I must also take into consideration, however, that the
argument made in Fercan, namely, that the provincial court
has implied jurisdiction to award costs based on the court’s
ability to control its own process, was not raised at trial or on
appeal in Fach.
 Because the factual context is different and because the
argument now made is different, Fach is not clearly dispositive
of the appeal before us.
(2) Does Fercan apply to this case?
 Before considering whether Fercan applies to this appeal,
it is necessary to lay out the factual background and the considerations that animated the decision.
 Fercan Developments Inc. was the subject of a forfeiture
application under s. 16 of the CDSA after a marijuana grow
operation was found on a portion of its 35-acre property.
FirstOntario Credit Union held a $3 million mortgage on the
Fercan property as security for a loan.
 Robert DeRosa was the property manager for Fercan. He
used his position to ensure that the grow operation remained
hidden but, eventually, it was discovered and he was charged
and convicted of offences under the CDSA. Robert’s brother, Vincent, was the sole director, officer and shareholder of Fercan.
Robert lived on property owned by GRVN Group Inc. (“GRVN”).
Police discovered evidence of a recently dismantled grow operation on the GRVN property as well as drugs linked to the Fercan
property. Another brother, Nicola, was the sole director, officer
and shareholder of GRVN. Nicola, GRVN, Vincent and Fercan
were never charged with any offence.
 The Crown obtained an ex parte restraint order on the
property owned by Fercan, including FirstOntario’s interest, as
well as on the property owned by GRVN in the Superior Court.
The Crown successfully resisted an application by Fercan and
FirstOntario to vary the restraint order to permit sale of the
Fercan property, repayment of FirstOntario’s mortgage and
the deposit of the balance of the money in court. It then
brought forfeiture proceedings against Fercan, FirstOntario
and GRVN. Section 19(3) of the CDSA permits a judge to
return offence-related property to any person who is lawfully
entitled to it and who appears innocent of any complicity or
collusion in respect of the underlying designated substance
offence. Prior to the commencement of the hearing, the application judge ruled that on a s. 19(3) application, the onus
remained on the Crown throughout the proceedings and it
had the burden of showing that the respondents did not appear