsequent decisions have followed R. v. Smith and R. v.

Booth in finding that, generally speaking, the court is functus - withoutjurisdiction - to hear an application for costs once the Crown has entered a stay of proceedings. See R. v. Fach and R. v Martin. However, these decisions differ from R. v. Booth and R. v. Smith in recognizing that in rare circumstances, where the Crown’s conductconstitutes a “marked and unacceptable departure from the reasonable standards” expected of it, the court may make an order for costs.

Its jurisdiction to make such an order, even after proceedings have been stayed by the Crown, comes from its implied jurisdiction tocontrol its own process. 4. R. v. Fach and R. v. Martin, likely represent an evolution of the law as set out in R. v. Smith and R. v. Booth, rather than a divergencefrom those earlier decisions. Therefore, I will go on to consider the facts in the application at bar as well as the submissions of theparties. My goal will be to determine if this is one of those rare cases where the Crown’s conduct constitutes a “marked andunacceptable departure” from what is reasonable.

If that stringent threshold is met then, on the authority of R. v. Fach and R. v. Martin Iwould have jurisdiction to consider the private informant’s application for costs even though a stay of proceedings has been entered. Asnoted, my jurisdiction would come from the court’s implied jurisdiction to control its own process. 3. Does the Crown’s Conduct Concerning the Timing of the Stay of Proceedings Amount to A “Marked and UnacceptableDeparture from Reasonable Standard Expected of the Crown” (

a) The Facts and the Positions of the Parties [34] The applicant argues that the Crown’s actions in this case amount to a “marked and unacceptable departure from the reasonablestandard expected of the Crown” for the following reasons: 1. MiningWatch Canada alerted two federal government departments - Environment Canada and Fisheries and Oceans Canada - in May,2016 and again in September, 2016 “that it intended to lay a private information with respect to the Mount Polley mining waste spill ofAugust, 2014 if it appeared that the Crown was unwilling to lay charges of its own.”[5] 2. Mr.

Lapointe swore his private information on October 18th, 2016 and immediately sent a letter to the federal Crown advising of thisfact. 3. Counsel for the Crown and counsel for MiningWatch Canada discussed the amount of time required for a process hearing (as required by s. 507.1 of the Criminal Code) in a telephone call on October 31st. They agreed that a full day should be set aside. The court scheduled January 13th, 2017 for this purpose. 4.

Although counsel for the private informant did not provide the Crown with copies of the documents relied upon by the private informant until December 14th, 2016, these documents were all available from public sources long before that. 5. “…[T]he private informant continued its work and investigations from October until January in preparation for the [process] hearing,and incurred significant legal fees and costs. It then incurred more costs in arranging for counsel and witnesses to attend Williams Lakefor the hearing….”[6] 6.

On the 11th of January, less than 48 hours before the process hearing was scheduled to commence, the Crown notified the privateinformant that it intended to stay proceedings at the outset of the hearing. By then, the private informant, who lives in Ottawa, Ontariowas already in transit to Williams Lake.[7] Ms. Lysenko, counsel for the private informant, is from Trail, British Columbia. Upon hearing of the Crown’s intention to stay proceedings she initially planned to appear by telephone at the hearing on January 13th but laterdecided to appear in person when she discovered that Mr.

Lapointe was already in transit from Ottawa.[8] 7. By the time the stay of proceedings was finally entered on March 27th, the private informant had incurred some $36,725.66 in direct,out-of-pocket expenses. As legal services were provided at a reduced rate, the total market value of expenses attributable to the private

prosecution amounted to $64,532.16 [9] . 8. MiningWatch Canada is a not-for-profit organization that was founded to provide a “…coordinated public interest response…” to mining activity in Canada and around the world. The organization has limited funding and relies mainly on foundation support as well as organizational and individual donations. For example, for the purpose of the private prosecution in this case, MiningWatch Canada received funding for legal fees in the amount of $24,000.00 from West Coast Environmental Law. Any costs recovered in the current application would go first to reimburse WCEL. [10] 9.

Mr. Lapointe and MiningWatch Canada laid the private information in the public interest. They were not motivated by a desire for personal gain nor do they stand to gain personally from this application for costs.

Private prosecutions have been recognized as a “valuable constitutional safeguard against inertia or partiality on the part of authority.” [11] 10. “In dealing with private informants within the context of a public [interest] prosecution, Crown should be particularly sensitive to the costs incurred by the private informant, and should take all reasonable steps to mitigate those costs when possible, such as by deciding to enter a stay of proceedings in a timely fashion.” [12] 11. “The decision to consent to

schedule a full day for the pre-enquete in October, 2016, and then at the last minute seek to enter a stay after preparations had been made and the parties were in transit to Williams Lake constitutes a marked and unacceptable departure from the standards expected of the prosecution.

If the Crown contemplated a stay of the charges prior to the pre-enquete, it could have done so in October, 2016, thus saving the private informant and other parties significant costs and expenses.” [13] [ 35 ] The Crown responds as follows: 1. “…On December 14, 2016, the Applicant sent the Attorney-General for the first time, 876 pages of engineering and scientific reports.

The Attorney-General needed to read and consider the voluminous material and consider the legal impact of the material before making a stay decision.” [14] 2. “…[O]n December 30 th , 2016, the Applicant sent an additional 27 page document requiring additional consideration. Twelve days later [January 11 th , 2017], the Attorney General gave notice that it would be staying charges.” [15] 3. On January 13 th , 2017, at the beginning of the process hearing, Mr.

Clarkson for the Crown said the following to the court about the Crown’s reason for directing a stay of proceedings: “We are intervening to stay the private prosecution proceedings as a result of the application of the PPSC Deskbook charge approval test. Our review has determined that there is no reasonable prospect of conviction against either accused (Her Majesty the Queen in right of British Columbia or Mount Polley Mining Corporation) on the basis of the case prepared by the private informant.

In addition, it is not in the public interest to allow the private prosecution to continue as there is an ongoing, comprehensive investigation being conducted by the B.C. Conservation Officer Service, Environment Canada and Fisheries & Oceans Canada that should be allowed to complete and be considered for charge approval.” [16] 4. “It is not a ‘marked departure’ to use 17 business days to review and consider 903 pages of engineering, scientific and complex court documents in considering the viability of a private prosecution of national importance.

To the contrary, it is expected that the Attorney General will consider the evidence carefully, take the time needed, consult, and not make a rushed decision about staying such an important matter. There is no evidence of any oblique motive or impropriety.” [17] (

b) Analysis [ 36 ] As the cases establish and the parties agree, the issue is whether the Crown’s conduct in this matter amounts to a “marked and unacceptable departure from the reasonable standard expected of the prosecution”. Unless the Crown’s conduct reaches this level of impropriety the court has no jurisdiction to intervene. [ 37 ] The standard is a stringent one. An error in judgment, even negligence on the part of the Crown, is not sufficient. “ Nor is the question of jurisdiction discretionary based on the applicant's financial position, or a judge's personal view of what is fair.” See R. v.

Martin , para. 45 and 47 . [ 38 ] In my view, it is not unreasonable in a case of this complexity, involving many documents and opinion evidence, for the Crown to have taken 17 business days to reach a decision about whether or not to proceed with the prosecution of the private information. [ 39 ] The evidence in this case supports, at the very worst, a finding that the Crown in its role as a public servant, working on behalf of all Canadians, made an error in judgment in failing to consider the effect on the private informant of delaying its decision to stay proceedings until just two days before the day-long process hearing was scheduled to begin.

A phone call or email to advise counsel for the informant that a stay of proceedings was one of the options being considered would likely have assisted the private informant in deciding how much effort to put into its preparations for the process hearing. It may have prompted the private informant to seek an adjournment of the process hearing until the Crown had ruled out the option of staying the proceedings. [ 40 ] That being said, s. 579 , and the largely unfettered discretion that it gives the Crown to stay proceedings is in the Criminal Code for all to see.

I have no information about how frequently the federal Crown uses its power to stay private informations -even such a one as this which is launched by a credible, public interest litigator - but I suspect it is not uncommon. [ 41 ] In

summary, I cannot find that the Crown’s conduct in this case shows a marked and unacceptable departure from the reasonable standard expected of the prosecution. Therefore, as was the case in R. v. Martin , a stay having been entered, this court is functus - without jurisdiction to consider the application for costs. Conclusion

[ 42 ] Mr. Lapointe’s application for costs is dismissed. ____________________________ E. L. Bayliff Provincial Court Judge