IN THE COURT OF APPEAL BETWEEN AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civil Appeal No. 203 of 2011 BETWEEN THE POLICE SERVICE COMMISSION Appellant AND ABZAL MOHAMMED Respondent PANEL: N. Bereaux, J.A. G. Smith, J.A. M. Rajnauth-Lee, J.A. APPEARANCES: Mr. Russell Martineau S.C. leading Ms. Cherisse Nixon instructed by Ms. Deowattee Dilraj Battoosingh for the Appellant Mr. Avory Sinanan S.C. leading Mr. Kelvin Ramkissoon instructed by Mr. Brent Samlal for the Respondent Date: 1 st May, 2013 ***************

2 I agree with the reasons of Rajnauth-Lee J.A. and have nothing to add. I too agree and have nothing to add. N. Bereaux Justice of Appeal G. Smith Justice of Appeal REASONS Delivered by M. Rajnauth-Lee, J.A. 1. The respondent was a police officer who was dismissed by the Police Service Commission. The key issues which arose in this appeal were as follows: (i) whether in the absence of a grant of leave or amendment to the application for judicial review, the judge ought to have allowed the respondent to mount a challenge against the decision of the Police Service Commission to dismiss him; (ii) whether the Police Service Commission had the power to hear disciplinary proceedings against the respondent and to dismiss him after the Constitution (Amendment) Act 2006 came into force; and (iii) whether the respondent had a right of appeal to the Public Service Appeal Board from the decision of the Police Service Commission after the Constitution (Amendment) Act 2006 came into force; and 2. The judge below held that the respondent was not validly dismissed from the Police Service of Trinidad and Tobago and that he was entitled to a declaration that his purported dismissal was null and void. He ordered his reinstatement with the payment of any lost salary. The judge found that the Police Service Commission had no power to hear disciplinary Page 2 of 17

3 proceedings against the respondent or to dismiss him after the Constitution (Amendment) Act 2006 came into force. He was also of the view that the Public Service Appeal Board had no jurisdiction to hear an appeal from the respondent s dismissal and that they had correctly declined to do so. 3. The Police Service Commission appealed the judge s decision and on the 9 th November, 2012, we allowed the appeal, giving brief oral reasons. We found that the judge was plainly wrong to consider the issue - whether the Police Service Commission had the power to hear disciplinary proceedings against the respondent and to dismiss him after the Constitution (Amendment) Act 2006 came into force - since it was not a live issue before him for which leave had been granted. In our judgment, the appellant was prejudiced by being deprived of the opportunity to meet this new case. In any event, we were of the view that the Police Service Commission had the power to discipline police officers whose matters were pending before it on the commencement date of the Constitution (Amendment) Act 2006 or on the effective date provided for in section 123B of the Constitution 1. We were also of the view that the respondent s right of appeal to the Public Service Appeal Board from the decision of the Police Service Commission was not removed by sections 123, 123A and 123B of the Constitution. We now give full reasons for our decision. Having regard to the importance of the issue of the power to discipline after the Constitution (Amendment) Act 2006 came into force, we will address that issue first. Relevant facts and history 4. The following facts were not in dispute. The Police Service Commission had preferred against the respondent two (2) disciplinary charges of discreditable conduct arising out of an incident which took place on the 30 th May, 2003, at Sahadeen Trace, Vega de Oropouche, Sangre Grande. The Police Service Commission found the respondent guilty of the charges. 5. By letter dated the 6 th August, 2008, the respondent was informed by the Director of Personnel Administration that the Police Service Commission had noted that he had not 1 Section 11 of the Constitution (Amendment) Act 2006 Page 3 of 17

4 submitted any representations with respect to the penalty to be imposed on him as a consequence of his being found guilty. The letter went on to inform the respondent that the Police Service Commission had dismissed him with effect from the date of the receipt of the letter. The respondent was also advised that, at that time, the Constitution did not provide for an appeal from any decision of the Police Service Commission as a consequence of disciplinary proceedings brought against him. He was informed however that amendments to the Constitution were being pursued in that regard. 6. The respondent sought leave to apply for judicial review of the decision of the Police Service Commission to deny and/or deprive him of his right to appeal the decision communicated to him by letter dated the 6 th August, He was granted leave by the Court of Appeal on the issue of the loss of his right to appeal to the Public Service Appeal Board which was the only issue raised in the application for leave. 7. The Police Service Commission relied on the affidavit of Ms. Gloria Edwards-Joseph, the Director of Personnel Administration. She deposed that the Public Service Appeal Board had continued to advance the firm opinion to the Police Service Commission that police officers who wished to appeal against disciplinary decisions should be directed not to lodge such appeals with the Board. Ms. Edwards-Joseph further deposed that the Public Service Appeal Board had indicated that it would have no alternative but to decline such appeals. According to Ms. Edwards-Joseph, it was in the light of the position taken by the Public Service Appeal Board that the Police Service Commission had advised in its letter of the 6 th November, 2008 that the respondent did not have a right of appeal. 8. The Public Service Appeal Board was joined as an interested party. Caryll Sooklalsingh deposed on behalf of the Board that as at the 29 th April, 2008, when the existence of the Constitution (Amendment) Act 2006 was brought to the attention of the Public Service Appeal Board, there were some ten (10) appeals pending before it. In its written submissions, the Public Service Appeal Board contended for the first time in the proceedings before the trial judge that the Police Service Commission, by virtue of the amendment, had no power to discipline the respondent since it was a differently constituted body with no power to discipline regular police Page 4 of 17

5 officers except by way of appeals from disciplinary decisions of the Commissioner of Police. The Public Service Appeal Board maintained its position that it had no power to hear appeals of police officers save for those appeals that were pending and provided for by section 123B(3) of the Constitution. Legislative and Historical Context The Republican Constitution 9. The 1976 Republican Constitution which came into force on the 1 st August, 1976 provided for the establishment of the Police Service Commission at section 122. Section 123 of the 1976 Constitution gave the Police Service Commission power to appoint, promote, transfer, remove and exercise disciplinary control over persons holding office in the Police Service. 2 By section 130 of the 1976 Constitution the Public Service Appeal Board was established. Section 132 enabled the Public Service Appeal Board to hear appeals from decisions of the Service Commissions as a result of disciplinary proceedings brought against public officers. By the Constitution (Amendment) Act, 1982, subsection (3) of section 132 was repealed and replaced by a new subsection (3) which enlarged the powers and supervisory jurisdiction of the Public Service Appeal Board over disciplinary decisions made by Service Commissions in relation to public officers. 3 The Constitution (Amendment) Act The Constitution (Amendment) Act 2006 passed in accordance with section 54 of the Constitution made substantial amendments to the constitutional provisions relating to the powers of the Police Service Commission. It made significant changes to the process for the 2 The Police Service Commission had been created as a constitutionally independent body by the 1962 Constitution (at sections 98 and 99) with a framework and powers similar to the 1976 Constitution. The 1962 Constitution however did not provide for an appeal board to hear appeals from the decisions of Service Commissions. 3 Paragraph 16 of the judgment of Jamadar JA in Omar Maraj v the Public Service Appeal Board [Civil Appeal No. 100 of 2006] Page 5 of 17

6 appointment and removal of members of the Police Service Commission 4 giving to the House of Representatives a role in such appointments for the first time. The new section 123 of the Constitution 11. The Constitution (Amendment) Act 2006 also made substantial changes to the procedure by which police officers were to be disciplined. The old section 123 was repealed and replaced by a new section which conferred various new powers on the Police Service Commission. Notably, however, section 123(1)(c) limited the power of the Police Service Commission to exercise original disciplinary control over police officers below the rank of Deputy Commissioner of Police. The new section 123(1)(f) provided for appeals from the decisions of the Commissioner of Police as a result of disciplinary proceedings to be made to the Police Service Commission. 12. A new constitutional framework was established for the appointment of the Commissioner and Deputy Commissioner of Police. The Police Service Commission was given the power to nominate persons for appointment to the offices of Commissioner and Deputy Commissioner of Police pursuant to section 123(2). The process for the appointment of the Commissioner and the Deputy Commissioner of Police was laid out in subsections (3), (4) and (5) of section 123 and for the first time the House of Representatives played a role in the selection of the Commissioner and Deputy Commissioner of Police. 6 The Police Service Commission was also given the power to terminate the services of the Commissioner and Deputy Commissioner of Police on the grounds set out at section 123(8) with power to prescribe the procedure for such termination in accordance with section The new subsection (10) of section 123 provided that there would be no appeals to the Public Service Appeal Board where the Police Service Commission had acted under the powers conferred on it by the new section 123. Accordingly, after the amendment, no appeals lay to the 4 Sections 4 and 5 of the Constitution(Amendment) Act 2006 [sections 122 and 122A of the Constitution] 5 Section 6 of the Constitution (Amendment) Act The Prime Minister s right to veto the appointment of the Commissioner or Deputy Commissioner of Police was removed. 7 Section 123(9) Page 6 of 17

7 Public Service Appeal Board from any decision of the Police Service Commission in respect of disciplinary action taken by the Police Service Commission against the Commissioner and Deputy Commissioner of Police and in respect of appeals to the Police Service Commission from disciplinary decisions of the Commissioner of Police. The new section 123A 14. The 1976 Constitution was further amended by inserting after section 123 a new section 123A 8 which provided for the Commissioner of Police to have complete power to manage the Police Service. The Commissioner of Police was required to ensure that the human, financial and material resources available to the Police Service were used in an efficient and effective manner. 9 By section 123A(2) the Commissioner of Police was given various powers including the powers to (a) appoint persons to hold or act in an office in the Police Service, other than an officer referred to in section 123(1)(a), including the power to make appointments on promotion and to confirm appointments; 10 (b) transfer any police officer; and (c) remove from office and exercise disciplinary control over police officers, other than an officer referred to in section 123 (1)(a). 15. In addition, section 123A(3) authorized the Commissioner of Police to exercise any of his functions under section 123A in person or through any police officer of or above the rank of Superintendent acting under and in accordance with his general or special instructions. By subsection (4), in the performance of his functions under section 123A, the Commissioner of Police had to act in accordance with the Police Service Act and the regulations made thereunder. The new section 123A therefore heralded significant changes in the procedure for the discipline of police officers and in the powers to be exercised by the Commissioner of Police in disciplining police officers. 8 Section 7 of the Constitutional (Amendment) Act Section 123A(1) 10 The power to make appointments on promotion is now shared with the Police Service Commission by virtue of section 123(1)(b). Page 7 of 17

8 Transitional and savings provisions section 123B 16. As to the matters which were pending before the Police Service Commission and the Public Service Appeal Board when the Constitution (Amendment) Act 2006 came into force, certain transitional and savings provisions were enacted by way of section 123B 11 which read as follows (1) Notwithstanding section 126 of the Constitution, all the members of the Police Service Commission, appointed under section 122, shall vacate their offices within six months after the 1 st January 2007, and in any event from the day following the expiry of the said six months. (2) Any matter which, immediately before the effective date specified in subsection (1), is pending before the Police Service Commission or before any person or authority to whom the power to deal with such matters has been delegated by the Police Service Commission, shall, from the effective date specified in subsection (1), be continued before the corresponding Police Service Commission after the commencement of this Act (i.e., 1 st January 2007) or the said person or authority, as the case may require. (3) Any appeal filed by a police officer and pending before the Public Service Appeal Board, at the commencement of this Act, shall be heard and determined by the Board after the commencement of this Act, as though this Act had not been passed. Construction of section 123B of the Constitution The right of appeal 17. The trial judge reasoned that, since section 123B did not expressly preserve any right of appeal to the Public Service Appeal Board except in the limited circumstance set out in subsection (3) - where appeals were pending before the Board at the commencement of the 11 Section 11 of the Constitutional (Amendment) Act 2006 Page 8 of 17

9 Constitution (Amendment) Act - Parliament did not intend to preserve, after the coming into force of the amendment, the power of the Police Service Commission to discipline persons like the respondent, namely persons who had been disciplined by the old Police Service Commission. 18. Section 123B(1) provided for all the members of the Police Service Commission, appointed under section 122, to vacate their offices within six months after the 1 st January, 2007, that is, by the 2 nd July, 2007, the effective date specified in subsection (1) and referred to in subsection (2). In our view, the reference in section 123B(1) to members of the Police Service Commission appointed under section 122, must be to the members of the old Police Service Commission appointed under the previous section 122. It would be absurd for Parliament to have intended that, after the commencement of the Constitution (Amendment) Act 2006, members of the new Police Service Commission would be appointed pursuant to the procedure provided for in the new section 122, and thereafter those same members would be required to vacate their offices as at the 2 nd July, In our judgment, Parliament allowed a six month time frame for the appointment of the members of the new Police Service Commission having regard to the procedure for such appointment provided for by the new section In our view, section 123B(2) contemplated that there would be matters (not limited to any particular type of matter) pending before the Police Service Commission immediately before the effective date of the 2 nd July, 2007, and that from the 2 nd July, 2007, such matters would be continued before the new Police Service Commission. The question therefore arose: what was to be the position of those matters, and in particular disciplinary matters, that were pending before the old Police Service Commission immediately before the commencement date of the 1 st January, 2007? 20. By section 123B(3) the power of the Public Service Appeal Board to hear and determine appeals filed and pending before the Public Service Appeal Board at the commencement date of the 1 st January, 2007, was expressly preserved [as though the Act had not been passed]. The Constitution (Amendment) Act 2006 made no change to section 132 which defined the powers and supervisory jurisdiction of the Public Service Appeal Board. Page 9 of 17

10 21. The decision of the Privy Council in Public Service Appeal Board v Omar Maraj [2010] UKPC 29 was of significance to this appeal and set out important guidelines as to how constitutional amendments were to be construed. 22. Section 129 of the Constitution was amended by the Constitutional (Amendment) Act, 2000 which added subsection (5) to the effect that where an officer was convicted of a criminal charge a Commission might consider the relevant proceedings and punish the officer without the institution of any disciplinary proceedings. The amendment had not expressly given to the officer the right to appeal to the Public Service Appeal Board and the respondent had brought judicial review proceedings to have the court review the decision of the Public Service Appeal Board which alleged that it had no jurisdiction to consider such an appeal. 23. The Privy Council, affirming the decision of the Court of Appeal, held that there was absolutely no reason to believe that Parliament intended to deprive those officers who were dealt with under the new summary process pursuant to section 129(5) of the right of appeal which they had all enjoyed prior to the 2000 amendment. 12 In addition, Lady Hale made it clear 13 that the question in the case was not whether a constitutional right had been violated but whether an enactment should be construed in such a way as to avoid such a violation. Lady Hale expressed the view that whilst the constitutionality of a parliamentary enactment was presumed unless it was shown to be unconstitutional 14, the Constitution must be given a broad and purposive construction 15. Accordingly, a court should presume that Parliament intended to legislate for a purpose which was consistent with the fundamental rights and not in violation of them. In those circumstances, the right of appeal had been preserved. 12 Paragraph 22 of the judgment of Lady Hale 13 Paragraph Grant v The Queen [2007] 1 AC 1, paragraph Minister of Home Affairs v Fisher [1980] AC 319, 328 Page 10 of 17

11 24. The Interpretation Act Chap. 3:01 made provision for the repeal and amendment of any written law. Section 27 subsection (1)(c) and (e) of the Act provides as follows: Where any written law repeals or revokes a written law, the repeal or revocation does not, except as in this section otherwise provided, and unless the contrary intention appears (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the written law so repealed or revoked; (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as mentioned above, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the written law had not been repealed or revoked. 25. Further, section 27 subsection (4) provides: The inclusion in the repealing provisions of a written law of any express saving with respect to the repeals effected thereby shall not be taken to prejudice the operation of this section with respect to the operation of those repeals. 26. Section 27 of the Interpretation Act was applied by the Court of Appeal in Central Broadcasting Services Ltd and Another v Attorney General [Civil Appeal No. 16 of 2004]. In that case, the regime for the grant of licences was changed when the Wireless Telegraphy Ordinance 1936 was replaced by the Telecommunications Act 2001 ( the 2001 Act ). Section 85 of the 2001 Act (the transitional provisions) made no mention of pending applications and nowhere in the 2001 Act was there any provision made in respect of applications pending at the time of the commencement of the 2001 Act. The Court of Appeal held that the transitional Page 11 of 17

12 provisions of the 2001 Act preserved the power of the President, acting on the advice of Cabinet, to grant licences in respect of pending applications so that Cabinet might continue to deal with CBSL s pending application. The Privy Council did not disturb this finding. 27. In our view, the effect of the above decisions and the provisions of the Interpretation Act was two-fold. Firstly, there was no good reason to believe that Parliament intended by section 123B subsections (1) (2) and (3) to deprive the respondent of his right of appeal from the decision of the Police Service Commission to the Public Service Appeal Board, which right he previously enjoyed prior to the Constitutional (Amendment) Act The respondent s right of appeal from a decision of the Police Service Commission to the Public Service Appeal Board, was a right which had been acquired or accrued under the previous law and could not be affected by the repeal of the old section We were also of the view that no contrary intention had been shown in the amending provisions. Parliament had made it clear by the amended section 123(10) that the restriction on the right of appeal from a decision of the Police Service Commission to the Public Service Appeal Board was in respect of decisions made by the new Police Service Commission under the new section Under the new regime, appeals from the Commissioner of Police were to be made to the Police Service Commission and consequently there was no necessity for appeals to the Public Service Appeal Board. 29. Further, by section 123B(3), provision was made for those appeals pending before the Public Service Appeal Board at the commencement date of the Act to be heard and determined by the Board after the commencement of the Act. Therefore, there was no intention for the immediate cessation of the right of appeal to the Public Service Appeal Board. In our judgment, the trial judge was wrong to conclude that since Parliament had expressly provided for the right of appeal to the Public Service Appeal Board where appeals were pending before the Public Service Appeal Board at the commencement of Constitution (Amendment) Act 2006, and not otherwise, it did not intend, after the coming into force of that amendment, to preserve the 16 Section 132 of the Constitution 17 See paragraph 9 of this judgment Page 12 of 17

13 power of the Police Service Commission to discipline persons whose matters were pending before the Commission at the commencement date. 30. Secondly, applying a broad and purposive construction, the provisions of section 123B of the Constitution gave the Police Service Commission the power to continue to hear and determine such disciplinary matters which were pending before them immediately prior to the commencement of the Constitution (Amendment) Act The trial judge also reasoned that since the power to discipline police officers after the 1 st January, 2007, was vested in the Commissioner of Police, it meant that proceedings pending before the Police Service Commission had to be started afresh. This, he reasoned, was the consequence of the Constitution (Amendment) Act 2006 and was the least offensive construction so far as the rights of persons with pending disciplinary charges were concerned. In our judgment, that position was plainly wrong. 32. The old disciplinary procedure for the hearing of disciplinary charges against police officers was regulated by Chapter VIII of the Police Service Commission Regulations Chap. 1:01. The Police Service Commission was empowered to appoint a disciplinary tribunal which heard the evidence and made findings of fact which were contained in a report to the Commission. 18 The Commission was empowered to impose a penalty under Regulation 101. It was important to understand that the Police Service Commission did not itself hear the evidence against an officer. It was therefore difficult to accept, given the regulatory framework for the discipline of police officers, that Parliament intended that all disciplinary matters pending before the Police Service Commission at the commencement of the Constitution (Amendment) Act 2006 should have been started de novo before the Commissioner of Police. In our view, the trial judge was wrong to come to that conclusion. 18 Regulation 96 Page 13 of 17

14 The Decision to Dismiss the Respondent No leave granted to review the respondent s dismissal 33. Mr. Martineau S.C. on behalf of the appellant contended that the trial judge was wrong to deal with the legality of the appellant s decision to dismiss the respondent from the Police Service. The appellant submitted that no leave was granted to the respondent to review the decision of the Police Service Commission to dismiss him. As we noted at paragraph 6 of this judgment, the Court of Appeal granted leave to the respondent to apply for judicial review only in respect of the issue of the loss of his right of appeal to the Public Service Appeal Board. It was not disputed before us that no amendment to the claim was sought or granted to challenge the decision of the Police Service Commission to dismiss the respondent. 34. The importance of setting out the grounds in an application for judicial review has been highlighted by the Privy Council in the case of Malcolm Johnatty v The Attorney General of Trinidad and Tobago [2008] UKPC 55. In that case, there was a sharp conflict between the parties on the facts to such an extent that the basis for the orders sought by the appellant would be wholly undermined if the trial judge accepted the respondent s version of the facts. Nevertheless, the appellant did not seek to amend his application for judicial review. Lord Hope who gave the judgment of the Board referred to section 5(4) of the Judicial Review Act Chap. 7:08 which provides: An applicant is not limited to the grounds set out in the application for judicial review but if the applicant wishes to rely on any other ground not so set out, the Court may, on such terms as it thinks fit, direct that the application be amended to specify such other ground. 35. Lord Hope was of the view that the appellant could have sought permission to alter the grounds for his application when the affidavit evidence was filed. 19 He had however to seek the permission of the court if he wished to amend his application pursuant to section 5(4). The court in its discretion would decide whether or not to permit an amendment and if so on what terms. It 19 See paragraph 18 of the judgment Page 14 of 17

15 was pointed out that the appellant did not make use of that procedure, and having failed to do so, he could not then raise this new issue. According to Lord Hope, the mere raising of an issue was not the same thing as applying for leave to amend. 36. We were therefore of the view that in the absence of a grant of leave to amend the application, the trial judge was wrong to allow the respondent to raise in his submissions the question of the legality of the appellant s decision to dismiss him. It was not a live issue before him. In addition, the trial judge failed to take into account the issue of delay. Some thirty-two (32) months had elapsed from the date when the decision of the Police Service Commission was communicated to the respondent, and the 31 st March, 2011, when his submissions were filed in the High Court, raising for the first time the issue of the legality of his dismissal. The respondent was therefore raising a different issue and seeking to challenge a completely different decision. 37. Further, the trial judge was of the view that there was no contention on the facts and that the issue of the jurisdiction of the Police Service Commission was a question of law for which each party had had the opportunity to make submissions. 20 He relied on section 20 of the Supreme Court of Judicature Act Chap. 4:01 as empowering him to make a decision on a point of law even in the absence of a pleading However, leave to apply for judicial review had been granted only in respect of the issue of the loss of the respondent s right of appeal to the Public Service Appeal Board. The Police Service Commission had come to meet that specific case and had placed before the trial judge only such evidence as was relevant to that sole issue. The appellant was clearly prejudiced by being deprived of the opportunity to meet what was in effect a new case. Further, there was no evidence as to whether the old or the new commission or a differently constituted commission made the finding of guilt or imposed the penalty of dismissal. There was also no evidence as to when the decision to dismiss was made, and whether such decision was made prior to the commencement of the Constitution (Amendment) Act These were questions that might have been answered if the issue of the respondent s dismissal had been frontally raised. 20 See page 13 of his judgment 21 See page 14 of his judgment Page 15 of 17

16 39. We were therefore of the view that the trial judge was plainly wrong to conclude (i) that the Commission which made the finding of guilt was a differently constituted Commission to the one which imposed the penalty and (ii) that disciplinary charges had been brought against the respondent some time before the year The trial judge s position that there was no contention on the facts and that the issue of the legality of the respondent s dismissal was only a question of law was also wrong. 40. As we conclude we wish to make this observation. The respondent could not have launched judicial review proceedings challenging the decision of the Police Service Commission to dismiss him without making representations to the Commission and without seeking to persuade it not to dismiss him. The appellant by letter dated the 6 th August, 2008 had noted that the respondent did not submit any representations with respect to the penalty to be imposed on him as a consequence of his having been found guilty of the disciplinary charges. In those circumstances, we were of the view that a court could in the exercise of its discretion refuse to grant relief. 22 Cross Appeal 41. At the request of Mr. Sinanan S.C. on behalf of the respondent, we granted leave (without objection) to the respondent to cross appeal on the ground that the trial judge was wrong to conclude that the Public Service Appeal Board had no jurisdiction to hear an appeal from the respondent as to his dismissal by the Police Service Commission. In view of our conclusions at paragraphs 27, 28 and 29, we allowed the cross appeal since the respondent s right of appeal to the Public Service Appeal Board from the decision of the Police Service Commission had not been removed by sections 123, 123A and 123B of the Constitution. Rather, the right was indeed preserved. 22 See paragraph 29 of the judgment of Gopichand Ganga and others v Commissioner of Police/Police Service Commission [2011] UKPC 28 Page 16 of 17

17 DECISION 42. In the circumstances, we allowed the appeal and the cross appeal and set aside the order of the trial judge. After hearing submissions as to costs, we ordered that the respondent pay to the appellant costs of the appeal to be assessed by the Registrar. We also ordered that there be no order as to the costs below and on the cross appeal. Maureen Rajnauth-Lee Justice of Appeal Page 17 of 17