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COURT OF APPEAL FOR ONTARIO CITATION: Sleep Number Corporation v. Maher Sign Products Inc., 2020 ONCA 95 DATE: 20200207 DOCKET: C67005 MacPherson, Sharpe and Jamal JJ.A. BETWEEN Sleep Number Corporation Plaintiff (Respondent) and Maher Sign Products Inc. Defendant (Appellant) Mark Adilman, for the appellant David A. Ziegler, for the respondent Heard: February 4, 2020 On appeal from the order of Justice Paul Perell of the Superior Court of Justice, dated April 23, 2019, with reasons reported at 2019 ONSC 2478. REASONS FOR DECISION [1] The appellant did not defend an action brought by the respondent in Minnesota for damages for the supply of defective goods. The respondent obtained default judgment in Minnesota and then brought this action in Ontario to enforce the Minnesota judgment. The motion judge granted summary judgment enforcing the Minnesota judgment. [2] The appellant raises three grounds of appeal. (1) Jurisdiction clause [3] The appellant’s central argument is that the motion judge erred by refusing to hold that a provision in the initial quotation, provided by the appellant for the proposed supply of signs to the respondent, ousted the jurisdiction of the courts of Minnesota. The quotation stated that the agreement was to be interpreted in accordance with Ontario law and that the respondent “hereby attorns to the jurisdiction of the Courts of Ontario for the purpose of pursuing any legal remedies”. [4] The motion judge noted that the respondent had “reasonably strong” arguments that the jurisdiction clause in the quotation did not apply to any or all of the sales contracts between the appellant and the respondent, or if it did, that it did not amount to an exclusive jurisdiction clause. He proceeded to find that, even assuming it was an exclusive jurisdiction clause, it did not oust the jurisdiction of the Minnesota courts. [5] It is well-established that a permissive forum selection clause does not deprive another forum of jurisdiction simpliciter , but is relevant to whether that other forum should exercise its jurisdiction: 2249659 Ontario Ltd. v. Sparkasse Siegen , 2013 ONCA 354, 115 O.R. (3d) 241, at para. 25. Before us, the appellant concedes that if the clause in the quotation does not amount to an exclusive jurisdiction clause, the appeal fails. [6] We find that the forum selection clause is permissive rather than exclusive. As a result, we do not find it necessary to decide how this appeal would be decided if the clause did confer exclusive jurisdiction on the courts of Ontario. [7] The clause bears striking similarity to clauses that other courts have refused to characterize as conferring exclusive jurisdiction. It provides that the respondent “attorns” (in other words, accepts, submits or yields) to Ontario jurisdiction and says nothing that excludes the jurisdiction of another possible forum. We do not agree that the words in the clause applying it to the pursuit of “any legal remedies” amount to a conferral of exclusive jurisdiction. The word “any” refers to “legal remedies” and has no bearing on choice of forum. In Old North State Brewing Company Inc. v. Newlands Services Inc. (1998) , 58 B.C.L.R. (3d) 144, at para. 35, the B.C. Court of Appeal held that an agreement that “the parties will attorn to the jurisdiction of the Courts of the Province of British Columbia” did not meet the standard of “clear and express language … required to confer exclusive jurisdiction” and that it would have been a simple matter to add the word “exclusive” if that was what was intended. See also Hollinger International v. Hollinger Inc ., 2005 CanLII 4582 (Ont. Div. Ct.), to the same effect with regard to an agreement that each of the parties “hereby irrevocably attorns to the jurisdiction of the courts [of Ontario]”. [8] Accordingly, the forum selection clause does not rule out Minnesota jurisdiction. As the motion judge held, it is well accepted that there will often be more than one jurisdiction that is entitled to assert jurisdiction over a given dispute. The existence of another possible forum that has jurisdiction does not deprive the forum selected by the claimant of its jurisdiction. [9] The appellant did write to the Minnesota court to advise that in light of the wording of the quotation, it would not respond to the claim. However, the appellant chose not to go before the Minnesota court to raise the issue of jurisdiction or to ask the Minnesota court to exercise its discretion to decline jurisdiction. [10] The respondent argued that the clause did not deprive the Minnesota court of jurisdiction. The Minnesota court found that the appellant had not taken appropriate steps to respond to the proceeding and took jurisdiction. The appellant could have appeared in Minnesota to contest jurisdiction without submitting to Minnesota jurisdiction: see Walker, Canadian Conflict of Laws (6 th ed) (LexisNexis, loose-leaf) at p. 14-20.06. The appellant cannot now complain that the Minnesota court should have refused to assume jurisdiction and decide the case. (2) Real and substantial connection [11] The appellant submits that the motion judge erred by holding that there was a real and substantial connection sufficient to support the jurisdiction of the Minnesota courts. [12] We see no error in the motion judge’s finding that there was a real and substantial connection with Minnesota. The respondent is a Minnesota corporation with its principal place of business in that state. There is evidence indicating that the appellant went to Minnesota to solicit the respondent’s business. The contract was largely negotiated in Minnesota and performed by the delivery of products to Minnesota. The appellant’s effort to repair alleged defects in the products it supplied occurred in Minnesota. The motion judge did not err by concluding that those facts satisfy the real and substantial connection test. (3) Public policy [13] Finally, we do not accept the argument that it would be contrary to public policy to enforce the Minnesota judgment. The public policy defence is a narrow one and does not apply to the decision of a foreign court to decline jurisdiction in the face of a venue clause. Nor is it contrary to public policy for a court to entertain a case with a real and substantial connection to the forum and to apply the forum’s limitation legislation rather than that of another jurisdiction. Disposition [14] Accordingly, the appeal is dismissed with costs to the respondent fixed in the amount agreed to by the parties: $20,000 inclusive of taxes and disbursements. “J.C. MacPherson J.A.” “Robert J. Sharpe J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Stoney Creek Centre Inc. v. 2459437 Ontario Inc., 2020 ONCA 119 DATE: 20200213 DOCKET: C66961 Feldman, Brown and Zarnett JJ.A. BETWEEN Stoney Creek Centre Inc. Applicant (Appellant) and 2459437 Ontario Inc. Respondent (Respondent) Brian N. Radnoff and Mordy Mednick, for the appellant Chris Reed, for the respondent Heard: January 21, 2020 On appeal from the judgment of Justice Janet Leiper of the Superior Court of Justice, dated April 18, 2019, with reasons reported at 2019 ONSC 2450. BROWN J.A.: OVERVIEW [1] This appeal concerns the amount the chargor, the appellant Stoney Creek Centre Inc. (“Stoney Creek”), must pay to the chargee, 2459437 Ontario Inc. (“245”), to discharge a mortgage on a commercial property known as the Lewis Property. Stoney Creek submits that the application judge erred in holding that it was required to pay the chargee, 245, the $3 million face amount of the mortgage, together with interest, instead of the lesser amount of approximately $2.7 million that had been advanced, plus interest. BACKGROUND FACTS [2] Tony Perruzza is the principal of Stoney Creek. Dr. Gillian Stanley is the principal of 245. In 2015 and 2016, they and their related companies were involved in two overlapping transactions. [3] In the first transaction, Perruzza-related companies agreed to purchase two properties (the “Lakefront Properties”) from 245 . Under those agreements, the purchasers had two conditional periods totaling 210 days in which they could end the transactions. Closing was scheduled for mid-2016. [4] The second transaction stemmed from efforts by Perruzza in late 2015 and early 2016 to obtain financing to purchase the shares of the company that owned the Lewis Property. Stanley learned that Perruzza was encountering difficulties in securing financing. She expressed an interest in assisting Perruzza to finance the share purchase if he would waive the conditions on his acquisition of the Lakefront Properties. [5] Initially, Stanley planned to source the funds to loan to Perruzza from an institutional bank. That source of funding did not materialize. [6] At that point, the closing date for Perruzza’s share purchase was approaching. Perruzza introduced Stanley to another source of funds, Toronto Capital Corp. Stanley was prepared to borrow money from Toronto Capital to provide a bridge loan to Perruzza that would enable him to close the share purchase. [7] Stanley and 245 accepted a loan commitment from Toronto Capital for $3 million, secured in part by mortgages on their Lakefront Properties. Under the terms of the Toronto Capital mortgage commitment, the net amount advanced, after various deductions, would be close to $2.7 million. [8] Perruzza received a copy of the Toronto Capital commitment letter and was aware of its terms before his company, 218, entered into an agreement to borrow money from Stanley’s company, 245, to fund the share purchase. In the section entitled “Use of Proceeds”, the Toronto Capital commitment letter stated, in part: “The proceeds will be used as follows: Complete share purchase: 2,703,000.” [9] After accepting the Toronto Capital commitment letter, 245 then entered into a private mortgage financing agreement as lender with Perruzza’s 218, as borrower (the “Mortgage Financing Agreement”), in respect of the Lewis Property. In a section entitled “PURPOSE”, the Mortgage Financing Agreement stated: “ The purpose of this Loan is to provide financing for the completion of the Share Purchase Agreement. This Loan is conditional upon amongst other things, the waiving of all conditions of the Purchase and Sale Agreements of [the Lakefront Properties].” [10] The other key terms of the Mortgage Financing Agreement relevant to the issues on this appeal are: TYPE OF LOAN: Third Mortgage. Principal and interest. TERM: 16 Month Term following the date of initial advance. LOAN AMOUNT: $3,000,000 (Face value of the mortgage charge) is based on appraisal provided. ADVANCE AMOUNT: $3,000,000 less the Lender’s financing charges. Due on Closing LENDER FEE: A lender fee of 3% shall be deducted on advanced amount. LEGAL: The borrower/project will pay the Lender’s legal fees for closing, registration and discharge [11] As part of the security for the loan transaction, Stoney Creek provided 245 with a mortgage on the Lewis Property (the “Mortgage”). The principal amount of the Mortgage was shown as $3 million. [12] As additional security, 218 provided 245 with a promissory note for $3 million, guaranteed by Stoney Creek. [13] The parties agree that $2,711,691.48 was advanced by Toronto Capital to 245 on its $3 million loan, net of various deductions Toronto Capital was entitled to make pursuant to the terms of its commitment letter to 245. The Statement of Advance for the closing of the Mortgage Financing Agreement showed the receipt of the $2,711,691.48, from which 245 deducted its lender fee, legal costs and title insurance cost, leaving a balance disbursed to 218 of $2,604,691.48. [14] In 2017, Perruzza sought to discharge the Mortgage on the Lewis Property. 245 took the position that the amount required to discharge the Mortgage was the face amount of $3 million, together with interest. Perruzza took the position that the principal amount due on the Mortgage was the $2,711,691.48, plus interest. [15] In order to discharge the Mortgage, 218/Stoney Creek paid into escrow the difference between the $3 million face amount of the Mortgage and the $2,711,691.48, plus interest (the “Disputed Amount”). The Disputed Amount is being held in a lawyer’s trust account pending determination of the dispute. [16] The application judge held that the chargee, 245, was entitled to the Disputed Amount, based on Stoney Creek’s obligation to pay $3 million, plus interest, to discharge the Mortgage. ANALYSIS [17] The law recognizes that a person may give a mortgage for a larger sum in consideration of the loan of a smaller sum where there is an actual agreement to that effect: Edmonds v. The Hamilton Provident and Loan Society (1891), 18 O.A.R. 347, at pp. 362-63. Stoney Creek submits that in the present case the parties did not enter into such an agreement. As a result, Stoney Creek contends that in order to discharge the Mortgage it is only required to pay the actual amount advanced, plus interest, not the Mortgage’s face amount of $3 million. [18] Stoney Creek advances three main arguments in support of its position. First Argument [19] Stoney Creek submits that the application judge erred in her interpretation of the term in the Mortgage Financing Agreement that stated: “ADVANCE AMOUNT: $3,000,000 less the Lender’s financing charges . Due on Closing” (emphasis added) (hereafter the “Disputed Term”). According to Stoney Creek, the application judge erred by: (i) interpreting the Disputed Term as evidencing an agreement that Stoney Creek would pay all the fees and costs 245 incurred in borrowing the money from Toronto Capital that it used to consummate its loan to Perruzza’s company, 218; and (ii) by rejecting Stoney Creek’s argument that the reference to the “lender’s financing charges” was the same as the “lender’s fee” on the second page of the Mortgage Financing Agreement. [20] I am not persuaded by these submissions. Stoney Creek has not demonstrated that the application judge’s interpretation of the Disputed Term in the Mortgage Financing Agreement was tainted by palpable and overriding error. As she was required to do, the application judge interpreted the Disputed Term in light of the factual matrix concerning the two related transactions, the provisions of the Mortgage Financing Agreement, and the terms of the related documents. [21] The material evidence about the factual matrix included: (i) Stanley and 245 assumed financial risk for the benefit of Perruzza and Stoney Creek by mortgaging the Lakefront Properties as security for the funds borrowed from Toronto Capital, which they lent to Perruzza as a bridge loan to enable him to acquire the shares of the company that owned the Lewis Property; (ii) Very shortly after 245 and Stanley accepted Toronto Capital’s commitment letter, they entered into the Mortgage Financing Agreement with Perruzza’s company, 218; and (iii) Before his company, 218, entered into the Mortgage Financing Agreement, Perruzza knew the terms of the Toronto Capital commitment letter which included: (a) a clear statement on the face of the commitment letter that $2.703 million of the $3 million loaned by Toronto Capital would be used to complete the share purchase Perruzza wished to consummate; and (b) a description of the deductions from the $3 million to arrive at the $2.703 million. In his examination for discovery, Perruzza admitted that he knew the advance from 245 would be $2.7 million instead of the $3 million. [22] As the application judge noted, “[t]he face value of the mortgage is for $3 million and default on the mortgage makes that principal amount due and payable”: at para. 35. The Mortgage Financing Agreement expressly contemplated that the loan amount, secured by the $3 million Mortgage, would be greater than the “advance amount”. Further, the related transaction documents executed by and on behalf of Perruzza-related companies – the Mortgage, the promissory note, and the guarantee – clearly specify that the repayment obligation is for a principal amount of $3 million. No transaction document stipulates the repayment of only $2.711 million. [23] The application judge rejected Stoney Creek’s argument that the reference to the “lender’s financing charges” in the Disputed Term was the same as the “lender’s fee” described in the Mortgage Financing Agreement. The language of the document supports her interpretation. The Mortgage Financing Agreement states that the lender’s fee “shall be deducted on advanced amount”, that is to say on the amount of $3 million “less the Lender’s financing charges”. [24] The application judge found that the “Mortgage Financing Agreement is clear”: at para. 35. She was reinforced in that conclusion by the surrounding circumstances, stating, at para. 36: This is a case where the Edmonds principle is displaced by the express agreement of the parties in the Mortgage Financing Agreement. There is no evidence of “fraud or oppression” in the negotiation of the agreement. Both parties were aware of the respondent’s financing costs. Both were represented by counsel on the deal. There were no allegations or evidence of any misrepresentations leading to a risk of loss. To the contrary, all of the documents contemplated that the respondent would seek financing of $3 million and that the agreement with the applicant would be to pay all the fees and costs of the respondent’s financing to consummate the loan to Mr. Perruzza’s company. [25] I see no palpable and overriding error in the application judge’s finding that the parties agreed Stoney Creek would pay 245 the amounts that 245, in turn, was required to pay Toronto Capital in order to obtain the funds used to make the bridge loan to Stoney Creek. That agreement was reflected in the language of the Loan Amount term and Disputed Term of the Mortgage Financing Agreement. When assessed in light of the language of the Mortgage Financing Agreement, the terms of the additional security documents, and the factual matrix, the application judge’s interpretation of the phrase “the Lender’s financing charges” was a commercially reasonable one. Neither the language used nor the factual matrix support an agreement where Stanley would pay Toronto Capital $374,505.38 as well as mortgage her Lakeview Properties in order to provide a loan that Perruzza needed but could not obtain elsewhere. [26] As a result, I agree with the application judge’s conclusion that Stoney Creek was required to pay 245 the amount of $3 million, plus interest, to discharge the Mortgage. Second Argument [27] Second, I do not accept Stoney Creek’s submission that the application judge took into account irrelevant evidence when considering the factual matrix. The application judge’s consideration of the evidence concerning Perruzza’s knowledge of the terms of the loan from Toronto Capital to 245 and Stanley did not constitute an impermissible use of one party’s subjective intention. Instead, by taking that evidence into account, the application judge considered the “surrounding circumstances known to the parties at the time of formation of the contract”, as she was required to do by Sattva Capital Corp. v. Creston Moly Corp ., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 47. Third Argument [28] Finally, Stoney Creek contends that the application judge’s order is inconsistent with her decision because she ordered Stoney Creek to repay only some, but not all, of 245’s borrowing costs. I do not accept this argument. The parties completed the discharge of the Mortgage on the basis that Stoney Creek would pay into an escrow account the agreed Disputed Amount of $374,693.00. The Disputed Amount represents the difference between the discharge balance (i) calculated using the Mortgage’s stated principal amount of $3 million and (ii) that arrived at by using the amount of $2,711,691, which was the amount loaned by Toronto Capital to 245 and Stanley net of its financing charges. In granting judgment in favour of 245, the application judge simply ordered that the agreed Disputed Amount, together with interest, be released and paid to 245. In those circumstances, I see no merit to this submission by the appellant. DISPOSITION [29] For the reasons set out above, I would dismiss the appeal. [30] 245 is entitled to its costs of the appeal from Stoney Creek, fixed in the amount of $25,000, inclusive of disbursements and applicable taxes. Released: “KF” FEB 13 2020 “David Brown J.A.” “I agree. K. Feldman J.A.” “I agree. B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Sutherland v. Toronto (City), 2020 ONCA 122 DATE: 20200213 DOCKET: C65218 Feldman, Brown and Zarnett JJ.A. BETWEEN Ineke Sutherland Plaintiff/Responding Party (Appellant) and City of Toronto, Mark Siboni and Geoffrey R. Newbury Defendants/Moving Parties ( Respondents ) Ineke Sutherland, acting in person Christopher J. Henderson, for the respondents Heard: January 24, 2020 On appeal from the judgment of Justice Thomas R. Lederer of the Superior Court of Justice, dated February 27, 2018, with reasons reported at 2018 ONSC 1311, 72 M.P.L.R. (5th) 311. REASONS FOR DECISION OVERVIEW [1] The appellant, Ineke Sutherland, has engaged in a dispute with the respondent, the City of Toronto, over the payment of property taxes since she first fell into arrears in 1998. As disclosed in her materials, she takes the position that until the City agrees that she does not have to pay interest or penalties on her substantial property tax arrears, she does not have to pay any tax. [2] In 2006, the appellant commenced a Small Claims Court action in which she sought an order that her tax account for 2003 had been paid in full. The respondent, Mark Siboni, acted for the City in that action. The City and Siboni will be referred to as the City Respondents. The respondent, Geoffrey Newbury, was the appellant’s solicitor of record during parts of the Small Claims Court proceeding. [3] After the commencement of that action, the appellant continued to let her property taxes fall further into arrears. [4] In 2009, the Small Claims Court action was struck from the trial list. In 2016, the action was dismissed for delay. In 2017, the appellant abandoned her appeal to the Divisional Court. [5] About five weeks after abandoning her appeal, the appellant started this action (the “SCJ Action”). In it, she pleads that: (i) the City’s tax account for her property has been incorrect since 1998; (ii) in 2006, the City, through Siboni, had undertaken not to take any collection efforts until the Small Claims Court action had been settled; (iii) Newbury negligently handled her Small Claims Court action; and (iv) the City’s efforts to collect property tax arrears had caused her damage. In her statement of claim, the appellant acknowledged that as of October 2017, the City’s records showed her property tax arrears as $102,563.16. [6] The City Respondents moved for summary judgment dismissing the SCJ Action. Although in July 2016, the City had initiated the process to sell the appellant’s property for arrears of taxes, the process was put in abeyance pending the determination of the City Respondents’ summary judgment motion. [7] The motion judge granted summary judgment and dismissed the SCJ Action against the City Respondents. [8] Newbury did not join the City Respondents in seeking summary judgment. [9] In his reasons, the motion judge: provided a meticulous review of the history of the appellant’s tax arrears dating back to 1998; closely examined the elements of her claim for damages; and considered all of the arguments advanced by the appellant. The motion judge concluded that the appellant had no viable cause of action against the City Respondents and there was no genuine issue requiring a trial. [10] He reached that conclusion for several reasons: (i) The root of all of the claims dated back to the 2003, 2004, and 2005 tax bills, with the result that the “issues which are the provenance of this dispute happened well outside the two years that preceded the issuance of the Statement of Claim”: at para. 29. As well, “it cannot be said that the reasonable person in the position of the Plaintiff would not have discovered that, as she continued in her failure to pay any property tax over all the years involved, her potential liability was continuing to grow”: at para. 32. The issues that formed the claim for damages were known to the appellant at least by the time she commenced her Small Claims Court action in 2006: at para. 36. Her SCJ Action therefore was statute-barred; (ii) In any event, statute provided a complete code by which the appellant could question the amount levied as property tax and the steps taken by the City to collect the debt: at para. 37; (iii) Notwithstanding that at one point the City had stated that it would put its collection efforts on hold until the resolution of the Small Claims Court action, in 2012 the City put the appellant on notice that it would resume collection efforts. In any event, the dismissal of the Small Claims Court action meant that the City was free to collect the very significant arrears that the appellant had allowed to build up: at paras. 41-42; and (iv)The issuance of the tax arrears certificate was not capable of amounting to a defamatory statement of the appellant: at paras. 45-47. ANALYSIS [11] On appeal, the appellant advances three main submissions. [12] First, she submits that the motion judge erred in reaching his conclusions. The appellant repeats many of the fact-based submissions she made before the motion judge. We see no error in law by the motion judge, nor has the appellant persuaded us that he made any palpable and overriding error of fact. We see no basis to interfere with the motion judge’s conclusion that there was no genuine issue requiring a trial in respect of the appellant’s claims against the City Respondents. [13] Second, the appellant submits that comments made by the motion judge during the hearing of the motion amounted to oppressive conduct that demonstrated a reasonable apprehension of bias on his part. Having reviewed the portions of the transcript of the hearing on which the appellant relies and which she included in her Appeal Book and Compendium, we see no merit in this ground of appeal. The motion judge provided the appellant with the assistance owed to a self-represented party, including explaining what the summary judgment process involved and the issues he would have to decide. At the same time, he ensured that both parties received a fair hearing by ensuring that submissions remained focused on the issues requiring his adjudication. [14] A few times during the hearing, the motion judge expressed frustration at some of the appellant’s submissions. He also expressed frustration at the City’s delay in dealing with the tax dispute. Towards the end of the hearing, the motion judge apologized to the appellant for expressing his frustration, an apology which she accepted on the record. The appellant received a fair hearing from the motion judge. [15] Finally, the appellant contends that the motion judge should not have granted summary judgment when her claim against Newbury remained outstanding. We disagree. The appellant asserted quite different claims against the City Respondents and her former solicitor; there is no risk of conflicting judgments. DISPOSITION [16] The appeal is dismissed. [17] The appellant shall pay the City Respondents their costs of the appeal fixed in the amount of $10,000, inclusive of disbursements and applicable taxes. “K. Feldman J.A.” “David Brown J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Temedio v. Niagara North Condominium Corporation No. 6, 2020 ONCA 81 DATE: 20200204 DOCKET: C66339 Paciocco, Harvison Young and Zarnett JJ.A. BETWEEN Jean Temedio Applicant (Appellant in Appeal/Respondent in Cross Appeal) and Niagara North Condominium Corporation No. 6 and Simpson Wigle Law LLP Respondents (Respondents in Appeal/Appellants in Cross Appeal) Benjamin J. Rutherford, for appellant in appeal and respondent in cross appeal Erik Savas, for the respondents in appeal and appellants in cross appeal Heard: August 16, 2019 On appeal from the order of Justice Heather McArthur of the Superior Court of Justice, dated December 3, 2018, with reasons reported at 2018 ONSC 7214. COSTS ENDORSEMENT [1] The Respondents in Appeal are ordered to pay costs to the Appellant in Appeal in the amount of $ 5,919.14 , inclusive of taxes and disbursements. [2] The costs ordered in the application below are set aside, and the Respondents in Appeal are ordered to pay to the Appellant in Appeal costs in the application below of $6,669.02, inclusive of taxes and disbursements. “David M. Paciocco J.A.” “Harvison Young J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Temedio v. Niagara North Condominium Corporation No. 6, 2020 ONCA 82 DATE: 20200204 DOCKET: M50995 (C66339) Paciocco, Harvison Young and Zarnett JJ.A. BETWEEN Jean Temedio Applicant (Appellant/Responding Party) and Niagara North Condominium Corporation No. 6 and Simpson Wigle Law LLP Respondents (Respondents/Moving Parties) Erik Savas, for the for the moving parties Benjamin J. Rutherford, for the responding party Heard: In writing COSTS ENDORSEMENT [1] The moving parties’ motion for reconsideration was dismissed on January 10, 2020, with reasons reported at 2020 ONCA 17. The moving parties are ordered to pay the responding party costs in the amount of $1,500, inclusive of taxes and disbursements. “David M. Paciocco J.A.” “Harvison Young J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Temple v. Moorey, 2020 ONCA 148 DATE: 20200221 DOCKET: C67221 Simmons, van Rensburg and Harvison Young JJ.A. BETWEEN Nicholas Temple and Susan Temple Plaintiffs (Respondents) and Richard Moorey and Charleen Moorey Defendants (Appellants) Tim Gleason, for the appellants Mike Maher, for the respondents Heard: February 18, 2020 On appeal from the order of Justice Helen M. Pierce of the Superior Court of Justice, dated July 30, 2019 with reasons reported at 2019 ONSC 3723. APPEAL BOOK ENDORSEMENT [1] The motion judge dismissed the appellants’ r. 37.14(1)(b) motion to set aside the partial summary judgment because she found the appellants’ defences had no merit. [2] In our view, the motion judge erred in isolating non est factum and equitable set-off as the only possible defences when the pleadings and affidavits raised the legitimacy of the promissory notes as a possible defence. In all the circumstances the order below is set aside and the partial summary judgment is set aside on the following terms: 1. The writ of seizure and sale shall remain in place pending further order of the Superior Court; 2. The respondents shall produce any and all documents in their possession within 14 days of today’s date; 3. The appellants shall deliver any amended statement of defence and counterclaim within 21 days of today’s date; 4. The respondents may move for summary judgment thereafter on 21 days’ notice to the appellants; and 5. The appellants shall deliver responding materials at least 4 days prior to the return date of any summary judgment motion. Any non-compliance with these terms shall be dealt with on the return date of the summary judgment motion. [3] No order as to costs of the appeal. Costs of the proceeding below are reserved to the judge hearing the summary judgment motion.

COURT OF APPEAL FOR ONTARIO CITATION: Thistle v. Schumilas, 2020 ONCA 88 DATE: 20200206 DOCKET: C66432 Watt, Hourigan and Trotter JJ.A. BETWEEN Jason Michael Thistle Plaintiff (Respondent) and James Schumilas, Jr. , WCS Financial Services, Cinaber Financial Inc. and Bridgeforce Financial Group Inc. Defendants ( Appellant ) Marie Sydney, for the appellant Sean Zeitz, for the respondent Heard: November 29, 2019 On appeal from the order of Justice Catrina D. Braid of the Superior Court of Justice, dated December 21, 2018. Hourigan J.A.: A. Introduction [1] On June 4, 2009, Equitable Life of Canada issued a life insurance policy to the respondent’s spouse. The policy was in the amount of $600,000. The respondent was the sole beneficiary. [2] The respondent made a voluntary assignment in bankruptcy, effective June 25, 2009. He was not discharged from bankruptcy until June 13, 2011. [3] The respondent’s wife died on October 14, 2010. He made a claim under the policy. On February 22, 2011, Equitable Life denied the claim on the basis that the respondent’s wife had misrepresented or failed to disclose material facts on her application for insurance. Specifically, it was alleged that she failed to disclose an existing medical condition. [4] The respondent commenced an action against Equitable Life on March 29, 2011, seeking a declaration that Equitable Life was required to pay $600,000 under the policy. During that litigation, in approximately December 2012, the respondent became aware of a potential claim in professional negligence against the appellant, who had acted as his wife’s insurance agent when she purchased the policy. The respondent commenced a claim against the appellant on February 11, 2013, seeking damages equivalent to the policy’s value. [5] The appellant brought a motion for summary judgment to dismiss the action on the basis that any right to assert a claim against him arose when the respondent was an undischarged bankrupt and, therefore, the cause of action vested with his trustee in bankruptcy. The respondent brought a cross-motion seeking an order nunc pro tunc granting him “standing to bring this action issued February 11, 2013 in his own name and at his own risk and expense, notwithstanding his assignment in bankruptcy and subsequent discharge”. [6] The motion judge found that she had a discretion under the Bankruptcy and Insolvency Act , R.S.C., 1985, c. B-3 (“ BIA ”) and/or the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 , to validate the claim and regularize the proceedings. She relied on s. 187(9) of the BIA, which provides that no bankruptcy proceeding shall be invalidated by a formal defect or irregularity. According to the motion judge, the order the respondent sought was consistent with the interests of justice and would help protect innocent third-party creditors and the respondent. To do otherwise, she reasoned, would result in a potential windfall for the appellant and a corresponding loss to the creditors. [7] The motion judge further found that the expiry of the limitation period was not an absolute bar to an order nunc pro tunc and that the court can still exercise its discretion. She determined that the order would not undermine the limitation period’s purpose because it was a mere procedural irregularity and there was no intent to defraud creditors. Further, the appellant was aware of the claim within the limitation period, defended the action from the outset, and did not take the position that it relied on the limitation period or that it had been prejudiced. B. Issues [8] The appellant raises two grounds of appeal. He submits that the motion judge erred in finding that: (1) she had a discretion to make an order regularizing the proceeding; and (2) the order could be made on a nunc pro tunc basis . [9] For reasons I will explain, I am of the view that the motion judge erred on ground 2 – that is, the motion judge did not have the authority to make the order nunc pro tunc . I would allow the appeal on that basis. Accordingly, it is unnecessary to consider ground 1. C. Analysis (a) Necessity of the Order Sought [10] To understand how the motion judge erred in finding that she could make an order nunc pro tunc , it is first necessary to consider the respondent’s cross-motion. On that cross-motion, the respondent sought an order granting him standing to bring the action. [11] Was that order required? Section 71 of the BIA provides that upon an assignment in bankruptcy being filed, the bankrupt ceases to have any capacity to deal with his or property, which, subject to the BIA and the rights of secured creditors, immediately passes to and vests in the trustee. As the Supreme Court stated in Wallace v. United Grain Growers Ltd. , [1997] 3 S.C.R. 701, at para. 58, “[a]n undischarged bankrupt has no capacity to deal with his or her property and no distinction is made with respect to whether that property was acquired before or after the assignment in bankruptcy.” [12] The BIA makes no provision for the automatic re-vesting of the property of a bankrupt in the bankrupt either on his or her discharge or on the discharge of the trustee: Douglas v. Stan Fergusson Fuels Ltd. , 2018 ONCA 192, 139 O.R. (3d) 721, at para. 64, leave to appeal refused [2018] S.C.C.A. No. 141. Instead, pursuant to s. 40 of the BIA , a trustee is obligated to return property — that is listed in the bankrupt’s statement of affairs or otherwise disclosed to the trustee, and that is found incapable of realization — to the bankrupt before the bankrupt’s discharge . [13] Section 2 of the BIA defines “property” as follows: any type of property, whether situated in Canada or elsewhere, and includes money, goods, things in action, land and every description of property, whether real or personal, legal or equitable, as well as obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, in, arising out of or incident to property [14] Section 67(1)(c) of the BIA states that a bankrupt’s property shall comprise “all property wherever situated of the bankrupt at the date of the bankruptcy or that may be acquired by or devolve on the bankrupt before their discharge”. There are only a few prescribed exemptions from this definition, as noted in ss. 67(1)(a)-(b.3). [15] Here, the parties agreed before the motion judge and this court that the cause of action arose during the respondent’s bankruptcy, constituted property under the BIA , and thus vested in the trustee in bankruptcy. [16] This panel raised with the parties whether the cause of action vested with the trustee, given that the respondent only discovered the cause of action after his discharge from bankruptcy. In response, the respondent submitted that he was not resiling from his position below that the cause of action vested with the trustee. However, the respondent suggested that this court should consider importing the concept of cause of action accrual/discoverability as an exemption to the automatic vesting of a cause of action pursuant to s. 71 of the BIA . He argued that until a bankrupt or a trustee has discovered a claim, there is nothing that can be practically done to prosecute a cause of action. Finding that a cause of action vests with the trustee regardless of discoverability, he submitted, would allow defendants like the appellant to wrongfully avoid liability. [17] I am not persuaded by this argument. Pursuant to ss. 2 and 67(1)(c) of the BIA , the bankrupt’s property is broadly defined and includes a cause of action, regardless of whether it has been discovered or not. The respondent acquired the cause of action during the currency of his bankruptcy, notwithstanding that the running of the limitation period was contingent on discoverability. Grafting the concept of discoverability to the vesting procedure under s. 71 of the BIA would not only create uncertainty, it could incentivize bankrupts to avoid learning of and disclosing all assets to their trustee. [18] The respondent’s argument also runs contrary to Parliament’s intention. The Supreme Court in Saulnier v. Royal Bank of Canada , 2008 SCC 58, [2008] 3 S.C.R. 166, at para. 43 has stated that: The terms of the definition [of property] are very wide. Parliament unambiguously signalled an intention to sweep up a variety of assets of the bankrupt not normally considered “property” at common law. This intention should be respected if the purposes of the BIA are to be achieved. [19] Parliament also created distinct and narrow exemptions to property, “to allow the bankrupt to continue a living pending discharge and, when discharged, to make a fresh start”: Saulnier , at para. 17. These limited exemptions are not analogous to the respondent’s proposed exemption based on discoverability. [20] Nor am I persuaded that in this case the vesting of the cause of action in the trustee works an injustice. The trustee could have been reappointed pursuant to s. 41(11) of the BIA to prosecute the claim. If the trustee determined that it did not want to prosecute the claim, the respondent could have arranged to have the cause of action assigned to him. In either case, the doctrine of discoverability could be relied on to argue that the claim was not statute barred. Thus, the BIA does not prevent a claim from being asserted or prevent discoverability from operating; all it does is direct that a cause of action vests in the trustee. [21] Rather than seek an assignment and/or arrange for the reappointment of the trustee, in his cross-motion the respondent sought an order granting him standing to bring and maintain an action that he said remained vested in the trustee. Consequently, to the extent that an order regularizing the proceeding was available, the respondent required that it be made on a nunc pro tunc basis . The question is whether the court had the capacity to make that order. (b) Availability of the Nunc Pro Tunc Order [22] To answer this question, regard must be had to the Supreme Court’s decision in Canadian Imperial Bank of Commerce v. Green , 2015 SCC 60, [2015] 3 S.C.R. 801 (“ Green ”). That case considered three appeals ( CIBC , IMAX and Celestica ) where the respondent plaintiffs claimed damages under the common law tort of negligent misrepresentation and pleaded an intention to claim damages under the statutory cause of action in s. 138.3 of the Securities Act, R.S.O. 1990, c. S.5 . [23] None of the plaintiffs obtained leave to commence the statutory action, required under the Securities Act , before commencing the class proceeding based on the common law cause of action. In all the cases, the limitation period for the statutory action, if not suspended, would have run out prior to leave being obtained. In IMAX , the motion for leave was filed and argued before the expiry of the limitation period; in CIBC , the motion for leave was filed before the expiry of the limitation period; and in Celestica , the motion for leave was filed after the expiry of the limitation period. [24] An issue arose in Green regarding whether the court had authority to make a leave order on a nunc pro tunc basis. Côté J., at para. 85, recognized that courts have a power to make nunc pro tunc orders, which she described as essentially backdated orders, noting that rule 59.01 of the Rules of Civil Procedure states: “An order is effective from the date on which it is made, unless it provides otherwise.” She reviewed a non-exhaustive list of factors courts have considered in determining whether to exercise their inherent jurisdiction to grant such an order. Côté J. then turned, at paras. 91 to 93, to the question of whether nunc pro tunc orders should be permitted where a plaintiff required leave to bring an action but failed to seek leave within the applicable limitation period: Returning to the issue in the cases at bar, there are two schools of thought in the jurisprudence on whether a failure to obtain leave within a specified limitation period results in the nullity of the action or is merely a procedural irregularity. According to one view, a failure to do so results in the nullity of the action, which cannot be remedied by a nunc pro tunc order, and is therefore an “insurmountable obstacle”. According to the second view, such a failure is merely a procedural irregularity that can be corrected by a nunc pro tunc order. In my opinion, van Rensburg J. correctly stated the law on this point in IMAX . She noted that the courts have been willing to grant nunc pro tunc orders where leave is sought within the limitation period but not obtained until after the period expires (as in Montego Forest Products ). She also noted that, in the cases suggesting that an action commenced without leave was a nullity, the applicable limitation periods had expired before the application for leave was brought. A nunc pro tunc order in such cases would be of no use to the plaintiff, as it would be retroactive to a date after the expiry of the limitation period. Thus, subject to the equitable factors mentioned above, an order granting leave to proceed with an action can theoretically be made nunc pro tunc where leave is sought prior to the expiry of the limitation period. [Citations omitted.] [25] In circumstances where a motion is brought after the expiry of a limitation period, a nunc pro tunc order cannot be made for the simple reason that such an order is of no practical effect. It would only serve to backdate the order to the date of the motion, which was already beyond the expiry of the limitation period. In Celestica , the plaintiffs did not file their motion for leave prior to the limitation period expiring. Accordingly, on that basis, the Supreme Court denied the granting of a nunc pro tunc order: Green , at para. 111. [26] This court followed Green in Douglas . Like this case, Douglas concerned a cause of action that arose when a party was an undischarged bankrupt and that was asserted at a time when the cause of action remained vested in the trustee. The party’s insurer attempted to bring the action in the party’s name, based on alleged subrogation rights. This court held that the party had no capacity to bring the action because an undischarged bankrupt lacks capacity to commence an action in his name, if his cause of action vested in the trustee on his assignment or at any time before his discharge : Douglas , at paras. 92-93. [27] This court refused to make a nunc pro tunc order pursuant to ss. 38 or 40 of the BIA because, among other things, the insurer sought a nunc pro tunc order almost seven years after the limitation period had passed. Citing Green , this court ruled that “a court has no authority to make a nunc pro tunc order if the party did not seek an order before the relevant limitation period expired”: Douglas , at para. 104. [28] This case is analogous to Douglas , the only difference being that at the time the action was commenced in this case, the respondent was a discharged bankrupt. The respondent sought a nunc pro tunc order in 2018, which was well after the expiry of the two-year limitation period pursuant to the Limitations Act 2002 , S.O. 2002, c. 24, Sch. B. The limitation period for the respondent’s claim expired, at the latest, in 2015, which was two years after the respondent brought his action against the appellant. The motion judge thus had no authority to grant the nunc pro tunc order. [29] The motion judge attempted to distinguish Douglas by noting that, in this case: (1) the respondent was discharged from bankruptcy when the cause of action was discovered, and the action commenced; and (2) the trustee consented to an order regularizing proceeding. Given that the nunc pro tunc order was only sought after the expiry of the limitation period, these factual differences are of no consequence in this particular case. [30] The motion judge also cited Montego Forest Products Ltd. (Re) (1998), 37 O.R. (3d) 651 (C.A.), to demonstrate that “the expiry of the limitation period is not an absolute barrier to granting an order nunc pro tunc ”. However, this court has noted that the nunc pro tunc order was properly granted in Montego Forest Products because the order was sought within the limitation period: Douglas , at para. 104; see also Green , at para. 92. [31] Given the decisions in Green and Douglas , the motion judge erred in granting a nunc pro tunc order regularizing the proceeding for the respondent. She had no authority to make that order and, accordingly, it cannot stand. D. Disposition [32] For the foregoing reasons, I would allow the appeal, set aside the order below, and dismiss the respondent’s claim as against the appellant. [33] Regarding the costs below, in my view the appellant is entitled to his costs of the motion and cross-motion. If the parties cannot agree on the quantum of those costs, they may make brief written submissions to this court. The appellant is also entitled to his costs of the appeal, which I would fix in accordance with the parties’ agreement, in the all-inclusive sum of $10,000. Released: “D.W.” February 6, 2020 “C.W. Hourigan J.A.” “I agree. David Watt J.A.” “I agree. G.T. Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: United States v. Okorhi, 2020 ONCA 89 DATE: 20200205 DOCKET: C65996 Miller, Fairburn and Thorburn JJ.A. IN THE MATTER OF an appeal of a committal order pursuant to s. 49 of the Extradition Act , S.C. 1999, c. 18 BETWEEN The Attorney General of Canada (On behalf of the United States of America) Respondent and Benard Emurhowhoariogho Okorhi Appellant Gord Cudmore, for the appellant Roy Lee, for the respondent Heard and released orally: January 31, 2020 On appeal from the committal order of Justice Jonathon George of the Superior Court of Justice, dated September 18, 2018. REASONS FOR DECISION [1] An order of committal for extradition was issued in this case to await surrender to the United States on the offence of fraud. The appellant does not dispute the hearing judge’s articulation of the test for committal. Rather, he maintains that the hearing judge erred by finding that there was evidence in the Record of the Case and Supplementary Record of the Case linking the appellant to a man named “Marc Richards” and linking Marc Richards to the fraudulent scheme. [2] We do not agree. [3] There is ample evidence of a fraudulent scheme resulting in well over $1 million of actual deprivation. There is evidence linking the appellant to the name Marc Richards and evidence linking Marc Richards to the scheme. [4] We do not intend to repeat the trial judge’s reasons for coming to those conclusions, all of which are rooted in the evidence before him. The evidence included emails sent to and from the Marc Richards email account that made reference to the appellant’s name, a quote that was provided under his name, and a passport photo attached as an Exhibit to the Record of the Case that the hearing judge concluded was a representation of the appellant. [5] Equally, there is evidence linking Marc Richards to the fraudulent scheme, including emails between the Richards account and other alleged co-actors, which emails refer to the very schemes that form the foundation of some of the complaints in this case. The appellant is also linked to a corporate interest that received fraudulent proceeds. [6] Accordingly, the appeal is dismissed. “B.W. Miller J.A.” “Fairburn J.A.” “Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Ustymenko v. Sadochok Centre Inc. (Sadochok Preschool Centre), 2020 ONCA 123 DATE: 20200212 DOCKET: C67046 Simmons, Pepall and Trotter JJ.A. BETWEEN Dr. Stanislav Ustymenko and Anna Zelenova Applicants (Appellants) and Sadochok Centre Inc. o/a Sadochok Preschool Centre Respondent (Respondent) John W. Bruggeman, for the appellants Derrick M. Fulton and Taras Kulish, for the respondent Heard and released orally: February 5, 2020 On appeal from the judgment of Justice Jane Ferguson of the Superior Court of Justice, dated May 7, 2019. REASONS FOR DECISION [1] The respondent Sadochok Centre Inc., operating as Sadochok Preschool Centre, is a small, non-profit Ukrainian daycare centre. K.K. was hired in 1979 as an administrator and bookkeeper and in 1989 also became a director. She resigned from the latter in 2016 and the former in 2017. The appellants became directors in January 2016. By the date of the hearing of the application, the appellants were no longer directors and had no other role at the Centre. The appellants appeal from the May 7, 2019 order of Ferguson J. dismissing their request for leave to commence a derivative action based on allegations that K.K. had misappropriated money in her capacity as director and derived personal benefit from the Centre. [2] Before the application judge, the parties agreed that a derivative action could be brought pursuant to equitable principles. Assuming without deciding that they were correct in that regard, we see no reason to interfere with the application judge’s decision. The evidence did not disclose that K.K. was paid as a director but as an administrator and bookkeeper. The Board of Directors investigated the allegations as did the Public Guardian and Trustee who decided to take no further material action. [3] Moreover, the application judge determined that the action was “bound to fail”. We agree. [4] Lastly, as for the application judge’s costs award, this is not a case that warrants the granting of leave to appeal. [5] For these reasons, the appeal is dismissed and leave to appeal costs is also dismissed. Costs of the appeal are to the respondent on a partial indemnity scale fixed in the amount of $15,000, inclusive of disbursements and HST. “Janet Simmons J.A.” “S.E. Pepall J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Van Nispen v. McCarron & Chobotiuk Financial Services Inc., 2020 ONCA 146 DATE: 20200221 DOCKET: C67192 Simmons, van Rensburg and Harvison Young JJ.A. BETWEEN Robert Van Nispen and Donna Van Nispen Plaintiffs/Defendants by Counterclaim (Respondents) and McCarron & Chobotiuk Financial Services Inc. Defendant/Plaintiff by Counterclaim (Appellant) Steven Sands, for the appellant Lawrence Hansen, for the respondents Heard: February 18, 2020 On appeal from the order of Justice Annette Casullo of the Superior Court of Justice, dated June 12, 2019 with reasons reported at 2019 ONSC 3658. APPEAL BOOK ENDORSEMENT [1] The appellant appeals a summary judgment granting judgment on two promissory notes and dismissing its counterclaim. [2] As a starting point, we see no error in the motion judge’s discretionary decision refusing leave to the appellant under r. 39.02 to deliver a further affidavit following cross-examination of one of the respondents. The affidavit is not before us and was apparently not filed in the court below. In any event, the affidavit was proffered only on the second day of the motion and after the moving parties’ counsel had completed his submissions. The motion judge observed that the information sought to be introduced did not stem from an issue first raised on cross-examination. She also found admitting the affidavit would be unfair. There is no basis to interfere with this exercise of her discretion. [3] We agree with the motion judge that the evidence on the motion did not raise a genuine issue requiring a trial concerning the promissory notes or the counterclaim. The respondents led evidence denying they had diverted clients away from the appellant. As the motion judge found, the appellant’s assertions to the contrary were bald and unsubstantiated. Promises of better evidence at trial do not defeat a motion for summary judgment. [4] The proposed fresh evidence does not meet the test for its admission. The substance of it was available or could have been obtained prior to the motion. Packaging it in a post-motion email to Sun Life does not change that reality. [5] The appeal is therefore dismissed. [6] Costs of the appeal are to the respondents on a partial indemnity scale inclusive of disbursements and HST fixed in the amount of $8,000.

COURT OF APPEAL FOR ONTARIO CITATION: Wardlaw v. Wardlaw, 2020 ONCA 286 DATE: 20200204 DOCKET: C67696 (M51076 and M51234) Roberts J.A. (Motions Judge) BETWEEN Jana Wardlaw Respondent (Appellant) and David Shaw Wardlaw Applicant (Respondent) Jana Wardlaw, appearing in person Joshua Goldberg, amicus curiae Eva Iacobelli, for the respondent Heard: January 30, 2020 REASONS FOR DECISION [1] The appellant and respondent were married for about 17 years and separated in July 2017.  She appeals from two orders of Lemay J. who determined issues of divorce, possession of the matrimonial home, equalization of property, spousal support, and costs. [2] While the appellant commenced her appeal in a timely manner from Lemay J.’s November 28, 2019 order, she was some 43 days’ late in starting her appeal from the trial judge’s October 8, 2019 order.  She therefore moves for an extension of time to appeal from the October 8, 2019 order. [3] The appellant clearly had the requisite intention to appeal during the relevant period and has adequately explained her delay.  There is no evidence of prejudice to the respondent from the delay.  However, the appellant’s proposed appeal does not appear to have any merit. [4] The merits of an appeal can be determinative of the extension request.  A lack of merit alone can justify refusing the request.  See: Enbridge Gas Distribution Inc. v. Froese , 2013 ONCA 131, at para. 16; Nguyen v. Economical Mutual Insurance Co. , 2015 ONCA 828, at para. 13. [5] For the most part, her notice of appeal repeats the various factual and procedural issues that were fully addressed and determined by the trial judge in his careful and thorough reasons.  The appellant has not raised any arguable issues of reversible error. [6] The following review of the appellant’s main grounds of appeal is illustrative.  The appellant has not provided any basis for finding error in the trial judge’s determination that the duplication of documents and clearance certificates highlighted by the appellant were at best procedural irregularities that had no effect on any of the substantive issues at trial.  Further, the appellant again submits, without arguable grounds, that a divorce should not be granted until all issues are disposed of.  Without articulating any arguable error in the trial judge’s determination, she reiterates her very serious allegations of misconduct against the respondent’s counsel that the trial judge held were entirely unfounded.  She raises new allegations of judicial bias that have no evidentiary support in the record simply because the trial judge, as was open to him, found her lacking in credibility and reliability.  She takes issue with various interlocutory orders that she did not appeal and case conference briefs that were not before the trial judge.  She complains about court staff and other lawyers with whom she interacted.  She argues, without putting forward any basis for appellate intervention, that the trial judge erred in his determination that no one was hiding any assets from her, his equalization of property, his granting exclusive possession of the matrimonial home to the respondent, his calculation of spousal support, and his costs award to the respondent based on his successful offers to settle. [7] None of these issues have any apparent merit. [8] For these reasons, I am not persuaded that the justice of the case requires that the requested extension be granted.  I therefore dismiss the appellant’s motion for an extension of time to appeal from the October 8, 2019 order of Lemay J. [9] While respondent’s counsel urged me to dismiss the virtually identical appeal for the November 28, 2019 order of Lemay J., I have no jurisdiction as a single judge to do so. [10] The respondent brings a cross-motion to serve the appellant by email transmission.  Although the appellant is required to apprise the court office and counsel for the respondent of her current address, she has not done so.  Since December 2019, she has no longer resided at the matrimonial home but is still using that address as her address for service on court documents.  The appellant objects to service by email transmission because she does not have regular internet access.  During the cross-motion, she provided a post office box address. [11] I allow the cross-motion and permit the respondent to serve the appellant by email transmission provided that the material so served is also sent to the appellant at her post office box address. [12] Accordingly, order to go dismissing the appellant’s motion and allowing the respondent’s cross-motion. [13] The respondent was successful on these motions and is entitled to payment of his partial indemnity costs by the appellant in the amount of $4,000.00, inclusive of all disbursements and applicable taxes. “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 2352392 Ontario Inc. v. Msi, 2020 ONCA 237 DATE: 20200323 DOCKET: C67245 Feldman, Huscroft and Harvison Young JJ.A. BETWEEN 2352392 Ontario Inc. and Brent Shearer Plaintiffs/Moving Parties (Respondents) and Vusumzi Msi and Vusumzi Msi, Professional Corporation Defendants/Responding Parties (Appellants) AND BETWEEN 2352392 Ontario Inc., Brent Shearer Plaintiffs/Moving Parties (Respondents) and The Works Gourmet Burger Bistro Inc., The Works Realty Corp., Fresh Brands Inc., Andrew O’Brien aka Thomas Andrew O’Brien, Sean Bell, and David Wilson Defendants/Moving Parties (Respondents) Jean-Marc Leclerc, for the appellants Stephany Mandin and Steven H. Goldman, for the respondents 2352392 Ontario Inc. and Brent Shearer Jennifer Dolman and Sarah McLeod, for the respondents The Works Gourmet Burger Bistro Inc., The Works Realty Corp., Fresh Brands Inc., Andrew O’Brien aka Thomas Andrew O’Brien, Sean Bell, and David Wilson Heard: March 6, 2020 On appeal from the order of Justice Shaun S. Nakatsuru of the Superior Court of Justice, dated July 3, 2019, with reasons reported at 2019 ONSC 4055. Feldman J.A.: [1] The question of law to be determined in this case under ss. 6(2) and 6(3) of the Arthur Wishart Act (Franchise Disclosure) , 2000 , S.O. 2000, c. 3, is whether a notice of rescission of a franchise agreement is sufficient if it is contained in a pleading, or, specifically in this case, a third party claim. Background [2] The issue arises in the following circumstances. The franchise was not financially successful. The franchisee’s bank sued the franchisee for default on its loan for the acquisition of the franchise. The franchisee issued a third party claim against the franchisor claiming damages and rescission of the franchise agreement for failure to deliver the required disclosure documents under the Act. The franchisor responded that the franchisee could not claim rescission under the Act because it had not delivered the required notice under s. 6 of the Act. [3] Subsequently, the lawyer who drafted the third party claim for the franchisee became involved in his personal capacity. New counsel for the franchisee issued a new statement of claim against the franchisor, taking the position that the third party claim in the bank action constituted the required notice under the Act. The franchisee then issued a statement of claim against his former lawyer, alleging that he was negligent in failing to comply with the requirements of the Arthur Wishart Act . [4] In a motion within both actions, the franchisor and the franchisee each argued that the third party claim did not constitute notice under the Act. The motion judge accepted that position. This appeal is brought by the lawyer who issued the third party claim, and is opposed by both the franchisor and the franchisee. Legislative context [5] Sections 6(2), 6(3), and 6(6) of the Act provide: 6(2) A franchisee may rescind the franchise agreement, without penalty or obligation, no later than two years after entering into the franchise agreement if the franchisor never provided the disclosure document. (3) Notice of rescission shall be in writing and shall be delivered to the franchisor, personally, by registered mail, by fax or by any other prescribed method, at the franchisor’s address for service or to any other person designated for that purpose in the franchise agreement. (6) The franchisor, or franchisor’s associate, as the case may be, shall, within 60 days of the effective date of the rescission, (a) refund to the franchisee any money received from or on behalf of the franchisee, other than money for inventory, supplies or equipment; (b) purchase from the franchisee any inventory that the franchisee had purchased pursuant to the franchise agreement and remaining at the effective date of rescission, at a price equal to the purchase price paid by the franchisee; (c) purchase from the franchisee any supplies and equipment that the franchisee had purchased pursuant to the franchise agreement, at a price equal to the purchase price paid by the franchisee; and (d) compensate the franchisee for any losses that the franchisee incurred in acquiring, setting up and operating the franchise, less the amounts set out in clauses (a) to (c). The motion judge’s decision [6] The motion judge held that a pleading could not constitute the notice required under s. 6(3). He referred to a number of cases that he acknowledged did not address the issue directly, as well as to the decision of the Superior Court in Ahmed v. Ontario , [2004] O.T.C. 923 (S.C.), which held that a pleading can fulfill the notice requirement under s. 7(1) of the Proceedings Against the Crown Act , R.S.O. 1990, c. P.27. In that case, Low J. found that the original statement of claim, which was ultimately struck out, nevertheless served the purpose of the notice requirement of providing the Crown with notice of the claim and was sufficient compliance with the Act. [7] The motion judge ultimately relied on the decision of this court in 2130489 Ontario Inc. v. Philthy McNasty’s (Enterprises) Inc. , 2012 ONCA 381, 350 D.L.R. (4th) 326. The issue in that case was when the cause of action arose for compensatory damages for a franchisor’s failure to comply with the statutory obligations following receipt of a notice of rescission under s. 6(6) of the Arthur Wishart Act , and whether the claim for such damages was commenced within the two-year limitation period under s. 4 of the Limitations Act , 2002 , S.O. 2002, c. 24, Sched. B. In that case, the franchisee gave notice of rescission for the franchisor’s failure to provide the disclosure document; after receiving the notice, the franchisor failed to comply with s. 6(6) of the Act within 60 days; and the franchisee then commenced the proceeding against the franchisor within two years of its failure to comply. In concluding that the application was commenced in time, the court held that “[u]ntil the franchisor decides to not fulfil the obligations in s. 6(6), the franchisee has no cause of action for compensatory damages”: at para. 39. [8] Relying on Philthy McNasty’s , the motion judge concluded, at para. 40: Thus, since a notice under subsection 6(3) serves a different purpose from a pleading, this Third Party Claim in the case at bar cannot constitute such a notice. It is plain and obvious the Third Party Claim which is based upon a cause of action dependant upon a failure of the franchisor to abide by its obligations under subsection 6(6), cannot constitute notice since there is no cause of action until such notice has been given. Logically, the Third Party Claim cannot serve the same function as notice. [9] At para. 34, the motion judge distinguished the Ahmed case on the basis that “a notice under [the Proceedings Against the Crown Act ] serves a very different purpose than that under subsection 6(3) of the Wishart Act and does not carry with it the extraordinary consequences that follow service of the notice under subsection 6(3).” Analysis [10] In effect, the notice of rescission and the claim for rescission were brought contemporaneously in this case. Is there a reason to interpret the Act in a way that requires a separate notice, and does not allow the third party claim, issued within two years after entering into the franchise agreement as required by s. 6(2), to constitute the required notice? In my view, there is not. [11] As the Arthur Wishart Act is remedial legislation, it should be interpreted in a generous manner to redress the imbalance of power in franchising relationships, while also balancing the rights of both franchisees and franchisors: Mendoza v. Active Tire & Auto Inc. , 2017 ONCA 471, 139 O.R. (3d) 230, at para. 13, leave to appeal refused, [2017] S.C.C.A. No. 405; Salah v. Timothy’s Coffees of the World Inc. , 2010 ONCA 673, 268 O.A.C. 279, at para. 26; 4287975 Canada Inc. v. Imvescor Restaurants Inc. et al. , 2009 ONCA 308, 98 O.R. (3d) 187, at para. 40, leave to appeal refused, [2009] S.C.C.A. No. 244. [12] Under s. 6(2) of the Act, a franchisee has the right to rescind the franchise agreement within two years if the franchisor did not provide the statutory disclosure document. To do so, the franchisee must provide written notice of rescission. The purpose of the notice is to advise the franchisor that the franchisee is rescinding. Its purpose is not as a precondition to litigation. In fact, a review of the Hansard debate at the time the Act was introduced confirms that s. 6 was intended to allow the parties to extricate themselves from the agreement without litigation if the franchisor accepts the notice of rescission and complies with all the requirements in s. 6(6) within 60 days of receiving the notice: see Ontario, Legislative Assembly, Standing Committee on Regulations and Private Bills, Subcommittee Report: Franchise Disclosure Act, 1999, Bill 33 , 37-1, (19 April 2000) at 11:10 (Joseph Hoffman, Director, Policy and Agency Relations Branch, Ministry of Consumer and Commercial Relations). [13] Under s. 6(3), the only requirements for the notice are that it be in writing and delivered to the franchisor. Although it is fair to say that the Act appears to contemplate that notice will be given outside the context of litigation, a pleading can comply with the Act’s requirements. It did in this case. Moreover, it was not the respondents’ position that the language of the third party claim was too imprecise to give notice to the franchisor, as was the case in 779975 Ontario Ltd. v. Mmmuffins Canada Corp. (2009), 62 B.L.R. (4th) 137 (Ont. S.C.). This was not a case in which the franchisor was somehow prejudiced by the manner in which notice was given, nor did the respondents submit otherwise. Their position was that no pleading could constitute the required notice under the Act. [14] The issue identified by the motion judge is that the pleading itself may be premature, particularly to the extent that it claims the damages and payments provided in s. 6(6) before the 60 days have gone by. However, the prematurity of the pleadings is a procedural matter that may have to be addressed by the parties, depending what positions they take. In this case, as in the Ahmed case, the pleading served only as notice and the parties subsequently issued new statements of claim. Although this procedure is anomalous, and certainly not the ideal or recommended approach, I see no basis to find that the third party claim could not constitute the written notice required under s. 6(3) of the Act – a finding that would have the effect of denying the franchisee’s right to rescind. [15] To conclude, although a written notice of rescission delivered by the franchisee to the franchisor before commencing litigation is the normal and preferable procedure, to preclude a franchisee from using a pleading to provide notice of rescission to a franchisor and to find that such a notice cannot comply with the Act when there is no such prohibition in the Act itself, would be to favour form over substance and create a barrier to enforcement of the rights of franchisees under the Act. Disposition [16] For these reasons, I would allow the appeal with costs to the appellant in the agreed amount of $10,000, inclusive of disbursements and HST. I would also order costs of $10,000 in the motion below to be paid to the appellant. Released: “K.F.” March 23, 2020 “K. Feldman J.A.” “I agree. Grant Huscroft J.A.” “I agree. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 3113736 Canada Ltd. v. Cozy Corner Bedding Inc., 2020 ONCA 235 DATE: 20200323 DOCKET: C66890 Feldman, Brown and Zarnett JJ.A. BETWEEN 3113736 Canada Ltd. Plaintiff (Respondent) and Cozy Corner Bedding Inc. Defendant (Appellant) Douglas LaFramboise, for the appellant Varoujan Arman, for the respondent Heard: January 23, 2020 On appeal from the order of Justice Andrew A. Sanfilippo of the Superior Court of Justice, dated April 8, 2019, with reasons reported at 2019 ONSC 2249, 69 C.B.R. (6th) 102. Zarnett J.A.: OVERVIEW [1] Insolvency legislation preserves the right of a person, who has been sued by the insolvent, to raise set-off as a defence. The main issue in this appeal is whether that right was given up by a release that the insolvent obtained in a class action. [2] The respondent, 3113736 Canada Ltd. (“Valle Foam”) was a manufacturer and supplier of foam products. The appellant, Cozy Corner Bedding Inc. (“Cozy Corner”) was one of Valle Foam’s long-standing customers. In 2010, Valle Foam was charged under the Competition Act , R.S.C., 1985, c. C-34, with fixing prices of its products for a period from 1999 to 2010. Along with others, it was also sued for damages for price-fixing in a class proceeding. The class was made up of customers who, like Cozy Corner, purchased foam products between 1999 and 2012. [3] In 2012, on the brink of insolvency, Valle Foam pled guilty to the charges and entered into an agreement to settle the class action on terms that did not include any payment to the class. The class action settlement included a release (the “Class Action Release”). It released claims by class members against the class action defendants, but expressly left unimpaired class members’ rights to advance those claims in a defendant’s subsequent insolvency. Immediately after it agreed to settle the class action, Valle Foam filed for insolvency protection under the Companies’ Creditors Arrangement Act , R.S.C., 1985, c. C-36 (the “CCAA”). [4] In 2013, while under CCAA protection, Valle Foam commenced an action against Cozy Corner for unpaid invoices rendered in 2011 and 2012. Cozy Corner, which made purchases during the price-fixing period, defended the action and counterclaimed. It alleged that, due to the price-fixing scheme, it had overpaid Valle Foam in amounts that exceeded Valle Foam’s claim. [5] Valle Foam successfully moved for summary judgment for the amount of the invoices and a dismissal of the counterclaim. The motion judge rejected Cozy Corner’s contention that it was not bound by the class action settlement because it had not received actual notice of it. He characterized Cozy Corner’s defence and counterclaim as raising equitable set-off, but considered equitable set-off to be barred by the Class Action Release. Alternatively, he held that Cozy Corner had not led sufficient evidence of overcharging in the relevant period to meet its burden of showing a genuine issue requiring a trial. [6] For the reasons that follow, I would allow Cozy Corner’s appeal and direct that the matter proceed to trial. In light of the exception in the Class Action Release, the Class Action Release did not bar Cozy Corner from advancing equitable set-off in response to the action that Valle Foam brought while it was a CCAA-protected insolvent. The factual record disclosed an issue about overcharging which raised a genuine issue requiring a trial. FACTS The Competition Act Offences and Class Actions [7] The respondent was known as Valle Foam Industries (1995) Inc. prior to its insolvency. It made and distributed flexible polyurethane foam products. Cozy Corner was a customer of Valle Foam between 2001 and 2012. Cozy Corner’s deponent gave evidence that it paid Valle Foam over $3 million for product during the course of their business relationship. In 2009 alone, Cozy Corner purchased $445,000 worth of products from Valle Foam. [8] In 2010, Valle Foam was charged under s. 45(1)(c) of the Competition Act with conspiring to unduly lessen competition in the sale or supply of foam products, and under s. 45(1)(a) of the Competition Act with conspiring to fix, maintain or increase the price for those products. The time period alleged in the charges was from January 1, 1999 to March 11, 2010 for the s. 45(1)(c) offences and March 12, 2010 to July 27, 2010 for the s. 45(1)(a) offences. [9] Various class actions were commenced against Valle Foam and others alleged to have been involved in the price-fixing scheme. An Ontario class action was commenced in 2010. The class actions included claims for damages for price-fixing on behalf of purchasers of foam products. [10] On January 5, 2012, Valle Foam pled guilty to the Competition Act offences and was fined a total of $6.5 million. The motion judge noted that this included an admission of price-fixing in relation to the period covered by the charges, namely January 1, 1999 to July 2010. [11] On January 11, 2012, Valle Foam agreed to a settlement of the class actions conditional upon court approval. The next day, January 12, 2012, Valle Foam filed for insolvency protection under the CCAA. As described in the affidavit of Tony Vallecoccia, the Chief Executive Officer of Valle Foam at the time of the CCAA filing (the “Vallecoccia Affidavit”), the two events were closely related. As he deposed, the settlement of the class action: · did not involve any payment by Valle Foam to the plaintiff class; · was made expressly on the contemplation that Valle Foam would immediately be filing for insolvency protection; and · provided that the settlement and the termination of the class proceedings were “without prejudice to the Class Plaintiffs and putative class members…asserting their claims as creditors within the proposed CCAA proceedings”. [12] When Valle Foam filed for CCAA protection, it obtained a broad stay of proceedings against it. Paragraph 13 of the Initial Order provided that until the termination of the stay period, “no proceeding or enforcement process in any court…shall be commenced or continued against...[Valle Foam]”. Paragraph 14 provided that during the stay period, “all rights and remedies of any…corporation…against [Valle Foam] were stayed and suspended”. The stay period was initially until February 10, 2012, but was extended from time to time through to at least April 30, 2019, that is, beyond the time this matter was heard by the motion judge. This Action [13] In addition to its purchases from Valle Foam during the period covered by the price-fixing charges, Cozy Corner purchased additional foam product from Valle Foam between August 5, 2011 and January 27, 2012. Valle Foam issued invoices totaling approximately $200,000 for this product, the bulk of which remained unpaid as of April 8, 2013 when Valle Foam demanded payment (the “Disputed Invoices”). [14] On May 1, 2013, Valle Foam, while under CCAA protection, instituted this action claiming $184,319.34 on the Disputed Invoices, which Cozy Corner had refused to pay when it learned of Valle Foam’s price-fixing guilty plea. [15] Cozy Corner defended the action and counterclaimed, alleging that it was not required to pay the invoices because of the price-fixing and overcharging in which Valle Foam had engaged. Cozy Corner referred to the guilty plea and relied on its payments to Valle Foam from 2001 to 2012 “for product that was the subject of price fixing”. Cozy Corner counterclaimed for what it estimated was the amount it had been overcharged—$410,000 representing 10% of the $4.1 million it had paid to Valle Foam since 2001. This amount exceeded Valle Foam’s claim by roughly $225,000. [16] In its reply, Valle Foam relied on the stay in the CCAA order and asked that the counterclaim be dismissed. It claimed that Cozy Corner had not suffered any loss on the Disputed Invoices because they were in respect of product sold after the price-fixing period in the guilty-plea. Valle Foam also alleged that, if any amounts were found to be owing to Cozy Corner, they should be set-off against its claim. Paragraph 20 of the reply states: “...in the event any amounts are owing by [Valle Foam] to [Cozy Corner], which is expressly denied for reasons pleaded herein and in the Statement of Claim, [Valle Foam] is entitled to set-off those amounts against the amount claimed in the Statement of Claim.” The Class Action Settlement Approval [17] The Ontario class action was certified for settlement purposes against Valle Foam and others in July 2013. In August 2013, notice of the certification and of a request that the settlement be approved was mailed to, among others, Valle Foam’s customer list, on which Cozy Corner’s name appeared. Notice was also provided in certain media. The notice provided for an opportunity to opt out of participation in the class action and a deadline (October 18, 2013) for doing so, and stated that if a class member did not opt out “you will be bound by the settlement”. Cozy Corner did not opt out. [18] On February 11, 2014, the settlement of the class actions was approved in Ontario (the “Class Action Settlement Order”). Ontario settlement class members were defined as including all persons who purchased foam products from January 1, 1999 to January 10, 2012, and who did not validly opt out. The Class Action Settlement Order gave effect to the Class Action Release, described more fully below, and deemed the Released Claims (also described below) to be discontinued. [19] The Class Action Release provides that class members release Valle Foam, among others, from the Released Claims, which include “any and all manner of claims, demands, actions,…damages whenever incurred,…relating in any way to any conduct [between] January 1, 1999 to the date hereof [January 10, 2012]…in respect of the purchase, sale, pricing, discounting, marketing, distributing of or compensation for, Foam Products…” [20] The Class Action Release is subject to the following exception: Notwithstanding anything in this Settlement Agreement to the contrary, including but not limited to this Settlement Agreement’s provisions relating to the release of the Released Claims granted by the Releasors in favour of the Releasees and the discontinuance of proceedings as against the Domfoam Defendants, nothing in this Settlement Agreement shall preclude the Plaintiffs, or any member of the Settlement Class, individually or collectively, from filing against the Domfoam Defendants a claim in any creditor protection, restructuring, insolvency or other bankruptcy proceeding in Canada and/or the U.S. to the extent that such claim is based upon, arising out of or relating to facts, occurrences, transactions or other matters alleged in the Proceedings. To the extent permitted by law, the Domfoam Defendants shall not object to the filing by the Plaintiffs, or any member of the Settlement Class, of any such claim against the Domfoam Defendants in any creditor protection, restructuring, insolvency or other bankruptcy proceeding in Canada or the U.S., and further agree that nothing in this Settlement Agreement shall in any way impair or limit such claim against the Domfoam Defendants or the ability of such claimant(s) to seek recovery in any such creditor protection, restructuring or other bankruptcy proceeding in Canada or the U.S. for any such claim(s) against the Domfoam Defendants. [21] The term “Domfoam Defendants” in the Class Action Release included Valle Foam. The Motion Judge’s Decision [22] The motion judge rejected Cozy Corner’s argument that it was not bound by the Class Action Release because it did not receive actual notice of the class action, the settlement approval, or the right to opt-out. He found that the procedure that had been undertaken in the class action provided adequate notice to class members. [23] In addition, the motion judge found that the claims in the defence and counterclaim, which Cozy Corner sought to set-off against the respondent’s claim, fell within the definition of “Released Claims” in the settlement. Cozy Corner was bound by the Class Action Release, and its counterclaim was deemed to be discontinued, as it had not opted out of the class action settlement. The motion judge held this to be a sufficient ground to grant judgment on Valle Foam’s claim and dismiss the counterclaim: at paras. 49-55. [24] In the alternative, he also found that Cozy Corner had not put its best foot forward to show, by evidence, that there was price-fixing on the invoices on which it was sued, or the amount of over-charging due to price-fixing on prior invoices. He therefore would have granted judgment and dismissed the counterclaim on this basis if he had not done so on the basis of the Class Action Release: at para. 78. [25] Finally, he held that if he had not dismissed the counterclaim on the basis of the Class Action Release, he would have rejected Valle Foam’s request to stay the counterclaim on the basis of the CCAA stay of proceedings. He reasoned that “a claim for equitable set-off can be continued in response to a claim brought by a party protected by a CCAA proceeding notwithstanding a stay order”, and that the counterclaim is “a form of set-off responsive to the claim by the party under CCAA protection”: at paras. 80-82. [26] As a consequence, the motion judge granted judgment in favour of Valle Foam in the sum claimed on the Disputed Invoices ($184,319.34), with pre-judgment and post-judgment interest, and dismissed Cozy Corner’s counterclaim. ANALYSIS Standard of Review [27] The motion judge’s decision that there was no genuine issue requiring a trial is a finding of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law should not be overturned absent palpable and overriding error: Hryniak v. Mauldin , 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 81. Is Cozy Corner Bound by the Class Action Release? [28] Cozy Corner submits that the motion judge erred in finding that it was bound by the Class Action Release because of its contention that it did not actually receive notice of the class action, the settlement which contained the release, or the right to opt-out. [29] I would not interfere with the motion judge’s conclusion on this point. [30] Subsection 29(3) of the Class Proceedings Act, 1992 , S.O. 1992, c. 6, states that “[a] settlement of a class proceeding that is approved by the court binds all class members.” Cozy Corner does not dispute that it falls within the class definition in the Ontario class action, that it did not opt out, and that even after Valle Foam raised the class action settlement against it, it brought no motion in the class action to extend the time for it to opt out. [31] Cozy Corner’s argument that it did not receive actual notice of the class action, the settlement approval hearing, or of the opportunity to opt out, is therefore unavailing. While the law is clear that adequate notice to class members must be provided, the lack of actual notice to any particular class member does not prevent the class (except for opt outs) from being bound where sufficient steps have been undertaken to provide adequate notice: Currie v. McDonald’s Restaurants of Canada Ltd. (2005) , 74 O.R. (3d) 321 (C.A.), at paras. 28 to 31; Airia Brands Inc. v. Air Canada , 2017 ONCA 792, 417 D.L.R. (4th) 467, at para. 86, leave to appeal refused: [2017] S.C.C.A. No. 476. [32] The motion judge’s finding that sufficient steps to provide adequate notice had been undertaken was completely justified on the record. It is entitled to deference. Cozy Corner’s lack of actual notice did not prevent it from being bound by the Class Action Release. Does the Class Action Release Cover Equitable Set-Off? [33] Cozy Corner further argues that the motion judge erred in viewing the Class Action Release as applying to Cozy Corner’s assertion of equitable set-off. [34] The motion judge’s interpretation of the Class Action Release is subject to a deferential standard of review, absent extricable error: Creston Moly Corp. v. Sattva Capital Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50 and 55. However, here the motion judge failed to interpret the Class Action Release as a whole and give meaning to all of its terms, which is a fundamental principle of contractual interpretation: Ventas Inc. v. Sunrise Senior Living Real Estate Trust, 2007 ONCA 205, 85 O.R. (3d) 254, at para 24. His reasons do not advert to or analyze the exception in the Class Action Release. This is an extricable legal error within the meaning of Sattva , at para. 53. Accordingly, his interpretation is not subject to deference. [35] The motion judge relied on the following term of the Class Action Release as indicative of its breadth: Released Claims mean any and all manner of claims, demands, actions . . . , damages whenever incurred, damages of any kind including compensatory, punitive or other damages , liabilities of any nature whatsoever, . . . relating in any way to any conduct occurring anywhere, from January 1, 1999 to the date hereof [January 10, 2012] in respect of the purchase, sale, pricing, discounting, marketing, distributing of or compensation for, Foam Products, or relating to any conduct alleged (or which could have been alleged) in the Proceedings or the Other Actions [36] Cozy Corner argues that equitable set-off falls outside of this language because it is a defence, not a claim. Equitable set-off is not, for example, precluded by a limitation period the way a claim is: Grand Financial Management Inc. v. Solemio Transportation Inc ., 2016 ONCA 175, 395 D.L.R. (4th) 529, leave to appeal refused: [2016] S.C.C.A. No. 183, at paras. 92 to 94. [37] I would not give effect to this argument. Although equitable set-off is a defence, it is one that arises from the defendant having a “cross-claim” that is closely connected to the plaintiff’s claim: Telford v. Holt , [1987] 2 S.C.R. 193, at p. 212. It is a way of raising, as a defence, a plaintiff’s liability to take into account a loss it occasioned to the defendant in reduction of the plaintiff’s claim. It is often referred to as a “claim for equitable set-off”: Canada Trustco Mortgage Co. v. Pierce (Estate Trustee of) (2005), 254 D.L.R. (4th) 79 (C.A.), at para. 50, leave to appeal refused: [2005] S.C.C.A. No. 337. [38] The definition of Released Claims refers to “any and all manner of claim” and also to “liabilities of any nature whatsoever”. In my view, this language is broad enough to capture a claim for equitable set-off. [39] However, the exception (excerpted at para. 20 of these reasons) is an important restriction on what would otherwise be the broad effect flowing from the definition of Released Claims. The exception allows class members (like Cozy Corner) to make claims arising from the matters in issue in the Class Actions (i.e. the price-fixing activities) in the course of an insolvency proceeding taken by a beneficiary of the Class Action Release (like Valle Foam). It leaves the right to make such claims unimpaired. [40] In my view the right to claim equitable set-off in an insolvency falls within the exception. [41] The CCAA preserves the ability of a creditor to raise set-off when sued by a company that is subject to CCAA protection. Section 21 of the CCAA, which appears within a group of sections appearing under the heading “Claims”, provides: The law of set-off or compensation applies to all claims made against a debtor company and to all actions instituted by it for the recovery of debts due to the company in the same manner and to the same extent as if the company were plaintiff or defendant, as the case may be. [42] Section 21 of the CCAA extends to claims for equitable set-off: Algoma Steel Inc. v. Union Gas Ltd. (2003), 63 O.R. (3d) 78 (C.A.), at paras. 13-16. Because successfully raising set-off against the insolvent permits a dollar-for-dollar reduction in what would otherwise be a liability to the insolvent, claims for set-off are to be viewed with caution: Algoma , at paras. 14-15. However, here the motion judge accepted that what Cozy Corner raised was a claim for equitable set-off. [43] Valle Foam argues that the exception in the Class Action Release only applies to permit Cozy Corner to file a claim for payment of the overcharges in a CCAA claims process. It argues that the exception does not extend to allowing Cozy Corner to raise set-off as a defence when Valle Foam, while under CCAA protection, sues it. [44] I would not give the exception so narrow a reading. In my view, the exception in the Class Action Release preserves the right of class members like Cozy Corner to raise claims in insolvency proceedings to the same extent as the law applicable to that insolvency proceeding permits. The CCAA governs Valle Foam’s insolvency proceeding and envisages that Valle Foam, as a company subject to its protection, may sue to recover on debts owed to it, but that if it does, a defendant can raise equitable set-off. Accordingly, I do not view Cozy Corner’s assertion of equitable set-off as falling outside of the right of Cozy Corner to seek recovery in a “creditor protection, restructuring, insolvency or bankruptcy proceeding in Canada”, a right which was specifically said not to have been impaired by the Class Action Release. [45] There is no unfairness to Valle Foam in this conclusion. Although the motion judge viewed the settlement as reflecting a choice by Cozy Corner “to pursue its remedy against [Valle Foam] in the administration of the class settlement” (para. 68), there was in fact no remedy to be pursued in the class settlement as Valle Foam made no payment to settle. More accurately put, the settlement channeled claims into Valle Foam’s CCAA process, and left them unimpaired in that process. Cozy Corner, by raising a claim of equitable set-off in its defence and counterclaim, is raising a right specifically available in the CCAA process, which was not compromised by the Class Action Release. Was there Sufficient Evidence of Overcharging to Raise a Genuine Issue for Trial? [46] The motion judge held that, in any event, Cozy Corner failed to lead and establish evidence to support its claim of equitable set-off. He stated, at paras. 76 to 77, that: Cozy Inc. did not produce any evidence of price-fixing by Valle Inc. during the period of the 2011-2012 Invoices, recalling that the Offence Period admitted by Valle Inc. in its guilty plea under the Competition Act charges (January 1, 1999 to July 2010) pre-dated the 2011-2012 purchases in question. Section 9.1 of the Class Settlement Agreement specifically states that any step taken by Valle Inc. in the Class Action settlement “shall not be deemed, construed or interpreted to be an admission of any violation of any statute or law, or of any wrongdoing or liability” by Valle Inc. In regard to the 2009 invoices, Cozy Inc. did not produce any evidence of the amount of over-charging said to have resulted from price fixing by Valle Inc. so as to establish a quantification of the damage claim that it asserted. The 10% over-pricing value pleaded by Cozy Inc. was not established by any evidence. Cozy Inc. submitted that it could not produce this evidence because the Plaintiff had refused to provide it. I agree with Corbett J. in [ Sweda Farms Ltd. v. Egg Farmers of Ontario , 2014 ONSC 1200], at para. 28, that “a burden of persuasion rests on [the responding party] to establish that it has taken reasonable steps to obtain the evidence it needs for the motion for summary judgment, and that the missing evidence would be material to the disposition of the motion”. Cozy Inc. has not shown that it took reasonable steps to obtain the evidence that it says the Plaintiff has on the over-pricing value. [47] In my view, the motion judge made a palpable and overriding error in his assessment of the evidentiary record in coming to this conclusion. [48] The motion judge noted that the Disputed Invoices fell outside the time period for which Valle Foam had entered a guilty plea, and that Cozy Corner’s principal had conceded on cross-examination that the only reason these invoices were not paid was due to the Competition Act charges on which Valle Foam was convicted. The motion judge was entitled to view the amount of the Disputed Invoices as established. [49] But, even if the amount of the Disputed Invoices sued upon was established, any overcharging on prior invoices issued and paid during the period of price-fixing could, in the circumstances, qualify as a “cross-claim…so clearly connected with the demand of [Valle Foam] that it would be manifestly unjust to allow [Valle Foam] to enforce payment without taking into consideration the cross-claim”: Telford , at p. 212. The parties were in a long-term supply arrangement, and overcharging for a period from 2001 to 2010, if it occurred, could form the basis of an equitable set-off against amounts properly charged in following years. The motion judge made no finding to the contrary. His concern was with the evidence in support of the amount of overcharging. [50] Valle Foam’s evidence in support of its motion for summary judgment attached the Vallecoccia Affidavit, which had been used in support of its CCAA filing. The Vallecoccia Affidavit stated that Valle Foam had agreed to a substantial fine in its prosecution by the Competition Bureau “based on a number of factors, including the Bureau’s practice of assuming a 20% overcharge.” It went on to say that in the absence of a settlement, Valle Foam faced substantial exposure in the class action “even if [Valle Foam was] only exposed to several liability and the Court calculates damages based on a modest 5% overcharge ” (emphasis added). The motion judge did not advert to that evidence. [51] Given that Valle Foam’s own evidence included the amount of the Competition Bureau’s assumption concerning its overcharging (20%), and described its potential exposure in the class action using a percentage of overcharging that its CEO considered to be “modest” (5%), there was some basis in the evidence that there had been an overcharge which, when applied to the amount of Cozy Corner’s prior purchases from Valle Foam (in excess of $3 million), yielded an amount that could substantially negate or reduce Valle Foam’s claim. Valle Foam supplied no other evidence of the amount of the overcharges or to explain the Vallecoccia statements. [52] The motion judge noted that when asked by Cozy Corner to provide the amounts of the overcharges, Valle Foam did not do so. Although the motion judge referred to the request and refusal, he did not explain what further steps were required to be taken by Cozy Corner at this stage to qualify as “reasonable steps to obtain the evidence that it says [Valle Foam] has on the over-pricing value”: at para. 77. Nor did he explain why an adverse inference could not be drawn against Valle Foam from its failure to provide such information: Rules of Civil Procedure , R.R.O. 1990, Reg. 194, r. 20.02 (1); Indcondo Building Corp. v. Steeles Jane Properties Inc . (2001), 14 C.P.C. (5 th ) 117 (Ont. Sup. Ct.). [53] In my view, taken together, the record disclosed facts showing a genuine issue requiring a trial on the amount of the overcharges and their effect on Valle Foam’s claim. CONCLUSION [54] I would allow the appeal, set aside the summary judgment, and direct the matter to proceed to trial. The parties did not address whether, if Cozy Corner establishes equitable set-off in an amount that exceeds Valle Foam’s claim, it could, in addition to defeating that claim, obtain judgment for any excess in a manner analogous to what s. 111 of the Courts of Justice Act , R.S.O. 1990, c. C.43, allows in cases of legal set-off. Nothing in these reasons preordains the determination of that issue if it arises. [55] In accordance with the agreement of the parties, I would award Cozy Corner the costs of the appeal in the amount of $5,000, inclusive of disbursements and applicable taxes. Released: March 23, 2020 “K.F.” “B. Zarnett J.A.” “I agree. K. Feldman J.A.” “I agree. David Brown J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 2099082 Ontario Limited v. Varcon  Construction Corporation, 2020 ONCA 202 DATE: 20200312 DOCKET: C67026 Feldman, Huscroft and Harvison Young JJ.A. BETWEEN 2099082 Ontario Limited Plaintiff (Respondent) and Varcon Construction Corporation and Trisura Guarantee Insurance Company Defendant (Appellant) Todd D. Storms and Zach Flemming-Giannotti, for the appellant Kenneth J. M. Coull, for the respondent Heard: March 3, 2020 On appeal from the judgment of Justice Helen MacLeod-Beliveau of the Superior Court of Justice, dated April 30, 2019, with reasons reported at 2019 ONSC 2497. REASONS FOR DECISION [1] Varcon Construction Corporation (“Varcon”) appeals from a decision granting partial summary judgment to 2099082 Ontario Limited, carrying on business as AWD Contractors (“AWD”). [2] The relevant facts are as follows. Varcon was the general contractor for a project to construct additional buildings in a correctional facility near Joyceville, Ontario. Varcon engaged AWD, a subcontractor, to supply labour and materials related to excavation, installation of granular base, construction of pipe bedding, and installation of exterior sanitary pipe, backfilling, and compaction of the backfill. AWD’s work was completed in the summer of 2013. [3] A dispute arose between Varcon and AWD when Varcon refused to release the balance of AWD’s contract price to it. AWD commenced an action in August 2015, and Varcon filed a statement of defence in November 2015. In late September 2016, the sewage system for the building failed. Varcon notified AWD that it required a remediation proposal. AWD refused do so unless Varcon established that its work had been deficient. [4] AWD brought a motion for summary judgment, arguing that Varcon owed it the outstanding monies under the construction subcontract. In May 2017, AWD’s motion was granted, and Varcon was ordered to pay $39,064.87 into court. Varcon did so. Payment into the court allowed Varcon to obtain leave to re-open its pleadings and issue a fresh counterclaim, which it did in June 2017. [5] Varcon counter-claimed for damages, alleging (amongst other things) that AWD’s work was deficient and that AWD failed to rectify the deficiencies. Varcon also claimed that AWD breached the warranty contained in the subcontract and was liable for the remediation work on that basis. AWD brought another motion for summary judgment to dismiss Varcon’s counterclaim in its entirety. [6] The motion judge granted partial summary judgment in favour of AWD. She determined that no trial was required to determine that AWD’s work was not deficient, AWD did not fail to warn Varcon regarding the unsuitability of certain excavated material, and AWD did not fail to rectify the deficiencies. Varcon appeals from this decision. [7] The motion judge also determined that there was a genuine issue requiring a trial with respect to AWD’s liability to Varcon under the subcontract’s warranty provisions. AWD cross-appeals from this decision on the basis that the motion judge erred in finding that this was a genuine issue requiring a trial. It further submits that the motion judge erred in failing to determine that the warranty was inapplicable in the circumstances. [8] The appeal is dismissed and the cross-appeal allowed for the reasons that follow. (1) The main appeal: Did the motion judge err in granting partial summary judgment to AWD? [9] Varcon argues that the motion judge made palpable and overriding errors of fact, which led her to grant AWD’s motion. We disagree. [10] At the outset, we note that the question of whether summary judgment was appropriate was fully argued before the motion judge. [11] We accept that the motion judge made some findings of fact that went beyond those necessary to determine the central question, which was: did AWD complete its work in compliance with the contract and in a non-defective way? [12] To the extent that the motion judge made findings as to the actual cause of the sewage failure, such findings do not undermine her conclusions, which are amply supported by the record. [13] In particular, it was open to the motion judge to reject Varcon’s expert evidence, which was given by Mr. Wong. She reasoned that his opinion – that the soil compaction had been inadequately performed – was not supportable without reviewing the compaction reports under the area of the sewer pipes done at the time of construction, which he had not seen. Whose onus it was to produce or obtain those records for the litigation was in issue before the motion judge. However, for the purpose of obtaining an expert opinion, there is no issue that it was Varcon’s obligation to obtain those records from the compaction overseer or from the owner of the project, if Varcon no longer had its copies. [14] Although the motion judge gave other reasons which were unnecessary, these reasons did not undermine the central basis upon which she found Mr. Wong’s evidence to be unreliable and not credible. (2) The Cross-Appeal:  Did the motion judge err in ordering a trial on the warranty issue? [15] At the outset of oral argument before this court, Varcon submitted that: (i) the motion judge decided that a trial was required to determine the applicability of the warranty and any damages issues arising from it; (ii) as such, her order in this respect was interlocutory and leave to appeal is required; and (iii) AWD had not sought the required leave to appeal. Varcon argued that, while it was content for this court to entertain the leave application, AWD could not meet the applicable test for leave under rule 62.02(4). [16] We do not agree. [17] This is a case in which the appeals from the final and interlocutory aspects of the motion judge’s order “are so interrelated, we [are] able to proceed to hear the two appeals together in accordance with s. 6(2) of the Courts of Justice Act , R.S.O. 1990, c. C.43, on the basis that once the first issue was before this court, leave would inevitably have been granted on the second”: Lax v. Lax (2004) , 70 O.R. (3d) 520 (C.A.), at para. 9; see also Azzeh v. Legendre , 2017 ONCA 385, 135 O.R. (3d) 721, at para. 26. Accordingly, this is a case where both appeals should be heard together by this court. [18] In its cross-appeal, AWD argues (i) that the motion judge erred in finding that a trial was required on whether AWD was liable to Varcon pursuant to the subcontract’s warranties, and (ii) that she further erred in failing to find that the warranty was inapplicable in these circumstances. [19] On its merits, we would allow AWD’s cross-appeal. There was no genuine issue requiring a trial on the warranty issue. [20] The record before the motion judge included all the evidence necessary to interpret the warranty and consider whether it applied to the circumstances. Specifically, the contractual documents contain a sufficient basis to resolve the dispute about the warranty. There is no indication there would be better evidence or legal arguments on the issues at trial. Summary judgment “ must be granted if there is no genuine issue requiring a trial” (emphasis in original): Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 68; see also Rule 20.04(2), Rules of Civil Procedure , R.R.O. 1990, Reg. 194, r. 20.04(2). [21] Both parties relied on the contractual documents, and the warranty in particular, to support their position. The warranty provision reads as follows: The Subcontractor hereby guarantees the work in accordance with the Prime Contract documents. No payment to the Subcontractor and no partial or entire use or occupancy of the Subcontract Work by the Owner shall be construed as an acceptance of any work or material not in accordance with this Subcontract Agreement. The Subcontractor hereby agrees to repair and make good any damages or fault in the Subcontract Work […] as the result of imperfect or defective work done or material furnished by the Subcontractor […]. The Subcontractor guarantees the Contractor, the Consultant and the Owner, against loss or damage arising from any defects in material or workmanship furnished by the Subcontractor under this Subcontract Agreement for such period as the Contractor is liable under the Common Law or Statue or under the specific terms of the Prime Contract. [Emphasis added] [22] GC3.11(1) of the “Prime Contract” states: The Contractor shall promptly remove from the site of the Work and replace or re-execute defective Work… whether or not the defect is the result of poor workmanship, use of defective Material, or damage through carelessness or other act or omission of the Contractor. [23] Varcon submits that, when reading the warranty and Prime Contract together, AWD remains liable to Varcon even if AWD’s work was not deficient and even if the native soil used was problematic (which Varcon denies). [24] We do not agree. Varcon’s interpretation of the warranty would effectively make AWD — one of the many subcontractors on the project — a guarantor of any or all defects in the project, whether its own work has been defective or not. A plain reading of the warranty provisions does not support this position and does not accord with sound commercial principles and good business sense: All-Terrain Track Sales and Services Ltd. v. 798839 , 2020 ONCA 129, at para. 27 . Varcon also suggested that the warranty applies here because AWD “furnished” defective “material”, the native soil. However, the contract specified AWD was to use the native soil for backfilling. AWD cannot be faulted for adhering to these contractual terms. [25] The appeal is dismissed. The cross-appeal is allowed. Costs of the appeal and cross-appeal in the agreed amount of $6,000, all-inclusive, are payable by Varcon to AWD. “K. Feldman J.A.” “Grant Huscroft J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Abdullahi v. Children's Aid Society of Toronto, 2020 ONCA 225 DATE: 20200317 DOCKET: C67253 Rouleau, Hourigan and Roberts JJ.A. BETWEEN Mohamed Abdullahi, self-rep as Baruutman and on behalf of Prophet Muhammad (Peace be Upon Him), and Faiza Ali Plaintiffs (Appellants) and Children’s Aid Society of Toronto, Alberta Danso and Mena Gill, Toronto Police Service Board, Chief Mark Saunders, Elizabeth Byrnes, James Casey, Krystal MacLeod, Jason Maunder, Paul Walker, Michael Henry, Todd Belza and James Muirhead, The Ministry of Attorney General of Ontario, Jennifer Gibson, Rebecca Law and Joanne Bruno Defendants (Respondents) Mohamed Abdullahi, acting in person Alex Redinger, for the Ministry of the Attorney General, Jennifer Gibson, Rebecca Law and Joanne Bruno Brennagh Smith, for all Police Respondents Heard and released orally: March 13, 2020 On appeal from the judgment of Justice Paul M. Perell of the Superior Court of Justice, dated June 20, 2019. REASONS FOR DECISION [1] This is an appeal of the order of the motion judge on a Rule 21 motion dismissing the appellants’ claim against the Ministry of the Attorney General and certain Crown Attorneys (the “MAG Respondents”) and the libel claim against the Toronto Police Services Board and certain of its employees (the “Police Respondents”). [2] We see no error in the motion judge’s analysis and no basis for appellate interference. [3] None of the MAG Respondents are proper defendants. Even if the proper defendant had been named (i.e. the Attorney General for Ontario), the statement of claim failed to disclose a reasonable cause of action. The Crown Attorneys are immune from liability in negligence. Further, the necessary intent for the torts of malicious prosecution, misfeasance in public office, and conspiracy were not pleaded. Nor was the required misconduct pleaded for the Charter damages claim. The motion judge did not err in denying leave to amend because there is nothing in the record to suggest that facts exist to establish intent or a threshold of misconduct beyond negligence. [4] With regard to the Police Respondents, the libel claim was struck because of a failure to comply with the notice requirement and limitation period under the Libel and Slander Act , R.S.O. 1990, c. L. 12. We see no error in that analysis. [5] The appellants have also raised an argument that the motion judge exhibited a reasonable apprehension of bias. There is absolutely no merit in that submission. [6] The appeal is dismissed. [7] Regarding the costs of the appeal, the appellant, Mohamed Abdullahi, shall pay costs to the MAG Respondents in the all-inclusive sum of $3,000. Mr. Abdullahi shall also pay the Police Respondents their costs of the appeal in the all-inclusive sum of $3,000. “Paul Rouleau J.A.” “C.W. Hourigan J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Ahmadzai (Re), 2020 ONCA 169 DATE: 20200305 DOCKET: C67229 Benotto, Huscroft and Jamal JJ.A. IN THE MATTER OF: Meladul Ahmadzai AN APPEAL UNDER PART XX.1 OF THE CODE Michelle O’Doherty, for the appellant Emily Marrocco, for the respondent, Attorney General of Ontario Marie-Pierre T. Pilon, for the respondent, Person in Charge of Royal Ottawa Mental Health Centre Heard: February 21, 2020 On appeal from the disposition of the Ontario Review Board, dated June 11, 2019, with reasons dated July 10, 2019. Jamal J.A.: Introduction [1] The appellant was found not criminally responsible on account of mental disorder (“NCR”) on April 11, 2018, on charges of robbery, assault with a weapon, and possession of a weapon for a purpose dangerous to the public peace. The appellant had entered a Money Mart store on October 17, 2016, approached a female clerk, and demanded cash while brandishing a paring knife with a four-inch blade. The clerk activated the store’s distress alarm and the police arrived within five minutes to arrest the appellant. While the police were en route the appellant made no effort to leave to store. He later explained that “a shadow” had told him to go to the store as “the right place to feel better” and he had demanded cash even though he did not need any money. [2] The appellant’s current diagnoses are schizophrenia, first episode (currently in partial remission) and probable major depressive disorder (moderate). His two hearings before the Ontario Review Board (“Board”) since the NCR verdict, including the one that is the subject of this appeal, both resulted in orders for detention at the Royal Ottawa Mental Health Centre (“Hospital”), with privileges including living in the community in approved accommodation. [3] The appellant, who was 24 years old at the time of the index offences, has been and is currently living with his parents. He was last admitted to the Hospital in October 2018. Following that, for the six months before the Board hearing, he received monthly antipsychotic injections. No concerns regarding his mental health or functioning were raised during this period. The attending psychiatrist, Dr. Wood, estimated that the appellant would decompensate within two weeks of not receiving his monthly long-acting injection. The Board noted, however, that the appellant would be facing additional stressors soon as he would be finishing school, looking for employment, and starting to live with his spouse. [4] Before the Board, the appellant had sought an absolute discharge because he no longer posed a significant threat to the safety of the public. In the alternative, he sought a conditional discharge. Although at the first hearing the Hospital had recommended a detention order, it now recommended a conditional discharge as the least onerous and least restrictive disposition. This reflected a change in the views of the appellant’s treatment team, including his attending psychiatrist, Dr. Wood, who had previously recommended a detention order. Even so, the Board rejected the Hospital’s recommendation and maintained the detention order in its disposition dated June 11, 2019. [5] The appellant now appeals the Board’s disposition. For the reasons that follow, I conclude that the Board’s disposition was unreasonable because it failed to adequately explain why the appellant’s risk could not be adequately managed under a conditional discharge as had been recommended by the Hospital. Discussion (a) The statutory scheme [6] The Board is tasked with determining whether an NCR accused poses a “significant threat to the safety of the public”: Criminal Code , R.S.C. 1985, c. C-46, s. 672.54(a). A “significant threat to the safety of the public” means “a real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying” and “must be criminal in nature”: Winko v. British Columbia (Forensic Psychiatric Institute) , [1999] 2 S.C.R. 625, at para. 62. The Board must consider both the likelihood of a risk materializing and the seriousness of the harm that might occur: Kassa (Re) , 2019 ONCA 313, at para. 33. [7] If the Board concludes that the NCR accused does not pose a significant threat to the safety of the public, then he or she must be discharged absolutely: s. 672.54(a). [8] However, if the Board finds that the significant threat threshold is met, it must order the NCR accused to be either discharged or detained in custody in a hospital, in either case subject to conditions as it considers appropriate: ss. 672.54(b) and (c); R. v. Lamanna , 2009 ONCA 612, 252 O.A.C. 280, at para. 7. The Board must make a disposition that is “necessary and appropriate in the circumstances” (s. 672.54), which has been interpreted as meaning the “least onerous and least restrictive” disposition regarding the NCR accused’s liberty interests that is consistent with public safety and the NCR accused’s mental condition, other needs, and eventual reintegration into society: Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services) , 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 19; Lamanna , at paras. 8-10; McAnuff (Re) , 2016 ONCA 280, at para. 22; and Esgin (Re) , 2019 ONCA 155, at paras. 15-17. (b) The issues [9] The appellant raises two grounds of appeal. He submits that the Board’s disposition is unreasonable and should be set aside under s. 672.78(1)(a) of the Criminal Code because: (1) the Board erred in finding that he posed a “significant threat to the safety of the public” under s. 672.54(a); and (2) in the alternative, the Board erred in imposing a detention order rather than a conditional discharge. (1) Did the Board err in concluding that the appellant posed a “significant threat to the safety of the public”? [10] The appellant asserts that the Board’s finding that he posed a significant threat to the safety of the public was unreasonable. He notes that he has committed no violent acts since the index offence in October 2016, he has been compliant with his medication, and his treatment team has confirmed his continuing improvement. While he had one episode of decompensation in October 2018, no violence ensued, and certainly no risk to the public. He asserts that the Board failed to weigh the evidence of his attending psychiatrist, Dr. Wood, that the likelihood of him becoming non-compliant with his medication was minimal, even if he were discharged absolutely. He claims that, properly considered, the evidence did not support a finding that he is a significant threat to public safety. [11] I do not agree with the appellant’s submission. [12] Parliament has set out in legislation the standard of appellate review of the Board’s dispositions. Absent a wrong decision on a question of law or a miscarriage of justice, this court may allow an appeal against a disposition of the Board only where it is of the opinion that the disposition is “unreasonable or cannot be supported by the evidence”: Criminal Code , s. 672.78(1); R. v. Owen , 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 31-32; Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, at para. 34. [13] I conclude that the Board’s finding that the appellant was a “significant threat to the safety of the public” was reasonable. The Board’s “reasoning process and the outcome” reflected “an internally coherent and rational chain of analysis” that was “justified in relation to the facts and law”: Vavilov , at paras. 83, 85. [14] In making its finding, the Board relied on the following factors: (i) the index offences are offences of violence; (ii) the appellant has a history of violent conduct in the family home, including hitting his mother and choking his younger brother; (iii) he is likely to again experience psychosis if he becomes non-compliant with his treatment; (iv) he has a prior criminal record that shows disregard for court orders; and (v) he does not take responsibility for his past misconduct and relies on his inability to recollect events that resulted in criminal charges, thereby impeding his treatment team’s ability to deal with his antisocial conduct. All these findings were supported by the evidence before the Board. [15] Moreover, while the Hospital Report acknowledged that the appellant’s risk for future violence was “low to moderate” relative to other individuals assessed for violence using the Historical Clinical Risk Management-20, Version 3 (an actuarial assessment for assessing and managing violence risk), it concluded he posed a significant threat to public safety because of his “history of not being entirely forthcoming about his symptoms and the team’s inability to get a better sense of his home environment and his day-to-day activities.” [16] These were all proper factors for the Board to consider in reaching its reasoned and internally coherent determination of significant threat. These factors included, most importantly, the recommendations of the experts who had examined the appellant: see Winko , at para. 61. Although the appellant’s condition has improved since the index offence, both the Board and his treating psychiatrist remained concerned about the lack of transparency regarding his home environment and symptoms, and thus the risk factors supporting the significant threat finding continued to weigh more heavily in the balance. [17] Thus, the Board was not merely uncertain about or unable to decide whether the appellant posed a significant threat to the safety of the public: see Winko , at para. 62. Nor did the Board simply rely on historical risk factors relating to the index offence and the appellant’s prior criminal history. Rather, the Board and the treatment team continued to have significant concerns that were not assuaged by the other evidence before the Board. [18] This judgment call, which drew on the Board’s expertise and required it to weigh the evidence, was one that the Board was especially well placed to make, given “the inherent difficulty of the subject matter and the expertise of the medical reviewers”: Owen , at paras. 40, 47. As stated in Winko , at para. 61: Appellate courts reviewing the dispositions made by a court or Review Board should bear in mind the broad range of these inquiries, the familiarity with the situation of the specific NCR accused that the lower tribunals possess, and the difficulty of assessing whether a given individual poses a “significant threat” to public safety. [19] In sum, I have concluded that both the Board’s reasoning process and its conclusion that the appellant continued to pose a significant threat to the safety of the public were reasonable and are therefore entitled to deference. (2) Did the Board err in imposing a detention order rather than a conditional discharge? [20] The appellant’s alternative ground of appeal asserts that the Board erred in imposing a detention order rather than a conditional discharge. [21] At the hearing before the Board, the Hospital recommended a conditional discharge as the least onerous and least restrictive measure. It conceded that recommending a detention order for the appellant would be “difficult”, as “[n]o concerns have been raised over the past six months regarding his mental health and his functioning, and he has largely presented himself appropriately to the team”. The Hospital concluded that “[a] conditional discharge would allow the team to continue doing a longitudinal assessment of Mr. Ahmadzai’s condition and insight as well as his cooperativeness with the team in aiding the achievement of his identified goals.” As noted, this recommendation reflected a change of opinion of the appellant’s treatment team from the earlier hearing before the Board. [22] Nevertheless, the Board rejected the Hospital’s recommendation and maintained the detention order. The Board reasoned that because the appellant was about to face new sources of stress in his life — completing his post-secondary studies, getting a job, and cohabitating with his new spouse — a detention order would permit him to be admitted to hospital more efficiently if he were to decompensate, especially because his parents would likely not seek to admit him to hospital under the Mental Health Act , R.S.O. 1990, c. M.7. [23] The appellant asserts that the Board’s reasoning process was flawed, and therefore its disposition was unreasonable, because the Board failed to adequately address the treatment team’s recommendation that a conditional discharge “would be sufficient to ensure the safety of the public in the event that he does experience a deterioration in his mental illness”. He also contends that the Board’s decision unreasonably “centred on the perceived lack of civil remedies sufficient to bring the appellant to the hospital should he refuse to attend on his own.” As noted in Vavilov , at para. 126: “[t]he reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it.” [24] I agree with the appellant that the Board’s reasoning process gave no meaningful consideration to whether his risk to the public could be managed under a conditional discharge as recommended by the Hospital. The Board therefore failed to evaluate the evidentiary record in context, which this court has found to be unreasonable: see Valdez (Re) , 2018 ONCA 657, at paras. 23-24; Esgin (Re) , at para. 24. In the present case, the Board reasoned that it would be easier to return the appellant to hospital under a detention order. But that would always be true and could always be used to justify a detention order rather than a conditional discharge. The Board’s duty to impose the least onerous and least restrictive disposition requires more than “mere convenience to the hospital”: Valdez (Re) , at para. 21; Esgin (Re) , at para. 20. As noted in Valdez (Re) , the Board must determine whether the appellant’s risk could be managed under a conditional discharge by examining the evidentiary record in context, at paras. 22-23: The ease of returning an individual to hospital will not always justify a detention order as a necessary and appropriate disposition. As discussed in Young Re , 2011 ONCA 432, 278 O.A.C. 274, at para. 26, there are multiple ways in which to secure someone’s attendance at the hospital when they fail to comply with a condition of their discharge. For instance, the person could be returned: (1) by convening a new hearing under s. 672.82(1) of the Criminal Code ; (2) by resorting to the breach provisions of the Criminal Code ; or (3) through the committal provisions under the Mental Health Act , R.S.O. 1990, c M.7. The Board had a duty to assess the evidentiary record in context, including taking into consideration in this case: (1) the risk of non-attendance for medication; (2) the mechanisms for securing someone’s attendance at hospital under the conditional discharge framework; (3) the length of time that any such steps may take; (4) the effect of that delay on Mr. Valdez’s mental health; and (5) the risk to public safety posed by any delay in treatment. See also Esgin (Re) , at paras. 19-25. [25] These comments apply equally in this case. The Board’s reasoning process failed to assess whether the appellant’s risk could be managed under a conditional discharge. The appellant has been regularly attending the Hospital as required by the conditions of this detention order and is injected with a long-acting antipsychotic medication every month. Dr. Wood disagreed with the suggestion that the appellant was compliant with his medication only because he was so ordered by the Board. He opined that “it’s one of Mr. Ahmadzai’s strengths in that he wants the injection”. He also noted that while he suspected that the appellant’s condition would deteriorate within a couple of weeks if he went off his medication, the Hospital would know this “immediately” because he must attend for his injection every month. [26] In summary, the expert evidence before the Board was that the risk of the appellant’s non-attendance for his injection was minimal, immediately detectable, and rapidly addressable. Decompensation would occur within a couple of weeks if the appellant ceased taking his medication, leaving enough time to admit the appellant to hospital if necessary. Apart from relying on administrative convenience, which the Hospital itself did not invoke, the Board failed to explain why it rejected Dr. Wood’s expert evidence that the appellant’s risk to the public could now be managed under a conditional discharge. The Board’s disposition was therefore unreasonable. Disposition [27] I would allow the appeal and refer the matter back to the Board for a rehearing on all issues pursuant to s. 672.78(3)(b) of the Criminal Code . At that time, the Board can consider whether the appellant continues to pose a significant threat to public safety, and if so, the appropriate disposition in light of the circumstances then prevailing. Released: March 5, 2020 (“M.L.B.”) “M. Jamal J.A.” “I agree. M.L. Benotto J.A.” “I agree. Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Blau v. Wang, 2020 ONCA 194 DATE: 20200310 DOCKET: C67338 Tulloch, Benotto and Jamal JJ.A. BETWEEN Andrew Blau Plaintiff/Respondent and Li Wang Defendant/Appellant Diana Isaac and Michelle Polster, for the appellant Shawn Tock, for the respondent Heard and released orally: March 6, 2020 On appeal from the order of Justice Janet Leiper of the Superior Court of Justice, dated July 23, 2019. REASONS FOR DECISION [1] The motion judge awarded specific performance as a remedy for breach of contract. There was no evidence and consequently no finding that the property was unique. This is an error of law that had the effect of granting a windfall to the respondent: see Semelhago v. Paramadevan , [ 1996] 2 S.C.R. 415 at paras. 20 and 21. [2] The appeal is allowed, and the matter should proceed to trial. [3] There will be no costs of the appeal. “M. Tulloch J.A.” “M.L. Benotto J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Brown v. Canada (Attorney General), 2020 ONCA 223 DATE: 20200318 DOCKET: C66789 Simmons, van Rensburg and Harvison Young JJ.A. BETWEEN Sylviette Rita Brown, Trustee, Greenworld Disability Trust and Greenworld Farming as applicable to Property Roll No.1970 000 012 76100 (Lot 7W Con. 2) Applicants (Appellants) and Department of Justice, Canada, Ministry of the Attorney General, Ontario, Lake Simcoe Region Conservation Authority Respondents ( Respondent ) Sylviette Rita Brown, in person John A. Olah and Francesca D'Aquila-Kelly, for the respondent Lake Simcoe Conservation Authority Heard: February 19, 2020 On appeal from the order of Justice Peter J. Cavanagh of the Superior Court of Justice, dated March 5, 2019, with reasons reported at 2019 ONSC 1485. REASONS FOR DECISION [1] In oral argument before this court, the appellants – Sylviette Rita Brown, Greenworld Disability Trust and Greenworld Farming – clarified that they are appealing only from the motion judge’s order striking out the proceeding commenced by them and Murray Brown in the Superior Court by notice of appeal and determination of constitutional rights (court file CV-18-595997) (the “Superior Court proceeding”). They are not appealing the motion judge’s order, dated the same day, dismissing their application for injunctive and other relief (Superior Court court file CV-18-595542). [2] In the Superior Court proceeding and a related motion before the motion judge, the appellants sought relief in relation to Provincial Offences Act , R.S.O. 1990, c. P.33 (“POA”) prosecutions of Murray Brown under the Conservation Authorities Act , R.S.O. 1990, c. C.27 and a related regulation. [3] It is undisputed that those prosecutions proceeded in the Ontario Court of Justice before a Justice of the Peace, based on five informations laid under Part III of the POA. Mr. Brown was convicted of those offences in March 2018. In April 2018, he was sentenced to a $40,000 fine and ordered to remediate the property related to the charges. [4] On motions brought by the Lake Simcoe Region Conservation Authority (“LSRCA”) and the Ministry of the Attorney General (“MAG”), the motion judge struck out the Superior Court proceeding. He held that the appellants had no standing to appeal, as they were not parties to the POA prosecutions and, in any event, the proposed appeal was brought in the wrong court. The motion judge awarded the Superior Court proceeding costs to the LSRCA and the MAG. [5] The essence of the appellants’ argument to this court is that the Justice of the Peace overstepped her jurisdiction both with respect to the convictions and the remediation order, for the following reasons. [6] First, they submit that the standing issue is a matter involving the identity of the Greenworld Trust, the true owner of the property, and that the Trust has a right under the Canadian Charter of Rights and Freedoms to come before the Superior Court to vindicate its rights. Second, they submit that the remediation order was made without jurisdiction because Mr. Brown did not either own or have control over the property. [7] On behalf of the appellants, Mrs. Brown also submits that the remediation order was made to reverse changes to the grading of the property, changes which the appellants assert were not actually made. [8] Based on the record before us, we see no basis on which to interfere with the motion judge’s decision to strike the Superior Court proceeding. Any appeal of the POA convictions – which were decided by a Justice of the Peace – shall be to the Ontario Court of Justice, presided over by a provincial judge: POA, s. 116(2)(a). The Greenworld Trust was not the subject of the prosecution and has no freestanding Charter right that can be asserted in the Superior Court. The appellants’ remaining arguments were or could have been made by Mr. Brown in the course of the prosecutions or any appeal to the Ontario Court of Justice. To the extent the appellants were denied standing before the Justice of the Peace, any remedy to which they may have been entitled did not lie in the form of an appeal to the Superior Court. [9] Finally, we note that in his reasons, the motion judge observed that “Mr. and Mrs. Brown, in their submissions agreed that the appeal brought in this court should not proceed, given that Mr. Brown intends to commence an appeal to the Ontario Court of Justice.” [10] Leave to appeal the costs awards is required but has not been sought. In any event, we see no clear error in the costs award to justify granting leave to appeal. [11] For these reasons, the appeal is dismissed with costs to the respondent on a partial indemnity scale fixed in the amount of $4,500 inclusive of disbursements and HST. “Janet Simmons J.A.” “K. van Rensburg J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Caplan v. Atas, 2020 ONCA 205 DATE: 20200312 DOCKET: M51343 (C67979) Watt, Lauwers and Fairburn JJ.A. BETWEEN Gary Caplan, Dale & Lessmann LLP, Robert E. Dale, David E. Mende, Christina J. Wallis, Wallis Kagan Shastri LLP, Rahul Shastri, David Winter, Stancer Gossin Rose LLP, Gossin Rose LLP, Raymond Stancer, Eric Gossin, Mitchell Rose, Garth Dingwall, Ralph Steinberg, David J. Sloan, Peoples Trust Company, Derek Peddlesden, Frank Renou, Martin Mallich and Sharon Small Plaintiffs and Nadire Atas Defendant (Appellant) (Applicant) Nadire Atas, acting in person No one appearing for the respondent Heard and released orally: March 9, 2020 REASONS FOR DECISION [1] The applicant has not persuaded us that there is any basis upon which we can interfere with the order of MacPherson J.A. However, we grant her an extension of time within which to perfect her appeal. This extension will expire 60 days after her release from custody. [2] We have no authority to refer this matter to the Supreme Court of Canada. The Rules of Civil Procedure govern interventions and we see no need to provide notice in this respect. [3] Except as indicated in connection with the time within which to perfect the appeal, the motion is dismissed. “David Watt J.A.” “P. Lauwers J.A.” “Fairburn J.A.”

WARNING This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017 , which deals with the consequences of failure to comply, read as follows: 87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family. (9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. 142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. COURT OF APPEAL FOR ONTARIO CITATION: Children's Aid Society of Toronto v. S.A.P., 2020 ONCA 208 DATE: 20200316 DOCKET: C67678 Rouleau, Hourigan and Roberts JJ.A. BETWEEN Children’s Aid Society of Toronto Applicant/Respondent on Appeal (Respondent) and S.A.P. Respondent/Appellant (Appellant) and M.I. Respondent on Appeal (Respondent) and OCL Respondent on Appeal (Respondent) Mark Feigenbaum, for the appellant Kenneth Atkinson, for the respondent Children’s Aid Society of Toronto Andrew Sudano and Robert Shawyer, for the respondent M.I. Jane Long, for the respondent Office of the Children’s Lawyer Heard and released orally: March 11, 2020 On appeal from the order of Justice Sharon Shore of the Superior Court of Justice, dated June 7, 2019, with reasons reported at 2019 ONSC 3482, dismissing an appeal from the order of Justice Manjusha Pawagi of the Ontario Court of Justice, dated February 14, 2018. REASONS FOR DECISION [1] The appellant’s two sons, J.P.F. and J.I., were apprehended and eventually ordered into the care of M.I., the stepfather of J.P.F. and the father of J.I. The Children’s Aid Society of Toronto (the “CAS”) proposed that the children be placed with M.I. permanently while the appellant sought to regain custody under the supervision of the CAS. After trial in the Ontario Court of Justice, the judge ordered that the children remain with M.I. The appellant’s appeal to the Superior Court of Justice was dismissed. [2] On appeal to this court, the appellant raises three main grounds of appeal. She argues the trial judge: 1. erred in concluding that there was a risk of emotional harm if the children moved homes in the absence of any expert evidence as to the existence of such a risk; 2. failed to adequately consider the many steps taken by the appellant to improve her circumstances and whether, in light of these improved circumstances the children could be returned to her care with appropriate safeguards; and 3. failed to adequately consider MI’s criminal history and violent behaviour. [3] In our view the appeal should be dismissed. [4] As to the first ground, the appellant argues that, in the absence of expert evidence, the CAS had not met its burden to show that the children would likely suffer a risk of emotional harm. Under s. 37(2)(f) of the Child and Family Services Act , R.S.O. 1990, c. C.11, [1] not every type and severity of emotional harm was sufficient to establish emotional harm justifying state intervention. She maintains that, except in the rarest of cases, expert evidence on this point is required. In the appellant’s submission, the trial judge’s conclusion on harm is conclusory and insufficient on this point and, given the absence of expert evidence, the record does not support the conclusion of emotional harm requiring state intervention nor does it overcome the presumption in s. 57(3) that the children ought to be returned to her care. [5] We reject this ground of appeal. [6] The issue of whether the children were in need of protection had been determined on consent of the parties prior to trial. A fresh finding of a need for protection pursuant to s. 37 did not have to be made. The issue before the trial judge was the appropriate disposition given the earlier finding of a need for protection. It is in reaching her conclusion on the appropriate disposition that the trial judge found that the order that the children remain with M.I. was necessary to protect them in the future. As found by the trial judge, there was a risk of emotional harm if the children were removed from M.I. who had been their long-term caregiver. That finding was well supported in the evidence and is entitled to deference. [7] With respect to the second and third grounds of appeal, whether the children could be returned to the appellant with appropriate safeguards given her improved circumstances and the appropriate weight given to M.I.’s criminal history and behaviour, both of these were specifically addressed by the trial judge in her reasons. We see no basis to interfere with the weight the trial judge placed on them nor how she balanced the various factors in coming to her determination that the children’s best interests were served by their remaining with M.I. [8] For these reasons, we dismiss the appeal. “Paul Rouleau J.A.” “C.W. Hourigan J.A.” “L.B. Roberts J.A.” [1] This statute was repealed and replaced by the Child, Youth and Family Services Act, 2017 , S.O. 2017, c. 14, Sched. 1, on April 30, 2018, subsequent to the trial judge’s decision.

COURT OF APPEAL FOR ONTARIO CITATION: Cooper v. The Laundry Lounge, Inc., 2020 ONCA 166 DATE: 20200303 DOCKET: C67158 Lauwers, Hourigan and Thorburn JJ.A. BETWEEN David Cooper by his Litigation Guardian, Annette Cooper and Annette Cooper Applicants (Respondents) and The Laundry Lounge, Inc. and André Fiset Respondents (Appellants) André Fiset on his own behalf and on behalf of The Laundry Lounge Inc. Krista Chaytor and Caitlin Steven, for the respondents Heard: February 24, 2020 On appeal from the judgment of Justice Paul B. Schabas of the Superior Court of Justice, dated May 27, 2019, with reasons reported at 2019 ONSC 3216. REASONS FOR DECISION Introduction [1] This appeal arises from a successful application brought by the respondents, David and Annette Cooper, for an order terminating two commercial leases for non-payment of rent, an order requiring vacant possession of the premises, an order granting leave for the Registrar to issue a writ of possession, and orders requiring payment of arrears of rent and damages for lost future rent. [2] The appellants challenge both final and interlocutory orders made by the application judge. We agreed to hear both the final and interlocutory aspects of the appeals because the appeals are “so interrelated” that there is good reason to hear them together: Azzeh v. Legendre , 2017 ONCA 385, 135 O.R. (3d) 721, at paras. 25-26. We also granted leave to permit the appellant, André Fiset, to represent the corporate appellant. [3] At the hearing of the appeals, Mr. Fiset advised that the appellants have vacated the premises. Therefore, the relief they now seek is limited to setting aside the orders with respect to rental arrears, lost future rent damages, pre-judgment interest, and costs. Facts [4] The leases in issue are for two properties on adjoining premises.  One property was used as a laundromat, and another was used for a dry-cleaning business. Mr. Cooper and the Laundry Lounge, Inc. entered into the laundromat lease in 2003. In 2010, Mr. Cooper and “The Laundry Lounge or a yet-to-be incorporated corporation” executed the dry-cleaning lease. [5] In December 2017, the heat failed in the laundromat and subsequently, a frozen pipe burst, causing water damage. The respondents offered to reimburse all expenses related to the loss of heat and further agreed to a rent abatement for both leases for January 2018. [6] The appellants did not provide any receipts for expenses to the respondents. Instead, starting in February 2018, the appellants stopped paying rent. In March 2018, the appellants brought an action, advancing several claims, including breach of contract, misrepresentation, and loss of income. The appellants did not serve their statement of claim. The respondents commenced their application in August 2018. [7] In October and November 2018, the respondents took steps to terminate the leases, but the bailiff's efforts to take possession were unsuccessful. [8] In December 2018, Mr. Fiset paid $35,000, and in January 2019, he started paying $7,000 per month, about half of what was owing under the leases. These payments were made under Mr. Fiset's obligations for the dry-cleaning lease. [9] The application judge ruled that the respondents were entitled to the relief sought and that the appellants had not established a right of set-off pursuant to s. 35 of the Commercial Tenancies Act , R.S.O., 1990, c. L.-7. He found that there was no evidence filed in support of the claim for set-off. Analysis [10] The appellants raise several grounds of appeal, which may be broadly categorized as follows: (i) procedural irregularities regarding the application; (ii) objection to the respondents’ use of self-help remedies; (iii) failure to mitigate damages; and (iv) an allegation that the application judge was biased. [11] We do not give effect to any of these grounds of appeal. [12] We agree with the application judge that an application was the appropriate procedure, given the straightforward factual and legal issues in play. The fact that the appellants commenced an action does not impact that conclusion. [13] The respondents, as the title holders to the properties, were the proper parties to the application, even though they did not manage the properties. Their son, Allen Cooper, who is involved in the day-to-day operation of the properties, provided evidence and was extensively cross-examined. [14] There was nothing improper in the appellants exercising their self-help remedies under the Commercial Tenancies Act . [15] The submission made in the appellant’s factum regarding mitigation of damages is based on a failure to re-let the laundromat after it was allegedly vacated before the return of the application. The application judge's finding that the laundry lease was not surrendered was well-grounded in the evidence. Therefore, we see no error in his conclusion that rent was owing up to the date of the hearing. [16] Mr. Fiset further argues that the application judge erred in awarding damages for lost rent for the balance of the lease term, being approximately 11 months, because the respondents failed to establish that they made reasonable efforts to re-let the properties. We do not give effect to that ground of appeal. Implicit in the application judge’s reasons was a finding that given the relatively short period left in the leases, this was a reasonable period to market the properties and obtain new tenants. That was a conclusion available to the application judge and we see no basis for appellate interference. [17] The allegation regarding bias appears to be based on the fact that the application judge did not make specific reference to heating and flooding issues in the dry-cleaning premises. The application judge was under no obligation to reference every fact in his endorsement. In any event, the failure to do so does not constitute bias. [18] Finally, in his oral reply submissions, Mr. Fiset requested that we make clear in our reasons that nothing in the application judge’s reasons or judgment precludes the appellants from prosecuting their action. We cannot accede to that request. The determination of that issue is not for this court but may be dealt with by a judge of the Superior Court at trial or on a motion. Disposition [19] The appeal is dismissed. The appellants shall pay the respondents their costs of the appeal, fixed in the all-inclusive amount of $10,000. “P. Lauwers J.A.” “C.W. Hourigan J.A.” “Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Das Logistics Transport Inc. v. Artex Environmental Corporation, 2020 ONCA 168 DATE: 20200303 DOCKET: C67145 Tulloch, Benotto and Jamal JJ.A. BETWEEN Das Logistics Transport Inc. Plaintiff/Defendant by Counterclaim (Respondent) and Artex Environmental Corporation & Tec International Corporation Defendants/Plaintiffs by Counterclaim (Appellant) and Kurt Peniston and Firoun Ismail Third Parties Jaspal Sangha, for the appellant Tyler H. McLean, for the respondent Heard: March 2, 2020 On appeal from the judgment of Justice Gisele M. Miller of the Superior Court of Justice, dated May 29, 2019. APPEAL BOOK ENDORSEMENT [1] Punitive damages are an exceptional remedy meant to punish wrongful acts that are so malicious that they are worthy of punishment. The motion judge provided no analysis as to why she was “prepared to award punitive damages of $50,000”. [2] The decision is consequently not capable of appellate review. The appeal is allowed. No costs.

COURT OF APPEAL FOR ONTARIO CITATION: Fermar Paving Limited v. 567723 Ontario Ltd. o/a Winter’s Pit, 2020 ONCA 173 DATE: 20200306 DOCKET: C66011 Lauwers, Hourigan and Thorburn JJ.A. BETWEEN Fermar Paving Limited Plaintiff (Respondent) and 567723 Ontario Ltd. o/a Winter’s Pit Defendant (Appellant) Marco Drudi, for the appellant Charles C. Chang, for the respondent Heard: February 24, 2020 On appeal from the judgment of Justice Carole J. Brown of the Superior Court of Justice, dated September 21, 2018, with reasons reported at 2018 ONSC 5485. REASONS FOR DECISION [1] Fermar Paving Limited (“Fermar”) is an Ontario road builder. On July 29, 2010, Fermar entered into a construction contract with the Ontario Ministry of Transportation (“MTO”) to provide road construction on a portion of Highway 26 in Simcoe County (the “Project”). [2] To complete the Project, Fermar required two types of aggregate: granular “A” and granular “B”. The aggregate was required to meet the Ministry’s specifications. [3] Rocco Buono, the principal of 567723 Ontario Limited, operating as Winter’s Pit (“Winter’s Pit”), approached Fermar to discuss Fermar’s needs for aggregate. [4] After some discussion, Fermar sent a document (“the Document”) to Winter’s Pit setting out the proposed terms of an agreement. Winter’s Pit requested a higher price for the granular A and granular B but asked for no other changes. The Document was signed by both parties on September 3, 2010. [5] A few days later, through its solicitor, Winter’s Pit said that it could not provide as much aggregate as it was required to in accordance with the signed Document. There were discussions over several months, but no new signed agreement was reached. [6] In November 2010, Fermar was told to leave the site or Winter’s Pit would commence proceedings for trespass. [7] Fermar brought an action for breach of contract by repudiation of the agreement and sought damages to compensate Fermar for the cost of having to source the aggregate from elsewhere. [8] The trial judge found that: a) The Document was an enforceable agreement; b) The agreement was not void or illegal, nor did contra proferentum apply as the terms were not ambiguous; and c) Winter’s Pit repudiated the terms of the agreement such that it was responsible to pay the respondent damages in the amount of $816,436.37. [9] Winter’s Pit appeals from the trial judge’s decision. The appeal is allowed on the basis that the trial judge erred in her determination of damages. The issue of damages is remitted to a judge of the Superior Court of Justice. WINTER’S PIT’S ARGUMENTS ON APPEAL [10] Winter’s Pit claims that the trial judge made palpable and overriding errors of fact and mixed fact and law in finding the Document was an enforceable contract and in awarding damages. [11] Winter’s Pit submits that there was no binding contract: the Document was only an agreement in principle. Moreover, the Document was void as Fermar knew it was illegal for Winter’s Pit to extract more than 100,000 tonnes of aggregate per year, since the extraction licence was attached. Winter’s Pit also argues that the terms of the Document are unclear. Because the Document was drafted by Fermar, the rule of contra proferentum applies. [12] Winter’s Pit denies that it repudiated any contract with Fermar. [13] Winter’s Pit argues that Fermar is not entitled to damages because Winter’s Pit did not breach any contract. Alternatively, Winter’s Pit argues that Fermar failed to adduce cogent evidence to support its claim for damages or its efforts to mitigate its damages. ANALYSIS OF THE TRIAL JUDGE’S DECISION AND CONCLUSION Liability of Winter’s Pit for Repudiation of the Agreement [14] For the following reasons, we see no error in the trial judge’s conclusion that there was a valid agreement between Fermar and Winter’s Pit and that Winter’s Pit repudiated that agreement: a) Fermar provided Winter’s Pit with a draft agreement on September 2, 2010. After Fermar visited the site, engaged in testing, and revised the terms at Winter’s Pit’s request, Winter’s Pit signed the draft agreement on September 3. b) The Document provides that “ Winters Pit warrants and represents that a minimum of 335,000 tonnes of granular ‘B’ material is available to F.P.L.” and that “F.P.L. shall have the right to manufacture a minimum of 140,000 tonnes of granular ‘A’” (emphasis added). c) The terms of the two-page agreement were clear and unambiguous. d) The agreement was not rendered void because Winter’s Pit’s licence did not permit it to extract the quantities of granular A and B stipulated in the agreement. An increase in the licenced quantities was necessary. It was incumbent on Winter’s Pit to revise the terms of agreement before signing. It failed to do so at its peril. e) On September 7, 2010, counsel for Winter’s Pit wrote to the Senior Operations manager of Fermar to advise that: We have been consulted in connection with a September 1, 2010 agreement between 567723 Ontario Limited and Fermar Paving Limited. Prior to signing the agreement , our client did not note the quantity requirements of the agreement. O ur client cannot comply with the agreement and is not prepared to fulfil its obligations under the agreement [Emphasis added.] f) On September 15, counsel for Fermar wrote to Winter’s Pit to reiterate that an agreement had been reached and that Winter’s Pit was now seeking to “resile from the agreement”. He stated that Fermar was prepared “on a completely without prejudice basis to engage in further discussions”. g) Winter’s Pit obtained no extension or temporary increase to the tonnage of aggregates that could be extracted from Winter’s Pit. h) Fermar tried to resolve its differences with Winter’s Pit while maintaining its position that the September 3 Document was an enforceable contract. None of Fermar’s overtures as per Fermar’s letters of October 22 and November 11, were accepted by Winter’s Pit. i) When Fermar put its equipment on the property in November 2019, Fermar was told to leave the property, failing which Winter’s Pit would sue Fermar for trespass. At no time thereafter did Winter’s Pit invite Fermar back or indicate that Winter’s Pit was ready, willing, and able to meet the terms of the agreement. [15] The appeal in respect of liability is therefore dismissed. Damages [16] Fermar sourced its aggregate elsewhere and sued Winter’s Pit for breach of contract. [17] The trial judge correctly held that as a result of Winter’s Pit’s repudiation of the agreement, Fermar was entitled to be restored to the position that it would have been in had Winter’s Pit met its obligation to supply all necessary aggregate. Fermar was required to find other sources of aggregate and incurred costs for equipment rental, cost of the aggregate, transportation, labour and other valid expenses. Fermar had an obligation to mitigate its losses. [18] The trial judge awarded Fermar damages in the amount of $816,436.37, which she found to be the difference between what Fermar would have paid to Winter’s Pit and the amount it did pay to the third-party suppliers for the aggregate. [19] In so doing, the trial judge relied on only two documents. The first was a document entitled, “Cost Summary for Alternate Sourcing of Granular “A” and Granular “B” by Supplier”, which purported to summarize approximately 1000 pages of invoices and other documents. The second was a document entitled, “Production Cost Analysis”, which compared the costs that Fermar says it would have paid to Winter’s Pit and the costs it paid to third parties for the aggregate. These documents were adduced at trial through Charles Ezomo, Fermar’s project manager. [20] The trial judge noted that Mr. Ezomo was responsible for planning all assigned projects, preparing contracts, progress certificates, payments and completion of the projects. He oversaw the completion of this project and obtained alternate sources of aggregate. Mr. Ezomo testified that Fermar obtained the requisite Granular A from Brock Pit and Granular B, as well as some additional Granular A, from Walker’s Pit. [21] Mr. Ezomo testified that he had to approve all invoices used in the analysis when they were originally received and did not review them again for purposes of preparing the summary. Mr. Ezomo is not an accountant. [22] Mr. Ezomo did not do an independent analysis but prepared the cost summary based on a report generated by Fermar’s accounting department. It is not clear who prepared the accounting report. None of the source documents were produced at trial. [23] Although the two summaries were included in a Joint Book of Documents, there appears to have been no agreement that the parties were thereby acknowledging the truth of the contents of those documents. [24] We agree with the trial judge that Fermar is entitled to damages resulting from the repudiation of the agreement by Winter’s Pit and mitigated its losses by sourcing aggregate from elsewhere. Fermar was not required to continue to deal with Winter’s Pit, who the trial judge found was not willing to provide Fermar with any more aggregate. [25] It is not possible on this record to calculate the amount of the appellant’s damages because the source documents were not part of the trial record, nor was there agreement on the quantum of damages at trial. Because it is not possible for this court to make the factual findings necessary to determine these issues on the existing trial record, we return these issues to a judge of the Superior Court to quantify the damages: Gholami v. The Hospital of Sick Children , 2018 ONCA 783, 2019 C.L.L.C. 210-007. [26] There is no order as to costs of this appeal given the divided success. “P. Lauwers J.A.” “C.W. Hourigan J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Georgina (Town) v. Blanchard, 2020 ONCA 232 DATE: 20200319 DOCKET: M51084 & M51235 (C67197); M51169; M51229 (C66908; C67197; C67422) Feldman, Lauwers and Hourigan JJ.A. DOCKET: M51084 (C67197) BETWEEN The Corporation of the Town of Georgina Moving Party and Marvin Blanchard and 1124123 Ontario Limited Responding Parties DOCKET: M51235 (C67197) AND BETWEEN The Corporation of the Town of Georgina Moving Party and Marvin Blanchard and 1124123 Ontario Limited Responding Parties DOCKET: M51169; M51229 (C66908; C67197; C67422) AND BETWEEN Grand Chief White Buffalo Eagle (a.k.a. Al Baldwin) Moving Party and Her Majesty the Queen Responding Party and The Corporation of the Town of Georgina Responding Party and Rod Phillips, Doug Downey, Dean Eastman, Deon Cousins, and Jeff Quann (in their personal capacities) Responding Parties Spirit Warrior (a.k.a. Glenn Bogue), appearing as spokesperson for the moving party, Grand Chief White Buffalo Eagle (a.k.a. Al Baldwin) Jonathan Davis, appearing in person Eric Wagner, for the responding parties, Rod Phillips, Doug Downey, Dean Eastman, Deon Cousins, and Jeff Quann John R. Hart, for the responding party, the Corporation of the Town of Georgina Dan Luxat, for the responding party, Attorney General of Canada Kisha Chatterjee, for the responding party, Attorney General of Ontario Heard: February 28, 2020 REASONS FOR DECISION [1] Three matters were heard before the panel following the order of Thorburn J.A. dated January 27, 2020. A typed transcription of that order is attached as an Appendix to these reasons. [2] The first matter concerns the appeal of an endorsement by Casullo J., dated June 20, 2019, in Blanchard v. Georgina (Town) (the “ Georgina appeal”). As part of this matter, the panel considered two motions. The first was a motion to review the order of Roberts J.A. dated November 28, 2019, ordering the appellant to pay security for costs of the appeal. The second was an ex parte motion by the Town of Georgina to dismiss the appeal for failure to pay the security for costs. [3] The second matter arose in the proposed appeal of Grand Chief v. Phillips et al (the “ Grand Chief v. Phillips matter”). That claim was dismissed and Thorburn J.A. denied an extension of time to file a notice of appeal on January 27, 2020, in a separate endorsement from the endorsement reproduced in the Appendix. [4] The third matter was a review of the order of Thorburn J.A., reproduced in the Appendix. [5] The panel first dealt with two preliminary issues: the request by the Grand Chief for an adjournment and the ability of Spirit Warrior to represent the Grand Chief. In her order reproduced in the Appendix, Thorburn J.A. ordered the Grand Chief to retain counsel or a paralegal to represent him for the purpose of the panel motions before us. Her order specified that counsel could not be Spirit Warrior, known to the Law Society of Ontario as Glenn Bogue, as he has been suspended from practice. [6] The Grand Chief requested an adjournment for health reasons. The request was opposed by Georgina. Spirit Warrior advised that he sought to act as spokesperson for the Grand Chief as his authorized representative, and not in the capacity of a lawyer. He further advised that Mr. Davis, who also signed the counsel slip but is not a lawyer, was not authorized by the Grand Chief to act as his spokesperson. [7] The panel rose to consider the two preliminary issues. It denied the request for an adjournment and allowed Spirit Warrior to speak for the Grand Chief as his authorized spokesperson but not as counsel. [8] The main position asserted on behalf of the Grand Chief was that all matters before the court should be stayed pending consultation by the Crown on a series of aboriginal land claims said to have been asserted by the Grand Chief in respect of a number of areas of Ontario. A related position was that the Georgina appeal should be consolidated with two other appeals in respect of those land claims. The Notices of Appeal in respect of those matters have file numbers: C66908 and C67422. [9] Spirit Warrior also advised the court that he had with him the funds to pay the amount ordered by Roberts J.A. into court as security, but only on condition that the court hold those funds pending two motions to be brought on behalf of the Grand Chief, one seeking costs against Mr. Hart, counsel for Georgina, personally and the other requiring the Crown to consult, with a view that the monies paid in would be replaced by monies ordered to be paid by other parties on those motions. [10] On behalf of Georgina, Mr. Hart submitted that there is no land claim outstanding against Georgina, and no basis to stay the order of the court. He also submitted that as there had been no timely payment of the amount of security for costs into court in accordance with the order of Roberts J.A., and as the proposed conditional payment was not in accordance with the order, the appeal should be dismissed. [11] Apart from the order of Casullo J. in the Georgina appeal, all counsel for the respondents on the panel motion advised the court that there have been no orders of the Superior Court. In the consolidation motion, the court is aware of an order of Templeton J. that dismissed a proceeding in the Grand Chief v. Phillips matter for being frivolous and vexatious pursuant to r. 2.1.01(1) of the Rules of Civil Procedure ; an order by Tranmer J. in a habeas corpus application by the Grand Chief, with reasons reported at 2019 ONSC 2238; and an endorsement by Lacelle J. in a different habeas proceeding. [12] The court reserved its decisions. [13] There is no basis to stay any of the appeals or to consolidate them together. The only matters before the court are the Georgina appeal and the panel review of the order denying an extension of time to appeal the Grand Chief v. Phillips matter. [14] In respect of the Georgina appeal, the Grand Chief did not argue that the order for security for costs be set aside. The only issue was whether it had been complied with. As no payment into court has been made, and the proposed payment was on condition only, and not in accordance with the order of Roberts J.A., the Georgina appeal is dismissed with costs to Georgina fixed in the amount of $3000. Inclusive of disbursements and HST. [15] In respect of the Grand Chief v. Phillips proposed appeal, Thorburn J.A. made no error in denying an extension of time to appeal. The review of her order is dismissed with costs to the responding parties fixed in the amount of $1500. Inclusive of disbursements and HST. [16] We note that in respect of both matters, these orders do not affect any land claim. “K. Feldman J.A.” “P. Lauwers J.A.” “C.W. Hourigan J.A.” Appendix Order of Thorburn J.A., dated January 27, 2020 No one is here who is a paralegal or lawyer able to assist the appellants and the Grand Chief. As such, the parties agree that the review of Justice Roberts’ order and the ex parte motion brought by Georgina, will be heard by a panel on February 28, 2020, on the following terms: 1) The respondents, the Grand Chief, shall retain counsel or a paralegal and file material within the usual timeframes and at least 2 weeks before the review scheduled for this matter. 2) Any request[s] for accommodations are to be provided to the Court and the parties at least 2 weeks before the hearing so that such requests can be considered and accommodated. 3) The counsel cannot be Spirit Warrior as he has been suspended from practicing law by the Law Society of Ontario. 4) All parties are to appear with their legally appointed representatives. 5) The effect of the adjournment of the ex parte order is that there is a stay of execution pending the panel review. 6) The respondents may file their quo warranto as part of their material. 7) There is no order to consolidate this proceeding with any other proceeding as no representations could be made and it is not apparent on the record that there are common issues. 8) Costs of today’s date will be addressed by the panel.

COURT OF APPEAL FOR ONTARIO CITATION: Greenberg v. Nowack, 2020 ONCA 167 DATE: 20200303 DOCKET: C64903 Tulloch, Benotto and Jamal JJ.A. BETWEEN H. Joseph Greenberg and Pepi Greenberg Plaintiffs (Respondents) and Steven J. Nowack Defendant (Appellant) Norman Groot, for the respondents Paul Slansky, for the appellant Heard: March 2, 2020 On appeal from the orders of Justice Carole J. Brown of the Superior Court of Justice, dated May 2, 2017, with reasons reported at 2017 ONSC 2693, and January 24, 2018, with reasons reported at 2018 ONSC 416. APPEAL BOOK ENDORSEMENT [1] The history of this case is accurately outlined in the judgment of Brown J. dated January 24, 2018. [2] Notwithstanding the very able argument of counsel, Mr. Slansky, we do not give effect to any of his arguments raised on this appeal, as we see no error in the decision of the motion judge. [3] Mr. Nowack was clearly in contempt of various court orders. He was given numerous opportunities to purge his contempt, and he failed to do so. Accordingly, the appeal is dismissed. [4] The sentence imposed on the contempt finding will be served concurrently to any related criminal sentence that Mr. Nowack is now serving. No order as to costs.

COURT OF APPEAL FOR ONTARIO CITATION: Hobson v. Hobson, 2020 ONCA 234 DATE: 20200319 DOCKET: C67328 Rouleau, Hourigan and Roberts JJ.A. BETWEEN Gaetanne Hobson Applicant (Respondent) and Tania Hobson Respondent (Appellant) Paul Ledroit, for the appellant William Fawcett, for the respondent Heard: March 12, 2020 On appeal from the order of Justice Helen A. Rady of the Superior Court of Justice, dated July 23, 2019, with reasons reported at 2019 ONSC 4429. REASONS FOR DECISION [1] This case concerns the ownership of a cottage that was purchased by Keith (“Keith”) and Gaetanne Hobson (“Gaetanne”) for $147,694 in 2001. Title to the cottage was registered in the name of their daughter, Tania Hobson (“Tania”). At the time of purchase, a mortgage was registered against the property in favour of Keith and Gaetanne (the “original mortgage”). This mortgage was in the amount of $175,000, which represented the full purchase price plus the cost of planned improvements to the property. [2] In 2009, Keith passed away. Gaetanne had the property appraised. It had appreciated considerably. A new mortgage in the amount of $350,000 was registered on title in favour of Gaetanne (the “subsequent mortgage”). [3] After a falling out with Tania, Gaetanne commenced an application on October 30, 2018. The only substantive relief she sought was a declaration that she is “the true owner” of the cottage. [4] At the trial of the application, Gaetanne claimed ownership of the cottage through the operation of a purchase money resulting trust. Tania submitted that the cottage was a gift and that any mortgage was to be forgiven upon Keith and Gaetanne’s death. It was Gaetanne’s position that because the original mortgage was to be forgiven, she had not divested herself of all power and control over the cottage, and, therefore, the cottage was not a gift. [5] The trial judge found, at para. 26, that it was Keith and Gaetanne’s intention that Tania would have ownership of the cottage: I am satisfied that preponderance of evidence demonstrates that at the time of the cottage purchase, Keith and Gaetanne intended that title would be in Tania’s name and the cottage hers. [6] This finding was reflected in paragraph 1 of the trial judge’s order, which states that the cottage “…was a gift to the respondent [Tania] at the time it was made.” [7] In her reasons, the trial judge went on to consider the effect of the mortgages. She found, based on a Direction and Acknowledgment dated September 23, 2001 and signed by Tania, Keith, and Gaetanne, that Tania was liable under the original mortgage for the amount it secured, being $175,000. However, the trial judge found there was no consideration received by Tania for the subsequent mortgage and, therefore, she was not liable for the full $350,000. Paragraph 2 of her order reflects these findings and states, “…the respondent is liable under the mortgage given by her at the time of the gift.” [8] Tania raises one issue on appeal: whether the trial judge erred in making a determination regarding her liability for the mortgages. She makes three submissions on this ground of appeal: (a) Her liability under either mortgage was not an issue on the application, and was not addressed at trial; (b) There was no evidence or incomplete evidence to support a finding of liability under either mortgage; and (c) There was no consideration for either mortgage. [9] Gaetanne submits that Tania’s liability under the mortgages was not a separate issue but an essential part of the trial judge’s decision regarding ownership of the cottage. Further, she argues that there was extensive evidence regarding the mortgages from all the major witnesses at trial. Therefore, Gaetanne submits that liability under the mortgages was properly determined by the trial judge. [10] We are not persuaded by that submission. While the mortgages were part of the factual matrix that the trial judge had to consider in determining whether to grant the relief sought in the application, the issue of Tania’s liability under either mortgage was not squarely before her. The trial judge erred in granting an order on a substantive issue that was not in the notice application or contained in the submissions made by the parties at trial. [11] In these circumstances, it would be unfair to foreclose Tania from making arguments and adducing evidence as she deems fit in support of her position that she has no liability under either mortgage. [12] The appeal is allowed. We order that paragraph 2 of the trial judge’s order be set aside. Tania, as the successful party, is entitled to her costs of the appeal payable by Gaetanne. Those costs are fixed in the agreed-upon, all-inclusive sum of $4,500. “Paul Rouleau J.A.” “C.W. Hourigan J.A.” “L.B. Roberts J.A.”

WARNING This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017 , which deals with the consequences of failure to comply, read as follows: 87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family. (9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. 142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. COURT OF APPEAL FOR ONTARIO CITATION: J.B. v. Ontario (Child and Youth Services), 2020 ONCA 198 DATE: 20200311 DOCKET: C67040, C67041, C67042, C67043, C67044 & C67045 van Rensburg, Benotto and Harvison Young JJ.A. BETWEEN J.B. Plaintiff (Appellant) and Her Majesty the Queen in Right of Ontario as represented by the Minister of Child and Youth Services and the Minister of Health and Long-Term Care , Children’s Aid Society of the Regional Municipality of Waterloo , Hospital for Sick Children, Gideon Koren and Joey Gareri Defendants ( Respondents ) AND BETWEEN Y.M. Plaintiff (Appellant) and Her Majesty the Queen in Right of Ontario , The Catholic Children's Aid Society of Toronto , The Hospital for Sick Children, Child Protection Worker(s) John Doe/Jane Doe , Gideon Koren, Joey Gareri, Viaguard Inc., also known as Accu-Metrics, Harvey Tenenbaum and Kyle Tsui Defendants ( Respondents ) AND BETWEEN C.T. Plaintiff (Appellant) and Hospital for Sick Children, Gideon Koren, Joey Gareri, The Children's Aid Society of the Regional Municipality of Waterloo , The Children's Aid Society of Hamilton , Child Protection Worker(s) John Doe/Jane Doe , and Her Majesty the Queen in Right of Ontario Defendants ( Respondents ) AND BETWEEN T.W. , K.B. and K.-L.B. Plaintiffs ( Appellant ) and Her Majesty the Queen in Right of Ontario , Family Youth and Child Services of Muskoka , The Hospital for Sick Children, Gideon Koren, Joey Gareri, and Marilyn Smart Defendants ( Respondents ) AND BETWEEN C.R., C.H., J.H., and C.H.H. by his litigation guardian, C.R. Plaintiffs (Appellants) and Her Majesty the Queen in Right of Ontario , Children's Aid Society of the Regional Municipality of Waterloo , Angela Brenner, Michael Buchnea, James Woodstock, The Hospital for Sick Children, Gideon Koren, Joey Gareri, and Julia Klein Defendants ( Respondents ) AND BETWEEN M.MD., D.W. and B.W. by his litigation guardian M.MD. Plaintiffs ( Appellants ) and The Children's Aid Society of the Niagara Region , Child Protection Worker(s) John Doe/Jane Doe , The Hospital for Sick Children, Gideon Koren, Joey Gareri, and Her Majesty the Queen in Right of Ontario Defendants ( Respondents ) Katherine Hensel and Kaelan Unrau, for the appellant J.B. Julie Kirkpatrick, for the appellants Y.M., C.T., T.W., C.R., and M.MD. Jeremy Glick and Estée Garfin, for the respondent Her Majesty the Queen in Right of Ontario Elizabeth Bowker and Ejona Xega, for the respondents Children’s Aid Society of the Regional Municipality of Waterloo, Catholic Children’s Aid Society of Toronto, Children’s Aid Society of Hamilton, Family Youth Child Services of Muskoka and Child Protection Worker(s) John Doe/Jane Doe Heard: December 12, 2019 On appeal from the judgment of Justice Darla A. Wilson of the Superior Court of Justice, dated May 1, 2019, with reasons reported at 2019 ONSC 2734. Benotto J.A.: [1] The Motherisk Drug Testing Laboratory (“MDTL”), housed in the Hospital for Sick Children (“SickKids”) in Toronto, performed hair follicle testing for drug and alcohol abuse. It became evident that some of the test results, used in child protection proceedings, were flawed. At issue in this appeal is the potential liability of various Children’s Aid Societies (collectively, the “CAS”), the Ontario government (“Ontario”) and certain named workers arising from the unreliable test results. [2] Family members of children who were the subject of protection proceedings sued the CAS and Ontario for damages as a result of the faulty test results. [1] Six of those claims are the subject of this appeal. [3] The CAS and Ontario brought motions pursuant to r. 21 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 requesting that the actions be dismissed because it was plain and obvious they could not succeed. Applying the Supreme Court of Canada’s decision in Syl Apps Secure Treatment Centre v. B.D. , 2007 SCC 38, [2007] 3 S.C.R. 83, the motions judge concluded that the CAS owed a duty of care to the children, not to the parents or family members. She also dismissed the actions against Ontario on the basis it did not owe a duty of care to the parents, families or children investigated or apprehended by the CAS. The motions judge further found that while Ontario has a broad duty to the public at large in the establishment and operation of laboratories, Ontario has no liability for the MDTL testing in either its supervisory role over the CAS and the MDTL or as a result of various statutes governing the operations of hospitals and laboratories. She struck the additional actions against the CAS and Ontario after concluding that they were based on a duty of care that did not exist. [4] For the reasons that follow, I would dismiss the appeals. FACTS (1) Background [5] The MDTL conducted hair follicle testing for suspected alcohol and drug abuse. These results were used in family and criminal cases as well as in child welfare investigations and proceedings. In response to concerns that the test results were flawed, Ontario inquired into the reliability of the MDTL’s test results between 2005 and 2015. As a result, Ontario established the Motherisk Commission to perform an independent review of various cases and produce a report. [6] In each of the appeals, the family members – at least one of whom is a biological parent of a child apprehended by the CAS – allege that the local CAS relied on flawed MDTL test results, which led to the apprehension of children and either the temporary or permanent loss of a child. [2] While the motions judge considered r. 21 motions involving seven actions, only six of those claims are the subject of this appeal (the parties appealing are collectively referred to as “the appellants”). The claims underlying the grouped appeal may be briefly summarized as follows: (a) C.R., C.H., J.H. and C.H.H. (the “C.R. action”) [7] The CAS apprehended two of C.R.’s biological children in 2007 and 2008 following positive MDTL testing. Subsequent attempts to return the children to C.R.’s care were unsuccessful. A final court order made the children Crown wards for the purposes of adoption. (b) Y.M. (the “Y.M. action”) [8] Y.M., a biological mother, underwent MDTL testing as part of child welfare proceedings that began in 2011. The test results were positive for drug and alcohol abuse. By court order, the biological father received custody of the child, with limited access by Y.M. to the child. The order was not appealed. (c) T.W., K.B. and K.-L.B. (the “T.W. action”) [9] T.W. is the mother of two children, who are also named plaintiffs in this action. As part of child welfare proceedings that began in 2009, T.W. underwent MDTL testing, which resulted in her having supervised access to her children. A final court order placed both children in the joint custody of T.W. and the children’s father. (d) M.MD., D.W. and B.W. (the “M.MD. action”) [10] M.MD. and D.W. are the parents of a child involved in a child welfare investigation between 2011 and 2012. Following MDTL testing, the CAS apprehended the child and placed him in the care of his biological father, D.W., with supervised access rights granted to M.MD. (e) C.T. (the “C.T. action”) and J.B. (the “J.B. action”) [11] Following MDTL testing in 2012, the CAS apprehended the biological child of C.T. and J.B., who self-identifies as a Cree man. By court order, the child became a Crown ward for the purposes of adoption, without access by either biological parent. (2) The Claims [12] The appellants claimed against the CAS and Ontario and sought damages for negligence, negligent investigation and supervision, negligent and/or intentional infliction of mental distress, bad faith, breach of fiduciary duty of care [3] , misfeasance in public office and breaches of s. 7 of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (U.K.), c. 11. They base these claims on the CAS’s negligent reliance on the faulty MDTL test results to apprehend children and on Ontario’s negligent failure to prevent the use of faulty test results, as overseer of the CAS, SickKids and the MDTL. (3) Decision in the Superior Court of Justice [13] The CAS and Ontario brought r. 21 motions to strike the claims against them, with the exception of the claims brought by the children apprehended as a result of protection proceedings (K.B., K.L.-B. and B.W., collectively the “child-plaintiffs”). The motions judge determined that the family members’ claims disclosed no reasonable cause of action and were bound to fail. Relying on r. 21, she dismissed the actions against the CAS and Ontario, with the exception of the child-plaintiffs’ claims against the CAS. [14] The child-plaintiffs’ actions against the CAS, as well as all of the plaintiffs’ (the appellants and the child-plaintiffs) claims against SickKids and the director and the manager of the MDTL, continue. [15] With respect to the negligence claims against the CAS, the motions judge relied on Syl Apps to find that the CAS does not owe a duty of care to family members (i.e., parents and siblings), because it owes a duty to the subject-children in child protection investigations . In that case, Abella J. found that a treatment centre and its employees did not owe a duty of care to the family of a child apprehended by the CAS because the purpose of the Child and Family Services Act is to “promote the best interests, protection and well-being of children”: R.S.O. 1990, c. C.11, s. 1(1) (“ CFSA ”). [4] As Abella J. explained, if the CAS also owed a duty to family members, there would be “a genuine potential for ‘serious and significant’ conflict with the service providers’ transcendent statutory duty to promote the best interests … of the children in their care”: Syl Apps , at para. 41. [16] On the issue of Ontario’s liability for negligence, the motions judge concluded that Ontario did not owe a private law duty of care either to the parents or siblings of children involved in child welfare proceedings, or to the children subject to child protection investigations. As the motions judge explained, while Ontario supervises the CAS, it cannot owe a private law duty of care to the children because it is not directly involved in the CAS’s investigations. By virtue of its supervisory role, Ontario is too far removed from the daily conduct of the CAS. Therefore, a relationship of proximity does not exist between Ontario and the children subject to child welfare investigations or proceedings, nor does a private law duty of care arise under statute. [17] Regarding the other claims against Ontario, the motions judge found that Ontario does not owe a private law duty of care to a particular individual arising from the operation of hospitals or laboratories under the Public Hospitals Act , R.S.O. 1990, c. P.40 (“ PHA ”) or the Laboratory and Specimen Collection Centre Licensing Act , R.S.O. 1990, c. L.1 (“ LSCCLA ”). While Ontario owes a duty to the public at large, there is no relationship of proximity that would ground a duty of care to the appellants in these cases. Moreover, the LSCCLA provides immunity to Ontario for any act done in good faith in the execution of its duties, including actions grounded in negligence. On this basis, the motions judge struck the appellants’ claims against Ontario for the negligent supervision of the MDTL. [18] The motions judge found that Ontario does not owe a private law duty of care by virtue of striking the Motherisk Commission. The decision to establish the Motherisk Commission was discretionary and there were no statutory requirements for Ontario to approve or agree with the policies and procedures the Motherisk Commission developed. [19] The motions judge further found that Ontario was not responsible for the alleged Charter breaches, in part because many of the samples tested by the MDTL in the relevant cases were obtained pursuant to a court order. A Charter -based objection should have been made at the time of the order or the parties should have appealed the order. In substance, the s. 7 Charter claims contain allegations of negligence dressed up as Charter breaches. These claims disclose no reasonable cause of action. [20] With respect to the additional claims by J.B., the motions judge rejected the fiduciary duty claim and found that any duty under s. 35(1) of the Constitution Act, 1982 was owed to the child, not to the parent, for the reasons articulated in Syl Apps . ISSUES ON APPEAL [21] The appellants allege that the motions judge erred generally by determining that it was plain and obvious that there was no reasonable cause of action against the CAS and/or Ontario. They also allege that she erred specifically by: (i) not conducting a thorough analysis according to the test set out in Anns v. Merton London Borough Council , [1978] A.C. 728, [1977] 2 W.L.R. 1024 (U.K. H.L.), (subsequently modified and applied by the Supreme Court in Cooper v. Hobart , 2001 SCC 79, [2001] 3 S.C.R. 537) (the “ Anns test”); (ii) rejecting the claim for bad faith; (iii) striking the appellants’ Charter claims; and (iv) determining that certain claims were an abuse of process. [22] In addition, J.B. alleges that the motions judge erred in dismissing the claims for breach of fiduciary duty and breach of s.35(1) of the Constitution Act, 1982 . ANALYSIS [23] I address these issues in the following order: 1. Rule 21 test to determine an issue before trial; 2. Negligence claims against the CAS; 3. Negligence claims against Ontario; 4. The allegation of bad faith; 5. Charter claims against the CAS and Ontario; 6. Additional claims raised by J.B.: a. Breach of fiduciary duty; b. Section 35(1) of the Constitution Act, 1982 . (1) Rule 21 test to determine an issue before trial [24] On a r. 21 motion, a claim will be struck if it is plain and obvious that it has no prospect of success. In this case, if the facts pleaded – which are presumed to be true – are not sufficient to give rise to a duty of care, then the claims have no reasonable cause of action. [25] At the heart of r. 21 are the mutual aims of judicial economy and correctness. The power to strike claims that have no chance of success is an important tool that reduces the time and cost of litigation and frees up the court’s time to resolve meritorious disputes. However, the court does not exercise this power lightly. Judges are ever-mindful that the law is fluid, evolving over time so that “actions that yesterday were deemed hopeless may tomorrow succeed”: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 21. [26] Bearing these principles in mind, the court adopts a generous approach in its analysis of a claim’s reasonable prospect of success, “err[ing] on the side of permitting a novel but arguable claim to proceed to trial”: Imperial Tobacco , at para.  21. It is therefore essential that the facts underlying the claims are clearly pleaded so that the court may properly perform this exercise: Imperial Tobacco , at para. 22. [27] Even on the generous approach, the motions judge correctly struck the appellants’ claims for failure to disclose a reasonable cause of action. In reaching this determination, I approach the issues raised on appeal following the framework the Supreme Court established when it articulated the purpose and extent of r. 21 in Imperial Tobacco , at para. 21: The court must … ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial. (2) Negligence claims against the CAS [28] The appellants claim that the CAS was negligent in relying on faulty MDTL test results and, as a result, they suffered damages when the CAS apprehended their children. The appellants base their claim on the premise that the CAS and Ontario owe a duty of care to the parents of children involved in child protection investigations and proceedings. [29] However, both the statutory framework and jurisprudence governing child welfare proceedings make it clear that the negligence claims against the CAS cannot succeed. [30] The purpose of the CFSA (and of the new CYFSA ) is to “promote the best interests, protection and well being of children”: s. 1(1). Indeed, the CFSA requires the CAS to protect children. Section 15(3) enumerates the functions of the CAS and provides: Functions of society (3) The functions of a children’s aid society are to, (a) investigate allegations or evidence that children may be in need of protection ; (b) protect children where necessary ; (c) provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children; (d) provide care for children assigned or committed to its care under this Act; (e) supervise children assigned to its supervision under this Act; (f) place children for adoption under Part VII; and (g) perform any other duties given to it by this or any other Act. [Emphasis added. Citations omitted.] [31] It is clear that the CAS has a statutory duty to protect children. As part of this duty, the CAS must investigate allegations or evidence that children may be in need of protection. If the CAS also owed a duty to the child’s parents, that duty would directly conflict with its overarching duty to the child. Such a conflict is untenable – a proposition for which there is explicit judicial support. [32] Syl Apps is the leading authority on the duty of care in child protection matters. In Syl Apps , the CAS apprehended a 14-year-old child and placed her in a foster home after she wrote a story at school alleging that her parents had physically and sexually abused her. No criminal charges were laid following a police investigation. After a subsequent transfer from foster care to several psychiatric facilities, the court found the girl to be a child in need of protection and ordered temporary wardship. Shortly thereafter, the court, with the girl’s consent, placed her in the care of a treatment centre and, eventually, made her a permanent ward of the Crown. Over three years later, some family members claimed against the CAS, the treatment centre and several of their respective employees for negligence and sought $40,000,000 in damages: Syl Apps , at paras. 3-12. [33] The family’s claim turned on their assertion that the treatment centre had treated the child “as if her parents had physically and sexually abused her, that this was negligent conduct, and that the negligence caused [her] not to return to her family, thereby depriving the family of a relationship with her”: Syl Apps , at para. 12. [34] The motion judge struck the action for failure to disclose a reasonable cause of action. In doing so, he found that the treatment centre, the lawyer, various psychiatrists and the social worker involved in the child’s care owed a duty of care only to the child and not to the child’s family: Syl Apps , at paras. 14-16. [35] The family members appealed the order as it related to the treatment centre and social worker to this court. The appeal was allowed in a split decision. However, the Supreme Court reversed this court’s decision and adopted Sharpe J.A.’s dissenting reasons in concluding that the motion judge correctly struck the action as disclosing no reasonable cause of action. [36] Abella J., writing for the court, agreed that the potential for conflicting duties under child protection legislation negated a duty of care to the child’s parents or family members: Syl Apps , at para. 20. Furthermore, she reiterated that “to recognize such a legal duty to the family of a child in [the treatment centre’s] care, would pose a real risk that a secure treatment centre and its employees would have to compromise their overriding duty to the child”: Syl Apps , at para. 20. [37] On this basis, Abella J. agreed with the motion judge that it was plain and obvious the action had no possibility of success, explaining at paras. 20-21: For the reasons that follow, I agree with the motions judge and with Sharpe J.A. that to recognize such a legal duty to the family of a child in their care, would pose a real risk that a secure treatment centre and its employees would have to compromise their overriding duty to the child. I also agree with Sharpe J.A. that “the duty of care pertaining to the relationship between children in need of protection and those who are charged with their care should be clearly defined on a categorical basis, rather than being left in a fluid state to be resolved on a case-by-case basis” (para. 74). I would not, as a result, recognize such a new legal duty. It follows that, in my view it is “plain and obvious” that the statement of claim discloses no reasonable cause of action against these defendants. [38] In the present appeal, the appellants submit that the law is not settled on whether the same principles apply to the CAS and Ontario under child protection legislation. To support this view, the appellants suggest that Syl Apps applies to the limited, fact-specific context of the duty of care owed by a treatment centre and its employees. [39] I do not agree. The underlying ratio of Syl Apps is that where entities exist to protect and provide for children’s best interests, to avoid conflicting duties, they must only owe a duty of care to the children they serve.  On this point, there is no principled reason to differentiate between a treatment centre and the CAS. The potential for a conflict between the child’s best interests and parental expectations was crucial to the Supreme Court’s analysis in Syl Apps – the nature of the treatment centre and the allegations at issue were not determinative in this regard: Syl Apps , at para. 41. As Abella J. explained, when children become Crown wards or are placed in the care of the CAS, those entities assume a parent’s rights and responsibilities for that child’s care: Syl Apps , at para. 42; CFSA , s. 63(1). Consequently, this duty “creates an inherently adversarial relationship between parents and the state”: Syl Apps , at para. 42. [40] In this context, a child’s best interests must take precedence. Countervailing duties could potentially force service providers to choose between the child’s best interests and “parental expectations which may be unrealistic, unreasonable or unrealizable on the other”: Syl Apps , at para. 50. Although the interests of children and parents may sometimes align, as Abella J. clarified, that does not reduce “the concern that in many, if not most of the cases, conflict is inevitable”: Syl Apps , at para. 43. Such a conflict between the interests of children and their parents would undermine and impede the CAS’s statutory obligation to act in the child’s best interests by prioritizing “the family’s satisfaction in the long term”: Syl Apps , at para. 43. As Abella J. cautioned, this tension would doubtless result in a “chilling effect on social workers, who may hesitate to act in … the child’s best interests” and invite “litigation – from the family”: Syl Apps , at para. 50. [41] Furthermore, I do not agree with the appellants’ distinction between the child welfare investigation stage and proceeding stage (i.e., pre- and post-apprehension) to argue that the courts have not determined whether the CAS owes a duty of care to parents at the investigation stage. Syl Apps is clear: the duty at all stages is to the child. [42] The law is settled in this regard. First, the CFSA requires the CAS to “investigate allegations … that children may be in need of protection” and to “protect children where necessary”: CFSA , s. 15(3)(a)(b). Second, this court has already held that the CAS does not owe parents a duty of care either during the investigation or proceeding stage; holding otherwise would directly conflict with its statutory duty to act in the child’s best interests: H.A.G. v. Family and Children’s Services Niagara , 2017 ONCA 861, leave to appeal refused, [2018] S.C.C.A. No. 181. In brief reasons, the court held as follows, at paras. 2 and 3: Relying upon Syl Apps Secure Treatment Centre v. B.D. , 2007 SCC 38, [2007] 3 S.C.R. 83, the motion judge concluded that the respondents’ sole duty of care was to the children, and not the parents. As such, the claim in negligence could not proceed. The appellant maintains that the motion judge erred by failing to distinguish Syl Apps from this case, including on the basis that the respondents’ negligent actions at least partially pre-dated the apprehension of the children. We see no error in the motion judge’s approach or the conclusion reached. Both in the lead up to and following apprehension of the children, the respondents’ duty of care was to the children and not the parents. We agree with the motion judge that in the circumstances of this case there could be no duty of care to the appellant because of the clear conflict that would arise when considering the respondents’ duties to the children. [Emphasis added.] [43] The appellants submit that H.A.G. is not jurisprudential because it is an “endorsement”. I disagree. The decision is styled as “Reasons for Decision”.  In any event, as this court has held, “the weight to be given to an endorsement will vary widely”, depending on whether “the general principles of law have already been established” or if the court of first instance has already conducted “the jurisprudential heavy lifting”: R. v. Martin , 2016 ONCA 840, 134 O.R. (3d) 781, at para. 19. It is clear that the court  in H.A.G. , considered Syl Apps to have settled the law: the CAS owes a duty of care to the children, not the parents, “[b]oth in the lead up to and following apprehension of the children”: H.A.G. , at para. 3. [44] In addition, the appellants argue that the trial judge erred by evaluating their claim “in an evidentiary vacuum”. But as the Supreme Court made clear, there is no need for a case-specific factual inquiry where the duty of care does not exist: Syl Apps , at para. 20. In Syl Apps , Abella J. agreed with the dissenting reasons of Sharpe J.A. and explained that it was desirable to define the duty of care “pertaining to the relationship between children in need of protection and those who are charged with their care … on a categorical basis, rather than being left in a fluid state to be resolved on a case-by-case basis”: Syl Apps , at para. 20. The motions judge properly struck this claim for failure to disclose a reasonable cause of action. (3) Negligence claims against Ontario [45] The appellants make several negligence-based claims against Ontario. First, they claim that Ontario was negligent in its supervisory role of the CAS. Second, one of the appellants, J.B., alleges that Ontario was negligent in its supervisory role of SickKids and the MDTL. Finally, they claim that Ontario owed a private law duty of care to the child-plaintiffs to ensure that the CAS obtained reliable evidence. They premise these allegations on the duty of care they assert Ontario owes them. [46] With respect to the first allegation, this claim cannot succeed for the same reasons that the CAS does not owe a duty of care to parents or family members. I agree with the motions judge that Ontario’s duties arising from the CFSA are “general duties to the public at large”. Given the untenable conflict of interest that would arise if Ontario owed the appellants a duty of care, and the appellants’ failure to plead the necessary facts to establish a relationship previously recognized as giving rise to a prima facie duty of care, I accept the motions judge’s conclusion that Ontario does not owe the appellants a private law duty of care: see also Taylor v. Canada (Attorney General) , 2012 ONCA 479, 111 O.R. (3d) 161, at para. 73. The motions judge appropriately struck this claim for failure to disclose a reasonable cause of action. [47] The second claim also cannot succeed. The appellant, J.B., points to the PHA and the LSCCLA to claim that Ontario breached its duty of care by failing to determine that the MDTL tests were unreliable and should not be used in child welfare proceedings. Neither statute gives rise to duties to individuals. [48] The PHA requires that the Minister act in the public interest. The statutory framework of the PHA makes it clear that there is no proximity between Ontario and the parents of children that would give rise to a duty of care. The PHA does not give rise to a duty of care to parents. The Divisional Court affirmed this principle in Mitchell Estate v. Ontario , 2005, 71 O.R. (3d) 571 (Div. Ct.), at para. 30: The overall scheme of the relevant Acts confers a mandate on the Minister of Health to act in the broader public interest and does not create a duty of care to a particular patient. [49] Likewise, the claim pursuant to the LSCCLA also fails for several reasons. First, the LSCCLA does not apply to the services provided by the MDTL . The LSCCLA regulates clinical laboratories. The MDTL was a forensic laboratory. At the relevant time, Ontario did not provide accreditation for or regulate labs that carried out forensic tests. In this respect, Ontario’s regulatory powers do not give rise to a duty of care to the appellants. [50] More importantly, a relationship of proximity between Ontario and the appellants does not arise from the LSCCLA . Pursuant to the LSCCLA , the Minister owes a general duty to the public, which does not create a private law duty of care. Moreover, it bestows on the Director various powers related to licencing laboratories for the benefit of the public at large. Adopting Sharpe J.A.’s clarification on this point, the Supreme Court agreed that exercising discretionary powers in the public interest does not translate into a private law duty of care: Imperial Tobacco , at para. 50, citing Eliopoulos Estate v. Ontario (Minister of Health and Long-Term Care) , 2006, 82 O.R. (3d) 321 (C.A.), at para. 30, leave to appeal refused, [2006] S.C.C.A. No. 514. [51] The LSCCLA provides immunity from personal liability to “the Minister or the Director or anyone acting under the authority of the Director for any act done in good faith in the execution or intended execution of his or her duty or for any alleged neglect or default in the execution in good faith of [that] duty”: LSCCLA , s. 8. For these reasons, the motions judge correctly found that it was plain and obvious that the appellants’ claim against Ontario for negligent supervision of the MDTL had no chance of success. [52] I do not agree that Ontario owes a private law duty of care to the child-plaintiffs. The appellants brought this claim against two Ministers with responsibility for administering the CFSA , the PHA and the LSCCLA . They allege that the failure of Ontario to provide appropriate oversight was “more striking” following the report from the Goudge Inquiry, [5] which highlighted the damage caused by relying on flawed forensic evidence. [53] I agree with the motions judge that Ontario does not owe a private law duty of care to the children who were the subject of the CAS’s investigations. A statutory duty of care does not arise under the CFSA . In this case there is no relationship of proximity between Ontario and the child-plaintiffs sufficient to establish a duty of care. As already discussed, Ontario owes a general duty to the public and is too far removed from the daily operations of the CAS in child protection matters to give rise to a duty of care. The absence of direct involvement in the CAS’s affairs “weakens the nexus” between Ontario and the child-plaintiffs: see also Odhavji Estate v. Woodhouse , 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 70. [54] Furthermore, the appellants’ claim fails at both stages of the Anns test. At the first stage of the Anns test, the court considers whether “the claim advanced describes a relationship that is the same as or analogous to a relationship that courts have previously recognized as giving rise to a prima facie duty of care”: Taylor , at para. 73. If there is a prima facie duty of care, the court will proceed to the next stage of the analysis and consider whether there are “residual policy considerations which justify denying liability”: Edwards v. Law Society of Upper Canada , 2001 SCC 80, [2001] 3 S.C.R. 562, at para. 10. A duty of care does not exist – finding otherwise would create a conflict of interest between the CAS’s statutory duties to the child and parental expectations. This same residual policy concern makes “the imposition of a duty of care unwise”: Syl Apps , at para. 31. [55] The motions judge did not err in striking this claim after applying the Anns test and determining that, in this case, there was no relationship of proximity from which a duty of care could arise. The appellants’ reliance on Ontario’s response to the Goudge Inquiry does not alter this conclusion. (4) The allegation of bad faith [56] Bad faith is not a stand-alone tort. As the Supreme Court clarified, “The law does not recognize a stand-alone action for bad faith”: Alberta v. Elder Advocates of Alberta Society , 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 78. Moreover, the Supreme Court determined that “the allegation of bad faith, as pleaded, is bootstrapped to the duty of care claim, and cannot survive on its own when the plea of negligence is struck”: at para. 77. The same analysis applies here. [57] An allegation of bad faith cannot alter the duty of care analysis when the claim would create a genuine conflict of interest. In this regard, the appellants are conflating the duty of care , which is necessary for the claim to succeed, with the standard of care , which may engage concepts of bad faith. Here, there is no duty of care to allow the consideration of bad faith. The motions judge was correct to strike the claim. (5) Charter claims against the CAS and Ontario [58] The appellants allege that the CAS and Ontario breached their s. 7 Charter rights by obtaining test results from the MDTL, which did not meet the requisite standards, and then using the unreliable test results to apprehend children. [59] Further, the appellants allege that Ontario breached their s. 7 Charter rights by permitting the CAS to demand bodily samples for testing, use those unreliable test results in child protection proceedings and thereby cause consequent delay. In addition, the appellants claim that Ontario infringed their s. 7 Charter rights through establishing the Motherisk Commission pursuant to the Public Inquiries Act , R.S.O. 1990, c. P.41 and in the subsequent policies and procedures it adopted. [60] The basis for these claims - in my view - is also in negligence. As the motions judge noted, allegations of negligence cannot be “dressed up as Charter breaches”. The motions judge did not err in striking these claims for failure to disclose a reasonable cause of action. [61] I adopt the reasoning of the British Columbia Court of Appeal in Quinn v. British Columbia , 2018 BCCA 320, 15 B.C.L.R. (6th) 1, leave to appeal refused, [2018] S.C.C.A. No. 463. In Quinn , the parents claimed that the Director of Child, Family and Community Services violated their s. 7 Charter rights by temporarily removing their children from the family home on the basis of an anonymous report that one of the children alleged that the parents were abusive. The children were eventually returned to the parents’ custody: Quinn , at paras. 9-15. The parents also alleged that the Province of British Columbia breached its fiduciary duty and the duty of care. The British Columbia Court of Appeal determined that the action had no possible chance of success, primarily because of the Supreme Court’s decision in Syl Apps that there is no private law duty of care owed to parents in child apprehension cases. The British Columbia Court of Appeal elaborated on this point, at para. 64: I agree with the Province that these types of allegations have no reasonable prospect of success in light of the reasoning in Syl Apps Secure Treatment Centre v. B.D. , 2007 SCC 38 . In that decision, Abella J., writing for the Court, rejected the imposition of a private law duty of care on the [treatment centre] … and one of its social workers in light of an allegation by the parents that the Centre and the social worker had been negligent in treating the child, which caused the child not to be returned to them. Justice Abella reasoned that a “compelling policy reason for refusing to find proximity” between the parents and the Centre was the overriding statutory focus on the best interests of the child: [41]    The deciding factor for me, as in Cooper and Edwards, is the potential for conflicting duties: imposing a duty of care on the relationship between the family of a child in care and that child’s court-ordered service providers creates a genuine potential for “serious and significant” conflict with the service providers’ transcendent statutory duty to promote the best interests, protection and well-being of the children in their care. [62] As in Quinn , here the appellants’ Charter claims are effectively a cloaked constitutional challenge to the CFSA and the child protection scheme: Quinn , at para. 68. The CFSA explicitly mandates the CAS to protect children. As already explained, the CAS only owes a statutory duty of care to the child, while Ontario owes no duty of care to either the children or family members involved in child protection proceedings. Regrettably, those statutory duties may require investigating the parents and addressing allegations of drug and alcohol use. [63] The Charter claim against Ontario for establishing the Motherisk Commission cannot succeed. Establishing the Motherisk Commission did not deprive the appellants of life, liberty or security of the person. Quite the opposite. Ontario created the Motherisk Commission to provide an array of assistance and support to individuals who were affected by the flawed MDTL test results: Order in Council, Motherisk Commission: 4/2016 (January 13, 2016). In addition, Ontario had no obligation to prescribe matters of policy and procedure for the Motherisk Commission. The Motherisk Commission exercised its discretion to implement policies and procedures that would achieve its objectives. Section 7 of the Charter does not obligate it to establish specific policies and procedures. In exercising its discretion, the Motherisk Commission had considerable latitude to adopt the approach it viewed as the most effective and efficient way to fulfil its mandate. [64] I agree with the motions judge that it was plain and obvious the Charter claims would not succeed. [65] The appellants raise on appeal for the first time that the CAS also breached their s. 8 Charter rights by taking their hair for testing, which they say constituted an unreasonable search and seizure. It is inappropriate for this court to opine on issues not raised at first instance and without the benefit of the motions judge’s analysis: R. v. Roach , 2009 ONCA 156, 246 O.A.C. 96, at para. 6; Canadian Civil Liberties Association v. Canada , 2019 ONCA 243, at paras. 148-49, leave to appeal granted, [2019] S.C.C.A. No. 96. (6) Additional claims raised by J.B. [66] J.B. is the father of a child apprehended by the Family and Children’s Services of the Waterloo Region (the “CAS Waterloo”). C.T. is the child’s mother. Following MDTL hair follicle testing, the CAS Waterloo conducted an investigation and apprehended their child. The trial judge made the child a Crown ward without access for the purposes of adoption. The parents appealed the no access order and the first-instance appeal judge reversed the trial judge’s order. The CAS Waterloo appealed that decision to this court, which allowed the appeal and reinstated the trial judge’s no access order: Children’s Aid Society of the Regional Municipality of Waterloo v. C.T. , 2017 ONCA 931, leave to appeal refused, [2018] S.C.C.A. No. 51. [67] In addition to the issues the appellants raise on appeal (addressed above), J.B. also claims against the CAS Waterloo and Ontario on the basis of breach of fiduciary duty and for breach of treaty rights enshrined in s. 35(1) of the Constitution Act, 1982 . [68] With respect to breach of fiduciary duty, J.B. submits that the CAS Waterloo owes him a fiduciary duty as an Indigenous parent because of the agency’s role in administering a child welfare system that has caused “tremendous intergenerational, collective, and individual harms to Indigenous children, families, and communities.” He refers to the Final Report of the Truth and Reconciliation Commission (“ TRC ”) [6] and the National Inquiry into Missing and Murdered Indigenous Women and Girls (“ MMIWG ”) [7] to demonstrate the harms the child protection system has caused to Indigenous children and families and the role of the CAS Waterloo (and the CAS generally) in causing these harms. J.B. submits that these harms give rise to a particular fiduciary duty of the CAS to Indigenous families. [69] J.B. further submits that, as an Indigenous person, Ontario had a “specific, fiduciary duty to him to ensure that measures taken in child welfare proceeding[s] … were procedurally fair … in accordance with the requirements of the CFSA .” In his pleadings, he alleged that the CAS Waterloo violated s. 37(4) of the CFSA and infringed s. 35(1) of the Constitution Act, 1982 by “giving no consideration to the role of extended family in Cree traditions, laws, customs and practices relating to child care.” (a) Breach of fiduciary duty [70] The Crown owes a special responsibility to Indigenous people. However, here, there are no facts pleaded that would satisfy a claim for breach of fiduciary duty. J.B. did not plead any facts that could establish a fiduciary duty existed – he simply asserted that it did. Moreover, J.B. refers to Guerin v. The Queen , [1984] 2 S.C.R. 335 to argue that the law governing the Crown’s fiduciary duty to Indigenous peoples is an emerging area, and that the special considerations in this case distinguish it from other decisions where the court held that there is no fiduciary duty to parents in the context of child protection proceedings. However, Guerin does not support this argument. [71] At issue in Guerin was the nature of “Indian title [to land] coupled with the discretion vested in the Crown”, which gave rise to a fiduciary obligation: at p. 386. Furthermore, in the present appeal, the CFSA does not create a duty of loyalty to family members, but rather to the apprehended children. The same reasoning in Syl Apps regarding the duty of care and the potential for a conflict of interest apply here to bar a breach of fiduciary duty. There could, under these circumstances, be no undertaking on the part of the CAS Waterloo or Ontario to act in the best interests of J.B. [72] The appellants’ reliance on the TRC and the MMIWG raises the issue that the fiduciary duty ought to exist to repair past wrongs. However, the Supreme Court rejected these “remedy based fiduciary relationships” in Lac Minerals Ltd. v. International Corona Resources Ltd. , [1989] 2 S.C.R. 574. As La Forest J., writing for the majority, explained, at p. 652 : In my view, this third use of the term fiduciary, used as a conclusion to justify a result, reads equity backwards. It is a misuse of the term. [73] The motions judge correctly held that the claim against the CAS Waterloo and Ontario had no chance of success because there is no fiduciary duty between them and Indigenous parents or families – any duty would be owed to the Indigenous child. (b) Section 35(1) of the Constitution Act, 1982 [74] I do not accept J.B.’s submission that the motions judge erred in concluding that it was plain and obvious the CAS Waterloo and Ontario owed no duty to Indigenous parents pursuant to s. 35(1) of the Constitution Act, 1982 . [75] Section 35(1) of the Constitution Act, 1982 provides that the “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Moreover, s. 37(4) of the CFSA provides: Where child an Indian or native person Where a person is directed in this Part to make an order or determination in the best interests of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child’s cultural identity. [Citations omitted.] [76] In the context of child protection proceedings, any duty flowing from these provisions is owed to the child, not the parent, by virtue of the Supreme Court’s decision in Syl Apps . This claim has no possibility of success. (c) Abuse of process [77] The appellants claim that the motion judge erred in concluding that their claims were a collateral attack on court orders and an abuse of process.  My conclusions above are dispositive of the appeal. It is therefore unnecessary to address the abuse of process claims. CONCLUSION [78] I agree with the decision of the motions judge that it is plain and obvious that the appellants’ claims against the CASs and against Ontario cannot succeed for failure to disclose a reasonable cause of action. [79] I would dismiss the appeals. [80] No costs were requested, and I would order none. Released: March 11, 2020 “MLB” “M.L. Benotto J.A.” “I agree K. van Rensburg J.A.” I agree A. Harvison Young J.A.” [1] There were other defendants as well who are not part of this appeal. [2] Some of the actions included children as plaintiffs. At present, the actions that involve child-plaintiffs are proceeding against the CAS. In addition, the appellants’ and the child-plaintiffs’ claims against SickKids and the MDTL are also proceeding. [3] The appellants, other than J.B., did not pursue this claim on appeal. [4] The Child, Youth and Family Services Act, 2017 , S.O. 2017, c. 14, Sch. 1 (“ CYFSA ”) was proclaimed into force on April 30, 2018. For the purpose of this decision, I refer to the CFSA , which was in force during the relevant period of time at issue in this appeal. The content of the relevant sections in both the CFSA and CYFSA remain the same. While I rely on the CFSA , my reasons with respect to duty of care apply to the CYFSA as well. [5] Ontario. Inquiry into Pediatric Forensic Pathology in Ontario. The Report of the Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Queen’s Printer for Ontario, 2008). [6] Canada. Truth and Reconciliation Commission. The Final Report of the Truth and Reconciliation Commission of Canada , vol. 5, Canada’s Residential Schools: The Legacy (Montreal: McGill-Queen’s University Press, 2015). [7] Canada. National Inquiry into Missing and Murdered Indigenous Women and Girls. Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (Ottawa: Government of Canada, 2018).

WARNING This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017 , which deals with the consequences of failure to comply, read as follows: 87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family. (9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. 142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. COURT OF APPEAL FOR ONTARIO CITATION: J.B. v. Ontario (Child and Youth Services), 2020 ONCA 199 DATE: 20200311 DOCKET: C67040, C67041, C67042, C67043, C67044 & C67045 van Rensburg, Benotto and Harvison Young JJ.A. BETWEEN J.B. Plaintiff (Appellant) and Her Majesty the Queen in Right of Ontario as represented by the Minister of Child and Youth Services and the Minister of Health and Long-Term Care , Children’s Aid Society of the Regional Municipality of Waterloo , Hospital for Sick Children, Gideon Koren and Joey Gareri Defendants ( Respondents ) AND BETWEEN Y.M. Plaintiff (Appellant) and Her Majesty the Queen in Right of Ontario , The Catholic Children's Aid Society of Toronto , The Hospital for Sick Children, Child Protection Worker(s) John Doe/Jane Doe , Gideon Koren, Joey Gareri Viaguard Inc., also known as Accu-Metrics, Harvey Tenenbaum and Kyle Tsui Defendants ( Respondents ) AND BETWEEN C.T. Plaintiff (Appellant) and Hospital for Sick Children, Gideon Koren, Joey Gareri, The Children's Aid Society of the Regional Municipality of Waterloo , The Children's Aid Society of Hamilton , Child Protection Worker(s) John Doe/Jane Doe , and Her Majesty the Queen in Right of Ontario Defendants ( Respondents ) AND BETWEEN T.W. , K.B. and K.-L.B. Plaintiffs ( Appellant ) and Her Majesty the Queen in Right of Ontario , Family Youth and Child Services of Muskoka , The Hospital for Sick Children, Gideon Koren, Joey Gareri, and Marilyn Smart Defendants ( Respondents ) AND BETWEEN C.R., C.H., J.H., and C.H.H. by his litigation guardian, C.R. Plaintiffs (Appellants) and Her Majesty the Queen in Right of Ontario , Children's Aid Society of the Regional Municipality of Waterloo , Angela Brenner, Michael Buchnea, James Woodstock, The Hospital for Sick Children, Gideon Koren, Joey Gareri, and Julia Klein Defendants ( Respondents ) AND BETWEEN M.MD., D.W. and B.W. by his litigation guardian M.MD. Plaintiffs ( Appellants ) and The Children's Aid Society of the Niagara Region , Child Protection Worker(s) John Doe/Jane Doe , The Hospital for Sick Children, Gideon Koren, Joey Gareri, and Her Majesty the Queen in Right of Ontario Defendants ( Respondents ) Katherine Hensel and Kaelan Unrau, for the appellant J.B. Julie Kirkpatrick, for the appellants Y.M., C.T., T.W., C.R., and M.MD. Jeremy Glick and Estée Garfin, for the respondent Her Majesty the Queen in Right of Ontario Elizabeth Bowker and Ejona Xega for the respondents Children’s Aid Society of the Regional Municipality of Waterloo, Catholic Children’s Aid Society of Toronto, Children’s Aid Society of Hamilton, Family Youth Child Services of Muskoka and Child Protection Worker(s) John Doe/Jane Doe Heard: December 12, 2019 On appeal from the judgment of Justice Darla A. Wilson of the Superior Court of Justice, dated May 1, 2019, with reasons reported at 2019 ONSC 2734. REASONS FOR DECISION ON MOTION FOR RECONSTITUTED PANEL [1] At the opening of oral submissions in the group of six appeals before this court, counsel for J.B. requested that the panel be reconstituted to replace Benotto J.A. The basis for the request was her involvement in this court’s unanimous decision in Children’s Aid Society of the Regional Municipality of Waterloo v. C.T. , 2017 ONCA 931, leave to appeal refused, [2018] S.C.C.A. No. 51 (“ Waterloo ”), which reinstated the trial judge’s no access order: at para. 101. [2] Counsel for J.B. suggested that it would be “awkward” to make submissions to the same judge who had heard another appeal involving her client. Counsel did not assert actual bias, but rather the reasonable apprehension of bias. [3] We determined that no bias – actual or reasonably apprehended – could possibly arise and denied the request. [4] There is a strong presumption of judicial impartiality. A party who seeks to rebut this presumption bears a heavy burden. In his dissenting reasons in Committee for Justice and Liberty v. Canada (National Energy Board) , [1978] 1 S.C.R. 369, at p. 394, de Grandpré J. articulated the test for a reasonable apprehension of bias, which the Supreme Court has repeatedly endorsed: [T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. … [T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the judge], whether consciously or unconsciously, would not decide fairly.” [5] Cory J. expanded on this test, explaining that it contains a “two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case”: R. v. S. (R.D.) , [1997] 3 S.C.R. 484, at para. 111. [6] The issue is whether a hypothetical observer, who is informed of all the facts, would believe it is “more likely than not” that a judicial decision-maker “would not decide fairly”: Committee for Justice and Liberty , at p. 394 . This analysis does not engage the views or conclusions of a particular litigant before the court. [7] The issue in Waterloo was whether the judge below had erred in law in allowing J.B. and C.T.’s appeal from the trial judge’s Crown wardship, no access order for their child. This court held that there were indeed legal errors in the appeal below and reinstated the trial judge’s order. [8] This appeal raises different legal issues. (If it did not, the matter would be res judicata. ) [9] A reasonable observer, informed of all the facts, would not conclude that a judge would appear to be biased only because of her involvement in another case affecting the same party: see Arsenault-Cameron v. Prince Edward Island , [1999] 3 S.C.R. 851, at para. 5; see generally Miracle v. Miracle , 2017 ONCA 195 and R. v. J.L.A. , 2009 ABCA 344, 464 A.R. 289. As this court held in Miracle , at para. 4: A reasonable observer would not conclude that, because a judge has ruled against a party on a legal issue in one case, that judge, whether consciously or unconsciously, would likely be biased when deciding a different legal issue with respect to that same party in another case. [10] We agree and denied the request to reconstitute the panel. “K. van Rensburg J.A.” “M.L. Benotto J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Kivell v. Chatham-Kent Children’s Services, 2020 ONCA 180 DATE: 20200306 DOCKET: C67427 Tulloch, Benotto and Jamal JJ.A. BETWEEN Brian Kivell and Betty-Jo Kivell, Erica Kivell, Gracie Kivell, Sasha Kivell, Kaitlynn Kivell, Ezra Kivell and Sawyer Kivell by their Litigation Guardian, Betty-Jo Kivell Plaintiffs (Appellants) and Chatham-Kent Children’s Services (Operated by The Children’s Aid Society of the Municipality of Chatham-Kent), Cristina Ruscica, Robin Rose, Chatham-Kent Police Services Board and Police Constable Gary Oriet Defendants (Respondents) Raymond G. Colautti, for the appellants Sheila Handler, for the respondents Heard and released orally: March 3, 2020 On appeal from the order of Justice Jonathon C. George of the Superior Court of Justice, dated August 15, 2019. REASONS FOR DECISION [1] The motion judge’s conclusion that the officer had subjective reasonable and probable grounds to arrest is supported by the evidence and entitled to deference. The grounds were objectively reasonable. [2] The allegation of negligent investigation is answered by the fact that – as stated by the motion judge – the appellant presented no expert evidence as to the standard of care to rebut the evidence filed by the police. [3] This is one of those rare cases when summary judgment in favour of one defendant is appropriate in the context of the litigation as a whole. [4] The appeal is dismissed. Costs are awarded to the respondents in the amount of $15,000 including HST and disbursements. “M. Tulloch J.A.” “M.L. Benotto J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Koundakjian (Re), 2020 ONCA 191 DATE: 20200310 DOCKET: C67408 Strathy C.J.O., Miller and Trotter JJ.A. IN THE MATTER OF:  Ara Koundakjian AN APPEAL UNDER PART XX.1 OF THE CODE Anita Szigeti, for the appellant Ara Koundakjian Andrew Cappell, for the respondent the Attorney General of Ontario Michele Warner, for the respondent the Person in Charge of the Centre for Addiction and Mental Health Heard: March 5, 2020 On appeal against the disposition of the Ontario Review Board dated, July 24, 2019, with reasons dated August 26, 2019. REASONS FOR DECISION [1] Ara Koundakjian appeals from the July 24, 2019 disposition of the Ontario Review Board, ordering him detained at the General Forensic Unit of the Centre for Addiction and Mental Health, Toronto. The appellant had sought a conditional discharge. [2] The appellant advances two related grounds of appeal: the Board (1) misstated the governing legal test; and (2) failed to meaningfully consider whether the necessary and appropriate disposition would be a conditional discharge rather than a detention order. For the reasons that follow, we do not agree. Background [3] The appellant is in his early 60s and has a long history of mental health illness. His diagnosis at the time of the disposition included schizo-affective disorder and substance dependence. He has a long history of substance abuse, notably cocaine. In the opinion of his treating psychiatrist, his cocaine use exacerbates his mental illness and renders him unpredictable and aggressive. [4] The hospital report documents “a longstanding pattern of threatening, argumentative and aggressive behaviour within the family, and aggressive and assaultive behaviour on the basis of irritability and grandiosity against persons in his immediate world, including other patients when he is unwell.” [5] The index offence occurred on June 22, 1999. While the appellant was an inpatient on the psychiatric unit of St Joseph’s Health Care in Toronto, he assaulted another patient, a mentally disabled man, punching and kicking him in the face and body. He was found not criminally responsible and has been under a detention order ever since. [6] The current disposition provides for the appellant to live in the community in supported housing, a privilege the appellant has exercised since 2008. Over that period, the appellant has been involuntarily readmitted to hospital between 16 and 18 times, although not in the year preceding the disposition under appeal. [7] The hospital report states that the appellant has “little or no insight into his illness, need for medication and impact of illness on his behaviour.” [8] The appellant’s treating psychiatrist stated that the risk of assaultive behaviour is addressed by “regular oversight, stability of accommodation, regular urine testing, depot medication regimen, and readmission when required because of decompensation.” [9] The Board concluded that the appellant continued to represent a significant risk to the safety of the public, and that the appropriate disposition was a continuation of the detention order. It concluded that the appellant’s delusions appear fixed, including the belief that he needs to stay awake in order to prevent global catastrophe, and that he needs to consume cocaine to keep himself from sleeping. The Board accepted the evidence of the appellant’s treating psychiatrist,  that the appellant’s cocaine use can lead to decompensation, during which time the appellant can be verbally and physically aggressive, particularly towards family members. [10] The Board noted that the appellant is frequently in breach of the conditions of his disposition, particularly those related to cocaine use and drug testing, that decompensation can be rapid as a result of his cocaine use, and that a detention order continues to be necessary to return him rapidly to the hospital when warranted. Analysis [11] The first ground of appeal is that the Board erred in its articulation of the correct legal test governing detention. In five places in its reasons, the Board refers to the “appropriate” disposition, rather than the “necessary and appropriate” disposition. In other places, including the conclusion, it does not make this error. [12] The appellant argues that this misarticulation was no mere slip, but evidence of a genuine misunderstanding of the standard the Board’s disposition needed to meet. That is, it is not sufficient for a proposed disposition to be appropriate, it must also be necessary for protecting the public from a risk of serious harm. [13] We agree that the Board’s apparent misstatement of the standard is troubling. But in the context of the reasons as a whole, it is apparent that “appropriate” is used as shorthand to indicate “necessary and appropriate”. The Board fully stated the phrase in other places and, more importantly, evidenced an understanding of the standard in its reasoning. [14] Second, the appellant argues that the Board erred by not finding that a conditional discharge would be the necessary and appropriate (or equivalently, the least onerous and restrictive) disposition. On conditions proposed by the appellant at the disposition hearing, the appellant would continue to reside at his housing which has been long approved by the Board, and continue to be subject to conditions regarding drug use, drug testing, and medications. [15] The appellant argued that the Board’s primary concern - protecting the public against aggressive conduct consequent to rapid decompensation from cocaine use – could be met by utilizing the provision of the Mental Health Act , particularly under the Box B criteria for “substantial mental or physical deterioration.” This is said to be particularly the case given that he is now receiving his medication through weekly injections, rather than daily oral medication. [16] In our view, the Board’s determination that continued detention is the necessary and appropriate disposition is reasonable and entitled to deference. There was no air of reality to a conditional discharge in the appellant’s circumstances, which included multiple readmissions (although none in the previous review period), and breaches of the prohibition against using cocaine – testing positive for cocaine 25 times in the months leading up to the review hearing – as well as taking steps to defeat the testing regime. The chronic cocaine use is not a mere technical breach. The appellant believes cocaine to be medically necessary for him, to enable him to stay awake and thereby influence world events. In reality, it exacerbates his mental illness and puts other people at risk of physical harm. He has not demonstrated insight into his illness, or a willingness to abide by terms of his disposition that are necessary for the protection of others. His failure to comply with the terms of the disposition has not infrequently generated a risk of serious harm that has necessitated a return to hospital. Although he had not been readmitted in the year prior to the disposition hearing, he was not without incidents of aggression and other breaches. The Board made no error in concluding that a conditional discharge would not be the necessary and appropriate disposition in these circumstances. DISPOSITION [17] The appeal is dismissed. “G.R. Strathy C.J.O.” “B.W. Miller J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Markham (City) v. AIG Insurance Company of Canada, 2020 ONCA 239 DATE: 20200331 DOCKET: C67455 Doherty, Brown and Thorburn JJ.A. BETWEEN The Corporation of the City of Markham Applicant (Respondent) and AIG Insurance Company of Canada Respondent (Appellant) AND BETWEEN AIG Insurance Company of Canada Applicant (Appellant) and Lloyd’s Underwriters and the Corporation of the City of Markham Respondents (Respondents) Marcus B. Snowden and Sébastien A. Kamayah, for the appellant David G. Boghosian and Shaneka Shaw Taylor, for the respondents Heard: February 12, 2020 On appeal from the judgment of Justice Annette Casullo of the Superior Court of Justice, dated August 23, 2019, with reasons reported at 2019 ONSC 4977, [2020] I.L.R. I-6184. Thorburn J.A.: OVERVIEW [1] On February 2, 2015, the City of Markham (“the City”) rented a hockey rink at the Angus Glen Community Centre to the Markham Waxers Hockey Club, the Markham Waxers Minor Hockey Association, and the Markham Minor Hockey Association (collectively “Waxers”). [2] A young boy watching his brother’s hockey game at the community centre (“the plaintiff”), was injured when a hockey puck flew into his face. [3] The plaintiff, through his litigation guardian, sued both the City and Hockey Canada. He seeks $150,000 in damages from the City and Hockey Canada for his broken jaw and associated pain and suffering. [4] The City is insured by Lloyd’s Underwriters (“Lloyd’s”) under a commercial general liability policy. The City is also an additional insured to Hockey Canada’s insurance policy with AIG Insurance Company of Canada (“AIG”). [5] This is a dispute between AIG and Lloyd’s in respect of the duty to defend the claim brought against the City and the rights and responsibilities that arise from that duty. [6] AIG accepts responsibility to defend the action but claims that Lloyd’s has a concurrent duty to defend and must pay an equitable share of the City’s defence costs. AIG also claims it has a right to participate in the defence, including the right to retain and instruct counsel, alongside Lloyd’s. [7] AIG appeals the application judge’s decision that: a) AIG must defend the action; b) AIG must pay the cost of defending the action subject to indemnification of costs, if any, from Lloyd’s upon final resolution of the action; but c) AIG may not participate in the defence by retaining or instructing counsel. THE ISSUES [8] The issues on this appeal are: a) Does Lloyd’s owe the City a concurrent duty to defend? b) Must Lloyd’s pay an equitable share of the City’s defence costs? and c) Does AIG have the right to participate in the defence, including the right to retain and instruct counsel? [9] For the reasons that follow, I conclude that: a) Both AIG and Lloyd’s owe a duty to defend the City in the action; b) AIG and Lloyd’s must share the City’s defence costs equally, subject to a right to seek a reallocation of the defence costs at the conclusion of the action; and c) AIG has a right to participate in the defence, including the right to retain and instruct counsel. PARTIES TO THE LITIGATION [10] The City owns and maintains the rink. [11] Hockey Canada is involved in oversight of hockey programs in Canada. It denies having any operational control over the arena or the events which take place in the arena. [12] Waxers develops and promotes minor ice hockey for youth in the City. Waxers rented the rink from the City for the hockey game. The rental agreement provides that Waxers assumes “all liabilities and costs for damages caused directly or indirectly by the licensee or invitees while on or using the facility.” THE CLAIMS [13] The plaintiff commenced legal proceedings against the City and Hockey Canada. He claims that one or both of the City and Hockey Canada failed to: a) put in place adequate safety systems for spectators; b) take reasonable and proper measures to ensure the hockey rink was reasonably safe for spectators; c) ensure the hockey rink was clear of hazards; d) ensure the reasonable safety of spectators by taking reasonable safety measures, including putting a net around the rink to prevent hockey pucks from striking spectators; and e) place signs or warnings of danger. [14] The plaintiff further claims that the City, Hockey Canada, or both: a) permitted spectators to be at the hockey rink when they knew or ought to have known that it was unsafe and dangerous; and b) allowed incompetent employees, agents or contractors to supervise the rink without suitable skill, ability or training and without ensuring that they followed safety rules and regulations. [15] The City and Hockey Canada crossclaimed against one another. [16] The City also commenced a third-party claim against Waxers. The City claims Waxers knew or ought to have known of the hazards at the location of the accident and failed to: a) fulfil the contractual obligations; b) take steps to prevent the plaintiff from being in the area; c) supervise the plaintiff; d) prevent the plaintiff from engaging in reckless behaviour; e) instruct the plaintiff to obey the ice rink policies and procedures; and f) otherwise take reasonable steps to prevent the plaintiff’s accident. [17] The City further claims that in accordance with the rental agreement, Waxers is obligated to indemnify and hold it harmless from and against all claims and proceedings in respect of any loss, damages or injury arising from Waxers’ performance of and responsibilities under the Contract. [18] Waxers defended the Claim and pleaded that they are not responsible for the physical structure, layout, design, construction, inspection, or maintenance of the arena. THE CITY’S INSURANCE POLICIES (a) The Lloyd’s Policy [19] The Lloyd’s commercial general liability policy covers the City against damages related to bodily injury, personal injury, and property damage. The policy with the City provides that Lloyd’s: agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay by reason of liability imposed upon the Insured by law or … under Contract or agreement for damages because of (a) Bodily Injury (b) Personal Injury (c) Property Damage caused by an Occurrence during the Policy Period[.] [20] Each occurrence is insured for up to $5 million, subject to a $100,000 deductible which “shall be deducted from the total amount of all claims”. [21] The policy also requires Lloyd’s to defend the City against claims for damages that fall within the policy. Lloyd’s promises to: defend in the name of and on behalf of the Insured and at the cost of the Insurer any civil action which may at any time be brought against the Insured on account of such Bodily Injury, Personal Injury or Property Damage or Wrongful Act but the Insurer shall have the right to make such investigation, negotiation and settlement of any claim as may be deemed expedient by the Insurer[.] [22] Finally, the policy provides for how liability is determined when another insurance policy also covers the claim. It states that: The Insurer shall not be liable if at the time of any accident or occurrence covered by the Policy, there is any other insurance which would have attached if this insurance had not been effected, except that this insurance shall apply only as excess and in no event as contributing insurance and then only after all such other insurance has been exhausted. [Emphasis added.] (b) The AIG Policy (i) AIG’s Policy Covering Hockey Canada and Waxers [23] AIG insures Hockey Canada and other entities, including Waxers, pursuant to a commercial general liability policy. The AIG policy insures against damages because of bodily injury or property damage that fall within the policy: [AIG] will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. [24] The policy also provides that “[n]o other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for” and that AIG “will have the right and duty to defend any ‘action’ seeking those damages [to which this insurance policy applies until AIG has] … used up the applicable limit of insurance in the payment of judgments or settlements”. [25] “Action” is defined as “a civil proceeding in which damages because of ‘bodily injury’, ‘property damage’ or ‘personal injury’ to which this insurance applies are alleged.” [26] The AIG policy also provides indemnity for legal fees incurred to defend the insured for actions that fall within the coverage. [27] Section IV, subsection 9 of the AIG policy provides that “[t]he insurance afforded by this Policy is primary insurance”. There is no excess provision in the AIG policy, in respect of claims occurring in Canada. (ii) AIG’s Third-Party Liability Insurance for the City [28] As part of its rental agreement, the City required Waxers to obtain general liability insurance for bodily injury arising from Waxers’ use of the rink and to include the City as an additional insured under that policy. [29] Waxers delivered a Certificate of Insurance to the City confirming that the City was added as an additional insured to the AIG policy “ but only with respect to the operations of the named insured [Hockey Canada and Waxers]” (emphasis added). [30] Similarly, Endorsement 2 of the AIG Policy provides that the City is included “as Additional Insured but only in respect of liability arising out of the Named Insured’s operations.” [31] The Certificate also provides that it is subject to the limitations, exclusions and conditions of the policy. [32] The City is insured for up to $5 million per occurrence under the AIG policy as an additional insured. THE PROCEEDINGS (a) Overview [33] The City and AIG brought competing applications to determine which insurers had a duty to defend the action and participate in the defence. [34] The City and Lloyd’s were represented by the same counsel who sought a declaration that AIG had a duty to defend the City and that the City was entitled to appoint and instruct counsel of its choice without having to report to or take instructions from AIG. [35] AIG admitted that it has a duty to defend but claimed that Lloyd’s owes a concurrent duty to defend and to contribute to the defence costs. AIG opposed the application and sought a declaration requiring AIG and Lloyd’s to jointly agree on and instruct counsel to defend the City in the underlying action. (b) The Application Judge’s Reasons (i) Duty to Defend [36] The application judge did not expressly state that Lloyd’s has no duty to defend, though paras. 37-39 of her reasons would seem to suggest that she concluded that AIG alone has a duty to defend all claims in this action. [37] Under the heading “Does Lloyd’s have a continuing duty to defend the City?”, the application judge focused on the fact that AIG had a clear duty to defend the underlying action. She held that: [ 37 ]    Where a plaintiff advances allegations of negligence which fall outside the scope of the contract, and the insurer has not clearly specified in its policy that the duty to defend is limited to covered rather than uncovered claims, then the insurer’s duty is to defend all of the claims, both covered and non-covered. See, for example, Carneiro v. Durham (Regional Municipality) , [2015] O.J. No. 6812 . [ 38 ]    There is nothing in AIG ’s Policy that qualifies its duty to defend, or to suggest that the duty to defend did not apply to “mixed claims.” AIG could have written qualifying words into the policy providing for an allocation of “mixed claims.” It chose not to do so. [ 39 ]    If the court acceded to AIG’s request there would potentially be three or more lawyers defending the action (one for the Waxers, one for the City, and one for Lloyd’s). This simply does not make economic sense. (ii) Costs of the Defence [38] In respect of paying the costs of the defence however, she held that AIG had a right to seek contribution from Lloyd’s at the end of the action for the cost of defending claims that fell outside the coverage of the AIG policy but within the coverage of the Lloyd’s policy. She concluded that: [40]    In the result, AIG shall pay all reasonable costs associated with the defence of the underlying action, even though those costs further the defence of uncovered claims. This is, of course, subject to AIG’s right to seek reimbursement from Lloyd’s for costs incurred in relation to uncovered claims. (iii) AIG’s Participation in the Defence [39] Despite concluding that AIG had a duty to fund the City’s defence, the application judge held that AIG was not permitted to participate in the defence. [40] She found that there were two sources of potential or actual conflicts of interest between the City and AIG. First, the City had launched a cross-claim and third-party claims against AIG’s own insureds alleging that they were either liable for breach of contract, for contribution and indemnity, or both. Second, as submitted by counsel for the City and Lloyd’s, some claims were not covered by the AIG policy and were only covered by the Lloyd’s policy. As such, AIG had an incentive to conduct the defence so as to impose the majority of liability on the City based on the uncovered risk, rather than the covered risk. [41] The application judge found that there was a perceived if not actual conflict of interest. She noted that AIG proposed to implement a “split file” protocol where separate claims handlers would be appointed to instruct defence counsel for the City and the other defendants in the actions, as well as to handle any coverage issues against the City. Their files would be screened from the files of other claims handlers and marked as confidential. [42] For the reasons that follow, she rejected AIG’s proposal: [ 24 ]    The case for independent counsel grows stronger, … considering the crossclaims for contribution and indemnity brought by the City and AIG. AIG’s own casualty claims analyst admitted at his cross-examination that a perceived, if not actual, conflict of interest exists between the City and AIG. [ 25 ]    AIG suggests that any conflict can be managed by ensuring a separate claims handler at AIG handles the City’s defence, and by following a “split file” protocol. This protocol consists of physically and digitally screening the file from other claims handlers with AIG. The physical documents are put into a folder marked confidential, and the electronic documents are marked “internal” or “confidential.” AIG’s casualty claims analyst agreed there is no way to monitor whether other handlers can access and review the confidential documents. [ 26 ]    Further, with no written policy setting out a formal practice in respect of managing conflicts through the “split file” protocol, AIG has not satisfied the court that this ethical wall is adequate to resolve the conflict of interest concerns. [ 27 ]    I am mindful of Ferguson J.’s very recent decision in HMQ v. AIG , 2019 ONSC 2964, where an application identical to the one before me was dismissed. I note there were some differences in the evidence in respect of AIG’s “split file” protocol. For example, there was no evidence before me that a claims handler would be subject to discipline if she/he breached protocol. Further, AIG’s analyst indicated there was no way of knowing whether other handlers could access and see documents marked “confidential.” Moreover, in that case only HMQ had issued a crossclaim, so the potential for AIG being in a position of conflict was not as evident. [29 ]    … AIG would only be liable to indemnify the City to the extent of the Waxers’ liability, so its efforts would obviously be to reduce that exposure and play to the uncovered claims’ strength, being the occupiers’ liability claims. [ 30 ]    Ultimately, I am persuaded by the City’s argument that counsel’s mandate from AIG in respect of defending the Waxers can reasonably be seen to conflict with AIG’s mandate to defend the City. [43] She concluded that there is an “irremediable conflict of interest” in AIG defending both the City and Hockey Canada and that the “split file” protocol proposed by AIG is unworkable in respect of this claim for negligence and breach of contract. As such, she concluded that the City should be permitted to select and instruct its own counsel without having to report to AIG. ANALYSIS THE FIRST ISSUE: Does Lloyd’s have a Concurrent Duty to Defend? (a) The Governing Principles (i) The Relationship between an Insured and an Insurer [44] The relationship between an insured and an insurer is a contractual one governed primarily by the terms of the insurance policy. The proper instrument to determine the liability of each insurer is the contract itself: Family Insurance Corp. v. Lombard Canada Ltd. , 2002 SCC 48, [2002] 2 S.C.R. 695, at paras. 16-18 and Van Huizen v. Trisura Guarantee Insurance Company , 2020 ONCA 222. [45] The language o f the policy is construed in accordance with the usual rules of construction rather than inferred "expectations" not apparent on a fair reading of the document. This is particularly so in the case of commercial insurance policies involving sophisticated parties. In so doing, the insurer must explicitly state the basis on which coverage may be limited: Hanis v. Teevan , 2008 ONCA 678, 92 O.R. (3d) 594, at para. 22, leave to appeal refused, [2008] S.C.C.A. No. 504. (ii) The Duty to Defend Claims [46] An insurer has a duty to defend where there is a “mere possibility” that the true nature of the pleaded claim, if proven at trial, falls within coverage and would trigger the insurer’s duty to indemnify: Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada , 2010 SCC 33, [2010] 2 S.C.R. 245, at para. 19. [47] If the pleadings allege facts which, if true, would require the insurer to indemnify the insured for the claim, then the insurer is obliged to provide a defence, even though the actual facts may differ from the allegations in the statement of claim: Monenco Ltd. v. Commonwealth Insurance Co. , 2001 SCC 49 , [2001] 2 S.C.R. 699 , at para. 28; Alie v. Bertrand & Frère Construction Company Limited (2002) , 62 O.R. (3d) 345 (C.A.) , at para. 182, leave to appeal refused, [2003] S.C.C.A. No. 48. [48] In Hanis , at para. 23, Doherty J.A. held that. I see no unfairness to the insurer in holding it responsible for all reasonable costs related to the defence of covered claims if that is what is provided for by the language of the policy. If the insurer has contracted to cover all defence costs relating to a claim, those costs do not increase because they also assist the insured in the defence of an uncovered claim. The insurer's exposure for liability for defence costs is not increased. Similarly, the insured receives nothing more than what it bargained for -- payment of all defence costs related to a covered claim. [Emphasis added.] [49] However, an insurer is not obligated to pay costs incurred solely to defend uncovered claims: Hanis , at para. 25. (iii) Primary and Excess Coverage [50] In Trenton Cold Storage v. St. Paul Fire & Marine (2001), 199 D.L.R. (4th) 654 (Ont. C.A.), at para. 24, this court explained the difference between primary and excess insurance. Where there is primary insurance coverage, liability attaches immediately upon the happening of the occurrence that gives rise to the liability. An excess policy, on the other hand, is one that provides that the insurer is liable for the excess above and beyond that collected on primary insurance. [51] Determining priority for overlapping coverage requires both policies to cover the same risk. An excess policy is excess to the claims covered in the primary policy: Family Insurance , at para. 15. [52] Where there is both primary and excess insurance coverage, the limits of the primary insurance must be exhausted before the primary carrier has a right to require the excess carrier to contribute to a settlement. The remote position of an excess carrier greatly reduces its chance of exposure to a loss: Trenton Cold Storage , at para. 24, citing with approval the explanation in St. Paul Mercury Insurance Co. v. Lexington Insurance Company , 78 F. 3 d. 202 (5th Cir. 1996) at footnote 23, quoting from Emscor Mfg., Inc. v. Alliance Ins. Group , 879 S.W.2d 894 at 903 (Tex. App. 1994), writ denied , at 903. (b) Application of the Law to the Facts in this Case (i) The Parties’ Positions [53] There is no dispute that the AIG policy covers the City against all liability with respect to the operations of Hockey Canada and Waxers, that the AIG policy is a primary insurance policy, and that AIG has a duty to defend the City against claims which fall within the scope of its policy. [54] However, AIG argues that Lloyd’s is also a primary insurer on the claims covered by the AIG policy and the only insurer who is liable to indemnify the City against other claims in the action. As a result, Lloyd’s also owes a duty to defend. [55] In response, Lloyd’s and the City argue that AIG is the primary insurer on all of the claims in the action and that Lloyd’s is an excess insurer only. They contend that the decision of the British Columbia Court of Appeal in Saanich (District) v. Aviva Insurance Company of Canada , 2011 BCCA 391, 23 B.C.L.R. (5th) 272, (although that case dealt with a dispute between an insurer and an insured not two insurers) supports their submission that the language in the AIG policy regarding coverage for the additional insured – “only in respect of the operations of the named insured” – is broad enough to cover all claims alleged against the City. As well, because the claimed amount in the underlying action – $150,000 – falls well within AIG’s policy limits, they claim there is no duty to indemnify under the Lloyd’s policy and therefore no duty to defend. (ii) The Lloyd’s Policy [56] The Lloyd’s policy covers the City for all claims of bodily injury, personal injury or property damage “caused by an Occurrence during the Policy Period”. [57] The only limitation in the Lloyd’s policy is that: The Insurer shall not be liable if at the time of any accident or occurrence covered by this Policy, there is any other insurance which would have attached if this insurance had not been effected, except that this insurance shall apply only as excess and in no event as contributing insurance and then only after all such other insurance has been exhausted. [58] This provision seems to provide that if: a) at the time of the accident; b) the claim is covered by the Lloyd’s policy; and c) another insurance policy would have attached to cover all or part of the claim had the Lloyd’s policy not been in place, Lloyd’s is not liable except as an excess insurer such that it has an obligation to contribute only after all other insurance has been exhausted. [59] In this case, at the time of the accident, the claim was covered by the Lloyd’s policy and the AIG policy would have attached to cover part of the claim had the Lloyd’s policy not been in place. [60] Therefore, to the extent but only to the extent that claims would be covered by the AIG policy, Lloyd’s would be an excess insurer with respect to those claims. [61] AIG refers to the case of State Farm Fire and Casualty Co. v. Royal Insurance of Canada (1998), 115 O.A.C. 388 (C.A.) , where a similar clause was held not to be an excess insurance policy clause. [62] It is not necessary to address the conclusion in this brief endorsement in interpreting the Lloyd’s provision because in this case , unlike State Farm Fire and Casualty Co. , there are some claims in the underlying action which may not be covered by the AIG policy and may only be covered by the Lloyd’s policy. [63] In any event, I note that the State Farm Fire and Casualty Co. decision appears to have been made without the benefit of two other decisions – McGeough v. Stay ‘N Save Motor Inns Inc. (1994), 92 B.C.L.R. (2d) 288 (C.A.), and Gagnon v. Insurance Company of North America and Industrial Acceptance Co. Ltd. (1967), 64 D.L.R. (2d) 355 (Que. C.A.), aff’d on a different point, [1969] S.C.R. 824 – that interpreted similar policy language and adopted a different conclusion, one that seems more consistent with the plain meaning of the words in the provision. [64] I conclude therefore , that Lloyd’s has a duty to defend the City against those claims in the action not covered by the AIG policy . The parties are free to seek a final determination of the issue of coverage for the portion of the claim covered by the AIG policy, including the applicability, if any, of the reasoning of the British Columbia Court of Appeal in Saanich to the interpretation of the additional insured provision in the AIG policy, upon final resolution of the action and apportionment of liability. (iii) Lloyd’s Duty to Defend [65] Lloyd’s has a duty to defend the City in respect of all claims of bodily injury, personal injury or property damage caused by “an Occurrence”. [66] The AIG policy only covers the City for “liability in respect of [Hockey Canada and Waxers’] operations”. AIG expressly limited its obligation as “[n]o other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for”. All other occurrences that cause bodily injury, personal injury or property damage are not covered by the AIG policy but are covered by the Lloyd’s policy. [67] Thus, for example, the alleged failure on the part of the City to “ensure the reasonable safety of spectators through the use of reasonable safety measures, including a net around the rink to prevent hockey pucks from striking spectators” and the failure to “put into place proper and sufficient systems for the safety of spectators” may be covered by the Lloyd’s policy but may not be covered under the AIG policy. [68] As a result, both AIG and Lloyd’s have a duty to defend. [69] This conclusion is consistent with the decision of this court in Carneiro v. Durham (Regional Municipality) , 2015 ONCA 909 , 55 C.C.L.I. (5th) 1. [1] This court held, at para. 13, that: Durham was an additional insured under Zurich’s policy. The policy contained an unqualified promise to defend the insured for actions covered by the policy. Zurich is therefore obligated to pay the reasonable costs of Durham’s defence of covered claim , even if that defence furthers the defence of uncovered claims. However, it is not obligated to pay costs related solely to the defence of uncovered claims : Hanis v. Teevan , 2008 ONCA 678, 92 O.R. (3d) 594, at para. 2. [Emphasis added.] [70] In response, Lloyd’s and the City submit that there is an exclusion in the Lloyd’s policy that absolves Lloyd’s of the duty to defend. It does not. [71] The words in the Lloyd’s policy: This Policy does not apply directly or indirectly to … any liability of the Insured [City] … to any obligation to share damages with or repay someone else who must pay damages because of Bodily Injury[.] refer to the City assuming an obligation for a third party’s actions, not a third party (Waxers) agreeing to indemnify the City for the third party’s actions. [72] Lastly, while the $100,000 deductible in the Lloyd’s policy may affect the sum Lloyd’s is required to pay out to the insured City upon final resolution of the claim, the deductible does not affect the duty to defend the action based on the wording of the policy. (c) Conclusion [73] AIG is the primary insurer for claims resulting in bodily injury or property damage arising from the operations of Hockey Canada and Waxers up to the $5 million policy limit because the AIG policy contains no excess provision: Progressive Homes . The $150,000 claim falls within AIG’s policy limit. [74] To the extent the AIG and Lloyd’s policies cover the same claims, AIG has a duty to defend up to its policy limit, and Lloyd’s may be an excess insurer. [75] However, at a minimum, Lloyd’s owes a duty to defend the City against claims which may fall outside the scope of the AIG policy and which fall within the scope of its own policy. [76] The fact that AIG has a duty to defend the City does not, by itself, excuse another insurer from its duty to defend: Unger (Litigation guardian of) v. Unger (2004), 68 O.R. (3d) 257 (C.A.), at para. 10. Lloyd’s also has a duty to defend. [77] Therefore, the application judge’s determination that only AIG has the duty to defend the action is incorrect. THE SECOND ISSUE: MUST LLOYD’S PAY THE ONGOING COSTS OF DEFENDING THE CLAIM? (a) The Governing Principles [78] Where two insurers have an obligation to defend the same claim, the insured is entitled to select the policy under which to claim indemnity, subject to any conditions in the policy to the contrary: Family Insurance , at paras. 14-15. [79] However, where both insurers are responsible to defend and one is selected by the insured to assume the defence, it may be inequitable for one insurer to pay all costs and the other to pay nothing unless for example, there is no realistic chance the policy would be reached by the claim: Alie . As a result, the insurer selected by the insured to defend the claim may be entitled to contribution from all other insurers who have a concurrent duty to defend the insured. [80] As noted by the Supreme Court in Family Insurance , at paras. 14-15: It is a well-established principle of insurance law that where an insured holds more than one policy of insurance that covers the same risk, the insured may never recover more than the amount of the full loss but is entitled to select the policy under which to claim indemnity, subject to any conditions to the contrary. The selected insurer, in turn, is entitled to contribution from all other insurers who have covered the same risk. This doctrine of equitable contribution among insurers is founded on the general principle that parties under a coordinate liability to make good a loss must share that burden pro rata . It finds its historic articulation in the words of Lord Mansfield C.J. in Godin v. London Assurance Co. (1758), 1 Burr. 489, 97 E.R. 419 (K.B.), at p. 420: If the insured is to receive but one satisfaction, natural justice says that the several insurers shall all of them contribute pro rata, to satisfy that loss against which they have all insured. [Emphasis added.] [81] Similarly, in Broadhurst & Ball v. American Home Assurance Co. (1991), 1 O.R. (3d) 225 (C.A.), at p. 241, leave to appeal refused, [1991] S.C.C.A. No. 55, the court held that where two insurers have a concurrent obligation to defend: [T]heir respective obligations cannot be a matter of contract. Nonetheless, their obligations should be subject to and governed by the principles of equity and good conscience, which, in my opinion, dictate that the costs of litigation should be equitably distributed between them. [82] The full and early participation of all insurers who are potentially liable promotes settlement and expedites the trial process: Alie , at para. 201. The insurers have the same interest in minimizing their exposure by conducting the best defence possible. [83] The allocation of defence costs as among insurers who have a concurrent obligation to defend is essentially a matter of fairness as among those insurers. As such, the allocation of costs is not an exact science and an application or trial judge’s determination is owed considerable deference: Alie , at para. 235; Broadhurst , at p. 241. (b) Application of the Law to the Facts in This Case [84] Each of AIG and Lloyd’s has a duty to defend at least some of the claims in the action so each is responsible to contribute to the defence costs of the City: Aquatech Logistics et al. v. Lombard Insurance et al. , 2015 ONSC 5858, 55 C.C.L.I. (5th) 326, at paras. 43-47. As there is no contract between them with respect to the defence, their respective obligations should be governed by the principles of equity. [85] On the facts of this case, the respective risk of the two insurers is real but the level of risk cannot yet be ascertained given the early stage of the proceedings and the claim does not allow for a precise allocation of defence costs. [86] The usual deference does not apply to the application judge’s decision in this case as her analysis is premised on the faulty assumption that Lloyd’s has no duty to defend and her analysis does not address the central issue of fairness and equity. [87] In these circumstances where there are two primary insurers, the Lloyd’s policy is more comprehensive than AIG’s, and there is a concurrent duty to defend, the fairest and most equitable allocation of defence costs would seem to be to require each of AIG and Lloyd’s to pay an equal share of the defence costs pending final disposition of the action and the final determination of the allocation of defence costs: General Accident Assurance Co. of Canada v. Ontario Provincial Police Commissioner (1988), 64 O.R. (2d) 321 (H.C.), at p. 325, cited approvingly in Reeb v. The Guarantee Company of North America , 2019 ONCA 862, at para. 11; General Electric Canada Co. v. Aviva Canada Inc. , 2010 ONSC 6806, 10 C.C.L.I. (5th) 16, at para. 82, aff’d 2012 ONCA 525, 10 C.C.L.I. (5th) 42. THE THIRD ISSUE: DOES AIG HAVE THE RIGHT TO PARTICIPATE IN THE DEFENCE INCLUDING THE RIGHT TO RETAIN AND INSTRUCT COUNSEL? (a) The Governing Principles [88] In Brockton (Municipality) v. Frank Cowan Co. (2002), 57 O.R. (3d) 447 (C.A.), at para. 31, this court explained that an insurer who has a duty to defend an action also has a prima facie right to control the conduct of that defence. [89] In order to remove the insurer’s contractual right to “defend and control the defence of the litigation,” there must be a “reasonable apprehension of conflict of interest on the part of counsel appointed by the insurer”: Brockton , at para. 43. [90] In Brockton , at para. 43, this court held that: The balance is between the insured’s right to a full and fair defence of the civil action against it and the insurer’s right to control that defence because of its potential ultimate obligation to indemnify. The question is whether counsel’s mandate from the insurer can reasonably be said to conflict with his mandate to defend the insured in the civil action. Until that point is reached, the insured’s right to a defence and the insurer’s right to control that defence can satisfactorily co-exist. [91] Counsel defending the action should have the confidence of the insurer who is obliged to pay the legal fees and may have to pay a substantial judgment on behalf of the insured. Counsel must also meet their legal and ethical obligation to represent and protect the interests of the insured: Hoang v. Vincentini , 2015 ONCA 780, 57 C.C.L.I. (5th) 119, at para. 14; Mallory v. Werkmann Estate , 2015 ONCA 71, 330 O.A.C. 337, at para. 29. [92] The mere fact that an insurer has reserved its rights on coverage does not cause the insurer to lose its right to control the defence and appoint counsel. The question is whether the circumstances of the case create a reasonable apprehension of conflict of interest if that counsel were to act for both the insurer and the insured in defending the action : Brockton , at paras. 39-40, 43, citing Zurich of Canada v. Renaud & Jacob , [1996] R.J.Q. 2160 (C.A.) at pp. 2168-69, per Lebel J.A. (as he then was) . [93] The onus is on the insured to establish a reasonable apprehension of conflict of interest on the part of the insurer: Brockton , at para. 43; Wal-Mart v. Intact , 2016 ONSC 4971, 133 O.R. (3d) 716; and Brookfield Johnson Controls Canada LP v. Continental Casualty Company , 2017 ONSC 5978. (b) Application of the Law to the Facts in This Case [94] In this case, AIG’s policy provides that AIG has a duty and right to defend the action. Lloyd’s policy also provides that it has a duty and right to defend the action. The insured elected to have AIG defend the action. [95] Lloyd’s and the City are represented by the same counsel on this appeal. Counsel claims that if AIG retains and instructs counsel to defend the claims against the City, that counsel will have a strong incentive to “settle the claim as quickly as possible as against the City” or “[a]t the very least … to try to prove that only the City is liable for the Plaintiff’s damages by way of any claims falling outside of what AIG believes is the scope of coverage afforded by the AIG Policy”, because the AIG policy only covers occurrences arising from the operations of Hockey Canada and Waxers. [96] This they say, creates a reasonable apprehension of conflict of interest in counsel retained and instructed by AIG. [97] However, counsel for AIG argues that there is also a reasonable apprehension that counsel retained and instructed by Lloyd’s and/or the City would also find themselves in a conflict of interest. [98] The issue in this case is not whether the City has coverage for some or all of the claims in the action but which of two insurers is responsible to cover which claims in accordance with their respective policies of insurance. Consequently, cases which address the question of whether there is coverage for all or part of a claim are distinguishable. See for example: Pabla v. City of Mississauga , 2015 ONSC 5156; Glassford v. TD Home & Auto Insurance Co. (2009), 94 O.R. (3d) 630 (S.C.); and Lefeuvre v. Boekee , 2017 ONSC 6874, 74 C.C.L.I. (5th) 174. [99] The AIG policy only covers claims in respect of the operations of Hockey Canada and Waxers, while the Lloyd’s policy covers all occurrences subject to its $100,000 deductible, which is lower than the amount claimed. [100] As such, if Lloyd’s were to retain and instruct counsel, counsel might seek to have responsibility for any wrongdoing attributed to the operations of Hockey Canada or Waxers rather than the City, so that any damages are either shared by or fully encompassed by AIG’s policy. [101] Similarly, if the City were to retain and instruct counsel, the City has an interest in having claims paid by AIG rather than Lloyd’s, as any payment made by Lloyd’s might result in an increase in premiums paid by the City pursuant to the Lloyd’s policy. The Lloyd’s policy also has a $100,000 deductible, while the AIG policy does not. The City has already aligned its interest with Lloyd’s, as evidenced by the fact that one counsel represents them both on this appeal. [102] It would appear that each of AIG, Lloyd’s and the City have conflicting interests as follows: a) AIG has an interest in having liability determined on the basis of the City’s actions alone so that AIG is not responsible for paying any damages. This is because its policy only covers the incidents that arise out of the operations of Hockey Canada or Waxers and because it is also defending Hockey Canada and Waxers in the main action; b) Lloyd’s has an interest in having liability determined on the basis that the claim arose from the operations of Hockey Canada or Waxers and not from the actions of the City to minimize its exposure to the losses; and c) The City also has an interest in having liability determined on the basis that the claim arose from the operations of Hockey Canada or Waxers so that the City’s premiums do not rise and so that they do not have to assume the full $100,000 deductible in the Lloyd’s policy. [103] The court must endeavour to balance the insured’s right to a full and fair defence of the civil action with the insurers’ right to control the defence such that AIG does not abuse its right to defend and settle the claim to the detriment of Lloyd’s and/or the City: Brockton , at para. 43. [104] In situations such as this, it is important to have in place mechanisms to minimize conflicts of interest and provide meaningful protections to the party not having control of the defence: PCL Constructors Canada Inc. v. Lumbermens Mutual Casualty Company Kemper Canada (2009) , 76 C.C.L.I. (4th) 259 (Ont. S.C.), at para. 89. [105] AIG suggests implementing a “split file” verbal protocol to lessen the concerns and provide protection to the insured and Lloyd’s. This would ensure that potentially conflicting interests insured by one policy are handled separately and that the separate claims be dealt with by separate counsel. [106] AIG’s proposal is as follows: a) The City’s defence as an additional insured would be handled and screened internally so that Hockey Canada and Waxers’ information is held separately and kept confidential from information in respect of the City claim; b) Physical files would be scanned and converted into digital format upon receipt; c) A file subject to the “split file” protocol would be digitally marked confidential and would not be accessed by any other handler, including the handler responsible for the defence of another adverse insured party. This is to protect confidential information and avoid any perceived or actual “party-based” conflict of interest between the insured interests; d) The handlers for the City defence would be different from those handling the Hockey Canada defence. Similarly, the handlers for coverage issues would be different from the handlers for liability issues; e) A claims handler in breach of the “split file” protocol would be subject to disciplinary action and could be dismissed if confidential information is disclosed; f) AIG agrees to work cooperatively with Lloyd’s to agree upon, appoint/instruct, and pay for an independent defence counsel. That counsel will be different from AIG’s coverage counsel; and g) AIG commits to sharing funding costs incurred in the City’s defence. [107] Lloyd’s and the City by contrast, make no proposal save that AIG fund the defence but have no role in retaining or instructing counsel. [108] The application judge erred when she determined that there were no measures that could alleviate the City’s concerns short of removing AIG from the defence entirely. [109] There is no reason to believe that appropriate counsel who has an ethical obligation to defend the insured properly, will not conduct the defence in the best interest of the insured. There is also no evidence that any of the handlers have misused any confidential information or, with appropriate disciplinary measures put in place, will misuse confidential information. [110] I note that one of the key reasons cited by the application judge for not accepting the proposed protocol was that no disciplinary measures would be taken against persons at AIG who contravened the protocol. [111] The application judge was mistaken. [112] The AIG handler confirmed that any person contravening the protocol would be met with disciplinary action that could lead to dismissal. [113] The AIG proposal attempts to minimize the risk of harm by creating a system to protect confidential information and separate files, enable all three parties to participate in retaining, instructing and receiving instructions from counsel and provide recourse against those who do not adhere to the system. [114] However, if AIG is to retain its right to participate in the defence, a few additional terms are warranted. This court imposes these additional obligations in accordance with AIG’s acknowledgment of the “balanced screen” approach set out in PCL Constructors Canada and its powers under the Courts of Justice Act , R.S.O. 1990, c. C. 43, s. 134(1)(a) as follows: a) The terms of this proposal must be provided in writing to those involved in managing the defence; b) Counsel appointed would be instructed to fully and promptly inform the City and Lloyd’s of all steps taken in the defence of the litigation against the City such that each would be in a position to monitor the defence effectively and address any concerns; c) Defence counsel must have no discussion about the case with either coverage counsel; and d) Counsel must provide identical and concurrent reports to the insured and both insurers regarding the defence of the main action. UPS Supply Chain Solutions, Inc. v. Airon HVAC Service Ltd. , 2015 ONSC 3104, 49 C.C.L.I. (5th) 201, at para. 31; PCL Constructors Canada , at para. 93. [115] This will allow AIG to participate in the defence and resolution of the action as set out in the AIG policy, while at the same time, allowing Lloyd’s and the City the opportunity to know of and address concerns in a timely manner: PCL Constructors Canada , at para. 90. [116] Given the multiple conflicting interests, this protocol and the safeguards it provides, albeit not without any concerns, recognize the legitimate interests of both the insured and the insurers and address the concern that AIG may abuse its right to defend and settle to the prejudice of the insured. SUMMARY OF CONCLUSIONS [117] Each of AIG and Lloyd’s has a duty to defend the action. [118] Each must therefore contribute to the ongoing cost of the defence. [119] The apportionment of costs cannot yet be determined. AIG and Lloyd’s are required to share the cost of the defence equally, subject to a right to seek a re-apportionment of the costs upon final resolution of the action. [120] AIG and Lloyd’s may also jointly retain and instruct counsel provided the above steps are implemented to safeguard the interests of all parties. This order is without prejudice to the parties’ right to move for directions from the Superior Court should they be unable to agree on the conduct of the defence. [121] In cases such as this where there is a dispute among the insurers and the City, it is incumbent upon all parties to work with one another and to exchange ideas in respect of a proposed protocol. Insurers and sophisticated parties like the City are best placed to determine what systems could work best. [122] Unless there is an agreement among the parties, all parties should make submissions in respect of their proposed protocol. [123] For the above reasons, the appeal is allowed. [124] On agreement of the parties, the costs order in the proceedings below is set aside. Costs of this appeal are awarded to AIG in the amount of $15,000, inclusive of HST. Released: March 31, 2020 (“D.D.”) “J.A. Thorburn J.A.” “I agree. Doherty J.A.” “I agree. David Brown J.A.” [1] Contrary to the respondents’ assertion, Carneiro does not stand for the proposition that whenever one aspect of a claim is covered by the policy, all costs of the defence must be borne by that insurer.

COURT OF APPEAL FOR ONTARIO CITATION: Miaskowski v. MacIntyre, 2020 ONCA 178 DATE: 20200309 DOCKET: C66946 Feldman, Brown and Zarnett JJ.A. BETWEEN Richard Miaskowski Applicant (Respondent) and Jacqueline MacIntyre Respondent (Appellant) Michael Stangarone and Stephen Kirby, for the appellant Anita Kania, for the respondent Heard: January 21, 2020 On appeal from the order of Justice Gordon D. Lemon of the Superior Court of Justice, dated April 9, 2019, with reasons reported at 2019 ONSC 1872, 24 R.F.L. (8th) 112. Feldman J.A.: I. Introduction [1] During their marriage, the parties separated twice. [2] Two and a half years after the first separation, they entered into a separation agreement that contained a reconciliation clause that preserved the separation agreement if the reconciliation lasted fewer than 90 days, but voided the separation agreement if they reconciled for more than 90 days. As an exception to the voiding provision, “any payment, conveyance or act” done under the agreement would not be invalidated. [3] The parties remained married and eventually reconciled four years after they signed the separation agreement. They then remained together for almost nine more years. [4] The issue on the second separation is the extent of the wife’s entitlement to share the value of the husband’s Canada Post pension, based on the effect of the reconciliation provision of the separation agreement and the interpretation of two clauses in that agreement: the waiver by the wife of her rights to share in the husband’s pension, and the payment exception to the clause that makes the separation agreement void on reconciliation for more than 90 days. II. Facts [5] The parties married on October 16, 1997 and separated for the first time on July 22, 1999. They entered into a separation agreement dated January 18, 2002. [6] The separation agreement contains a number of releases including a release by the wife of her rights in the husband’s Canada Post pension: 19.3   The wife specifically releases any rights or claims she may have to a share of the husband’s Canada Post pension. [7] The separation agreement also has a provision that preserves the agreement in the event of reconciliation and cohabitation for less than 90 days and voids it if the parties reconcile for a longer period. This reconciliation clause provides: 25.1   If at any future time the parties, with their mutual consent, cohabit as husband and wife for a period of or periods totalling not more than ninety days with reconciliation as the primary purpose of the cohabitation, the provisions contained in this agreement will not be affected except as provided in this paragraph. If the parties, with their mutual consent, cohabit as husband and wife for a period or periods totalling more than ninety days with reconciliation as the primary purpose of the cohabitation, the provisions contained in this agreement will become void, except that nothing in this paragraph will affect or invalidate any payment, conveyance or act made or done pursuant to the provisions in this agreement. [8] Following the first separation, both parties had relationships with new partners, but they never divorced each other. After the new relationships ended, the parties reconciled as of March 1, 2006 and remained together until they separated for the second time on December 7, 2014. [9] The main issue at trial and the only issue on this appeal is the extent of the appellant wife’s entitlement to share in the value of the respondent husband’s Canada Post pension. The respondent does not take the position that the appellant has no claim to any share in that pension. Rather, the parties placed two options before the court at trial for the commencement date from which to value the pension: either the appellant is entitled to an equalization payment based on the value of the respondent’s pension from the date of their marriage in 1997 to the date of the second separation ($272,161.55), or her entitlement is based on the value of the pension from the date of reconciliation in 2006 until the second separation ($139,356.14). [10] The issue turns on the proper interpretation of the separation agreement and whether the release of the pension rights was voided when the parties reconciled. If the appellant’s release of any claim to the respondent’s pension was voided when the parties reconciled and cohabited for more than 90 days, then the value of the respondent’s pension should be calculated using the date of marriage as the starting date. If, on the other hand, the appellant’s release of any claim to the respondent’s pension survived the parties’ reconciliation and cohabitation for more than 90 days, then in light of the two options put forward, the value of his pension would be calculated using the date of reconciliation as the starting date. [1] [11] The trial judge held that the specific pension release clause was not voided by the parties’ reconciliation. He referred to this court’s decision in Sydor v. Sydor (2003), 178 O.A.C. 155 (C.A.), in which the court explained, at para. 22, the common law rule that a separation agreement is void upon reconciliation “subject to a specific clause in the agreement that would override the common law or a clause that would be implied from the agreement that the intent of the parties was that transactions carried out under the agreement will remain in place”. Relying on para. 24 of Sydor , which states that “a specific release of all rights to a particular property can be viewed as evidence that the parties considered the disposition of that property final and binding, regardless of what may occur in the future”, the trial judge found that the appellant’s release of any claim or right to the respondent’s pension was the kind of “specific release” referred to in Sydor and survived her reconciliation with the respondent: at para. 24. He also found there was no evidence of the parties’ conduct that would set aside the clear terms of the agreement, and those terms were therefore a bar to the appellant’s claim to share in the respondent’s pension prior to their reconciliation: at para. 43. [12] On appeal, the appellant argues that the trial judge erred in three ways. 1) The trial judge failed to consider the Pension Benefits Act , R.S.O. 1990, c. P.8, and the applicable regulations, which indicate that the “starting date” for a pension valuation in the family law context is the date of marriage. 2) The trial judge failed to consider the principles of contractual interpretation, which indicate that the objective intention of the parties was to void the releases upon reconciliation. Specifically, the trial judge erred in relying on Sydor because the agreement at issue in that case contained no clause dealing expressly with reconciliation, and the agreement at issue in this case does. 3) The trial judge erred in relying on inadmissible parol evidence and evidence of the subsequent conduct of the parties to determine the subjective intention of the parties. [13] The respondent’s position is that the decision below should stand, and that the general voiding provision following 90 days of cohabitation and reconciliation cannot be interpreted as applying to the specific pension release. III. Analysis [14] While the appellant sought to rely on the Pension Benefits Act on the appeal, the court was advised that no such argument was made at trial. As noted above, the parties put two alternative positions to the trial judge based on the proper interpretation of the provisions of the separation agreement. The issue on appeal is whether he made a palpable and overriding error in interpreting and applying those provisions. (1) Reasons of the Trial Judge [15] The trial judge made his determinative finding at para. 24, as follows: In my view, the releases in the agreement executed by the parties in the 2002 agreement are in the nature of a “specific release” considered in Sydor . The parties had made specific transfers and acted on the basis of those releases. Pursuant to the terms of their agreement, Ms. MacIntyre had already received her share of the pension, or, at least, was satisfied with that amount. The equalization payment to her was the sort of “payment, conveyance or act” envisioned by the agreement. By the terms of the agreement, Ms. MacIntyre had released her interest in Mr. Miaskowski’s pension and that release survived the reconciliation. [16] Without so stating explicitly, the trial judge clearly recognized that the parties had reconciled for more than 90 days, and that the provisions of the separation agreement were therefore voided unless the exception applied. I repeat the exception here: except that nothing in this paragraph will affect or invalidate any payment, conveyance or act made or done pursuant to the provisions in this agreement. [17] The trial judge found that the exception applied to the equalization payment to the wife because the payment either included her share of the value of the respondent’s Canada Post pension or an amount that she was satisfied with. He also found that the release of the pension entitlement in the separation agreement survived the reconciliation as it is the type of specific release referred to in Sydor . (2) The Effect of the Reconciliation Clause [18] With respect, the trial judge erred in his interpretation and application of the separation agreement by failing to give effect to the reconciliation clause that voids the agreement upon reconciliation for more than 90 days. [19] As this court stated in Sydor , at common law, the effect of reconciliation of separated spouses is to void the separation agreement subject to (a) a clause in the agreement that provides to the contrary or (b) a clause that indicates the intent of the parties that transactions carried out under the agreement will remain in place: at para. 22. [20] In this case, unlike in Sydor , the separation agreement provides for what will occur if the parties reconcile. By preserving the agreement if the reconciliation is very short-lived, it encourages the parties to attempt to reconcile without fear of the effect of the common law undoing the separation agreement. However, where the reconciliation is successful and lasts for more than 90 days, it essentially confirms the common law result. That is, in the event of a successful reconciliation, the separation agreement is void, except that payments, conveyances or acts that have been completed to carry out the agreement will not be invalidated. [21] Here, the reconciliation lasted for almost nine years. Therefore, the separation agreement is void, except that “any payment, conveyance or act” completed under the agreement will not be invalidated. (3) Two Errors [22] In my view, the trial judge made two errors in his reasons. The first was that he misapprehended the evidence regarding whether there was any “payment” for the value of the pension to carry out the terms of the separation agreement. In fact, there was no such payment and therefore the exception to the voiding provision did not apply. [23] The second error was that by finding that the pension release was not voided by the parties’ reconciliation, the trial judge failed to give effect to the express term of the reconciliation clause that provides that the separation agreement becomes void if the parties reconcile for more than 90 days. (i) Misapprehension of the evidence [24] The trial judge’s conclusion was based on his finding that the equalization payment made to the wife under the separation agreement included the value of her share of the pension up to the date of separation. However, the evidence was clear that no portion of the equalization payment that the appellant received related to the value of the husband’s Canada Post pension. [25] The appellant testified that the respondent had only recently begun to contribute to his pension at Canada Post shortly before the original separation, and because there was so little in the plan, the amount of the potential division of that asset did not justify the cost of having it valued. The agreement recites in paras. 8.1 and 10.1 that the equalization payments were the amounts held in trust from the sale of the matrimonial home. [26] It is clear from the terms of the agreement, substantiated by the undisputed evidence of the appellant, that no amount was paid to the appellant in respect of any pension entitlement as part of the equalization payment. Therefore, the trial judge’s statement, at para. 24, that “[t]he equalization payment to her was the sort of ‘payment, conveyance or act’ envisioned by the agreement” constitutes a palpable and overriding error in the apprehension of the evidence and the application of the terms of the agreement. [27] While the appellant was satisfied to receive no share in the respondent’s pension and, as part of the overall bargain made on separation, to release all future  rights to share the value of the respondent’s pension, voiding the release of the appellant’s future pension rights on reconciliation does not invalidate any conveyance, payment, or act that was made or done under the agreement. No money could be returned because no money was paid. Accordingly, on the facts, the voiding provision in the reconciliation clause, and not its exception, applied to the pension release. (ii) Mistaken Interpretation of the Reconciliation Clause of the Agreement [28] The trial judge’s second error involves the intent and effect of the provision that voids the separation agreement when the parties reconcile for more than 90 days. [29] In interpreting the agreement, the court strives to discern the intention of the parties from the language of the separation agreement: Bebenek v. Bebenek (1979), 24 O.R. (2d) 385 (C.A.). The language of the voiding clause in the separation agreement in this appeal clearly demonstrates the intent on reconciliation to return the parties to the position they were in prior to separation. The bargain they made on separation, whereby they released each other from future rights and obligations, is set aside and becomes void. The parties are meant to regain all the rights they had as spouses that were bargained away in the separation agreement. [30] But the clause also provides that it is not necessary, in order to give effect to that intent, to undo conveyances or transfers that have been completed. For example, it may not be in the spouses’ control to obtain a reconveyance of a property that has been sold or transferred to a third party. Nevertheless, the fact that such a conveyance cannot be set aside will not derogate from the parties’ intention that the separation agreement become void on reconciliation for more than 90 days. [31] In this case, the parties focused on transfers between the spouses and the potential for unfairness under the terms of the agreement. In particular, is there potential unfairness if intra-spousal transfers and payments remain in place where the consideration for the transfer was not a payment but just a release of future rights, without also maintaining the release? The concern is that the spouse who receives the payment may ultimately be overcompensated if he or she does not release the other spouse from some corresponding obligation. [32] This concern will arise only exceptionally. Under the equalization of net family property regime established by the Family Law Act , R.S.O. 1990, c. F.3, there will normally be no unfairness because the value of spouses’ net family property is equalized upon separation, subject to specifically identified exceptions. In this way, it will not ordinarily matter in whose name a particular asset is held. Subject to exclusions, all assets are valued on valuation day, and that value is equalized between the spouses so that each party will end up with half the value of the net family property: s. 4. If a one-sided transfer or payment remains in place under the agreement, its effect is neutralized so long as it is included in net family property for the purpose of equalization. [33] Therefore, extrapolating from this case as an example, had the husband paid the wife an amount to represent her share of the value of his Canada Post pension as of the date of the first separation, for example, $10,000, then his funds would have been depleted by $10,000 and hers would have been increased by $10,000. After reconciling and separating again, leaving the transfer of $10,000 in place, the effect of equalization would be to put the parties in the same position as they would have been had the transfer never occurred. That is, absent the transfer, the husband would have had to pay the wife $5,000 by way of equalization. Leaving the transfer in place, the wife now owes the husband $5,000. Either way, the couple’s $10,000 is shared equally between them. The fact that the $10,000 was paid under the separation agreement to represent the value of the respondent’s pension on valuation day becomes irrelevant. On a subsequent separation of the parties, the value of the husband’s pension from the date of the marriage forms part of his net family property. [34] Admittedly, unfairness could potentially arise in certain circumstances where completed transfers remain intact under the terms of the reconciliation clause. For example, by operation of either the defined exclusions from net family property, which are listed at s. 4(2) of the FLA , or the deeming of any otherwise negative net family property to be zero under s. 4(5), the equalization of net family property could fail to neutralize the effect of a completed transfer under the separation agreement. [35] In my view, the solution to any potential unfairness that might arise under these exceptional circumstances will be determined on a case-by-case basis. [36] For example, where it is clear that certain transfers completed under the terms of the agreement correspond to specific releases or payments, it may be appropriate to exclude these items from the net family property under s. 4(2)6. [37] In Sydor , this court had to contend with the completed sale of a property and division of its proceeds under a separation agreement prior to reconciliation. The court held, at para. 27, that: based on the terms of the separation agreement and corroborated by the subsequent conduct of the parties, the trial judge was entitled to find that they intended the disposition of the Edgemore home under the separation agreement, which divided the value between them as of the separation date, to be final and to survive reconciliation. However, there was no basis in the agreement or the evidence to go further and find that the entire agreement was intended to survive a reconciliation and continuation of the marriage. [38] Similarly, in Emery v. Emery (2008), 51 R.F.L. (6th) 294 (Ont. S.C.), a case relied upon by the respondent, the court concluded that the general release in the separation agreement did not survive. However, the release of the husband’s pension that was given specifically as consideration for the wife’s receipt of the net proceeds of the sale of the matrimonial home, was held to remain intact so that on the parties’ subsequent separation, the pension was excluded from the calculation of net family property pursuant to s. 4(2)6 of the FLA . As the court held in that case, “[i]t would not be appropriate to equalize this asset [the pension] a second time”: at para. 64. [39] The respondent submitted that the same result should apply in this case. However, while the pension release in the parties’ separation agreement is described and labelled as a “specific release”, as discussed above, it was not given in exchange for a payment of the wife’s share of the pension. It was instead in the nature of and part of the general release of rights given as part of the overall bargain between the parties. [40] Conversely, where it is clear that a legal transfer of value was completed under the agreement with no corresponding consideration, the presumption of resulting trust may be invoked to allow the transferor to retain his beneficial interest. [41] In other cases, unfairness may be addressed by invoking the unequal division of net family property provision under s. 5(6)(h) of the FLA , which provides: 5 (6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to, (h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. [42] There is no shortage of tools at the court’s disposal to give effect to the spouses’ intentions and address consequences that were clearly unintended. In most cases, the equalization of net family property will neutralize the effect of a voiding clause that nonetheless maintains completed payments and transfers. Where, however, it does not, the specifics of the parties’ bargain will have to be examined and appropriate exclusions defined. [43] Importantly, there is no unfairness in this case. The husband’s position is that the wife should not be entitled to share in the value of his Canada Post pension for the roughly seven-year period during which they were living separate and apart and with other spouses. However, the alleged unfairness does not arise from any transfer completed under the agreement. Instead, it arises from the operation of the FLA , which entitles married spouses to share in net family property so long as they remain legally married. [44] I note that the reconciliation clause used in the separation agreement in this case has been a precedent for over 30 years: see e.g., James C. MacDonald et al. , “Precedents and Principles: A Comprehensive Review of Domestic Contracts”, Canadian Bar Association – Ontario, Continuing Legal Education Program, Family Law for the Specialist, February 7, 1986. In order to clarify the intent of the parties, it may be helpful in future for such reconciliation clauses to address what the parties intend will occur upon reconciliation with respect to specifically contemplated transfers. For example, if the parties intend any transferred property to be treated as property that is to be excluded from the net family property under s. 4(2)6 of the FLA , that should be explicitly provided. (4) Parol Evidence [45] As I have concluded that the trial judge erred in his interpretation and application of the provisions of the separation agreement, it is not necessary to address the parol evidence issue. However, I note that the trial judge concluded his analysis of that evidence by finding that nothing in the parties’ conduct after their reconciliation set aside the terms of the separation agreement: at para. 43. Therefore, any reference to that conduct did not affect the result. IV. DISPOSITION [46] I would allow the appeal and find that no transfer or conveyance was made respecting any entitlement by the appellant to the value of the respondent’s Canada Post pension, the exception to the voiding clause in the separation agreement does not apply, and the release of the appellant’s right to share in the pension is void. As a result, of the two choices proposed by the parties, the appellant is entitled to receive a share of the respondent’s pension from the date of marriage to the date of the second separation. [47] I would order the costs of the appeal to the appellant in the agreed amount of $18,000, inclusive of disbursements and HST, and the costs ordered on the application of $10,000 be paid to the appellant. Released: “K.F.” March 9, 2020 “K. Feldman J.A.” “I agree. David Brown J.A.” “I agree. B. Zarnett J.A.” [1] In oral argument, counsel for the respondent explained that he chose not to take the position that the specific release completely disentitled the appellant to the value of the pension, even though, in her view, that position was open to the respondent.

COURT OF APPEAL FOR ONTARIO CITATION: Moazzani v. Roudechi-Ghias, 2020 ONCA 193 DATE: 20200309 DOCKET: C66719 Tulloch, Benotto and Jamal JJ.A. BETWEEN Hadi Moazzani Plaintiff (Respondent) and Saeid Roudechi-Ghias , Jeffrey Shek and Lloyd Rubinoff Defendants ( Appellant ) Evan L. Tingley, for the appellant Robert B. Cohen and Christopher Selby, for the respondent Heard: March 5, 2020 On appeal from the judgment of Justice Alfred J. O’Marra of the Superior Court of Justice, dated February 19, 2019, with reasons reported at 2019 ONSC 652. REASONS FOR DECISION [1] At the conclusion of the hearing, we dismissed this appeal with reasons to follow. These are our reasons. [2] The appellant appeals the trial judge’s decision to discharge a mortgage registered in favour of the appellant on the respondent’s home. The appellant, who was in a common-law relationship with the respondent’s daughter from about 2007 to late 2010 or early 2011, claimed that in 2009 he loaned the respondent $220,000, secured by a mortgage on the respondent’s home. The respondent claimed that the loan was never advanced. The appellant claimed that the loan was advanced, repaid, and then re-loaned to the family of the appellant’s brother-in-law for the purchase of another property, but continued to be secured by the original mortgage on the respondent’s property. [3] After hearing each side’s versions of events, the trial judge concluded: “I am unable to say I accept one version of events over the other, or to prefer one witness’ evidence over another. Simply put, I do not know who to believe.” He stated: “In deciding this case, all I can do is rely on the documentary evidence”. Based on that evidence, the trial judge made several findings of fact that led him to conclude that the appellant “received over $220,000 in February 2010, an amount sufficient to have discharged the mortgage. He received it as repayment.” Based on “the only credible evidence involving the funds, the transfer records and bank statement,” the trial judge held that when the appellant “received the funds into his account, the mortgage was effectively redeemed.” He therefore ordered the mortgage to be discharged, with each party bearing its own costs of the trial. [4] The appellant asserts that the trial judge erred in finding that the mortgage was redeemed by failing to consider that: (1) the respondent never pleaded that he had redeemed the mortgage; (2) the respondent had no right to redeem the mortgage because more than two years remained in its term and the appellant had taken no enforcement steps; and (3) no witness testified that the respondent had redeemed the mortgage. [5] We would not give effect to these arguments: (1) because the appellant had counterclaimed against the respondent to enforce the mortgage and take possession of the respondent’s home, the issue of whether the mortgage was enforceable or had been redeemed was properly before court; (2) because the appellant admitted, and the court found, that the original mortgage on the respondent’s home had been fully repaid, the natural consequence was that the appellant had effectively waived his right to insist on technical compliance on the mortgage term; and (3) because the trial judge doubted the credibility of each side’s witnesses, he was entitled to base his decision on the documentary evidence. It was within the trial judge’s privileged domain to make the credibility findings he did, and then to rely on the documentary evidence as the only credible evidence to decide the case. Those decisions are entitled to appellate deference. [6] The appeal is dismissed. Costs are payable by the appellant to the respondent in the agreed amount of $20,000, inclusive of taxes and disbursements. “M. Tulloch J.A.” “M.L. Benotto J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Ontario Securities Commission v. Tiffin, 2020 ONCA 217 DATE: 20200316 DOCKET: C66232 Roberts, Harvison Young and Thorburn JJ.A. BETWEEN Ontario Securities Commission Respondent and Daniel Tiffin and Tiffin Financial Corporation Appellants Glen Jennings and Alex Zavaglia, for the appellants Jonathan Feasby and Matthew Britton, for the respondent Heard: October 29, 2019 On appeal from the order of Justice Robert Charney of the Superior Court of Justice dated May 15, 2018, with reasons reported at 2018 ONSC 3047, 142 O.R. (3d) 223, allowing an appeal from the acquittals entered on August 31, 2016, by Justice Joseph F. Kenkel of the Ontario Court of Justice and substituting convictions, and from the sentence imposed on September 26, 2018, with reasons reported at 2018 ONSC 5419. Harvison Young J.A.: A. Overview [1] The appellants, Daniel Tiffin and his company Tiffin Financial Corporation (“TFC”), borrowed money from six people who were clients and friends in amounts which totalled $700,000. The appellants provided them with promissory notes evidencing the debt. At the time of the loans, Tiffin was under significant financial pressure and was subject to a cease trading order issued by the Ontario Securities Commission (“OSC”). [2] With respect to these promissory notes, Tiffin and TFC were charged by the OSC with three provincial offences pursuant to s. 122(1)(c) of the Securities Act , R.S.O. 1990, c. S.5, namely (i) trading in securities without registration; (ii) distributing securities without filing a prospectus; and (iii) trading in securities while prohibited. [3] The central issue on this appeal is whether these notes were securities within the definition of the Act. The trial judge held that they were not, applying the test set out in Reves v. Ernst & Young (1990), 494 U.S. 56. On appeal to the Superior Court of Justice, the appeal judge found that the notes were securities. He declined to apply the American “family resemblance” test from Reves in interpreting the term security under the Act and concluded that the trial judge erred in finding that the notes were not securities. [4] For the following reasons, I would dismiss the appeal from these convictions. In brief, the definition of security in the Act is sufficiently broad to capture the promissory notes at issue here. While American law is a useful source of persuasive precedent in the securities context, the family resemblance test applied by the trial judge does not assist in the interpretation of the Act. The definition of security adopted by the appeal judge is supported both by the plain text of the Act and the logic of the regulatory scheme. [5] In particular, the Act contains broad definitions coupled with equally broad exemptions which relieve vast numbers of transactions involving securities from compliance with its requirements. The appellants ask us to import the family resemblance test, not because of an absence of applicable exemptions to the transaction at issue, but rather because pursuant to an administrative order (that is, the cease trade order) they could not rely on these exemptions. That quarrel is properly directed at the order, not the definition of security in the Act, and, in the absence of any legislative intent for the kind of test developed in the United States, I decline to impose such a test so that the appellants can escape liability under the securities regime in this province. [6] I would, however, allow the sentence appeal. While it was not an error in law to impose a custodial sentence per se, the sentence arrived at by the sentencing judge is demonstrably unfit. B. BACKGROUND [7] Tiffin was licenced to sell insurance and insurance-based investment products through TFC, of which he was the sole officer, director and shareholder. Tiffin was also registered with the OSC to trade in securities from 1983 to 1999. [8] The OSC investigated the appellants and others for soliciting investments in Rezwealth Financial Services Inc. (“Rezwealth”) without proper authorization. In December 2009, the OSC issued a temporary order requiring the appellants to cease trading in securities and prohibiting them from relying on any exemptions in Ontario securities law. In making this order, the OSC relied on its power at s. 127(1)5 of the Act, which authorizes it to “order that any exemptions contained in Ontario securities law do not apply to a person or company permanently or for such period as is specified in the order.” This order remained in effect until July 2014. [9] The OSC commenced administrative proceedings against the appellants in connection with the Rezwealth matter. The OSC found that the appellants and others had traded in securities without registration and had illegally distributed securities. In July 2014, the OSC issued a final order imposing sanctions on the appellants. Under the terms of that order, the appellants were prohibited from trading in securities and from relying on exemptions from securities law for five years, in addition to monetary penalties and a restitution order. [10] It was while he was subject to the cease trade order that Tiffin solicited funds from his clients for his personal use and to keep his business operating. The clients were told about the OSC’s administrative actions and the consequent impact on the appellants’ finances. Six clients agreed to loan funds, a total of $700,000, to TFC on terms set out in fourteen promissory notes signed by Tiffin on behalf of TFC. The notes provided for annual interest rates ranging from 10% to 25% and stated that they were secured against a “toy soldier collection” owned by TFC. It is these promissory notes that are at issue in these proceedings. C. Decisions Below (1) The Trial Decision Acquitting the Appellants [11] At trial, it was undisputed that the appellants were not registered with the OSC, they did not file a prospectus, and they were prohibited from trading in securities by order. The only issue at trial was whether the promissory notes were securities as defined by the Act. [12] The trial judge found that the promissory notes were not securities and entered acquittals. He accepted OSC’s characterization of the Act as a “catch and exclude” regime, which defined the term security broadly and then provided statutory exemptions. However, the trial judge concluded that a definition of security that included the promissory notes at issue would cast too broad a net and would be inconsistent with the purposes of the Act. [13] In reaching his conclusion, the trial judge adopted the family resemblance test from the Supreme Court of the United States’ decision in Reves . This test involves asking whether the instruments resemble securities based on a list of factors including: (1) whether there is motivation to make profit, (2) whether the plan of distribution resembles common trading for speculation or investment, (3) the public’s reasonable expectation that the note is a security, and (4) whether there is another regulatory scheme that protects the investor. Based on these factors, the trial judge concluded that the promissory notes were not securities because they resembled notes secured by a lien on small business assets, which is one “family” of recognized non-security notes in Reves . [14] Accordingly, the trial judge acquitted the appellants on all charges. (2) The Appeal Decision Substituting Convictions [15] The appeal judge concluded that the interpretation of the term “security” is a question of law, and the standard of review is correctness. He found that the findings of fact of the trial judge were not in issue on appeal. [16] The appeal judge concluded that the trial judge erred in importing the family resemblance test into Ontario securities law. He disagreed that securities that appeared to fall within the statutory definition should nonetheless be excluded based on judicially crafted criteria. Contrary to the conclusion of the trial judge, the appeal judge concluded that the broad net cast by the definition of security was deliberate and consistent with the purposes of the Act and should not be interfered with absent a constitutional challenge for overbreadth. The appeal judge referred to the Alberta Court of Appeal’s decision in R. v. Stevenson , which declined to import the Reves test into Alberta’s securities regime: 2017 ABCA 420, 61 Alta. L.R. (6th) 273, leave to appeal refused, [2018] S.C.C.A. No. 54. [17] The appeal judge also noted the significant differences between Ontario’s securities regulation and that in the United States. Specifically, securities regulation in the United States differentiates between commercial and investment purposes in a manner that is consistent with the family resemblance test, but this is not determinative in Ontario’s scheme. Further, the American statutory definition begins with the phrase “unless the context otherwise requires”, an inherent limitation that is not present in the Ontario Act. [18] The appeal judge declined to go through the family resemblance test in full, given that he had found it did not apply. However, he did point out specific elements of the trial judge’s reasoning in applying the test with which he took issue. [19] On the basis that the trial judge had erred in law and that the promissory notes were securities, the appeal judge allowed the appeal and substituted convictions. (3) The Sentencing Decision [20] The OSC submitted that an appropriate sentence would be from 12 to 15 months in jail followed by probation and a restitution order. Its submission was that a custodial sentence was required because the appellants had not paid previous financial penalties, the promissory notes were similar to notes used in the Rezwealth scheme and had been traded while an order prohibiting trading in securities was in place. The appellants submitted that a custodial sentence was unnecessary and would interfere with Tiffin’s ability to repay the money owing. They submitted that the evidence indicated no intention to defraud or deceive anyone, Tiffin was not evasive, and five of the holders of the promissory notes wrote in support of Tiffin. [21] The appeal judge noted the statutory maximum penalty of $5,000,000 or imprisonment for a term of not more than five years less a day or both. He concluded that a financial penalty would not be sufficient in this case given the amount still owed in relation to the previous offences, and also because Tiffin had exploited a position of trust with his clients for financial gain. He accepted that the conduct here was different than in the Rezwealth scheme and that Tiffin did not intend to defraud or deceive anyone. He noted that the case law range for persons with previous convictions usually begins at nine months. Accordingly, the appeal judge sentenced Tiffin to six months’ imprisonment, with 24 months of probation and a restitution order. D. Issues [22] The appellants were granted leave to appeal from their convictions: Ontario Securities Commission v. Tiffin , 2018 ONCA 953. Pursuant to s. 131(1) of the Provincial Offences Act , R.S.O. 1990, c. P.33, this appeal is limited in scope to the questions of law on which leave to appeal have been granted. As I noted above, the central question on the conviction appeal is the interpretation to be given to the term “security” within the statutory scheme pursuant to the Act. [23] The appellants were also granted leave to appeal from the sentences imposed. They take issue with the sentence of six months’ imprisonment for Tiffin, arguing that it was an error of law to impose a custodial sentence in the absence of a proven intent to defraud. E. Conviction Appeal (1) The Appeal Judge Properly Applied the Correctness Standard of Review [24] The preliminary question is the standard of review. In my view, the appeal judge correctly noted that there were no relevant facts in dispute, and that the central issue was one of statutory interpretation, which is a question of law. For this reason, he applied the standard of correctness. [25] While the ultimate question in this case was whether these instruments are securities, which is a question of mixed fact and law, the appeal judge did not take issue with the trial judge’s factual findings or how the law was applied to them, but rather with the definition the trial judge identified and applied. In my view, he correctly identified and applied the standard of correctness. [26] The issue on this further appeal is the same as on the appeal below. Therefore, I review the appeal judge’s determination of the meaning of the term “security” on a correctness standard. (2) The Applicable Legal Principles [27] The principles of statutory interpretation are well established. The terms of the Act are to be interpreted in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme and object of the Act, and the intention of the legislator: Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27, at para. 21. (3) The Security Act Definition in Context [28] I accept that the scheme of the Act is “catch and exclude”. In other words, the Act defines key terms very broadly, and thereby captures a great many instruments and activities in its wide regulatory scope, and then provides for many exemptions from the Act’s requirements, discussed further below, to tailor this regulatory scope to its purposes. [29] The term “security” is defined at s. 1(1) of the Act. It consists of a non-exhaustive list of 16 clauses expressed in general terms, evidencing an intention for breadth. The clause most centrally at issue in this case is clause (e) which reads “a bond, debenture, note or other evidence of indebtedness”. Section 1 provides for only two explicit exceptions to clause (e): (i) a contract of insurance issued by an insurance company licensed under the Insurance Act , and (ii) evidence of a deposit issued by a bank listed in Schedule I, II or III to the Bank Act (Canada), by a credit union or league to which the Credit Unions and Caisses Populaires Act, 1994 applies, by a loan corporation or trust corporation registered under the Loan and Trust Corporations Act or by an association to which the Cooperative Credit Associations Act (Canada) applies [30] Consistent with the text of this definition, the Supreme Court has held that a promissory note is a security for the purpose of a similar statute in Saskatchewan: see Duplain v. Cameron et al. , [1961] S.C.R. 693, at p. 711. [31] The Act sets out broad exemptions from its core requirements, which require registration prior to trading in securities and the issuance of a prospectus prior to trading in securities: ss. 25, 53. Exemptions cover, by way of example, securities issued by governments and banks, secured by a security agreement or mortgage, distributions to accredited investors purchasing securities as principals, family members, friends, business associates and their related corporations, an isolated distribution of securities, and the distribution of short-term debt instruments: see e.g. ss. 25, 35, 35.1 and 73-74.3; Prospectus Exemptions , OSC NI 45-106, (2009) O.S.C.B. (Supp. 5) 1, ss. 2.4, 2.5, 2.6.1, 2.35 . Therefore, notwithstanding that a certain instrument may be a security, it may not trigger the application of one or more core requirements of the Act. (4) The Non-Application of the Exemptions to the Appellants [32] The appellants point out that, according to the terms of the cease trade order which was issued against them at the relevant time, they were not allowed to shelter under these exemptions. [33] It is, in effect, for this reason that the appellants seek to have us apply the American law as set out in Reves that narrows the definition of security from the outset. If these notes were not securities, the appellants were not subject to the requirements of being registered, filing a prospectus, or trading while prohibited. The appellants argue that interpreting the definition of security as being broad enough to include these notes, notwithstanding the existence of the broad and numerous exemptions in the Act, would give rise to unjust results because it would sanction activities that, in their submission, should not be subject to sanction under the securities regime. [34] The difficulty in giving effect to this argument is that the appellants’ conduct may well have been exempted from the requirements of the Act had they not been subject to an order forbidding them from relying on such exemptions. For example, at the relevant time, Ontario securities law contained a private issuer exemption exempting distributions of securities by those who met the definition of “private issuer” to close friends and business associates from the prospectus requirement: Prospectus Exemptions , s. 2.4(2). [1] Additionally, the notes themselves purported, by their terms, to rely on the so called “accredited investor” exemption. The exemption, provided for at s. 73.3 of the Act, exempts some distributions to financially sophisticated parties identified in that section and in the Prospectus Exemptions . [35] In my view, the injustice caused by the unavailability of the exemptions, if any, is properly attributed to the order, and is not controlling of the definition of security in the Act. Moreover, in addition to any other route the law may provide to challenge such an order, interested parties can apply to the OSC to exempt specific trades from statutory requirements and affected parties may also apply to revoke or vary the order: Securities Act , ss. 74, 144. The appellants did not avail themselves of these procedures. (5) Reves and the Applicability of American Law [36] The appellants submit that the definition of security in the Act is further limited by the principles propounded in the Supreme Court of the United States’ decision in Reves . In Reves , that court set out the so-called family resemblance test in order to determine whether a given note fell within the definition of security for the purposes of the American legislation. Under that test, a note is presumed to be a security unless it bears a strong resemblance to judicially recognized “families” of instruments: Reves , at p. 65. To determine whether a strong resemblance exists, the court is to look to the motivations of the parties, the plan of distribution, the reasonable expectations of the investing public and the existence of other applicable regulatory schemes that would reduce risk: Reves , at pp. 66-67. [37] For the following reasons, I disagree with the appellants and I decline to import the family resemblance test into the definition of security in the Act. [38] To begin with, there can be no question that American law can be useful in interpreting Canadian securities legislation. That is because both legislative schemes have similar purposes and intend to address similar issues: see Pacific Coast Coin Exchange v. Ontario Securities Commission , [1978] 2 S.C.R. 112, at pp. 126-28. Both seek to address the challenge of casting a broad enough regulatory net to protect the public and ensure the stability of the financial system without being so broad as to capture activities unconnected to these goals. In particular, the emphasis on disclosure in the federal securities regime in the United States had a considerable influence on the development of securities regulation in this province: Mark R. Gillen, Securities Regulation in Canada (Scarborough: Carswell, 1992) at p. 57. [39] The specific mechanisms the two systems have chosen to address the challenge, however, are not identical. Since the origins of modern securities regulation in the early 20th century, the securities regimes on either side of the border have been developed by distinct legislators and regulators shaped by distinct constitutional contexts and accountable to distinct polities. This context must be borne in mind when, as here, this court is asked to interpret the intention of the Ontario legislator in line with jurisprudence from another jurisdiction. [40] In particular, it is very clear that federal securities regulation in the United States was only intended to regulate investments , and not to create a broad federal remedy for all fraud: Reves , at p. 61; Marine Bank v. Weaver (1982), 455 U.S. 551, at p. 556. Accordingly, courts in that country have distinguished between investment instruments, which are subject to the regime, and commercial instruments, which are not. The family resemblance test applied in Reves is the manner in which that court chose to draw this distinction. The parties disagree on the extent to which this distinction is applicable to an interpretation of the Act in Ontario. [41] Three key differences exist between the Act and The Securities Exchange Act of 1934 , 15 U.S.C. § 78a, considered in Reves , such that the family resemblance test is not helpful in interpreting the meaning of the term security in the Act. First, the definition in the Act, at s. 1(1), opens with inclusive language, “‘security’ includes …”, whereas the definition in The Securities Exchange Act of 1934 , at s. 3(10), opens with language indicating an exhaustive definition “‘security’ means…”. The Act therefore contains an indicator of breadth not present in the United States’ statute: Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed. (Toronto: LexisNexis, 2014), at paras. 4.34-4.39. [42] Second, the definitions in The Securities Exchange Act of 1934 are preceded by the phrase “unless the context otherwise requires”: s. 3. The intention of a legislator in using these words will not always be to “create powerful discretion” for courts to craft additional exemptions to a statutory definition, as the OSC contends. However, the Supreme Court of the United States has in fact relied upon these words, at least in part, to justify a narrowing of the otherwise expansive definition of security: Weaver , at p. 556. No such wording is evident in the definition in the Ontario Act and I cannot, therefore, follow the Supreme Court of the United States’ reasoning in interpreting it. [43] Third, the respective approaches of the two statutes to short-term debt instruments demonstrate a broader definition of security in this jurisdiction. In The Securities Exchange Act of 1934 , “any note, draft, bill of exchange, or banker’s acceptance which has a maturity at the time of issuance of not exceeding nine months” is specifically excluded from the definition of security: s. 3(10). By contrast, in Ontario, there is no such explicit exclusion from the definition of security in the text of the Act. Rather, the OSC, by rule, exempts a distribution of a similar class of short-term debt that meets certain criteria from the prospectus requirement in the Act: Prospectus Requirements , s. 2.35. [44] This distinction is significant. It exemplifies a difference in legislative structure. Congress has made clear its intention to exclude these short-term debt instruments, which may be viewed as commercial, from the scope of this statute altogether, by carving them out of the definition of security. In Ontario, meanwhile, there is no indication that the legislator intended short-term debt instruments to be understood as anything other than securities. The approach taken by the regulator in this province is to enact rules exempting them from the prospectus requirement in the Act, rather that excluding them from the ambit of the scheme as a whole. [45] These structural differences militate against importing the family resemblance test. To do so would risk undermining the legislator’s chosen scheme expressed in the Act, which, as discussed above, is to broadly cast its regulatory net and then exempt those activities it does not wish to regulate. There is simply no indication that the Ontario legislator wished to determinatively distinguish between commercial and investment instruments as courts have held in the United States. [46] As the parties noted before this Court, appellate courts in Canada have come to different conclusions regarding the applicability of Reves . In British Columbia (Securities Commission) v. Gill , 2003 BCCA 169, 11 B.C.L.R. (4th) 102, the British Columbia Court of Appeal applied the Reves family resemblance test in reaching the conclusion that the documents at issue, namely receipts, financial summaries and personal loan agreements evidencing debt, were securities for the purpose of the Securities Act , R.S.B.C. 1996, c. 418. I note that the Gill decision considered whether an administrative decision-maker’s interpretation of the B.C. Securities Act was reasonable , and it referred to the test in Reves to illustrate the reasonableness of that decision. The court did not rely on Reves to narrow the definition of security, but rather relied on it to support its breadth. [47] In the more recent case of Stevenson , the Alberta Court of Appeal declined to import the family resemblance test into that province’s law, given that the “numerous conditions and exemptions” in the Securities Act , R.S.A. 2000, c. S-4, obviated the need for “judicially created exemptions” like those in Reves : at para. 16. That appeal court upheld the decision of the summary conviction appeal court judge concluding that the loan agreements, which were the subject of the regulatory prosecution, were “evidence of indebtedness” and therefore securities for the purpose of the very similar definition of security in the Alberta Securities Act : at paras. 4, 21. [48] I agree with the conclusion in Stevenson . In my view, importing the family resemblance test into the interpretation of the term, “security”, would raise a risk of unintended consequences and litigation inherent when tinkering with a definition central to a complex regulatory scheme. Moreover, and importantly, there is no need to run this risk given the statutory mechanisms through which the legislator has seen fit to achieve the goals which animate securities regulation. In short, while American securities jurisprudence may be a useful source of persuasive authority in some cases, it is not necessary or advisable to import the family resemblance test into the definition of security in the Ontario context. [49] To be clear, I do not disagree with the appellants’ submission that a legislative provision that is overly broad on its face can, in appropriate cases, be “read down” or interpreted in a manner that is narrower than the bare language of the text: Canada Post Corp. v. Canadian Union of Postal Workers , 2019 SCC 67, at para. 59; Blue Mountain Resorts Ltd. v. Ontario (Ministry of Labour) , 2013 ONCA 75, 114 O.R. (3d) 321, at para. 29; Montréal (City) v. 2952-1366 Québec Inc. , 2005 SCC 62, [2005] 3 S.C.R. 141, at para. 14. This is just another way to express the principle that the words of legislation must always be read in context and harmoniously with the intention of the legislator. This exercise is distinct from reading down as a constitutional remedy: Sullivan, at para. 7.10. In the former case, the courts are interpreting the legislation in order to properly give effect to the true intention of the legislator. In the latter case, the courts are adjusting the scope of the legislation to conform to the Constitution notwithstanding the legislator’s intention. As I have discussed, however, the scheme of the Act is such that the broad definition of security is consistent with its object and the intention of the legislator. Accordingly, the purposive reading does not assist the appellants. (6) Conclusion:  the Promissory Notes are Securities [50] In summary, the promissory notes at issue in this case are securities. They are properly captured by the phrase “bond, debenture, note or other evidence of indebtedness” in the definition of security for the purposes of the Act: s. 1(1). While the appellants may have been able to rely on exemptions from the requirements in the Act in respect of these transactions, these exemptions were not available to them in this case because of the cease trade order. This does not warrant interference with the definition in the Act on which the legislator has chosen to ground its scheme. F. Sentence Appeal (1) The Principles of Sentencing for Regulatory Offences [51] This appeal arises from a regulatory prosecution. I begin by summarizing the principles applicable to the sentencing for these offences. [52] Unlike criminal offences, regulatory offences are not prosecuted because they are inherently abhorrent, but rather because compliance is necessary to achieve the legislator’s public interest goal: Ontario (Environment, Conservation and Parks) v. Henry of Pelham Inc. , 2018 ONCA 999, at para. 33. Consistent with the difference in purposes, while the sentencing of regulatory offenders remains multi-factorial, the principle of deterrence is the paramount consideration: Henry of Pelham , at para. 38. [53] Imprisonment for regulatory offences may sometimes be necessary to achieve this purpose. As Cory J. said in R. v. Wholesale Travel Group Inc. , [1991] 3 S.C.R. 154, at p. 250: Regulatory schemes can only be effective if they provide for significant penalties in the event of their breach. Indeed, although it may be rare that imprisonment is sought, it must be available as a sanction if there is to be effective enforcement of the regulatory measure. … The potential for serious harm flowing from the breach of regulatory measures is too great for it to be said that imprisonment can never be imposed as a sanction. [54] As in criminal law, the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender: Ontario (Labour) v. New Mex Canada Inc. , 2019 ONCA 30, 144 O.R. (3d) 673, at paras. 67-68. Moral blameworthiness can be relevant to the sentencing of a regulatory offender, given that it is probative of the degree of responsibility of the offender, notwithstanding the fact that regulatory offences generally involve less moral blameworthiness: New Mex , at paras. 66, 69. [55] The principle of restraint requires the sentencing court to apply a measured response to determining a sentence that best satisfies the purpose and principles of sentencing, as in criminal law: New Mex , at paras. 81-82. The application of restraint generally means that incarceration for regulatory offences is rare, but this is a descriptive observation, not a prescriptive one, and it is not an independent principle in sentencing: New Mex , at para. 85. It flows from the fact that deterrence can generally be achieved with fines. [56] In short, regulatory offenders are not sentenced in a manner wholly distinct from criminal offenders. The principles of proportionality and restraint still apply. The differences flow from the distinct purpose underlying regulatory offences, which requires a greater emphasis on deterrence and generally involves lower moral blameworthiness than in the criminal context. (2) The Principle from Bowman [57] The appellants rely on the decision in Rex v. Bowman and Thibaudeau , [1949] 1 D.L.R. 671 (Ont. Mag. Ct.), to claim that there is a “clear standard” that only evasive and fraudulent offences under the Act warrant incarceration. I do not accept this submission. First, I do not read Bowman as creating this kind of bright line rule. Second, this submission runs contrary to the principles of sentencing in regulatory offences, which are inherently contextual. [58] In Bowman , Hanrahan P.M. gave very brief reasons for sentence in which he sentenced two brokers to imprisonment for violating the Act. He distinguished, at p. 672, between careless and intentional offenders in terms of the appropriate sentence: When breaches of the Act such as these occur, dealing with failure to register or to file required reports designed to protect the investing public, the dividing line between imprisonment and monetary punishment as the appropriate penalty must be in which class the offender falls — the merely careless or the designedly evasive delinquent, who is bent on defrauding the public unhindered by the watchful supervision of the Commission’s investigators. [59] This passage has been cited with approval by the Ontario Court of Justice and the provincial courts of other provinces. [60] In some cases, the principle is applied in the rigid manner advanced by the appellants. That is, the court determines whether the offender being sentenced is a “merely careless” offender or is a “designedly evasive delinquent” and this is determinative of whether a sentence of imprisonment is imposed: see e.g. R. v. Lewandosky , [1997] M.J. No. 471, at paras. 12-13, 23; Autorité des marchés financiers c. Veillet , 2014 QCCQ 2358, at para. 47. [61] Other cases do not go this far, and instead characterize Bowman as establishing a spectrum of blameworthiness on which a specific offence is placed to determine the appropriate penalty: see e.g. R. v. Tulsiani , 2017 ONCJ 430, at paras. 30-32; R. v. Perch (2006), 203 Man. R. (2d) 300 (Prov. Ct.), at paras. 19-20; R. v. Edgar , 2000 BCPC 215, at para. 14. In Autorité des marchés financiers v. Greeley , 2010 QCCQ 2879, Mascia J.C.Q. distills Bowman as merely requiring an assessment of moral blameworthiness: at para. 29. [62] In my view, the rigid application of Bowman is at tension with the proper approach to the sentencing of regulatory offenders. Moral blameworthiness is relevant to the sentencing of regulatory offenders because it is probative of the responsibility of the offender to which the sentence must be proportionate: New Mex , at para. 69. However, the sentence must also be proportionate to the gravity of the offence, which is unaccounted for in the Bowman principle. In other words, moral blameworthiness is relevant, but it cannot be the sole focus of the regulatory sentencing judge. [63] The regulatory sentencing court, according to the principles of proportionality and restraint, must impose the sentence required to optimally achieve the sentencing goals, of which deterrence is paramount. It is unclear how the comparison of the offender to the ideal types of the “careless offender” or the “designedly evasive delinquent” assists in coming to a fit sentence in the circumstances of a given case. It might be contrary to the principle of restraint, for example, to rigidly impose imprisonment on offenders based on their intention when the goal of deterrence could be achieved with a fine. Equally, a fine may not be sufficient to achieve the goals of sentencing in some cases where fraud is not made out. Sentencing is inherently contextual. [64] For this reason then, it would be contrary to established sentencing principles to hold that Bowman restricts a sentencing judge’s discretion to this one consideration above all others. The better formulation of the Bowman principle is that intention may be a relevant consideration in determining whether a custodial sentence is necessary to achieve the goals of sentencing. (3) The Sentence is Demonstrably Unfit [65] The appellants also argue that the sentence of six months’ imprisonment for Tiffin was demonstrably unfit in the circumstances. I agree. [66] This court can vary the sentence on appeal if it is demonstrably unfit: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11. A sentence will be demonstrably unfit if it is clearly excessive or inadequate or if it represents a substantial and marked departure from a proportional sentence properly arrived at based on the correct application of the principles and objectives of sentencing: at para. 52. [67] I do not agree with the sentencing judge’s reasons for imposing a custodial sentence in addition to the probation order. In the unusual circumstances of this case, I find that a custodial sentence is manifestly unfit. In particular: a. Mr. Tiffin did not attempt to deceive in the sense that the evidence indicates that he honestly revealed his desperate financial situation when he sought a personal loan from his friends/clients; b. As noted by the sentencing judge, “While Mr. Tiffin did not plead guilty, he did acknowledge that he engaged in the conduct complained of, and his defence was based on a question of statutory interpretation. While not quite a mitigating factor, it places this case closer to the guilty plea category than some of the longer sentence cases relied on by the OSC”; c. The trial judge also noted that Mr. Tiffin is 66 years old and likely to continue repaying his clients; d. Five of the six recipients of the promissory notes filed letters of support; e. The appellants have repaid $90,500 of the principal amount of the loan, and $263,000 in interest, for total payments of $353,500; and f. Mr. Tiffin has expressed remorse. [68] There is a history of non-compliance with the Act, which led to the cease trading order and not all of the money has been repaid. Having said that, the financial penalties alone would fail to meet the applicable sentencing objectives. [69] While the appeal judge cited the relevant principles, the sentence is disproportionate to the point of being demonstrably unfit. There is relatively little in the sentencing reasons to justify the custodial sentence. The appeal judge cited R. v. Da Silva , 2012 ONCJ 279, varied, 2013 ONSC 260, for the proposition that the applicable sentencing range where there is a history of non-compliance begins at nine months. [70] This decision does not hold that nine months is the starting point for the sentencing of any recidivist. The sentencing judge in Da Silva said, “These are not first offences, so they would not attract periods of six months as did the offenders in R. v. Casteneda . I agree that given Mr. Da Silva’s history of Securities Act violations, the range would start in these circumstances at [nine] months”: at para. 29. Da Silva’s history of non-compliance was markedly worse than that of Tiffin. Da Silva had been under three separate cease trade orders relating to various schemes at the time he committed the offences before the sentencing court: at para. 5. Further, unlike this case, his activities were intentionally deceitful: at paras. 3 and 29. It was in those circumstances that a sentence of nine months’ imprisonment was the starting point. [71] A review of relevant case law in Ontario securities matters reveals sentences that are significantly below nine months. In Ontario Securities Commission v. DaSilva , 2017 ONSC 4576, an offender with a significant history of non-compliance was sentenced to three months following a trial for similar offences. The sentence was upheld on appeal: at para. 79. While there was a smaller amount of money at issue in that case, the offence involved dishonesty, specifically using a fake name to solicit investments: at paras. 68 and 71. [72] Further, in R. v. Schwartz , 2013 ONSC 5031, a 90-day intermittent sentence was upheld on appeal for an offender with a history of misconduct who pleaded guilty to violating an OSC order by committing fraud: at paras. 14 and 30. In R. v. Castaneda , 2008 ONCJ 69, a six-month sentence was imposed on an offender who pleaded guilty to offences that also made out criminal fraud and imposed significant hardship on investors: at paras. 19 and 33. By contrast, in this case five out of six lenders wrote in support of Tiffin and the appeal judge found that he was truthful with them in soliciting the funds. While the appellants did not plead guilty, the appeal judge found that this was “closer to the guilty plea category” given the circumscribed nature of the trial. [73] The OSC was not able to direct us to a precedent where a custodial sentence was imposed for conduct that was found not to be in any way deceitful. This is a unique mitigating factor that distinguishes the offences on appeal from all custodial precedents to which we were referred. A fit sentence must reflect the appellants’ reduced responsibility for the offences that flows from the absence of deceit in their conduct. [74] In light of this case law and the unique circumstances of this case, six months’ incarceration is a demonstrably unfit sentence and cannot stand. I would set aside the custodial term but uphold the 24-month probation order as well as the restitution order with the same terms, as outlined below: · that the appellants not commit the same or any related or similar offence, or any offence under a statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment; · that the appellants appear before the court as and when required; · that the appellants notify the court of any change in their address; · that the appellants report to a probation officer if and when directed to do so by the probation officer; and · that the appellants not trade in any “securities” as that term is defined in the Act. [75] In addition to the restitution order below, this probation order is sufficient to achieve the objectives of sentencing in the circumstances of this case. G. Conclusion [76] I would dismiss the conviction appeal and allow the sentence appeal. I would set aside the custodial sentence and uphold the probation and restitution orders. Released: March 16, 2020 “LB” “A. Harvison Young J.A.” “I agree L.B. Roberts J.A.” “I agree J.A. Thorburn J.A.” [1] An even broader exemption for distributions to close family, friends and business associates was subsequently added to the rules: ss. 2.5, 2.6.1.

WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO: 110(1)          Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. (2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community. (3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication. 111(1)          Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. 138(1)          Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) is guilty of an offence punishable on summary conviction. COURT OF APPEAL FOR ONTARIO CITATION: R. v. A.G., 2020 ONCA 183 DATE: 20200306 DOCKET: C61317 Benotto, Paciocco and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and A.G. Appellant Brian Irvine, for the appellant Nicole Rivers, for the respondent Heard and released orally: January 17, 2020 On appeal from the conviction entered on October 30, 2015 and the sentence imposed on October 30, 2015 by Justice Alphonse T. Lacavera of the Ontario Court of Justice. REASONS FOR DECISION Appeal of Convictions [1] In this case, the trial judge found that the accused worked together with the co-accused, to chase and assault the complainant. [2] Each accused agreed with the others to meet the complainant near his girlfriend’s house. They expected the complainant to arrive when he did, and there was common participation in a continuing event wherein the complainant was chased around the area. The appellant hit the complainant in the chest and although this did not result in bodily injuries, he participated in an assault and was liable as a joint principal. Joint principals are jointly responsible for the foreseeable consequences of an agreed act. [3] The complainant testified that after Mario took his bag, the appellant called him “Pussy” and was “shit-talking”. This can be interpreted as promotion of further violence. [4] It is reasonable to infer that the appellant knew the others intended to assault the complainant, and that he encouraged this through his words and actions. There was no temporal break between the chase and the assaults which finding is owed deference. [5] For these reasons, the appeal of the conviction for the assault causing bodily harm is dismissed. Sentence [6] In this case, the facts read out on the guilty pleas of the co-accused made no mention of the appellant A.G. by name or of his participation in the assault. Nor were the guilty pleas used as evidence against the appellant. [7] The only reference to the co-accused in this proceeding was to explain that they pled guilty to a lesser charge of assault. Moreover, the trial judge gave detailed reasons for finding the appellant guilty of the assault causing bodily harm. [8] Lastly, in imposing a more onerous sentence on the appellant than the two accused who pled guilty, the trial judge concluded that the appellant was not in the same position as “they, although it was late in coming, pled guilty to assault level 1 and expressed some sign of contrition and remorse in that at least they admitted their guilt.” [9] The appellant’s failure to do likewise justifies a more serious sentence. [10] For these reasons, while leave to appeal the sentence is granted, the sentence appeal is dismissed. “M.L. Benotto J.A.” “David M. Paciocco J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Balaram-Sivaram, 2020 ONCA 204 DATE: 20200312 DOCKET: C66772 Watt, Fairburn and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Rupen Balaram-Sivaram Appellant Rupen Balaram-Sivaram, acting in person Andrew Hotke, for the respondent Heard and released orally: March 9, 2020 On appeal from the conviction entered on February 25, 2019 and the sentence imposed on March 28, 2019 by Justice Michael F. Brown of the Superior Court of Justice. REASONS FOR DECISION [1] After a trial before a judge of the Superior Court of Justice sitting without a jury, the appellant was convicted of several offences, including advocating genocide; promotion of hatred; criminal harassment; threatening death and identity fraud. [2] The appellant was sentenced to a term of imprisonment of three years, which was reduced to five months because of the credit he received for time spent in pre-sentence custody. He was also ordered to comply with the terms of a probation order for a period of two years. [3] The offences of which the appellant was convicted all arise out of the breakdown of the appellant’s marriage. When that occurred, he began and persisted in a campaign of harassment against his wife, her new partner and her supervisor at work. He then posed as his wife’s new partner and sent several communications which constitute the offences of advocating genocide and promoting hatred. [4] On appeal, the appellant advances several claims of error in the proceedings below. He says that: i. he was duped into having a trial by a judge sitting alone, rather than, as was his preference, a trial by a court composed of a judge and jury; ii. the trial judge was biased; iii. an adjournment of the trial prejudiced the presentation of his case, in particular, his examination-in-chief and cross-examination were separated, rather than proceeding sequentially; iv. his right to a trial within a reasonable time was breached; v. his s. 8 Charter right was breached by a delayed search of his computers; vi. his s. 9 Charter right was breached because there were no grounds for his arrest; and vii. the trial judge misapprehended various aspects of the evidence adduced at trial. [5] In our view, this appeal fails. [6] The appellant was represented by counsel at trial who, in accordance with the usual practice, signed a re-election form agreeing to a trial by a judge sitting without a jury. We see no basis upon which to interfere with that decision. [7] Nothing in the record supports any claim of actual or reasonably apprehended bias on the part of the trial judge. Nor does the record support any claims of constitutional infringement. [8] It does not appear to us that the trial judge misapprehended the evidence adduced at trial. Even if we were to have concluded that any misapprehension of the nature alleged by the appellant did, in fact, occur, we are not persuaded that it was material to the findings of guilt made by the trial judge. [9] The appeal from conviction is dismissed. The appeal from sentence was not pursued and is dismissed. “David Watt J.A.” “Fairburn J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Bejarano-Flores, 2020 ONCA 200 DATE: 20200311 DOCKET: C65183 Feldman, Gillese and Miller JJ.A. BETWEEN Her Majesty the Queen Respondent and Isaac Bejarano-Flores Appellant Michael Dineen, for the appellant Kerry Benzakein, for the respondent Heard: November 19, 2019 On appeal from the convictions entered on December 13, 2017, by Justice Kelly P. Byrne of the Superior Court of Justice, with reasons reported at 2017 ONSC 7480. Gillese J.A.: A. OVERVIEW [1] The appellant was convicted by a judge, sitting without a jury, of possessing MDMA for the purpose of trafficking and possessing the proceeds of crime. He was sentenced to 14 months in jail. He appeals against conviction. [2] The convictions stem from a police stop of a taxi van made in response to a 911 “gun call”, which is a telephone call reporting that a person has been seen with a gun. A customer at a York University food court reported the sighting to an employee, who reported it to York University security officers (York Security). York Security made the 911 gun call. DC Rand and his partner were in the area and immediately dispatched on the gun call. [3] York Security were in constant communication with the police. Through surveillance cameras, York Security saw the gun suspect enter an orange and green taxi van. They described the route that the taxi van was taking, which they observed through the cameras, and dispatch broadcast that information. Using that information, DC Rand and his partner located the taxi van and stopped it to investigate. [4] The appellant was the lone male passenger in the taxi van. When he stepped out of it, DC Rand saw that he matched four key aspects of the physical description of the gun suspect: male, medium build, early 20’s, 5’ 6”. However, he appeared to be Hispanic, not Black, as the gun suspect had been described. [5] Despite the non-matching descriptor, DC Rand believed that the appellant was the gun suspect because, in addition to matching certain key aspects of the physical description of the gun suspect, he was sure that the taxi van was the one that York Security had seen the gun suspect enter only minutes earlier. [6] DC Rand told the appellant that he was investigating an allegation that a person with a gun had boarded an orange and green taxi van. He then conducted a brief pat down search of the appellant that lasted less than a minute. He found no gun. [7] A different police officer who had arrived on the scene searched the appellant’s knapsack – which was in the taxi van – for a gun. It did not contain a gun but it did have packages of what appeared to be controlled substances. Based on the drugs in his knapsack, DC Rand arrested the appellant. At that point, the appellant told DC Rand that he also had drugs in his jacket pocket and turned them over. [8] About two minutes elapsed between the police stop of the taxi van and the appellant’s arrest. [9] At trial, the appellant asserted that his ss. 8 and 9 rights under the Canadian Charter of Rights and Freedoms had been violated. He took no issue with the initial traffic stop of the taxi van but maintained that there were no grounds to continue to detain him once it was apparent to the police that he did not match the description of the gun suspect. [10] The trial judge held that the appellant’s brief continued detention was constitutionally sound and that the pat down search was lawful. She concluded that the search of the knapsack was not lawful but admitted the evidence pursuant to s. 24(2) of the Charter . [11] On appeal, the appellant submits that the trial judge erred in finding that his continued detention was lawful. He asks this court to exclude the evidence under s. 24(2), set aside the convictions, and enter acquittals. [12] For the reasons that follow, I would dismiss the appeal. B. BACKGROUND IN BRIEF [13] Late on November 19, 2014, a customer in the York University food court told a Shopsy’s employee that he had seen someone with a gun. The employee reported the gun sighting to York Security who, in turn, called 911. At that time, the Shopsy’s employee did not have a description of the gun suspect. [14] At 23:36:12, DC Rand and his partner were dispatched to respond to the gun call. They responded immediately. A gun call is the highest priority for police response because of the safety risks that accompany a firearm, especially in a busy place like a university campus. [15] DCs Wenzel and Rodriguez were in a separate police car and also nearby. They, too, were dispatched and responded immediately. [16] DC Rand and his partner drove toward York University, listening closely as dispatch continued to broadcast information about the unfolding events. DC Rand understood that someone had seen a person with a gun in the York University food court and reported it to a Shopsy’s employee, who had reported it to York Security. He also heard the following broadcast information: 23:37:31 – the gun suspect was described as male, Black, early 20’s, 5’ 6’’ 23:37:58 – the gun suspect was further described as having a medium build and wearing a dark blue or black baseball hat, a black hoodie with the hood pulled over the cap, grey sweatpants, and a black jacket 23:39:05 –York Security saw a male matching the gun suspect description on Vanier Lane 23:39:17 – York Security saw the male outside Chimneystack Road, getting into a cab 23:39:32 – York Security was advised not to approach the male 23:39:40 – the cab was identified as an orange and green taxi van 23:39:50 – the taxi van was driving north onto Ian MacDonald Boulevard 23:40:14 – the taxi van proceeded north on Founders Road towards Steeles Avenue 23:41:41 – York Security lost their “visual” of the taxi van, having last seen it travelling westbound on Steeles Avenue, at the rear of the track and field center [17] As DC Rand and his partner heard this information, they followed the same route as the taxi van. They drove onto the York University grounds, along Ian Macdonald Boulevard, up to Founders Road, and then westbound on Steeles Avenue. [18] At 23:43:19, DC Rand saw an orange and green Beck taxi van headed westbound on Steeles Avenue, almost at Jane Street, in the curb lane. There were few other vehicles on the road. DC Rand was sure that the taxi van he saw was the same one that York Security reported seeing the gun suspect enter approximately four minutes earlier. As they got closer to the taxi van, he saw a single passenger inside. He decided to stop the taxi van and investigate. [19] At 23:44:55, DC Rand and his partner stopped the taxi van just north of Steeles Avenue on Jane Street. DC Rand went to the rear passenger door and his partner went to the driver. As soon as he got to the taxi van, DC Rand opened the passenger door and saw that the appellant was the lone passenger. He was seated in the middle row of the van on the passenger side. [20] DC Rand asked the appellant to step out of the taxi van. When he complied, DC Rand saw that he was the same gender, age, height, and build as the suspected gunman. However, he immediately noticed that the appellant appeared to be Hispanic, not Black. At trial, DC Rand testified that he identifies as Hispanic; he described the appellant’s skin tone as “medium” and “a little darker” than his own. [21] DC Rand took the appellant to a grassy boulevard by the side of the road, told him he was investigating an allegation that a person with a gun had boarded an orange and green taxi van, and conducted a brief pat down search of the appellant’s person, looking for a weapon. He found none. No force was used and no weapons were drawn. The search was over in less than a minute. [22] DC Wenzel and his partner arrived on the scene just after the taxi van was pulled over. Safety was their primary concern as they suspected a firearm was in the taxi van. DC Wenzel looked inside the taxi van’s open door and saw a knapsack between the bucket seats in the middle of the van. When he picked it up, he thought its weight was consistent with it containing a firearm so he opened the knapsack and looked inside. He did not find a gun but he did see several packages of what appeared to be controlled substances. He told DC Rand of his discovery. DC Wenzel then did a further visual search of the interior of the passenger area of the taxi van. He found no gun. His search of the knapsack and interior of the passenger area of the taxi van took about one minute. [23] DC Rand arrested the appellant based on the drugs in his knapsack. At that point, the appellant produced a further bag of MDMA from the left vest pocket of his jacket. DC Rand lodged the appellant in his scout car. It was 23:49. [24] The entire period the appellant was detained, from the initial stop of the taxi van to when he was arrested, was approximately two minutes. The Trial [25] At trial, the appellant asserted that his ss. 8 and 9 Charter rights had been violated and sought exclusion of the evidence on that basis. He otherwise conceded his guilt. [26] He took no issue with the initial vehicle stop. He agreed that, based on the information the police had available, it was objectively reasonable for the officers to conclude that the Beck taxi van was connected to the gun call. However, he maintained that his continued detention after he exited the taxi van was not justified. He argued that, once it was apparent to the police that he did not match the broadcasted description of the gun suspect, they had no grounds to detain him and they had to stop their search efforts. [27] The trial proper and the Charter voir dire proceeded as a blended hearing. An agreed statement of facts was entered. It stated that 29.28 grams of MDMA were found in a clear ziplock bag in the appellant’s knapsack and that he turned over to the police a further 27.89 grams of MDMA from his left vest pocket. [28] Three police officers testified: DC Rand, DC Wenzel and DC Rodriguez. All three police witnesses testified that their focus that evening was on determining whether there was a gun and neutralizing the risk to public safety. [29] As DC Rand’s testimony played a crucial role in the trial judge’s Charter ruling, key elements of it are now summarized. [30] DC Rand testified that there was “no doubt in his mind” that the taxi van he stopped was the one that the gun suspect had boarded. He spotted it within a couple of minutes of the last reported observation of the van that York Security had identified as carrying the gun suspect. It was the same type of vehicle that York Security had described and was unusual for the area. The timing of the events, information he had received about the route taken by the taxi van, distinctive characteristics of the green and orange Beck taxi vans and their scarcity in the vicinity, and the appellant’s resemblance to the suspect on four key descriptors gave him a reasonable suspicion that the appellant was in possession of a firearm. [31] He testified that it was only when the appellant stepped out of the Beck taxi van that he observed that the appellant did not appear to be Black. DC Rand identifies as Hispanic and he recognized that the appellant also appeared to be Hispanic. He described the appellant as male, Hispanic, 5’ 6”, in his 20’s, and of medium build. [32] DC Rand also testified that the appellant’s clothing, while similar to the description of the gun suspect’s clothing, did not match. DC Rand was less sure when he noticed the differences in the appellant’s clothing from the description given of the clothing worn by the gun suspect but thought it was likely during the pat down search. He said he was less concerned about the non-matching clothing because it is not uncommon for suspects to change or discard pieces of clothing to avoid police detection. [33] DC Rand testified that, despite the non-matching physical descriptor, everything else that had happened up to that point had been “so bang on” that he believed that the appellant was the gun suspect. His belief was based on the physical descriptors that the appellant did match and the following information, which he believed to be accurate: · the vehicle was a taxi van, which was rare for that area, and no other Beck taxi vans had been observed in that area that night; · the last known location of the Beck taxi van, as observed by York Security, was very specific and consistent with DC Rand’s initial observations of the vehicle and the location of the vehicle stop; · the traffic stop took place within just a couple of minutes of the last reported observation of the Beck taxi van by York Security; and · there was a single male passenger inside the Beck taxi van. [34] DC Rand testified that, after 18 years of policing experience, he was familiar with the frailties attached to eyewitness identification evidence. He said that stress and a host of other factors can impair an individual’s ability to accurately observe and retain information and so he did not place much weight on the non-matching physical descriptor, especially when considered in combination with the other information he had, which he found to be reliable, such as the nature of the vehicle in question. C. THE CHARTER RULING [35] The trial judge began by addressing the defence submission that the police violated the appellant’s s. 9 Charter rights because they lacked sufficient grounds to detain him once they saw that he did not match the gun suspect’s description. [36] After setting out the legal principles that govern investigative detentions, the trial judge noted that the defence took no issue with the initial traffic stop. The defence accepted that on the information the police had, it was objectively reasonable for the officers to conclude that the taxi van was connected to the 911 gun call. The trial judge then considered whether the appellant’s continued detention, after the initial stop, was justified. She observed that to justify the continued detention, the Crown had to show that the police had reasonable grounds to suspect, based on the totality of the circumstances, that the appellant was the individual connected to the gun call they were investigating. [37] The trial judge rejected the defence submission that DC Rand failed to turn his mind to the non-matching physical descriptors. She found, on the contrary, that DC Rand had taken them into consideration.  In making this finding, the trial judge relied on DC Rand’s testimony that: (1) immediately on removing the appellant from the taxi van, he was aware that the appellant appeared to be Hispanic, rather than Black, as the gun suspect had been described; and (2) while less sure of when he noticed the differences in clothing, he thought it was likely during the pat down search. DC Rand testified that he was less concerned about the non-matching clothing because it is not uncommon for suspects to change or discard pieces of clothing to avoid police detection. [38] The trial judge accepted DC Rand’s explanation for why he reasonably suspected that the appellant was the gun suspect despite the non-matching descriptors.  She referred to his evidence on the frailties attached to identification evidence: stress and a host of other factors can impair an individual’s ability to accurately observe and retain information so he did not place much weight on it, especially when considered in combination with the information he had that he deemed accurate, such as the nature of the vehicle in question. [39] The trial judge found that DC Rand was entitled to rely on his 18 years of policing experience in assessing how much weight to attach to the physical descriptors. She also found that DC Rand’s conclusion that witness descriptions can often be wrong was reasonable, in the circumstances, when he knew nothing of the perspective or ability of the witness, or witnesses, who gave the description of the gun suspect. [40] The trial judge distinguished the case before her from R. v. Clayton , 2007 SCC 32, [2007] 2 S.C.R. 725, relied on by the defence. She explained that in Clayton , the police had only two physical descriptors available to them: skin colour and gender. In the case before her, there were multiple physical descriptors and the appellant matched several of them; the vehicle description was distinctive and a match; and, the geographical and temporal connections were relevant and accurate. She found that, when combined with the other factors, they provided “ample and reasonable grounds” for the appellant’s continued detention. She concluded that, even after taking into consideration the non-matching descriptors, the appellant’s initial and continued detention were objectively reasonable. [41] The trial judge then addressed whether the pat down search and/or the search of the appellant’s knapsack violated his s. 8 Charter rights. [42] In holding that the pat down search was justified, the trial judge relied on her findings that justified the appellant’s continued detention and added that the police were responding to a 911 gun call; they had ample grounds to suspect the appellant was the individual that had been seen with a gun; and, the immediate concern for officer safety and the safety of others was “self-evident”. She found that the timing of the continued detention and the pat down search were responsive to the circumstances. Given how quickly the police located and stopped the orange and green taxi van, she found it reasonable to conclude that the appellant would still have had access to the firearm when the police detained and searched him. She concluded that the danger to safety was immediate and that the brief, non-intrusive and reasonable pat down search was lawful. [43] However, the trial judge held that DC Wenzel’s search of the appellant’s knapsack was unlawful. She noted that a search incident to investigative detention is anchored in preserving safety from immediate danger. In this case, the immediate danger was directly attached to the suspect, who was being detained by DC Rand. She said that a simple instruction removing the driver from the taxi van or seizing the knapsack, without searching it, would have alleviated all immediate safety concerns. [44] In light of the unlawful search of the knapsack, the trial judge conducted a s. 24(2) analysis to determine whether to exclude the evidence. In her view, all three steps in R. v. Grant , 2009 SCC 32, [2009] 2 S.C.R. 353, favoured admitting the evidence. [45] On the first step, the trial judge found that the breach was on the less serious end of the spectrum, since the police had acted reasonably and in good faith. On the second step, she found that, given the brief and circumscribed nature of the search of the knapsack, the breach had a minimal impact on the appellant’s privacy interest in its contents. On the third step, she viewed society as having a strong interest in the trial being resolved on its merits because of the serious nature of the drugs, and that the drugs were reliable evidence and essential to proving the Crown’s case. [46] Accordingly, the trial judge admitted the evidence. D. THE ISSUES [47] The appellant submits that the trial judge erred in: 1. finding that his continued detention was lawful; and 2. failing to exclude the evidence pursuant to s. 24(2). E. ANALYSIS (1) Did the trial judge err in finding that the appellant’s continued detention was lawful? [48] As soon as the appellant emerged from the taxi van, DC Rand saw that he did not match one key aspect of the description of the gun suspect: the appellant appeared to be Hispanic, not Black. The appellant submits that, at that point, the police had no grounds to continue to detain him and the trial judge erred in ruling otherwise. He argues that the trial judge erred in accepting DC Rand’s explanation for discounting his non-resemblance to the description of the gun suspect, placed undue weight on DC Rand’s belief that the taxi van was the same one that York Security saw the gun suspect enter, and failed to persuasively distinguish Clayton from the present case. [49] I do not accept this submission or the arguments made in support of it. In my view, in that dangerous and dynamic situation where public safety concerns were paramount, these experienced police officers had reasonable grounds to suspect that the appellant was the gun suspect. The Relevant Legal Principles [50] The legal principles governing investigative detention are well settled and neither party contends that the trial judge erred in her articulation of them. Before setting out those principles, I remind myself that, in reviewing the decision below, this court must engage in a de novo analysis. This is so because whether the facts as found by the trial judge meet the standard for a reasonable suspicion is a question of law and reviewed on a correctness standard: R. v. Chehil , 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 60. [51] A police officer may detain an individual for investigative purposes if there are reasonable grounds to suspect, in all the circumstances, that the individual is connected to a particular crime and such a detention is necessary: R. v. Mann , 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45. [52] The following recitation of the legal principles governing the reasonable suspicion standard comes from paras. 25-35 and 45 of Chehil . [53] The reasonable suspicion threshold respects the balance struck – in this case under s. 9 of the Charter – by permitting law enforcement to employ legitimate but limited investigative techniques ( Chehil , at para. 25). Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts that can then be subjected to independent judicial scrutiny. This scrutiny is exacting and must account for the totality of the circumstances ( Chehil , at para. 26). [54] While reasonable grounds to suspect and reasonable and probable grounds to believe are similar, in that both must be grounded in objective facts, reasonable suspicion is a lower standard as it engages the reasonable possibility, rather than probability, of crime ( Chehil , at para. 27). The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime. However, the suspicion cannot be so broad that it descends to the level of generalized suspicion ( Chehil , at para. 28). [55] Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience ( Chehil , at para. 29). Reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors ( Chehil , at para. 32). Exculpatory, neutral or equivocal information cannot be disregarded when assessing a constellation of factors ( Chehil , at para. 33). [56] The requirement for objective and ascertainable facts as the basis for reasonable suspicion permits an independent after-the-fact review by the court and protects against arbitrary state action. The onus is on the Crown to show that the objective facts rise to the level of reasonable suspicion, such that a reasonable person, standing in the shoes of the police officer, would have held a reasonable suspicion of criminal activity ( Chehil , at para. 45). Application to this Case [57] To be constitutionally sound, the inference of reasonable suspicion must be grounded in objectively discernable facts known to the police and tied to both the individual being detained and the specific offence being investigated. In my view, assessed against the totality of the circumstances, a reasonable person standing in DC Rand’s shoes would have had a reasonable suspicion that the appellant was the gun suspect. [58] A consideration of the totality of the circumstances begins by placing the events in context. It will be recalled that these events began late at night in a food court on the York University campus, when a customer saw a man with a gun. The customer told a Shopsy’s employee who called York Security. York Security immediately made a 911 gun call and two police vehicles in the vicinity were deployed: DC Rand and his partner were in one car, DC Wenzel and his partner were in the other. Through video surveillance cameras, York Security saw the gun suspect get into an orange and green Beck taxi van and they described, to the police dispatch, the route that the taxi van was taking. [59] DC Rand and his partner knew that the suspected gunman was seen entering an orange and green Beck taxi van. They followed the same route as that of the taxi van and, within a very few minutes, they found and stopped an orange and green Beck taxi van carrying a lone male passenger, the appellant. At trial and before this court, the appellant accepts that the initial traffic stop was justified – that is, that it was objectively reasonable for the police officers to have concluded that the Beck taxi van was connected to the gun call. [60] As soon as the appellant stepped out of the taxi van, DC Rand knew that he did not match the gun suspect description in all respects. He was the same gender, age, height and build as the gun suspect but he appeared to be Hispanic, not Black. Later, during the pat down search, DC Rand also realized that the clothing the appellant was wearing was also different from that given for the gun suspect, although he felt it was similar. [61] However, DC Rand was certain that the taxi van he stopped was the one that the gun suspect had boarded. Its temporal and geographical proximity to the gun call, the information he had about the route the taxi van followed, the distinctive characteristics of the orange and green taxi van, the absence of other such vans in the area, and the presence of a single male passenger inside the taxi van all contributed to his certainty. This certainty, coupled with the appellant’s resemblance to the gun suspect on four key markers, gave DC Rand the reasonable suspicion that the appellant was in possession of a firearm. [62] The appellant says that the trial judge erred in accepting DC Rand’s explanation for why, despite the non-matching descriptors, he believed he had reasonable grounds to suspect that the appellant was the gun suspect. I do not agree. [63] It will be recalled that, at trial, DC Rand explained why the discrepancies in skin colour and clothing did not undermine his suspicion that the appellant was the gun suspect. During his many years as a police officer, he had worked dozens of gun calls and learned that eye witnesses are often mistaken when they try to describe a person they have just seen. He explained that there are many factors that can impair a witness’s ability to accurately observe and retain information about eyewitness identifications. In this case, DC Rand knew almost nothing about the eyewitness’s capacity to observe the gun suspect. And, in his experience, it is not uncommon for a suspect to change clothes while police are in pursuit. [64] The trial judge found that DC Rand was entitled to rely on his 18 years of police experience in assessing how much weight to attach to the physical descriptors. She also found his conclusion that such descriptions can often be wrong was reasonable in the circumstances where he knew nothing of the perspective or ability of the witness who had given the description of the gun suspect. [65] I see no error in the trial judge’s findings on this matter.  The known frailties of identification evidence have been identified both in social science literature and in Canadian jurisprudence: see, for example, R. v. Hay , 2013 SCC 61, [2013] 3 S.C.R. 694, at para. 40, R. v. Hibbert , 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 78-79. Further, the trial judge was obliged to determine whether a reasonable person “standing in DC Rand’s shoes” would have had a reasonable suspicion that the appellant was the gun suspect. In making that determination, it was open to the trial judge to consider DC Rand’s policing background and to find, as she did, that he was entitled to rely on his 18 years of policing experience when assessing how much weight to give to the non-matching physical descriptors. [66] The appellant also complains that the trial judge placed undue weight on DC Rand’s belief that the taxi van was the same one that York Security saw the gun suspect enter. Again, I see no error in her finding on this matter. The initial traffic stop was objectively reasonable, as the appellant conceded. Only a few brief minutes elapsed between York Security advising it had seen the gun suspect enter the orange and green taxi van and the police stop of a vehicle of the same description. Further, the location of the taxi van was fully consistent with the route which York Security described the taxi van carrying the gun suspect to have followed. [67] Finally, the appellant takes issue with the trial judge’s treatment of Clayton . Again, I do not agree. As the trial judge noted, in Clayton , the police had only two physical descriptors available to them. In this case, the appellant matched several of the physical descriptors; the vehicle description was distinctive and a match; and, the geographical and temporal connections were relevant and accurate. [68] In conclusion, I remind myself that in determining whether there are objective facts that rise to the level of reasonable suspicion, the court must conduct an exacting scrutiny. However, while probing, the judicial inquiry must be fact-based, flexible, and grounded in common sense. As well, it is important to recall that reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. [69] In this case, the appellant matched four key characteristics of the gun suspect – gender, age, height and build. It is true that the appellant appeared to be Hispanic, rather than black, as the gun suspect had been described, and that his clothing was also different from that given for the gun suspect. But DC Rand did not disregard these non-matching physical descriptors. He explained why they did not detract from his certainty that the passenger in the Beck taxi van was the gun suspect and his explanation was found to be reasonable by the trial judge. The matching four physical characteristics, the distinctive features of the Beck taxi van, the absence of other such vehicles in the vicinity, and the temporal and geographical connections between the Beck taxi van and the gun sighting are objectively discernible facts to be understood within the context of a 911 gun call. The police were faced with a dangerous and dynamic situation in which public safety was the paramount concern. In my view, based on the totality of the circumstances, the appellant’s continued detention was objectively reasonable. (2) Did the trial judge err in failing to exclude the evidence? [70] The trial judge’s s. 24(2) analysis is based on her conclusion that the search of the appellant’s knapsack was the only breach of his Charter rights. The appellant’s submission is that his continued detention, following the initial stop of the taxi van, was unlawful and constituted a breach of s. 9. Accordingly, he says, this court owes no deference to the trial judge’s application of the Grant test. [71] As I have found that the appellant’s continued detention was lawful, it is unnecessary to revisit the trial judge’s s. 24(2) determination. F. DISPOSITION [72] Accordingly, I would dismiss the conviction appeal. The Crown has conceded that the mandatory victim fine surcharge should be quashed and I would so order. Released: March 11, 2020 (“K.F.”) “E.E. Gillese J.A.” “I agree. K. Feldman J.A.” “I agree. B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Bernard, 2020 ONCA 170 DATE: 20200305 DOCKET: C65447 Rouleau, Benotto and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Beverley Bernard Appellant Maija Martin and David Reeve, for the appellant Victoria Rivers, for the respondent Heard: February 6, 2020 On appeal from the conviction entered by Justice Paul O’Marra of the Ontario Court of Justice on November 16, 2017, with reasons reported at 2017 ONCJ 847. REASONS FOR DECISION [1] The appellant arrived at Pearson airport on a flight from Jamaica. She was arrested after a border agent found cocaine concealed in four jars that she had been carrying in her suitcase. The jars concealing the cocaine were one of curry powder, two of Metamucil and one of psyllium. [2] The appellant claimed that she did not know there were drugs in these containers that a stranger had asked her to bring to Canada. She was convicted by the trial judge of importing cocaine. She appeals on the basis that the trial judge erred by: (i) not conducting a voir dire to determine whether a Jamaican Patois interpreter was necessary; (ii) misapprehending the evidence; (iii) failing to consider the third branch of W(D) ; and (iv) misapplying the principles in R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000 . [3] We do not accept these submissions. [4] The language issue arose from use of a pronoun. It was suggested that in Jamaican Patois, where the appellant said “he”, she could be referring to a woman. Defence counsel raised this with the trial judge and requested a voir dire . However, counsel agreed with the trial judge that, as a precondition to the request, the court should review the video of the appellant’s testimony. This was done, and the request was never raised again. Since it was not pursued at trial, there was no need for a voir dire . [5] On the second issue: the trial judge does appear to have been mistaken about some of the details of the evidence. In particular, whether the male stranger or the appellant’s cousin physically handed her the jars containing the cocaine; the precise movements of the people around the appellant over the day and hours preceding the flight to Toronto; and her family relationships. However, none of these matters were material to his ultimate findings on credibility and guilt. [6] On the third issue: the trial judge correctly applied W(D) . He examined the Crown’s case and was satisfied of guilt beyond a reasonable doubt. [7] The final issue, with respect to Villaroman , arises because the trial judge said that the evidence “reasonably supported the inference” of guilt. The appellant submits that he did not consider other reasonable inferences that pointed towards the appellant’s innocence. However, when read as a whole, it is clear that the trial judge correctly understood the law. He explained that aspects of the appellant’s evidence “defied common sense” and he disbelieved her evidence as to how she came into possession of the drugs. The trial judge then went on to find that her evidence revealed inherently suspicious events and in effect, her “evidence alone was capable of supporting a finding of deliberate ignorance”. These findings when combined with the evidence led by the Crown, left no scope for inferences other than guilt. [8] The appeal is dismissed. “Paul Rouleau J.A.” “M.L. Benotto J.A.” “Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Biddersingh, 2020 ONCA 241 DATE: 20200331 DOCKET: C62260 Feldman, Tulloch and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and Everton Biddersingh Appellant Lance Beechener and Alexander Ostroff, for the appellant Lisa Joyal, for the respondent Heard: December 2, 2019 On appeal from the conviction entered by Justice Alfred J. O’Marra of the Superior Court of Justice, sitting with a jury, on January 7, 2016. Tulloch J.A.: I. OVERVIEW [1] On September 1, 1994, the York Regional Police found a body in a burning suitcase by the side of Highway 7. The body was not identified, and it remained unidentified for a period of 18 years. [2] In 2012, after receiving a tip about the murder of a teenage girl, the police were able to identify the body through DNA testing as Melonie Biddersingh, 17  years old at the time of her death, and the daughter of the appellant, Everton Biddersingh, and step-daughter of Elaine Biddersingh. [3] The police arrested Everton and Elaine Biddersingh on March 5, 2012, as well as Everton’s son, Cleon. Cleon was charged with aggravated assault, forcible confinement, criminal negligence causing bodily harm, and causing an indignity to a human body. However, his charges were later stayed. [4] Everton and Elaine were each charged with first-degree murder. They were tried separately. Elaine was acquitted of first-degree murder, but found guilty of second-degree murder and sentenced to life imprisonment with a period of parole ineligibility of 16 years: R. v. Elaine Biddersingh , 2016 ONSC 5663, appeal pending, C63052 and C63064. Everton was convicted of first-degree murder. [5] Everton now appeals his conviction. For the reasons that follow, I would dismiss the appeal. II. FACTUAL BACKGROUND Melonie’s life with Everton and Elaine [6] The appellant, Everton Biddersingh, immigrated to Canada from Jamaica in 1979. Shortly after arriving, he married Elaine and they moved to an apartment in Toronto. Between 1985 and 1991, they had three children together, O’Neil, Kenroy, and Charmaine. [7] In 1991, Everton and Elaine were joined in Toronto by Cleon, Melonie, and Dwayne Biddersingh, Everton’s children from a previous relationship. Melonie and her siblings were born and raised in Jamaica. Melonie was 13 years old at the time of her arrival. Her older brother, Cleon, was 16, and her younger brother, Dwayne, was 12. All three lived with their father and step-mother in their Toronto apartment. Unfortunately, in June 1992, Dwayne passed away. [8] During the trials for Everton and Elaine, several witnesses, including Melonie’s older brother, Cleon, testified about Melonie’s life with her father and step-mother in Toronto. By all accounts, Melonie was neglected and badly abused. It is not necessary, for the resolution of the issues on this appeal, to review every detail of this abuse. The parties agree that Everton and Elaine both failed to provide the necessaries of life for Melonie. Melonie was starved, prohibited from going to school, confined to the apartment where they lived, and forced to work, in the words of her brother, “like a slave”. She slept on a piece of cardboard on the floor. For punishment, she was sometimes locked in a closet, locked on the balcony, confined in a cardboard barrel, or chained to the wall. Everton also physically abused Melonie, and the abuse worsened as time went on. He would kick her in the stomach, and stomp and kick her as she lay on her side. He beat her with a belt and dragged her by her hair across the ground. Cleon testified that Everton would sometimes punish him and Melonie by holding their heads in the toilet and flushing it. He said that, near the end of her life, Melonie was so weak that she walked with a limp and could not stand up. [9] In the last months of her life, Melonie and Cleon were not allowed to use the shared bathroom in the apartment to shower. Instead, they were made to clean themselves with buckets of water on the balcony. Melonie was also made to relieve herself using a pail on the balcony. Cleon would clean the balcony using buckets of disinfectant. Melonie’s disappearance [10] Cleon testified about the day in 1994 that Melonie went missing. He explained that Everton told him that Melonie had run away. Cleon was skeptical of this claim, however, as Melonie was too weak to walk and had nowhere to go. She had no contact with anyone outside the apartment. After telling Cleon that Melonie had run away, Everton instructed Cleon to get rid of the cardboard she had slept on and the chain that he had put around her ankles. Cleon was instructed by Everton to cut up the cardboard barrel where he would sometimes confine her, and to rinse off the balcony. Cleon testified that Everton and Elaine never reported Melonie’s disappearance to the police. They told everyone that she had run away to friends in New York. Melonie’s body is identified following Elaine’s conversation with her pastor [11] In 2010, Everton and Elaine began attending Reverend Eduardo Cruz’s Spanish Bible church. In late 2011, Pastor Cruz informed the police that Elaine had told him that a child had died in her and Everton’s apartment in 1994, and that they had never reported it. [12] Pastor Cruz testified at Everton’s trial. He recounted that Elaine told him that there had been a girl in the apartment who was kept in a room and was never fed. Medicine had been denied to her and the door was always locked. Elaine told him that Everton was in charge, that he was the one who had confined the girl, and that he would punish Elaine if she tried to help her. Elaine told him that, after the girl died, Everton, Cleon, and she drove the body out to a field in a suitcase and burned it. The pastor told Elaine that the allegations were very serious, and that, as he would “not be able to keep it to [him]self”, he needed to be certain they were true. Elaine assured him that it was the truth. At trial, Elaine testified that the last time she saw Melonie alive was sometime during the afternoon the day prior to her death. At the time, Melonie had been lying on the floor. Elaine further stated that she did not see Melonie until the next evening, when Everton informed her that Melonie had died. Everton then brought Elaine to the closet near the front door. He opened the closet to reveal Melonie’s body, lying stiff on the floor. [13] Pastor Cruz subsequently contacted the police, leading to the identification of Melonie’s body through DNA testing and Everton and Elaine’s arrest. Medical examinations of Melonie’s body [14] One of the main issues at Everton’s trial was the cause of Melonie’s death, specifically whether she had died by starvation or by drowning. The Crown’s theory was that Everton had either: 1) actively drowned Melonie; 2) failed to provide Melonie the necessaries of life such that she passively drowned; or 3) failed to provide Melonie the necessaries of life such that she starved to death. Several different medical experts had examined Melonie’s body following its discovery in 1994. Dr. Chiasson’s examination in 1994 [15] In 1994, Dr. David Chiasson was the Chief Forensic Pathologist of Ontario. He attended the scene where Melonie’s body was found on September 1, 1994 and performed an autopsy later that day. He made a number of relevant observations regarding the state of the body. [16] Dr. Chiasson observed that, although her body had been partially burned, Melonie showed no signs of smoke inhalation, which indicated that she was most likely already dead by the time she was burned. He also noted that Melonie’s thin limbs and “very thin body habitus” indicated malnutrition. Her body, after the burning, weighed 50 pounds. Dr. Chiasson found frothy fluid in Melonie’s lungs and some fluid in her nasal passages. He also observed that she had a contusion on her head, likely caused within 12 hours of her death, and fragments of red vegetable-like material in her vagina. [17] At the time, he concluded that the cause of death was undetermined. Dr. Pollanen’s examination in 1995 [18] Dr. Michael Pollanen, then a consultant in the Forensic Pathology Unit at the Office of the Chief Coroner for Ontario, examined Melonie’s body in 1995. His research involved the study of diatoms, which are microscopic, shell-covered plants that sometimes grow in water, and specifically how the presence of diatoms in the body of a deceased person could be used as an indicator as to whether or not the person had died by drowning. [19] He examined the fluid that Dr. Chiasson had extracted from Melonie’s nasal passage during the initial autopsy and found diatoms. He then examined Melonie’s left and right femur, finding the same four distinct types of diatoms in the femoral bone marrow as in the nasal fluid. He offered two opinions based on these observations. First, the presence of matching diatoms in the sinus and the femoral bone marrow indicated that drowning was either the cause of death or a major contributing factor. Second, the variety and diversity of diatom types was consistent with a freshwater source, but other sources of water could not be excluded. [20] As part of his testimony at trial, Dr. Pollanen outlined, through the use of a hypothetical, that it was possible that the diatoms found in Melonie’s sinus and bone marrow originated in stagnant puddles on the apartment balcony. The diatoms could have been transferred from the balcony, via a person’s hair or clothing, to a toilet or other source of domestic water (i.e., diatom-free), and then into a person’s body through drowning or near-drowning. [21] At the request of the Crown, Dr. Pollanen also provided a differential diagnosis as to the cause of Melonie’s death. He stated that, if it were assumed that diatoms were not a reliable diagnostic tool (and therefore that there was no reliable evidence in support of drowning as the cause of death), the next most likely cause of death was starvation. In reaching this conclusion, Dr. Pollanen relied heavily on Dr. Stanley Zlotkin’s 2013 report on the severity of Melonie’s malnourishment (discussed below). [22] As a result of Dr. Pollanen’s findings, Dr. Chiasson revised his opinion on the cause of Melonie’s death. He agreed that drowning was the likely cause of death. However, with regards to a differential diagnosis, Dr. Chiasson maintained that, in the event that the diatoms were not reliable, the cause of death was undetermined. Dr. Gruspier’s observations of bone fractures in 2004 [23] Dr. Katherine Gruspier, then a forensic anthropological consultant with the Office of the Chief Coroner for Ontario, examined Melonie’s body in 2004. She found that, at the time of her death, Melonie had 21 healing fractures in different parts of her body. Melonie had suffered “extensive blunt force trauma” to her lower back, pelvis, right knee, and left ankle that would have resulted in severe pain and possible immobility. Dr. Gruspier estimated that the trauma occurred between three weeks and six months before Melonie’s death, and that it could have resulted from a single incident or separate, but temporally adjacent, incidents of blunt force trauma. Dr. Zlotkin’s observations of Melonie’s Body Mass Index in 2013 [24] In 2013, after Melonie had been identified, Dr. Stanley Zlotkin, an expert on pediatric nutrition, prepared a report based on his examination of Melonie’s body. He discussed the significance of Melonie’s malnourishment with Dr. Chiasson, the forensic pathologist who had conducted the initial autopsy in 1994. Specifically, he provided his opinion on how much of her body mass would have been destroyed by burning and, consequently, how much she could be estimated to have weighed at the time of her death. He estimated that, at most, 10 percent of her body mass would have been destroyed by the fire. This left his estimate of her weight before death at approximately 55 pounds. Melonie’s height, at approximately five feet five inches, was within the normal range for a 17-year-old girl. At 55 pounds, however, her weight was that of an average eight-year-old child. Her Body Mass Index, below the first percentile for her height and age, indicated that she was “severely underweight” and could be considered severely malnourished. [25] In his testimony at trial, Dr. Zlotkin discussed the correlation between severe malnutrition and death. He explained that malnutrition causes muscle weakness and decreased functioning in the immune system. Both Dr. Zlotkin and Dr.  Chiasson testified that it is possible to die from starvation alone. III. ISSUES [26] The appellant raises three issues on appeal, all of which relate to the evidence adduced at trial with respect to cause of death: 1) The trial judge erred by permitting the Crown to ask Dr.  Pollanen to provide an alternate cause of death in the event that the diatom analysis was disregarded; 2) The trial judge erred by permitting the jury to consider starvation as an alternate cause of death, as there was insufficient evidence for a properly instructed jury to find that Melonie had died of starvation; and 3) The trial judge erred by permitting the jury to consider, solely on the basis of Dr. Pollanen’s hypothetical scenario and absent a sufficient evidentiary basis, the potential presence of diatoms on the balcony and their transfer inside the apartment. [27] The appellant submits that the result of these errors was that the charge to the jury was unnecessarily confusing. By providing multiple unsubstantiated routes of liability, the trial judge allowed the jury to sidestep the important issue of whether the appellant or someone else was responsible for Melonie’s death. IV. ANALYSIS 1) Did the trial judge err by permitting the Crown to pose a hypothetical question to Dr. Pollanen regarding an alternate cause of death? [28] At trial, Dr. Pollanen testified that his conclusion as to cause of death was that Melonie had drowned. In drawing this conclusion, he relied heavily on the finding of matching diatoms in Melonie’s sinus fluid and bone marrow in both femurs. He testified that there were multiple possibilities for how Melonie might have had diatoms in her system, and how her severely starved state could have played a role in her death: 1) Melonie was actively drowned by a person or multiple people, and her weakened state rendered her unable to resist or made her resistance ineffective; 2) Melonie drowned passively, in that her mouth and nose became submerged in water, and her weakened state meant that she was unable to extricate herself from the water; and 3) Melonie experienced a near-drowning event, which would explain the presence of diatoms in her system, but she survived, only to die of an alternate cause. [29] Dr. Pollanen explained that he favoured the simplest explanation for the diatoms, which was that Melonie had inhaled water and drowned (either actively or passively). [30] In response to the Crown’s request to address differential diagnoses for Melonie’s cause of death, Dr. Pollanen also testified that, if the diatoms were an unreliable indicator of drowning, there were two possible conclusions: 1) that Melonie simply died of starvation; and 2) that the cause of Melonie’s death was undetermined. He concluded that, of these two options, the more likely was that the cause of death was starvation. Dr. Pollanen reached this conclusion on the basis that there was evidence – the autopsy and Dr. Zlotkin’s report – that, toward the end of her life, Melonie was “on the very severe end” of malnourishment and starvation, such that it could have been the sole cause of her death. [31] During the course of his testimony, Dr. Pollanen made two additional points which are relevant to understanding and contextualizing his evidence. First, he testified that, as a forensic pathologist, he considered it important to be “skeptical” about the conclusion that drowning was the cause of Melonie’s death, because the circumstances in which her body was found provided no indication that drowning could be the cause of death. Melonie was found, starved and injured, inside a burning suitcase in a parking lot in an industrial area of Vaughan. The presence of diatoms, and the conclusion that Melonie had died of drowning, was therefore unusual and warranted skepticism. In the words of Dr. Pollanen, it was a “very odd thing to say somebody had drowned in those circumstances”, as it was “nearly contradictory” to “the history that you have of the case.” [32] Second, Dr. Pollanen acknowledged that, as some people in the medical community are “not entirely convinced” of the value of diatoms as a tool in forensic science, it was important to provide the “pros and cons” of relying on them as a diagnostic tool. For the “pros”, Dr. Pollanen discussed two main aspects of the science that tended to support its accuracy and reliability: 1) that diatoms are typically only found in about a third of people who are known to have died of drowning. According to Dr. Pollanen, this suggests that it is not common for diatoms to enter the body and, therefore, that, when they are present, they are indicative of freshwater inhalation; and 2) that, when multiple people are known to have drowned together in the same body of water (and diatoms are found inside them), they tend to have the same type of diatoms inside their bodies. According to Dr. Pollanen, this suggests that the diatoms often originate in the water itself and not another, independent source. As a result, where diatoms are found inside a body, their presence tends to support the conclusion that they originated in a water source. [33] With regards to the “cons”, Dr. Pollanen outlined the two main criticisms of diatom analysis: 1) that it is possible for diatoms to enter the body through mechanisms other than water inhalation (e.g., dust inhalation). Where this occurs, the diatoms are “spurious”, in the sense that they provide false support for the conclusion that the person has drowned, despite offering no actual medical insight into how death occurred; and 2) that it is possible for people to experience a near-drowning episode, in which they inhale water containing diatoms, but do not drown. In these cases, the presence of diatoms could be entirely misleading as to the cause of death, or it could be used to support a theory that a near-drowning experience set in motion medical complications that led to death. [34] Dr. Pollanen explained that he considered the possibility of spurious diatoms in this case unlikely, because diatoms were found in Melonie’s sinus and her two femurs. Had he found diatoms only in Melonie’s bones, he would have been sufficiently skeptical to refrain from concluding that drowning was the cause of death. In his view, however, the concordance between the fluid in the sinus and the diatoms in the femurs addressed the criticism of diatom testing in the context of this case. Argument on Appeal [35] The appellant argues that Dr. Pollanen’s opinion that starvation was a possible alternate cause of death was not sufficiently probative to be admitted into evidence. Although Dr. Pollanen testified that, in the event that diatoms were unreliable, starvation was the likely cause of death, his ultimate conclusion was that drowning was either the cause of death or a significant contributing factor. This conclusion was based on his opinion that, in light of the fact that matching diatoms had been found in both Melonie’s bone marrow and sinus fluid, it was unlikely that diatoms were an unreliable diagnostic tool in the present case. Thus, while Dr.  Pollanen admitted that there is scientific controversy about the use of diatoms to diagnose water inhalation, he explained why the controversy did not apply in this case. It was, therefore, an error for the trial judge to allow the Crown to adduce evidence of Dr. Pollanen’s theory on an alternate cause of death, as there was not a sufficient evidentiary basis to support it. The admission of the evidence was prejudicial and confusing, as it elevated Dr. Pollanen’s opinion on starvation to equal footing with his actual conclusion on the cause of death, drowning. [36] I disagree. In the context of this case, I am not persuaded that it was an error for the trial judge to allow the Crown to ask Dr. Pollanen for his opinion on an alternate cause of death, assuming the diatoms were not a reliable indicator that Melonie had drowned. Given the controversy surrounding the diagnostic value of diatoms, the evidentiary basis to support starvation as the sole cause of death, and the circumstances in which Melonie’s body was found, the trial judge was justified in permitting the evidence. The evidence was properly admitted [37] In determining whether expert evidence is admissible, the trial judge must engage in the two-stage test adopted by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co. , 2015 SCC 23, [2015] 2 S.C.R. 182. At the first stage, the trial judge must determine whether the threshold requirements of admissibility are met: a) the evidence must be logically relevant; b) it must be necessary to assist the trier of fact; c) it must not be subject to any exclusionary rule; d) the expert must be properly qualified, including being willing and able to fulfil their duty to the court; and e) for any opinions based on novel science or science used for a novel purpose, the underlying science must be reliable: R. v. Abbey , 2017 ONCA 640, 140 O.R. (3d) 40, at paras. 47-48; White Burgess , at para. 23. If these requirements are met, the trial judge must advance to the second stage, in which they are required to fulfil a “gatekeeping role”: Abbey , at paras. 48, 53; White Burgess , at paras. 20, 24. As the gatekeeper, the trial judge must determine whether the benefits of the evidence outweigh its potential risks, considering such factors as legal relevance, necessity, reliability, and absence of bias: Abbey , at para. 48; R. v. J.-L.J. , 2000 SCC 51, [2000] 2 S.C.R. 600, at para.  28. [38] In this case, the threshold requirements are not at issue. The concern raised by the appellant is that the trial judge failed to adequately scrutinize the negative impacts of Dr. Pollanen’s differential diagnosis of starvation. He alleges that the evidence was not sufficiently probative, leading its admission to cause prejudice and confusion. [39] In my view, Dr. Pollanen’s opinion evidence regarding starvation as a potential alternate cause of death was sufficiently probative to be admitted into evidence. I reach this conclusion for three reasons. First, Dr. Pollanen acknowledged the potential limitations of diatoms as an effective tool in forensic science. As I understand Dr. Pollanen’s testimony, diatom analysis is not always reliable and can even be misleading in certain cases. While Dr. Pollanen noted that the presence of matching diatoms in Melonie’s sinus fluid and femoral bone marrow reduced the likelihood that the diatoms found were spurious, their presence did not definitively establish drowning as the cause of death. [40] Second, there was an evidentiary basis upon which a jury could conclude that Melonie had died by starvation. While Dr. Pollanen was “clearly of the opinion that drowning was the cause of death or a major contributing factor, he did not exclude the possibility of starvation being the cause of death”: R. v. Biddersingh , 2015 ONSC 6063, at para. 26. Dr. Pollanen’s conclusion that starvation was a possible cause of death was based on his expertise as a forensic pathologist and Dr. Zlotkin’s report, which indicated that Melonie’s starvation was “more severe than [he] had originally appreciated”. Although Dr. Pollanen did not prefer it to drowning as the likely cause of death, starvation was not merely speculative. The mere fact that Dr. Pollanen was prepared to opine that starvation was a viable explanation as to the cause of death is indicative of this fact. [41] Third, the circumstances of the discovery of Melonie’s body were such that a jury could reasonably doubt the conclusion reached by Dr. Pollanen that Melonie had died as a result of drowning. As noted above, Melonie’s body was found burning in a suitcase. Her body showed visible signs of starvation and malnutrition. There was no body of water anywhere in the vicinity. As Dr. Pollanen noted, these are “not the circumstances that would naturally take you to drowning.” Rather, these are circumstances that invite reasonable skepticism. While Dr. Pollanen preferred the diatom analysis in reaching his conclusion, it was open to the jury to find that, in light of the potential limitations of diatom analysis and the unusual circumstances of the discovery of Melonie’s body, it was more likely that she had died of starvation than drowning. [42] In effect, Dr. Pollanen’s evidence, while supporting his conclusion that drowning was the cause of death or a significant contributing factor, also provided a sufficient evidentiary basis to support an alternate conclusion. Though starvation was, in the opinion of Dr. Pollanen, clearly a less likely cause of death than drowning, it was not merely speculative. Rather, it was a reasonable possibility, both if the jury rejected the diatom analysis as reliable, or if they accepted it, but accepted that Melonie had survived a near-drowning episode and had died later of an alternate cause. [43] The evidence on starvation also gave important context to Dr. Pollanen’s theory on the cause of death, as it helped to establish its boundaries and reasonable limits. In this sense, the approach taken to the evidence was consistent with the spirit of the report of the Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Ontario Ministry of the Attorney General, 2008) (“ the Goudge Report ”). [44] Tasked with reviewing the practice of pediatric forensic pathology in Ontario and offering recommendations to restore and enhance the public’s confidence in its practices, the Goudge Inquiry made recommendations for situations involving potential controversy or where alternate explanations may exist. With regards to cases of potential controversy, the Goudge Report instructs forensic pathologists to explain to the court the nature of the controversy and place their own opinion within that controversy, in order that the judge or jury may understand how and why they arrived at their conclusions. They have an obligation to ensure that the finder of fact understands the limitations of the science: Recommendation 91. Relatedly, where alternate explanations for pathology findings may be available on the evidence, the Goudge Report advises, in Recommendation 90, that: Forensic pathologists should outline in their post-mortem or consultation reports the alternative or potential diagnoses that may arise in a case. They should also evaluate alternative explanations that are raised by the pathology or by the reported history associated with the deceased’s death. They should describe precisely what alternative explanations have been considered and why they can or cannot be ruled out . The same principles should inform all forensic pathologists’ communications, including their testimony. [Emphasis added.] [45] The admission of Dr. Pollanen’s evidence complied with this approach. The jury was entitled to know about the controversy regarding diatom analysis in order to understand the basis of Dr. Pollanen’s opinion and its limits. Indeed, the appellant does not dispute this. The evidence about the controversy and alternative explanations provided the jury with the tools they needed to assess whether they accepted Dr. Pollanen’s evidence about the reliability of diatoms in this case, and what the consequences would be of accepting or rejecting that evidence. [46] If the appellant’s position were to be accepted and experts were to be denied the opportunity to opine on potential alternate causes of death, the jury could be placed in a position where they are told by an expert about the existing relevant controversies surrounding the expert’s particular opinion on the cause of death, and the controversies’ import for understanding and evaluating the expert’s opinion, but be left unequipped to draw alternate conclusions if they chose to reject some or all of the expert’s conclusions. In other words, while the jury would have evidence permitting them to reasonably reject the conclusions of the expert (i.e., the relevant controversy), they would be without any guidance as to viable alternative causes of death if they actually chose to do so. Such a situation would effectively preclude the jury from hearing alternate explanations simply because an expert considers them less likely. As will be explained below, where there is an air of reality to a potential cause of death, the jury is entitled to consider it, regardless of whether any expert concludes that it was the most likely cause of death. [47] In cases where there is controversy surrounding the science forming the basis of the expert opinion, the admissibility of alternate explanations for a phenomenon cannot depend on the expert’s view on the reliability of their own opinion. This would be inconsistent with the Goudge Report , and the jury’s role as the finder of fact. The evidence did not cause confusion or prejudice [48] Contrary to the appellant’s submission, the jury would not have had an inflated sense of the probative value of Dr. Pollanen’s conclusion that starvation was a possible alternate cause of death. The evidence before them was quite clear. Dr. Pollanen explained his view that the cause of death was drowning. He explained that his opinion was based on the finding of diatoms. He explained why, in his view, diatom analysis is, on the whole, reliable as a tool in forensic science. He provided his evidence in a “balance[d]” manner, explaining that there was some controversy surrounding the value of diatoms. He outlined both the benefits and limitations of the science. It was, at all times, clear that both Dr. Pollanen and Dr.  Chiasson were of the opinion that drowning was the cause of death. It was only in the event that diatoms were considered unreliable that Dr. Pollanen would conclude that starvation had been the likely cause of death. [49] The jury would have understood that the question posed to Dr. Pollanen was a hypothetical, and that they would have to reject both his and Dr. Chiasson’s opinions about the diatoms in order to find that starvation was the cause of death. The jury also would have understood that if they rejected the diatoms, Dr. Pollanen and Dr. Chiasson disagreed about the alternate cause of death. Dr. Pollanen’s view was that the cause of death was starvation; Dr. Chiasson would have reverted to his initial opinion that the cause of death was undetermined. [50] The trial judge explained this evidence in a straightforward manner in his final instructions to the jury. The trial judge’s charge was thorough and included multiple warnings against speculating or making up theories without evidence to support them. In closing submissions, defence counsel gave the same warning, as did the Crown. [51] The jury would have understood precisely the scope of Dr. Pollanen’s opinion, the science he based it on, why he considered that science reliable, and that the starvation theory was premised upon rejecting the science that Dr.  Pollanen considered reliable. [52] I also reject the appellant’s submission that the hypothetical question occasioned prejudice due to the increased complexity and time of the proceedings. While it is true that the evidence about starvation as a potential cause of death opened additional routes of liability, as I will explain, these routes were reasonably available on the evidence. Further, the extent of Melonie’s starvation was an important issue at trial. Given the evidence that the appellant was responsible for starving and beating Melonie, and the role Melonie’s weakened condition could have played in her death by drowning, even where starvation was not the cause of death, the evidence about Melonie’s starved state was a significant focus at trial. [53] In sum, given the scientific controversy about diatoms, the evidentiary basis to support starvation as a possible alternate cause of death, the circumstances of the discovery of Melonie’s body, and the need for the jury to understand the limits of Dr. Pollanen’s opinion, it was appropriate for the Crown to ask Dr. Pollanen about differential diagnoses. The approach taken by the trial judge allowed the jury to have a full understanding of the expert evidence, the controversy surrounding it, and how it related to the other evidence in this case. The jury was well equipped to make its own assessment of the evidence and, as I will explain, it was ultimately for the jury to decide whether to accept Dr. Pollanen’s evidence considering the scientific controversy. Dr. Pollanen offered compelling reasons for them to do so, but the choice was theirs and theirs alone to make. 2) Did the trial judge err by permitting the jury to consider starvation as an alternate cause of death? [54] In his charge to the jury, the trial judge explained that there was evidence on which they could find that starvation was either the cause, or a significant contributing cause, of Melonie’s death. [55] The appellant urges us to find that this instruction was erroneous, as there was no evidence on which a reasonable jury, acting judicially, could have made the factual findings necessary to conclude that Melonie had died by starvation. In oral argument, the appellant made essentially two submissions on this ground of appeal: 1) there was no evidence of a causal link between Melonie’s starved state and her death; and 2) there was no evidentiary basis on which the jury could discount Dr. Pollanen’s evidence that the diatoms meant that drowning was the cause of her death. [56] I disagree. As the trial judge found, the theory that Melonie’s death was caused by starvation was reasonably available on the evidence. There was an air of reality to the theory that Melonie had simply died of starvation, or that she had experienced a near-drowning episode before dying of starvation. Contrary to the appellant’s submission, the medical and non-medical evidence could establish a causal link between Melonie’s death and her extreme state of starvation. I also reject the appellant’s argument regarding the absence of evidence on which the jury could have discounted Dr. Pollanen’s opinion about the significance of the diatoms. There was evidence linking Melonie’s death and starvation [57] In order for a particular theory of factual causation to be open to the trier of fact to consider, it must have an air of reality. In other words, there must be some evidence upon which a properly instructed jury could find that the deceased’s death was caused, “in a medical, mechanical, or physical sense,” in that particular manner, beyond a reasonable doubt: R. v. Huard , 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 60, leave to appeal refused, [2014] S.C.C.A. No. 13; R. v. Nette , 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 44. In determining whether an evidentiary basis exists strong enough to establish an air of reality, any and all evidence that bears upon the question of factual causation is to be considered, including both expert and non-expert evidence: R. v. Manasseri , 2016 ONCA 703, 132 O.R. (3d) 401, at para. 193, leave to appeal refused, [2016] S.C.C.A. No. 513. In reviewing the evidence, the trial judge must be careful not to “evaluate the quality, weight or reliability of the evidence”, but rather must simply decide whether the evidentiary burden has been met: R. v. Fontaine , 2004 SCC 27, [2004] 1 S.C.R. 702, at paras. 11-12. [58] In this case, there was both lay and medical evidence that could establish a causal link between starvation and death. The most important lay evidence on this point came from Cleon Biddersingh. Cleon testified that Melonie’s condition deteriorated in the weeks before her death. He testified that, leading up to her death, Melonie was very skinny and severely ill. She was very weak and crawled most of the time. She was incontinent. When Cleon stole food for her, she was unable to keep it down. She was vomiting and in pain. Put simply, Cleon testified that Melonie’s condition was extremely poor, and it worsened before her death. [59] Similarly, Elaine Biddersingh testified that she thought Melonie had died of malnutrition. The last time she saw her alive, she was lying on the floor. Her weight had been dropping, and she was not eating much. Elaine’s evidence about the night of Melonie’s death, if believed, suggested that Melonie died alone, in the closet. [60] There was also expert medical evidence to support a causal link. Dr.  Pollanen testified that, on the basis of all the medical evidence, it was clear that Melonie was malnourished, and that her malnutrition was the result of starvation. He explained that, on the basis of Dr. Zlotkin’s report, Melonie was on the “very severe end” of starvation and that, as there was no indication that Melonie had died of an infection or other medical complication, it was possible that her chronic starvation had simply led to an inability by her body to sustain metabolism. He stated that there was “adequate evidence for [him] to support starvation as the cause of death.” His evidence also suggested that a near-drowning episode could have occurred prior to her death by starvation. [61] Dr. Zlotkin and Dr. Chiasson’s evidence also supported a connection. For instance, Dr. Zlotkin testified that Melonie’s malnourishment was severe and the degree of pain she was in would have been “absolutely evident” to anyone. He explained that starvation results in the eventual loss of muscle tissue, which would explain Melonie’s weakness. Similarly, Dr. Chiasson’s evidence noted Melonie’s “thin body habitus”, which was suggestive of “chronic malnourishment”. He estimated that the process had likely been “going on for a long period of time. Months, could be years.” Both he and Dr. Chiasson testified that it is possible to die from starvation alone. [62] When considered as a whole, this lay and medical evidence supported the commonsense inference that Melonie’s starvation had caused her deteriorating condition and, ultimately, her death. Dr. Pollanen’s evidence, alone provided a clear causal link between Melonie’s starved state and her death. He testified that had he not concluded she died of drowning, he would have found starvation was the cause of her death. He said: “I have to go with what I see, and I see a starved girl. And if you take diatoms off the table, I simply think that she starved and that’s the cause of death.” [63] For these reasons, in my view, there was ample evidence to give an air of reality to the theories of liability based on starvation as a cause of death. The jury, properly instructed, could reasonably have found that Melonie died simply of starvation (assuming they rejected the diatom analysis), or that she died of starvation after a near-drowning episode. There was an evidentiary basis for the jury to discount the diatom analysis [64] In order for the jury to have found that Melonie died simply of starvation, it would have been necessary for them to reject the diatom analysis put forward by Dr. Pollanen and accepted by Dr. Chiasson. The appellant submits, however, that such a choice was not, in fact, open to them, as there was no evidentiary basis on which to discount Dr. Pollanen’s opinion that the presence of diatoms meant that Melonie drowned. He argues that any theory reliant on the disposal of the diatoms had no air of reality and should not have been left with the jury. [65] The appellant’s assertion that there had to be evidence upon which the jury could discount the diatom analysis amounts to suggesting that the jury was required to accept Dr. Pollanen’s evidence absent evidence to the contrary. As will be explained below, this is not the case. In any event, Dr. Pollanen’s evidence about the controversy surrounding diatom analysis, as well as his acknowledgment of starvation as a viable alternative cause of death, provided an evidentiary basis for the jury to discount Dr. Pollanen’s conclusion on causation. [66] There can be no doubt that the issue of causation is for the jury to decide, and not for the experts to dictate: Smithers v. R. , [1978] 1 S.C.R. 506, at p. 518. The jury is required to consider all relevant evidence in deciding the issue of causation: R. v. Pocock , 2015 ONCA 212, 19 C.R. (7th) 60, at para. 19. The jury is entitled to accept or reject any part of the evidence, whether lay or expert, and to determine how much weight to give any expert evidence: Smithers , at p. 518. [67] Of course, for a theory of liability to be left with the jury, the record must reveal “some evidence on the basis of which a reasonable jury, acting judicially, could make the factual findings necessary to ground liability” on the theory: Huard , at para. 60. But the fact that expert evidence contradicts one theory of liability does not necessarily mean that it cannot be left with the jury. [68] In my view, this is especially true where, as here, there is controversy surrounding the science that forms the basis for the expert opinion, and where other evidence led at trial supports alternate explanations. [69] The appellant relies on this court’s decisions in R. v. Hong , 2019 ONCA 170, Pocock , and R. v. Talbot , 2007 ONCA 81, 217 C.C.C. (3d) 415, to support his argument that simple starvation should not have been left with the jury because the expert evidence was that Melonie died of drowning. In my view, these cases do not assist the appellant. Rather, they merely support the general rule that the jury, in deciding the issue of causation, is not required to defer to the opinions of experts. As this court noted in Hong , at para. 28, there is no rule that “a jury can only find causation where there is medical evidence to support such a finding.” The jury can determine factual causation on the basis of any evidence that reasonably supports the conclusion. [70] In this case, there was both lay and medical evidence which could have supported an inference that Melonie’s death was caused by her extreme state of starvation, whether following a near-drowning event or independent of any drowning. [71] Dr. Pollanen’s evidence about the controversy surrounding diatoms provided the means for the jury to assess his opinion that Melonie’s death was caused by drowning. The jury was entitled to assess Dr. Pollanen’s evidence about the controversy and his opinion as to why the diatoms were nonetheless reliable in this case. As outlined above, Dr. Pollanen’s view that the diatoms were a reliable indicator that drowning was the cause of Melonie’s death did not bind the jury, nor did it prevent them from considering the evidence about the diatoms and the controversy along with all the other evidence relevant to causation. [72] As part of his argument, the appellant points to Dr. Pollanen’s statement that: Sometimes cause of death is purely a matter of expert opinion. There is no way a layperson could determine the cause of death. This is a case of that. There is no way a layperson could determine how this woman died. [73] This statement does not assist the appellant. As Dr. Pollanen clarified in re-examination, this comment was a description about the nature of the analysis of Melonie’s remains. A lay person could not examine her sinuses or femurs for diatoms to reach a conclusion as to the viability of drowning as a potential cause of death. Similarly, while a lay person certainly could have looked at Melonie and been concerned at how underweight she was, expert evidence was required to assess the extent of her starvation, and the nature of the possibility of death by starvation. The jury had the assistance of experts on both points and could make the ultimate decision about Melonie’s cause of death. Defence counsel argued in closing submissions that it would be dangerous for the jury to reject the evidence of Dr. Pollanen. The trial judge also reminded the jury that Dr. Pollanen considered the question of cause of death to be a matter for the experts in charging them on the cause of death. The jury would have understood the importance of the expert evidence on causation. [74] Declining to leave the starvation routes of liability with the jury would have undermined the jury’s fact-finding role by effectively requiring them to accept Dr.  Pollanen’s opinion despite the controversy surrounding diatoms and the other evidence pointing to starvation as a cause of Melonie’s death. The trial judge did not err. 3) Did the trial judge err by permitting the jury to consider the potential presence of diatoms on the balcony and their transfer inside the apartment? [75] At trial, Dr. Pollanen gave evidence regarding how diatoms might grow on the balcony or in containers kept on the balcony. He testified to the following: 1) Diatoms are not found in rainwater, or in municipal tap water, which is filtered; 2) Diatoms could be present in standing water, including rainwater or tap water, on the balcony. However, if the water source did not contain diatoms, there would have to be some other source of diatoms for them to grow (e.g., algae), because they do not materialize out of thin air; 3) Assuming there was a source of diatoms available, diatoms could grow in standing water if they had sunlight and a source of nutrition; and 4) He could not say how long it would take diatoms to grow. [76] Dr. Pollanen accepted that if diatoms had grown in standing water, they could attach themselves to a person’s hair or clothing, and thereby transfer into other water sources, such as the toilet inside the apartment. He considered this a reasonable line of inference, although he noted that it required multiple steps to occur. [77] Dr. Pollanen also testified that diatoms have been found in water that would not ordinarily contain diatoms, such as municipal water. He described a case of an individual who had drowned in a bathtub but had diatoms in their body. The diatoms had gotten into the bathtub because it was contaminated with kitty litter, which contained diatoms. [78] Based on this testimony, the trial judge found that the “transfer of diatoms have an evidentiary basis to be considered by the jury.” [79] The appellant submits that this ruling constituted an error, as there was no evidentiary basis for the jury to find that a source of diatoms (e.g., pond scum) had been transferred to the balcony. He argues that, as diatoms do not spontaneously materialize, the evidence could, at most, support a finding that diatoms began growing in stagnant rainwater exposed to sunlight on the balcony. [80] In my view, there was sufficient evidence of a source of diatoms on the balcony, based on Dr. Pollanen’s testimony. In re-examination, the Crown addressed whether diatoms could grow in rainwater on a balcony. In the course of this exchange, Dr. Pollanen testified that an out-of-door surface exposed to the elements, such as a balcony, can have sediment or material on it that contains diatoms. He testified as follows: Q. Okay. And I just want to talk about a puddle of rain water on the balcony – A. Yes. Q. Just if we have a puddle, the puddle forms from just the rain water? A. Right. Q. And can diatoms grow in that circumstance? A. On the surface, yes. But you need to – but they’re not coming from the rain water, is my point, they’re growing on the surface of the balcony in the puddle. Q.  Okay. But the puddle on the balcony, if it is just made from rain water, can they grow in the rain water? A. They can grow in the rain water, that’s correct, yes. Q. On their own, just with rain water? That’s our whole point of this hypothetical is that you’ve made the distinction between tap water – A. Right. Q. And we’ve ah and – A. Tap water – tap water doesn’t contain them. Q. That’s correct? A. An out-of-door surface exposed to the elements can contain them. Q. Okay? A. And the rain water comes down, they can grow on the surface. It’s not – it’s not like um, you know, the water has come from a filtration plant, right – Q. Okay. That’s – that’s – A. It’s – this is – this is out in the elements, you know – you know, there is – there are organisms around. There is – you know, if you look at the sidewalks or other surfaces, they have this material and sediment, and that’s what I’m saying – [1] [Emphasis added.] [81] Reiterating that these are microscopic particles that cannot be seen with the naked eye, Dr. Pollanen described the kind of conditions allowing for diatoms to grow on a surface as resembling a “green” or “brown scum residue”. He accepted that if this kind of residue were present on the balcony – which was possible, because the balcony was exposed to the elements, and had been for many years – then there would be a source of diatoms on the balcony. The jury had before them evidence that the balcony was exposed to the elements, and that it was used to store various items, such as garbage, bicycles, old tires, old furniture, a grocery cart, and pails. [82] The trial judge’s reasons for allowing this evidence to go to the jury reflect that he correctly understood Dr. Pollanen’s evidence that there had to be an independent source of diatoms for them to grow on the balcony. He referred to Dr.  Pollanen’s evidence that a concrete surface must have diatoms present on it for diatoms to grow in rainwater. The trial judge’s comments in the course of the pre-charge conference likewise reflect that he correctly understood Dr. Pollanen’s evidence about the need for an independent source of diatoms for them to grow in these circumstances. [83] Defence counsel ably argued in closing submissions that the theory of balcony diatoms was not very compelling, and the trial judge repeated Dr.  Pollanen’s view that this theory required a multi-step line of inference in his charge to the jury. The jury would have understood the limitations of this evidence and would have been well-positioned to assess whether the evidence was strong enough to support making the inference sought by the Crown. The trial judge did not err. V. DISPOSITION [84] In all the circumstances, I would dismiss the appeal. Released: “K.F.” March 31, 2020 “M. Tulloch J.A.” “I agree. K. Feldman J.A.” “I agree. M. Jamal J.A.” [1] I note that it would have been impossible for the Crown to lead conclusive evidence about the presence of diatoms on the balcony in 1994. Dr. Pollanen confirmed that testing the tap water or Lake Ontario for diatoms in 2012, once Melonie’s identity had been discovered and the appellant had been arrested, would not have been a useful exercise. The presence or absence of diatoms in the tap water in 2012 would not have provided any information about the presence or absence of diatoms in the same location in 1994, and it would not have been useful to compare diatoms in Lake Ontario in 2012 to those found in Melonie in 1994. There was no further testing that could have been done in this case.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)      any of the following offences; (i)       an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)      two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)      In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)      at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)      on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)      In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)      An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Bradley, 2020 ONCA 206 DATE: 20200316 DOCKET: C66463 Hoy A.C.J.O., Paciocco and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Joseph Bradley Appellant Amanda M. Ross, for the appellant Bradley Reitz, for the respondent Heard: March 10, 2020 On appeal from the conviction entered on June 21, 2019 by Justice Graham Wakefield of the Ontario Court of Justice, sitting without a jury. REASONS FOR DECISION [1] Six passengers of a motor vehicle operated by Mr. Joseph Bradley were injured after his motor vehicle sideswiped or was sideswiped by another vehicle and Mr. Bradley lost control. Only four of those six occupants were wearing seatbelts at the time of the accident. The two young female passengers who were sitting, unbuckled, on the laps of other occupants were particularly badly injured. [2] The group had been at a party, as were the occupants of the other motor vehicle involved in the accident. Both drivers were prosecuted for six counts of street racing causing bodily harm, contrary to s. 249.4 of the Criminal Code , R.S.C., 1985, c. C-46, one count for each of the injured occupants of the Bradley vehicle. Only Mr. Bradley was convicted, and only of two counts of the included offence of dangerous driving causing bodily harm contrary to Criminal Code , s. 249(1), relating to the injuries sustained by the two unbuckled occupants. [1] Mr. Bradley appeals those convictions. The Crown has not cross-appealed the acquittals. [3] Mr. Bradley pursues three grounds of appeal. First, Mr. Bradley contends that the trial judge erred by conflating the actus reus and mens rea elements of the offence. Mr. Bradley does not contest that the trial judge found that his manner of driving was a marked departure from the norm, thereby satisfying the mens rea elements of the dangerous driving offences, nor does he appeal this finding. His complaint is that, as a result of the conflation that occurred, the trial judge convicted him without ever finding that he committed the actus reus by operating his motor vehicle in an objectively dangerous manner. [4] We disagree. The trial judge opened his Reasons for Judgment by accurately identifying the actus reus issue as “ whether the Crown has proven the manner of driving was dangerous resulting in the injuries suffered by each victim” (emphasis added). Although the trial judge found that none of the components of Mr. Bradley’s driving standing alone amounted to dangerous driving, a fair reading of his Reasons for Judgment makes clear his finding that, in all the circumstances, Mr. Bradley engaged in an unsafe pattern of driving, including by choosing to speed with unbuckled passengers. The fact that the trial judge tended to describe the manner of driving by using the measure of “marked departure” does not demonstrate otherwise. It is evident the trial judge used this phrase to describe the degree of risk or dangerousness in Mr. Bradley’s manner of driving, something the Supreme Court of Canada itself did in R. v. Roy , 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 40. We would not give effect to this ground of appeal. [5] In the alternative, Mr. Bradley argues that the trial judge erred by treating the fact that the two occupants were unbuckled and on the laps of other passengers as relevant to the actus reus of dangerous driving. He contends that although a trial judge may consider everything that affects the actual operation of the motor vehicle, to be relevant a contextual circumstance must be comparable to the circumstances articulated in s. 249(1). We disagree. [6] Section 249(1) provided at the relevant time: 249(1) Every one commits an offence who operates (a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place. [7] Section 249(1) uses the term “including” to make clear that the expressed illustrations are not exhaustive. Both the natural meaning of the phrase, “a manner that is dangerous to the public”, and the purpose of the provision of criminalizing dangerous driving, capture any circumstances that enhance the dangerousness to the public of the manner of driving. We see no error in the trial judge’s finding that Mr. Bradley drove in “a manner dangerous to the public” when he engaged in the pattern of driving that he did, with unbuckled passengers. [8] Finally, Mr. Bradley argues that the trial judge erred in convicting him of the offence of dangerous driving without addressing factual causation. Again, we do not agree. Although the trial judge did not dedicate a section of his analysis to the causation issue, he made the requisite findings. As the passage from his Reasons for Judgment quoted above indicates, the trial judge expressly identified causation as an issue in the trial, asking “whether the Crown has proven the manner of driving was dangerous resulting in the injuries suffered by each victim” (emphasis added). In the course of his decision the trial judge identified the “markedly higher risk of injury to those additional passengers not buckled in” and commented that “the risk to the two unbuckled passengers was blatantly obvious”. He closed his decision by finding that Mr. Bradley failed to prevent the risk to those passengers, both of whom were particularly seriously injured relative to the other passengers. Given that the dangerousness of the driving the trial judge found included the fact that there were unbelted passengers on the laps of other occupants, the trial judge’s finding that factually the manner of driving caused the injuries to these young women is obvious. [9] It is always appreciated when trial judges articulate the contested elements of the offence and give each dedicated attention, but it is not an error to fail to do so where it is apparent that the required conclusions were made. That is the case here. [10] The appeal is dismissed. “Alexandra Hoy A.C.J.O” “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” [1] These provisions have since been repealed but were in force at the time of the accident.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.5 (1)     Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. (2)     On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice. (2.1) The offences for the purposes of subsection (2) are (a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c). (3)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community. (4)     An applicant for an order shall (a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies. (5)     An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice. (6)     The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private. (7)     In determining whether to make an order, the judge or justice shall consider (a) the right to a fair and public hearing; (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; (c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation; (d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (f) the salutary and deleterious effects of the proposed order; (g) the impact of the proposed order on the freedom of expression of those affected by it; and (h) any other factor that the judge or justice considers relevant. (8)     An order may be subject to any conditions that the judge or justice thinks fit. (9)     Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (a) the contents of an application; (b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19 486.6 (1)  Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Campbell, 2020 ONCA 221 DATE: 20200317 DOCKET: C62024 & C62289 Benotto, Huscroft and Jamal JJ.A. DOCKET: C62024 BETWEEN Her Majesty the Queen Respondent and Orville Campbell Appellant DOCKET: C62289 AND BETWEEN Her Majesty the Queen Respondent and Stanton David Appellant Philip Campbell, for the appellant Orville Campbell James Lockyer and Mindy Caterina, for the appellant Stanton David Deborah Krick and Linda Shin, for the respondent Her Majesty the Queen Heard: February 19, 2020 On appeal from the conviction entered on November 4, 2015 by Justice I.V.B. Nordheimer of the Superior Court of Justice. By the Court: [1] The appellants were convicted of first-degree murder. They appeal the convictions on the basis that the first-degree murder verdict was unreasonable. They also submit that the trial judge erred in his charge to the jury on post-offence conduct, party participation, the Vetrovec warning, the pathology evidence, and the use of the criminal record of the deceased. [2] They seek a new trial on first-degree murder or in the alternative, a new trial on second-degree murder. [3] We have concluded that the verdict on first-degree murder was unreasonable and that there was no error requiring a new trial on second-degree murder . [4] For the reasons that follow, we dismiss the appeal but substitute a verdict of second-degree murder and remit the matter to the Superior Court for sentencing. FACTS Background [5] In the spring of 2012, the appellants Orville Campbell and Stanton David were in custody. Campbell ’ s charges were ultimately withdrawn, but while he was in jail, his girlfriend Chelise Strong began a relationship with Ricardo Vincent. Campbell was released from prison on May 4, 2012. Over the following days, he encountered Vincent and animosity ensued. [6] On May 10, 2012, outside of a convenience store on Glamorgan Avenue in Scarborough, Campbell stared at Vincent from inside his car and Vincent yelled at Campbell to “ fuck off ” . Later that day Campbell left a voicemail for Strong saying “ Tell your little boyfriend I ’ m not scared of him. If he wants an issue I ’ m not scared of him. Why is he telling me to fuck off. ” On May 13, Campbell was at a night club in Scarborough with friends and coincidentally ran into Strong and Vincent. Vincent threatened to “ fuck him up ” and said that Strong didn ’ t want his “ broke ugly ass ” . Campbell retorted that he was still having sexual relations with Strong. Campbell later texted Strong saying: (i) “ Now I see wat [sic] it is, tell ur lil bf when I see him he better have it ” and (ii) “ Yo if da nigga even try ’ s to crack to me he ’ s dead he better kno wha it is, and as for u jus holla at me! I ’ m done havin my feelings hurt from u parin wit nighas ” . [7] After the incident at the nightclub, Campbell met with L.S., a friend of Vincent and an acquaintance of both appellants. L.S. told Campbell that it did not make sense to argue over a girl. L.S. told Vincent to either kill Campbell or to “ lay low ” . [8] On May 28, 2012, the appellant David was released from custody. On May 29, 2012, a mutual friend, Clayton Robichaud, introduced Campbell to David. David purchased marijuana from Campbell and the two began texting and speaking on the phone regularly. They appear to have become fast friends. Campbell, David and Robichaud were aspiring music artists. [9] On June 20, 2012, Campbell, David, L.S., Robichaud, and others gathered at 6 Glamorgan Avenue to shoot a rap video. David was asked to get a gun to contribute to the “ urban look ” of the video. He borrowed a .357 revolver from a friend. It was used in the video. David can be seen dancing with the revolver. Scenes from the music video included Campbell, L.S., and others. David testified that he returned the gun to the friend after the video shoot. L.S. testified that in the days leading up to the shooting, he saw Campbell and David sharing the revolver and that they were the “ only two with access ” to the weapon. June 22, 2012 [10] On June 22, 2012, Campbell had plans to drive to Barrie to pick up some marijuana to sell. He drove to Barrie with some friends and purchased marijuana, returning to 6 Glamorgan around 3:30 p.m. By chance Vincent was there. Campbell saw Robichaud, sold some marijuana, and then left with friends to continue selling. David had also gone to 6 Glamorgan that morning to finish shooting the rap video. He had the revolver with him, which he claims he borrowed again from his friend. Around 4:00 p.m., David drove into the parking lot and met with friends. Robichaud, who had been hanging out with Vincent and L.S., invited David to have a drink with them. After the drink, David walked to a different area and waited for other friends to show up. The nine minutes at 6 Glamorgan [11] Campbell returned to 6 Glamorgan around 5:31 p.m. Nine minutes later, Vincent was dead. [12] When Campbell arrived at 6 Glamorgan, he testified that Vincent told him to “get the fuck out of here.” [13] L.S. was sitting with Robichaud about 150 feet away . L.S. testified that he saw a confrontation by Vincent ’ s car. Campbell and David and two or three other men were near the car. Vincent got out of his car and moved toward the playground/splash pad area. The group of men followed. L.S. testified that he saw Campbell with a gun and heard him tell Vincent “ I told you bro, I ’ m locked and loaded ” . The confrontation then ended. [14] In the moments following, Campbell texted someone about selling marijuana. Vincent walked back to his car. Campbell and David and the other men followed. Vincent was standing near the front of his car. L.S. saw Campbell acting like he had a gun. Campbell and David walked behind Vincent’s car and met very close together on a grassy area. L.S. did not hear what was said and he did not see a gun. However, he testified that it looked like “ something ” was handed over and he believed it was a gun. L.S. testified that after Campbell and David met behind Vincent’s car, David began moving like he had the weapon. David moved first toward Vincent. Campbell followed but then stopped. David was “ not moving fast ” , he was “ sliding through the cars ” . L.S. said that David appeared to be trying to hide his arm behind his hip as David walked along the passenger side of the car . David had his arm held at an angle like he was concealing a gun. [15] Campbell also walked toward Vincent but stopped. David continued to move toward Vincent. L.S. heard five shots fired: two together and then three more. L.S. looked back and saw David holding a revolver and looking around. Campbell had his mouth wide open “ like the kid from Home Alone ” . [16] Although brief, there was a separation in time between the exchange of insults between Campbell and Vincent and the meeting of Campbell and David behind the car. [17] The Crown alleged that Campbell passed the gun to David and instructed him to kill Vincent. They were charged with first-degree murder and tried before a jury as joint principals. Motion for directed verdict [18] At the conclusion of the Crown ’ s case, the appellants brought motions for directed verdicts, seeking to remove first-degree murder from the jury ’ s consideration. In dismissing the application, with reasons reported at 2015 ONSC 6738, the trial judge concluded that if the jury found that Campbell and David participated in Vincent ’ s killing, then they could draw inferences of planning and deliberation from the following facts: · Campbell had previously sent a text message to Strong that amounted to a threat against Vincent; · Campbell and David were friends; · The gun was brought by one of them to the area where the shooting occurred; · Shortly before the shooting Campbell said he was “locked and loaded”; · Immediately before the shooting Campbell and David met behind Vincent’s car and the gun was allegedly passed from Campbell to David; · There is no evidence that either Campbell or David demonstrated surprise or alarm that might suggest the shooting was an unexpected event. L.S. expressly denied that Campbell looked shocked after the shooting; · While there is some evidence that words were exchanged between Campbell and David and Vincent prior to the shooting, there was a gap in time between that exchange and the shooting that tends to discount any suggestion that the shooting resulted from a sudden or impulsive act. [19] The trial continued. Defence evidence [20] Campbell and David testified. Campbell denied having a gun on the day of the shooting and denied instructing David to shoot Vincent. He testified that after the confrontation with Vincent, David offered him a gun, but he declined it. He heard two gunshots, which did not come from David. He heard three more shots and saw Vincent “ twist ” and hit the ground. He did not see Vincent with a gun. [21] David testified that he heard Vincent yelling at Campbell. He said he went up to Vincent who had a gun. In an attempt to see the gun, he lifted Vincent ’ s shirt, but Vincent slapped away his hand and said no. The argument continued between the Vincent and Campbell. David heard Vincent threaten to kill Campbell. He then went to Campbell and offered him his gun, but Campbell declined. David heard a shot and then a second shot and saw Vincent with a gun. David started to “ skate ” toward Vincent and fired because it was “ him or me ” . David denied knowing anything about the dispute between Campbell and Vincent and denied being told by Campbell to shoot him. Jury charge (a) The two scenarios [22] Two scenarios were put to the jury as to how Vincent came to his death: 1. When the two men were behind Vincent’s car, Campbell told David to shoot Vincent; or 2. David was acting alone. David used the gun to shoot Vincent when Vincent fired shots at him. On this scenario, David asserts self-defence. [23] Because the jury found both Campbell and David guilty of first-degree murder, the jury clearly relied on scenario one . (b) Planning and deliberation [24] The trial judge correctly instructed the jury on the elements of planning and deliberation. Then, the charge continued: [I]n terms of determining whether the murder was planned and deliberate you may wish to consider evidence that: 1. There was a gun that was used that was brought either by Orville Campbell or by Stanton David to the location; 2. Prior to the shooting Orville Campbell said to Ricardo Vincent ‘I am always locked and loaded’, if you accept that Mr. Campbell said that; 3. There was nothing apparently said between Orville Campbell and Stanton David immediately prior to the shooting taking place that might indicate surprise or alarm or otherwise suggest that the shooting was an unexpected event or done as a matter of impulse; 4. There was no discussion between Orville Campbell and Stanton David on the one hand, and Ricardo Vincent on the other, that would suggest the shooting resulted from a sudden or impulsive act; 5. The events of the shooting were preceded by a dispute between Orville Campbell and Ricardo Vincent that had been ongoing for some period of time, and during the course of which Mr. Campbell had made threats against Mr. Vincent; and 6. Neither Orville Campbell nor Stanton David remained at the scene or rendered any assistance to Ricardo Vincent. These are not the only pieces of evidence that you will want to consider. There are other pieces of evidence that might argue against any conclusion that the murder of Mr. Vincent was planned and deliberate. The pieces of evidence that I have mentioned are just some factors that may assist you in deciding whether the murder of Ricardo Vincent was the result of a planned and deliberate act. That is not a conclusion that you would have to come to, but it is a conclusion you could come to. These factors may assist you or they may not. It will be up to you to decide. [25] The jury returned a guilty verdict. ISSUES ON APPEAL Campbell and David [26] Campbell and David appeal on the basis that the verdict of first-degree murder was unreasonable . They rely on the lack of evidence to support planning and deliberation and errors in the jury charge. [27] They also submit that the trial judge improperly invited the jury to rely on post-offence conduct to find planning and deliberation; failed to give a corrective instruction with respect to the Crown ’ s misstatement of the pathology evidence; erred by not limiting the use of the evidence of Vincent’s criminal history; and failed to provide an adequate Vetrovec instruction with respect to L.S. Campbell [28] Campbell submits the trial judge erred in instructing the jury to assess Campbell ’ s liability as a principal in the homicide. DISCUSSION First-degree murder [29] We begin with the appellants ’ primary submission: the verdict of first-degree murder was unreasonable. [30] The appellants submit that the verdict of first-degree murder was unreasonable because there was no evidence that could support a finding of planning and deliberation. [31] A verdict is unreasonable if a properly instructed jury, acting judicially, could not have come to that verdict: R. v. Biniaris , 2000 SCC 15 , [2000] 1 S.C.R. 381, at paras. 36-42 . [32] In R. v. Robinson , 2017 ONCA 645, 352 C.C.C. (3d) 503, this court confirmed at para. 31, that, when considering a claim that a jury verdict is unreasonable, the court: must engage in a limited weighing of the evidence. Cromwell J. described the boundaries of that exercise in R. v. W.H. , 2013 SCC 22 , [2013] 2 S.C.R. 180, at paras. 27-28 : On one hand, the reviewing court must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw and heard the evidence as it unfolded. The reviewing court must not act as a “13th juror” or simply give effect to vague unease or lurking doubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubt based on its review of the record. On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence. A positive answer to the question of whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court. Rather, the court is required “to review, analyse and, within the limits of appellate disadvantage, weigh the evidence” … and consider through the lens of judicial experience, whether “judicial fact-finding precludes the conclusion reached by the jury”. Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably have rendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury’s conclusion conflicts with the bulk of judicial experience. [Citations omitted; emphasis in original.] [33] A murder is “planned” if it is the product of “ a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed ”. A murder is “ deliberate ” if it is “ considered,” “ not impulsive ” , “ slow in deciding, ” “ cautious, ” implying that the accused must take time to weigh the advantages and disadvantages of his intended action: R. v. Nygaard , [1989] 2 S.C.R. 1074, at p. 1084. [34] The Crown here was required to prove beyond a reasonable doubt that each of Campbell and David had carefully thought out and calculated a scheme, considered the nature and consequences, and weighed the pros and cons of the murder. We conclude that the evidence does not establish that a reasonable jury could have been satisfied beyond a reasonable doubt that these conditions were met. [35] The Crown ’ s position with respect to the evidence that could ground the jury ’ s finding of planning and deliberation shifted significantly between trial and appeal. [36] At trial the Crown relied on the text message that Campbell sent to Strong threatening Vincent. Recall, it was on May 13, 2012 – about five weeks earlier – that Campbell told Strong: “ tell ur lil bf when I see him he better have it ” . [37] With respect to David, the Crown relied on his desire to defend Campbell from the insults from Vincent. The following excerpt represents the bulk of the Crown ’ s closing: Then the issue becomes, is this planned and deliberate?  Because if it’s planned and deliberate, it’s first degree murder. Now, a plan can be simple and senseless. It doesn’t have to be the work of an evil genius or anything like that. It doesn’t have to be complicated. It doesn’t have to be like in the movies. And certainly, take the gun, slide up on him and shoot him until he’s dead is a simple but deadly plan. And then the issue is deliberate. Planned and deliberate. You require both elements for it to be first degree murder. If it’s not planned and deliberate, it’s second degree murder This is something that had been threatened. This was something that was long standing. This is something where people have had lots of time, in particular Mr. Campbell, to think about whether he wants to do it, and this is, in my respectful view, on behalf of both gentlemen, planned and deliberate. Again, with respect to David, deliberations don’t have to be – they don’t have to be, again, like intellectual exercises where everything makes a lot of sense. It could be relatively simple. It can be, you know what, this guy is dissing my friend, and yes, this is in broad daylight but no one here is going to say anything because the code is in place, and dead men don’t talk, and I’m going to be out of here in two seconds, and you know what, I am going to do a solid for my buddy, I’m going to take that gun and I’m going to shoot him because he deserves it. That could be deliberation. Again, it doesn’t mean a work of genius. [38] In other words, the Crown at trial relied on the animus between Campbell and Vincent – dating back five weeks – to suggest that Campbell had developed and carefully thought out a scheme to kill Vincent. As for David, the Crown appeared to say that his planning and deliberation took place when he was handed the gun . [39] On appeal, Crown counsel ’ s written submissions amplified the rather amorphous jury closing by the Crown. The Crown put forward the following evidence from which the jury could find planning and deliberation: (i) Animus and motive: Campbell’s anger about Strong. (ii) Threats: the text messages sent to Strong on May 10 and 13, 2012. (iii) Friendship between Campbell and David. (iv) Presence of a gun on June 22, 2012. (v) No appearance of shock after the shooting. (vi) Intimidation of Vincent: L.S.’s evidence depicted a sequence of evidence during which Campbell and David (and others) followed and tried to intimidate Vincent. L.S. testified how Campbell, David, Campbell’s cousin and one or two others “swarmed” Vincent in a half circle around him. Campbell was “in Ricardo’s face” and circling him and holding his waist. The group followed Vincent to his car, “tailing him”, and Campbell’s cousin blocked Vincent’s way. L.S. testified that at one point, Campbell had a revolver in his hand and said to Vincent, “I told you bro, I’m locked and loaded”. When Vincent was moving to his car, he was followed by the group. (vii) The exchange of the firearm. (viii) The gap in time after the firearm exchange and the shooting. (ix) No evidence that Campbell or David remained at the scene or rendered assistance to Vincent. [40] During oral submissions, the Crown’s position changed significantly. It was submitted that the planning and deliberation took place – not in the weeks leading up to the murder – but in the nine minutes that the appellants were at 6 Glamorgan. More particularly, it was the exchange between the two at the back of Vincent ’ s car where the planning and deliberation took place . [41] The Crown submits that, by accepting scenario one, the jury effectively concluded that the murder was planned and deliberate. The reasoning goes like this . Campbell handed the gun to David and told him to shoot. By taking the gun and shooting, David agreed. It was analogous to a contract killing, which satisfies the requirements for planning and deliberation . Simply put, inherent in the instruction to shoot is planning and deliberation. [42] We do not accept that the evidence of the Campbell and David meeting behind Vincent’s car could possibly establish planning and deliberation. L.S. ’ s evidence was that he saw them. He did not hear what was said. The exchange was after Campbell had arrived, walked to the splash pad area and walked back. It was thus nearer to the end of the nine minutes. There was no time at the back of the car for a carefully thought-out scheme with a weighing of the advantages and disadvantages. Nor was there evidence to support the planning and deliberation. [43] Further, the evidence relied on is equally consistent with an impulsive act: Campbell was angry with Vincent and impulsively told David to shoot. The evidence of planning and deliberation with respect to David is even flimsier: he took the gun from his friend and shot. [44] Putting the Crown ’ s position at its highest, when the appellants were behind Vincent’s car, Campbell passed the gun to David and told him to shoot. David took the gun and slid alongside the cars and shot. These facts – even when viewed in the context of the animus between Campbell and Vincent – do not constitute planning and deliberation. There is no evidence from which the jury could infer a carefully thought-out scheme with time to weigh the advantages and disadvantages of the intended action; Campbell, David and L.S. all testified that the shooting happened rapidly. [45] The evidence before the jury that a gun was brought to 6 Glamorgan, that Campbell had threatened Vincent through Strong and told Vincent that he was “always locked and loaded” could not, absent impermissible speculation, have satisfied the jury beyond a reasonable doubt that Campbell and David had planned and deliberated about the murder before the shooting. The appellants did not go to 6 Glamorgan looking for Vincent. They met there by chance. The threats were made through Strong five weeks earlier and there was evidence that Campbell was in another relationship. The fact that the appellants left the scene is equally consistent with an impulsive act as it is with planning and deliberation. [46] The evidence before the jury was sufficient for the jury to find motive and intent. The risk is that this could lead the jury to a determination of planning and deliberation. The danger was referred to in Robinson , at para. 37: A lay jury, unaccustomed to the sometimes subtle distinctions drawn in the criminal law among various culpable mental states, might move quickly from a finding that the appellant decided to inflict bodily harm that he knew would probably cause death, to a finding that the appellant had planned to inflict harm that he knew was likely to cause death. Looking at the evidence “through the lens of judicial experience”, an appeal court must have regard to the real risk that evidence demonstrating the intention to commit murder … could be improperly treated by a jury as equally cogent evidence of planning, if not deliberation. [47] We conclude that the verdict of first-degree murder cannot stand. We turn to consider whether a new trial is required on second-degree murder. Is a new trial required? [48] The appellants have submitted that a new trial is necessary because of errors in the jury charge. They say that the jury charge was in error with respect to post-offence conduct, the Vetrovec warning, the pathology evidence and the use of the criminal record of the deceased. Campbell also submits that the jury charge was in error with respect to party participation. Below, we examine each of these submissions in turn. (a) Post-offence conduct [49] The trial judge referred to the fact that neither appellant remained at the scene. The jury was told this could be considered in relation to planning and deliberation. [50] The appellants submits that, without a limiting instruction, this fact could have tainted their decision on intent for murder. Therefore, a new trial is necessary on second-degree murder. [51] We do not agree. [52] The evidence was mentioned only in the context of planning and deliberation for first-degree murder. The jury would only have reached consideration of whether the shooting was planned and deliberate after concluding that the appellants caused Vincent’s death and had the requisite intent for murder. Accordingly, the jury must have accepted scenario one, that Campbell instructed David to shoot. While it would have been preferable for the jury instructions to include the prohibited use of the post-offence conduct, under the circumstances it was of no moment. The jury clearly decided – in accordance with scenario one – that Campbell told David to shoot when they were at the back of the car. Intent for murder was unrelated and could not be informed by the fact that they left the scene. [53] Further, no one stayed at the scene when the shots were fired . The evidence was uncontradicted that everyone fled . There was nothing specific to the conduct of the appellants in this regard and no risk of misuse of the evidence by the jury. (b) The Vetrovec warning [54] The appellants submit that the trial judge ’ s warning regarding the testimony of L.S. was inadequate. L.S. – they say – was an unsavoury (or “ Vetrovec” ) witness and there should have been a stronger warning. [55] In the wake of the shooting, L.S. spoke on the phone with a police officer and promised he would help with the investigation. However, he did not follow through due to a “code” that prevented him from speaking to police. On March 9, 2013, police executed a search warrant at his apartment and found a sawed-off shotgun. He was arrested that day and he provided his first statement about the shooting, which was given under oath and videotaped. L.S. was subpoenaed to attend the appellants’ preliminary inquiry on April 17, 2014, but instead drove to Vancouver to sign a management deal for his rap-artist career. He was eventually pulled over by the OPP near Thunder Bay. He was arrested and flown to Toronto. L.S. ultimately testified at both the preliminary inquiry and the trial. [56] The trial judge instructed the jury to approach L.S.’s evidence as follows: While I’m on the subject of witnesses in this case, let me deal with [L.S.], who you know gave evidence as a witness for the Crown. [L.S.] is currently facing charges relating to weapons offences. [L.S.]’s trial on those charges has not yet been held. A prosecution witness who is awaiting trial himself on charges may have an interest in giving evidence favourably for the prosecution in this trial. Favourable evidence here may help the witness out with his own case later, or the witness may believe that it will do so. In this case you will remember that while [L.S.] said he thought of that possibility, he was told very clearly by the homicide investigators, when he agreed to give a statement, that there would be no special treatment for him on his charges, arising from giving a statement to the police. You have also heard that [L.S.] lied while under oath at the preliminary hearing. [L.S.] admits that he did so and he told you why he did not tell the whole truth at that time. Experience and common sense tells you that in light of these circumstances there is good reason to look at [L.S.]’s evidence with care and caution. You are entitled to rely on [L.S.]’s evidence of course, but given these circumstances you may wish to look for some confirmation of [L.S.]’s evidence from somebody or something other than [L.S.] before you rely upon [L.S.]’s evidence in deciding whether Crown counsel has proven the case against Orville Campbell and Stanton David beyond a reasonable doubt. [57] The appellants submit that this warning did not impart the appropriate level of caution for the jury, particularly when L.S. was the primary Crown witness. The appellants submit that a clear caution was necessary to tell the jury that it was dangerous to convict on the unconfirmed testimony of L.S. [58] In the circumstances of this case and this witness, the Vetrovec instruction was appropriate and sufficient. The precise language used in a Vetrovec instruction is at the discretion of the trial judge. While L.S. had unrelated outstanding charges, he knew that the police and Crown would give him no consideration for his testimony at this trial. He also had no criminal record, was employed and had no animus towards Campbell and David. On the spectrum of unsavory witnesses, L.S. was on the lower end. [59] When an instruction is warranted, trial judges have the discretion to tailor it according to the circumstances of each case and the witness. In R. v. Khela , 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 37, the Supreme Court approved of the following general framework as guidance for trial judges on the content of a Vetrovec instruction. The trial judge should: a. draw the attention of the jury to the evidence requiring special scrutiny. b. explain why the evidence is subject to special scrutiny. c. caution the jury that it is dangerous to convict on unconfirmed evidence of this sort, though they are entitled to do so if satisfied that the evidence is true. d. explain that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused. [60] These guidelines are not to be applied in a rigid or formulaic way ( Khela, at para. 38). [61] The Vetrovec instruction given by the trial judge accomplished each of the four objectives set out in Khela. The instruction: told the jury that the evidence requiring special scrutiny was the testimony of L.S.; explained why L.S.’s evidence ought to be approached with care and caution; cautioned the jury that it would be dangerous to convict on the unconfirmed evidence of L.S.; while not using the word “dangerous” the trial judge warned the jury (“there is good reason to look at [L.S.]’s evidence with care and caution”); explained to the jury that when determining the veracity of L.S.’s evidence, they could look for independent confirmatory evidence from another source tending to show that he was telling the truth as to the guilt of the accused; and gave examples of such evidence. There is no special language that is required: R. v. Sauvé (2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 86 . (c) Pathology evidence [62] The appellants submit that the trial judge erred by not correcting the Crown’s closing with respect to the pathology evidence. The background follows. [63] The evidence was that five shots were fired. David’s claim of self-defence rested on his testimony that the first two were fired by Vincent. Vincent had five gunshot wounds. No gun or bullet cases were found at the scene. The jury needed to decide whether the five wounds were caused by five shots, or fewer. [64] Dr. Hunt, the forensic pathologist who conducted the autopsy, could not determine the order of the shots or the distance from which they were fired. Dr. Hunt was asked whether he could determine the number of shots fired to cause the wounds. His opinion was that there were five separate gunshot wounds. However, in his autopsy report, he had concluded that the entry wound to the deceased’s chest may have been a re-entry wound from a bullet that had first entered then exited his left forearm. Defence counsel asked him to consider a scenario in which the deceased had his left arm diagonally across his chest to imply he was holding a gun. Dr. Hunt agreed that in such a scenario, it was “certainly a possibility” that the bullet which entered the back and exited the chest then also entered the forearm. [65] In his closing, the Crown told the jury: Now, there’s an explanation from the pathologist how three gunshots could have caused four injuries to Mr. Vincent ... The problem is from three shots to five injuries. Now there was a lot of cross-examination about that. The suggestion was put to the pathologist, well, what if the arm is in front? And what if the bullet hits the arm and then continues into the chest? Then couldn’t you have three shots causing five injuries? And he says, “no, I considered that”. So if I am Mr. Vincent holding a gun like David would have you believe it was held, unless that bullet travels around and comes through like this, that shot is not going through the arm and doing the type of damage where you’d have three shots causing five wounds. There’s no injury to Mr. Vincent through the back of his forearm. There is no way that Mr. Vincent took two shots. If he took two shots, that means that man only took three. Three shots does not cause five gunshot wounds. Not in this scenario, not with an injury to the back. It never happened. It never happened. So if Mr. Vincent wasn’t firing the two shots, and we know he wasn’t, it offends common sense, it offends pathology, it offends what we know about bullets travelling in a straight line, why do they say this? [66] The appellants argue that, by claiming that Dr. Hunt had considered and rejected the three-gunshot scenario and by suggesting that it offended “pathology” and “common sense”, the Crown misstated Dr. Hunt’s testimony. While expressing some doubt that the wound to the deceased’s right chest was an entry wound, he unequivocally agreed that it was possible that the deceased had been shot only three or four times. [67] We do not agree that the Crown’s closing required a corrective instruction. In the entire context of Dr. Hunt’s evidence, the Crown did not misrepresent it. Dr. Hunt’s opinion was that there were five separate gunshot wounds. While he considered the possibility that one of the forearm wounds might have entered the right chest, he indicated that it was low in terms of probability. He said: “I know it’s a possibility, but taking into consideration the wound appearance, it seems like it’s a separate wound.” While Dr. Hunt did not rule out the possibility that the forearm wound and chest wound were inflicted from the same bullet, he explained his opinion as to why this was not likely. [68] The trial judge did bring this to the jury’s attention: As I earlier mentioned, Dr. Hunt said there were five bullet wounds on Mr. Vincent’s body. You know that [L.S.], Mr. Campbell and various people who called ‘911’ reported hearing approximately five gunshots. At the same time though, Dr. Hunt did say that it was possible that the five entry wounds on Mr. Vincent’s body were not necessarily caused by five separate bullets. We do know that no one else was struck by any bullets, and we also know that the police did not find any other bullet holes, for example in any of the vehicles that were parked in the area. (d) Vincent’s criminal record [69] Vincent had prior convictions related to two ex-girlfriends that included aggression towards their new boyfriends. The appellants submit that the trial judge erred when he instructed the jury that the record was only relevant to self-defence. They say that this was circumstantial evidence that supported the claim that Vincent was the aggressor on earlier occasions and therefore also on the day of the shooting. They submit that this was relevant to the appellants’ credibility, motive and animus. [70] We do not agree. The prior convictions were only relevant to David’s claim of self-defence. No further instruction was appropriate or necessary. (e) Party participation [71] Campbell submits that the trial judge erred by not including an instruction on party participation. There was no evidence, he says, that Campbell actually committed the offence. Further, there should have been an instruction of potential liability under ss. 21(1)(b) and (c) of the Criminal Code , R.S.C. 1985, c. C-46. [72] We disagree. The Crown relied on Campbell’s role as principal to the murder. A direct physical contribution to the death is not required to prove causation. It was open to the jury to find that his actions in giving David the gun and instructing David to shoot were a significant contributing cause of Vincent’s death (see: R. v. Woodcock , 2015 ONCA 535, 336 O.A.C. 322; R. v. J.S.R., 2012 ONCA 568, 112 O.R. (3d) 81) [73] In our view, it inured to the benefit of Campbell not to have party participation put to the jury for that would have imported more paths to conviction. As trial counsel for Campbell said in his closing address: “the only available basis on which you can say that Mr. Campbell caused Mr. Vincent’s death is through Mr. Campbell directing or instructing Mr. David to shoot him”. This, trial counsel said, was the “key” question. [74] A charge on party participation was not necessary and it would have imported unnecessary confusion. CONCLUSION [75] The appeal is dismissed pursuant to s. 686(1)(b)(i) of the Criminal Code but a verdict of second-degree murder is substituted for first-degree murder pursuant to s. 686(3). The matter is remitted to the Superior Court for sentencing. Released: March 17, 2020 “MLB” “M.L. Benotto J.A.” “Grant Huscroft J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Darnley, 2020 ONCA 179 DATE: 20200309 DOCKET: C62610 Feldman, Lauwers and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Kara Darnley Appellant Philip Campbell, for the appellant Susan L. Reid, for the respondent Heard: November 28, 2019 On appeal from the conviction entered by Justice Susan E. Healey of the Superior Court of Justice, sitting with a jury, on April 13, 2016. Paciocco J.A.: OVERVIEW [1] The Crown charged Kara Darnley, an Ontario Provincial Police peace officer, with criminal offences relating to two events, what I will call “the witness record incident” and “the drug investigation file incidents”. The Crown theory is that, in both incidents, Cst. Darnley abused her position as a peace officer out of loyalty to her fiancé, Jody Vanier, whom the police suspected of involvement with illicit drug use. [2] Even before these events occurred, the police had concerns that through her relationship with her fiancé, Cst. Darnley was too close to drug users. Her superiors partnered her with Cst. Fischer who was investigating Cst. Darnley in an undercover capacity. [3] At her trial, Cst. Darnley argued that the Crown had failed to prove any of the charged offences. She was convicted of breach of trust in connection with both incidents. She was acquitted of obstruction of justice in connection with the witness record incident. [1] [4] Cst. Darnley then sought to raise the entrapment defence against the drug investigation file incidents, based on the role played by Cst. Fischer. The trial judge rejected this defence. [5] Cst. Darnley appeals both convictions, alleging errors during the jury trial and in the disposition of the entrapment defence. [6] For reasons that follow, I would find that the trial judge committed jury direction errors relating to reasonable doubt, and that the jury rendered inconsistent verdicts relating to the witness record incident. I would also find that errors were made relating to the entrapment defence. I would therefore allow Cst. Darnley’s appeal and set aside both convictions. I would substitute an acquittal for the breach of trust charge relating to the witness record incident and order a new trial on the breach of trust charge relating to the drug investigation file incidents. MATERIAL FACTS AND LEGAL BACKGROUND A. THE OFFENCE OF BREACH OF TRUST [7] Section 122 of the Criminal Code , R.S.C., 1985, c. C-46 creates the offence of breach of trust. It provides: Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person. [8] The five elements of s. 122 were set out in R. v. Boulanger , 2006 SCC 32, [2006] 2 S.C.R. 49, at para. 58, as follows: 1. The accused is an official; 2. The accused was acting in connection with the duties of his or her office; 3. The accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office; 4. The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and 5. The accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose. B. THE WITNESS RECORD INCIDENT [9] On December 20, 2010, Cst. Darnley, while off duty, attended her fiancé’s apartment, which he shared with his roommate, Mike Drozdoski. She, her fiancé, and Mr. Drozdoski socialized with Mark Jeffrey and his partner Christine Kuyvenhoven, the couple that resided in the next apartment. Later that evening, Ms. Kuyvenhoven called 9-1-1 about Mr. Jeffrey but was too intoxicated to speak. She handed the phone to Cst. Darnley who acknowledged when asked that she was a police officer. OPP officers attended the residence and Mr. Jeffrey was charged with domestic assault. The police also found 400 grams of marijuana in Mr. Jeffrey’s apartment. [10] Based upon concerns with Cst. Darnley’s off-duty activities stemming from her relationship with her fiancé, including one incident where she allegedly transported her fiancé and his drug supplier to an alley to drop something off, the Ontario Provincial Police launched an investigation of Cst. Darnley. On March 23, 2012, Cst. Fischer was placed with Cst. Darnley. Cst. Fischer had been disciplined for illegal conduct (stunt driving) and presented herself to Cst. Darnley as a disgruntled, problem officer. [11] Two days later, on March 25, 2012, the eve of Mr. Jeffrey’s trial, Cst. Darnley accessed electronic police records and printed the witness statements that police had collected during the Jeffrey investigation. She solicited Cst. Fischer’s assistance when the printer jammed. [12] The following morning, Mr. Jeffrey pleaded guilty to the assault. No witnesses were called to testify. Cst. Darnley was nonetheless charged with breach of trust and obstruction of justice for her conduct relating to the witness records. [13] Specifically, the charges allege: (1) that Cst. Darnley committed the breach of trust “by releasing confidential police information regarding statements given to members of the Huronia West OPP for the purposes of a criminal prosecution”; and (2) that Cst. Darnley wilfully attempted to obstruct justice by “printing witness statements in relation to a criminal court proceeding and disclosing those statements to witnesses of that proceeding”. [14] The Crown offered alternative theories at the trial that: (1) Cst. Darnley tainted herself as a witness by accessing the statements; or (2) she tainted the evidence that her fiancé and Mr. Drozdoski would offer by sharing the statements of other witnesses with them. However, the charges against Cst. Darnley are particularized. They allege that her guilt arises from the release or disclosure of the statements, not her own use of them. Therefore, the first theory could not be accepted. The central issue at the trial, and the only factual issue in contest on this charge, was whether Cst. Darnley released or disclosed the statements to any of the witnesses. [15] The Crown presented no direct evidence that she had done so. It relied instead on the testimony of Cst. Fischer that Cst. Darnley admitted that she had printed the statements so that her fiancé and his roommate Mr. Drozdoski would know what other witnesses had said, and that her fiancé and Mr. Drozdoski looked at the statements. [16] Cst. Darnley did not testify in her own defence. She defended the allegation by urging that Cst. Fischer was not credible, and that the Crown had failed to prove that Cst. Darnley had released or disclosed the statements to witnesses. [17] Building on other evidence in the case, Cst. Darnley’s trial counsel also raised the suggestion that Cst. Darnley may have printed the statements in the public interest, so that the witnesses could review their own statements before testifying. If there was a reasonable doubt about this, Cst. Darnley would be entitled to an acquittal, since, as indicated, the fifth necessary element of the offence of breach of trust is that the accused acted with the intention to use his or her public office for a purpose other than the public good: Boulanger , at para. 58. [18] Specifically, Cst. Darnley’s trial counsel relied upon the testimony of Sgt. Lloyd, an officer involved in the investigation of the charges against Mr. Jeffrey. The officer testified that the police generally make sure that witnesses have a chance to review their own statements before testifying, but he had no recollection of preparing the witnesses personally, nor could he confirm that someone else did so in connection with Mr. Jeffrey’s trial. Cst. Darnley was not subpoenaed to testify at Mr. Jeffrey’s trial the way a civilian witness would be, but instead received an officer notice. She was directed by the Crown to attend as a police witness, and she did so in full police uniform. Moreover, Cst. Darnley had made no attempt to hide the fact that she was printing the witness statements, even asking Cst. Fischer, whom she had known at that point for only two days, to assist her with a paper jam when printing the documents. [19] The jury convicted Cst. Darnley of breach of trust but acquitted her of the obstruction of justice charge in connection with the witness record incident. C. THE DRUG INVESTIGATION FILE INCIDENTS [20] During the two and a half months following Mr. Jeffrey’s trial, Cst. Darnley and Cst. Fischer worked and socialized together extensively. On several occasions, Cst. Darnley expressed concern about her fiancé’s drug use and his friends, and on one occasion, Cst. Fischer witnessed Cst. Darnley using a police database to check on one of her fiancé’s friends. However, no clear evidence of criminality had been obtained. The police decided to conduct an “integrity play”, and then another due to a technical malfunction during the first. (i) The First Integrity Play [21] A fake investigation file was created and placed in a yellow folder entitled “Confidential Drug Targets, Wasaga Beach”. The folder was also labelled with the names of three of her fiancé’s friends. Reports and photographs were placed in the file, suggesting that surveillance was being conducted on the men. [22] On June 10, 2012, the file was left on the detachment photocopier. A concealed camera was trained on the area. That evening, when no one else was present, Cst. Fischer, while wearing a recording device, sent Cst. Darnley to the photocopier. Cst. Darnley discovered the file. She was alarmed, having recently parked her car at one of the target homes. In her conversations with Cst. Fischer, she expressed uncertainty about what to do and wondered whether she should say anything to her fiancé. Cst. Fischer offered to go with her if she decided to tell her fiancé. Cst. Darnley decided to photograph the file, and Cst. Fischer offered to be a lookout. With Cst. Fischer’s encouragement, Cst. Darnley checked the CPIC printouts in the yellow folder to determine when the investigation began, and Cst. Fischer reassured Cst. Darnley that the file would not have been planted intentionally. Cst. Fischer made comments that could be taken to be discouraging Cst. Darnley from approaching Sgt. Lloyd, the purported investigator of the surveillance file. [23] Later that evening, Cst. Darnley admitted that she had called her fiancé to warn him not to hang out with his friends anymore. When the shift ended, she invited Cst. Fischer to her home. Her fiancé was asleep and Cst. Fischer again assured Cst. Darnley she would be a “second voice” if she decided to talk to him. The next day, Cst. Darnley acknowledged to Cst. Fischer that she had talked to her fiancé and had showed him the photographs of the file. She said that she had asked him not to say anything to anyone about them. (ii) The Second Integrity Play [24] Since the camera that was meant to record Cst. Darnley’s discovery of the yellow folder had malfunctioned, police decided to conduct a second integrity play. On June 18, 2012, a box marked with the names of her fiancé’s friends, and the title “Lloyd’s Surveillance Box” was placed on a filing cabinet in the criminal investigation office. Cst. Darnley discovered the box and Cst. Fischer served as a lookout so that Cst. Darnley could examine and photograph the contents of the box. Again Cst. Fischer made comments to allay Cst. Darnley’s concerns that the box may have been planted. [25] The following evening, June 19, 2012, Cst. Darnley searched Sgt. Lloyd’s desk, but found nothing. Then Cst. Fischer accompanied Cst. Darnley home after Cst. Darnley decided to speak with her fiancé. Cst. Fischer taped the conversation. In that conversation, Cst. Darnley’s fiancé declined Cst. Darnley’s invitation to see the photographs, they discussed who could be providing information to the police, and Cst. Darnley warned him to stay away from the suspected men and commented that she was telling him about the investigation “to protect me and you”. [26] Cst. Darnley was arrested on July 4, 2012. Her phone was searched and the photos she took were secured, along with a text she had sent to Cst. Fischer confirming that she had advised her fiancé about the contents of the surveillance box. (iii) The Drug Investigation File Charges [27] As indicated, Cst. Darnley was charged with both the witness record incident and the drug investigation file incidents. [28] With respect to the breach of trust charge relating to the drug investigation file incidents, the parties agreed that the sole issue for the jury was “why” Cst. Darnley accessed and photographed the files and shared this confidential information with her fiancé. The Crown urged that her intention was to protect herself and her fiancé and that this was done in her self-interest. Cst. Darnley argued to the contrary that her surreptitiously recorded statements show that she accessed and shared the information with her fiancé in order “to preserve the integrity of her position as a police officer by ensuring that her fiancé, her future husband, discontinued his association with the suspected drug users, drug dealers”, something that was undermining her ability to maintain her proper role as a police officer. [29] After the jury convicted Cst. Darnley on this count, she moved that the charge be stayed. She said that the integrity plays exceeded the acceptable limits of police conduct by entrapping her. Entrapment can occur in two ways, either: (1) “the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides ”; or (2) “having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence”: R. v. Mack , [1988] 2 S.C.R. 903, at p. 959. Cst. Darnley argued both branches in the alternative. On May 17, 2016, the trial judge dismissed the motion. ISSUES [30] Cst. Darnley raises the following issues on appeal: A. the trial judge erred by misdirecting the jury on the meaning of reasonable doubt; B. the trial judge erred by providing improper and conflicting jury instructions on the “public good” element of breach of trust and the Crown burden relating to motive; C. the jury verdict of guilty of breach of trust relating to the witness record incident is inconsistent with its verdict of acquittal of obstruction of justice relating to the same incident and is therefore unreasonable; D. the jury erred in finding breach of trust in connection with the drug investigation file incident, given that Cst. Darnley was not trusted and the information in the drug investigation file was not confidential; E. the trial judge misapplied the law of entrapment in denying her post-verdict application for a stay of proceedings relating to the drug investigation file incidents. Specifically, the trial judge erred by, 1. improperly reasoning that peace officers must be held to elevated standards of moral restraint or fortitude; and 2. misunderstanding the average person inquiry by asking whether any OPP officer faced with the two integrity scenarios would inevitably have been induced to commit the breach of trust. ANALYSIS A. DID THE TRIAL JUDGE MISDIRECT THE JURY ON REASONABLE DOUBT? [31] These are the impugned passages from the trial judge’s “reasonable doubt” direction. The contentious words are underlined: (1) A reasonable doubt is a real doubt that logically arises from the evidence or the lack of evidence. It is a doubt based on reason and common sense after considering all of the evidence as a whole. It may be a doubt created by an inference or conclusion you have drawn from the facts as you find them, provided that the inference or conclusion is not a speculation or guess, but a much stronger conclusion arising from the proven facts and based on the evidence alone. (2) If your doubt is about something you have imagined or made up, or if it is a far-fetched doubt, then it is not a reasonable doubt. If it is a doubt based on sympathy or prejudice, then it is not a reasonable doubt. It must be a doubt about an essential element of the offences charged, and must arise from the evidence . [Emphasis added.] [32] The Crown concedes that both of the underlined passages are in error. [33] First, a reasonable doubt need not arise from the evidence: R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 28. It can arise from the absence of evidence, from what the Crown has failed to prove: R. v. Lifchus , [1997] 3 S.C.R. 230, at para. 36. [34] Moreover, an inference need not arise from “proven facts”, which is “a standard that is never applicable to an accused”: R. v. Robert (2000), 143 C.C.C. (3d) 330, at para. 17 (Ont. C.A.). This is because a reference to “proven facts” suggests an obligation to establish those facts to a standard of proof, yet a reasonable doubt can arise from evidence that, while not proven to be true to any standard of proof, has not been rejected. [35] It is also incorrect to link a reasonable doubt to a “conclusion” drawn from the facts. An acquittal need not be based on a conclusion about innocence but can rest on an inability to conclude guilt. [36] It is also an error to suggest that an exculpatory inference must be “a much stronger conclusion” than a speculation or guess. That language imports the need for a strong inference, when an exculpatory inference relating to a required element of the offence need merely raise a reasonable doubt: Villaroman , at para. 20. [37] The Crown contends that, in these passages, the trial judge was attempting to prevent the jury from accepting the speculative claims made by the defence about what Cst. Darnley was thinking. I need not resolve whether Cst. Darnley’s arguments were speculative because even if the trial judge was attempting to discourage speculation by the jury, she stated the law incorrectly. [38] There is no force in the Crown’s contention that these errors lose their significance when the jury charge is read as a whole. Errors relating to the burden and standard of proof may not be reversible “if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply” (emphasis added): R. v. W.(D.) , [1991] 1 S.C.R. 742, at p. 758. This is not a case for inferring that these errors did not confuse or mislead the jury. [39] First, the trial judge provided a precise and misleading direction about drawing exculpatory inferences, and she linked reasonable doubt to evidence-based conclusions. These errors go to the very concept of a reasonable doubt. They cannot be corrected by admonitions to give the accused the benefit of the doubt. [40] Moreover, none of the correct directions relied upon by the Crown as ameliorative address how exculpatory inferences are to be evaluated, a key feature of the misdirection [41] Nor can the trial judge’s misdirection that a reasonable doubt must arise from the evidence be overcome. The first impugned paragraph opens with the correct direction to the jury that a reasonable doubt can arise from the lack of evidence and the reasonable doubt direction ends with the same point. But this does not remove the risk of misapprehension that arises from an unequivocal direction that a doubt must arise from the evidence. There is no way to reconcile those comments, and no basis to conclude that the jury would follow one direction and not the other. [42] Cst. Darnley’s appeal counsel argues correctly that the errors made by the trial judge undermined both the presumption of innocence and the burden of proof. They effectively reverse the burden of proof and lower the standard of proof required of the Crown. Such errors are magnified in this case, where Cst. Darnley defended herself based on what the Crown had failed to prove. Given the seriousness of these errors and the absence of any reasonable tactical basis for the defence accepting this misdirection, the failure of trial counsel to object to the charge is of no moment. [43] I would allow this ground of appeal from both convictions. B. DID THE TRIAL JUDGE PROVIDE CONFLICTING JURY INSTRUCTIONS ON THE “PUBLIC GOOD” ELEMENT OF BREACH OF TRUST AND THE CROWN BURDEN RELATING TO MOTIVE? [44] It is uncommon for criminal offences to require proof of motive. Typically, the Crown need not prove why someone has chosen to engage in criminal activity, and it is standard to direct juries to this effect. Accordingly, the trial judge directed the jury that “[m]otive … is not one of the essential elements that Crown counsel must prove”. And again, “[a] person may be found guilty of an offence, whatever his motive, or even without a motive”. [45] However, in a breach of trust charge, it is necessary to inquire into the “purpose” for the accused person’s breach of the standards of responsibility and conduct of their office; for the offence to be complete that purpose must be “other than the public good”. [46] Historically, courts have used the term “motive” when describing this purpose element: R. v. Williams (1762), 97 E.R. 851 (K.B.); R. v. Borron (1820), 106 E.R. 721 (K.B.). In truth, this is an imprecise use of the term “motive”. As the trial judge explained, motive describes why the accused acted as they did. “Motive” is “what induces a person to act”: The Concise Oxford Dictionary of Current English, 7th ed. The same dictionary defines “purpose” as the “object to be attained, thing intended”, and so, purpose may not be the same as motive. For example, a person’s purpose in using corporate resources may be to complete work on their property, but their motive may be financial: see R. v. Bradt , 2010 CMAC 2, 414 N.R. 219. [47] But in the factual allegations against Cst. Darnley relating to the drug investigation file incidents, motive and purpose are not easily distinguishable. The Crown theory was that Cst. Darnley’s improper purpose was to protect herself and her fiancé, and both the Crown and the trial judge used the term “motive” to describe that purpose. Accordingly, Cst. Darnley argues that the trial judge erred in giving the standard motive direction in this case, since it is entirely possible that jurors would have been misled by it, thereby disregarding a required element of the breach of trust offence. Specifically, the jury may have relied on the motive direction to ignore the requirement that the Crown prove beyond a reasonable doubt that the appellant’s purpose was other than the public good. [48] I would not give effect to this ground of appeal. The motive direction was required with respect to the charge of obstruction of justice, and arguably with respect to the breach of trust charge relating to the witness records incident; if the jury was satisfied that Cst. Darnley wanted witnesses to know what other witnesses said in their police statements so that they could testify accordingly (her purpose), in order to convict, the jury would not need to know why she wanted this (her motive). [49] Certainly, it would have been prudent for the trial judge to clarify the relationship between motive and purpose with respect to the breach of trust charge relating to the drug investigation file incidents. However, approaching the matter functionally, there is no realistic risk that the jury would have used the generic motive direction to disregard the repeated and pointed emphasis given in the course of the trial and in the charge to the “sole issue” between the Crown and the defence, namely “why” Cst. Darnley accessed, copied, and shared the drug investigation files with her fiancé. C. ARE THE JURY VERDICTS RELATING TO THE WITNESS RECORD INCIDENT INCONSISTENT? [50] As indicated, Cst. Darnley faced two charges relating to the witness record incident: COUNT 1. KARA DARNLEY stands charged that on or about the 25th day of March, in the year 2012, at the Town of Wasaga Beach, in the Central East Region, she did, being an official, to wit: a sworn police officer with the Ontario Provincial Police, commit a breach of trust in connection with the duties of her office, by releasing confidential police information regarding statements given to members of the Huronia West OPP for the purposes of a criminal prosecution, contrary to the Criminal Code of Canada. COUNT 2. KARA DARNLEY stands charged on or between the 25th day of March, in the year 2012, and the 26th day of March 2012, both dates inclusive, at the Town of Collingwood, in the Central East Region, she did wilfully attempt to obstruct the course of justice in a judicial proceeding, by printing witness statements in relation to a criminal court proceeding and disclosing those statements to witnesses of that proceeding, contrary to the Criminal Code of Canada. [51] The jury convicted her of Count 1 but acquitted her of Count 2. Cst. Darnley argues that these verdicts are genuinely inconsistent, and both could not reasonably have been returned, rendering the conviction unreasonable: R. v. R.V. , 2019 ONCA 664, 147 O.R. (3d) 657, at para. 77, leave to appeal granted, [2019] S.C.C.A. No. 345. [52] Cst. Darnley’s onus of establishing inconsistent verdicts is difficult to meet. The verdicts will not be inconsistent if, approaching the matter realistically and not theoretically, there is any rational or logical basis for the verdicts rendered: R. v. McShannock (1980), 55 C.C.C. (2d) 53 (Ont. C.A.), at pp. 55-56; R. v. Pittiman , 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 7. In determining this, the appeal panel must consider the evidence, the positions of counsel, the legal ingredients of the offences, and the trial judge’s instructions to the jury [2] : R.V. , at para. 85. [53] Cst. Darnley contends that, examined in this way, there is no rational or logical basis for the inconsistent witness record incident verdicts. The critical components of Cst. Darnley’s argument can fairly be expressed this way: (1) If the jury was satisfied only as to the uncontested fact that Cst. Darnley accessed the witness records, she could not be convicted of either count. This is because the counts particularize, respectively: the release of confidential police information regarding statements given to members of the Huronia West OPP (the breach of trust count); and printing and disclosing those statements to witnesses to that proceeding (the obstruction of justice count). Both charges require more than mere access; (2) The acquittal on the obstruction of justice charge could be explained if the jury was left in reasonable doubt about whether Cst. Darnley’s purpose was to provide witnesses with their own statements, since providing witnesses with their own statements does not obstruct justice. But such a finding cannot explain the breach of trust conviction that was entered, because this offence requires an intention to use public office for a purpose other than the public good. Even if Cst. Darnley was not authorized to assist other witnesses in witness preparation, doing so is not a purpose other than the public good and it would not be a serious and marked departure from the standards expected of a police officer subpoenaed to court as a police witness; (3) On the face of the charges, both verdicts would be appropriate if a finding was made that Cst. Darnley shared the contents of the witness statements, but not the witness statements themselves. This is because the alleged breach of trust charge specifically contemplates “releasing confidential police information regarding statements” (emphasis added) but the obstruction of justice charge is particularized to require disclosure of the printed statements themselves. However, this theory cannot provide a rational basis for the inconsistent verdicts. The only evidence that Cst. Darnley shared anything was Cst. Fischer’s testimony that Cst. Darnley admitted to showing the statements to witnesses. There is simply no evidentiary foundation for a finding that she shared the confidential police information but not the printed statements themselves; and (4) If the jury was convinced beyond a reasonable doubt that Cst. Darnley did share the printed statements of one or more witnesses with one or more of the other witnesses, the only proper outcome would be a conviction on both counts. Witness tainting is so obviously wrong that, manifestly, it is “not in the public interest”, supporting a conviction for the breach of trust charge. Similarly, by its nature, witness tainting subverts the evidence about to be presented to a court and can only be undertaken with intent to obstruct justice, supporting a conviction of the obstruction of justice charge. [54] I agree with Cst. Darnley. Given the charges, the verdicts cannot logically or rationally be explained based on any of the holdings that could arise on the evidence. [55] The Crown’s effort to undermine this ground of appeal is defeated by the arguments above. Point (1) rebuts the theory that the jury could have convicted Cst. Darnley of breach of trust for merely accessing witness records. Point (2) rebuts the theory that the obstruction of justice acquittal must have been based on a reasonable doubt about whether her intention in accessing and sharing the statements was to assist in witness preparation. As explained, this theory cannot account for the inconsistent verdicts. Point (3) rebuts the Crown’s attempt to rely on the difference in wording between the charges. [56] I would allow this ground of appeal, relating to Count 1 for breach of trust in connection with the witness record incident. D. DID THE JURY ERR IN FINDING A BREACH OF TRUST THAT DID NOT EXIST, RELATING TO INFORMATION THAT WAS NOT CONFIDENTIAL? [57] Cst. Darnley argues that the integrity plays were conducted because she was not trusted. Without trust, it is improper for the jury to have convicted her of breach of trust. In addition, she argues that since she accessed only a mock police file, no confidentiality was breached. [58] I disagree. Proof of actual trust of the accused is not an element of the offence of breach of trust. As the elements of the offence make clear, the trust that is breached arises from the office held and the duties and responsibilities bestowed, not from a subjective belief that the accused is likely to honour the trust that the official’s office requires. [59] I need not determine whether misuse by an official of mock information can support a breach of trust conviction because the files accessed by Cst. Darnley included actual police records, albeit assembled in a misleading way to pique Cst. Darnley’s interest. E. DID THE TRIAL JUDGE MISAPPLY THE LAW OF ENTRAPMENT RELATING TO THE DRUG INVESTIGATION FILE INCIDENTS? [60] Cst. Darnley argues that the trial judge erred in law in identifying the legal standards to be applied in determining whether entrapment occurred, specifically, whether the police went beyond providing her with an opportunity to commit an offence by inducing the commission of an offence. Cst. Darnley argues that the trial judge: (a) improperly reasoned that peace officers must be held to elevated standards of moral restraint or fortitude; and (b) misunderstood the average person inquiry by asking whether any OPP officer faced with the two integrity scenarios would inevitably have been induced to commit the breach of trust. [61] I would find that both errors occurred. They are contained in the ultimate paragraph of the trial judge’s analysis: The question is whether the “average person” should be ascribed the same “strengths and weaknesses” as the particular accused, in this case a police officer. I think that this must be so, as the test suggests that we are to consider the scenario as viewed through the eyes of someone “in the position” of the accused. The hypothetical average citizen may not, for example, understand all of the repercussions of the release of confidential police information and may not be fully apprised of an OPP officer’s duties to uphold his or her sworn oath of secrecy and oath of office. As a result, he or she may find it understandable that Darnley could be easily lured to reveal confidential information to her fiancé. But another officer, in the same position as Darnley, is not likely, in my view, to come to the conclusion that any OPP officer faced with the two integrity scenarios would have inevitably been induced to commit a breach of trust given his or her knowledge of their obligations . [Emphasis added.] [3] [62] It is convenient to begin with the second error identified by Cst. Darnley, namely, the trial judge’s misunderstanding of the average person inquiry. This is a key inquiry in determining whether the police went beyond providing an opportunity to commit an offence and induced the commission of an offence. It involves asking “whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime”: Mack , at pp. 959, 966. Based on this inquiry, if the average person, with strengths and weaknesses, in the position of the accused “might also have committed the offence”, this inquiry supports a finding of entrapment: Mack , at p. 979. This is not the standard the trial judge applied. She asked instead whether an OPP officer “faced with the two integrity scenarios would have inevitably been induced to commit a breach of trust given his or her knowledge of their obligation” (emphasis added). This is a more exacting test than should have been applied. [63] There are two problems with this statement. First, in Mack , the Supreme Court of Canada did not require a standard of “inevitability”. Lamer C.J., at pp. 959-960, explained how to determine whether the police have gone beyond providing an opportunity and inducing the commission of an offence: [T]o determine whether the police conduct gives rise to this concern, it is useful to consider whether the conduct of the police would have induced the average person in the position of the accused … I believe such a test is useful not only as an analytical mechanism…. [It] may be inevitable that, when apprised of the factual context of an entrapment case, members of the community will put themselves in the position of the accused; if a common response would be that anyone could have been induced by such conduct, this is a valuable sign that the police have exceeded the bounds of propriety. [Emphasis added.] [64] Put otherwise, it is a helpful analytical exercise to consider whether the commission of an offence would be “inevitable” or even “a common response”: Mack , at p. 960. If so, this is a valuable sign on its own that the police have exceeded the bounds of propriety in the inducement used. This does not mean, however, that the inevitability standard is the threshold required before the average person factor supports a finding of entrapment. The balance of Mack makes this clear. [65] The second problem is that, in her inquiry, the trial judge applied an improper conception of the relevant strengths of the average person by effectively concluding that a police officer must be taken to have elevated standards of moral restraint and fortitude. The trial Crown invited this reasoning by submitting that Cst. Darnley’s status as a police officer “really changes the analysis”. He continued: Because if it’s the average police officer who’s sworn an oath of secrecy, has sworn an oath of office, is under a code of conduct, that changes it. And if that’s the analysis in my respectful submission it’s over and done with at that point. The average police officer would not be touching or doing this type of conduct at all, but its an interesting issue. [66] What the Crown was clearly suggesting was that because of the oaths an officer makes and the code of police conduct, the moral standards and the standards of resistance to temptation expected of police officers in entrapment cases are elevated. Indeed, the Crown theory that average police officers would abide by their oaths and resist inducements would elevate the standard to the point where police officers could never successfully invoke an entrapment defence. [67] The trial judge accepted this invitation by relying expressly on the oath of office and then finding that although a hypothetical average citizen may “find it understandable that Darnley could be easily lured to reveal confidential information to her fiancé”, an officer would not have been induced to commit a breach of trust “given his or her knowledge of their obligations”. [68] Although it is correct to account for the status of the accused as a police officer in establishing the factual context of the event, it is an error to elevate the standard of resistance expected of an accused police officer. [69] As indicated, the relevant inquiry examines whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of the crime. Naturally, to give context to the inquiry, the hypothetical average person must be contemplated to be a police officer engaged in the relevant policing activity. In the criminal negligence context, R. v. Porto , 2016 ONSC 7353, 3 M.V.R. (7th) 334, aff’d 2018 ONCA 291, 23 M.V.R. (7th) 1, illustrates that a police officer engaged in the course of his or her duties in executing a high-speed response to an emergency has created an elevated risk of danger that heightens the care required. Similarly, in the criminal negligence context, an officer trained in the use of firearms may be expected to exercise that training in dangerous circumstances: R. v. Gosset , [1993] 3 S.C.R. 76. In this sense, it is possible to speak of elevated standards for police officers. This was done in Gosset , at para. 39, as well as in both the lower court and appeal decisions in Porto : see 2016 ONSC 7353, at paras. 67, 75; 2018 ONCA 291, at para. 6. For this reason, the trial judge was correct in the entrapment context in considering Cst. Darnley’s knowledge of the repercussions of releasing confidential police information, and that Cst. Darnley encountered the information in police files while on duty at the police detachment. [70] However, it is improper when applying the average person test to ascribe elevated standards of moral restraint or fortitude where a police officer is charged. [71] First, the underlying factual assumption required to do so is controversial. There was no basis on the trial record, nor can it be judicially noticed, that officers attain higher standards of moral integrity and resistance to temptation than average persons, that they are less susceptible to the emotions of compassion, sympathy, and friendship, or more immune from mental illness or substance addiction – factors that Mack calls into consideration where relevant: at p. 966. [72] More importantly, ascribing moral superiority and a heightened resistance to criminal inducement to police officers subverts the average person standard. In this case, the trial judge recognized that an average person could be easily lured to reveal confidential information to her fiancé. Yet, she went on to consider how a police officer would have responded and denied the defence, primarily for this reason. [73] In sum, had the trial judge confined herself to the factual circumstances of a police officer trained in handling confidential police information and the implications of its release, she would have been proceeding appropriately. By holding Cst. Darnley to higher moral standards and standards of resistance to emotional pressure, she erred. [74] The Crown asked that if we find the trial judge to have erred in the entrapment analysis we should go on, as in Mack , and determine the issue rather than send it back for a new trial. Since this charge must go back to trial because of the reasonable doubt error in any event, I would decline to do so. [75] However, given the possibility of a new trial, I will comment on the Crown’s submission that even if entrapment is ultimately established, this would not be one of those “clearest of cases” where a stay of proceedings is warranted. In fact, it would be an error of law to withhold a stay based on the “clearest of cases” test where entrapment has been found. [76] The defence of entrapment can only be established in the clearest of cases: Mack , at p. 976. Because there might not have been an offence to prosecute without the entrapment, the conviction for that crime is inappropriate. For this reason, Lamer C.J. said unequivocally, for the court in Mack , at p. 967, “the proper remedy is a stay of proceedings”. The trial judge was correct in recognizing this. CONCLUSION [77] I would allow the appeal from the conviction on Count 1 of the indictment, the breach of trust conviction relating to the witness record incident and quash the conviction. I would do so because of the reasonable doubt error, and the inconsistent verdict error. [78] I would not order a retrial on this charge. As explained, given the specific allegations made, there is no logical or rational basis for justifying different outcomes between this charge (Count 1) and the obstruction of justice charge (Count 2). The obstruction of justice acquittal was not appealed and remains. In the circumstances, it would be unfair to permit the Crown to seek a conviction in a retrial of Count 1 for the same allegation for which Cst. Darnley stands acquitted. Ordering a new trial would invite a new jury to return a verdict inconsistent with Cst. Darnley’s acquittal: R.V. , at para. 140. I would therefore substitute a verdict of acquittal on this charge. [79] I would also allow the appeal from the conviction on Count 2, the breach of trust charge related to the drug investigation file incidents, based on the reasonable doubt error and the entrapment error. I would quash the conviction and order a new trial on this charge. Released: “K.F.” March 9, 2020 “David M. Paciocco J.A.” “I agree. K. Feldman J.A.” “I agree. P. Lauwers J.A.” [1] Cst. Darnley was also charged with an additional, redundant count of breach of trust in connection with the drug investigation file incidents, but that charge was withdrawn after the evidence concluded. [2] To be clear, a misdirection cannot be relied upon to explain inconsistent decisions: R. v. R.V. , 2019 ONCA 664, 147 O.R. (3d) 657. [3] Since it is necessary to quote this passage in order to identify the appealed errors, it should be pointed out that, in asking what another OPP officer would understand or think, the trial judge applied an unconventional perspective that should not be replicated. Objective inquiries are not typically conducted by imbuing the objective actor with appropriate characteristics and circumstances and then asking what such a person would understand or think of the impugned conduct of the accused. Instead, they are conducted by identifying the relevant characteristics and circumstances of the objective actor and then asking what that hypothetical person would have done in all the circumstances: R. v. Creighton , [1993] 3 S.C.R 3. The trial judge did return to this more conventional measure in the last passage of her decision.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.  8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.  13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Esquivel-Benitez, 2020 ONCA 160 DATE: 20200302 DOCKET: C65366 Simmons, van Rensburg and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Manuel Esquivel-Benitez Appellant Lance Beechener, for the appellant Natalya Odorico, for the respondent Heard: February 19, 2020 On appeal from the conviction entered by Justice Carole J. Brown of the Superior Court of Justice on June 2, 2017, and from the sentence imposed on April 17, 2018. REASONS FOR DECISION A. Overview [1] At the conclusion of the oral hearing we allowed this appeal for reasons to follow. These are our reasons. [2] Following a judge alone trial, the appellant was convicted of sexual assault and sentenced to 22 months’ imprisonment plus two years’ probation. He appeals against conviction and seeks leave to appeal against sentence. [3] The appellant raises five issues on his conviction appeal. [4] We conclude that the following three issues are dispositive of the conviction appeal and require that the appeal be allowed, the conviction set aside, and a new trial ordered. B. Analysis [5] First, we accept the appellant’s submission that the trial judge made an R. v. W.(D.) error by treating the credibility issue as a contest between the complainant and the appellant and failing to consider whether the evidence as a whole left her with a reasonable doubt: [1991] 1 S.C.R. 742. [6] On several occasions throughout her reasons, the trial judge framed her conclusions in language indicating she was deciding which version of events she preferred and that reasonable doubt did not play a role in her findings. Some examples are the following, found at paras. 96, 124, 127 and 130 of the reasons below: Except where otherwise stated, I prefer the complainant’s testimony to that of the accused. As indicated herein, I find the complainant’s version of facts to be more credible. I am left with a significant doubt as regards [the appellant’s] evidence of the occurrences of that evening. I find this evidence to be somewhat suspect and contrived. As indicated, in terms of credibility I prefer [the complainant’s] version of the facts, which I find is more credible. [7] We acknowledge that the trial judge instructed herself on the principles of reasonable doubt in accordance with W.(D.) . Nonetheless, reading her reasons as a whole we cannot be satisfied she properly applied those principles. In addition to treating the credibility issue as if it were a contest between competing versions of events, having found the complainant to be the more credible witness, the trial judge failed to step back and consider whether the whole of the evidence, including the appellant’s evidence, was nonetheless capable of giving rise to a reasonable doubt. [8] Second, we agree that the trial judge failed to meaningfully recognize or address the evidence of the complainant’s possible motive to fabricate when assessing credibility. [9] It was undisputed at trial that, following an afternoon and evening of drinking and partying with friends, the appellant had sexual intercourse with the complainant on the couch in his living room while the complainant’s husband was sleeping in an adjacent room. [10] Just as these events were ending, the complainant’s husband emerged from the adjacent room. He immediately asked what was going on and flew into a violent rage. [11] As the couple walked home, the complainant’s husband persistently questioned her as to what had happened. He threatened to leave the complainant and stated repeatedly, “Tell me this guy abused you” or “Did he abuse you?”. The fact that the complainant did not immediately, when confronted, tell her husband that she had been assaulted and did so only after they had returned home, in response to his repeated entreaties, was relevant to whether she had a motive to fabricate, and ultimately to her credibility. [12] Rather than giving this evidence proper consideration, the trial judge dismissed the defence focus on this evidence as “part of an ongoing myth regarding sexual consent”: at para. 133. [13] This was an error. Undoubtedly it was open to the trial judge to accept the complainant’s evidence that she did not consent to sexual activity and that her response to her husband’s questioning was due to a myriad of factors that had nothing to do with fabrication. However, in the circumstances of this case, the trial judge was also obliged to consider whether the events gave rise to a motive to fabricate and, if so, how that reflected on her assessment of the complainant’s credibility. [14] A motive to fabricate can be an important factor that is germane to a witness’s credibility: R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), at para. 120. [15] Here, i t was incumbent on the trial judge to consider the evidence that was both consistent and inconsistent with consent, which was the central issue at trial. The complainant’s actions, including the fact that she did not “assuage” her husband’s concerns and doubts by responding to his questions when asked what was going on, were relevant. This evidence ought to have been addressed and not dismissed as irrelevant by the trial judge. [16] Third, we accept the appellant’s submission that the trial judge relied improperly on the appellant’s presence in the courtroom when the complainant testified to negatively assess his credibility. Twice in her reasons the trial judge referred to the appellant’s presence in the courtroom while the complainant testified and used this factor against him in assessing his credibility. [17] At paras. 91, 129 and 130 of her reasons the trial judge said: Further, his testimony, coming after hearing the complainant’s testimony , essentially mirrored her description of what occurred leading up to and during the sexual encounter, but he portrayed her as the aggressor. This simply does not have the ring of truth. I found his evidence to be contrived. [The appellant’s] testimony, following thereafter, recounted the same occurrences, but made her the “aggressor”. He testified that she attempted to kiss him, he rebuffed her as he did not want to “get her hopes up”. She attempted a second time to kiss him, and then put her hand on his penis outside and then inside his pants. Throughout, he attempted to rebuff her and she continued as the “aggressor”. Thus, his evidence essentially mirrored hers, but throughout his testimony, he portrayed, the actions as coming from her, not him, and made her the aggressor. I find this evidence to be somewhat suspect and contrived. As indicated, in terms of credibility, I prefer her version of the facts, which I find is more credible. [Emphasis added.] [18] As this court recognized in R. v. Jorgge , 2013 ONCA 485, 4 C.R. (7th) 170, accused persons have not only a statutory obligation but also a right to be present at their trial, grounded in their constitutionally guaranteed rights to a fair trial and to make full answer and defence: at para. 12. On our review of her reasons, the trial judge used this right against the appellant to find that he had the opportunity to tailor his evidence and that he did so. This line of reasoning is not permissible: Jorgge , at para. 18. [19] The respondent acknowledges that absent an allegation of recent fabrication it is impermissible to reason that an accused person tailored their evidence to correspond with the prosecution’s evidence. However, the respondent argues that did not happen here. Rather the trial judge was merely commenting on the sequence of the evidence. Moreover, the trial judge gave many valid reasons for disbelieving the evidence. Even if the trial judge fell into error, it was a minor error that did not occupy a prominent position in her reasons for rejecting the appellant’s evidence. [20] We cannot accept the respondent’s submissions. On a plain reading of the paragraphs we have quoted, read in context, the trial judge used the appellant’s presence in the courtroom as a basis for rejecting his evidence. We are unable to say that this error did not taint the trial judge’s reasoning process. Moreover, when considered with the other errors we have identified, we are satisfied that the cumulative effect of the trial judge’s errors requires a new trial. C. Disposition [21] Based on the foregoing reasons, it is unnecessary to consider the remaining grounds of appeal. The appeal is allowed, the conviction is set aside and a new trial is ordered. “ Janet Simmons J.A.” “K. van Rensburg J.A.” “A. Harvison Young J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)      any of the following offences; (i)       an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)      two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)      In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)      at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)      on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)      In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)      An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. H. M. R. S., 2020 ONCA 209 DATE: 20200316 DOCKET: C62971 Watt, Paciocco and Fairburn JJ.A. BETWEEN Her Majesty the Queen Respondent and H.M.R.S. Appellant H.M.R.S., in person by video conference Amy Ohler, duty counsel Jessica Smith Joy, for the respondent Heard: March 11, 2020 On appeal from the conviction entered on November 20, 2015 and the sentence imposed on October 14, 2016 by Justice John S. Fregeau of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of aggravated sexual assault contrary to s. 273(1) of the Criminal Code . He was sentenced to ten years’ incarceration, less credit for presentence custody. He appeals from conviction and sentence. [2] The complainant testified that she was in the company of a few people, including the appellant, on the evening of the alleged offence. A lot of alcohol had been consumed. They eventually ended up at the appellant’s residence, where even more alcohol was consumed. The complainant fell asleep fully clothed but awoke to find the appellant removing her clothes. She was turned onto her stomach and vaginally penetrated from behind, while being strangled with what she believed to be a cloth. She thought she was going to die, saw stars and then everything went “black”. She reported the incident to the police the following day. [3] The first police officer who saw the complainant when she arrived at the police station testified that she immediately noticed that the complainant’s “eyes were bleeding or they looked like they were bleeding.” The officer also said that the complainant had such “severe petechial hemorrhaging” that the officer had only previously seen that condition in sudden death cases. [4] In appealing his conviction, the appellant argues that his trial counsel was ineffective and that this resulted in a miscarriage of justice. He raises numerous examples of that ineffectiveness, which can be grouped under the following categories. He contends that his counsel failed to: · conduct proper cross-examinations of Crown witnesses; · call certain witnesses to rebut the Crown evidence, including the evidence of a cab driver and others who could have testified about prior sexual encounters between the appellant and complainant; · elicit an expert opinion to rebut the Crown expert; and · explore whether photos of the complainant’s injuries had been tampered with. [5] The appellant also suggests that his counsel, Crown counsel and the trial judge may have discussed matters outside of his presence. Finally, he suggests that trial counsel may well have had a conflict of interest in representing him because she may have been involved in a previous unrelated case involving a family member of his. [6] We see no basis upon which to set aside the conviction. The record does not support the appellant’s suggestions of incompetence. This was a strong Crown case that rested on credibility findings that were open to the trial judge to make. The complainant’s credibility was entirely supported by the forensic evidence, including the facial and neck injuries resulting from strangulation. Moreover, much of the evidence that the appellant suggests should have been elicited by his counsel, either through cross-examination or through the calling of other witnesses, was inadmissible pursuant to the collateral facts rule, or constituted presumptively inadmissible evidence of hearsay or prior sexual history evidence. [7] The expert evidence was non-controversial. The witness testified about how strangulation can cause death and secondary injuries, such as subconjunctival hemorrhages, ligature bruising and facial petechiae, all of which are seen in the photos of the complainant’s injuries. [8] We see no basis upon which to suggest that the photos of the complainant, on which the expert based his opinion, have been tampered with. Indeed, what is seen in the photos is supported by the testimony of the police officer who saw the complainant upon her arrival at the police station. [9] There is no evidence to support the suggestion that defence counsel met with the Crown and trial judge outside of the appellant’s presence. As for the suggestion of conflict, it is the appellant’s onus to establish one. The record does not support his position on conflict. [10] Duty counsel assisted the appellant with his sentence appeal, arguing that the trial judge erred in treating the appellant’s lack of remorse as an aggravating factor. There is no dispute that an absence of remorse does not constitute an aggravating factor. Crown counsel argues that, reading the reasons as a whole, the trial judge should be interpreted as suggesting that the appellant’s lack of remorse and lack of insight into the offence demonstrated his poor rehabilitative prospects. [11] While it is not entirely clear to us how the trial judge was using the reference to the “absence of remorse”, the appellant’s submission is not without some force, particularly given that the reference to the lack of remorse falls squarely within the list of aggravating factors. In our view, though, even if the trial judge incorrectly used the lack of remorse in this way, it had no impact on the sentence: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11 and 44. There were six other serious aggravating factors, the most serious being that the victim was strangled so badly that she was at risk of dying. Considering the seriousness of the offence, the global sentence of ten years was appropriate. [12] Duty counsel also submitted that the judge erred in identifying the primary sentencing objectives as deterrence and denunciation. She argues that these objectives are not entirely consistent with the judge’s acknowledgment of the serious Gladue factors relevant to the appellant’s case. The appellant himself also submitted that the sentencing judge had not read the Gladue report. There is nothing to support the appellant’s submission that the judge had not read the report. Given the seriousness of the offence, deterrence and denunciation were appropriate sentencing objectives, and the trial judge’s acknowledgment of this did not render the sentence unfit. [13] The conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed. “David Watt J.A.” “David M. Paciocco J.A.” “Fairburn J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. J.H., 2020 ONCA 165 DATE: 20200304 DOCKET: C65145 Watt, Huscroft and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and J.H. Appellant Ian B. Kasper, for the appellant Megan Petrie, for the respondent Heard: August 20, 2019 On appeal from the conviction entered on December 7, 2017 by Justice Graeme Mew of the Superior Court of Justice, sitting with a jury. Watt J.A.: [1] In June, 2014 C.H. told J.H. (the appellant), her husband of 15 years: “Our marriage is over”. The appellant left the house. C.H. and the couple’s three children remained there. [2] After a few hours of drinking, the appellant returned to the house. He got into bed with C.H. Despite her protests – “You can’t do this anymore” – and resistance, the appellant allegedly ripped C.H.’s underwear off and forcibly had sexual intercourse with her. He said: “You’re my wife, I can do whatever the hell I want with you”. [3] About six months later, after the appellant had moved out of the house, a second incident of alleged sexual assault occurred. The appellant told C.H.: “I’m gonna make you pay for what you have done”. [4] A jury found the appellant guilty of two counts of sexual assault. [5] The appellant appeals his conviction. He advances several grounds of appeal. These reasons explain why I have concluded that his appeal should be dismissed. The Background Facts [6] The grounds of appeal advanced do not require a detailed recounting of the troubled relationship between the appellant and C.H. which preceded its demise. A brief reference will suffice. To the extent greater detail is required to understand a ground of appeal, it will be added there. The Early Years [7] C.H. and the appellant met when both were students at a community college. They married in 1999 and, over the next several years, had three children. [8] It was apparent to C.H. early in the relationship that the appellant’s consumption of alcohol was problematic. She testified that “[t] here were multiple occasions that he got into trouble, some bars, some pubs.” The Military Postings [9] In 2000, the appellant joined the Canadian Armed Forces. The family moved frequently due to his military postings. On occasion, the appellant was aggressive towards one of the children. [10] The appellant’s military postings included two tours of duty in Afghanistan. During these tours, C.H. remained in Canada with the couple’s children. During one tour of duty in Afghanistan, the appellant was injured. Later, he was diagnosed with Post-Traumatic Stress Disorder (PTSD). Deterioration of The Marital Relationship [11] Over the years, the marriage deteriorated. The appellant’s abuse of alcohol continued. He was absent from the marriage and the home for several periods because of foreign military postings. When he returned, he abused alcohol, C.H., and their children, two of whom had serious health issues. He also engaged in extra-marital affairs. [12] The appellant was critical of C.H. He faulted her for anything that went wrong in the household or with the children. As a result, she sought counselling and assistance from various individuals and agencies. The Marriage Breakdown [13] The family moved to Kingston, where the appellant was posted in 2012. The appellant promised C.H. that they would make a “fresh start” and that he would stop drinking. [14] The appellant’s promises did not come to fruition. His drinking continued. He became more aggressive towards C.H. and their children. He admitted an extra-marital affair. He became more distant in his relationship with C.H. [15] In December, 2013 C.H. told the appellant to leave the house. He declined to do so. The First Sexual Assault [16] One day in June, 2014 C.H. told the appellant that the marriage was over. The appellant left the house. He went out drinking. He returned several hours later, after midnight. [17] On his return, the appellant got into bed with C.H. He began touching her intimately. She told him that she could not do that anymore and to leave her alone. The appellant ripped C.H.’s underwear. He ignored her resistance. He said, “You’re my wife, I can do whatever the hell I want with you” and forced sexual intercourse upon her. [18] C.H. did not report this incident because of concerns she had about her children. The couple remained together with the children in the same house. The End of The Marriage [19] A couple of months later, C.H. again asked the appellant to leave the house. Once again, he refused. The appellant ultimately agreed to attend an out-of-province in-patient facility to be treated for his alcohol addiction. [20] When the appellant returned home, C.H. told him that their relationship was over. Some further problems with one of the children had resulted in the Children’s Aid Society (“CAS”) getting involved. C.H. continued to seek assistance from various agencies. [21] The appellant and C.H. finally separated in mid-November, 2014. The Second Sexual Assault [22] One evening a few weeks after they had separated, the appellant called C.H. who was at home with their children. He asked C.H. for a ride to the place where he was living. C.H. agreed. En route, the appellant persuaded C.H. to let him stay with her and the children. She agreed. [23] The appellant entered the bedroom where C.H. was in bed with all three children. She was fully clothed. The appellant picked C.H. up, carried her to another bedroom and threw her down on the bed. He tried to undress C.H. He touched her all over her body, including her private areas, despite her physical resistance and screams to stop. The appellant told C.H.: “I’m gonna make you pay for what you have done.” Shortly thereafter, the appellant fell asleep on top of C.H. She slipped out from under him and returned to bed with her children. The appellant left the next morning. The Grounds of Appeal [24] The appellant advances five grounds of appeal. He contends that the trial judge erred: i. in failing to declare a mistrial because of the erroneous reception of evidence of the appellant’s uncharged disreputable conduct; ii. in failing to restrict the trial Crown’s improper questioning of C.H. about her experience disclosing and testifying about the appellant’s conduct; iii. in failing to instruct the jury on the permissible and impermissible uses of evidence of prior consistent statements and hearsay; iv. in failing to instruct the jury on the differences between lack of evidence of a motive to fabricate and the absence of a motive to fabricate; and v. in failing to provide corrective instructions about improprieties in the trial Crown’s closing address to the jury. Ground #1: The Failure to Declare A Mistrial [25] This ground of appeal challenges the trial judge’s failure to take remedial steps, in particular to declare a mistrial, because of the nature and extent of evidence of the appellant’s extrinsic disreputable conduct introduced at trial in C.H.’s testimony. An essential part of the complaint is that the evidence was received without a proper admissibility inquiry prior to its introduction. The Additional Background [26] To better understand the nature of the appellant’s complaint, some further background is helpful. The Pre-Trial Proceedings [27] Prior to jury selection, no pre-trial application was brought to determine the admissibility of any evidence of uncharged disreputable conduct on the part of the appellant. Put differently, neither party asked the trial judge to rule on the admissibility of this evidence before it was introduced during C.H.’s testimony. The Discussion Prior to Jury Openings [28] After the jury had been selected, but before either the trial judge or the Crown gave their opening remarks, the Crown (not counsel on appeal) alerted the trial judge to two evidentiary issues that would arise in the course of the trial. [29] The Crown explained that the complainant would be testifying about the appellant’s disreputable conduct towards her prior to the commission of the offences charged. The Crown argued this evidence should be received on the basis that it tended to show the history of the couple’s relationship and the appellant’s animus towards her, and explained her delay in reporting the sexual assaults. No details of the proposed evidence were provided. However, the Crown did say that the conduct involved was not of the same magnitude as the offences charged. [30] Defence counsel (not counsel on appeal) described the proposed evidence, the full extent of which he claimed not to know, as a double-edged sword. He had no objection to the evidence about excessive alcohol consumption and marital infidelity which preceded the first alleged sexual assault. However, he expressed concern about the extent of the evidence to be tendered and its use to explain the delay in reporting and in the complainant leaving the relationship. Counsel also requested the trial judge to instruct the jury on the use of this evidence. [31] The trial judge was not asked to make and did not make any ruling on admissibility. He cautioned the Crown to be disciplined in his introduction of the evidence and told defence counsel to object if he saw things heading in a direction with which he was not comfortable. The Admissibility Inquiry [32] Neither counsel sought, nor did the trial judge direct, an inquiry into the admissibility of the evidence of the appellant’s prior disreputable conduct. The Opening Addresses [33] In his opening address, the Crown made some references to the appellant’s disreputable conduct, but provided little detail. Defence counsel did not object to the opening or suggest to the trial judge that an admissibility inquiry should be held to determine the extent of this evidence that the jury could hear. The Evidence of Disreputable Conduct [34] The evidence about which the appellant complains involves four types of conduct: i. the rifle on the freezer; ii. running from the police; iii. absentee parenting; and iv. aggression towards one of the children. A brief description of each will suffice. [35] C.H. testified that among several factors that caused her to take a leave of absence from work and led to the deterioration of the marital relationship, was her discovery of a rifle at the family home. Crown counsel elicited no further details. In cross-examination, C.H. agreed that she had no idea whether the rifle was operable. Shortly after the rifle was discovered, the appellant arranged for its disposal. [36] C.H. gave evidence about how the appellant’s behaviour changed when he had been drinking. She illustrated what she meant by referring to a time when the appellant and a friend were in England on a military assignment. Both men were chased by the police. The Crown did not elicit any further details. [37] In cross-examination, defence counsel suggested that the appellant's pursuer was a “London pimp”, not the “London police”. The complainant disagreed. She added that the appellant was also involved with the police in Halifax although he had not been charged with any offence. The trial judge intervened and instructed the complainant to confine her responses to the questions asked. Defence counsel used the latter exchange in his closing to the jury to illustrate C.H.’s telling of a “story” to discredit the appellant. [38] The complainant also testified that, at various times during their relationship, the appellant had been absent from the family home, leaving her to parent their children. However, other evidence revealed that the appellant had been deployed twice to Afghanistan and that, even after separation, he had returned to assist in getting their older son to school. [39] C.H. gave evidence that the appellant pushed or shoved their older son. The Crown did not expressly elicit this testimony; rather the complainant mentioned it as part of a more expansive answer about the appellant’s conduct prior to the assaults. Defence counsel suggested to C.H. that she had also been aggressive with their son. The Motion for A Mistrial [40] On the first day of trial, the complainant testified in-chief. Her testimony attracted no objection from defence counsel while the jury was present. However, at the end of the day, after the jury had been excused, defence counsel alerted the trial judge to several aspects of the complainant’s evidence that were of concern to him. The extensive evidence of narrative and context. Some hearsay. Leading questions by the Crown. And evidence of discussions the complainant recounted with a doctor, CAS staff, and a social worker. Counsel did not bring a mistrial application at that time, but foreshadowed one because, in his submission, the harm caused by the evidence could not be undone by the simple expedient of a limiting instruction. [41] The following day, in the absence of the jury, defence counsel applied for a mistrial. He pointed out that evidence of extrinsic disreputable conduct was presumptively inadmissible. It was incumbent on the Crown to satisfy the judge, on a pre-trial application, that the probative value of this evidence outweighed its prejudicial effect. The Crown had failed to do so. Although counsel had discussed the admissibility issue at the pre-hearing conference, and had agreed on a course to circumnavigate the conduct underlying the appellant’s prior convictions, the volume of evidence of disreputable conduct adduced at trial far exceeded what counsel anticipated and caused prejudice which a limiting instruction could not cure. [42] The trial Crown acknowledged that it would have been preferable to have had the admissibility issue litigated and decided by pre-trial application. On the other hand, the evidence was plainly admissible on several grounds and any moral or reasoning prejudice occasioned by it could be cured by limiting instructions. The Ruling of The Trial Judge [43] The trial judge dismissed the mistrial application. He acknowledged that the admissibility of the evidence should have been determined on a pre-trial application by the Crown. But, he was “pretty confident” that, had such an application been made, it would have been granted. [44] Before the complainant was recalled to complete her examination in-chief and cross-examination, the trial judge instructed the jury how they must not use the evidence of extrinsic disreputable conduct. Neither counsel took issue with the content of this instruction. The Arguments on Appeal [45] The appellant says that the trial judge erred in dismissing the mistrial application. This error occurred because the trial judge reached the wrong conclusion about the admissibility of this evidence. [46] The appellant contends that the disputed evidence was presumptively inadmissible. It was incumbent on the Crown to establish a case for admissibility on a pre-trial application by establishing, on a balance of probabilities, that the probative value of this evidence exceeded its prejudicial effect. The trial judge’s dismissal of the mistrial motion resulted from three errors related to the admissibility of the uncharged disreputable conduct evidence: i. the failure to conduct a voir dire to determine admissibility; ii. the failure to conduct a proper balancing of probative value and prejudicial effect; and iii. the reception of evidence to establish animus and motive that lacked probative value on those issues. [47] The respondent rejects any suggestion of error in dismissal of the mistrial motion. The evidence of disreputable conduct was relevant and admissible as narrative; to establish animus and motive; and to provide context for evidence about the offences charged. [48] In prosecutions involving allegations of domestic abuse, the respondent says, evidence of uncharged disreputable conduct may be relevant to show the nature and dynamics of the relationship; to prove animus or motive; to explain the delay in reporting; and to rebut a claim that the allegations have been fabricated. In this case, the respondent continues, the evidence adduced was relevant to and properly admissible on each of these issues. [49] The respondent takes issue with the appellant's claim of prejudicial error in the failure of the Crown to request, or the trial judge to conduct, an inquiry into the admissibility of this evidence prior to its introduction before the jury. Before trial, the parties discussed and reached a “give and take” agreement about the admissibility of this evidence. Each wanted to avoid disclosure of any conduct which had resulted in the appellant’s prior convictions. This was done. And the evidence of uncharged disreputable conduct adduced at trial did not exceed the expectations of either party. [50] It is well established, the respondent continues, that decisions on whether to declare a mistrial involve the exercise of judicial discretion. It follows that decisions on this issue are subject to substantial deference when challenged on appeal. In this case, the trial judge applied the proper principles and concluded that a less drastic remedy – a limiting instruction – was sufficient to contain any prejudice which might arise from the introduction of the evidence. Decisions about the adequacy of alternative remedies are also discretionary, thus are equally entitled to deference on appeal. In neither case should we interfere. The Governing Principles [51] To evaluate this ground of appeal requires consideration and application of principles governing evidence of uncharged disreputable conduct and the procedure to determine its receivability. And we must take into account not only the test to be applied on a motion for a mistrial, but also the standard we are to apply on reviewing decisions rendered on those motions. The Receivability of Evidence of Uncharged Disreputable Conduct [52] To be receivable in a criminal trial, evidence must be relevant, material and admissible. Evidence is relevant if it tends to prove what it is offered to prove. Evidence is material if what it is offered and tends to prove is something with which the law is concerned. And evidence is admissible if its reception does not offend any exclusionary rule of evidence and its probative value exceeds its prejudicial effect: R. v. Calnen , 2019 SCC 6, 374 C.C.C. (3d) 259, at paras. 107-9; R. v. J.A.T. , 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 49. [53] When evidence of uncharged disreputable conduct is tendered by the Crown, the evidence is generally, but not always, inadmissible: R. v. Robertson , [1987] 1 S.C.R. 918, at p. 941; R. v. Handy , 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31, 36; and R. v. Luciano , 2011 ONCA 89 , 267 C.C.C. (3d) 16, at para . 221. The general prohibition arises because of the baggage – moral and reasoning prejudice – this evidence brings with it. We prohibit prosecutorial use of character evidence, and thus evidence of uncharged disreputable conduct to establish character, as circumstantial proof of conduct: Luciano , at paras. 116, 221; Handy , at para. 31. [54] Like other admissibility rules, this general rule of exclusion capitulates on occasion. It yields where the probative value of the proposed evidence exceeds its prejudicial effect: Handy , at para. 55; Luciano , at para. 222; and J.A. T. , at paras. 51, 54. Whether the evidence will be admitted by exception or excluded under the general rule is a function of the circumstances of each case. These circumstances determine where the balance as between probative value and prejudicial effect will settle, not some prefabricated rule or exclusive list of exceptions: J.A.T. , at para. 54. [55] Despite the absence of any such rule or list of exceptions, evidence of uncharged disreputable conduct has often been received in prosecutions alleging assaultive behaviour in a domestic relationship, including charges of sexual assault. Among the issues upon which this evidence has been admitted are these: i. as part of the narrative of relevant events; ii. to provide context for other evidence; iii. to facilitate understanding of the nature of the relationship between the principals; iv. to demonstrate motive or animus on the part of the accused for committing the offences; v. to explain the failure of the complainant to leave the relationship or to report the abuse earlier; and vi. to rebut a claim of fabrication. See R. v. F., D.S. (1999), 43 O.R. (3d) 609 (C.A.), at pp. 616-17; R. v. R., B.S. (2006), 81 O.R. (3d) 641 (C.A.), at para. 38. The Procedure to Determine Admissibility [56] The admissibility of evidence tendered for reception in a criminal trial is for the trial judge to determine: R. v. B. (G.) , [1990] 2 S.C.R. 57, at p. 71; R. v. Spackman , 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 115. After all, admissibility is a legal concept governed by rules that are primarily exclusionary, but subject to inclusionary exceptions. In a jury trial, the presiding judge has the duty to ensure that only relevant, material and admissible evidence gets before the jury: J.A. T. , at para. 50; R. v. B. (F.F.) , [1993] 1 S.C.R. 697, at pp. 735-36. [57] In trials in the Superior Court of Justice, any party who seeks admission of evidence that a common law or other rule renders presumptively inadmissible must apply to the trial judge for an order permitting its reception. This is the effect of rr. 30.01 and 30.02(1) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) , SI/2012-7, as amended by SI/2014-5, s. 17 . Rule 30.01(a) applies specifically to evidence of disreputable conduct by an accused, other than the conduct charged in the indictment. [58] The prevailing practice in this province is to invoke s. 645(5) of the Criminal Code of Canada , R.S.C. 1985, c. C-46, together with rr. 30.03-30.05, to have the application heard and determined in advance of jury selection. Scheduling is done at or after the mandatory pre-hearing conference under s. 625.1(2) of the Criminal Code . The form the admissibility inquiry will take is for the judge to decide: R. v. Evans , 2019 ONCA 715 , 147 O.R. (3d) 577 , at para. 148. [59] It may not be necessary in all cases to conduct an admissibility inquiry in accordance with the procedure prescribed by the Criminal Proceedings Rules . An express waiver by counsel of the necessity for an inquiry, and an admission that the proposed evidence is admissible, may obviate the necessity for an inquiry: R. v. Park , [1981] 2 S.C.R. 64, at pp. 73-74. [60] The failure to conduct an admissibility inquiry may amount to procedural error capable of vitiating a conviction: Park , at pp. 69-70. But whether such a consequence will ensue from the failure will depend on the circumstances of each case. In some instances, the failure may be rendered harmless by the application of a curative proviso: R. v. D.A.R. , 2012 NSCA 31, 314 N.S.R. (2d) 331, at para . 19. Mistrial Applications [61] A mistrial is a remedy of last resort, ordered only where it is necessary to prevent a miscarriage of justice. A mistrial should be declared only after a trial judge has considered and rejected as inadequate other less extreme remedies, such as mid-trial limiting or curative instructions: R. v. A.G. , 2015 ONCA 159, 124 O.R. (3d) 758, at para. 50; R. v. Chiasson , 2009 ON CA 789, 258 O.A.C. 50, at para. 14; and R. v. Burke , 2002 SCC 55, [2002] 2 S.C.R. 857, at paras. 75, 77. [62] The trial judge is best positioned to determine whether a mistrial should be granted or whether some lesser remedy, such as a mid-trial instruction, is an adequate antidote to the prejudice that has seeped into the trial. On this issue of choice of remedy, appellate courts owe substantial deference to the trial court and should intervene only in cases where the conclusion is clearly wrong or is grounded on an erroneous principle: A.G. , at paras. 51-52; Chiasson , at para. 14. The Principles Applied [63] I would not give effect to this ground of appeal. My assessment of it proceeds through a series of steps. [64] At the outset, recall that it was uncontroversial at trial that throughout the marriage, especially in its waning stages, the appellant abused alcohol, C.H., and – at times – his children. He had extra-marital affairs. The relationship had become toxic. Both parties, as individuals and together, had attended or sought the assistance of individuals or organizations for counselling. Evidence of these efforts and the reasons underlying them was before the jury. [65] The appellant’s principal arguments in support of this ground of appeal relate to four items of evidence: i. the rifle on the freezer; ii. running from the police; iii. absentee parenting; and iv. pushing or shoving one of the children. At least three of these incidents were uncontroversial. There was no doubt that each had occurred. The fourth – running from the police – appears to be hearsay since it is unclear that C.H. was present to witness these events. [66] First, admissibility. [67] Leaving to one side the incidents involving the rifle on the freezer and running from the police, the other incidents tend to show the nature of the marital relationship of C.H. and the appellant; thus they provide context for the other evidence and assist in unfolding the narrative. [68] Evidence about possession of a rifle and running from the police in Halifax and in London, England lacked relevance on any material issue. On the other hand, neither of these items of evidence were likely to engender any moral or reasoning prejudice. There was no evidence that the rifle was operable, much less used as an instrument of intimidation. The appellant arranged for its disposal. And it was made clear that the London incident did not involve any allegations of criminal conduct. The incidents were markedly less serious than the offences charged. The details revealed to the jury about each were sparse, briefly recounted, and not the subject of protracted questioning. [69] In the result, I am not satisfied that introduction of the evidence about the four incidents which form the core of this complaint compromised the validity of the verdict or the fairness of the appellant’s trial. [70] Second, the failure to hold an admissibility inquiry. [71] The record on appeal does not disclose any discussions about the admissibility of evidence of uncharged disreputable conduct that may have occurred at the pre-hearing conference required under s. 625.1(2) of the Criminal Code . This deficiency underscores the importance of pre-hearing conferences and, more particularly, delivery of the pre-hearing conference report and its review by the trial judge in advance of trial. This enables discussion and, where necessary, resolution of evidentiary issues in advance of jury selection. [72] What does appear from the record is that counsel had discussed the evidence of uncharged disreputable conduct in advance of trial. They agreed to refrain from introducing evidence of the conduct upon which the appellant’s prior convictions had been based. The extent of the agreement beyond that is unclear. [73] What occurred in this case – an after-the-fact complaint about evidence of uncharged disreputable conduct and a motion for a mistrial – was avoidable. The uncertainty could and should have been resolved in advance of jury selection. A simple statement of the nature of the agreement. A discussion clarifying any areas of uncertainty. At bottom, it was for the Crown to establish a case for admissibility and for the trial judge to settle the issue after inquiry. Neither occurred. [74] Despite these omissions, I am not persuaded that the failure to conduct an admissibility inquiry resulted in the introduction of inadmissible evidence that tainted the validity of the jury’s verdict or otherwise compromised the fairness of the trial. [75] It is well-settled that the failure to conduct an admissibility inquiry does not, without more, preclude upholding on appeal the verdict rendered at trial. Such a failure is a procedural irregularity, and thus within the potential reach of the proviso in s. 686(1)(b)(iv) of the Criminal Code . [76] In this case, no miscarriage of justice occurred as a result of this procedural omission. The only aspects of the evidence of uncharged disreputable conduct that was inadmissible – the rifle and the encounters with police – were unlikely to engender propensity reasoning. The entire package of evidence of uncharged disreputable conduct was the subject of a mid-trial instruction enjoining impermissible use. The instruction was repeated in the charge. And this was evidence well-known to defence counsel. [77] Finally, the failure to declare a mistrial. [78] Decisions on motions for mistrials involve the exercise of judicial discretion. A mistrial is a remedy of last resort. It is appropriate only in cases in which it is necessary to prevent a miscarriage of justice when all other less extreme remedies have been rejected as inadequate. The trial judge was there. We were not. His decision to decline to order a mistrial, and to instead provide and later repeat a specific instruction enjoining prohibited reasoning, is entitled to deference. That decision was not unreasonable. Nor was it compromised by consideration of any erroneous factor, or a failure to consider any relevant factor. In the absence of error, this ground of appeal fails. Ground #2: Improper Questioning of the Complainant [79] This ground of appeal challenges the propriety of several questions the Crown asked the complainant in concluding her examination-in-chief. The questions, unchallenged at trial, are now said to have been improper, the answers they elicited from C.H., inadmissible, and the result, a fatal blow to the appellant’s entitlement to a fair trial. The Essential Background: The Impugned Questioning [80] On the second day of trial, immediately after the trial judge had instructed the jury about the permitted and prohibited use of evidence of uncharged disreputable conduct, the Crown continued his examination-in-chief of the complainant for a further 20 minutes. [81] During this time, the Crown asked three questions to which objection is now taken: Q.      [C.H.], can you tell us how you feel about testifying today? Q.      Okay. Looking back on it now, can you think of anything good that has coming out of – come out of telling police about what happened? Q.      Okay. And if you had it – looking back on all of this right up to today, if you had [to do it] over again, would you have told police? [82] After a brief adjournment, defence counsel cross-examined C.H. At no point in the trial did defence counsel complain about this aspect of the examination-in-chief or seek any remedial instruction about it. The Arguments on Appeal [83] The appellant says that the excerpted questions were improper. The evidence the examiner sought to elicit was irrelevant and therefore inadmissible. C.H.’s “general experience testifying” at trial was of no assistance in assessing her credibility as a witness or the reliability of her testimony. Equally so her experience with the criminal justice system, and the reaction of her children to her disclosure and testimony. And her statement, “The truth is the truth”, amounted to nothing more than oath-helping and should not have been permitted. [84] The examiner’s questions represented a not-so-subtle attempt to inflame the jury’s emotions, to invite the jurors to decide the case based on their sympathy for the complainant, rather than by an objective assessment of the evidence. The trial judge should have intervened. His failure to do so caused a miscarriage of justice. [85] The appellant adds that the impropriety of this questioning was exacerbated by the Crown’s closing address, which emphasized that by reporting her allegations and testifying the complainant had done a “hard thing” for which she had paid a huge price. These submissions also warranted judicial intervention and remedial instructions. But, once again, the trial judge did nothing. This failure, coupled with the Crown’s questioning and jury address, compromised the fairness of the trial and caused a miscarriage of justice. A new trial is necessary. [86] The respondent submits that the relevant inquiry on appeal is whether what occurred caused a miscarriage of justice. Whether considered alone or together, the questioning and closing address fall well short of this standard. [87] The respondent says there is a distinction between Crown conduct that is improper and conduct that compromises trial fairness. This is a case of impropriety, at worst. [88] Several factors suggest that trial fairness was not compromised. Experienced defence counsel did not object to the questioning or the jury address. He did not move for a mistrial. He did not seek a curative instruction. The questions and answers were but a small part of the complainant’s evidence. They were followed by a comprehensive cross-examination. Finally, the charge to the jury emphasized the irrelevance of sympathy and prejudice to the jury’s evaluation of the evidence and their process of reaching a verdict. The Governing Principles [89] Several principles are of service in resolving this ground of appeal. [90] First, the role or duty of Crown counsel in criminal prosecutions. [91] Counsel for the Crown occupies a special position in the prosecution of criminal offences, a position which excludes any notion of winning or losing: Boucher v. The Queen , [1955] S.C.R. 16, at pp. 21, 24; R. v. A.T. , 2015 ONCA 65, 124 O.R. (3d) 161, at para. 26; R. v. Brown, 2001 BCCA 14, 152 C.C.C. (3d) 437 (“ Brown (BCCA) ”), at para. 15; and Pisani v. The Queen , [1971] S.C.R. 738, at p. 740. Although most often associated with other aspects of the trial process, such as cross-examination of an accused witness or the closing address to the jury, the authorities direct Crown counsel to eschew appeals to emotion: Brown (BCCA) , at para. 15. [92] Nor is counsel for the Crown entitled to advance legally impermissible submissions that invite legally prohibited reasoning or effectively undermine trial fairness: R. v. Mallory , 2007 ONCA 46, 217 C.C.C. (3d) 266, at para. 340; A. T. , at para. 27; see also R. v. Ahmed , 2015 ONCA 751, 330 C.C.C. (3d) 60, at para. 43. [93] Second, bolstering credibility. [94] The rule against oath-helping prohibits the reception of evidence solely for the purpose of establishing the truthfulness of a witness: R. v. Llorenz (2000), 145 C.C.C. (3d) 535 (Ont. C.A.), at para. 27. This rule applies to evidence that tends to prove the truthfulness of the witness rather than the truthfulness of the witness’ evidence: Llorenz , at para. 27; see also B. (F.F.) , at p. 729. [95] It is not always easy to determine when evidence crosses the line into impermissible oath-helping. The authorities distinguish between evidence about credibility – e.g., a witness’ opinion that another witness is telling the truth – and evidence about a witness’ behaviour or testimony, which may be admissible despite the likelihood that it will affect the trier of fact’s ultimate determination of the issue of credibility: Llorenz , at para. 28. [96] Third, evidence of victim’s character. [97] In criminal trials the victim’s character is not generally relevant. Thus evidence on this issue is not admissible – although it may be in some cases: R. v. Jack (1992), 70 C.C.C. (3d) 67 (Man. C.A.), at p. 86; R. v. White , 2014 ONCA 64, 305 C.C.C. (3d) 449, at para. 171, leave to appeal refused, [2014] S.C.C.A. No. 500 . [98] Fourth, the obligation of the trial judge with respect to the introduction of evidence. [99] As explained above, that obligation is to ensure that only relevant, material, and admissible evidence is received: J.A. T. , at para. 50; B. (F.F.) , at pp. 735-36. It is also incumbent upon counsel conducting a case, whether prosecuting or defending, examining in-chief, cross-examining or re-examining, to adduce evidence that is relevant, material and admissible: Evans , at para. 100. [100] Finally, the effect of a failure by counsel to adhere to the rules respecting the introduction of evidence. [101] At trial, the presiding judge has a duty to intervene to ensure compliance, at least in cases in which the contravention may result in the introduction of evidence prejudicial to the accused: A. T. , at para. 29. Failure of defence counsel to object does not bar a successful appeal on this ground. Nor does appellate success inevitably follow. On appellate review, the question is whether, in the context of the entire trial, the evidence or other conduct (including any response or lack of response by the trial judge) caused a substantial wrong or miscarriage of justice: A. T. , at paras. 30-31; R. v. Romeo , [1991] 1 S.C.R. 86, at p. 95. The Principles Applied [102] I would not accede to this ground of appeal. [103] It is difficult to determine on what basis the trial Crown considered these questions were proper. The evidence they elicited was not relevant. Or material. Or admissible. The questions should not have been asked. Their answers should not have been reviewed in the Crown’s closing address to the jury. The questions and their predictable responses invited jurors’ emotional reaction to the evidence, not their objective assessment of it. [104] On the other hand, in this court the question is not about performance, but effect – about whether what occurred resulted in the introduction of evidence which compromised the fact-finding process or rendered the trial unfair. I am not satisfied that it did. [105] The evidence in issue is brief. It was adduced at the outset of the complainant’s testimony on the second day of trial. It was preceded by a clear, focused instruction about the permitted and prohibited use of evidence of uncharged disreputable conduct. It was followed by a lengthy cross-examination. It attracted no objection from defence counsel and no request for a remedial instruction. [106] In these circumstances, I would not give effect to this ground of appeal. Ground #3: Limiting Instructions on Prior Consistent Statements and Hearsay [107] This ground of appeal relates to evidence of C.H.’s disclosure to various individuals or agencies of her allegations of sexual assault. C.H. was the only witness at trial. None of the recipients of her disclosures testified. The Essential Background [108] At trial, C.H. testified about her contact and discussions with persons at various agencies. A social worker. Medical staff. Employees of CAS and a women’s shelter. A lawyer. And ultimately, the police. Few details of the substance of the allegations of sexual assault emerged from her descriptions. To the extent that details did emerge, they were elicited in cross-examination. [109] No objection was taken to the admissibility of the complainant’s testimony about her disclosure of her allegations of sexual assault. Nor was the trial judge asked, during the pre-charge conference or by objection after the charge was delivered, to instruct the jury in the manner now said to have been essential. In the result, no instruction was provided to the jury about how they were or were not entitled to use this evidence in reaching their decision. [110] In his charge to the jury, the trial judge repeated his mid-trial instruction about evidence of uncharged disreputable conduct. He also included typical instructions about the prior inconsistent statements of the complainant and explained to the jury how they were to assess the complainant’s evidence. The Arguments on Appeal [111] The appellant argues that evidence of the complainant’s disclosures was admitted ostensibly to explain her delay in reporting and in leaving the relationship. But neither was in issue at trial. These disclosures included prior consistent statements and hearsay. Each required limiting instructions. But none were provided. This left the jurors untutored about the permissible use of this evidence, free to use it as they saw fit – including, for example, as confirmation of C.H.’s testimony. The result was an unfair trial and a miscarriage of justice. [112] The respondent submits that the complainant’s prior disclosures were admissible under the narrative exception to the general rule prohibiting admission of the prior consistent statements of a witness. The evidence assisted the jury in understanding how the complainant’s allegations were disclosed and came to be before the court for the trial of their truth. [113] The respondent accepts that, as a general rule, this evidence requires a limiting instruction to ensure the jury uses it in a permissible way. But, in some cases, no limiting instruction is required. [114] This is one such case. No limiting instruction was required, the respondent submits, for several reasons. Few details of the content of the statements were disclosed. To the extent any details of the disclosure were admitted in evidence, that testimony was adduced by defence counsel, a fact about which he can hardly now complain. In fact, the appellant relied on these statements as part of his defence that the complainant was an incredible witness. Further, no concern about self-corroboration arose. The statements were tendered as part of the narrative; no one suggested they could be used as proof the offences were committed. The Governing Principles [115] The governing principles are uncontroversial, though the parties differ on the consequences of their application in this case. [116] First, admissibility. [117] As a general rule, prior consistent statements of a witness are not admissible in criminal proceedings. This is because they are considered to be at once self-serving and devoid of probative value: R. v. Stirling , 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. M.A.J. , 2015 ONCA 725, 329 C.C.C. (3d) 149 , at para. 45. The statements are considered unhelpful because they add nothing new to the evidence. And they are potentially dangerous because they may mislead the trier of fact into thinking that repetition bespeaks truth: R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para . 28; R. v. D.K. , 2020 ONCA 79, at paras. 34-35. [118] Like most admissibility rules, exceptions exist. Prior consistent statements may be admitted: i. to rebut an allegation of recent fabrication; ii. to rebut impeachment of the witness by prior inconsistent statements; iii. to provide context for other evidence; or iv. as evidence of narrative. The list is illustrative, not exhaustive: see M.A.J. , at para. 46. [119] Second, jury instructions. [120] As with other evidence of limited admissibility, when evidence of prior consistent statements is received in a jury trial, as a general rule, the trial judge must instruct the jury about the permitted and prohibited use of this evidence: Divitaris , at para. 31; J.A. T. , at paras. 50, 53. [121] But once again, an exception. Limiting instructions are not always required. As, for example, where the accused relies on the prior statement. Or it is clear at trial that neither party is relying on the prior statement as evidence of the truth of its contents. Or where no concern about self-corroboration arises: M.A.J. , at para. 47; R. v. C.B ., 2008 ONCA 486, 237 O.A.C. 387, at paras. 49-51; R. v. P.S. (2000), 144 C.C.C. (3d) 120 (Ont. C.A.), at paras. 24-26 , leave to appeal refused , [2000] S.C.C.A. No. 486 . Also within the exception are cases in which no detail is given of the statement or where the statement is admitted as narrative: R. v. G.M ., [2000] O.J. No. 5007 (C.A.), at para. 2. [122] Finally, the impact of any errors. [123] A failure to provide a limiting instruction to the jury where one is required is an error of law. But legal errors are not always fatal. Where the errors do not cause a substantial wrong or result in a miscarriage of justice, the verdict rendered at trial may be sustained by the application of the proviso in s. 686(1)(b)(iii) of the Criminal Code . The Principles Applied [124] A combination of factors persuades me that this ground of appeal fails. [125] First, as to admissibility. No argument is advanced that this evidence was inadmissible. At the very least, it was properly received as part of the unfolding of the narrative of relevant events. [126] Second, this is not a case in which the jury heard the prior statements in rich detail. Quite the contrary. The Crown elicited little more than the fact of disclosure from the complainant. To the extent that the disclosure was amplified by detail, it tended to emerge in cross-examination. It seems reasonable to say that, to the extent a trier of fact may be inclined to mistake repetition for truth, this is more likely to occur when the details of each prior statement have been repeated before them. But that was not the case here. [127] Third, defence counsel used this evidence to buttress the defence position that the complainant was an incredible witness who gave unreliable evidence. [128] Fourth, experienced trial counsel neither sought nor complained about the absence of the instruction now said to have been critical to a reasoned assessment of the complainant’s testimony and the fairness of the trial. The person at trial most attuned to the appellant’s interests saw it otherwise. As do I. Ground #4: Instructions on Motive to Fabricate The Essential Background [129] This ground of appeal focuses on the closing addresses of trial counsel, especially that of the Crown. Some reference to the pre-charge conference, the charge itself, and the objections to the charge will provide sufficient context. The Closing Addresses of Counsel [130] Since the defence adduced no evidence, the Crown addressed the jury first. [131] The Crown portrayed the complainant as a person who had made a difficult decision to report sexual assaults committed by her husband. She made the decision and has lived with it despite it having resulted in the loss of her family –  in particular, her children. She was not vindictive and did not make these events up, but rather accurately and truthfully recounted what had happened. [132] Two passages in the Crown’s closing address illustrate the approach he invited the jury to take in assessing the complainant’s evidence: It was a horrible truth – in her words, a horrible truth that she had to tell. She has no motive to make this up. There’s nothing in it for her. This was a woman trying to make a relationship work. There was no joy. And you heard her when she turned and talked to you. Who wants to tell their most intimate and personal aspects of their life in a courtroom to strangers including members of the jury? So … is there any basis to question what she was telling you, to have any doubt or to question her credibility, her believability, her truthfulness? There is no reason to doubt that [C.H.] was telling you the truth. She found her voice. She told you what happened. She did not fabricate. She is not vindictive. She is not nasty. She is not losing her children just for the sake of putting forward a false sexual assault allegation. She is here. She did a hard thing. She has paid a huge price. Her evidence is compelling and convincing. No reason to doubt it. If you believe her evidence, you should have no reasonable doubt and you must convict. [133] In his closing address, defence counsel vigorously attacked the complainant’s credibility and the reliability of her evidence. He suggested that her testimony was fabricated and that she had perjured herself before the jury. The Pre-Charge Conference [134] At the pre-charge conference, the Crown sought an instruction on motive as it related to motive on the part of the appellant to sexually assault the complainant. Defence counsel resisted an instruction about the appellant’s motive, but acknowledged that the standard instruction on the issue was balanced. [135] As for the complainant’s motive to fabricate, defence counsel emphasized that he was under no obligation to prove that C.H. had any such motive. He did not seek an instruction on this issue. Counsel expressed concern that an instruction on motive would deflect the jury’s attention from the essential issue, which was whether the sexual assaults alleged by the complainant had in fact occurred. The Charge and Objections [136] In his charge, the trial judge said nothing about the motive, or absence of motive, of the complainant to fabricate her allegations of sexual assault. [137] Defence counsel did not object to the absence of an instruction on motive. The jury did not ask any questions on this issue. The Arguments on Appeal [138] The appellant submits that in his closing address at trial, the Crown relied extensively on the complainant’s lack of a motive to fabricate her accounts of sexual assault. But the law distinguishes between a lack of evidence of a motive to fabricate and a proven lack of a motive to fabricate. What we have here, the appellant says, is the former. And that is not the equivalent of evidence that the witness is telling the truth. Nor is it evidence that the witness does not have a motive to fabricate. [139] In his closing address, the Crown argued that the complainant had no motive to fabricate her evidence. He emphasized the negative consequences of her reporting the sexual assaults. In these circumstances, the trial judge’s failure to give a corrective instruction warrants a new trial. [140] The respondent says that when set in its proper context, the closing address of the Crown did not require a corrective instruction to guard against improper reasoning or ensure the fairness of the trial. [141] The respondent does not gainsay that the presence or absence of a motive to fabricate is a relevant factor, among many, for the trier of fact to consider in assessing the credibility of a witness and the reliability of their evidence. The problem arises when language is used that suggests the accused has the onus of proving the witness had a motive to fabricate. That did not happen here. [142] In this case, the respondent contends, the defence position was that the complainant had fabricated her evidence of the sexual assaults and had “put on a show” for the jury. When Crown counsel sought an instruction on motive on the part of the appellant to commit sexual assaults, defence counsel resisted any instruction on motive. The trial judge did instruct the jury on motive, but limited it to the long-standing animus of the appellant towards the complainant as a motive for the appellant to commit the offence charged. The jury was repeatedly instructed on the burden of proof and specifically informed that the appellant was not required to present any evidence. Considered as a whole, the instructions adequately equipped the jury to decide the case. The Governing Principles [143] In criminal prosecutions, motive refers to ulterior intention – the reason or purpose underlying a person’s conduct. The term is most often used to refer to the motive of an accused to commit the offence charged. [144] The authorities considering evidence of motive as a means of establishing the identity or anterior intention of the person who committed the actus reus of an offence emphasize the importance of a proven absence of motive in exculpation of an accused and a proven presence of motive in inculpation: Lewis v. The Queen , [1979] 2 S.C.R. 821, at pp. 825-37. But those same authorities underscore the significant difference between absence of proven motive and proven absence of motive: Lewis , at pp. 835-37. [145] Motive may also be significant in connection with witnesses in criminal trials. The motive of a witness to testify more or less truthfully may be a relevant factor for a trier of fact to consider in assessing their credibility and the reliability of their testimony. Thus, questions may be directed to a witness to show that the witness has a motive to fabricate evidence: R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), at para. 120. [146] The distinction between absence of proven motive and proven absence of motive has equal application to the motives of a witness to fabricate evidence. By parity of reasoning with the motive of an accused to commit an offence, the absence of a demonstrated motive to fabricate on the part of a witness does not necessarily mean that there is no such motive. Nor does the absence of a motive to fabricate conclusively establish that the witness is speaking truthfully. The presence or absence of a motive to fabricate is a factor, a single factor, for the trier of fact to consider in assessing credibility: Batte , at para. 121. [147] Because the presence and absence of a motive to fabricate are relevant factors in the assessment of a witness’ credibility, it is open to counsel to refer to this issue in their closing addresses to the jury. Depending on what is said, it may become necessary for the trial judge to provide a corrective instruction: R. v. L.L. , 2009 ONCA 413 , 96 O.R. (3d) 412 , at paras. 40-47. [148] There is no closed list of circumstances that may require a trial judge to provide corrective instructions when counsel in their closing addresses have made submissions about a witness’ motive to fabricate. The obligation may be engaged where counsel suggests that the presence or absence of a motive to fabricate has been proven, but no such proof exists. Or where counsel invites the jury to focus on what had not been proven, such as a credible motive to lie, rather than what had been proven – creating a risk that the jury would reason that failure to demonstrate a motive to lie means the witness was telling the truth. Or where the address suggests that the accused has the burden of demonstrating a motive on the part of a prosecution witness to fabricate evidence: Batte , at para. 121; L. L. , at paras. 42, 47-50; R. v. M.B. , 2011 ONCA 76, 267 C.C.C. (3d) 72 , at paras. 31-32. [149] Whether a corrective instruction will be required in light of counsel’s references to the motive of a witness to fabricate evidence depends on the circumstances of each case: Batte , at paras. 123, 126. The absence of an express instruction does not always leave the jury without the tools necessary to consider the presence or absence of a motive as a relevant factor in determining credibility. Juries are repeatedly told to use their common sense and their life experience in assessing the credibility of witnesses. It is difficult to think of a factor that, as a matter of common sense and human experience, would be more telling of a witness’ credibility than the existence – or the absence – of a motive to fabricate: Batte , at paras. 120, 126. The Principles Applied [150] Several reasons persuade me that this ground of appeal fails. [151] First, the appellant’s complaint of prejudicial omission is raised for the first time on appeal. What is more, it represents a reversal of the position taken by experienced counsel at trial. When the Crown sought an instruction on motive, albeit on a different but related issue, defence counsel resisted it. Neither then nor subsequently did trial counsel seek the instruction now said to be essential to a fair trial and critical evaluation of the complainant’s testimony. [152] Second, this is a complaint about a failure to instruct -of non-direction rather than misdirection. Doubtless, more could have been said than was included in the final instructions. The same could be said of almost every jury charge. But perfection is not the applicable standard. Nor could it be. Final instructions must adequately equip jurors to perform their task. No more is required. No less is sufficient. And that task is to decide the case at hand. On the evidence adduced. In accordance with the governing legal principles. These instructions were adequate to that task. [153] Third, the subject-matter of the complaint is not estranged from the frequently invoked admonition to jurors to use their common sense and life experience. A motive to fabricate evidence would commend itself to the common sense and life experience of a juror as being of significance in an assessment of a witness’ credibility and the reliability of her evidence. Likewise, the absence of any such motive. [154] Further, the trial judge’s instructions about the assessment of evidence and the credibility of witnesses made it clear that the assessment required a holistic approach involving the consideration of myriad factors. [155] Finally, this is not a case in which the closing address of the Crown or the instructions of the trial judge expressly or by necessary implication shifted to the appellant the burden of establishing a motive on the part of the prosecution witness to fabricate. The burden of establishing guilt remained where it should have been, not dislodged by any requirement that the appellant prove a nefarious motive on the part of the complainant. Ground #5: Closing Address of Crown Counsel [156] The final ground of appeal also alleges non-direction, a failure of the trial judge to provide an instruction to the jury to remedy things said by the Crown in his closing address to the jury. [157] A brief reference to the closing address of the Crown and what occurred thereafter will provide an adequate setting for the discussion that follows. The Essential Background [158] This was a one-witness trial. [159] From time to time in his closing address to the jury, the Crown referred to the evidence of the complainant as “uncontested” or “unchallenged”. He also pointed out that C.H. “wasn’t really cross-examined much” on the details she provided about the offences charged. [160] Trial counsel did not object to the Crown’s closing address nor seek any remedial or corrective instruction to contain or alleviate any prejudice caused by it. The trial judge did not include any corrective directions in his final instructions, but did include references to the burden of proof, the presumption of innocence, and the standard of proof. The Arguments on Appeal [161] The appellant says that the address of the Crown improperly urged the jury to consider how the defence was conducted as probative of the appellant’s guilt. This was wrong. It amounted to a subtle shift in the burden of proof. The questions asked, or not asked, by counsel are not evidence. They cannot be relied upon as evidence or a makeweight to satisfy the burden of proof settled upon the Crown. Further, the conduct of the trial is in the hands of counsel, not the accused. How counsel conducts the case – in particular, how counsel cross-examines witnesses – is not and cannot become evidence against an accused. [162] According to the appellant, these aspects of the Crown’s closing address required remedial correction by the trial judge. None was provided. To the contrary, the trial judge exacerbated the problem by recounting these features of the Crown’s closing as part of the position of the Crown the judge summarized in his charge to the jury. [163] The respondent contends that an assessment of the impact of any impropriety in the closing address on the fairness of the trial requires a contextual assessment of the trial as a whole. The issue is whether, viewed in this way, the remarks caused a miscarriage of justice. The answer is that no such miscarriage of justice occurred. [164] An important factor is the position of the appellant at trial. There, experienced counsel did not object to the Crown’s closing. Or seek a mistrial. Or ask for a corrective instruction. While not dispositive, these omissions afford cogent evidence of the complete absence of prejudice arising from the closing address of the Crown. [165] In a case in which the evidence of the single witness is not the subject of contradictory evidence, there is nothing wrong with a reference in closing that the evidence is “uncontradicted” or “unchallenged”. This statement of the obvious is not a comment forbidden by s. 4(6) of the Canada Evidence Act because it does not invite the jury to use the failure to testify as an item of evidence or a makeweight to assist in satisfying the Crown’s burden of proof. Nor does it shift the burden of proof. [166] The respondent acknowledges that the submission about the minimal cross-examination on the details of the incident of alleged sexual assault might have been better left unsaid. But no harm ensued. Trial counsel said nothing about it. And the trial judge’s instructions made it clear upon whom the burden of proof rested and where it did not lie. The Governing Principles [167] Three principles inform our determination of this claim of error. [168] First, comments on the failure of counsel to cross-examine a witness on a particular issue – in this case, the details of the allegations. [169] As a general rule, it is improper to ask an accused about the conduct of the defence. More specifically, it is improper to ask about why a witness was not cross-examined on a particular issue, or to invite the jury to consider this failure in evaluating the defence case or the adequacy of the case for the Crown: R. v. Brown , 2018 ONCA 1064 (“ Brown (ONCA) ”), at paras. 13, 17. [170] Where an impropriety of this nature has occurred, it may create a risk that the jury will engage in speculation and, by extension, reverse the burden of proof: Brown (ONCA) , at para. 13. Where either of these prospects emerges, a corrective instruction may be required: Brown (ONCA) , at para. 18; R. v. Prokofiew , 2012 SCC 49, [2012] 2 S.C.R. 639, at para. 7. [171] Finally, on its own, use of the terms “not denied”, “unchallenged” or “uncontradicted” in relation to the testimony of a particular witness does not amount to a comment on the failure of an accused to testify which is prohibited by s. 4(6) of the Canada Evidence Act , R.S.C. 1985, c. C-5 : see R. v. Noble , [1997] 1 S.C.R. 874, at para. 97; Prokofiew , at para. 5; and R. v. Biladeau , 2008 ONCA 833 , 93 O.R. (3d) 365 , at paras. 21, 26-27. To run afoul of the prohibition, the comment must invite an inference of guilt from silence: Biladeau , at para. 23. The Principles Applied [172] I would not give effect to this ground of appeal. [173] This ground of appeal arises out of submissions made by Crown counsel in his closing address to a jury at the end of a trial in which one witness testified. These submissions need not have been made to put the case for the Crown to the jury. In a sense, the submissions were a penetrating glimpse into the obvious: the jury was well aware that only one witness testified. They also knew that the accused did not testify and that he was under no obligation to do so. They saw and heard the manner in which defence counsel cross-examined the complainant. [174] The reference to the manner in which the defence was conducted – in particular, how defence counsel cross-examined the complainant – was of no evidentiary value in the jury’s decision. Submissions about it risk attaching evidentiary significance to a trial event of no evidentiary value, thus risking a shift in the onus of proof. [175] Characterization of the complainant’s evidence as “unchallenged” or “uncontradicted” does not amount to a comment prohibited by s. 4(6) of the Canada Evidence Act because these terms attach no evidentiary significance to the failure. But, at least in this case, the term “unchallenged” was at best misleading. The complainant’s account was challenged in cross-examination as a complete fabrication, a “show” put on for the jury. [176] Despite these submissions in the closing address of the Crown, I am not persuaded that the appellant suffered any substantial wrong or that there was a miscarriage of justice as a result. Defence counsel did not object to the closing address of the Crown. He sought no corrective or remedial instruction. The charge to the jury made clear the onus and standard of proof. It also pointed out the presumption of innocence and explained that the accused did not have to testify, call evidence or prove anything. All of these instructions followed the closing address of the Crown. They were sufficient antidote to any residual prejudice that may have ensued from that address. DISPOSITION [177] For these reasons, I would dismiss the appeal. Released: “DW” March 4, 2020 “David Watt J.A.” “I agree. Grant Huscroft J.A.” “I agree. M. Jamal J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. J.P., 2020 ONCA 162 DATE: 20200302 DOCKET: C65242 Lauwers, Trotter and Fairburn JJ.A. BETWEEN Her Majesty the Queen Respondent and J.P. Appellant Mark C. Halfyard, for the appellant Eric W. Taylor, for the respondent Heard: February 11, 2020 On appeal from the conviction entered on January 4, 2018 by Justice J. Christopher Corkery of the Superior Court of Justice, sitting without a jury. REASONS FOR DECISION [1] The appellant was convicted of assault, assault with a weapon, uttering a threat, unlawful confinement, choking, and sexual assault. He received a six month and three day sentence, concurrent on each count. [2] The appellant had been in an on-again/off-again relationship with the complainant. On the night the offences occurred, the appellant insisted that the complainant meet him to discuss her previous involvement with another man. It was clear from the appellant’s text messages that he was angry with the complainant. [3] The trial judge reviewed the evidence in detail. The complainant went to her friend L.A.’s home on September 17, 2015. She later left L.A.’s home to meet the appellant at a nearby park. As she approached him, he threw a lacrosse ball toward her head. He then insisted that they go to his mother’s house where he lived. The complainant testified that the appellant repeatedly struck her on the legs with his lacrosse stick as they were walking to the house. She suffered bruises to the back of her legs. [4] The complainant testified that, when they arrived at the appellant’s house, they went to his basement bedroom, where a further altercation occurred. According to the complainant, among other things, the appellant broke her electronic devices against the wall of his bedroom, threw her on the bed, slapped her face, pinned her to the bed with his knees, broke her bracelet, grabbed her hip piercing, jabbed her in the vagina with a television remote, and spit in her face. He would not let her leave over the course of the entire night. The complainant did not leave the appellant’s home until mid-afternoon the next day. She then proceeded to L.A.’s home, told L.A. what had happened and then went to the police. [5] The appellant denied striking the complainant with his lacrosse stick, grabbing her hair and smashing her electronics. He denied hitting her, assaulting her with the remote and throwing her on the bed. He had a very different version of events. He attributed the bruises on her arms to an episode of consensual rough sex earlier in the week. While he agreed that he sent certain incriminating text messages to the complainant, such as “[d]on’t make me drag you”, he explained that they were sent in frustration and he knew the complainant would not take them seriously. [6] The trial judge made these findings: In considering just the evidence of [the appellant] there is no explanation provided by him for the bruises of [the complainant], apart from her arms. [The complainant’s] evidence, on the other hand, is corroborated first by the existence of these bruises and by the evidence of [the witness] that the bruises were not present the evening before. The only reasonable explanation is that these bruises occurred between the departure from [the witness’s] house, when [the complainant] went to meet [the appellant], and when she returned to [the witness’s] house the next day. The bruises are wholly consistent with what [the complainant] says occurred and I accept that they did occur as a result of her being assaulted by [the appellant]. [7] The indictment charged assault, without specifying the details, and assault with a weapon, being the lacrosse stick. In light of the nature of the charges, it was open to the trial judge to convict the appellant of assault and assault with a weapon based on the bruising to the complainant’s legs and arms. [8] The appellant challenges the trial judge’s credibility findings on two grounds. [9] First, he submits that the trial judge failed to address a material conflict in the evidence: t he actions and assaults in the bedroom alleged by the complainant could not possibly have occurred without being heard by his mother and her partner. These included his destruction of her electronic devices against the wall, several physical assaults including choking her, pinning her to the bed with his knees on her arms, her allegation that she cried out for the appellant’s mother, followed by 20 or more blows to her face with the heel of his palm which she described as “hard strikes”. [10] The disputed events took place in a small bungalow in which the quarters were very close and sound carried easily. The appellant’s bedroom was immediately below the kitchen. The appellant’s mother and her partner were in the kitchen for at least some of the time, particularly at the outset, when the encounter in the bedroom between the appellant and the complainant appeared to be the most heated and physical. [11] The trial judge was alive to the noise issue. He said in an exchange with counsel: “I can anticipate much will turn on my determination of what was heard” by the appellant’s mother and her partner. Being alive to the issue, the trial judge specifically invited submissions on this point. [12] The defence submitted at trial that in order to find the appellant guilty of the assaults in the house, the trial judge would have to “reject outright” the couple’s evidence – specifically, that they heard nothing. Quite simply, according to the defence, the house was too small for the events as described by the complainant to have occurred without anyone hearing something. [13] The trial Crown submitted that the complainant, who said things were not loud in the bedroom, should be believed. Even the appellant testified that the tone was a conversational one, not loud while they were arguing. [14] The trial judge summarized the defence position during the Crown’s submissions: “The defence is saying when I look at this as a whole all of the different things that are happening here including her statement to the police that there’s no way that [the appellant’s mother] could not have heard. I must infer that it didn’t happen because had it happened [she] would have heard something.” The trial judge later repeated what he understood to be the Crown’s argument, that “it’s just one factor I take into account. … The Crown is trying to say, well, no, it’s not as favourable to the defence, is that it’s simply a neutral factor.” [15] In his reasons, the trial judge found the appellant’s mother and her partner to be credible and reliable, and summarized their testimony: Simply put, they both testified that they would not have hesitated to respond to any noise or shout coming from [the appellant’s] room that was out of the ordinary. But they heard nothing that evening that concerned them. [16] The trial judge did not further address the noise issue. The appellant argues that the trial judge was duty bound to address and reconcile the issue, particularly in light of the fact that he found the appellant’s mother and her partner credible. [17] The appellant’s second credibility argument relates to the complainant’s evidence that the appellant struck her in the face 20 times. The appellant asserts that this should have resulted in bruising, but there was nothing more on her face than a small scratch the complainant said the appellant inflicted. The trial judge did not address this argument in his reasons. [18] The appellant argues that the failure to address and reconcile these clear concerns over the complainant’s credibility constitutes reversible error. While he acknowledges that the trial judge could accept the complainant’s evidence despite these clear concerns for credibility, he argues that they were so fundamental to the resolution of her credibility that a failure to address them leaves the appellant without any ability to assess the basis upon which he was convicted. [19] We do not find these omissions in the trial judge’s reasons to be fatal to the convictions. The case turned on the credibility assessments of the complainant and the appellant. The most significant findings leading to the convictions were that the appellant caused the complainant’s bruises by striking her with the lacrosse stick and by pinning her arms down with his knees. The presence of these bruises was capable of confirming the complainant’s account. As the trial judge noted, L.A.’s evidence provided powerful corroboration of the complainant’s version of events. In particular, L.A. saw the complainant in shorts and a tank top just before she departed to see the appellant. She was not bruised at that time. L.A. saw the complainant just after she left the appellant’s residence, dressed in the same clothing, and showing bruising to a portion of her body. L.A.’s evidence was not challenged. As she said: “I do remember just being overwhelmed by the little marks that were on her body at the time. The ones I do remember were the big bruises on her legs and those ones lasted for a while.” [20] Moreover, there were all manner of reasons why the complainant may not have experienced serious bruising to her face, including how and where she was struck in the face. While the exhibits with photos of the complainant’s face do not show obvious bruising, they reveal scratch marks consistent with her account. In these circumstances, we do not accept that the trial judge’s failure to deal with this issue and how it impacted on the complainant’s credibility is fatal to the conclusion reached by him. [21] In any event, the trial judge did not rest the assault and assault with a weapon conviction on the blows to the complainant’s face. Those charges were sustained simply on the basis of the walk toward the house and the bruising on the complainant’s legs. [22] In addition, we agree with the observation made by the trial judge during submissions that the noise issue was just one factor in the credibility analysis. The evidence of both the complainant and the appellant was that their arguing was not loud. The mother and her partner’s failure to hear anything did not mean that nothing happened. It means that they did not hear anything. In these circumstances, the failure to address the issue does not constitute reversible error. [23] The trial judge’s credibility findings are entitled to deference; he made no palpable and overriding errors. [24] The appeal is dismissed. “P. Lauwers J.A.” “Gary Trotter J.A.” “Fairburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Kamal, 2020 ONCA 213 DATE: 20200316 DOCKET: C61628 Watt, Paciocco and Fairburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Kendall Kamal Appellant Kendall Kamal, appearing via videoconference Jessica Smith Joy, for the respondent Joseph Wilkinson, duty counsel Heard and released orally: March 11, 2020 On appeal from the conviction entered on November 18, 2015 by Justice Ian V.B. Nordheimer of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant appeals his convictions on two counts of robbery entered after a trial before a judge of the Superior Court of Justice sitting with a jury. The Background Facts [2] The appellant was alleged to have been the driver of the getaway car in two robberies of commercial premises about ten days apart. The principal evidence against him consisted of a videotaped interview of him by members of the Hold-Up Squad of the Toronto Police Service. The admissibility of this interview was challenged at trial on both voluntariness and constitutional grounds. The trial judge rejected the arguments and admitted the interview as evidence at trial. The Grounds of Appeal [3] Assisted by duty counsel, the appellant contends that the trial judge erred in admitting the interview as evidence. To be more specific, the appellant says that the trial judge erred in failing to hold that the police were required to give the appellant a Prosper warning. [4] In our view, as this court held in R. v. Fountain , 2017 ONCA 596, 136 O.R. (3d) 625 (C.A.), at para. 27 a Prosper warning is needed only if “a detainee has asserted the right [to counsel] and then apparently change[s] his mind” after reasonable efforts to contact counsel have been frustrated, citing R. v. Smith (1999), 44 O.R. (3d) 373 (C.A.), at p. 384. [5] The trial judge came to a factual determination that the appellant had not asserted his right to counsel. That finding of fact was available to the trial judge on the record at trial. It is a finding of fact to which we owe and give deference. [6] The appeal from conviction is dismissed. “David Watt J.A.” “David M. Paciocco J.A.” “Fairburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ling, 2020 ONCA 203 DATE: 20200311 DOCKET: C67623 Nordheimer, Harvison Young and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Joe Ling Appellant Joe Ling, acting in person Ronald A. Sabo, for the respondent Heard: March 11, 2020 On appeal from the conviction entered on March 22, 2019 by Justice of Peace Linda Crawford of the Provincial Offences Office (Hamilton). APPEAL BOOK ENDORSEMENT [1] The respondent consents to the appeal being allowed and the conviction being set aside. [2] The respondent also acknowledges that the charge is withdrawn as a consequence.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Mohamed, 2020 ONCA 163 DATE: 20200302 DOCKET: C67285 Miller, Fairburn and Thorburn JJ.A. BETWEEN Her Majesty the Queen Appellant and Hamza Badrujaman Mohamed Respondent Gregory Furmaniuk, for the appellant Catriona Verner, for the respondent Heard: January 31, 2020 On appeal from the sentence imposed on July 8, 2019 by Justice Heather L. Katarynych of the Ontario Court of Justice. Fairburn J.A.: Overview [1] The complainant stayed at the respondent’s residence for a few days and noticed that he had a gun. The respondent later accused the complainant of stealing money from his home. He intimated that if she did not give the money back, then he would harm her boyfriend. The complainant became fearful and decided to report the matter to the police. [2] The respondent was charged on two separate Informations with numerous offences. While he was “prepared to enter a plea to whatever counts the Crown [was] seeking he plead to”, the parties could not agree upon a joint disposition. After the respondent entered guilty pleas to ten offences, including weapon and drug trafficking offences, the Crown asked for a global penitentiary sentence of four years’ custody less enhanced credit of 437 days for presentence custody. The respondent asked for a global reformatory sentence of two years less a day, less 437 days credit.  He asked that he be permitted to serve his sentence under a conditional sentence order. [3] The sentencing judge agreed with the defence position. The respondent was credited with the equivalent of 437 days of presentence custody (291 real days credited on a 1.5:1 basis.) This left a net sentence of 292 days to serve under a conditional sentence order, followed by two years of probation. [4] The Crown seeks leave to appeal from sentence and asks that this court impose a global four-year sentence. The Crown accepts that two periods of time should be removed from that sentence: (a) the 437 days of presentence custody; and (b) the period of time that has already been served under the conditional sentence order, 207 days as of the date this matter was argued. The Crown argues that the sentencing judge erred by: (a) granting a conditional sentence for possessing cocaine for the purpose of trafficking; (b) imposing a demonstrably unfit sentence; and (c) overemphasizing the respondent’s rehabilitative prospects in subordination of the sentencing principles of denunciation and deterrence. [5] For the reasons that follow, I would dismiss the appeal in substance. I would allow the appeal only to the extent necessary to render the sentence imposed a legal one. The length of the sentence remains the same. Was an illegal sentence imposed? [6] While the sentencing judge erred in law by imposing a conditional sentence for the offence of possessing cocaine for the purpose of trafficking, the error did not have an impact on the overall sentence. [7] The respondent was arrested while driving his car. A search incident to arrest revealed a loaded revolver in the vehicle, a few bullets in his pocket and $337 cash. Search warrants were then executed on his car and home, revealing around 40 grams of cocaine, over 400 grams of marijuana, two grams of hashish, drug paraphernalia, brass knuckles, and other ammunition (both live and spent). [8] There were two Informations before the court. The first Information, what I will refer to as the “ Criminal Code Information”, contained numerous counts. The respondent pled guilty to six of those counts: uttering a death threat, unauthorized possession of a firearm, possession of a loaded firearm, two counts of careless storage of ammunition, and possession of brass knuckles. The second Information, what I will refer to as the “ CDSA Information”, also contained numerous counts. The respondent pled guilty to four possession-related counts: possession of the proceeds of crime, and possession of cocaine, marijuana, and hashish for the purpose of trafficking. [9] The appellant’s first argument focuses upon the suggestion that the sentencing judge erred by imposing a conditional sentence on the possession of cocaine for the purpose of trafficking count. The appellant argues that this is an illegal sentence. I agree that a conditional sentence is not available for this offence. [10] Section 742.1(c) of the Criminal Code, R.S.C. 1985, c. C-46, precludes a conditional sentence for offences that are prosecuted by way of indictment and for which the maximum term of imprisonment is 14 years or life: 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if (c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life [emphasis added]. [11] Possession of cocaine for the purpose of trafficking is a straight indictable offence and is punishable by up to life imprisonment: Controlled Drugs and Substances Act , S.C. 1996, c. 19, s. 5(3)(a). Accordingly, there is no dispute that the maximum punishment available for the cocaine offence precluded the imposition of a conditional sentence. [12] The dispute here is whether the sentencing judge did as the appellant suggests. The appellant argues that it is clear on the record that the respondent received a conditional sentence in relation to what I refer to as the “cocaine count”.  The appellant contends that this error means that the sentencing judge’s decision is owed no deference and it falls to this court to determine the appropriate sentence. [13] The respondent argues that it was not the intention of the sentencing judge to impose a conditional sentence in relation to the cocaine count. While it may appear from the conditional sentence order that one was imposed on all counts, including the cocaine count, this reflects nothing more than an administrative error by the person filling out the paperwork after sentence was imposed. The respondent points to a handwritten endorsement found on the CDSA Information in support of this argument: “291 days of real custody @ 1.5 = 436.5 (437 days)”. The respondent suggests that this endorsement makes clear that, while the presentence custody was not specifically distributed across counts, at least a portion of it was assigned to the cocaine count. [14] As any period of presentence custody could have fulfilled the need for a custodial disposition on the cocaine count, the respondent says that this endorsement should assuage any concern over whether a conditional sentence was imposed on that count. [15] Four things are clear from the reasons for sentence and dialogue between the sentencing judge and counsel in this case. First, the sentencing judge was intent on imposing a global sentence of two years less a day. Second, she was also intent on removing 437 days of enhanced presentence custody from that total. Third, she was intent on ordering that the 292 remaining days be served as part of a conditional sentence order. And, fourth, she was intent on placing the respondent on two years of probation after he completed his conditional sentence. [16] The transcript of proceedings demonstrates that the sentencing judge struggled with how to distribute the sentence across counts. She repeatedly asked for the assistance of counsel on this point. In discussing the matter, no one adverted to the fact that a conditional sentence was not available for the cocaine count. [17] I do not agree with the respondent’s suggestion that the endorsement, assigning all presentence custody to the counts on the CDSA Information, answers the concern raised by the appellant on appeal. While that endorsement seems to suggest that the entire 437 days of presentence custody was assigned to those counts, the CDSA Information is equally clear that a 292-day conditional sentence was imposed on the cocaine count. [18] I agree with the appellant that the sentencing judge erred by imposing a conditional sentence on the cocaine count. I disagree, though, that it makes any difference to the overall disposition of this appeal. [19] Sentencing judges are to be granted a wide berth when it comes to determining an appropriate disposition. They enjoy a benefit that appeal judges do not. They sit in an especially privileged position from which to observe the dynamics of any given case, placing them in the best position to come to factual conclusions and consider those conclusions against the relevant objectives and principles of sentencing. [20] Accordingly, deference is appropriately given to sentencing judges, even where they deviate from a range of sentence. Unless the judge makes “an error of law or an error in principle that has an impact on the sentence , an appellate court may not vary the sentence unless it is demonstrably unfit”: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11 (emphasis added), see also para. 44. [21] The sentencing judge made a clear error of law by imposing a conditional sentence in relation to the cocaine count. The question is whether the error of law had “an impact on the sentence.” It did not. [22] At the sentencing hearing, the parties were agreed that a six-month sentence would properly accommodate the drug offences, including the cocaine count. As the respondent had already served the equivalent of 437 days of presentence custody, he had well outstripped the six months that both parties had agreed upon. [23] The sentencing judge could have stayed true to her stated objectives and adhered to the joint position of a six-month sentence on the cocaine count by simply imposing a sentence of 180 days of presentence custody plus two years’ probation on the cocaine count. By approaching the matter in that way, all illegality would have been avoided and, for all practical purposes, the sentence would have remained the same. [24] Accordingly, in my view, the error had no impact on the sentence imposed. Although I would correct the illegality arising from the issue raised on appeal, I would not use the error as a basis upon which to set aside the principle of deference. Is the sentence demonstrably unfit? [25] The appellant also argues that the two-years less a day sentence, conditional or otherwise, was demonstrably unfit. I disagree. [26] The appellant points to numerous aggravating factors in this case that render the sentence unfit. The appellant stresses the inherently and indisputably dangerous nature of loaded firearms and the need for exemplary sentences. The appellant also correctly points to the “toxic combination” of guns and drug trafficking: R. v. Wong , 2012 ONCA 767, at paras. 11-13. The appellant further points to the fact of a death threat in this case, the presence of multiple drugs, the victim impact, the drug paraphernalia and the fact that the respondent’s young child was living in the home where he kept his drugs and where his firearm had been seen. [27] These are undoubtedly serious aggravating factors that would normally attract a much higher sentence than the one imposed in this case, certainly into the penitentiary range. Indeed, in my view, when all of the respondent’s conduct is considered as a whole, the sentence imposed in this case falls below the range. Even so, I would not interfere with the sentence imposed. [28] Sentencing is not a purely mathematical exercise with floors below which and ceilings above which the sentence cannot go. Sentencing ranges are guidelines, but not hard and fast rules: Lacasse , at para. 60; R. v. Nasogaluak , 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 44. As Wagner J. (as he then was) noted in Lacasse , at para. 58, there will “always be situations that call for a sentence outside a particular range”. Those situations will sometimes arise from the sentencing judge’s impressions and findings regarding the unique circumstances of the case, including the uniqueness of the individual who is being sentenced. [29] I would defer to the sentencing judge’s careful exercise of discretion in this case. She was fully aware of the range of sentence, specifically noting that most cases involving possession of a loaded restricted firearm would attract a sentence in the three- to five-year range. She went to great lengths to explain why it was appropriate to depart from the range in this case. [30] The reasons for sentence are detailed and lengthy, spanning over 300 paragraphs. The sentencing judge had careful regard to the seriousness of the respondent’s crimes. At the same time, she emphasized that he was a youthful first offender (25 years old at the time he committed the offences), had pled guilty and expressed deep remorse for his actions. [31] Most importantly in the sentencing judge’s view, the respondent had demonstrated his keen desire to rehabilitate himself. According to the sentencing judge, during his almost ten months in presentence custody, the respondent had engaged in a sustained effort to better himself. Among other things, she pointed to the certificates of achievement obtained by the respondent in the following programs and courses, which he completed during his time in custody leading up to the guilty pleas: (a) a creative writing program with over ten weeks dedicated to restorative themes, including writing about parenting, mental health, forgiveness and accountability; (b) effective parenting lessons; (c) a five-week course on music production; (d) different drug-related courses; and (e) an anger management rehabilitative group session entitled “Change is a Choice”. [32] The respondent had no disciplinary problems in the institution and, in fact, had gained so much respect from the custodial institution that he was granted specific privileges to have contact with his spouse. As noted by the Acting Program Leader in the education program at the Toronto South Detention Centre, the respondent had “shown that he is a determined, capable and engaging participant, attends program regularly, completes assignments, takes initiative in his learning and asks for help when needed.” The respondent had written an eight-hour exam toward earning his high school equivalency certificate. The Acting Program Leader stated in a letter, “it is a pleasure to work with Hamza and I wish him continued success as he pursues his educational goals.” [33] These are only some examples of what the sentencing judge reviewed in her reasons for why she held out great hope for the respondent’s future prospects. While she did not diminish the seriousness of the offences or the victim impact in this case, the sentencing judge balanced those factors against the clear rehabilitative prospects of this relatively young, first-time offender. The sentencing judge saw that the respondent had taken unusual steps to turn his life around and she was prepared to accept that he had good prospects for continuing on that path. The strong community support for the respondent only strengthened the sentencing judge’s conclusion in this regard. There was nothing wrong with sending a message to this young man, who had clearly demonstrated that he was trying to right his wrong and alter his path, that those steps had not gone unnoticed and were to be encouraged: R. v. Ghadban , 2015 ONCA 760, at para. 23. [34] In light of all of the circumstances in this case, I do not agree that the sentence is demonstrably unfit. Did the sentencing judge err by overemphasizing the respondent’s mitigating circumstances? [35] The appellant also argues that the sentencing judge erred in principle by overemphasizing the respondent’s rehabilitative prospects. The appellant points to two main problems with the sentencing judge’s approach. [36] First, the appellant argues that the sentencing judge “subordinated denunciation and deterrence contrary to law”, making these sentencing principles “ancillary” benefits to a sentence that was geared toward rehabilitation. [37] Largely for the reasons already given, I do not agree with this characterization of the sentencing judge’s reasons. She was alive to the importance of denunciation and deterrence as critical principles to be applied in this sentencing context, even noting at one point that “in general” incarceration is “preferable where denunciation and deterrence are especially important.” On another occasion, she explicitly noted that specific and general deterrence were “core consideration[s] in this case”. [38] Given the respondent’s age, his guilty plea, the absence of a criminal record and the strong evidence of his motivation to become a law-abiding member of the community, and a good father and partner, there was nothing wrong with the attention the sentencing judge paid to rehabilitation, particularly given that she did not lose sight of the importance of the principles of deterrence and denunciation. [39] Second, the appellant contends that, even if it were permissible to emphasize rehabilitation in this case, the sentencing judge was wrong to view the respondent’s rehabilitative prospects in such a positive light. As the appellant put it, good behaviour under the “watchful eye of the justice system” should be viewed with caution. [40] It was for the sentencing judge to make a determination as to the genuineness of the respondent’s desire to improve himself. It is not for this court to reconsider her findings of fact in that regard. [41] I see no basis upon which to interfere with the sentence on this ground. Conclusion [42] I would grant leave to appeal and grant the appeal, but only to the extent of making the sentence a legal one, which requires attribution of the presentence custody to specific counts.  I would do this in a way that remains true to the global sentence imposed by the sentencing judge. [43] I would amend the sentence as follows: (a) I would set aside the general endorsement on the CDSA Information that says: “291 days of real custody @ 1.5 = 436.5 (437 days)”. (b) On count 1 of the CDSA Information, possession of cocaine for the purpose of trafficking, I would set aside the conditional sentence and impose a sentence of 120 days of presentence custody, to be credited at 180 days, plus two years’ probation on the same terms as previously set out. (c) On count 5 of the Criminal Code Information, the possession of a loaded firearm count, in addition to the 292-day conditional sentence already imposed, I would note an additional 171 days of presentence custody to be credited at 257 days. [44] The sentence, including all ancillary orders, will remain the same in all other respects. Released: “B.W.M.” March 2, 2020 “Fairburn J.A.” “I agree. B.W. Miller J.A.” “I agree. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Norris, 2020 ONCA 174 DATE: 20200305 DOCKET: C65438 Hoy A.C.J.O., Feldman and Gillese JJ.A. BETWEEN Her Majesty the Queen Respondent and David Norris Appellant Amy Ohler, for the appellant No one appearing for the respondent Heard: February 12, 2020 APPEAL BOOK ENDORSEMENT [1] Mr. Norris abandons his appeal against conviction.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. R.C., 2020 ONCA 159 DATE: 20200302 DOCKET: C65379 Feldman, Harvison Young and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and R.C. Appellant Jeffery Couse and Marianne Salih, for the appellant Lorna Bolton, for the respondent Heard: November 27, 2019 On appeal from the convictions entered by Justice Carole J. Brown of the Superior Court of Justice, sitting with a jury, on December 14, 2016, and from the sentence imposed on September 5, 2017, with reasons reported at 2017 ONSC 5089. Jamal J.A.: A. INTRODUCTION [1] The appellant, a former fashion photographer, was charged with six counts of sexual assault and one count of sexual exploitation of four young women whom he had photographed, namely, C.K., A.R., C.A., and N.H. [2] Before trial, the appellant applied to sever the charges and have them tried separately. The application judge severed only the charge involving N.H., which alleged the appellant had briefly touched N.H.’s breasts without her consent during a photography session. He permitted a joint trial of the more serious allegations involving the other complainants, which alleged non-consensual vaginal touching, digital penetration, and penile penetration: see R. v. R.C. , 2016 ONSC 6593. [3] The trial judge later allowed the Crown to adduce similar fact evidence across the counts involving C.K., A.R., and C.A.: see R. v. R.C. , 2016 ONSC 7575. [4] The jury acquitted the appellant of the charge involving C.A., but convicted him of those involving C.K. and A.R. He was sentenced to 51-months’ imprisonment. [5] The appellant now appeals against his conviction and sentence. He raises four grounds of appeal: 1. The application judge erred in refusing to sever the charges involving C.A., C.K., and A.R. 2. The trial judge erred in granting the Crown’s cross-count similar fact evidence application. 3. The trial judge’s jury charge failed to relate the evidence to the issues and to provide a proper instruction on the principles of R. v. W.(D.) , [1991] 1 S.C.R. 742. 4. The 51-month sentence imposed for a first-time offender violated the totality and parity principles and was demonstrably unfit. The trial judge also erred by relying on an aggravating factor that had not been proven beyond a reasonable doubt. [6] For the reasons that follow, I would dismiss both the conviction and sentence appeals. B. BACKGROUND (a) The allegations involving C.K. [7] C.K. moved to Toronto in 2009 at the age of 18 to pursue a modelling career. She met the appellant, who was 34 at the time, through K.R., a more experienced model who had worked with the appellant. [8] C.K. attended several photoshoots at the appellant’s studio in 2009 and 2010. At the first shoot, K.R. was initially present, as was another photographer, S.L., who shared the appellant’s studio at the time. C.K. testified that after K.R. and S.L. left, the appellant persuaded her to pose in a so-called “Calvin Klein” implied-nude style, in which the model poses topless but covers her breasts with her arms or hands. She testified that the appellant said that all the best models pose topless, even though C.K.’s modelling agency did not require such shots. C.K. posed topless at several photoshoots. The appellant told her to undress and wear a robe while at the studio to avoid clothing impressions on her skin. [9] C.K. claimed that the appellant sexually assaulted her three times. [10] First, during a photoshoot in 2010, the appellant told her to think about sex, placed his hand under her robe, and digitally penetrated her vagina. C.K. testified that she did not want to be touched like this, but she did not object because she was concerned about how the appellant might react and whether he would hurt her career. [11] Second, a few weeks later, during another photoshoot, the appellant grabbed C.K. and fondled her breasts. [12] Third, in April 2010, during her final photoshoot with the appellant, the appellant approached C.K. from behind, pushed her over a table, and had vaginal intercourse with her without her consent. Afraid that he would hurt her if she resisted, C.K. just closed her eyes and tried not to cry. After this, C.K. never worked with the appellant again. [13] C.K. testified that some time later she sent the appellant an angry email, saying that she had trusted him and he should not have done that to her. She testified that the appellant wrote back something like, “I thought that you wanted it”; she responded, “Are you kidding?” C.K. stated that she had deleted the emails as it had never occurred to her that she would require them for anything. [14] A year or so later, C.K. saw the appellant at a fashion show and told her boyfriend that the appellant had sexually assaulted her. Her boyfriend encouraged her to go to the police, but she was not ready to do so. A week later, she read a newspaper article about several other models who had made allegations against the appellant. She was contacted by S.L., the photographer who had shared the appellant’s studio, who suggested that if something had happened she should tell the police. C.K. then went to the police. [15] In his testimony, the appellant admitted some of the sexual touching and the sexual intercourse, but insisted that everything was consensual and he always asked for permission before touching C.K. He also testified that C.K. had initiated the sexual contact. He saw nothing wrong in touching his much younger client and did not consider 15 years to be a significant age difference. He also denied ever receiving an angry email from her. (b) The allegations involving A.R. [16] A.R. was a 21-year-old university student with no professional modelling experience when she met the appellant. On March 6, 2011, he messaged her through a website where she had a modelling profile and offered her a modelling opportunity. She was flattered that someone so experienced had contacted her. [17] A.R. testified that S.L. was leaving when she arrived at the appellant’s studio with her boyfriend. The appellant told her that the modelling opportunity was no longer available but said he “saw potential in her and would like to help”. He offered to take some headshots and asked her boyfriend to leave. He then gave her a robe and told her to remove her top and bra. He had already told her that he required models to remove their clothes and put on a robe to avoid visible clothing lines. He then asked her to pose topless. A.R. was uncomfortable, but did as she was told. She assumed that the appellant knew what he was doing. The appellant then proposed a “Calvin Klein” implied-nude shot and asked her to pose topless again. Once more, A.R. felt uncomfortable, but complied. [18] A.R. testified that, at a later photoshoot on March 10, 2011, the appellant sexually assaulted her. He first encouraged her to change in the open and tried to talk to her about sex. She alleged that he touched her vagina and digitally penetrated her. She testified, “I was scared for my life. It shocked me. I didn’t know what was happening.” She said the appellant told her he could help her succeed, just as he had helped K.R., whom he said he had also touched sexually. A.R. thought about trying to leave, but was afraid the appellant might hurt her or assault her again. She testified that the shoot ended when the appellant encouraged her to touch herself but she refused. He then forced open her legs and touched her where her pelvis and leg join. A.R. insisted that the appellant never asked if he could touch her sexually and she never consented to him doing so. [19] Later that night, A.R. told one of her female friends and her boyfriend about what had happened. Soon afterwards, she contacted S.L. and told him. [20] In his testimony, S.L. confirmed that A.R. had contacted him and had told him that the appellant had sexually assaulted her. S.L. gave A.R. the phone numbers of C.A. and K.R., whom she called later that year, but she claimed she did not discuss the details of the alleged assault with them. [21] On March 16, 2011, S.L. moved his photography equipment out of the appellant’s studio and told him that he had done so because he had learned that the appellant was doing inappropriate things with models. S.L. testified that the appellant said nothing in reply. [22] A.R. ultimately went to the police in May 2012. [23] In his testimony, the appellant admitted some of the sexual touching, but insisted that it was all consensual. (c) The allegations involving C.A. [24] C.A. met the appellant in 2009 through the model K.R., who had also introduced C.K. to the appellant. C.A. was 18 and new to professional modelling. [25] At their first photoshoot, the appellant encouraged C.A. to pose topless in the “Calvin Klein” or “implied-nude” style. She complied but was uncomfortable. [26] At their second photoshoot, C.A.’s evidence was that the appellant encouraged her to lie down on a bench. He then touched her breasts, vagina and clitoris, and digitally penetrated her, all without her consent. She testified that the appellant said that K.R. had done sexual things with him and that it had made her a better model. The appellant denied both the alleged sexual contact and the comments about K.R. [27] Some time later, the appellant offered to let C.A. sleep at his studio (where he was living at the time) because she had a casting at a nearby location the next morning. She accepted. C.A.’s evidence was that the appellant had sexual intercourse with her that night without her consent. After this, she stopped working with him. The appellant denied any sexual contact that night but stated that later he and C.A. had a consensual sexual relationship for a time. [28] On December 14, 2016, the jury acquitted the appellant of the charge involving C.A., but convicted him of the charges involving C.K. and A.R. C. ANALYSIS (1) Did the application judge err in refusing to sever the charges involving three of the complainants? (a) Background [29] Before trial, the appellant applied to sever the charges involving each of the four complainants on the basis that a joint trial would prejudice his right to a fair trial, particularly since he intended to testify in defence to the allegations of C.K., A.R., and C.A., but not to those of N.H. [30] The application judge severed the charge involving N.H. He noted that the factual allegations involving N.H. were not at the same level of severity as those involving the other complainants and there was no suggestion that N.H. had been in contact with them or S.L. Accordingly, the application judge concluded that it would be very prejudicial to try the less serious allegations made by N.H. with the very severe allegations made by the other three complainants. The application judge also reasoned that the appellant’s announced intention to testify in defence to the charges involving all the complainants except N.H. would “potentially be read by a jury as an acknowledgement of guilt in the one silent case.” [31] However, the application judge refused to sever the other charges. He reasoned that there was a viable similar fact argument for them, and there would be nothing unduly prejudicial in trying them together. The appellant argues that the application judge erred in so ruling. (b) Applicable principles of severance [32] Section 591(3)(a) of the Criminal Code , R.S.C. 1985, c. C-46, gives the court broad discretion to sever counts in an indictment “where it is satisfied that the interests of justice so require”. The accused bears the onus of justifying severance on the balance of probabilities: R. v. Jeanvenne , 2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 26. [33] In exercising this discretion, the court balances the accused’s right to be tried on the evidence admissible against the accused with society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner, mindful of the risk that evidence admissible on one count could influence the verdict on an unrelated count: R. v. Last , 2009 SCC 45, [2009] 3 S.C.R. 146, at paras. 16-17; R. v. Durant , 2019 ONCA 74, 144 O.R. (3d) 465, at para. 72. [34] The “interests of justice” under s. 591(3)(a) of the Criminal Code have been interpreted as including several non-exhaustive factors to be weighed in the balance. These were summarized in Durant , at para. 73, as including: i. general prejudice to the accused as a result of the influence of the volume of evidence adduced and the effect of verdicts across counts; ii. the legal and factual nexus between or among counts; iii. the complexity of the evidence; iv. the desire of the accused to testify on one or more counts but not on another or others; v. the possibility of inconsistent verdicts; vi. the desire to avoid a multiplicity of proceedings; vii. the use of evidence of similar acts; viii. the length of trial; ix. prejudice to the accused’s right to be tried within a reasonable time; and x. the existence or likelihood of antagonistic defences. See also Last , at para. 18; Jeanvenne , at para. 29. [35] Considerable deference is owed to a lower court’s exercise of discretion as to severance. An appellate court may intervene only if the lower court “acted unjudicially” or “the ruling resulted in an injustice”: Last , at paras. 14, 21; Jeanvenne , at para. 26; and Durant , at para. 79. These are distinct inquiries. A lower court acts unjudicially if, based on the circumstances at the time the ruling was made, the court errs on a question of law or principle or makes an unreasonable decision. A lower court’s ruling results in an injustice based on how the entire trial and the verdicts unfold, including the potential prejudicial effect of the evidence, the closing addresses of counsel, the judge’s jury instructions, and any inference that may be drawn from the jury’s ultimate verdicts: Last , at para. 15; Jeanvenne , at para. 27; and Durant , at para. 79. (c) Application to this case [36] The appellant asserts that the application judge acted unjudicially because he erred in concluding that: (i) the Crown had a viable similar fact argument; and (ii) the prejudice arising from trying the allegations pertaining to C.A., A.R., and C.K. together was low. The appellant also asserts (iii) that the severance ruling caused an injustice based on how the trial unfolded. (i) Viability of the similar fact application [37] The Crown is not required to bring a similar fact application at the time of the severance application — it is entitled to defer the argument of the admissibility across counts of the evidence of similar acts until all the Crown’s evidence has been tendered: Last , at para. 34. [38] Where the Crown intends to argue the admissibility of the similar fact evidence later in the trial, the trial judge should consider the similar fact evidence “carefully in the context of the severance application”: Last , at para. 33; R v. Waudby , 2011 ONCA 707, at para. 4. As stated in R. v. Sahdev , 2017 ONCA 900, 356 C.C.C. (3d) 137, at para. 49: [A]ssessing the viability of a similar fact application on a severance application can be tricky, given that the burden to achieve severance is on the defence, while the burden to admit similar fact evidence is on the Crown. The exercise must be approached with great care[.] [39] Where a judge carefully considers the viability of an anticipated similar fact application at the time of the severance application and concludes that it appears to have sufficient merit, it will be difficult to establish that the judge erred by refusing to sever: Waudby , at paras. 3-4. The severance application judge need only assess whether the anticipated similar fact application has some possibility of success, or whether it is reasonable to consider that it might succeed: R. v. Blacklaws , 2012 BCCA 217, 285 C.C.C. (3d) 132, at paras. 43-44, per Finch C.J.B.C. (dissenting), aff’d at 2013 SCC 8, [2013] 1 S.C.R. 403. This threshold is considerably lower than the test for admitting similar fact evidence: Blacklaws , at para. 42. [40] Here, in my view, the application judge correctly weighed the relevant considerations at the time of the severance application in evaluating whether the Crown had a viable similar fact application. He considered the appellant’s arguments that the cases had no unifying threads and that trying them together would come “perilously close to saying that he is the type of person to take advantage of his position”. Nevertheless, the application judge reasonably concluded that the Crown had a viable similar fact application because all the offences alleged very similar conduct in very similar circumstances. He was also entitled to conclude that there was “nothing unduly prejudicial” about trying the C.K., A.R., and C.A. cases together. It was not necessary for the application judge to go into further specifics about the sources of prejudice, and it is clear from reading his reasons as a whole that he was alive to the risk of prejudice and considered it in the course of his analysis: see Blacklaws , at para. 52. Deference is owed to his ultimate conclusion. [41] Finally, I do not agree with the appellant that the application judge relied on evidence of alleged collusion to support the viability of the Crown’s similar fact application. Rather, when the application judge’s reasons are read in context, it is clear that he relied on the allegation of collusion among C.A., A.R., and C.K. as a characteristic distinguishing those charges from the charges in respect of N.H., where there was no allegation of collusion. The application judge used this distinction to support severing that charge from the others. [42] Therefore, in my view, the application judge did not err in concluding that the Crown had a viable similar fact application at the time of the severance application. (ii) Prejudice [43] The appellant submits that the application judge erred in his assessment of prejudice on the severance application in three ways. [44] First, the appellant submits that the application judge erred in relying on the similarity of the allegations in concluding that “there is nothing unduly prejudicial about trying the [three] cases together.” The appellant asserts that the “similarity of the allegation is precisely what creates prejudice in the circumstances”. [45] I disagree with the contention that the application judge erred in considering the similarity of the allegations. In this case, that similarity supported the viability of the similar fact application. Such an application, if ultimately granted at trial, would specifically permit the jury to consider the evidence of all three complainants across counts. Where a proposed similar fact application is viable at the time of the severance application, this may provide a sufficient reason for deciding to deal with potential prejudice at a later stage of the proceedings, including through appropriate jury instructions: see Waudby , at para. 8. [46] Second, the appellant submits that the application judge erred in his assessment of prejudice because he did not address any of the specific types of prejudice discussed by the Supreme Court in Last — i.e., the risk that the complainants’ credibility would be impermissibly bolstered, the risk that the appellant’s credibility would be impermissibly undermined, and the risk that the jury would engage in propensity reasoning. The appellant makes the same argument in relation to the application judge’s conclusion about the viability of the similar fact application. [47] As I stated above, it was not necessary for the application judge to go into further specifics about the sources of prejudice. He explicitly mentioned the risk of propensity reasoning and it is clear from his reasons that he was alive to the risk of prejudice generally and considered it in the course of his analysis. Deference is owed to his ultimate conclusion. [48] Third, the appellant submits that the application judge erred in his assessment of prejudice because he misapprehended the evidence about the differences between the three cases. Specifically, the appellant takes issue with the application judge’s statement that the three complainants “were looking to the [appellant] for professional guidance and an initiation into their modelling careers, but what they got was an initiation into coerced sex ” (emphasis added). The appellant submits that this statement reveals a misapprehension of the evidence, because only C.A. and C.K. alleged non-consensual sexual intercourse. [49] I disagree with this assertion. When read in the context of the severance decision as a whole, the reference here to “coerced sex ” included both sexual intercourse and vaginal touching. The application judge was well aware that only two complainants alleged sexual intercourse . [50] I therefore conclude that the application judge did not act unjudicially in refusing severance. He did not err in concluding that the Crown had a viable similar fact argument or in concluding that trying the allegations pertaining to C.A., A.R., and C.K. together was not unduly prejudicial. (iii) Alleged injustice based on how the trial unfolded [51] Finally, the appellant asserts that the severance ruling caused an injustice based on how the trial unfolded. He claims that he was “forced to testify against all complainants”, such that “[a]ny impairment of his credibility against one complainant inevitably tainted his credibility against the other.” [52] I would reject this claim. At the severance application, the appellant himself submitted that he planned to testify in defence to the charges involving C.K., A.R., and C.A., and argued that this was a reason to sever the charge involving N.H. The application judge severed that charge but refused to sever what remained. At trial, the appellant unsuccessfully opposed the similar fact application. Then, he chose to testify. In the circumstances, it cannot be said that he was “forced” to testify in his own defence, when he had previously announced that he planned to testify and then decided to do so based on how the trial unfolded. Moreover, the jury acquitted the appellant of the charge involving C.A., despite the admission of the similar fact evidence of C.K. and A.R., which suggests that the jury did not engage in forbidden propensity reasoning, and did not assume that the appellant was unbelievable with respect to all of the allegations just because he was unbelievable with respect to some of them. [53] In conclusion, I see no basis to impugn any aspect of the severance ruling. (2) Did the trial judge err in granting the Crown’s cross-count similar fact evidence application? (a) Applicable principles for admitting cross-count similar fact evidence [54] Similar fact evidence is presumptively inadmissible. To make it admissible, the Crown bears the burden of showing on a balance of probabilities that the probative value of the similar fact evidence in relation to a particular issue at trial outweighs its potential prejudicial effect: R. v. Handy , 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55. [55] An aspect of the presumptive rule against admitting similar fact evidence is that evidence on one count cannot be used to prove guilt on another count where the counts do not arise out of the same events: R. v. T.C. , 2019 ONCA 898, at para. 42. This rule aims to prevent the jury from either: (1) placing more weight than is justified on the evidence of similar facts (known as “reasoning prejudice”); or (2) finding the accused guilty based on forbidden propensity reasoning (known as “moral prejudice”), that is, “reasoning that a person who has engaged in disreputable conduct alleged in one count has a propensity or disposition to do the type of act charged in another count”: T.C. , at para. 43; see also Handy , at para. 31. [56] Absent an error of law, an unreasonable analysis, or a misapprehension of material evidence, a trial judge’s decision to admit similar fact evidence is entitled to substantial appellate deference: Handy , at para. 153; R. v. Arp , [1998] 3 S.C.R. 339, at para. 42; and R. v. J.H. , 2018 ONCA 245, at para. 11. (b) The trial judge’s similar fact evidence ruling [57] At the close of its case, the Crown applied to have the similar fact evidence admissible across counts. The trial judge found that the acts sought to be used as similar fact evidence were similar for the following reasons: The relationship of the respondent and complainants was one of professional fashion photographer and aspiring models. As the Crown has argued and the evidence supports, the complainants were all young (ages 18 to 21) and relatively inexperienced in modelling. The respondent portrayed himself and the complainants all viewed him as a significant fashion photographer in the industry, who had connections. The respondent, in all three cases, attempted to instill a sense of trust in the complainants such that they would be able to “perform” in front of the camera, attempted to relax them, again so that they would be able to pose as he wanted in front of the camera, began to raise sexual comments and continued to do so throughout, used sexual touching, purportedly for purposes of “relaxing” them prior to shoots, and told them that all models in the industry did that and/or that [K.R.] had done that and had become a good model. He touched them all in similar ways, caressing breasts with his fingers and touching their vaginal areas. He had all of them remove all of their clothing and wear robes, which he supplied, in order that there would be no clothing lines showing in photographs taken subsequently, then reached through robes to caress the models. He photographed them posed in the “CK” look, “implied” topless and topless. [58] The trial judge found the similar fact evidence relevant and probative to prove the actus reus , to support the credibility of the complainants, to demonstrate a pattern of behaviour, to negate a defence that the complainants were fabricating, and to defy coincidence with respect to the offences alleged. She also found that the evidence was not being admitted to show bad character and that it was not tainted by collusion among the complainants. She therefore concluded that its probative value outweighed any potential prejudice and admitted it across counts. (c) Application to this case [59] The appellant asserts that the trial judge erred in her similar fact evidence ruling in three respects. [60] First, the appellant contends that the trial judge relied on “generic” factors to establish the probative value of the similar fact evidence. He says that “it is not surprising that the complainants were young and inexperienced in modelling given that they were aspiring models, nor is it surprising that [he] attempted to instill trust in the complainants and relax them so that they would pose better”. [61] I do not accept this submission. In my view, it was open to the trial judge to conclude that the similarities alleged here were more than merely generic. Her task was not to “add up similarities and dissimilarities and then, like an accountant, derive a net balance”, but rather to determine whether there was “a persuasive degree of connection between the similar fact evidence and the offence charged”: R. v. Shearing , 2002 SCC 58, [2002] 3 S.C.R. 33, at paras. 48, 60; J.H. , at para. 20. That is exactly what the trial judge did. [62] Here, the alleged similar facts involved a consistent modus operandi of grooming young, vulnerable, and trusting women to normalize the sexual assaults for which the appellant was charged. While some of the similar facts alleged could perhaps be described as “generic” — that the models were all young and inexperienced and needed to relax before photoshoots — others were not, including the appellant’s alleged sexual touching to “relax” the complainants, his references to K.R. as a model who had succeeded under his guidance, and his encouraging topless implied-nude shots, even when not required. [63] A trial judge’s conclusion that alleged similar facts are sufficiently similar rather than impermissibly generic is entitled to substantial deference, absent an error of law or principle or a misapprehension of the evidence. I see no such error. [64] Second, the appellant asserts that the trial judge failed to assess the probative value of the similar fact evidence in relation to the specific issues in question at trial. He says that the only issue at trial was consent, and that the alleged similar touching with all three complainants was neither logically probative of that issue nor logically supportive of their credibility. [65] I do not agree that the trial judge failed to assess the probative value of the similar fact evidence in relation to the issues at play at trial. Apart from being relevant to and probative of the actus reus , the trial judge permitted the similar fact evidence to support the credibility of the complainants, to demonstrate a pattern of behaviour, to negate a defence that the complainants were fabricating, and to defy coincidence with respect to the offences alleged. These were all live issues at trial. [66] With respect to credibility in particular, the trial judge cited the admonition in Handy , at para. 115, that “[c]are must be taken not to allow too broad a gateway for the admission of propensity evidence”, because “[c]redibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence”. The trial judge went on to note that “[t]he probative value of similar fact evidence in a credibility case lies in the improbability of witnesses giving similar accounts of incidents unless the witnesses are telling the truth”, and as such, “the probative value of the evidence depends upon the similarity between the incidents”. She found, in this case, that the similar facts were “significantly similar” to justify admission across counts. Again, I see no error in the trial judge’s analysis or conclusion. [67] Third, the appellant asserts that the trial judge erred in finding that there was no air of reality to the appellant’s allegation of collusion among the complainants. He notes that there was a delay of one to four years in reporting each of the allegations, and that before doing so each complainant was contacted by S.L., the appellant’s former photography colleague. The appellant asserts that this finding was also inconsistent with the trial judge’s jury charge, which left the theory of collusion with the jury. [68] I disagree that the trial judge erred in how she dealt with the collusion allegation. Although the trial judge found evidence of opportunity for collusion, she concluded that there was no evidence of actual collusion. This conclusion was supported by the evidence on the application. I see no reason to disturb it. [69] It is true that the trial judge stated in her reasons on the similar fact application that she found no air of reality regarding actual collusion. However, she then added that if she was wrong about this the evidence of collusion was insufficient to taint the evidence of similar facts, and collusion was ultimately an issue of fact for the jury to decide on the evidence: If I am wrong as regards there being no “air of reality”, I nevertheless find that there is, on the evidence before the Court, no sufficient evidence of collusion for this Court to find that the similar fact evidence sought to be used among the five counts was tainted by collusion. Based on the foregoing, I find, on a balance of probabilities, that the evidence of similar facts is not tainted with collusion. For purposes of the trial, whether or not there was collusion, is ultimately a matter for the decision of the jury in this case, as with all findings of fact. [70] Thus, the trial judge’s initial conclusion that there was no air of reality to the collusion theory, if read out of context, may seem inconsistent with her ultimately leaving this issue for the jury. I do not, however, read her reasons that way. She appears to have left collusion to the jury because she considered it in the alternative as having an air of reality in addressing the similar fact application. In any event, any error occasioned by this, if indeed there was one, inured to the appellant’s benefit, because collusion was ultimately left to the jury. [71] For these reasons, I conclude that the trial judge did not err in granting the Crown’s cross-count similar fact evidence application. (3) Did the trial judge err in her jury charge? (a) Applicable principles for evaluating a jury charge [72] An appellate court reviews the adequacy of a jury charge through a functional assessment. “The court asks whether the charge, read as a whole in the context of the specific case, properly equipped the jury to decide the case based on the application of the applicable legal principles to the evidence”: R. v. Badgerow , 2019 ONCA 374, 146 O.R. (3d) 35, at para. 17; R. v. Calnen , 2019 SCC 6, 430 D.L.R. (4th) 471, at para. 8. [73] Such a functional assessment gives “significant weight to the position advanced by counsel at trial”, and “[t]o the extent the instruction tracks that position, it is likely to properly serve its functional purpose”: Badgerow , at paras. 18-19. “The jury instruction must be legally correct and fair, not perfect”: Badgerow , at para. 20; Calnen , at para. 9. (b) Application to this case [74] The appellant argues that the trial judge erred in her jury charge in three respects. While not determinative, it bears noting that at trial the appellant’s trial counsel (who was not appeal counsel) did not object to the jury charge. [75] First, the appellant claims that the trial judge failed to explain that the real issue was consent, not whether the sexual encounters occurred. He highlights the trial judge’s jury instruction that “[t]he real issue for you to decide in this case is whether the offences alleged by each complainant or any of them actually took place” (emphasis added). He claims that the reference to “the offences” left the jury with the misunderstanding that he disputed sexual contact, when his position was that all sexual contact was consensual. [76] I see no error here. The trial judge referred to sexual “offences”, not “encounters” — which highlighted that the issue was whether the offences occurred, not whether there were sexual encounters. Elsewhere in the charge, the trial judge explained the essential elements of the offence of sexual assault as including intentional touching, of a sexual nature, without consent, by an accused who knew that the complainant did not consent. Thus, the jury was left with no confusion about the appellant’s position. [77] Second, the appellant contends that the trial judge failed to relate the evidence to the issues, especially to the issue of consent, and instead offered a witness-by-witness recitation of the evidence. [78] I do not agree with this submission. I acknowledge that this court has observed that a witness-by-witness recitation of the evidence is almost always ineffective, because it tends to be unnecessarily detailed and, as a summary of the evidence, often bears no relationship to the issues in dispute: see R. v. Newton , 2017 ONCA 496, 349 C.C.C. (3d) 508, at paras. 15-16. [79] However, that is not a fair description of the trial judge’s jury charge in this case. For example, although the trial judge began with a detailed summary of the evidence of each of the five witnesses, including the three complainants, she went on to summarize again — though more succinctly — the relevant evidence as to consent. She stated: The evidence as regards consent is as above set forth. The three complainants state that they did not consent to sexual touching by the accused. [The appellant] states that all complainants consented, and that he would never touch anyone without their consent. While he does not recall the words used by him to obtain consent, nor the words used by each complainant to give consent, he testified that he would not touch anyone without their consent. [80] The trial judge addressed consent again when she instructed the jury on whether the appellant had the mens rea for sexual assault and summarized the evidence respecting consent and honest but mistaken belief in consent. [81] Thus, in my view, read as a whole, the jury charge cannot be impugned for failing to relate the evidence to the issues. [82] Third, the appellant asserts that the trial judge failed to give a proper jury instruction in accordance with W.(D.) , at p. 758, namely: (a) First, if you believe the accused’s evidence, you must acquit; (b) Second, if you do not believe the accused’s evidence but are left in reasonable doubt about his guilt, you must acquit; (c) Third, even if you are not left in doubt by the accused’s evidence, you must ask whether, based on the evidence you do accept, you are convinced beyond a reasonable doubt by that evidence of the accused’s guilt. [83] The appellant acknowledges that the trial judge “included the standard W.(D.) instruction at the beginning of the jury charge”, but complains that she “did not instruct the jury that the W.(D.) analysis was to be applied to every element of the offence and did not relate the evidence to the W.(D.) analysis to be applied.” [84] I would not give effect to this submission. A court need not take “a formulaic approach to the W.(D.) analysis”, but rather must ensure that the burden of proof never shifts from the Crown: R. v. Robinson , 2009 ONCA 626, 254 O.A.C. 171, at para. 25. The key question is thus whether the jury charge made this clear. [85] In my view, the jury charge made this abundantly clear. As the appellant concedes, the trial judge did include a standard W.(D.) instruction at the beginning of her charge. She was not required to repeat that instruction when dealing with each and every element of the offence. The trial judge clearly instructed the jury that it could believe some, all, or none of each complainant’s evidence; repeatedly explained that the Crown bore the burden of proof and the appellant did not have to prove anything; and cautioned that the verdict must be based on all the evidence. Nothing more was required. [86] I therefore conclude that the jury charge, read as a whole, properly equipped the jury to decide the case. Thus, I conclude that the jury charge easily passes muster under a functional assessment. [87] For these reasons, I would dismiss the conviction appeal. (4) Did the trial judge err in sentencing? [88] After the jury found the appellant guilty of sexually assaulting C.K. and A.R., the trial judge sentenced the appellant to 51-months’ imprisonment, less credit for 13 days of pre-trial custody and three months for strict bail conditions during the first year. [89] This sentence consisted of three years and three months for assaulting C.K., and one year for assaulting A.R., to be served consecutively. The trial judge noted that the crimes against each of C.K. and A.R. were separate and distinct, and that as a general principle, assaults that are separate, unrelated transactions should receive separate, consecutive sentences. The sentence imposed was roughly midway between the parties’ submissions: the Crown had sought six years and three months, while the defence argued for two years plus a day. [90] The appellant claims that the trial judge erred in two respects. [91] First, the appellant asserts that the trial judge erred in sentencing with respect to the offences committed against A.R. by considering an aggravating factor — digital penetration — that had not been proven beyond a reasonable doubt. Specifically, the appellant says that there was a discrepancy in the evidence on the extent of sexual touching of A.R.: she testified that the touching included digital penetration; he testified that it did not. The appellant argues that the jury’s verdict showed that it was satisfied that there was sexual touching without consent, but does not show what touching was proven beyond a reasonable doubt. The appellant submits that before the trial judge could rely on digital penetration as an aggravating sentencing factor, she should have made an independent determination of the facts: Criminal Code , ss. 724(3)(d) and (e); R. v. Ferguson , 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 17-18. [92] I disagree with the appellant’s claim that the trial judge considered digital penetration as an aggravating factor. The issue of whether the non-consensual touching of A.R. specifically included digital penetration was not explored in the parties’ sentencing submissions, which suggests that neither party considered it especially material to sentence. The trial judge’s reasons mentioned the alleged digital penetration in passing, but did not treat it as an aggravating factor. The specific aggravating factors she considered were the power imbalance that the appellant exploited to take “advantage of two young, inexperienced aspiring models who perceived him as experienced, trusted him as a professional and were deceived”; and “the ages of the victims, the fact that there were two victims and several incidents of sexual assault and further that the victims were significantly affected.” [93] Second, the appellant claims that the trial judge violated the totality principle in imposing consecutive sentences, resulting in an “unduly long or harsh” combined sentence contrary to s. 718.2(c) of the Criminal Code . The appellant submits that a total sentence of 51 months for a first-time offender was demonstrably unfit because he has excellent prospects for rehabilitation. [94] As is well known, trial judges have broad discretion in sentencing and are accorded significant deference on appeal. An appeal court can intervene only where the sentencing decision reveals an error of law or principle that has an impact on the sentence, or where the sentence imposed is demonstrably unfit: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 44. [95] In my view, the 51-month total sentence imposed for these offences was not demonstrably unfit. The appellant was found to have violated the trust of two complainants through serious sexual misconduct, including forced penile penetration in one case, with profound psychological consequences for both complainants. While the appellant had no prior record, there were few other mitigating factors. The sentence for this misconduct against two complainants fell within the range of sentences for similarly-situated offenders, which, while involving somewhat different circumstances of abuse of trust, confirm the fitness of the combined sentence imposed here: see, for example, R. v. Bradley , 2008 ONCA 179, 234 O.A.C. 363, at para. 18 (three-year sentence for a single count of sexual assault by a police officer with no prior criminal record who vaginally and anally penetrated a mentee who aspired to become a police officer); R. v. Wood , 2015 ONCA 337, at para. 4 (six-year sentence for a pastor convicted of sexual offences against three parishioners); and R. v. Clase , 2017 ONSC 2484 (five-year sentence for sexual assault involving vaginal penetration and choking). I therefore see no basis to disturb the sentence imposed. [96] Accordingly, although I would grant leave to appeal sentence, I would dismiss the sentence appeal. D. conclusion [97] For these reasons, I would dismiss the conviction appeal. I would grant leave to appeal sentence, but dismiss the sentence appeal. Released: March 3, 2020 (“K.F.”) “M. Jamal J.A.” “I agree. K. Feldman J.A.” “I agree. A. Harvison Young J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Souter, 2020 ONCA 190 DATE: 20200309 DOCKET: C66942 Hoy A.C.J.O., Feldman and Gillese JJ.A. BETWEEN Her Majesty the Queen Respondent and Alastair Souter Appellant Amy Ohler, appearing as duty counsel Hannah Freeman, for the respondent Heard: February 12, 2020 On appeal from the conviction entered by Justice E.A. Carlton of the Ontario Court of Justice, dated February 20, 2019 and the sentence imposed on November 20, 2019. APPEAL BOOK ENDORSEMENT [1] The appellant argues that his conviction for sexual assault was unreasonable and the sentence imposed was unfit. [2] The trial judge found that the complainant was not capable of consenting to the sexual activity and the appellant knew or was reckless or wilfully blind to the absence of consent. [3] In our view, the elements of the offence of sexual assault were made out on the evidence and the sentence imposed was fit. [4] Accordingly, the appeal is dismissed.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Summers, 2020 ONCA 175 DATE: 20200305 DOCKET: C67215 Hoy A.C.J.O., Feldman and Gillese JJ.A. BETWEEN Her Majesty the Queen Respondent and Derek Summers Appellant No one appearing for the appellant Hannah Freeman, for the respondent Heard: February 12, 2020 APPEAL BOOK ENDORSEMENT [1] This appeal is dismissed as abandoned.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. W.M., 2020 ONCA 236 DATE: 20200324 DOCKET: C65108 Strathy C.J.O., Miller and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and W.M. Appellant W. John McCulligh, for the appellant Caitlin Sharawy, for the respondent Heard: March 6, 2020 On appeal from the conviction entered on May 30, 2017 by Justice John R. Sproat of the Superior Court of Justice. Strathy C.J.O.: [1] The appellant appeals his convictions for sexual interference and sexual assault of his daughter, who was approximately four years and ten months of age at the time of the offences. A stay was entered in relation to the second count. He was sentenced to four years’ imprisonment and ancillary orders were made. [2] For the reasons that follow, I would allow the appeal and order a new trial. The Evidence [3] The child’s mother testified that the incident came to light after the Children’s Aid Society (“CAS”) informed her that the child had engaged in sexualized behaviour at school. The mother had some knowledge of her husband’s past, discussed below, which prompted her to ask her daughter, “did daddy touch your vagina?” The child replied, “yes”. The mother told the child that if her father ever touched her again, she should run and get her. The mother ultimately notified the police, and the appellant was charged. [4] Shortly after the alleged incident, the child made a video statement. It was admitted in evidence at trial and she adopted it as true. She said that her father had touched her vagina with his hand, over her pyjamas, while he was standing beside her bed. She claimed that she had screamed for her mother, who came into the room and said, “Did dad touch your vagina again?” She replied “yes”. [5] In the course of trial preparation, the child disclosed a second incident in which she alleged that the appellant had touched her vagina with a spoon or a round object. At trial, she said that she was in bed sleeping when the appellant, who was standing beside her bed, pulled down her pyjamas and touched her vagina. She did not see the spoon, but the object was metal, smooth, and circle-shaped. She said that the spoon incident took place when she was five years old and that it occurred before the touching with the hand. She said that she forgot to tell the officer who took her statement about the touching with the spoon. [6] There were some inconsistencies in the complainant’s evidence. This was not surprising in view of the child’s age when the events were alleged to have occurred, and the passage of about two years between those events and the trial. There were also some inconsistencies between the mother’s evidence and the child’s. [7] The appellant testified and denied the allegations. [8] The trial judge admitted similar fact evidence of offences that the appellant pleaded guilty to in 1998: a. between 1985 and 1987, when he was 13 to 15 years old, he sexually assaulted a three to five-year-old child he was babysitting, lifting her night clothes and touching her vagina; b. between 1995 and 1997, when he was 23 to 25 years old, he sexually assaulted a five to seven-year-old child, going into her bedroom while she was sleeping, exposing her body and touching her vagina. [9] In addition to convictions for the offences above, the appellant testified that he was convicted in 2000 for dangerous operation of a motor vehicle, possession of proceeds of crime, and break and enter. He was convicted again in 2008 for possession of a weapon, assault with a weapon, and theft under $5,000. [10] The appellant testified that he himself had been sexually abused as a child while in the care of the CAS. He said that he knew what he was doing was wrong at 13-15 years old, but he did not appreciate just how wrong it was. He said that he better understood the wrongfulness of his actions in 1995-97 when he was 23-25 years old, but nevertheless did what he knew to be wrong because of the sexual gratification he received. However, the 1998 conviction drove home for him how wrong it was. He testified that he was “a changed man” as of 1998 because of his better understanding and his resolve to change. [11] The appellant testified that he had received sex offender treatment while in custody at the Ontario Correctional Institute for the 2000 convictions. He testified that prior to commencing the sex offender course, he underwent phallometric testing, and his understanding of the results was that he was not a pedophile. He also said that the treatment “helped him learn how to … better understand the feelings of others, to be accountable to the victims, and to learn how to empathise, to have victim empathy.” He looked at his “own triggers … and stressors, and why [he] did what [he] did.” In addition, the appellant testified that as a result of the motor vehicle accident that resulted in his 2000 conviction, he had suffered physical injuries that affected his ability to get an erection and left him unable to experience sexual gratification in the way he had before. [12] In cross-examination, the appellant testified that he did not have any concerns about re-offending because of: (1) his increased appreciation of the wrongness of his actions as a result of the 1998 conviction and the 2000 sex offender course; and (2) the physiological changes in his body as a result of the 2000 motor vehicle accident. The Trial Judge’s Reasons [13] The trial judge correctly described the principles in R. v. W.(D.) , [1991] 1 S.C.R. 742. These principles apply to the assessment of evidence in cases of sexual assault and outline the “common sense” approach for assessing the evidence of young children, while at the same time respecting the presumption of innocence and the burden of proof in criminal cases. [14] The trial judge found that the complainant was credible, in the sense that she wanted to tell the truth. He found that the child’s mother did not influence the child’s evidence, either intentionally or unintentionally, and that the allegations of touching came from the complainant and not from her mother. The inconsistencies between the evidence of the mother and the child did not cause him to doubt the main points of the child’s evidence. [15] The trial judge noted that the appellant’s cross-examination disclosed aspects of his evidence that were “self-serving or exaggerated or contradictory.” For example, he claimed that he was unable to achieve an erection after the motor vehicle accident in 2000, but it was pointed out to him that he had been able to father a child, the complainant, after that accident. He also initially claimed that he did not realize that touching a child’s vagina was wrong when he was a young person, but acknowledged that the acts were done in private so that he would not be caught and ultimately agreed that he knew it was wrong. [16] In commenting on the appellant’s evidence in relation to the similar fact evidence, the trial judge observed: He was asked if he had any concern of reoffending after 2008 . He said the sex offender treatment and other programs he took at the Ontario Correctional Institute in 2008 were such that he did not have a concern about reoffending. [Emphasis added.] [17] In assessing the weight of the similar fact evidence, the trial judge said: I accept and take into account that [the appellant] received sex offender treatment while he was incarcerated. That evidence logically does tend to diminish the significance of the situational-specific propensity that [the appellant] had demonstrated in the conduct underpinning his convictions for offences in 1985 to 1987, and 1995 to 1997. I do note, however, that implicit in [the appellant’s] evidence, that he received and benefited from sex offender treatment in 2008, is that he still had some need of treatment at that time . He still needed to manage his impulses and learn to empathize with victims and learn to recognize triggers and stressors that lead to this behaviour. In other words, the situation-specific propensity that demonstrated itself in 1985 to 1987, and 1990 to 1997 was also present in 2008 . Given that this propensity persisted or at least demonstrated itself over the period 1985 to 2008 , there is every reason to believe it would still be a factor in 2015. No one would suggest that any treatment program is a hundred percent effective. So, while I factor the treatment program into my analysis, it certainly does not preclude consideration of the long-standing situation-specific propensity that [the appellant] had to touch female children inappropriately . … The significance of similar fact evidence lies in the improbability of coincidence. I think there is virtually no chance that coincidence explains [the appellant] having a criminal record for touching prepubescent females on the vagina while they are in his care and sleeping, and this complainant making the same allegation.” [Emphasis added.] [18] Ultimately, the trial judge did not accept the appellant’s denial of the allegation and stated that the Crown evidence he accepted satisfied him of the appellant’s guilt beyond a reasonable doubt. Grounds of Appeal [19] The appellant raises three grounds of appeal: 1. The trial judge erred in his application of W.(D.) and misapplied the burden of proof; 2. The trial judge’s reasons were insufficient in that they failed to adequately address inconsistencies in the Crown’s evidence; and 3. The trial judge misapprehended the appellant’s evidence concerning his sexual offender treatment and this error had a material impact on the conviction. [20] As I would allow the appeal on the third ground, I do not find it necessary to address the other two. Analysis (1) Legal Principles for the Misapprehension of Evidence [21] A new trial is required when the appellant has met the “stringent standard” for determining whether a misapprehension of evidence resulted in a miscarriage of justice, as set out in R. v. Morrissey (1995), 22 O.R. (3d) 514, at p. 541, see also R. v. Lohrer , 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2. Specifically, the misapprehension of evidence must go to substance rather than detail, it must be material rather than peripheral to the reasoning, and the errors must play an essential part not just in the narrative of the judgment, but in the reasoning process resulting in a conviction: Lohrer , at para. 2. If the appellant can show that the conviction was based on a misapprehension of evidence, the appellant is entitled to a new trial “even if the evidence, as actually adduced at trial, was capable of supporting a conviction”: Morrissey , at p. 541. [22] The impact of a misapprehension of evidence is particularly marked in cases where the principle issue is credibility. In such cases, “it is essential that the findings be based on a correct version of the actual evidence”, as “wrong findings on what the evidence is destroy the basis of findings of credibility”: Morrissey , at p. 541, citing Whitehouse v. Reimer (1980), 116 D.L.R. (3d) 594 (Alta. C.A.). (2) Application (a) The Factual Error [23] The trial judge’s reasons quoted above, at para. 17, contain a misapprehension of the evidence. The uncontested evidence was that the appellant received sex offender treatment in the Ontario Correctional Institute while he was in custody in 2000 , not in 2008 . Based on the factual error with respect to the date of treatment, the trial judge also found that it was “implicit” in the appellant’s evidence that he still needed treatment in 2008, ten years after his previous offence. (b) Impact of the Misapprehension of Evidence [24] The misapprehension of evidence affected the trial judge’s reasons for conviction in two interconnected ways: (1) it led the trial judge to find that the appellant’s propensity to offend was likely active in 2015, when the offences were alleged to have occurred; and (2) the trial judge found, implicitly, that the treatment did not reduce the probative value of the similar fact evidence. (i) Propensity to Offend in 2015 [25] The trial judge found the fact that the appellant required sex offender treatment in 2008 was evidence that his propensity was still active in 2008 , and therefore, the propensity was likely active in 2015, the time of the charged offences. This factual error led the trial judge to believe that there was evidence of an ongoing propensity that persisted for a 23-year period (from 1985 to 2008). This mistaken finding of fact factored into the trial judge’s rejection of the appellant’s evidence that he had benefitted from treatment and was confident that he would not re-offend as a result. [26] Under the correct timeline, the appellant’s evidence, including his claim of confidence, would have been more credible. Properly understood, the evidence demonstrated that the appellant had received sexual offender treatment in 2000, within three years of his previous offence in 1998. Furthermore, the propensity had not demonstrated itself in the 15 years after treatment. (ii) Weight of the Similar Fact Evidence [27] Second, the factual error affected the weight of the similar fact evidence. This is because treatment could be viewed as an “intervening event” that diminished the probative value of the similar fact evidence: see R. v. Handy , 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 132. The trial judge correctly recognized this in his reasons, stating that treatment “logically does tend to diminish the significance of the situational-specific propensity”. However, the factual error would have impacted the trial judge’s assessment of treatment as an intervening event. [28] In analyzing the similar fact evidence, the trial judge considered how much time had passed between incidents of demonstrated propensity. As discussed, the trial judge reasoned that the propensity exhibited in the similar fact offences was still a factor in 2015 because of the factual error that the appellant received sexual offender treatment in 2008, only seven years before. This line of reasoning would not have been available on the correct timeline of treatment in 2000. In actuality, the appellant had received treatment eight years earlier, meaning 15 years had passed between treatment and the charged offences – more than twice as long as the trial judge believed. This is a material length of time that would have affected the trial judge’s assessment of the appellant’s evidence that he had benefitted from treatment, and relatedly, the extent to which treatment could be considered an “intervening event” that diminished the probative value of the similar fact evidence. Conclusion [29] I am satisfied that the appellant has met the “stringent standard” for determining whether a misapprehension of evidence led to a miscarriage of justice. In the present case, the similar fact evidence played a significant role in the conviction, as did the trial judge’s discounting of the appellant’s evidence concerning the effect of the sexual offender treatment. The misapprehension of the evidence was material and played an essential part in the trial judge’s reasoning process. In cases predicated on credibility, such as this one, “it is essential that the findings be based on a correct version of the actual evidence”: Morrissey , at p. 541. [30] I would allow the appeal and order a new trial. “G.R. Strathy C.J.O.” “I agree. Trotter J.A.” B.W. Miller J.A. (dissenting): [31] I have had the benefit of reading the reasons of the Chief Justice and have come to a different conclusion about the materiality of the trial judge’s misapprehension of evidence, which compels a different result. As explained below, I do not believe that the trial judge’s misapprehension of evidence played an essential role in the reasoning process resulting in the conviction. Accordingly, I would dismiss the appeal. [32] As I understand the trial judge’s reasons, nothing in his reasoning turns on the year in which the appellant undertook sex offender treatment at the Ontario Correctional Institute. The trial judge considered a number of factors in rejecting the appellant’s testimony and determining his guilt beyond reasonable doubt. One of these was the similar fact evidence, and I agree that this evidence carried considerable force. But several other factors led the trial judge to conclude that elements of the appellant’s testimony were “self-serving or exaggerated or contradictory.” All of these factors undermined the appellant’s evidence. Conversely, the trial judge found the complainant to be credible and reliable, despite the inconsistencies in her testimony. The evidence, taken together, convinced the trial judge of the appellant’s guilt beyond reasonable doubt. [33] With respect to the similar fact evidence, the trial judge drew a powerful conclusion from the appellant’s prior convictions: “there is virtually no chance that coincidence explains [the appellant] having a criminal record for touching prepubescent females on the vagina while they are in his care and sleeping, and this complainant making the same allegation.” He reached this conclusion, notwithstanding the appellant’s voluntary enrollment in a sex offender treatment program, for two reasons. [34] First, he started from the common sense assessment that such a treatment program would not be completely effective. That is, it could not be asserted that because the appellant took a course for sexual offenders, that he would therefore no longer pose a risk of re-offending. And indeed the appellant did not assert that. He argued that he was “a changed man” as of 1998, as a result of his convictions for sexual offences. On his evidence, it was his new awareness and resolve in 1998, as a result of his convictions, that meant he would not re-offend. He testified that the OCI course was beneficial, but he did not credit the course with bringing out the dramatic change that he said occurred. The trial judge of course rejected the appellant’s evidence that the 1998 convictions wrought the changes he said they did. [35] Second, the trial judge concluded that because the appellant testified that he benefitted from sex offender treatment, then he must, at the time he chose to undertake the treatment, still have had a propensity towards touching the vaginas of young girls for his sexual gratification. If he had no such propensity, the trial judge reasoned, he would not have chosen to undertake the sexual offender course. [36] From the evidence of the prior convictions and that the appellant implicitly acknowledged a propensity towards touching young girls for sexual gratification, the trial judge reasoned to a further conclusion: that the “situation-specific propensity” that manifested itself in the sexual assaults of 1985-87 and 1990-97 – a considerable stretch of time – was still operative when the appellant took the course at OCI, which the trial judge incorrectly dated to 2008. [37] Nothing turns, in my view, on the fact that the trial judge misstated the year in which the appellant conceded that he still had a propensity towards sexual touching of young girls. It was one data point in an extended analysis. Whether it was 2000 or 2008 (as the trial judge misstated), the salient point was that it was a long-held propensity (whether it was 15 years or 23 years), and the fact of having completed a treatment program at OCI (whenever it was completed) did not blunt its significance. [38] On appeal, the appellant argues that if the trial judge had used the correct date of 2000, the appellant would have benefitted from the additional datum that the appellant had not had any negative incidents for a 15-year period post incarceration, rather than 7 years. This would have bolstered the appellant’s credibility in arguing that he did not commit the offence. [39] I do not find this argument persuasive. It was not advanced at trial. The appellant did not argue at trial that the length of time that had passed since he took the OCI course on sexual assault – and more specifically his positive behaviour during that time – blunted the similar fact evidence. The fact of having taken the OCI sexual assault course was accepted as being capable, as a matter of logic, of diminishing the significance of the similar fact evidence. The fact that it did not diminish its significance, in the trial judge’s final analysis, was not due to how little time had passed since the course was completed or how long the appellant had been of apparently good behaviour. It was because the trial judge doubted the efficacy of the course – a course that the appellant himself did not significantly credit for making him a changed man and unlikely to re-offend. [40] In any event, the appellant’s conviction did not hinge on the similar fact evidence. [41] First, the trial judge had ample reason to disbelieve the appellant, quite apart from the similar fact evidence. He testified that he did not understand the wrongfulness of touching a child’s vagina because of his own experiences as a victim of sexual assault, but then admitted in cross-examination that he knew it was wrong to sexually assault a child. He testified that a car accident rendered him unable to sustain an erection and experience sexual gratification as before, but conceded in cross-examination that, as he had fathered a child since the accident, he could indeed sustain an erection. He testified that he told the complainant’s mother about his convictions before they had a child together, which the trial judge found to be implausible in the circumstances and contradicted by the mother’s own testimony that his disclosure was far more general than he claimed. [42] Second, the trial judge subjected the complainant’s testimony to scrutiny before accepting her core allegations. He found her to be credible “in the sense of wanting to tell the truth.” He determined that her mother did not influence her reporting of the sexual assault, whether deliberately or inadvertently. Although her mother asked the complainant leading questions about whether her father had touched her vagina, she also offered the complainant innocent explanations for her father’s behaviour, such as that he was cleaning her. The complainant rejected these explanations. The trial judge found the complainant’s allegations to be specific enough to not be figments of her imagination. While the trial judge noted several aspects of the complainant’s evidence that were factually incorrect, such as her age at the time of the incidents and her behaviour following the incidents, he properly recognized the peripheral nature of these inconsistencies, given the complainant’s age. I reject the appellant’s arguments with respect to the complainant’s testimony. [43] For all of these reasons, I cannot agree that the trial judge’s error meets the test set out in R. v. Lohrer , 2004 SCC 80, [2004] 3 S.C.R. 732. The appellant has not demonstrated that the error “figured prominently in the reasoning process which led to crucial findings of credibility and reliability”: Morrissey (1995), 22 O.R. (3d) 514, at p. 541. Nor has he shown that it played “an essential part not just in the narrative of the judgment but ‘in the reasoning process resulting in a conviction’”: Lohrer , at para. 2, citing Morrissey (1995), at p. 541. [44] As the central thrust of the appeal focuses on the trial judge’s misapprehension of the evidence, I would dismiss the appeal. Released: “GS”     MAR 24 2020 “B.W. Miller J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)      any of the following offences; (i)       an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)      two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)      In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)      at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)      on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)      In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)      An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. White, 2020 ONCA 207 DATE: 20200316 DOCKET: C60260 Feldman, Pardu and Roberts JJ.A. BETWEEN Her Majesty the Queen Respondent and Tyler White Appellant Geoff Haskell, for the appellant Christopher Webb, for the respondent Heard: February 26, 2020 On appeal from the sentence imposed by Regional Senior Justice Michelle Fuerst of the Superior Court of Justice, on September 24, 2014, with reasons reported at 2014 ONSC 5543. Roberts J.A.: A. Overview [1] On September 24, 2014, the sentencing judge declared the appellant a dangerous offender and imposed an indeterminate sentence. [2] The appellant appeals the dangerous offender designation, arguing the sentencing judge made reversible errors in her interpretation and application of the dangerous offender criteria under ss. 752 and 753(1)(a)(i) of the Criminal Code , R.S.C. 1985, c. C-46. If the designation is upheld, the appellant submits that based on his rehabilitative strides since his incarceration in 2014, he should receive a determinate sentence of four years followed by a ten-year long-term supervision order (“LTSO”). [3] For the reasons that follow, I would dismiss the appeal. B. BACKGROUND [4] On May 22, 2012, the appellant pleaded guilty to the offences of sexual interference, child luring and making child pornography involving a 15-year-old girl. [5] The circumstances of these offences are not disputed. In the Fall of 2010, the appellant’s girlfriend at that time put the complainant in touch with the appellant. The complainant and the appellant communicated over the internet and by text. The appellant was 24 years old at that point and learned the complainant was 15 years old and a virgin. He told the complainant he really wanted to meet her. They eventually met at a coffee shop. They went back to the appellant’s apartment where he took off their shirts and kissed. The appellant asked if she wanted to take off her pants and she declined. He also told her that he wanted to have sex with her. She declined, became fearful, and left the apartment. [6] They continued to text every day, with the appellant initiating the majority of the time. Periodically, the appellant would ask if the complainant wanted to get a hotel room to have sex. On two occasions the appellant met up with the complainant and they kissed. Eventually, the appellant provided her with a cell phone. He asked her to send him naked pictures of herself on it, which she did. He replied with pictures of himself, including one of his penis. The complainant’s mother eventually found the cell phone, brought her to the police and convinced her to cooperate with the investigation. [7] Prior to these offences, the appellant had amassed a lengthy criminal record, spanning over a decade. It includes a prior conviction for sexual assault against a 14-year-old girl whom he had met online and numerous prior convictions for violent offences against his previous domestic partners. [8] The respondent brought an application to have the appellant declared a dangerous offender and asked the court to impose an indeterminate sentence. The appellant disputed that he was a dangerous offender or a long-term offender. However, if the court found otherwise, he submitted that the appropriate sentence was a further four-year custodial sentence, followed by a ten-year LTSO. [9] The parties’ psychiatric experts were largely in agreement that the appellant was at a high risk to reoffend both violently and sexually and that he met the criteria for a dangerous offender from a psychiatric point of view. Their jointly held opinion included the following factors: · the appellant’s high scores on the various and standard actuarial diagnostic tests that measure risk for violent and sexually violent recidivism; · his diagnosed antisocial personality disorder with prominent psychopathic traits; · his substance abuse of drugs and alcohol over the years that contributed to his violent actions; and · his significant history of violent criminal behaviour. [10] The experts parted company only on the issue of sentence. The respondent’s expert opined that the appellant’s ability to change his pattern of behaviour, given his diagnoses, was poor, and that even if he followed the recommended intensive treatment, there was little prospect his risk could be managed successfully in the community within ten years of close supervision under a LTSO. He recommended an indeterminate sentence. The appellant’s expert agreed with the treatment and supervision recommendations made by the respondent’s expert but believed the appellant’s risk could be managed with substantial treatment and a plan of control. He opined that the appellant’s antisocial traits and aggressive behaviour would attenuate over time. He recommended the imposition of a determinate sentence of two to four years, followed by a LTSO for ten years. [11] In her victim impact statement, the complainant said that the offences have had a big impact on her life. She described experiencing anxiety and depression, struggling with drugs and having difficulty with intimacy and showing affection. She has contemplated suicide. [12] The complainant testified at the sentencing hearing. She testified that she would not have gone to the police but for the fact that her mother had found the cell phone the appellant had given her. She also testified to having experienced other difficulties in her life, such that she could not be sure to what extent she can attribute her problems to the appellant. However, she did attribute issues with anxiety, depression and relationships to him. [13] The sentencing judge accepted that the appellant was a dangerous offender and preferred the opinion of the respondent’s expert that the appellant’s high risk to reoffend could not be reasonably managed in the community. She imposed an indeterminate sentence. C. Issues [14] The appellant challenges the dangerous offender designation and indeterminate sentence on the following grounds: 1. The sentencing judge erred in finding that the predicate offence was a “serious personal injury offence” as defined in s. 752 of the Criminal Code . 2. The sentencing judge erred in considering, for the purposes of s. 753(1)(a)(i) of the Criminal Code , the appellant’s previous history of domestic violence against his adult partners as part of the pattern of the appellant’s “repetitive” behaviour. 3. If the dangerous offender designation is upheld, although it was open to the sentencing judge to impose an indeterminate sentence in 2014, the fresh evidence admitted on consent demonstrates that it is unreasonable. [15] The appellant submits a determinate sentence of four years followed by a ten-year LTSO should be imposed. D. Analysis [16] In determining whether the appellant is a dangerous offender, the sentencing judge was required to consider the criteria under ss. 752 and 753(1) of the Code . For this appeal, the relevant provisions are as follows: 752 In this Part, serious personal injury offence means (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving: (i)  the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). 753 (1)    On application made under this part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i)  a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour …. [17] The appellant focussed his submissions on the conviction for sexual interference under s. 151 of the Criminal Code . He does not challenge that the predicate sexual interference offence carries a potential sentence of ten years or more because the Crown proceeded by way of indictment. Rather, he challenges the sentencing judge’s finding that the predicate offence was a “serious personal injury offence” and her finding of a repetitive pattern of behaviour for the purposes of s. 753(1)(a)(i). (1) The Sentencing Judge Did Not Err in Finding the Predicate Offence Was a Serious Personal Injury Offence [18] The appellant argues that the sentencing judge erred in finding that the predicate offence was a “serious personal injury offence”. [19] He argues first that the sentencing judge effectively characterized the offence of sexual interference as a deemed serious personal injury offence under s. 752(b) notwithstanding its exclusion from that subsection, and disputes that the specific circumstances of the offence in this case constituted “violence” for the purposes of the definition of a serious personal injury offence. [20] He argues further that the sentencing judge erred in concluding that the predicate offence resulted in “severe psychological damage” for the purposes of that definition. [21] I am not persuaded by either of these submissions for the following reasons. (a) The Sentencing Judge Did Not Err in Finding the Predicate Offence Involved the Use of Violence [22] The Supreme Court of Canada considered the meaning of the term “use or attempted use of violence” for the purposes of the definition of serious personal injury offence in R. v. Steele , 2014 SCC 61, [2014] 3 S.C.R. 138. Violence in this context encompasses acts in which a person intentionally causes, attempts to cause or threatens to cause harm, rather than simply acts involving the application of physical force: Steele , at para. 58. [23] The sentencing judge’s finding that violence was used in the predicate offence is a factual determination: R. v. Lebar , 2010 ONCA 220, 101 O.R. (3d) 263, at para. 50. Absent error there is no basis for appellate intervention. [24] In considering whether the predicate offence of sexual interference involved the use or attempted use of violence, the sentencing judge recognized that sexual abuse of children is inherently violent in its effects, even in the absence of tangible physical violence, and that it is likely to cause significant psychological harm. Her conclusion is well supported. [25] In R. v. Stuckless , this court concluded that sexual abuse of children is an act of violence, representing the “use of compulsion” against a population that is inherently vulnerable: (1998) 41 O.R. (3d) 103 (C.A.), at p. 117. Similarly, in Bossé v. R. , Deschênes J.A. found that having a child engage in sexual acts through persistent requests, as opposed to physical acts or threats, remained a violent act: 2005 NBCA 72, 288 N.B.R. (2d) 82, at para. 10. [26] This court has recognized that devastating consequences often follow from the sexual abuse of children, including both immediate psychological harm, and ongoing issues that may persist into adulthood: R. v. Woodward , 2011 ONCA 610, 107 O.R. (3d) 81, at para. 72, citing R. v. D.(D.) (2002), 58 O.R. (3d) 788 (C.A.). Notably, the harm caused to a child complainant may not always be fully apparent at the time of sentencing but may manifest later when the child reaches adulthood: R. v. G.R.B. , 2013 ABCA 93, 544 A.R. 127, at para. 14. [27] Unsurprisingly then, offences of sexual interference have been found to constitute serious personal injury offences even in the absence of immediate physical harm. See for example: R. v. T.L.P. , 2017 BCSC 1868, at para. 225; R. v. Groves , 2015 ONSC 2590, at para. 91, aff’d 2020 ONCA 86. [28] Further, it is clear from her reasons that the sentencing judge did not simply conclude that because the predicate offence was sexual interference it was inherently violent. Rather, she went on to consider the particulars of the offence in issue before she concluded that she was satisfied beyond a reasonable doubt that the specific predicate offence involved the use of violence against the victim: There is no dispute that the touching of [the complainant] by Mr. White was not accompanied by threats of harm or the use of overt force. Mr. White, however, was 24 years old at the time, while [the complainant], as he well knew, was only 15. She could not in law consent to the sexual touching. Mr. White knew that, as a result of his prior conviction in Edmonton. The circumstances of the offence against [the complainant] show the exploitative and abusive nature of Mr. White’s conduct, including the manner in which he and she “met” over the internet; the fact that he knew she was only 15 and a virgin but initiated sexual contact with her the very first time they met and suggested that they have sexual intercourse; that on subsequent occasions he again suggested that they have sexual intercourse even though she had previously declined; that he provided her with a cell phone; and that he convinced her to send him naked pictures of herself and he sent her a picture of his penis, over that cell phone. [29] While the sentencing judge did not have the benefit of Steele , her approach is consistent with the Supreme Court’s endorsement of a harm-based, rather than force-based, interpretation of the term “violence”, which is not defined in the Criminal Code . [30] In my view, the predicate offence, viewed in the context of the appellant’s exploitative and abusive pursuit of a 15-year-old girl, as found by the sentencing judge, involved intentionally causing harm and therefore constitutes violence for the purpose of the definition of “serious personal injury offence” under s. 752 of the Criminal Code . This is also consistent with Parliament’s recognition by its enactment of s. 151 of the Criminal Code that “sexual interference is inherently harmful to both children and society” and that children are in need of protection: R. v. Hajar , 2016 ABCA 222, 338 C.C.C. (3d) 477, at para. 1. In R. v. A.B. , 2015 ONCA 803, 333 C.C.C. (3d) 382, at para. 45, Feldman J.A. described the gravamen of the offence of sexual interference as follows: [T]he protection for children is not simply from sexual exploitation but from any sexual contact or the invitation to sexual contact with adults. Parliament viewed the protection to be necessary because of the inherent power imbalance that undermines consent, and because of the physical and psychological consequences of a sexual encounter between a child and an adult stemming from that imbalance. [31] I see no error in the sentencing judge’s analysis. I agree that the predicate offence involved the use of violence. (b) The Sentencing Judge Did Not Err in Finding the Predicate Offence Inflicted Severe Psychological Damage [32] Given that the predicate offence involved the use of violence, it is a serious personal injury offence. As a result, while not strictly necessary, for completeness I consider whether the trial judge erred in determining that the offence inflicted severe psychological damage. [33] I do not accept the appellant’s submission that there was no evidence that the appellant’s actions caused harm to the complainant as understood under clause (a)(ii) of the definition of serious personal injury offence in s. 752. The appellant relies on the cross-examination of the complainant that he says undermined her victim impact statement. [34] The sentencing judge was alert to the inconsistencies between the victim impact statement and the complainant’s evidence at the sentencing hearing. However, as she was permitted to do, the sentencing judge accepted that while the complainant could not attribute all her issues to the appellant, she found that his conduct “caused [the complainant] anxiety, depression, relationship problems and some fear, all of which constitutes severe psychological damage.” These findings are firmly rooted in the evidence that was before the sentencing judge. Moreover, I agree with the sentencing judge’s further conclusion that the appellant’s conduct “was likely to inflict severe psychological damage upon the victim”, which, as already noted, is well-founded in the jurisprudence. (2) The Sentencing Judge Did Not Err in Finding the Predicate Offence Formed Part of a Repetitive Pattern of Behaviour [35] With respect to the “pattern of behaviour”, the appellant concedes that the predicate offence and his prior conviction for sexual assault of a 14-year-old constitutes a pattern of behaviour. However, he argues that the sentencing judge, in finding a pattern of repetitive behaviour for the purposes of s. 753(1)(a)(i), erred by referring to his previous history of violence against his former, adult domestic partners when the particulars of that history are completely different from the two sets of offences against girls. [36] I disagree. It was open to the sentencing judge to rely on the appellant’s past history as reflecting “a failure on Mr. White’s part to recognize and observe boundaries in his relationships with females” and that this pattern of behaviour “is a manifestation of his antisocial personality disorder.” She correctly concluded: Mr. White’s pattern of repetitive behaviour, including the predicate offence, shows a failure to restrain his behaviour with females. It also shows a likelihood of causing injury to other persons, or inflicting severe psychological damage on other persons, through failure to restrain his behaviour in the future. [37] The sentencing judge’s conclusions are consistent with this court’s approach in R. v. Hogg , 2011 ONCA 840, 287 O.A.C. 82, to the meaning of a “pattern of repetitive behaviour”. As this court concluded, at para. 40, this pattern must contain “enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future”. I agree with the respondent’s submissions that the appellant’s history supports a general pattern of criminal misconduct against females with whom he has intimate relationships, and that this history speaks directly to his lack of amenability to treatment and management in the community. [38] Accordingly, I find no error in the sentencing judge’s designation of the appellant as a dangerous offender. The predicate offence was a serious personal injury offence, both because it involved the use of violence and because it inflicted severe psychological harm. The appellant constitutes a threat to the safety or well-being of others based on a pattern of repetitive behaviour that includes the predicate offence. (3) An Indeterminate Sentence Is Reasonable Despite the Fresh Evidence [39] The appellant concedes that given the record before her in 2014, the sentencing judge made no error in imposing an indeterminate sentence at that time. However, he argues that in light of the fresh evidence concerning his significant rehabilitative progress, he no longer represents an unmanageable risk to reoffend, warranting the substitution of a determinate sentence and a LTSO. [40] The fresh evidence consists primarily of the appellant’s affidavit. It speaks to his treatment and rehabilitation since commencing his sentence. In particular, the appellant has completed all available programming for violent and sex offenders, and his high school equivalency courses. He is currently housed in a “responsibility based unit” which requires him to be actively involved in his correctional plan; employed full-time; free of any misconducts; and free of drugs and alcohol. He is employed as a plumber’s assistant, which allows him entry into restricted areas and use of otherwise unauthorized tools. [41] On appeals of dangerous offender designations, this court may admit fresh evidence when it is in the interests of justice to do so: R. v. Sipos , 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 28; Criminal Code , ss. 759(7), 683(1). Here the fresh evidence was admitted on consent of the parties. [42] I am of the view that notwithstanding the fresh evidence, the sentencing judge’s decision to impose an indeterminate sentence was not unreasonable. An appellate court reviews the imposition of an indeterminate sentence for legal error and reasonableness: R. v. Sawyer , 2015 ONCA 602, 127 O.R. (3d) 686, at para. 29. While the appellant’s evidence shows progress within his highly structured custodial environment, in light of the entire record before the sentencing judge it falls considerably short of demonstrating that an indeterminate sentence is unreasonable. Specifically, the appellant’s evidence fails to address the forensic psychiatric evidence of both experts given on the dangerous offender application, including the actuarial risk assessment testing, that speaks to his unmanageable high risk of reoffending upon his release into the community. E. Disposition [43] I would dismiss the appeal. Released: March 16, 2020 (“K.F.”) “L.B. Roberts J.A.” “I agree. K. Feldman J.A.” “I agree. G. Pardu J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)      any of the following offences; (i)       an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)      two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)      In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)      at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)      on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)      In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)      An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Yong, 2020 ONCA 215 DATE: 20200316 DOCKET: C67719 Watt, Fairburn and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Darryl Anthony Yong Appellant Darryl Anthony Yong, acting in person Michael Fawcett, for the respondent Naomi Lutes, duty counsel Heard and released orally: March 10, 2020 On appeal from the conviction entered on November 14, 2018 and the sentence imposed on November 14, 2019 by Justice Beth A. Allen of the Superior Court of Justice. REASONS FOR DECISION [1] After a trial before a judge of the Superior Court of Justice sitting without a jury, the appellant was found guilty of counts of administering a noxious substance; invitation to sexual touching; and trafficking cocaine. The finding of guilt of trafficking was stayed. [2] The trial judge imposed a sentence of imprisonment for 21 months, which she reduced to 6 months after deducting credit for time spent in pre-sentence custody. The Background Facts [3] One day after school, the complainant, a relative who was then 11 years old, went to the appellant’s home. As they watched a movie, the appellant took out a glass tube with some white powder in it and lit it up. He told the complainant, that it was a “vape”. At his insistence, she inhaled the smoke. Twice. She felt dizzy. Her legs were shaky. Her throat burned. Her vision blurred. The white powder was cocaine, a substance later found in her system. [4] The appellant then asked the complainant to touch an area of his body around his thigh. He told her to keep moving her hand higher until she touched his penis. The touching was over the appellant’s clothes and lasted, by the complainant’s account, about three seconds. The appellant did not touch the complainant. [5] The appellant did not testify. He relied on a series of texts he sent and voicemail and telephone messages he left with the complainant’s mother. Among other submissions, trial counsel contended that the complainant, mimicking the behaviour of the appellant, lit up the cocaine-filled tube when the appellant was briefly absent from the apartment. Trial counsel also argued that the sexual conduct never occurred. Rather, the allegation was fabricated due to the influence, principally, of the complainant’s mother. The Appeal from Conviction [6] In this court, the appellant advances three grounds of appeal against conviction: i. that the trial judge materially misapprehended the evidence adduced at trial in three respects, each of which had to do with the complainant’s core allegations and the credibility of her testimony about them; ii. that the trial judge erred in her treatment of evidence of the appellant’s post-offence conduct; and iii. that the trial judge erred in her description and application of the mens rea for the offence of administering a noxious substance. [7] The misapprehensions of evidence alleged are threefold. They may be summarized as the complainant’s evidence about: i. whether she could leave the apartment; ii. whether she entered the appellant’s bedroom; and iii. the timing of her disclosure about the touching by the appellant. [8] In our view, the trial judge considered these alleged inconsistencies in the complainant’s testimony, and explained why she did not consider them to impact adversely on the complainant’s credibility, or the reliability of the core elements of her account. We defer to those findings. [9] Second, we see no error in the manner in which the trial judge dealt with the evidence of the appellant’s post-offence conduct. [10] Third, when the reasons of the trial judge are taken as a whole, her conclusion on the mens rea required to establish guilt of the offence of administering a noxious substance, do not reflect error. In particular, we are not persuaded, as the appellant contends, that she found guilt established on the basis of recklessness. The Appeal from Sentence [11] On the appeal from sentence, the parties are ad idem that the s. 161 order, as executed, does not accurately reflect the reasons of the trial judge. We agree and would allow the appeal to the following extent of amending in the formal order: i. paragraph (a), by adding the words “unless in the presence of one of the offender’s daughters”; ii. paragraph (b), by adding the words “unless the position of trust relates solely to one of the offender’s daughters”; iii. paragraph (c), by deleting the condition in its entirety; and iv. by inserting 10 years as the term of the order. Disposition [12] The appeal from conviction is dismissed. Leave to appeal sentence is granted and the appeal from sentence allowed to the extent of the variation of the terms of the s. 161 order. The appeal from sentence is otherwise dismissed. “David Watt J.A.” “Fairburn J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: RINC Consulting Inc. (Roustan Capital) v. Grant Thornton LLP, 2020 ONCA 182 DATE: 20200309 DOCKET: C66698 Brown, Huscroft and Nordheimer JJ.A. BETWEEN RINC Consulting Inc., c.o.b. as Roustan Capital and Walter Graeme Roustan, in his personal capacity as trustee of the Walter Graeme Roustan Trust Plaintiffs (Appellants/ Respondents by way of cross-appeal) and Grant Thornton LLP Defendant (Respondent/ Appellant by way of cross-appeal) M. Philip Tunley and Jennifer P. Saville, for the appellants/respondents by way of cross-appeal Peter Downard and Rachel Laurion, for the respondent/appellant by way of cross-appeal Heard: January 8, 2020 On appeal from the judgment of Justice James Diamond of the Superior Court of Justice, dated January 14, 2019, with reasons reported at 2019 ONSC 7725, 2019 ONSC 808, and 2019 ONSC 1844. Huscroft J.A.: overview [1] The appellants lost several million dollars when they sold their shares in Performance Sports Group (PSG) at a loss. They sued the respondent accounting firm, Grant Thornton LLP (GT), alleging that the loss was caused by GT’s refusal to complete a survey of PSG’s business practices the appellant Roustan had engaged the firm to conduct. Roustan argued that, had he known the results of the survey, he would have arranged to sell his shares well before PSG sustained the losses that caused its share price to tumble. [2] The trial judge concluded that although GT breached the contract to complete the survey, the appellants did not suffer any damages as a result of the breach. Thus, he dismissed the action and awarded GT $175,000 in costs, on the basis that it was the more successful of the two parties. [3] The appellants argue that the trial judge erred in finding that GT’s breach did not cause their loss and in failing to award damages for lost opportunity, share loss, special damages, and nominal damages. The respondent GT seeks leave to cross-appeal, arguing that the trial judge erred in awarding it only a portion of its costs on the basis that there was mixed success. [4] I would dismiss both the appeal and the cross-appeal for the reasons that follow. background [5] The appellant Roustan was the Chairman of the Board of PSG from 2008-2012. PSG is a sports equipment company that manufactured and sold Bauer hockey equipment. In 2014, Roustan owned approximately 1.4 percent of PSG’s common stock through the vehicle of a trust. [6] In January 2015, Roustan wrote to PSG’s then-current Chairman, requesting that he be re-appointed to the PSG Board of Directors. While his request was pending, PSG announced that it planned to become a retailer of hockey equipment, while continuing to supply products for sale by retail partners. Roustan strongly opposed this plan, and in May 2015 he retained GT to conduct a survey of ten of PSG’s major retail partners to obtain their views on PSG and its practices. Roustan intended to distribute GT’s report to PSG’s officers, directors, and shareholders at an upcoming meeting. [7] Roustan devised a 30-question survey for GT to administer, which among other things asked: whether the retailer had ever been asked by PSG to move any orders forward to an earlier quarter; whether the retailer trusted PSG to be both a product supplier and retail competitor at the same time; and whether the retailer trusted the CEO of PSG. The survey was to be answered in confidence and Roustan was not to be informed which retailers had given specific answers to the questions. The engagement letter [8] The appellant Roustan signed the engagement letter with GT on May 12, 2015. The letter included the following three provisions: [9] The “reputation clause”: In addition, Grant Thornton reserves the right, in whole or in part, to decline the performance of any Service(s) if, in the sole discretion of Grant Thornton, the performance of any of the Service(s) may cause Grant Thornton to be in violation of any applicable law, regulations, professional standards or obligations or which may otherwise result in damage to Grant Thornton's reputation. [10] The “termination clause”: Either The Company or Grant Thornton may terminate the Engagement upon fourteen (14) days prior written notice to the other party. In addition to the foregoing, Grant Thornton may also terminate the Engagement in the event of a breach of any term of the Engagement by The Company which is not cured by The Company within ten (10) days of receipt of written notice as to the breach. [11] The “limitation clause”: In any action, claim, loss or damage arising out of the Engagement, you agree that our liability will be several and not joint and several and you may only claim payment from us of a proportionate share of the total liability based on degree of fault as finally determined. The total liability assumed by us for any action, claim, loss or damage arising out of or in connection with the Engagement, regardless of the form of action, claim, loss or damage, be it tort, contract or otherwise, shall in no event exceed the aggregate of the professional fees paid to us under the terms of the Engagement. In addition, we shall not under any circumstances, be liable for any special, direct or consequential damages including, without limitation, loss of profit or revenue, failure to realize expected costs reductions or savings or similar losses of any kind. The conduct of the survey [12] By May 15, 2015, seven of ten retailers contacted by GT had replied to the survey. On May 18, 2015, PSG wrote to GT informing it that the survey “risked significant harm to PSG’s relationships with its retailers” and demanding that GT cease and desist with the survey. PSG also asked that it be provided with the identity of the shareholder for whom the survey was being conducted, a list of the retailers that had been contacted, the survey questions, and any reports or draft reports that had been prepared. [13] GT continued to perform the survey despite PSG’s letter, following up with an eighth retailer and beginning to prepare a draft report. On May 21, 2015, the Chairman of PSG sent an email to GT’s CEO. He stated that GT was “engaged in an effort to disrupt PSG’s business plans and retail relationships” on behalf of Roustan and expressed the view that the survey was motivated by PSG’s refusal to appoint Roustan to the Board, his opposition to PSG’s business plans, and his personal animosity. The Chairman of PSG wrote: The survey questions appear designed to advance Mr. Roustan's personal agenda and seem to be written in a manner to elicit negative responses from PSG's retailers, insinuating that PSG and its management are untrustworthy, sabotaging PSG's retail relationships, and fabricating support for Mr. Roustan's campaign against PSG's plans to open Bauer retail stores. Questions that ask whether PSG has been honest and by what percentage retailers intend to reduce their purchase from Bauer, for example, are consistent with an attack on the company, not a professional market survey that one would expect to receive from a firm such as Grant Thornton. Moreover, the public release of answers to these biased, illegitimate questions would pose significant risk to PSG's business relationships, business plans, and shareholder value. [14] On May 25, 2015, a representative of GT asked Roustan whether he would change the title of the report from “survey” to “questionnaire” and asked him not to disclose the report beyond PSG’s institutional shareholders. Roustan agreed to the first request but not the second. GT withdraws its services [15] On May 28, 2015 GT wrote Roustan, informing him that it was withdrawing its services and refunding the $2,000 deposit he had paid. Citing the reputation clause, the letter stated that the decision to terminate the agreement was reached after concluding that “continuing with this engagement will result in damage to Grant Thornton’s reputation”. Post-termination events [16] Roustan asked GT to release the results of its survey to him prior to his upcoming meeting with PSG even if its report was not complete, but GT refused to do so. Roustan then attempted to conduct his own survey of PSG’s retail partners using an online survey tool called “SurveyMonkey”. This survey used the same questions as the GT survey and five of PSG’s ten major retailers responded to it. Three of those five retailers answered that they had been asked to move orders to an earlier quarter, something Roustan regarded as “channel stuffing”. [17] Roustan attended a meeting with the PSG Board on June 5, 2015 but failed to convince the Board to abandon its proposed sales plan. PSG proceeded to implement the new sales plan in the late summer of 2015. On June 12, 2015, Roustan prepared a draft letter to PSG’s Board of Directors. The subject of that letter was “Possible Sales Manipulation”. Roustan outlined the informal survey of PSG’s retailers that he had conducted and mentioned concerns that had arisen from the survey, including the concern that PSG had asked several retailers to move orders forward into an earlier quarter. He said that this was “very alarming to me and I believe should be alarming to you.” The letter went on to say that he believed extreme discounting was taking place to make quarterly numbers. The impression, he said, was that PSG was improperly manipulating prices – in essence, running a Ponzi scheme of sorts – and further investigation was required. Roustan’s stockholding [18] Roustan did not sell any of his shares in PSG following his meeting with the Board. On the contrary, between the meeting on June 5, 2015 and November 30, 2015 he purchased additional PSG shares, taking advantage of a decline in PSG’s share price. [19] The price of PSG shares continued to drop in 2015. On March 18, 2016, PSG shares lost 66 percent of their value in one day, in response to a downward revision of PSG’s revenue and earnings guidance. Roustan liquidated his shares that month. PSG filed for protection under the Companies’ Creditors Arrangement Act , R.S.C., 1985, c. C-36 later that year. The trial judge’s decision [20] The appellants sued GT for breach of fiduciary duty and breach of contract, alleging that Roustan lost between $9.5 and $12.4 million as a result of the drop in PSG’s share price. [21] The trial judge dismissed the appellants claim against GT for breach of fiduciary duty. He found the parties’ relationship was contractual in nature and that GT had never undertaken to act in the appellants’ best interests or solely for his benefit. The trial judge declined to create a new type of fiduciary relationship. GT had no power over Roustan beyond the rights it had under its contract with him. It was simply carrying out a survey of questions he had written, and the vulnerability necessary to ground a fiduciary relationship did not exist. [22] However, the trial judge went on to conclude that GT had breached its contract in exercising its discretion to withdraw its services. He found that GT was not entitled to withdraw its services in accordance with its “reputation clause”, as it asserted in its May 28, 2015 letter. The trial judge rejected the submission that the survey was potentially defamatory of PSG and its CEO and that GT’s reputation would be at risk by participating in publication of the survey results. He found that nothing that occurred following the commencement of the survey should have come as a surprise to GT in any event. Specifically, GT knew that: Roustan opposed PSG’s proposed sales initiative and was seeking to obtain evidence to help him oppose it; Roustan intended to distribute the survey results at his meeting with the Board, so they would likely enter the public domain; PSG would have reacted unfavourably to this; and some of the survey questions, which GT had approved, potentially disparaged both PSG and its CEO. [23] Accordingly, the trial judge found that GT had not exercised its discretion to terminate the contract reasonably and in good faith. All of the reasons proffered by GT for relying on the reputation clause were known to GT before the contract was entered. As the trial judge put it: “At the outset, GT knew, underwrote and assumed the very risks which it now seeks to resurrect as grounds for terminating the Engagement Letter.” The implicit threat of litigation by PSG was not a new fact that allowed GT to exercise its discretion anew. [24] The trial judge found, further, that GT could not rely on the limitation clause in the contract limiting its exposure to damages to the aggregate of the fees paid to it under the contract, as the limitation clause did not apply to the particular factual circumstances of the dispute. However, he concluded that the appellants were not entitled to damages for PSG’s breach of contract in any event. [25] The appellants’ theory of damages that was presented at trial was that if GT had disclosed the survey results to Roustan – and in particular, that five of the eight major retailers had confirmed that PSG was engaging in misrepresenting the strength of their business by channel stuffing – then Roustan would have begun to liquidate PSG shares at that time, resulting in a much smaller loss. However, the trial judge did not find that the relevant question in the survey led to the channel stuffing conclusion. There was no evidence that product orders had in fact been moved, that deep product discounts had been promised, or that there was a repeat practice of doing so. [26] The trial judge found that the claim failed even looking at the issue from Roustan’s subjective perspective. Roustan purchased additional shares of PSG after the June 5, 2015 meeting, even though he had information from his SurveyMonkey survey that was essentially the same as the GT survey would have revealed. The trial judge noted that, subjectively, Roustan viewed the SurveyMonkey information as credible. The r. 59.06(1) motion [27] Following release of the decision, the appellants brought a motion under r. 59.06 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, arguing that the trial judge had failed to adjudicate four issues raised in their action: nominal damages, special damages, damages for purchase of new shares, and damages for loss of chance. [28] The trial judge held that the appellants’ theory of damages was based on “fictitious losses” and that an award of nominal damages should be rejected as well, citing this court’s decision in Rosenhek v. Windsor Regional Hospital, 2010 ONCA 13, 257 O.A.C. 283, leave to appeal refused, [2010] S.C.C.A. No. 89, for the proposition that “an award of nominal damages presumes that there are perhaps some unquantified damages which a party has failed to prove”. The trial judge rejected the appellants’ claim for special damages because the appellants failed to establish a causal link between the services performed for the appellants and GT’s breach of contract. He refused to entertain the appellants’ request for damages for the purchase of the additional shares, because he found that Roustan purchased the shares for his own strategic investment goals in a declining market. Finally, the trial judge refused to entertain the appellants’ request for damages for loss of an opportunity to secure resignations of PSG Board members and to convince PSG to abandon its new sales strategy, a theory not pursued at trial and for which there was insufficient evidence in any event. Costs [29] The trial judge concluded that there was mixed success in the proceeding. He found that GT had breached the contract but also that no damages flowed from any of his findings. He rejected the other claims made by the appellants, both at trial and on their r. 59.06 motion. In summary, the trial judge concluded that GT was the more successful party and was entitled to a portion of its costs on a partial indemnity basis. [30] Taking all these considerations into account, and noting the numerous issues, the complexity of the case, and the size of the appellants’ claim, the trial judge awarded GT costs fixed at $175,000. He specifically rejected GT’s claim for disbursements relating to expert opinion evidence that he had rejected as irrelevant and inadmissible. Issues on appeal [31] The appellants advance two principal arguments on appeal. First, they say that the trial judge erred in determining causation of the loss in the value of the shares that they incurred. Second, the trial judge erred in failing to award damages for lost opportunity, share loss, special damages, and nominal damages. The causation issue [32] The appellants assert that the trial judge made several palpable and overriding errors. Specifically, the trial judge: · failed to find that affirmative answers to the “channel stuffing” question could lead to a conclusion that it was occurring as a practice; · wrongly found that the SurveyMonkey information was substantially or essentially the same as the information that GT would have provided had it completed its report; and · wrongly found that Roustan subjectively believed that the SurveyMonkey results were credible information, despite finding that Roustan was a sophisticated investor and that he purchased additional shares on margin after receiving the SurveyMonkey results. [33] I see no such errors. [34] First, it was for the trial judge to interpret the meaning and significance of the “channel stuffing” question. He found that the relevant question did not ask whether the retailers were offered deep discounts; it did not ask whether the retailers had in fact moved any orders into an earlier quarter; and it did not establish a practice in any event, because a retailer could have answered yes to the question while only having been asked to move an order forward on a single occasion. These findings were open to the trial judge. Moreover, it was for the trial judge to determine what, if anything, was to be inferred from the retailers’ answers to the survey. He was not obliged to accept either Roustan’s view that PSG was engaged in channel stuffing or his evidence as to the effects of engaging in channel stuffing. [35] Second, the trial judge was entitled to conclude that despite GT’s failure to complete the survey, Roustan obtained essentially the same information as a result of the SurveyMonkey survey. The trial judge noted that 60 percent of the retailers who responded to the SurveyMonkey survey answered the “channel stuffing” question affirmatively, whereas 62.5 percent of the respondents to the GT survey answered affirmatively. The conclusion that the information is essentially the same cannot be characterized as an error, much less a palpable and overriding error that would justify overturning the trial judge’s decision. [36] Third, the trial judge cannot be said to have erred in concluding that Roustan believed the SurveyMonkey information was credible. The trial judge rejected Roustan’s evidence that he could not rely on the SurveyMonkey answers because the retailers had been threatened by PSG, noting that no evidence had been presented to show that PSG threatened any major retailers. Moreover, the draft letter Roustan prepared, but did not send to the Board, amply supports the conclusion that he had a subjective belief that the SurveyMonkey information was credible. In that letter, Roustan describes the information that several retailers have been asked to move orders forward as “very alarming to me”, adding that he had “received credible information which led me to believe that extreme discounting is taking place”, which he speculated could be PSG “dumping products”. The letter went on to state that the information gave rise to the perception that PSG was improperly manipulating prices – “conduct [that] emulates a Ponzi scheme of sorts”. [37] The appellants parse this letter, emphasizing the tentative nature of some of its language. But the trial judge’s interpretation cannot be impugned on this account. The trial judge’s finding as to Roustan’s subjective belief is amply supported by the record. [38] The appellants’ argument also fails for another reason. The appellants argued that if GT had disclosed the survey results, they would have begun to liquidate their shares at that time. But as the trial judge concluded, this was wholly inconsistent with Roustan’s action in buying a further 163,962 PSG shares on margin following his unsuccessful meeting with PSG on June 5, 2015. The appellants argue that it would have been irrational for a sophisticated investor like Roustan to purchase additional shares if he believed the SurveyMonkey information. This argument seeks to make a virtue out of Roustan’s improvident decision to purchase additional shares of PSG. The purchase of additional shares does not undermine the trial judge’s findings, let alone demonstrate palpable and overriding error. [39] At the end of the day, the appellants simply invite this court to relitigate the case. The appellants go so far as to assert that all the findings made in support of the trial judge’s causation conclusion are tainted by palpable and overriding error. None of them are, and there is no basis for this court to interfere with them. The r. 59.06 motion [40] The appellants argue that the trial judge erred in dismissing their motion under r. 59.06 by applying the wrong test. This was not a case in which they alleged that the judge erred in his reasons, nor did the appellants seek to vary matters that had been decided. The motion concerned four matters that had not been adjudicated upon. In these circumstances, the appellants say, the trial judge had a broad discretion to grant relief on their motion if it was in the interests of justice to do so. [41] The trial judge did not apply the wrong test. He recognized that r. 59.06 was to be used for the purpose of correcting errors in a judgment, not in the reasons, as this court explained in Meridian Credit Union Ltd. v. Baig , 2016 ONCA 942. In that case, the court explained that there is no jurisdictional impediment to a court reconsidering a decision if an order has not been taken out and entered, but a party seeking to re-open an appeal faces a high hurdle. As the court noted at para. 7, citing Mujagic v. Kamps , 2015 ONCA 360, 125 O.R. (3d) 715, leave to appeal refused, [2015] S.C.C.A. No. 330, a trial judge may re-open an appeal prior to the entering of an order “sparingly and only where it is clearly in the interests of justice” to do so. [42] In this case, given that a judgment had not been taken out and entered, it was open to the trial judge to entertain the appellants’ motion. He proceeded to consider and reject all the grounds raised by the appellants. I will address the alleged errors in the order raised by the appellants. Loss of opportunity [43] The appellants argue that the trial judge erred in refusing to entertain their alternative claim for loss of opportunity to use the GT report to secure resignations from the PSG Board of Directors, thereby changing the direction of the Board and avoiding the share loss later incurred. The appellants submit that they were entitled to damages for the loss of a chance, which they assess at least 50 percent of the loss of share value – approximately $4.7 million. The appellants acknowledge an “inadvertent failure” to address this matter in their closing submissions. [44] The respondents point out that the appellants did not claim this relief in their 72-page written argument or oral submissions and characterize the motion as an attempt to reopen final argument. [45] I agree. [46] The trial judge cannot be faulted for not addressing a matter that the appellants admitted was not pursued at trial or in their written or closing oral submissions, despite it being raised in their pleadings. The trial judge found that because the matter was not before the court, it was not a matter that had been overlooked by the court, and as a result he was not prepared to entertain the request. But the trial judge provided cogent reasons for concluding that the claim would have failed in any event. He found that there was insufficient evidence in the record to support a claim of damages for a loss of opportunity. Specifically, he found that “[n]othing was going to change the course of PSG’s new sales strategy”. That finding is fatal to the claim for damages for loss of opportunity and there is no basis to interfere with it. Moreover, as the respondent notes, Roustan’s evidence was that if he had the GT survey information, he would have sold his shares before his meeting with the Board. He could not get damages for the loss of an opportunity that he would not have pursued. Damages for the loss of value on the 2015 share purchase [47] The appellants argue that GT should be liable at least for the damages resulting from Roustan’s purchase of additional shares on margin, because he would not have purchased these shares if GT had completed the survey. [48] There is no merit to this submission. The trial judge’s finding that Roustan purchased the shares despite his concerns that “channel stuffing” was occurring is entitled to deference and is dispositive of this claim for damages. Special damages for professional fees [49] The appellants submit that they were entitled to approximately $300,000 for professional fees they incurred in bringing the action. They say that the trial judge misconstrued the case law and failed to give effect to Roustan’s uncontroverted evidence concerning the professional services he retained in pursuing the action. [50] The trial judge found that it was difficult, if not impossible, to find a causal link between the services performed for the appellants and GT’s breach of contract. Moreover, the trial judge found that the appellants evidence was “far from clear and cogent, and lacking in particulars.” In short, he found that the appellants failed to meet their onus to establish that they were entitled to special damages. This was the trial judge’s call to make and there is no basis to interfere with it on appeal. Nominal damages [51] Finally, the appellants argue that the trial judge erred in refusing to award nominal damages. The appellants say that, having established a valid contract and a breach, they were entitled to nominal damages, as such damages are “always available”: Mars Canada Inc. v. Bemco Cash & Carry Inc. , 2018 ONCA 239, 140 O.R. (3d) 81, at para. 33; see also Place Concorde East Ltd. Partnership v. Shelter Corp. of Canada Ltd. (2006), 270 D.L.R. (4th) 181 (Ont. C.A.), at para. 76. [52] It is well established that nominal damages may be awarded where a breach of contract has been established but damages flowing from that breach have not. Nominal damages are a trivial amount – typically one dollar – and serve a symbolic rather than a compensatory purpose: they mark a breach of contract in the same way that a declaration would. See, generally, S.M. Waddams, The Law of Damages , 5th ed. (Toronto: Thomson Reuters, 2012), at c. 10.10-10.30; James Edelman, McGregor on Damages , 20th ed. (London: Thomson Reuters (Professional) UK Limited, 2018), at c. 12-001-12-013. [53] The award of nominal damages might be important in some cases. For example, in the context of an ongoing contract in order to clarify future performance obligations, or to vindicate a party’s rights. But there are no such special circumstances in this case. The appellants did not bring their action merely to seek a judicial statement or declaration that the respondent had breached the contract; they brought their action with the intention of claiming over $9 million in damages as compensation for losses they claim to have suffered as a result of the respondent’s breach of contract. [54] The trial judge declined to exercise his discretion to award nominal damages on the basis that the appellants failed to prove that the respondent’s breach of contract caused their losses. The trial judge appears to have thought that the court’s discretion to award nominal damages depends on the existence of unquantified damages. It does not. [55] But the trial judge’s error is of no moment, for the award of nominal damages would have served no purpose in this case. The appellants appear to assume that an award of nominal damages would have turned their substantive lack of success into a basis for awarding them costs. It would not. Even if the trial judge had awarded the appellants nominal damages, it would still be within the discretion of the trial judge to make no award of costs to the appellants, or to make the award of costs to the respondent that he did on the basis of the extreme disparity between “the amount claimed and the amount recovered in the proceeding”: r. 57.01(1)(a). The cross-appeal [56] The respondent’s cross-appeal seeks leave to appeal the trial judge’s costs order. The respondent says that the trial judge erred in finding that 1) the reputation clause in the engagement letter did not authorize its withdrawal from the engagement; 2) it was not entitled to rely on the limitation clause in the contract; and 3) its expert evidence was irrelevant and inadmissible. These errors, the respondent says, caused the trial judge to conclude that success was mixed, and to award it $175,000 instead of $485,736.42 on a partial indemnity basis. [57] The first two arguments do not concern the costs order. Instead, they concern the trial judge’s reasons for dismissing the action and, as such, they are not properly the subject of a costs appeal. The only basis on which leave to appeal the costs order could be granted is the respondent’s third argument, which concerns the trial judge’s decision not to award special damages for the expert evidence. [58] The test for leave to appeal costs is well established. Costs awards should be set aside on appeal only if the trial judge erred in principle or made an award that is plainly wrong: Hamilton v. Open Window Bakery Ltd. , 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. The trial judge found that the expert evidence was of “little to no evidentiary value”, as it was both irrelevant and arguably inadmissible. There is no error in principle here, nor is the award plainly wrong. The award of special damages was a matter within the trial judge’s discretion and his decision is entitled to deference. The trial judge gave clear reasons for fixing the costs in the amount that he did. [59] I would deny leave to appeal the costs order. CONCLUSION [60] I would dismiss the appeal and cross-appeal. [61] In light of the divided success, each party should bear its own costs. Released: March 9, 2020 (“G.H.”) “Grant Huscroft J.A.” “I agree. David Brown J.A.” “I agree. I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Romania v. Boros, 2020 ONCA 216 DATE: 20200320 DOCKET: C66606 Strathy C.J.O., Miller and Trotter JJ.A. BETWEEN The Minister of Justice and the Attorney General of Canada on Behalf of Romania Respondent and Clara Eva Boros Applicant Julianna A. Greenspan and Brad Greenshields, for the applicant Adrienne Rice, for the respondent Heard: March 4, 2020 On judicial review of the decision of the Hon. David Lametti, ordering the applicant’s surrender, dated February 19, 2019. REASONS FOR DECISION Introduction [1] Romania seeks the extradition of Clara Eva Boros for fraud and forgery offences allegedly committed between 1993 to 1998. [2] Ms. Boros was committed for extradition on April 21, 2017. The Minister of Justice (“the Minister”) signed a surrender order on February 19, 2019. The applicant applies for judicial review of the Minister’s order under s. 57 of the Extradition Act , S.C. 1999, c. 18. For the following reasons, we allow the application and remit the case back to the Minister for further consideration. Background [3] Ms. Boros, a Romanian citizen at the time, was charged with offences related to embezzlement and forgery in the course of her employment. It was alleged that she committed these offences between 1993 and 1998, resulting in losses to her employer of roughly CAD $100,000 at the time (estimated to be approximately $217,000 today). [4] Ms. Boros was employed as a cashier and was responsible for making deposits on behalf of her employer into a corporate bank account. It is alleged that she falsified documents (i.e., deposit slips and company ledgers), enabling her to skim off some of the money that ought to have been deposited to the credit of her employer. The employer claims that it had to obtain an interest-bearing loan to cope with the loss and that there has been no recovery. [5] In the Authority to Proceed (ATP), issued under s. 15 of the Extradition Act , the Minister lists the Canadian offences corresponding to the alleged Romanian offences as fraud ( Criminal Code , R.S.C. 1985, c. C-46, s. 380) and forgery (s. 368(1)). [6] Ms. Boros arrived in Canada on September 24, 1998 and sought refugee status, which was granted on October 26, 1999. She obtained permanent resident status on December 27, 2000, and Canadian citizenship on August 15, 2005. Ms. Boros is currently 54 years old, married, and has three children. [7] The applicant was tried and convicted in absentia in Romania on January 10, 2000. On the same day she was sentenced to 10 years’ imprisonment, fined, and ordered to pay restitution. Her appeal from sentence was dismissed on April 13, 2000. As the extradition judge observed in her Reasons for Judgment ( Romania v. Boros , 2017 ONSC 1656), at para. 10, Ms. Boros was represented by counsel throughout the proceedings in Romania. However, she also notes that Ms. Boros denied being properly summoned. Documentation from the Romanian court states that Ms. Boros was “legally summoned” and “has failed to appear in court, as she has been absconding from both prosecution and from trial”. [8] There is a serious dispute as to when the Romanian authorities became aware that Ms. Boros was in Canada. Ms. Boros takes the position that, by virtue of a September 23, 1998 police statement given by a manager of the applicant’s former employer (Ola Ioan), Romanian authorities were aware that she was in Canada at that time. In that statement Ms. Ioan said: “from unofficial sources the cashier Boros Clara is assumed to be in Canada attempting to abscond from the offence committed.” In fact, Ms. Boros arrived in Canada the very next day, on September 24, 1998. The respondent asserts that Romania only learned of Ms. Boros’ whereabouts as a result of receiving an August 11, 2008 Interpol notification. The Extradition Hearing [9] On December 4, 2008, the Minister of Justice received provisional materials from Romania seeking Ms. Boros’ extradition. An ATP was issued on May 13, 2015. An ex parte summons was not served on Ms. Boros until November 16, 2016. This was roughly 18 months after the issuance of the ATP, and almost eight years after Romania’s request. [10] In thorough reasons, the extradition judge concluded, at paras. 34-36, that there was sufficient evidence to establish a prima facie case that the extradition crimes listed in the ATP were committed: see Extradition Act , s. 29(1)(a). The extradition judge considered other arguments advanced by Ms. Boros, including whether a stay should be granted for an abuse of process because of the delay in seeking her extradition. The extradition judge declined to stay the committal order on this basis. As she said, at para. 60: As the cases above demonstrate, a lengthy delay on the part of a foreign government, without any impact on the fairness of the extradition hearing, does not constitute an abuse of process warranting a stay of proceedings. This is so even when the requesting state is aware of the whereabouts of the person sought, and the person was convicted and sentenced in absentia . While I am sympathetic to the respondent’s predicament of being sought for extradition years after having settled in Canada, I find that the respondent has not demonstrated a negative impact on the fairness of the extradition hearing…. [11] Ms. Boros was ordered committed for extradition. She has not appealed this order. The Decision to Surrender Ms. Boros [12] Since her committal, Ms. Boros has made numerous submissions to successive Ministers of Justice, requesting that they exercise their discretion not to order her surrender. These submissions have variously related to the following issues: the delay by Romania and Canada in the extradition process; Ms. Boros’ personal circumstances; poor Romanian prison conditions; Ms. Boros’ medical conditions that require ongoing treatment; Ms. Boros’ Hungarian-Roma minority status that is said to attract persecution in Romania; the stark disparity between Romanian and Canadian sentences; and the lack of integrity of the in absentia trial and sentencing proceedings in Romania. [13] In a lengthy letter (20 pages), the Minister rejected each of these claims and provided reasons. Based on his conclusions, the Minister determined that it would be appropriate to surrender Ms. Boros for extradition. In terms of the delay occasioned in the proceedings, the Minister said, “in my view, this is not one of those clearest of cases where the overall delay was occasioned by, or constitutes, conduct that is so offensive to notions of fair play and decency that surrender would undermine the extradition process”. Referencing the language of s. 44(1)(a) of the Extradition Act , the Minister concluded that the applicant’s surrender “would not be unjust or oppressive”; with regard to the Charter , it would not “shock the conscience of Canadians or unjustifiably violate the principles of fundamental justice”. [14] The Minister ordered that Ms. Boros be surrendered. The Arguments on the Judicial Review Application [15] Ms. Boros submits that “the Minister exercised his discretion unreasonably in concluding surrender would not be unjust or oppressive ( Extradition Act , s. 44(1)(a)) and contrary to s. 7 of the Charter , having regard to the 15-year delay between the in absentia foreign proceedings and the Authority to Proceed”. This submission encompasses both the time it took Romanian authorities to request Ms. Boros’ extradition (8 years from when the offences were discovered), as well as Canada’s delay in issuing an ATP (7 years after Ms. Boros’ extradition was requested by Romania). Ms. Boros also relies on the additional 18 months that elapsed between the issuance of the ATP and the summons. [16] Ms. Boros submits that, in relation to the delay in Romania, the Minister failed to make appropriate inquiries of Romanian officials to properly resolve the conflicting evidence concerning when Romania first became aware that she was in Canada. With respect to Canada’s delay, Ms. Boros contends that this lengthy time period is not properly accounted for and the manner in which the Minister addressed the issue lacks transparency. [17] The respondent submits that there was no untoward delay on the part of the Romanian government. It acted promptly after learning of Ms. Boros’ location upon receiving the August 11, 2008 Interpol notification. Moreover, it takes the position that the delay at the Canadian end was not unreasonable, and certainly not sufficient to prevent the applicant’s extradition. Analysis [18] On an application for judicial review under the Extradition Act , the Minister’s surrender decisions are to be afforded substantial deference and assessed on a standard of reasonableness. In Lake v. Canada (Minister of Justice) , 2008 SCC 23, [2013] 1 S.C.R. 761, LeBel J. described the applicable standard, at para. 41: Reasonableness does not require blind submission to the Minister’s assessment; however, the standard does entail more than one possible conclusion. The reviewing court’s role is not to re-assess the relevant factors and substitute its own view. Rather, the court must determine whether the Minister’s decision falls within a range of reasonable outcomes. To apply this standard in the extradition context, a court must ask whether the Minister considered the relevant facts and reached a defensible conclusion based on those facts. [Emphasis added.] Moreover, in conducting this type of review, this court must acknowledge the Minister’s “superior expertise in Canada’s international relations and foreign affairs”: see India v. Badesha , 2017 SCC 44, [2017] 2 S.C.R. 127, at para. 39. [19] In its recent decision in Canada (Minister of Citizenship and Immigration v. Vavilov , 2019 SCC 65, the Supreme Court considered the nature of the reasonableness standard of review. As part of its analysis, the majority addressed transparency in decision-making and its place within a reasonableness review framework. As the majority said, at paras. 13, 15, and 95 of its reasons: Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review. . . . In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place. That being said, reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it . It would therefore be unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party. [Emphasis added.] We return to the issue of transparency below when evaluating the Minister’s response to claims of unreasonable delay by the Romanian authorities, and the delay in Canada. [20] As a preliminary matter, it is clear that s. 11(b) of the Charter has no direct application to extradition proceedings. However, delay is among the relevant factors the Minister may take into account under s. 44(1)(a) of the Extradition Act : see United States of America v. Cavan , 2015 ONCA 664, 329 C.C.C. (3d) 485, at para. 46. In order to foreclose surrender, the delay must amount to an abuse of process: see Argentina v. Mellino , [1987] 1 S.C.R. 536, at pp. 547-548; United States of America v. Allard , [1987] 1 S.C.R. 564, at p. 571. [21] In his letter of February 19, 2019, the Minister acknowledged that delay in seeking extradition is a relevant factor. The Minister wrote: “I have reviewed the delay in seeking Ms. Boros’ extradition and conclude that it does not constitute an abuse of process.” [22] The Minister referenced the conflicting evidence as to when the Romanian authorities knew that the applicant was in Canada. He considered the police statement given by Ms. Boros’ former manager on September 23, 1998. The Minister wrote: The Romanian authorities were clearly aware of Ms. Boros’ residence in Canada as of 2008. The evidence presented in the ROC is unequivocal on that point. The brief speculation of Ms. Ioan in her statement to police investigators in 1998 is not evidence that the government of Romania had knowledge of Ms. Boros’ residence in Canada. There is no other evidence to suggest that Romania was aware of Ms. Boros’ location before 2008. [Emphasis added.] [23] This passage conveys two ideas. First, Ms. Ioan’s statement amounted to mere speculation about Ms. Boros’ whereabouts. Second, even though Ms. Ioan’s statement was given to a police officer investigating criminal offences, it was not evidence that the government of Romania knew of her whereabouts. [24] We accept Ms. Greenspan’s submission that the Minister acted unreasonably in purporting to resolve this issue without making inquiries of Romanian officials concerning knowledge of Ms. Boros’ whereabouts. It was never properly explained why Ms. Ioan’s statement to the police was not some evidence that, as early as September 23, 1998, Romanian officials had knowledge that Ms. Boros had travelled to Canada. [25] Given Ms. Ioan’s said that she “assumed” that Ms. Boros was in Canada, it was not unfair to characterize this information as speculative in nature. Ms. Rice for the Respondent also argues that Ms. Ioan’s statement was inaccurate because Ms. Boros was not in Canada at the time. That is true – Ms. Boros did not land in Canada until the next day. While the statement was technically inaccurate, it was remarkably prescient. [26] There is no indication that Romanian authorities took any steps to follow up on this information. While it would appear that the Interpol notification in 2008 prompted the Romanian government to make its extradition request a few months later, this does not speak to the question of whether any efforts were made to follow up on the very helpful Ioan statement, made 10 years earlier. More importantly, the Minister appears to have made no inquiries on this issue. This type of information could not reasonably be obtained by Ms. Boros. Out of fairness to Ms. Boros, and the integrity of the process, it is incumbent upon the Minister to make inquiries and get to the bottom of this troubling issue. [27] In reaching this conclusion, we note that the Minister had his officials make inquiries of the Romanian authorities about numerous other matters (e.g., the conditions of confinement to which Ms. Boros will be subjected; her access to medical treatment while incarcerated; whether Ms. Boros would be at risk of persecution in Romania; whether Ms. Boros has the right to request a re-trial if returned to Romania; and whether the enforcement of Ms. Boros’ prison sentence is time-barred). Yet, there was no effort to address the dispute discussed above. The failure to make this inquiry undermines the reasonableness of the Minister’s decision. [28] In terms of the delay between Romania’s request of December 4, 2008, and the issuance of the ATP on May 13, 2015, Ms. Boros submits that the Minister provided no meaningful explanation for the delay. She argues that the Minister’s approach to this issue lacks transparency. Ms. Greenspan argues that the Minister did not properly explain the delay and merely “parroted” language from the Supreme Court of Canada’s decision in Mellino . We set out below the relevant paragraphs of Mellino and the Minister’s letter: Mellino , at para. 23 Minister’s letter 23. In assessing the issue, a court must not overlook that extradition proceedings must be approached with a view to conform with Canada's international obligations . The courts have on many occasions reiterated that the requirements and technicalities of the criminal law apply only to a limited extent in extradition proceedings. One cannot view delay resulting from the complexity involved in dealing with activities that reach across national boundaries and involve different systems of law and several levels of bureaucracies in the same way as that in local prosecutions. This is especially so when one considers that extradition proceedings are but a small part of the many and variegated responsibilities of diplomatic officials. It is interesting that the time schedule set forth in article XIV has been described as hectic and criticized as too onerous. [Citations omitted.] Between December 4, 2008, and the issuance of the ATP in 2015, my officials worked with the Romanian authorities to prepare extradition request materials in English that conform to Canadian legal requirements . This delay is attributable to the complex , time-consuming, and expensive dialogue of treaty partners working together to overcome differences in language, resources and legal systems . Romania has a judge-led process for making extradition requests. The materials generated by this process, which are often lengthy as they are in this case, require translation. This process is often slow. Revisions and supplements to materials can be lengthy undertakings in light of the differences between Canadian and Romanian administrative approaches to extradition. [29] We are not persuaded that the Minister merely “parroted” Mellino as Ms. Boros claims. However, we are not satisfied that the Minister addressed this concern transparently. The above-quoted passage from the Minister’s letter covers a long period of time, but sheds very little light on what happened. This general approach denies Ms. Boros the opportunity to understand why the process took so long. It also deprives this court of the ability to gauge the reasonableness of the Minister’s decision in terms of whether his officials could have advanced this file more expeditiously and what efforts were made, if any, to encourage Romanian officials to act with diligence in responding to requests from its Canadian counterparts. Moreover, the 18-month delay between the issuance of the ATP and the summons is not explained. The combined Canadian delay of nearly 8 years is not addressed beyond an implicit general claim that these matters take a long time. In our view, this is inadequate. [30] The delay between Ms. Ioan’s statement of September 23, 1998 and the issuance of the summons on November 15, 2016 – more than 18 years – has not been properly investigated, nor properly explained. In the circumstances, the surrender order cannot stand. On the existing record, we are unable to determine whether the decision to order Ms. Boros’ surrender was reasonable. More information is required before we can properly conduct this analysis. Disposition [31] Accordingly, the application for judicial review is allowed and the case is referred back to the Minister for reconsideration in light of these reasons: see Extradition Act , 57(6). [32] We respectfully request that the Minister make inquiries of the Romanian authorities as to when its officials first became aware that Ms. Boros resided in Canada, especially in light of the police statement given by Ms. Ioan on September 23, 1998. After these inquiries are complete, it would be appropriate to disclose the results to Ms. Boros and permit her to make submissions. [33] We further direct the Minister to provide a detailed explanation for Canada’s delay following the issuance of the ATP and leading up to the issuance of the summons. “G.R. Strathy C.J.O.” “B.W. Miller J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Rubner v. Bistricer, 2020 ONCA 226 DATE: 20200317 DOCKET: C65323 Feldman, Pepall and Miller JJ.A. In the Matter of the Appointment of a Litigation Guardian for Eda Rubner and The Substitute Decisions Act , 1992 BETWEEN Joseph Rubner (also known as Yossi Rubner) and Marvin Rubner, in their capacity as Joint Attorneys for property acting under a Continuing Power of Attorney for Property granted by Eda Rubner dated January 12, 2003 Applicants/Respondents and Alexander Bistricer , Brenda Bistricer , Eda Rubner, in her personal capacity, in her capacity as a Trustee of the Bistricer/Rubner Family Trust, and in her capacity as Bare Trustee through Eda Rubner Realty a sole proprietorship in the Lower Fourth Joint Venture, Michelle Levinson and 975273 Ontario Limited Respondents/ Appellants Anne Posno and Amy Sherrard, for the appellants, Alexander Bistricer and Brenda Bistricer David Steinberg, for the respondent Brahm Rosen in his capacity as Litigation Guardian for Eda Rubner Arieh Bloom, for the respondents Marvin Rubner and Joseph Rubner in their capacity as Joint Attorneys for Property of Eda Rubner John Adair, for the respondent Joseph Rubner Ian C. Matthews, for the intervenors on the appeal Mattamy (Sixth Line) Limited, Mattamy (Oak) Limited, Mattamy (Penlow) Limited, 1214850 Ontario Inc., Mattamy Realty Limited, Ruland Realty Limited, and Bratty BuildinG Heard: November 28, 2018 On appeal from the judgment of Justice Frederick L. Myers of the Superior Court of Justice, dated March 22, 2018, with reasons reported at 2018 ONSC 1934, and from the costs order, dated May 14, 2018, with reasons reported at 2018 ONSC 3038. COSTS ENDORSEMENT [1] The parties have now provided written submissions following release of the court’s decision on the appeal. [2] The appellants and respondents have agreed that as success was divided, there should be no costs of the appeal. [3] With respect to the costs of the summary judgment motion, the respondents submit that they are entitled to their costs, but on the partial indemnity scale ($152,890.55) rather than the substantial indemnity ordered by the motion judge. The appellants submit that they are entitled to costs on the partial indemnity scale ($100,000) of the application brought by the respondents as it was dismissed by the decision of this court. [4] Dealing first with the appellant, Alex Bistricer, although he was fully successful on the appeal and all claims against him were dismissed, because the successful argument of bare trust was not argued on the motion but only on the appeal, we are satisfied that there should be no order as to costs of the summary judgment motion. [5] For the appellant, Brenda Bistricer, the application against her was dismissed, but a number of findings made by the motion judge were not set aside, which had the effect of split success from a financial point of view. While she was found to be entitled to the funds in the disputed bank accounts held in trust, she is not entitled to any future distributions that were not held in trust. As success was divided, there will be no costs of the summary judgment motion as between the appellant Brenda Bistricer and the respondents. [6] The litigation guardian seeks his costs of the appeal and the costs awarded to him by the motion judge from the appellants. The litigation guardian was aligned with the respondents and supported their position on the summary judgment motion and on the appeal. The only separate claim made against him was for an accounting of any funds received from the disputed bank accounts. That claim was dismissed by the motion judge and not pursued on the appeal. The litigation guardian is not entitled to any costs of the appeal. He is entitled to partial recovery of costs on the summary judgment motion fixed in the amount of $40,000 inclusive of disbursements and HST. “K. Feldman J.A.” “S.E. Pepall J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Rubner v. Rubner, 2020 ONCA 195 DATE: 20200311 DOCKET: C67273 Tulloch, Benotto and Jamal JJ.A. BETWEEN Marvin Rubner Applicant (Appellant) and Joseph Rubner Respondent (Respondent) Markus Kremer and Graham Splawski, for the appellant Sean M. Grayson, for the respondent Heard: March 5, 2020 On appeal from the judgment of Justice Laurence A. Pattillo of the Superior Court of Justice, dated July 11, 2019, with reasons reported at 2019 ONSC 4110. REASONS FOR DECISION [1] The sole issue on this appeal is whether two brothers, Marvin and Joseph Rubner, reached a binding settlement agreement of the litigation between them relating to their respective interests in a real estate business. Marvin says that he and his brother had a deal; Joseph disputes this. [2] The application judge sided with Joseph’s position, based on his interpretation of documents and emails relating to the alleged agreement and evidence of the surrounding circumstances preceding it. [3] The application judge found that a handwritten document of “Deal Points” signed by Joseph, which was provided to Marvin and his counsel on July 31, 2018, limited the authority of Joseph’s counsel to renegotiate the Deal Points; it merely authorized Joseph’s counsel to negotiate comprehensive minutes of settlement implementing them. The application judge found that this limitation of authority arose from Joseph’s handwritten notation on the Deal Points: “I confirm my agreement to the deal points herein, and give authority to [my counsel] to negotiate comprehensive Minutes of Settlement.” [4] Marvin never signed back the Deal Points, and instead responded with what his counsel described at the time as additional “material terms”. Joseph’s counsel then purported to accept the new terms without Joseph’s authorization. [5] The application judge also supported his conclusion that Marvin and Joseph had not concluded a settlement agreement with: (1) evidence of a course of dealings showing that “both Marvin and Joseph understood that they each had to agree to the Deal Points or material terms of the settlement and they each had to sign the document setting out the Deal Points”; and (2) evidence showing that “Marvin’s counsel was aware of Joseph’s counsel’s limitation of authority.” [6] The application judge therefore held that “no agreement was reached between Marvin and Joseph on the ‘Deal Points’ or material terms of the settlement. There was no mutual intention to agree and accordingly no binding settlement was reached between them”. [7] Marvin now asserts that the application judge erred in his appreciation of the evidence by: (1) misunderstanding the nature and effect of the communications between Marvin’s counsel and Joseph’s counsel; (2) failing to consider the evidence of Joseph’s counsel that when he informed Marvin’s counsel that the parties were “ ad idem ”, he was communicating on Joseph’s behalf; and (3) finding that Joseph limited the authority of his counsel to renegotiate the Deal Points. In particular, Marvin asserts that the application judge applied the wrong legal test and should have asked whether Joseph’s counsel had ostensible rather than actual authority to conclude the settlement on Joseph’s behalf. [8] We do not accept these arguments. The application judge’s interpretation of the Deal Points in light of the surrounding circumstances to determine whether the parties reached a binding settlement agreement is a question of mixed fact and law reviewable only for palpable and overriding error: Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50, 52. Marvin has shown no such error. The application judge’s decision is therefore entitled to appellate deference. [9] We are not persuaded that the application judge failed to apply the correct legal test for ostensible authority. He cited, at paragraph 29 of his reasons, this court’s decision in Dick v. McKinnon , 2014 ONCA 784, at para. 4, as authority for the settled proposition that a solicitor of record has the ostensible authority to bind his or her client and that opposing counsel is entitled to rely on that authority, absent some indication to the contrary. He went on, at paragraphs 30 to 33 of his reasons, to apply that principle to the evidence in this case. He found an “indication to the contrary” regarding the ostensible authority of Joseph’s counsel in Joseph’s handwritten notation on the Deal Points, cited above at paragraph 3, that limited his counsel’s authority to negotiating the minutes of settlement, rather than the Deal Points, and in the evidence referred to at paragraph 5 above. The application judge’s application of the settled test for ostensible authority to his findings of fact is entitled to appellate deference. [10] The appeal is dismissed. Costs are payable to Joseph in the agreed amount of $10,000, inclusive of HST and disbursements. “M. Tulloch J.A.” “M.L. Benotto J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Thistle v. Schumilas, 2020 ONCA 212 DATE: 20200316 DOCKET: C66432 Watt, Hourigan and Trotter JJ.A. BETWEEN Jason Michael Thistle Plaintiff (Respondent) and James Schumilas, Jr. , WCS Financial Services, Cinaber Financial Inc. and Bridgeforce Financial Group Inc. Defendants ( Appellant ) Marie Sydney, for the appellant Sean Zeitz, for the respondent Heard: November 29, 2019 On appeal from the order of Justice Catrina D. Braid of the Superior Court of Justice, dated December 21, 2018. COSTS ENDORSEMENT [1] In our reasons dated February 6, 2020, we allowed the appeal and ordered that the respondent pay the appellant’s costs of the appeal in the all-inclusive sum of $10,000. [2] We further ordered that the appellant is entitled to his costs of the motion and cross-motion in the Superior Court. We directed that if the parties cannot agree on the quantum of those costs, they may make brief written submissions to this court. No costs submissions have been filed. [3] To the extent that there are costs of the action below other than the costs of the motion and cross-motion, the appellant is prima facie entitled to those costs given that the respondent’s action has been dismissed. If the parties cannot agree on those costs, they may make written submissions to this court on the issues of entitlement and quantum of those costs. [4] The appellant’s costs submissions on all issues shall be served and filed by March 24, 2020 and shall be no more than three pages, plus a bill of costs. The respondent’s costs submissions shall be served and filed by March 31, 2020, and shall be no more than three pages, plus a bill of costs. Any reply submissions, which shall be no more than two pages, shall be served and filed by April 6, 2020. “David Watt J.A.” “C.W. Hourigan J.A.” “G.T. Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Vahle v. Global Work & Travel Co. Inc., 2020 ONCA 224 DATE: 20200318 DOCKET: C67199 Simmons, van Rensburg and Harvison Young JJ.A. BETWEEN Nora Vahle, Harold Vahle, Drazena Mamic and Estate of Marija Vahle, deceased Plaintiffs (Respondents) and Global Work & Travel Co. Inc. Defendant (Appellant) Elizabeth Bowker and Christopher Afonso, for the appellant Allan Morrison and Vibhu Sharma, for the respondents Heard: February 20, 2020 On appeal from the order of Justice Paul B. Schabas of the Superior Court of Justice, dated June 13, 2019, with reasons reported at 2019 ONSC 3624. REASONS FOR DECISION [1] In the autumn of 2015, two sisters, aged 19 and 20, decided they wanted to travel to Thailand to teach English. In August of 2016, they flew to Thailand to participate in a "Teach in Thailand" experience arranged through the appellant, a British Columbia company with offices and employees in Vancouver. [2] After completing their teaching course, the sisters were assigned to different towns and given motor scooters for transportation. [3] Tragically, while riding together on a motor scooter on a day off in October 2016, the sisters were struck by another motorist and seriously injured. The younger sister succumbed to her injuries; the older sister continues to suffer the lasting effects of the accident. [4] The respondents commenced an action in Ontario against the appellant, claiming damages for breach of contract, breach of fiduciary duty, negligence, negligent misrepresentation and other torts. [5] The motion judge dismissed a motion to dismiss or stay the action based on lack of jurisdiction simpliciter and forum non conveniens . [6] The motion judge applied the test from Club Resorts Ltd. v. Van Breda , 2012 SCC 17, [2012] 1 S.C.R. 572, considering the various presumptive connecting factors. Among other things, the motion judge found a presumptive connecting factor in the form of torts committed in Ontario. He concluded that the appellant had not rebutted the presumption of a “real and substantial connection” between the subject matter of the litigation and Ontario. After determining that Ontario had jurisdiction simpliciter , he concluded that the appellant had failed to establish that another forum was clearly more appropriate. [7] On appeal, the appellant concedes that the motion judge summarized correctly the law relating to jurisdiction simpliciter and forum non conveniens . However, the appellant argues that the motion judge erred in his application of the relevant principles. [8] We reject the appellant's arguments that the trial judge erred in relying on the torts of negligent misrepresentation and negligence having been committed in Ontario as presumptive connecting factors; in holding that the respondents met the “good arguable case” threshold; and in concluding that the appellant had not rebutted the presumption of a real and substantial connection between the subject matter of the litigation and Ontario. [9] While acknowledging that the claims for negligent misrepresentation may require particulars, the motion judge found there was a good arguable case supporting a presumptive factor in respect of the claim for harm suffered arising from the appellant's alleged misrepresentations to the sisters in Ontario about the "Teach in Thailand" program. These included representations that the appellant would ensure the living, safety, security and emergency needs of the sisters. In addition, claims concerning the appellant's post-accident conduct in Ontario concerning contacting the sisters' parents could support a claim in negligence. [10] We see no error in the motion judge's conclusion that the appellant failed to rebut the real and substantial connection created by the presumptive connecting factors established by a tort committed in Ontario. In order to rebut a presumptive connecting factor, a defendant must “establish facts which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them”: Van Breda , at para. 95. The motion judge noted the potential weakness of internet representations as a connecting factor. However, he pointed out that the appellant was well-aware that it was attracting Ontario clients through representations made in Ontario. He also considered the potential minimal role of a travel agent when this type of accident occurs in a foreign jurisdiction, but concluded that the allegations concerning the appellant were that it provided, and represented that it provided, a much more far-reaching service than that of a simple travel agent. [11] We also see no error in the motion judge’s application of the “good arguable case” test. The appellant argues that the motion judge erred because (1) the facts pleaded by the respondents were not capable at law of constituting the cause of action pleaded (concerning the claims for negligent misrepresentation, the appellant says that the older sister acknowledged on cross-examination that all she was told in telephone calls with the appellant was that she “would be safe”, that this amounts to no more than a “forecast” that is not at law capable of being a misrepresentation and that the motion judge’s reliance on the appellant’s omission to advise the sisters about the requirement to ride motor scooters and the dangers associated with that activity is not actionable as a misrepresentation); and (2) on the evidence before the motion judge, any viable claims against the appellant that are connected to Ontario are not supported. [12] We disagree. As the motion judge pointed out at para. 26 of his reasons, while there is an evidentiary burden on the plaintiff to substantiate the presumptive connecting factors, especially where there is insufficient particularity in the statement of claim with respect to the jurisdictional facts, “this does not mean that the motion judge is to assess the merits of the case, but he or she must at least be satisfied that there is a “good arguable” case supporting a presumptive factor ” (emphasis added), taking account of both the allegations in the statement of claim and the evidence, where evidence is led . [13] The requirement that there be a “good arguable case supporting a presumptive factor” is easily met in this case. The sisters were in Ontario when they responded to internet advertisements from Global. At least some of the misrepresentations relied on are alleged to have been made to them in Ontario, and before they left for Thailand. Further, the motion judge’s finding that there was evidence that may support the misrepresentations pleaded and that they occurred in Ontario is supported by the record. While the appellant contends that some (not all) of the alleged misconduct was that of a Thai company, XploreAsia and other entities for which it is not responsible, at para. 13 of his reasons, the motion judge noted that the appellant’s evidence in that regard was deficient. In any event, it is unnecessary on a jurisdiction motion for the court to determine whether all of the alleged misconduct was that of the appellant, as pleaded, or that all of the alleged misconduct is connected to Ontario: Van Breda, at para. 99. It is also unnecessary and inappropriate to treat a jurisdiction motion as a r. 21 motion or to weigh evidence going to the merits of the litigation. Rather, the questions on a jurisdiction motion are whether the statement of claim asserts the core elements of a cause of action known to law and appears capable of amendment to cure any pleadings deficiencies and whether the claimant has established a good arguable case that the cause of action is sufficiently connected to Ontario to found jurisdiction. As this court noted in Ontario (Attorney General) v. Rothmans Inc. , 2013 ONCA 353, 115 O.R. (3d) 561, at para. 106, leave to appeal refused, [2013] S.C.C.A. No. 327: [O]n a jurisdiction motion, the motion judge is not required to subject the pleadings to the scrutiny applicable on a rule 21 motion. So long as a statement of claim advances the core elements of a cause of action known to law and appears capable of being amended to cure any pleadings deficiencies such that the claim will have at least some prospect of success, the issue for the motion judge is whether the claimant has established a good arguable case that the cause of action is sufficiently connected to Ontario to permit an Ontario court to assume jurisdiction. It is necessary for the purpose of a jurisdiction motion for the court to determine whether there is a “real and substantial connection” between Ontario and the claims, when considered as a whole. [14] Finally, on our review of his reasons, the motion judge conducted a thorough forum non conveniens analysis and considered all the relevant factors. Given the nature of the claims the respondents are advancing, in particular, negligent misrepresentation and negligence in Ontario, we see no basis on which to interfere with his conclusion. It is not for us to reweigh his assessment of the relevant factors. [15] For these reasons the appeal is dismissed. Costs to the respondents in the sum of $25,000, inclusive of disbursements and HST. “Janet Simmons J.A.” “K. van Rensburg J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Van Huizen v. Trisura Guarantee Insurance Company, 2020 ONCA 222 DATE: 20200318 DOCKET: C66699 Hoy A.C.J.O., van Rensburg and Roberts JJ.A. BETWEEN John Van Huizen and Hastings Appraisal Services Plaintiffs (Respondents) and Trisura Guarantee Insurance Company Defendant (Appellant) Heather Gray, for the appellant R. Steven Baldwin, for the respondents Heard: October 9, 2019 On appeal from the order of Justice Patrick Hurley of the Superior Court of Justice dated February 15, 2019, with reasons reported at 2018 ONSC 4828, [2019] I.L.R. I-6088. Roberts J.A.: A. OVERVIEW [1] The appellant insurer appeals from the order of the motion judge dismissing its motion for summary judgment and granting judgment to the respondents. The motion judge found that the appellant had a duty to defend the respondents under the policy of professional liability insurance issued by the appellant. [2] I would allow the appeal. In my view, the motion judge erred in his interpretation of the insurance contract between the appellant and the respondent, Mr. Van Huizen. Specifically, the motion judge erred by effectively treating a master policy as the entire insurance contract for all members of the Appraisal Institute of Canada (the “AIC”). This misconstruction caused the motion judge to conflate two insurance contracts that shared standard terms set out in a master policy. [3] According to the terms of the insurance contract between the appellant and Mr. Van Huizen, there was no duty to defend in the circumstances of this case. However, I would not grant summary judgment to the appellant. The issue of whether the appellant had a duty to defend the respondents under another insurance contract between the appellant and the allegedly negligent appraiser was not decided by the motion judge nor raised as an issue on this appeal. It requires determination on a complete record after full argument. B. Background [4] The appellant issued the professional liability insurance policy number TPL1003399 (the “master policy”) to the AIC for the relevant period. The master policy relates to claims made against AIC members, as well as their personal corporations, employers, and the AIC, for the negligent provision of professional appraisal services by members. [5] The defence and settlement section of the master policy reads, in part: The Insurer shall have the right and the duty to defend, with respect to such insurance as is afforded by this Policy, any Claim made against an Insured …. [6] Coverage under the master policy is extended to individual members of the AIC by way of individual application. On assessment of the individual member’s risk, acceptance of the individual’s application, and payment of the premium, an individual certificate of insurance is issued to that member. [7] Mr. Van Huizen is a professional appraiser and member of the AIC. He carries on business through a corporation, Inpho Limited, operating under the business style of the other respondent, Hastings Appraisal Services. The respondents were insured under the master policy and an individual certificate of insurance, number AIC 02408, issued by the appellant to Mr. Van Huizen (the “Van Huizen insurance contract”). [8] David Barkley was a professional appraiser and a member of AIC. He was also insured under the master policy and his own individual certificate of insurance, number AIC 03188, issued by the appellant (the “Barkley insurance contract”). Mr. Barkley passed away in October 2016. [9] In March 2008, under the auspices of Hastings Appraisal Services, Mr. Barkley appraised a residential property at the request of Sandra Behlok Insurance Agency Ltd. [10] Three claims were brought in relation to this appraisal (collectively the “Behlok proceedings”). Two actions commenced by Behlok alleged that the respondents, as the employers or principals of Mr. Barkley, were vicariously liable for his negligently performed appraisal of the residential property. In his third party claim, Mr. Barkley claimed contribution and indemnity from the respondents as his employers or principals for any damages payable to the client. [11] Mr. Van Huizen made a claim under the Van Huizen insurance contract in relation to the Behlok proceedings. The appellant denied coverage, partly because the respondents sought coverage under the Van Huizen insurance contract and not the Barkley insurance contract. While acknowledging that Mr. Van Huizen was an insured as defined in the master policy under the Van Huizen insurance contract, the appellant took the position that the Van Huizen insurance contract did not provide coverage for the alleged professional negligence of Mr. Barkley. With respect to the Van Huizen and Barkley insurance contracts, the appellant maintained that the respondents were not Mr. Barkley’s employer and therefore were not covered. [12] The respondents commenced the underlying action against the appellant for a declaration that the appellant had a duty to defend and indemnify them under the Van Huizen insurance contract in response to the Behlok proceedings. [13] The appellant brought a motion for summary judgment to dismiss the respondents’ action against it on the ground that it had no duty to defend them under that contract in response to a claim involving Mr. Barkley’s appraisal. C. DECISION Below [14] By the time the appellant’s motion was heard, the Behlok proceedings were settled, save for the disposition of costs. As a result, the motion judge had to consider only whether the appellant had a duty to defend the respondents and indemnify them for their defence costs. [15] The motion judge reviewed the pleadings, interpreted the definitions under the master policy, but did not consider the significance of the separately issued certificate. He determined that the terms, “Member” and “Insured”, were broad enough to include both Mr. Van Huizen and Mr. Barkley who were insured under the same master policy but different certificates. As a result, he concluded that “Mr. Van Huizen has coverage for a legal claim arising from his own actions and also when it flows from his legal status as an employer of the alleged wrongdoer.” He was not asked to consider and therefore did not decide whether the respondents were covered as Mr. Barkley’s employer under the Barkley insurance contract. [16] The motion judge also determined that the appellant had a duty to defend Mr. Van Huizen in the Behlok proceedings. He explained that, in his view, this interpretation was necessary if the vicarious liability provision was to have any practical effect: If this was not the case, there would be no need for the vicarious liability provision in the contract. Such liability attaches in the absence of any negligence or other fault on the part of the employer. If it was the intent of the parties that an insured would only have coverage when he or she personally committed the negligent act or omission, the vicarious liability protection would be superfluous. [17] In a subsequent endorsement dated September 20, 2018, the motion judge clarified that the duty to defend included both Mr. Van Huizen and Hastings Appraisal Services. [18] In his further reasons dated February 15, 2019, the motion judge ordered that the respondents were entitled to reimbursement of their defence costs in the amount of $42,000 plus interest. He declined to apply and reduce those costs by the $7,500 deductible under the policy. He concluded it was premature to do so because the underlying litigation had not been resolved and the appellant would recover costs in the litigation that could eliminate the deductible. D. ISSUES [19] The appellant raises several grounds of appeal. [1] In my view, the appeal turns on the following issues: (i) Did the motion judge err in finding that the appellant’s duty to defend the respondents in the Behlok proceedings was engaged under the Van Huizen insurance contract? (ii) If the appeal is allowed, should summary judgment be granted to the appellant? [20] I agree that the motion judge erred in his interpretation of the Van Huizen insurance contract and in finding that the appellant had a duty to defend the respondents on this basis. However, as I will explain, I do not agree that summary judgment should be granted to the appellant. E. Applicable Legal Principles [21] The motion judge had to consider the question of whether the appellant had a duty to defend the respondents in response to the Behlok proceedings, as he acknowledged, under the Van Huizen insurance contract. The motion judge erred by effectively treating the master policy as the entire insurance contract for all AIC members. This led him to conflate the Van Huizen and Barkley insurance contracts. [22] It is therefore important for the purpose of this appeal to clarify the distinction between an insurance policy and an insurance contract. These words are often used interchangeably. This conflation can give rise to considerable confusion, as it did here. [23] An insurance policy is an instrument. Without parties entering into an agreement to be bound by its terms and conditions, it is not an insurance contract. By itself, it is “merely a recitation of terms and conditions which do not attach to a particular person, item or interest”: Barbara Billingsley, General Principles of Canadian Insurance Law , 2nd ed. (Markham: LexisNexis, 2014), at p. 58. No legal obligations are created by the mere existence of a written insurance policy. Absent a contractual relationship incorporating its terms, the words of a policy “are worth less than the paper on which they are printed”: Denis Boivin, Insurance Law , 2nd ed. (Toronto: Irwin Law, 2015), at p. 242. [24] An insurance contract, by contrast, creates contractual obligations between parties: Rayner v. Preston , (1881) 18 Ch. D. 1 (Eng. C.A.), at p. 10. The formation of insurance contracts is governed by the law of contracts. There must be offer and acceptance, and agreement on all material terms, including the premium, the nature and duration of the risk to be covered, and the extent of liability: McCunn Estate v. Canadian Imperial Bank of Commerce (2001), 53 O.R. (3d) 304 (C.A.), at paras. 18-19, leave to appeal granted but appeal discontinued, [2001] S.C.C.A. No. 203. In determining whether to enter into a particular insurance contract, the insurer assesses the risk and determines an acceptable premium based on the representations made by the applicant for insurance: Craig Brown & Andrew Mercer, Introduction to Canadian Insurance Law , 3rd ed. (Markham: LexisNexis, 2013), at p. 23. [25] An insurance policy may evidence the existence of an insurance contract because often parties will agree, as part of their contract, to be bound by terms and conditions as set out in an appropriate policy: Billingsley, at p. 59; Brown & Mercer, at p. 23. When an insurer uses a standard policy, it may issue a certificate of insurance as proof of the underlying contract on the terms set out in an applicable policy: Boivin, at p. 258. But an insurance policy or certificate of insurance is only the instrument; it evidences the existence of the insurance contract by which the parties have agreed to be bound. [26] This relationship between an insurance contract and an insurance policy is recognized by the statutory definitions of “contract” and “policy”: Insurance Act , R.S.O. 1990, c. I.8, s. 1. Under s. 1 of the Insurance Act , “contract” means an insurance contract, and includes a policy and certificate of insurance evidencing the contract. By contrast, “policy” means the instrument evidencing a contract. [27] Therefore, while an insurance policy sets out terms that may govern the relationship between the parties to an insurance contract, it is the contract that gives rise to legal consequences and must be the subject of interpretation for the purposes of determining the parties’ rights and obligations. F. Analysis (i) There is No Duty to Defend the Behlok Proceedings Under the Van Huizen Insurance Contract (a) The Motion Judge Erred by Interpreting the Insurance Policy Rather than the Insurance Contract [28] The motion judge correctly recognized that the duty to defend arises if there is the “mere possibility that a claim falls within the insurance policy”: Progressive Homes Ltd. v. Lombard General Insurance Co. , 2010 SCC 33, [2010] 2 S.C.R. 245, at para. 19. The motion judge also recognized that it was necessary to “search for an interpretation from the whole of the contract which promotes the true intent of the parties at the time of entry into the contract”: Coast Capital Equipment Finance Ltd. v. Old Republic Insurance Company of Canada , 2018 ONCA 540, 81 C.C.L.I. (5th) 220, at para. 19. [29] While the motion judge correctly set out the relevant interpretative principles in determining whether the pleadings and the master policy created a duty to defend, he erred in his application of them. The duty to defend is a contractual obligation. The motion judge erred by narrowing his inquiry to the language of the pleadings and the master policy and effectively considering the master policy as the insurance contract between Mr. Van Huizen and the appellant. This led him to conflate the Van Huizen and Barkley insurance contracts. [30] To be fair to the motion judge, it is easy to see why he fell into error. As I earlier observed, the terms “insurance policy” and “insurance contract” are often treated synonymously. Nevertheless, in this case it was necessary to distinguish between the Van Huizen and Barkley insurance contracts and the documents evidencing their terms. [31] The motion judge interpreted the master policy as if it constituted a binding contract between the insurer and all members who had been issued a certificate. Given that both Mr. Van Huizen and Mr. Barkley held certificates, the motion judge concluded that they were both “Insured”, and that Mr. Van Huizen was therefore covered under the master policy for liability arising out of Mr. Barkley’s alleged negligent appraisal. [32] For the reasons I have already stated, the master policy does not, however, constitute such a binding agreement on its own. It cannot. The master policy merely sets out the terms of professional liability insurance being offered to the members of the AIC. It is missing key terms on which agreement is necessary to form an insurance contract, including the assessed risk, the premium to be paid and the term of insurance: McCunn Estate , at para. 19. [33] Each member who desires coverage must apply for the coverage on terms set out in the master policy. The insurer can then assess the individual risk of the applicant in determining the premium and in deciding whether to enter into a contract with the applicant. Provided the member and insurer come to an agreement on the remaining essential terms of the contract and agree to be bound by the master policy, the insurer will issue a certificate to the member, evidencing the existence of that contract. [34] It follows that while each member who holds a certificate will be bound by identical terms as set out in the master policy, they are also bound by the unique terms as set out in their certificates and are therefore necessarily party to separate contracts with the insurer. In Re Lawton , [1945] 4 D.L.R. 8 (Man. C.A.), at p. 37, Bergman J.A., concurring, noted a similar phenomenon in the context of a group life insurance policy for employees of a certain employer: The master policy is, in effect, merely an agreement by the [insurer] with the [employer] to insure the individual employees who are eligible, on the terms specified in the master policy. In my opinion the certificates issued to the individual employees pursuant to, and in performance of, that agreement, constitute the real and effective insurance. I am further of the opinion that these certificates are not incorporated in, and made part of, the master policy. It is the other way about; the master policy is incorporated in, and made part of, each individual certificate of insurance. [35] Similarly, the certificates issued to Mr. Van Huizen and Mr. Barkley each evidence a separate insurance contract on terms including those set out in the master policy. The declarations specify exactly what constitutes these contracts of insurance: “These Declarations along with any completed and signed Application and the Policy, each Member Certificate of Insurance , and endorsements, if any, shall constitute the entire contract between the Insured and [the appellant]” (emphasis added). [36] The individual nature of the insurance contract is also reflected in the declarations, which say that the name of the insured is “[a]s per individual certificate”, as well as that the policy period is “[a]s per individual certificate”, and that the premium is “[a]s per individual certificate”. Further, the master policy summarizes the bargain that underlies the insurance contract, namely, that it is “in consideration of the payment of the premium and in reliance upon all statements made and information furnished” to the appellant, “including the statements made in the Application”, that insurance is agreed to be provided. [37] The appellant’s duty to defend must be ascertained within the entirety of the relevant insurance contract, properly interpreted, and cannot be determined solely in reference to the master policy, which is not an insurance contract and does not on its own bind the parties. [38] In my view, the motion judge fell into error by deciding the question of the duty to defend on the basis of the terms of the master policy untethered to the particular contractual relationship between the appellant and Mr. Van Huizen. As a result, his conclusion that the appellant owed a duty to defend the respondents under Mr. Van Huizen’s standard form insurance contract is not owed deference: Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. , 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 24. The question must therefore be considered afresh. (b) The Meaning of “Employer” Under the Master Policy [39] While not strictly necessary given my proposed disposition of this appeal, I deal with this issue for the purpose of providing some guidance concerning the preferred analytical approach. The appellant submits that there is no duty to defend under the Van Huizen insurance contract because in their statement of defence in the Behlok proceedings, the respondents deny that they were Mr. Barkley’s “Employer” as defined in the master policy and therefore cannot be insured under the Van Huizen insurance contract. [40] The motion judge properly rejected this submission. [41] When determining whether there is a duty to defend, the court interprets the pleadings and the insurance contract to determine if there is the mere possibility that the claim, as pleaded, falls within the scope of coverage under the insurance contract. The duty to defend is not dependent on the insured actually being liable and the insurer actually being required to indemnify. It is irrelevant whether the allegations in the pleadings can be proven in evidence; for this interpretative purpose, the allegations in the statement of claim are to be taken as true: see Progressive Homes , at paras. 19-20. An insurer is obliged to provide a defence if the pleadings allege facts which, if true, could potentially require the insurer to indemnify the insured for the claim: Nichols v. American Home Assurance Co., [1990] 1 S.C.R. 801, at p. 810-11; Monenco Ltd. v. Commonwealth Insurance Co ., 2001 SCC 49, [2001] 2 S.C.R. 699, at para. 28. [42] It is clearly alleged in the statements of claim in the Behlok proceedings that the respondents are the employer of Mr. Barkley. This allegation is accepted as true for the purpose of determining the duty to defend. The respondents’ denial does not affect this presumption nor the possibility that the allegation could prevail at trial. [43] As discussed more fully below, the master policy provides for a duty to defend claims made against any “Insured” (defined to include a “Member” and, in certain cases, an “Employer”) for a “Wrongful Act”. Under the master policy, “Employer” means “any partnership, corporation, or sole proprietorship in which a Member was or is now an employee” (emphasis added). [44] That, however, is not the end of the analysis to determine whether the appellant has a duty to defend the respondents under the Van Huizen insurance contract. As I will now explain, when the Van Huizen insurance contract is considered as a whole, the appellant has no duty to defend the respondents under that insurance contract. (c) The Van Huizen Insurance Contract Covers Only Mr. Van Huizen’s Professional Negligence [45] I am of the view that the Van Huizen insurance contract, properly interpreted, does not impose a duty to defend on the appellant in relation to the Behlok proceedings. [46] There is no question that the Behlok proceedings assert a civil claim for monetary damages arising from Mr. Barkley’s allegedly negligent provision of professional appraisal services. The pleadings, however, do not allege a claim against Mr. Van Huizen or Hastings Appraisal Services as his employer for his allegedly negligent provision of professional appraisal services. Rather, the claim is framed against the respondents on the basis of their vicarious liability for Mr. Barkley’s alleged negligent provision of professional appraisal services. [47] As a result, the interpretative issue is whether Mr. Van Huizen’s insurance contract requires the appellant to defend the respondents in relation to the claim that they are vicariously liable for the alleged wrongful act of another insured AIC member, Mr. Barkley, in his provision of professional appraisal services. [48] The determination of this question requires consideration of the master policy definitions in the context of the specific insurance contract between the appellant and Mr. Van Huizen. [49] For the purposes of this appeal, the relevant provisions of the definitions are as follows: Claim means: (ii) a civil proceeding commenced by the issuance of a notice of action, statement of claim, writ of summons, complaint or similar proceeding; against any Insured for a Wrongful Act …. Employer means any partnership, corporation, or sole proprietorship in which a Member was or is now an employee. Insured means: (i) any Member (iii) an Employer, but solely for its for [ sic ] vicarious liability arising out of Professional Services rendered, or alleged to have been rendered, by a Member, but only if a Claim is initially made and continuously maintained against such Employer and the Member Member means any natural person named in Item 3 of the Declarations [item 3 of the Declarations states: “Name and Address of the Insured: As per individual certificate”] … who is in good standing with the [AIC]. Wrongful Act means any actual or alleged negligent act, error or omission, misstatement or misleading statement committed solely by the Member in the performance of Professional Services while a Member is in good standing with the [AIC]. [50] There is no doubt that Mr. Van Huizen is an “Insured”, as defined in his insurance contract. He meets all the criteria to be a “Member”. He is a natural person named in item 3 of the declarations because the individual certificate, referenced in that item, provides that the “Insured” is John Van Huizen. There is no dispute that Mr. Van Huizen fulfills the other criteria required to fall within the definition of a “Member”. [51] Similarly, Hastings Appraisal Services, as the alleged employer of Mr. Van Huizen, is also an “Insured”. As already noted, under clause (iii) of the definition an Insured can be an Employer (subject to certain qualifications). The use of the qualifier “any” before “Insured” in the definition of “Claim” makes clear that the appellant has a duty to defend any Insured as defined under Mr. Van Huizen’s insurance contract and not just Mr. Van Huizen who is a Member. [52] However, the definition of “Claim” is limited to claims against any “Insured” for a “Wrongful Act”. For ease of reference, I repeat the definition of “Wrongful Act”: Wrongful Act means any actual or alleged negligent act, error or omission, misstatement or misleading statement committed solely by the Member in the performance of professional services while a Member in good standing with the [AIC]. [Emphasis added.] [53] In this case, the alleged negligent act was committed by Mr. Barkley and not Mr. Van Huizen. It appears undisputed that Mr. Barkley was an AIC member and that the alleged negligent act was committed by him in the performance of professional services while in good standing. [54] However, Mr. Van Huizen relies on his insurance contract, and not Mr. Barkley’s insurance contract, in asking the appellant to defend him. The key question then becomes who is the “Member” under the Van Huizen insurance contract, as that term is incorporated by reference in the definitions of “Insured” and “Wrongful Act”. Its definition refers the reader to item 3 of the declarations, which, as noted above, states that the name and address of the insured is “[a]s per individual certificate”. [55] At para. 23 of his reasons, the motion judge concluded: While the definition of “wrongful act” uses the definite article “the” referring to “member”, it must be interpreted in a manner consistent with the definitions of “claim” and “insured”. Under the policy, an insured does not have to be an appraiser; but he or she has to be an employer of someone who is and, if they are, the policy grants them coverage if they are alleged to be vicariously liable for the negligent acts or omissions of that member. As a result, [the appellant] has a duty to defend Mr. Van Huizen. [56] In my view, the motion judge erred by seizing on the fact that Mr. Van Huizen meets the definitions of an “Insured” and a “Member” under the master policy without giving effect to the language in the Van Huizen insurance contract that limited the nature of a claim against the respondents that the appellant is required to defend. As a result, the motion judge effectively conflated the Van Huizen and Barkley insurance contracts. [57] The only certificate of insurance that forms part of the relevant insurance contract is Mr. Van Huizen’s certificate. In that certificate, only Mr. Van Huizen is identified as an insured. Only his insurable risk is the subject of the contract. It is on that basis that the appellant determined the risk to be insured, set the premium to be paid, and entered into the insurance contract with Mr. Van Huizen. [58] Mr. Barkley’s certificate does not form part of the Van Huizen insurance contract. It is different from the one issued to Mr. Van Huizen. While issued under the same master policy, the certificate is particular to the individual to whom it is issued and evidences only the individual insurance contract between the insurer and that member. [59] Since Mr. Van Huizen alone is named as an insured in the relevant certificate, he alone is the “Member” for the purposes of the Van Huizen insurance contract as that term is defined in the master policy. As a result, clause (i) of the definition of “Insured” captures Mr. Van Huizen and not Mr. Barkley. Further, vicarious liability under clause (iii) is limited to professional services rendered by a “Member”, which again, means only Mr. Van Huizen. The definition of “Wrongful Act” is similarly limited to professional services provided solely by the “Member”, Mr. Van Huizen. [60] According to the plain language of the master policy, the certificate of insurance and their definitions, then, coverage is provided for any claims against Mr. Van Huizen or his employer respecting Mr. Van Huizen’s provision of professional services. The Behlok proceedings did not allege that Mr. Van Huizen had committed a wrongful act in rendering or failing to render professional services. There is no coverage under the Van Huizen insurance contract for any claim related to an act of professional negligence committed by anyone other than Mr. Van Huizen. [61] I respectfully disagree with the suggestion of the motion judge that this interpretation renders the provision for vicarious liability on the part of the employer superfluous or a commercial absurdity. Rather, it acknowledges the privity of contract between the member and the insurer and provides for the possibility that the member named in the individual certificate may offer professional services not merely as an individual but through or on behalf of “any partnership, corporation, or sole proprietorship in which a Member was or is now an employee”. Each member’s insurance contract provides for coverage for their employers in any claim for the wrongful acts of that member. This makes practical, commercial sense. [62] Therefore, I conclude that this insurance contract does not give rise to a duty to defend the respondents for the alleged wrongful act of Mr. Barkley. (ii) Summary Judgment Should Not Be Granted to the Appellant [63] I would not grant summary judgment to the appellant. The issue as to whether the appellant has a duty to defend the respondents as Mr. Barkley’s alleged “Employer” under the Barkley insurance contract with the appellant has not yet been decided. [64] In its statement of defence, the appellant expressly addresses the question as to whether the respondents are entitled to coverage under the Barkley insurance contract. The appellant pleads they are not “Insureds” because they are not Mr. Barkley’s “employer”. However, the parties did not bring forward this issue for determination on the motion for summary judgment. Rather, they limited the question to whether the appellant owed them a duty to defend under the Van Huizen insurance contract. As a result, the motion judge only dealt with the issue of whether the appellant owed the respondents a duty to defend the Behlok proceedings under the Van Huizen insurance contract. Similarly, the issue of coverage under the Barkley insurance contract was not raised or argued on appeal. [65] Given the way the motion for summary judgment was argued and disposed of before the motion judge and on appeal, the question of coverage under the Barkley insurance contract for the respondents as Mr. Barkley’s alleged “Employer” remains to be determined. [66] My proposed disposition of this appeal renders it neither necessary nor desirable to determine this issue. The record and submissions are incomplete because they focussed on the issue of coverage under the Van Huizen insurance contract. [67] Accordingly, in my opinion, there remains a live issue to be determined as to whether the appellant owes the respondents a duty to defend under the Barkley insurance contract. I would therefore dismiss the appellant’s motion for summary judgment. G. Disposition [68] Accordingly, it was an error for the motion judge to grant summary judgment to the respondents. The motion judge’s order should be set aside. [69] I would not allow the appellant’s motion for summary judgment nor dismiss the respondents’ action because there is a live issue requiring determination as to whether the appellant owes the respondents a duty to defend under Mr. Barkley’s insurance contract with the appellant. [70] The appellant should be entitled to its partial indemnity costs of the appeal in the amount of $9,460.64 and, because of its success in overturning the judgment granted to the respondents, of the motion below in the amount of $6,343.50, both inclusive of all disbursements and applicable taxes. Released: March 18, 2020 (“L.B.”) “L.B. Roberts J.A.” “I agree. Alexandra Hoy A.C.J.O. ” “I agree. K. van Rensburg J.A.” [1] The appellant raises the alternate issue of whether the motion judge erred in failing to apply the $7,500 deductible under the Van Huizen insurance contract to the award of defence costs to the respondents. This issue only arises in the context of the Van Huizen insurance contract if the motion judge’s conclusion that there is a duty to defend is upheld. Given my proposed disposition of the appeal, it is unnecessary to determine this issue.

COURT OF APPEAL FOR ONTARIO CITATION: Weisleder v. Ontario Secondary School Teachers' Federation, 2020 ONCA 181 DATE: 20200309 DOCKET: C67581 Feldman, Huscroft and Harvison Young JJ.A. BETWEEN Barry Weisleder Plaintiff (Appellant) and The Ontario Secondary School Teachers' Federation Defendant (Respondent) Alexander Zivkov, for the appellant Joanna Birenbaum and Kristen Allen, for the respondent Heard: March 4, 2020 On appeal from the judgment of Justice Jane Ferguson of the Superior Court of Justice, dated October 8, 2019. REASONS FOR DECISION [1] The respondent union was granted summary judgment dismissing Mr. Weisleder’s defamation action. Mr. Weisleder argues that the motion judge made several errors in characterizing the nature of the allegedly defamatory speech and erred in concluding that the speech was protected by qualified privilege. He also argues that the issue of whether the privilege was defeated by malice could not be decided on summary judgment and required the court to hear viva voce evidence to determine credibility. [2] We see no error in the motion judge’s decision. [3] The motion judge properly concluded that, even assuming the speech was defamatory, it was protected by qualified privilege. She found that the dominant motive of the impugned speech in the pamphlet distributed at the annual general meeting, and the excerpt, which she found was not distributed, was to provide a history of the bargaining unit; that the union had an interest and duty to respond to Mr. Weisleder’s allegations; and that the union members had a corresponding right or interest to receive the information. This was sufficient to establish qualified privilege. [4] In order to defeat the claim of privilege, Mr. Weisleder was required to establish malice and he failed to do so. Although the motion judge noted Ms. Burke’s dislike of Mr. Weisleder, she found no evidence to refute the dominant purpose of the pamphlet or the excerpt. Nor was the occasion of privilege exceeded. The motion judge found that the words were not disproportionate to the occasion on which they were communicated. The impugned speech was “balanced, bland and reasonable, particularly in light of the context of the inflammatory and vindictive words used by Weisleder over a number of years.” These findings were open to the judge on the evidence and are entitled to deference from this court. [5] Although there are cases where the record before the court may be insufficient to decide the issue of malice on summary judgment (see Baglow v. Smith , 2012 ONCA 407, 110 O.R. (3d) 481, at paras. 31-32; McDonald v. Freedman , 2013 ONSC 6812 (Div. Ct.), at para. 68), in this case there was an ample evidentiary record before the motion judge that allowed her to make the findings she did. That record included transcripts of examinations for discovery of the key people at the union together with affidavits of other people and cross-examinations thereon. [6] The appellant raised the issue of reasonable apprehension of bias, seemingly based on the fact that the motion judge did not accept his position. There is no basis to raise this issue and no merit to it. [7] The appeal is dismissed. The respondent is entitled to costs of the appeal in the agreed amount of $15,000, inclusive of taxes and disbursements. “K. Feldman J.A.” “Grant Huscroft J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Whitchurch-Stouffville (Town) v. Bolender, 2020 ONCA 172 DATE: 20200306 DOCKET: C65414 Feldman, Huscroft and Harvison Young JJ.A. BETWEEN The Corporation of the Town of Whitchurch-Stouffville Applicant (Respondent) and Paul Bolender, John Bolender, Bruce Bolender and Karen McConnell Respondents (Appellants) Al Burton, for the appellants John Hart, for the respondent Heard: March 2, 2020 On appeal from the judgment of Justice Anne Mullins of the Superior Court of Justice, dated April 24, 2018, with reasons reported 2018 ONSC 2621, 74 M.P.L.R. (5th) 263. REASONS FOR DECISION [1] The appellants own two properties in the respondent municipality, one since the late 1960s and the other since the late 1970s. They have carried on the business of harvesting peat moss and making triple mix on the properties, which are zoned for rural use. They have also, in the past, altered the sites without obtaining a permit as required by a site alteration by-law by having trucks come onto the property to dump fill and other materials. [2] The town obtained an interim and then a permanent injunction to stop these activities in 2013 and 2014, but the injunction was set aside by this court in July 2015 on the basis that a trial of the issues was required and such a trial was ordered. [3] After a 12-day trial, the trial judge rendered the following judgment: 1. THIS COURT ORDERS that the open storage of heavy equipment at 14547 Highway 48 Whitchurch-Stouffville, Ontario constitutes a lawful non-conforming use at that address. 2. THIS COURT ORDERS that the Respondents, Paul Bolender, Karen McConnell, Bruce Bolender and John Bolender are hereby prohibited from extracting peat, assembling triple mix and receiving waste, and any activities incidental thereto, at 14857 Highway 48 Whitchurch-Stouffville and 14547 Highway 48 Whitchurch-Stouffville. 3. THIS COURT ORDERS that the receipt and accumulation of waste or fill, the extraction of peat and the compilation of triple mix, and the incidental uses thereto, are not and have never been permitted uses under the various Zoning By-laws of the Town of Whitchurch-Stouffville at 14857 Highway 48 Whitchurch-Stouffville and 14547 Highway 48 Whitchurch-Stouffville. 4. THIS COURT DECLARES that the Respondents Paul Bolender, Karen McConnell and Bruce Bolender have breached the provisions of the Site Alteration By-law of the Town of Whitchurch-Stouffville, being By-law 2017-017-RE. 5. THIS COURT ORDERS that Paul Bolender, Karen McConnell and Bruce Bolender be and the same are hereby restrained from contravening Section 2.2 of the Site Alteration By-law of the Town of Whitchurch-Stouffville, being By-law 2017-017-RE, which provides that no person shall undertake, cause, or permit any site alteration of any Property within the Town without the owner first receiving a permit issued under the said By-law by the Director, as defined therein, authorizing the Site Alteration. 6. THIS COURT ORDERS that costs may be spoken to by the parties. [4] Dealing first with paras. 4 and 5 of the order, which are relevant only to the North property, the appellants submit that there was no evidence of any activity being carried out on the property in 2017 and therefore no order could be made in respect of enforcing the 2017 by-law. The appellants also submit that by using evidence from 2012 and 2013 to substantiate an injunction that enforces a 2017 by-law, the trial judge gave the by-law retroactive effect, contrary to this court’s decision in Burlington (City) v. Burlington Airpark Inc. , 2017 ONCA 420, 138 O.R. (3d) 309. [5] The respondent conceded in oral argument that para. 4 of the order, which finds a breach of the 2017 by-law, cannot stand as no evidence of any such breach was led. We agree. [6] We do not agree, however, that any error was made in the order in para. 5. While the appellants discontinued their activities on the properties in response to the injunction and did not recommence pending the trial and disposition by the court, they did not give evidence at the trial that they did not intend to carry on their business on the North Property in the future. We are satisfied that in those circumstances, the evidence of what occurred before the interim injunction was ordered in 2013 was the only relevant evidence that could be led on the trial that was ordered by this court. [7] Nor is there any improper retroactive effect by that approach. This is not a case like Burlington , in which the town wanted the property-owner to seek a permit based on a repealed by-law. In this case, the effect of para. 5 is to require the appellants to comply with the 2017 by-law in the future by obtaining a permit before doing any site alteration, in the face of evidence that they failed to obtain the required permits, contrary to previous by-laws, in the past. [8] The appellants further argued that the trial judge erred in making the orders in paras. 1-3 by failing to find that the peat moss extraction, triple mix compilation, and related activities constituted legal non-conforming uses of the properties. They submit that the trial judge failed to apply the factors set out by the Supreme Court in Saint-Romuald (City) v. Olivier , 2001 SCC 57, [2001] 2 S.C.R. 898, at para. 39, for determining which non-conforming uses of property will nevertheless be legal. They argue that the placement of heavy equipment on the North Property in 1968, which the trial judge found was a legal non-conforming use, expanded into the other activities on both properties in a way which extended that legal protection to all the appellants’ uses of the lands. [9] We do not agree. The trial judge gave reasons for finding that the activities carried out by the appellants constituted industrial rather than rural or agricultural uses, that these activities were prohibited from their commencement by the by-laws, and that they were not an extension of the storage of heavy equipment, within the meaning of the Saint-Romuald factors. Disposition [10] Given our conclusions above, it is unnecessary to address the appellants’ arguments regarding the quantification of damages had they succeeded on the merits. We also see no basis to interfere with the costs order below. [11] The appeal is therefore dismissed, subject to setting aside para. 4 of the order on consent. We order costs of the appeal to the respondent in the agreed amount of $22,500, inclusive of disbursements and HST. “K. Feldman J.A.” “Grant Huscroft J.A.” “Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Whittle v. Hill, 2020 ONCA 188 DATE: 20200306 DOCKET: C67120 Feldman, Huscroft and Harvison Young JJ.A. BETWEEN Edris Whittle Plaintiff/Respondent and Merville Hill and Sedwick Hill Defendants/Appellants Alamgir Hussain and Parjot Singh Benipal, for the appellants Kyle Armagon, for the respondent Heard: March 6, 2020 On appeal from the judgment of Justice M.L. Edwards of the Superior Court of Justice, dated June 17, 2019. APPEAL BOOK ENDORSEMENT [1] Counsel for the appellants did not appear. An associate of counsel attended later after calls were made to advise the court that counsel had no instructions to proceed with the appeal today as he was unable to communicate with the appellants. [2] The respondent asks the appeal to be dismissed with costs fixed at $6,000, inclusive of disbursements and HST. So ordered.

COURT OF APPEAL FOR ONTARIO CITATION: 1842752 Ontario Inc. v. Fortress Wismer 3-2011 Ltd., 2020 ONCA 250 DATE: 20200409 DOCKET: C67216 Simmons, Harvison Young and Zarnett JJ.A. BETWEEN 1842752 Ontario Inc. Applicant (Appellant) and Fortress Wismer 3-2011 Ltd., Pace Developments Inc., 1839392 Ontario Limited, Pace Developments (The Mark) Ltd. and Firm Capital Mortgage Fund Inc. Respondents ( Respondent ) and MarshallZehr Group Inc. Intervenor Kevin Sherkin, for the appellant 1842752 Ontario Inc. Cary Schneider, for the respondent Firm Capital Mortgage Fund Inc. Harvey Chaiton, for the intervenor MarshallZehr Group Inc. Heard: February 21, 2020 On appeal from the order of Justice David L. Corbett of the Superior Court of Justice, dated June 12, 2019, filed as 2019 ONSC 3673. REASONS FOR DECISION Introduction [1] The appellant, 1842752 Ontario Inc., has a judgment and writ of seizure and sale against Fortress Wismer 3-2011 Ltd. (“Fortress Wismer”). Fortress Wismer owns an undivided 35 percent beneficial interest in lands registered under the Land Titles Act , R.S.O. 1990, c. L.5. The registered owner of the lands holds the land for Fortress Wismer and two other corporations under an unregistered trust agreement. Under s. 62(1) of the Land Titles Act [1] , notice of an express, implied or constructive trust “shall not be entered on the register or received for registration.” [2] The appellant applied for declarations that the writ of seizure and sale is binding on and enforceable against the registered owner of the lands and gives the appellant priority over a previously registered charge to the extent of advances under it made following actual notice of the writ. [3] The application judge dismissed the appellant’s application. For the reasons that follow, we dismiss the appellant’s appeal. Background [4] Pace Developments (The Mark) Ltd. ("Pace Mark") is the registered owner of lands being developed as an 18-storey residential condominium (the “lands”). The lands are registered under the Land Titles Act . [5] Pace Mark holds the lands under an unregistered trust agreement [2] specifying that Fortress Wismer, Pace Developments Inc. (“Pace”) and 1839392 Ontario Limited (“1839392”) are the beneficial owners of the lands as tenants in common. Under the trust agreement, Fortress Wismer is entitled to a 35 percent beneficial interest in the lands. [6] In 2016, Pace Mark gave a construction financing charge to Firm Capital Mortgage Fund Inc. (“Firm Capital”) and a further charge to MarshallZehr Group Inc. (“MarshallZehr”). [7] The appellant, 1842752 Ontario Inc., is a judgment creditor of Fortress Wismer, having obtained a judgment against Fortress Wismer for payment of $100,000 plus interest and costs in November 2017. [8] On January 30, 2018, the appellant filed a writ of seizure and sale with the sheriff in the jurisdiction where the lands are located, directing the sheriff to sell the real and personal property of Fortress Wismer within the jurisdiction. The appellant also gave Firm Capital actual notice of its writ of seizure and sale and asserted that any subsequent advances under Firm Capital’s charge would be subordinate to its writ. Firm Capital disagreed. The appellant’s application [9] Subsequently, the appellant applied for declarations that: i) its writ of seizure and sale against Fortress Wismer applies against or binds Pace Mark, the registered owner of the lands as bare trustee for Fortress Wismer, Pace and 1839392; ii) its writ of seizure and sale may be executed against Pace Mark; and iii) any advances to Pace Mark from Firm Capital made after January 30, 2018 [3] rank subordinate to its interest. [10] The application judge granted intervenor status to MarshallZehr on the application. For ease of reference, Firm Capital and MarshallZehr will be referred to as respondents on this appeal. The application judge’s decision [11] The application judge concluded that the appellant is not entitled to enforce its writ of seizure and sale against Pace Mark, nor to priority over the arm’s length construction financing provided by Firm Capital and MarshallZehr. [12] The application judge acknowledged that s. 9(1) of the Execution Act , R.S.O. 1990, c. E.24, authorizes the sheriff to whom a writ of execution [4] is delivered to seize and sell the lands of the execution debtor “including any lands whereof any other person is seized or possessed in trust”. However, he noted that the Execution Act is a procedural statute that does not confer substantive rights but rather provides mechanisms for the collection of judgment debts: Yaiguaje v. Chevron Corporation , 2018 ONCA 472, 141 O.R. (3d) 1, at para. 54. [13] Further, the application judge observed that, in this case, Pace Mark holds the lands not just for Fortress Wismer but also for two other companies, Pace and 1839392. The beneficial owners’ rights are governed by the trust agreement. The application judge concluded that the appellant, as a judgment creditor, could have no higher interest in the lands than Fortress Wismer. Further, he found that as Fortress Wismer has no right, as a beneficial owner, to force a sale of the lands or interrupt ongoing construction financing, neither could the appellant have any such right. [14] Finally, the application judge concluded that the appellant’s statement that it did not intend to force a sale against Pace Mark did not assist its position; if it obtained a declaration entitling it to enforce its writ against the registered owner, it would be entitled to force a sale of the lands. [15] Notably, the application judge observed the appellant may well be entitled to enforcement through other remedies, such as garnishment or appointment of a receiver. The Appellant’s Position on Appeal [16] The appellant submits that the application judge erred by conflating the issue of the sheriff's ability under the Execution Act to seize and sell the whole of the lands (which the appellant concedes cannot be done) with the issue of whether its writ of seizure and sale is binding on the lands and gives the appellant priority over mortgage advances made under a previously registered mortgage following actual notice of its writ of seizure and sale. [17] The appellant argues that on a plain reading of ss. 9, 10 and 13 of the Execution Act and s. 93(4) of the Land Titles Act , it is entitled to the relief it seeks. [18] Section 9 of the Execution Act gives the sheriff authority to seize and sell lands of an execution debtor that are held in trust. Section 10 confirms that a writ of execution “binds the lands against which it is issued.” Section 13 stipulates “land … belonging to any person indebted” is “liable to and chargeable with all … debts owing by any such person” and subject to seizure and sale to satisfy those debts. To make the lands “liable to and chargeable with” Fortress Wismer’s debt, the appellant argues that, patently, its writ of seizure and sale is binding on and enforceable against Pace Mark. [19] Further, says the appellant, various authorities have confirmed that, even where lands are registered under the Land Titles Act , which prohibits registration of notice of an express, implied or constructive trust, the court will consider a prior unregistered trust agreement to determine that a writ of execution is not binding on particular land because the execution is in the name of a registered owner who holds the land in trust: see Michaud v. Coreslab Structures (Ont.) Inc ., 2012 ONSC 355, citing Young v. LeMon (1985), 3 C.P.C. (2d) 163 (Ont. Dist. Ct) and Gibb v. Jiwan , [1996] O.J. No. 1370 (Ct. J. (Gen. Div.); and Jellet v. Wilkie , (1896) 26 S.C.R. 282, cited in Gibb . As a corollary to that reasoning, the appellant’s writ of seizure and sale against Fortress Wismer should be binding on and enforceable against Pace Mark. [20] Concerning Firm Capital’s charge, the appellant submits that under s. 93(4) of the Land Titles Act , subsequent advances under a prior charge following registration of a “transfer, charge or other instrument” maintain priority over such transfer, charge or other instrument unless the original chargee had actual notice of such transfer, charge or other instrument. Here, the appellant gave Firm Capital actual notice of its writ of seizure and sale against Fortress Wismer, such that Firm Capital lost the priority to which it was otherwise entitled under s. 93(4). [21] The appellant also relies on the following statements in a headnote from Sherlick v. Harley (1932), 41 O.W.N. 85 [5] and a paragraph in the Canadian Encyclopedic Digest as supporting its claim for priority over subsequent advances by Firm Capital: Sherlick v. Harley – headnote – unknown court Plaintiff’s mortgage was registered before an execution against the lands of the mortgagor was placed in the sheriff’s hands. Plaintiff made an advance thereafter. Held: On a reference in an action on the mortgage, the mortgagee was prior to the execution in respect of all advances made without actual notice. CED 4th (online), Mortgages (Ont.), Miscellaneous: Tacking (XIII.6) at § 821: Apart from registration, the doctrine of purchaser for value without notice does not apply to equitable interests in land. However, a person holding the legal estate by way of mortgage and making a further advance on the security of the same land without notice of an intervening interest can tack his or her second advance to the legal estate and refuse to be redeemed until the whole loan is repaid. In this way, he or she obtains priority for the second advance over the intervening interest. [22] Finally, the appellant submits that because it confirmed on its application that it would not be instructing the sheriff to sell the Pace Mark lands, the application judge erred in failing to grant the more limited remedy it requested. With the requested declarations in hand, all the appellant will do is await the sale of the lands – at which time the purchaser will require clear title from Pace Mark and Pace Mark will be required to address the appellant’s writ of seizure and sale. The Respondents’ Position on Appeal [23] The respondents assert that while the Execution Act gives the appellant the right to have the sheriff seize and sell Fortress Wismer’s interests in the lands, it does no more than that. In particular, it gives the appellant no higher rights than Fortress Wismer, a partial beneficial owner and creates no priority over Firm Capital’s mortgage advances. [24] Moreover, the respondents contend that under the Land Titles Act , the registered owner is considered the absolute owner of land as the Land Titles Act does not recognize a trust relationship. As set out above, s. 62(1) of the Land Titles Act provides that “[a] notice of an express, implied or constructive trust shall not be entered on the register or received for registration.” Further, s. 62(2) provides that describing the owner of land as a trustee “shall be deemed not to be a notice of a trust”. [6] [25] Further, the respondents rely on s. 72(1) of the Land Titles Act , which provides that “[n]o person, other than the parties thereto, shall be deemed to have any notice of the contents of any instruments, other than those mentioned in the existing register of title … or … entered in the records of the office kept for the entry of instruments…”. [26] In addition, the respondents point to various decisions that have held a writ of seizure and sale does not create an interest in land and gives the sheriff no right to apply for partition: see e.g. Ferrier v. Civiero , 1999 CarswellOnt 4197 (Sup. Ct. J.), aff’d 2000 CarswellOnt 5277 (Sup. Ct. (Div. Ct.)), aff’d (2001) 147 O.A.C. 196 (C.A.). [27] Finally, the respondents say that, on its face, s. 93(4) of the Land Titles Act does not apply to an execution creditor. [28] Overall, the respondents assert that the appellant has failed to identify any authority, whether statutory or otherwise, to support its entitlement to the declarations it seeks. Discussion [29] We agree with the respondents’ overall position that neither the statutory authorities nor the case law supports the appellant’s entitlement to the relief it seeks. [30] As a starting point, the sections of the Execution Act upon which the appellant relies do not support its position that its writ of seizure and sale should be declared binding on Pace Mark and that it may be executed against Pace Mark. [31] As the application judge observed, s. 9(1) of the Execution Act gives the sheriff the authority to seize and sell lands of an execution debtor subject to a writ of seizure and sale, including lands held in trust for the execution debtor: 9 (1) The sheriff to whom a writ of execution against lands is delivered for execution may seize and sell thereunder the lands of the execution debtor, including any lands whereof any other person is seized or possessed in trust for the execution debtor and including any interest of the execution debtor in lands held in joint tenancy. [Emphasis added.] [32] Subsections 10(4)-(7) stipulate the date from which a writ of execution binds land. In the case of lands registered under the land titles system, s. 10 is supplemented by s. 136 of the Land Titles Act . Subject to certain exceptions and the sheriff complying with statutory obligations concerning entry of the writ into an electronic data base, essentially, these sections provide that a writ of execution binds the lands against which it is issued from the date it is received by the sheriff. [33] Section 13 provides that land and real estate belonging to a person are liable to and chargeable with the person’s debts and subject to the remedies provided under the Execution Act . However, s. 13 does no more than confirm that lands are subject to the remedies of seizure and sale provided for under the Execution Act : 13 Subject to the Courts of Justice Act and the rules of court, land and other hereditaments and real estate belonging to any person indebted are liable to and chargeable with all just debts , duties and demands of whatsoever nature or kind owing by any such person to Her Majesty or to any of her subjects and are assets for the satisfaction thereof and are subject to the like remedies, proceedings and process for seizing, selling or disposing of them towards the satisfaction of such debts , duties and demands, and in like manner as personal estate is seized, sold or disposed of . [Emphasis added.] [34] Beyond stipulating that a writ of seizure and sale binds the lands of the party named in the writ and authorizing the sheriff to sell those lands even if they are held in the name of a trustee, the Execution Act provides no further remedy to a judgment creditor in relation to a writ of seizure and sale. [35] As has been observed on many occasions, including by the application judge, the Execution Act is a procedural statute that facilitates the collection of debts through the mechanisms contained in it. It does not purport to grant substantive rights to judgment creditors: Yaiguaje , at para. 54. In particular, the sections of the Execution Act upon which the appellant relies do not authorize effectively adding the legal owner of a property in which a judgment debtor has an unregistered beneficial interest to a writ of seizure and sale against the judgment debtor. [36] Assuming there was an available market, and subject to the terms of any co-tenancy agreement, the sheriff could conceivably sell Wismer’s 35 percent beneficial interest in the lands. However, that fact does not make the appellant’s writ of seizure and sale binding on or enforceable against Pace Mark. [37] Nor does Michaud assist the appellant. The underlying principle animating that decision is that, unless displaced by a statutory provision to the contrary, an execution creditor may seize and sell no more than the debtor’s interest in land. Put another way, the execution creditor stands in no better position than the debtor. Accordingly, lands to be sold at the request of an execution creditor are sold subject to the charges, liens and equities to which they were subject in the hands of the debtor. In Michaud , it was thus held that a prior unregistered trust declaration or agreement made by the registered owner had priority over an execution creditor. An execution creditor of a registered owner subject to an unregistered trust agreement cannot sell the beneficial interest in lands because the registered owner does not own it: see Michaud , at paras. 57 to 63. [7] [38] However, Michaud does not support the appellant’s request for a declaration that its writ of seizure and sale against Fortress Wismer is binding on and enforceable against Pace Mark. As the appellant stands in no better position than Fortress Wismer, the appellant’s entitlement is limited to having the sheriff seize and sell whatever Fortress Wismer’s interest in the lands may be and, as will be explained below, to share in the proceeds of sale of that interest in accordance with the priorities set out in the Creditors’ Relief Act , 2010 , S.O. 2010, c. 16, Sched.  4. [39] Further, the appellant’s argument that it acquired priority over subsequent advances by Firm Capital under s. 93(4) of the Land Titles Act by giving Firm Capital actual notice of its writ of seizure and sale is misconceived. Section 93(4) is reproduced below. Section 93(4) gives a registered charge priority over “every…person claiming by, through or under the charger”. It does not create any priorities over a prior registered charge for an execution creditor. Rather, s. 93(4) speaks to the priority of advances made under a previously registered charge following registration of a further transfer, charge or other instrument executed by the chargor, or the chargor’s successors. The appellant as the holder of a writ of seizure and sale does not fall within the section. A writ of seizure and sale is not created through a transfer, charge or other instrument executed by the chargor or the chargor’s heirs, executors, administrators or estate trustees as required under the section. [40] Section 93(4) of the Land Titles Act reads as follows: 93 (4) A registered charge is, as against the chargor , the heirs, executors, administrators, estate trustees and assigns of the chargor and every other person claiming by, through or under the chargor, a security upon the land thereby charged to the extent of the money or money’s worth actually advanced or supplied under the charge , not exceeding the amount for which the charge is expressed to be a security, although the money or money’s worth, or some part thereof, was advanced or supplied after the registration of a transfer, charge or other instrument affecting the land charged, executed by the chargor , or the heirs, executors, administrators or estate trustees of the chargor and registered subsequently to the first-mentioned charge , unless, before advancing or supplying the money or money’s worth, the registered owner of the first-mentioned charge had actual notice of the execution and registration of such transfer, charge or other instrument , and the registration of such transfer , charge or other instrument after the registration of the first-mentioned charge does not constitute actual notice . [Emphasis added.] [41] Further, as the respondents point out, under s. 72(1) of the Land Titles Act , absent registration or entry in appropriate records, only the parties to an instrument are deemed to have notice of it. Absent such registration or entry, the notice the appellant purported to give to Firm Capital was of no effect. [42] Similarly, the headnote from Sherlick v. Harley and the extract from the Canadian Encyclopedic Digest on which the appellant relies are of no assistance. Apart from the complete lack of context and specificity, both speak to mortgages as opposed to charges – the latter are the relevant instruments under the Land Titles Act: s. 93. Notably, unlike the mortgage referred to in the Canadian Encyclopedic Digest reference, a charge does not operate as a transfer of the legal estate in the land to the chargee: Land Registration Reform Act , R.S.O. 1999, c.  L.4, s. 6. These authorities therefore do not appear to relate to the land titles system. [8] [43] In any event, as we have explained, an execution creditor’s remedy against land under a writ of seizure and sale is the right to have the sheriff seize and sell “the lands of the execution debtor”: Execution Act , s. 9. The sheriff steps into the shoes of the execution debtor and can have no higher rights than the execution debtor: Michaud , at paras. 57-63. Further, s. 37 of the Execution Act provides that following a sale of property, the sheriff shall distribute the proceeds of sale in accordance with the Creditors’ Relief Act, 2010 . Among other things, that act establishes the priorities among persons entitled to share in the proceeds of sale following a sheriff’s sale of land. [44] Section 14 of the Creditors’ Relief Act, 2010 gives an execution creditor priority over a charge registered subsequent to an execution. The Creditors’ Relief Act , 2010 does not, however, give an execution creditor priority over subsequent advances made under a charge registered prior to the execution being filed. It is the only section of the Creditors’ Relief Act, 2010 that speaks to priorities between an execution creditor and a chargee or mortgagee. [45] Although not at issue on this appeal, s. 14 of the Creditor’s Relief Act, 2010 may not give an execution creditor of an unregistered beneficial owner of property registered under the Land Titles Act priority over a subsequent charge given by the registered owner. That is because s. 14 addresses only priorities between an execution creditor and a subsequent charge executed by the execution debtor, not a subsequent charge executed by another party. It is not, however, necessary to express any final views on that issue. [46] The appellant pointed to no other authority establishing it is entitled to the declarations it seeks. [47] Although we are satisfied that the appellant is not entitled to the declarations it seeks, these reasons should not be taken as expressing any opinion on how, if at all, a beneficial interest might be protected under the Land Titles Act or how, if at all, an execution creditor seeking to have a sheriff sell a beneficial interest under the Land Titles Act might protect its remedies under that Act. [48] The appeal is dismissed. Costs of the appeal are to the respondent and intervenor on a partial indemnity scale fixed in the amount of $6,700 to Firm Capital and $9,600 to MarshallZehr inclusive of disbursements and HST. “Janet Simmons J.A.” “A. Harvison Young J.A.” “B. Zarnett J.A.” Appendix A Creditors’ Relief Act, 2010 , S.O. 2010, c. 16, Sched. 4, s. 14 14 . (1) This section applies if, (a)  one or more executions are filed with the sheriff; and (b)  after at least one execution is filed with the sheriff, the debtor executes a mortgage or other charge that is otherwise valid on all or part of his or her property. (2) The following rules apply: 1.  The sheriff may sell the encumbered property under an execution filed before the mortgage or charge was given, as if the mortgage or charge had not been given. 2.  The sheriff shall prepare a scheme of distribution of the proceeds of sale of the encumbered property that proposes the distribution of the amount of the proceeds, before taking into consideration the amount owing under the mortgage or charge, i.  firstly among any creditors who have priority under section 2, and ii.  secondly among those creditors whose executions were filed with the sheriff before the mortgage or charge was given. 3.  To the extent the proceeds of sale exceed the total amount plus costs that would be distributed as described in paragraph 2, the scheme of distribution must provide for the distribution to the encumbrancer of the amount owing under the mortgage or charge, or all of the remaining amount if it does not exceed the amount owing. 4.  If proceeds would still remain after the payments proposed under paragraphs 2 and 3, the sheriff shall prepare a separate scheme of distribution of the balance among the creditors who filed executions with the sheriff after the mortgage or charge was given. (3) Section 11, other than subsection 11 (1), and sections 12 and 13 apply if a person who would be affected by a scheme of distribution under this section wishes to object to the proposed distribution. Execution Act , R.S.O. 1990, c. E.24, ss. 1, 9(1); 10; 13; 37 1 In this Act, “writ of execution” includes, (a) a writ of seizure and sale, (b) a writ of seizure and sale of land, (c) a writ of seizure and sale of personal property, (d) a writ of sequestration, (e) a subsequent writ that may issue for giving effect to a writ listed in any of clauses (a) to (d), (f) an order for seizure and sale of personal property, real property or both real property and personal property, (g) any other process of execution issued out of the Superior Court of Justice or the Ontario Court of Justice having jurisdiction to grant and issue warrants or processes of execution. 9 (1) The sheriff to whom a writ of execution against lands is delivered for execution may seize and sell thereunder the lands of the execution debtor, including any lands whereof any other person is seized or possessed in trust for the execution debtor and including any interest of the execution debtor in lands held in joint tenancy. 10 (1)  A writ of execution against real property and personal property or against only personal property and any renewal of it binds the personal property against which it is issued from the time it is filed with the sheriff and entered into the electronic database maintained by the sheriff as the index of writs of execution. (2)  Despite subsection (1), a writ of seizure and sale of personal property issued out of the Small Claims Court, (a)  is not entered into the electronic database maintained as the index of writs of execution; and (b)  is binding on personal property of the execution debtor only from the time the personal property is seized. (3)  Despite subsection (1), no writ of execution against personal property, other than bills of sale and instruments in the nature of chattel mortgages, prejudices the title to the personal property if the personal property is acquired by a person in good faith and for valuable consideration unless the person had notice at the time of acquiring title to the personal property that a writ of execution under which the personal property of the execution debtor might be seized or attached has been filed with the sheriff and remains unexecuted. (4)  A sheriff to whom a writ of execution, a renewal of a writ of execution or a certificate of lien under the Bail Act is directed shall, upon receiving from or on behalf of the judgment creditor the required fee in accordance with the Administration of Justice Act and instructions to do so, shall promptly take the following actions: 1.  Enter the writ, renewal or certificate of lien, as the case may be, in the electronic database maintained by the sheriff as the index of writs of execution. 2.  Indicate in the electronic database that the writ, renewal or certificate of lien, as the case may be, affects real property governed by the Land Titles Act . (5)  As part of maintaining the electronic database that is the index of writs of execution, the sheriff shall do the following: 1.  Assign consecutive numbers in the electronic database to each writ and certificate of lien in the order in which the writs and certificates of lien are entered in the database. 2.  Note in the electronic database the effective date of each writ, renewal of a writ and certificate of lien. 3.  Give access to the electronic database to the land registrar of each land titles division wholly or partially within the sheriff’s jurisdiction. (6)  Subject to section 11 and the Land Titles Act , a writ of execution, a renewal of it or a certificate of lien under the Bail Act binds the lands against which it is issued from the effective date of the writ, renewal or certificate noted in the electronic database maintained by the sheriff as the index of writs of execution. (7)  The date of receiving a writ, a renewal of it or a certificate of lien referred to in clause 136 (1) (d) of the Land Titles Act is deemed to be the effective date referred to in subsection (6). 13 Subject to the Courts of Justice Act and the rules of court, land and other hereditaments and real estate belonging to any person indebted are liable to and chargeable with all just debts, duties and demands of whatsoever nature or kind owing by any such person to Her Majesty or to any of her subjects and are assets for the satisfaction thereof and are subject to the like remedies, proceedings and process for seizing, selling or disposing of them towards the satisfaction of such debts, duties and demands, and in like manner as personal estate is seized, sold or disposed of. 37 The money and proceeds from property received by a sheriff under an execution or as a result of executing a writ of execution shall be applied and distributed by the sheriff in accordance with the Creditors’ Relief Act, 2010 . Land Registration Reform Act , R.S.O. 1990, c. L.4, s. 6 6 (1) A charge does not operate as a transfer of the legal estate in the land to the chargee. (2) A charge ceases to operate when the money and interest secured by the charge are paid, or the obligations whose performance is secured by the charge are performed, in the manner provided by the charge. (3) Despite subsection (1), a chargor and chargee are entitled to all the legal and equitable rights and remedies that would be available to them if the chargor had transferred the land to the chargee by way of mortgage, subject to a proviso for redemption. Land Titles Act , R.S.O. 1990, c. L.5, ss. 61; 62(1), (2); 71; 72; 93(4); 136 61 (1) No person shall be registered as owner of an undivided share in freehold or leasehold land or of a charge apart from the other share or shares. (2) Where the extent of a co-owner’s interest is not shown on the register, the co-owner may, (a) transfer or charge a specified share in the land or transfer a share in the charge, as the case may be, upon providing the Director of Titles with proof of the co-owner’s percentage of ownership in the manner specified by the Director of Titles; or (b) transfer or charge all of the co-owner’s unspecified share. 62 (1)  A notice of an express, implied or constructive trust shall not be entered on the register or received for registration. (2)  Describing the owner of freehold or leasehold land or of a charge as a trustee, whether the beneficiary or object of the trust is or is not mentioned, shall be deemed not to be a notice of a trust within the meaning of this section, nor shall such description impose upon any person dealing with the owner the duty of making any inquiry as to the power of the owner in respect of the land or charge or the money secured by the charge, or otherwise, but, subject to the registration of any caution or inhibition, the owner may deal with the land or charge as if such description had not been inserted. 71 (1)  Any person entitled to or interested in any unregistered estates, rights, interests or equities in registered land may protect the same from being impaired by any act of the registered owner by entering on the register such notices, cautions, inhibitions or other restrictions as are authorized by this Act or by the Director of Titles. (1.1) An agreement of purchase and sale or an assignment of that agreement shall not be registered, but a person claiming an interest in registered land under that agreement may register a caution under this section on the terms specified by the Director of Titles. (2) Where a notice, caution, inhibition or restriction is registered, every registered owner of the land and every person deriving title through the registered owner, excepting owners of encumbrances registered prior to the registration of such notice, caution, inhibition or restriction, shall be deemed to be affected with notice of any unregistered estate, right, interest or equity referred to therein. 72 (1)  No person, other than the parties thereto, shall be deemed to have any notice of the contents of any instruments, other than those mentioned in the existing register of title of the parcel of land or that have been duly entered in the records of the office kept for the entry of instruments received or are in course of entry. 72 (1) No person, other than the parties thereto, shall be deemed to have any notice of the contents of any instruments, other than those mentioned in the existing register of title of the parcel of land or that have been duly entered in the records of the office kept for the entry of instruments received or are in course of entry. (2) For the purposes of subsection (1), the highways register provided for in the regulations shall be deemed to be a record kept for the entry of instruments. (3) Subject to the regulations, the Trans-Canada Pipe Line register provided for in the regulations shall be deemed, for the purposes of this Act, to be a register of the title of land or interests therein, including easements, owned by TransCanada PipeLines Limited. 93 (1) A registered owner may in the prescribed manner charge the land with the payment at an appointed time of any principal sum of money either with or without interest or as security for any other purpose and with or without a power of sale. (2) A charge that secures the payment of money shall state the amount of the principal sum that it secures. (3) The charge, when registered, confers upon the chargee a charge upon the interest of the chargor as appearing in the register subject to the encumbrances and qualifications to which the chargor’s interest is subject, but free from any unregistered interest in the land. (4)  A registered charge is, as against the chargor, the heirs, executors, administrators, estate trustees and assigns of the chargor and every other person claiming by, through or under the chargor, a security upon the land thereby charged to the extent of the money or money’s worth actually advanced or supplied under the charge, not exceeding the amount for which the charge is expressed to be a security, although the money or money’s worth, or some part thereof, was advanced or supplied after the registration of a transfer, charge or other instrument affecting the land charged, executed by the chargor, or the heirs, executors, administrators or estate trustees of the chargor and registered subsequently to the first-mentioned charge, unless, before advancing or supplying the money or money’s worth, the registered owner of the first-mentioned charge had actual notice of the execution and registration of such transfer, charge or other instrument, and the registration of such transfer, charge or other instrument after the registration of the first-mentioned charge does not constitute actual notice. (5) An instrument in the nature of a deed of trust and mortgage that provides for the issuance of bonds or debentures may be registered as a charge upon the lands of the grantor, and the entry in the register shall state the aggregate principal sum and the rate of interest of such bonds or debentures. (6) Repealed :  1998, c. 18, Sched. E, s. 135 (4). (7) Repealed :  1998, c. 18, Sched. E, s. 135 (4). (8) A charge registered under subsection (5) may be discharged by a cessation in the prescribed form. (9) A charge in the form of a debenture or similar instrument shall not be registered unless the name of the person entitled to receive the money payable thereunder and to give a discharge thereof is set out in the instrument. 136 (1)  A sheriff to whom a writ of execution, a renewal of a writ of execution or a certificate of lien under the Bail Act is directed shall, upon receiving from or on behalf of the judgment creditor the required fee and instructions to do the actions described in clauses (a) and (b), forthwith, (a)  enter the writ, renewal or certificate of lien, as the case may be, in the electronic database that the sheriff maintains for writs of execution; (b)  indicate in the electronic database that the writ, renewal or certificate of lien, as the case may be, affects land governed by this Act; (c)  assign a number in the electronic database consecutively to each writ, renewal and certificate of lien in the order of receiving it; (d)  note in the electronic database the date of receiving each writ, renewal and certificate of lien; and (e)  give the land registrar of each land titles division wholly or partially within the sheriff’s territorial jurisdiction access to the electronic database. (2)  No registered land is bound by any writ of execution, renewal or certificate of lien mentioned in subsection (1) until the sheriff has complied with that subsection. (3)  No sale or transfer under a writ of execution or certificate of lien mentioned in subsection (1) is valid as against a person purchasing for valuable consideration before the sheriff has complied with that subsection, although the purchaser may have had notice of the writ or certificate of lien, as the case may be. (6)  A writ of execution or certificate of lien mentioned in subsection (1) has no effect under this Act if it is issued against the registered owner under a different name from that under which the owner is registered. (7)  A writ of execution, renewal or certificate of lien mentioned in subsection (1) does not bind land being transferred or charged as against the transferee or chargee if the land registrar, (a)  decides that the name of the execution debtor appearing in the writ, renewal or certificate of lien, as the case may be, and the name of the registered owner as it appears in the records of the land registry office of the land registrar do not represent the same person; and (b)  does one of the following: 1.  Issues a certificate to the effect that the land registrar has made the decision described in clause (a). 2.  In the case of a transfer, registers the transfer free of the writ, renewal or certificate of lien, as the case may be. (8)  No additional fee is payable to the sheriff or to the land registrar in respect of a certificate under section 12 of the Execution Act . [1] All legislative provisions referred to in this decision are reproduced in full in Appendix A. [2] Although s. 62(1) of the Land Titles Act prohibits registration of notice of an express, implied or constructive trust, s. 68(2) states: 68(2) Subject to the maintenance of the estate and right of the registered owner a person having a sufficient estate or interest in the land may create estates, rights, interests and equities in the same manner as the person might do if the land were not registered. See also ss. 71 and 72 concerning the protection of and effect of unregistered instruments. [3] In its appeal factum, the appellant confirmed that Firm Capital received actual notice of the appellant’s writ of seizure and sale on February 13, 2018. Accordingly, on appeal the appellant seeks a declaration that any advances to Pace Mark from Firm Capital made after February 13, 2018 rank subordinate to its interest. [4] The appellant obtained a writ of seizure and sale to enforce its judgment under rule 60.07 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. Under s. 1 of the Execution Act , “writ of execution” is defined as including a writ of seizure and sale. [5] Sherlick v. Harley is apparently unreported save for this headnote. The headnote refers to the court that made the decision as unknown. [6] Although not applicable in this case, it may be noteworthy that s. 62(2) reads, in part, as follows: 62(2) Describing the owner of freehold land … as a trustee, whether the beneficiary or object of the trust is or is not mentioned, shall be deemed not to be a notice of a trust within the meaning of this section, nor shall such description impose upon any person dealing with the owner the duty of making any inquiry as to the power of the owner in respect of the land … but, subject to the registration of any caution or inhibition , the owner may deal with the land … as if such description had not been inserted. [Emphasis added.] [7] Note however that a bona fide purchaser for value at a sheriff’s sale who registers prior to registration of a prior unregistered beneficial interest may acquire priority over the beneficial interest: Jellet v. Wilkie , cited in Michaud , at para. 63. [8] Section 6(2) of the Land Titles Act reads: The system of registration under this Act shall be known as the land titles system.

COURT OF APPEAL FOR ONTARIO CITATION: 2484234 Ontario Inc. v. Hanley Park Developments Inc., 2020 ONCA 273 DATE: April 29, 2020 DOCKET: C67171 Tulloch, van Rensburg and Zarnett JJ.A. BETWEEN 2484234 Ontario Inc. Applicant (Appellant) and Hanley Park Developments Inc. Respondent (Respondent) Richard P. Quance, for the appellant Howard J. Alpert and Vivian Xu, for the respondent Heard: February 7, 2020 On appeal from the judgment of Justice Jane Ferguson of the Superior Court of Justice, dated June 13, 2019, with reasons reported at 2019 ONSC 3696. Zarnett J.A.: OVERVIEW [1] The appellant appeals the denial of its claim for rectification of a document, entitled “Transfer Agreement”, that it entered into with the respondent. Under the Transfer Agreement, the respondent was to transfer, and provide an easement over, certain lands. The appellant required this transfer and easement to construct an access road to a proposed subdivision the appellant had acquired. The appellant’s rectification request was to add additional lands to those specified in the Transfer Agreement; the lands specified in the Transfer Agreement were insufficient to build the access road. [2] Rectification is an equitable remedy available to correct a document that fails to accurately record the parties’ true agreement. It is not available to correct an improvident bargain or to fill a gap in the parties’ true agreement, even when the omission defeats what one (or both) of the parties was seeking to achieve. As an equitable remedy, it is also not available when the party seeking it does not have “clean hands”. [3] For the reasons that follow, I conclude that the application judge erred in finding that the appellant did not meet the test for rectification. The parties’ true agreement was not accurately recorded in the Transfer Agreement. The appellant’s conduct did not disentitle it to equitable relief. I would therefore allow the appeal. FACTS [4] On February 8, 2017, the appellant, 2484234 Ontario Inc., [1] entered into an Agreement of Purchase and Sale (the “February Agreement”) with the respondent, Hanley Park Developments Inc. The February Agreement provided for the appellant to purchase certain lands (the “Development Lands”) from the respondent located in the City of Belleville (the “City”). The respondent had obtained conditional approval of a Draft Plan of Subdivision contemplating 258 residential dwelling units on the Development Lands. [5] The purchase price for the Development Lands under the February Agreement was $4.3 million; the closing date was March 9, 2017. [6] The February Agreement was conditional for a 10-day period during which the appellant was permitted to conduct due diligence with respect to, among other things, the “conditions of draft approval and other conditions imposed by any governmental authority”. On February 18, 2017, the appellant waived its rights under that provision. [7] One of the conditions of approval of the Draft Plan of Subdivision was that there be an access road to connect the proposed subdivision on the Development Lands to an existing road, Janlyn Crescent, which, at the time, ended before it reached the border of the Development Lands. To meet that condition, a road (the “Access Road”) had to be built across a neighbouring property (the “Adjacent Property”) to connect the Development Lands to Janlyn Crescent. [8] The respondent owned the Adjacent Property. The Adjacent Property was not included in the lands to be conveyed by the respondent under the February Agreement. The respondent’s principal gave evidence that the respondent intended to apply for approval to build residential lots on certain portions of the Adjacent Property. [9] Shortly before the February Agreement’s scheduled closing date, there were dealings between the parties concerning the Access Road. [10] On March 6, 2017, Mr. Gord Patterson, an engineer, sent an email to representatives of both the appellant and the respondent. He stated: “Parts 1, 2, 3 and 4 are required for the Janlyn connection. The alignment of this connection has been the subject of much review by the City. It would not surprise me if they wanted to further review and adjust when faced [sic] the actual dedication” (emphasis added). [11] The “Parts” referred to in Mr. Patterson’s email are parts of the Adjacent Property. Mr. Patterson is described in the evidence as the engineer for the project. Counsel for the appellant advised in argument that the project engineer was hired by the respondent. [12] On March 7, 2017, the appellant’s lawyer wrote to the respondent’s lawyer referring to the condition of Draft Subdivision approval that called for a connection to Janlyn Crescent. He stated: “…it has come to our attention that your client owns an adjacent property, which in part, is required for the Janlyn Crescent connection.” The letter asked if the respondent would be agreeable to selling the Adjacent Property on terms whereby the respondent would have an option to purchase back, for $1.00, “those certain lands of the Adjacent Property which are not required for the said Janlyn Crescent connection.” The letter reiterated that this was because “access from Janlyn Crescent is required for final plan approval by the City”. The letter also requested an 8-day extension of the closing date for the acquisition of the Development Lands. [13] The same day, March 7, 2017, the respondent’s lawyer wrote back to the appellant’s lawyer. This letter stated that the respondent was not prepared to extend the closing date for the Development Lands or to sell the entire Adjacent Property. However, the letter went on to state that the respondent was prepared to transfer and grant an easement over a portion of the Adjacent Property. The letter stated: “My client, so as to assist your client and on a without prejudice basis, is prepared to do the following: 1. Convey to your client the parcel of land outlined as Parts 1, 2, 3 and 4 on the attached draft reference plan. The Engineer for the project has advised my client that these 4 parts will be sufficient for the road which is to be built to access the subdivision. 2. My client will apply for a severance of those lands namely Parts 1, 2, 3, and 4 on the draft reference plan from its retained lands and will either convey it to your client or to the municipality. All costs associate [sic] with the severance to be borne by your client together with the registration of same; 3. Lots 38, 39 and 40 will be effected [sic] by the severance. Lot 40 will be conveyed in its entirety and the frontages of Lots 38 and 39 will be affected. My client requires as a condition of the transfer to your client or the municipality, at your client’s expense that the municipal services presently at the lot line of Lots 38 and 39 will be restored to the new lot line to be created after the severance. 4. So as to facilitate the development of the proposed subdivision my clients will provide a temporary easement over the said Parts 1, 2, 3 and 4 on the draft reference plan for a term being the earlier of five (5) years or until the severance is obtained. Please advise whether the above is acceptable to your client.” [14] As I explain below, the application judge implicitly proceeded on the basis that the terms of the March 7, 2017 letter from the respondent’s lawyer were accepted by the appellant and that they were the basis for the Transfer Agreement described below. [15] On March 9, 2017, the closing date for the February Agreement, the appellant and respondent entered into the Transfer Agreement, which was a formal agreement relating to a transfer and easement over part of the Adjacent Property (the “Transfer Agreement”). [2] The Transfer Agreement referred to Parts 1, 2, 3 and 4 on a draft reference plan that was attached, and defined these parts as the “Property”. It then provided for a number of things to occur. Those material to this appeal were the following. [16] First, the Transfer Agreement either required the appellant to obtain a severance of the Property from the balance of the Adjacent Property, or alternatively, gave the appellant the right to direct the respondent to transfer the Property to the City (“Clause 1”). Second, the Transfer Agreement provided that the respondent would use its best efforts to cooperate with the appellant in connection with the severance of the Property. In that regard, that is, in regard to the severance, the respondent was required to execute any necessary documents within 7 business days of a written request; if the respondent failed to do so, the Transfer Agreement permitted the appellant to execute the necessary documents for the severance as attorney for the respondent (“Clause 2”). The appellant was also required to use its best efforts to obtain the severance (“Clause 7”). Third, the Transfer Agreement required the appellant to “obtain the consent from the Committee of Adjustment for the Severance or the transfer of the Property to the City by no later than September 9, 2018”, failing which the Transfer Agreement would become null and void (“Clause 3”). Fourth, the Transfer Agreement required the appellant to restore the municipal services to the new lot line that would be created following the severance and construction of the new Access Road (“Clause 5”). Finally, the Transfer Agreement required the respondent to provide a temporary easement over the Property until the earlier of (a) a period of five years, (b) the severance being obtained, or (c) the transfer to the City occurring (“Clause 6”). [17] On March 9, 2017, pursuant to the Transfer Agreement, the respondent granted the appellant a formal easement over Parts 1, 2, 3 and 4 for the construction of a roadway. The formal easement document provided that the appellant could “enter on,…exit from…pass and repass at any and all times in, over, along, upon, across, through and under [Parts 1, 2, 3 and 4]…for the purposes necessary or convenient to the exercise and enjoyment of the [appellant’s] rights herein and for the purpose of accessing to and from Janlyn Crescent the [Development Lands] ” (emphasis added). [18] At some point prior to the September 9, 2018 deadline for consent to severance or transfer to the City of the lands described in the Transfer Agreement, the appellant discovered that Part 5 of the Adjacent Property was also required for the Access Road. There is some evidence that it was the City that alerted the appellant to this. [19] Part 5 is a narrow sliver of land in an important location. It abuts the Development Lands on one side and Part 4 on the other. Without Part 5, a road over Parts 1, 2, 3 and 4 would not connect Janlyn Crescent to the Development Lands. The respondent’s representative conceded on cross-examination that he had been aware of this at all relevant times. He was always aware that, without Part 5, Parts 1 to 4 of the Adjacent Property were not sufficient for the Access Road. [20] On August 27, 2018, pursuant to the alternative option provided for in the Transfer Agreement, the appellant elected that, instead of a severance, the lands that were the subject of the Transfer Agreement should be transferred to the City. On August 30, 2018, the appellant’s lawyer sent an email to the respondent’s lawyer advising that she had sent him a transfer document to effect this transfer. The respondent’s lawyer reviewed the transfer document and discovered that it included Parts 1 to 5 of the Adjacent Property, even though Part 5 was not referenced in the definition of Property in the Transfer Agreement. The respondent objected to this transfer document because of the inclusion of Part 5. [21] After the respondent refused to execute a transfer document which included Part 5, the appellant, on September 7, 2018, provided a transfer document for the respondent’s execution in favour of the City for Parts 1, 2, 3 and 4. It was not executed, as the respondent took the position that it was entitled to 7 business days to sign. The respondent then took the position that the Transfer Agreement became null and void on September 10, 2018, in the absence of a consent to a severance or a transfer to the City having occurred by September 9, 2018. THE DECISION BELOW [22] The appellant commenced an application seeking rectification of the Transfer Agreement to include Part 5 and seeking specific performance of the Transfer Agreement, as rectified. The application was dismissed. [23] The application judge accepted the submission of appellant’s counsel that the appellant’s claim for rectification was one based on its unilateral mistake about the Transfer Agreement: at para 27. While the application judge did not elaborate on this point, she appears to have accepted that the appellant was mistaken about whether the Transfer Agreement covered lands sufficient for the Access Road, and that the respondent was not similarly mistaken. As mentioned above, the respondent’s principal gave evidence during the course of the application that he was always aware that the Transfer Agreement only included Parts 1 to 4 and that they were insufficient for the Access Road. [24] The application judge noted that rectification is an equitable remedy which the appellant could not obtain if it came to court with “unclean hands”. She held that the claim for rectification failed under this doctrine because the appellant breached certain terms of the Transfer Agreement and was therefore disentitled to equitable relief: at paras. 39-41. [25] Specifically, the application judge concluded that the appellant breached Clause 7 of the Transfer Agreement by failing to use its best efforts to obtain the approval of the Committee of Adjustments for a severance; that the requirements of Clause 5 were not satisfied because the appellant failed to restore the municipal services to the new lot line by the date of the registration of the transfer; and that the Transfer Agreement was null and void under Clause 3 because the appellant did not give the respondent 7 days to execute the transfer document in favour of the City and thus missed the September 9, 2018 deadline: at para. 40. [26] In addition, the application judge held that the appellant’s claim did not meet the test for rectification applicable to a case of unilateral mistake (a case where the assertion is that one party was mistaken about the terms of the formal document even though the other party was not). She articulated the test for rectification set out by the Supreme Court of Canada in Canada (Attorney General) v. Fairmont Hotels Inc. , 2016 SCC 56, [2016] 2 S.C.R. 720, at paras. 31-32 of her reasons, as follows: In Fairmont , the Supreme Court of Canada held that, where the error of the instrument results from a common mistake, rectification of an agreement is available upon the court being satisfied that, (i) The parties had reached a prior agreement whose terms are definite and ascertainable; (ii) The agreement was still effective when the instrument was executed; (iii) The instrument fails to record accurately that prior agreement; and (iv) If rectified as proposed, the instrument would carry out the agreement. In the case of a unilateral mistake, Fairmont also held that, in addition to the four requirements set out above, the court must also be satisfied that, (v) the party resisting rectification knew or ought to have known about the mistake; and (vi) permitting that party to take advantage of the mistake would amount to ‘fraud or the equivalent of fraud’. [See Fairmont , at paras. 14-15.] [27] The application judge concluded that the appellant’s claim failed to meet steps (iii) and (vi) of the Fairmont test: at paras. 42-44. With respect to step (iii), she held that the Transfer Agreement accurately recorded the prior agreement because “Part 5 was never discussed nor made the subject matter of a prior agreement”: at para. 43. With respect to step (vi), she held that permitting the respondent to take advantage of the appellant’s mistake did not amount to fraud or its equivalent in this case because there was no clause requiring the respondent to convey “all lands necessary for the development of the access road”, the respondent did not intentionally deceive the appellant, and the appellant should have verified the boundaries pursuant to the due diligence condition: at para. 44. [28] The application judge did not consider whether, had she granted rectification, specific performance of the Transfer Agreement as rectified would have been the appropriate remedy. ISSUES AND PARTIES’ POSITIONS [29] The parties agree that the application judge correctly set out the test for rectification and correctly treated the appellant’s claim as requiring fulfillment of all six elements set out in para. 26 above (as the appellant’s claim was one of unilateral mistake). The parties also agree that rectification is an equitable remedy that can be denied to a party under the clean hands doctrine. [30] The appellant makes two submissions with respect to the main issues on appeal. First, it asserts that the application judge erred in her approach and application of the test for rectification. The appellant argues that the parties’ correspondence makes it clear that the appellant was seeking a transfer of and easement over the parts of the Adjacent Property that would allow development of the Access Road and that the respondent communicated that it was agreeable to doing so, even while it was specifying one less part of its property than it knew would be sufficient. [31] Second, the appellant submits that the application judge made palpable and overriding errors in finding that it had breached the Transfer Agreement and was therefore disentitled to equitable relief. [32] The respondent does not dispute that it knew that Parts 1 to 4 were insufficient for the construction of the Access Road. However, it states that the application judge was right—it simply never agreed to transfer Part 5 and that rectification is therefore unavailable. The respondent’s position is that the appellant should have verified what it needed and cannot now complain if it signed an agreement that did not achieve its goals. Further, the respondent submits that the application judge did not err in determining that the appellant breached the Transfer Agreement and thus lacked clean hands. [33] The parties’ positions raise in sharp relief the extent of, and limits on, the remedy of rectification. Because of the nature of the issues, I address first whether the appellant has a proper claim for rectification. I then turn to whether the doctrine of clean hands bars what otherwise would be an entitlement to the remedy. ANALYSIS (1) Parameters of the Rectification Remedy [34] The six-step test articulated in Fairmont is best understood in light of the discussion in that case about the parameters of the rectification remedy. Writing for the majority, Brown J. underscored the importance of distinguishing between what rectification can do, which is correct a document to accord with what was agreed, and what it cannot do, which is change an agreement to make it achieve a party’s desired result: Rectification is limited to cases where the agreement between the parties was not correctly recorded in the instrument that became the final expression of their agreement [citation omitted]. It does not undo unanticipated effects of that agreement. While, therefore, a court may rectify an instrument which inaccurately records a party’s agreement respecting what was to be done, it may not change the agreement in order to salvage what a party hoped to achieve: Fairmont , at para. 3. [35] At para. 13 of Fairmont , Brown J. stressed that while rectification corrects mistakes in the recording of a prior agreement, it is not available to correct mistakes in the prior agreement itself: It bears reiterating that rectification is limited solely to cases where a written instrument has incorrectly recorded the parties’ antecedent agreement (Swan and Adamski, at §8.229). It is not concerned with mistakes merely in the making of that antecedent agreement: E. Peel, The Law of Contract (14th ed. 2015), at para. 8-059; Mackenzie v. Coulson (1869), L.R. 8 Eq. 368, at p. 375 (“Courts of Equity do not rectify contracts; they may and do rectify instruments”). In short, rectification is unavailable where the basis for seeking it is that one or both of the parties wish to amend not the instrument recording their agreement, but the agreement itself . More to the point of this appeal, and as this Court said in [ Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd. , 2002 SCC 19, [2002] 1 S.C.R. 678, at para. 31], “[t]he court’s task in a rectification case is…to restore the parties to their original bargain, not to rectify a belatedly recognized error of judgment by one party or the other.” [36] The majority in Fairmont used different terms to describe what must be found to have existed so that rectification can bring a formal document into conformity with it: the parties’ “true agreement” (para. 12); their “prior” or “antecedent” agreement (para. 14); and their “original bargain” (para. 13). These terms are variations on a theme and should be considered together. The search for something “prior”, “antecedent” or “original” connotes a search for something that existed in fact before the allegedly mistaken formal document; the terms “agreement”, “bargain” and “true” underscore that what existed must, like any agreement, be interpreted so as to derive what the parties actually agreed to—their “true agreement”. [37] But what the majority in Fairmont made clear is that rectification cannot go beyond what the parties truly agreed to—the meaning properly given to their agreement—into the realm of what one or both parties may have intended as a result or was hoping to achieve, but that was never made part of the “true” agreement. [38] This distinction is illustrated by the facts of Fairmont . In 2002 and 2003, Fairmont Hotels Inc. (“Fairmont”) and two of its subsidiaries had participated in a financing arrangement with a third party, involving reciprocal loans. Fairmont entered into those arrangements with the goal of ensuring foreign exchange tax neutrality. In 2006, a change in Fairmont’s ownership led to a modified plan which allowed Fairmont to fully hedge its exposure to foreign exchange tax, without addressing that of its subsidiaries. The “matter of similarly protecting the subsidiaries from exposure was deferred, without any specific plan as to how that might be achieved”: Fairmont , at para. 5. [39] In 2007, overlooking the fact that nothing had been done to protect the subsidiaries from tax exposure, but wishing to terminate the reciprocal loan arrangements at the third party’s request, Fairmont redeemed its shares in the subsidiaries. This transaction resulted in a tax liability. Fairmont’s rectification request was to change the share redemption to a loan between Fairmont and the subsidiaries in order to avoid the tax liability: Fairmont , at paras. 6-7. [40] This rectification request failed, however, because there was no variation between any prior agreement and the formal document sought to be rectified. The prior agreement only contemplated a redemption of shares, and moreover, fulfilled the contractual objective of terminating the reciprocal loan arrangements. The same was true of the formal document. The variation that occurred was between the tax effect Fairmont intended to accompany its contractual objective—tax neutrality—and the tax effect of the agreed upon share redemption—adverse taxes. This was insufficient to allow rectification because: [R]ectification corrects the recording in an instrument of an agreement (here, to redeem shares). Rectification does not operate simply because an agreement failed to achieve an intended effect (here, tax neutrality) — irrespective of whether the intention to achieve that effect was “common” and “continuing”…Rectification does not correct common mistakes in judgment that frustrate contracting parties’ aspirations or, as here, unspecified “plans”; it corrects common mistakes in instruments recording the terms by which parties, wisely or unwisely, agreed to pursue those aspirations: Fairmont , at paras. 30-31. (2) Identification of the Prior Agreement in this Case [41] An important question in any claim for rectification is a central question in this one: did the parties have an agreement that preceded the document sought to be rectified (the Transfer Agreement), and if so, what were the terms of that prior agreement and what did they mean? It is only by answering this question that one can address whether the appellant is seeking to correct an error in the recording of the parties’ true agreement, or is seeking to insert something that was never the subject of a prior agreement. [42] The existence of any agreement is a question of mixed fact and law: Purves et al. v. Chisel , 2011 MBCA 57, 268 Man. R. (2d) 148, at para. 11; Imperial Pacific Greenhouses Ltd. v. R. , 2011 FCA 79, 420 N.R. 71, at para. 10. [43] Here, the application judge was satisfied that there was a prior agreement. As noted above, she held that the appellant did not have a proper claim for rectification because it did not satisfy two steps of the Fairmont test, steps (iii) and (vi). The application judge did not find a failure to meet steps (i) or (ii), which, in this case, involve there being a prior agreement with definite and ascertainable terms that continued in force until the signing of the formal Transfer Agreement. Step (iii), which the application judge found not to be fulfilled, presupposes the existence of a prior agreement since it calls for a comparison between the prior agreement and the document sought to be rectified. This comparison can only be done if a prior agreement exists. The application judge made that very comparison. In finding a failure to meet step (iii), the application judge stated: “the agreement to convey Parts 1, 2, 3, and 4 accurately records the prior agreement ” (emphasis added): at para. 43. [44] Although the application judge was clearly satisfied that there was a prior agreement, she did not expressly identify where the terms of the antecedent agreement were found nor comprehensively describe their content. [45] In my view, there is only one document that the application judge could have been referring to as containing the terms of the antecedent agreement, and that is the respondent lawyer’s letter of March 7 (excerpted at para. 13 of these reasons). This March 7 letter set out terms and called for their acceptance. Although the application judge did not make a finding of express acceptance of the March 7 letter, she was entitled to infer acceptance given the absence of any dispute to its terms or of any continuing negotiations after the correspondence leading up to the Transfer Agreement. The application judge’s finding that there was a prior agreement, as understood within the meaning of the rectification test, means that the March 7 letter from the respondent’s lawyer, as opposed to any other negotiations, terms or proposals, was the basis on which the parties moved forward to the Transfer Agreement. [46] I do not consider the fact that the terms in the March 7 letter were presented on a without prejudice basis, as respondent’s counsel emphasized in argument, to be an obstacle to this conclusion. The without prejudice language would not necessarily continue to have force upon acceptance of the terms of the letter. Moreover, for the purposes of rectification, the antecedent agreement need not be a binding agreement or contain all of the relevant terms of a complete agreement. It must only express the parties’ agreement on specific terms, and do so in a way which is definite, ascertainable and continuing, even if the antecedent agreement is intended to be preliminary to a more formal agreement: John D. McCamus, The Law of Contracts , 2nd ed. (Toronto: Irwin Law, 2012) at pp. 588-589. (3) Interpretation of the Prior Agreement [47] The next question to be determined is the meaning of the terms of the prior agreement. Indeed, a Fairmont analysis cannot be properly undertaken without determining what the terms of the prior or antecedent agreement mean. [48] The application judge made three findings that, according to her, indicated what the antecedent agreement did not provide for: that the respondent gave evidence that its intention was only to convey Parts 1, 2, 3 and 4 (at para. 37); that “[n]o representations or warranties were provided with respect to the required Parts for the access road” (at para. 38); and that “[t]he conveyance of Part 5 was never discussed let alone made the subject matter of a prior agreement” (at para. 43). In my view, she made reversible errors in coming to these conclusions. [49] The application judge did not advert to the actual text of the antecedent agreement or identify or apply the interpretive principles employed to determine the meaning of the words used. Indeed, the approach she adopted is contrary to the applicable interpretive principles. As a result, her interpretation is not subject to deference: Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 53. [50] For example, the application judge relied on the evidence of the respondent that it did not intend to transfer more than Parts 1 to 4. Although this fact may be relevant to other parts of the rectification analysis (specifically steps (v) and (vi)), it is irrelevant to the meaning of the antecedent agreement, which is determined objectively. [51] The principles of contractual interpretation exclude consideration of either party’s subjective intention in determining whether the parties reached an agreement. In Olivieri v. Sherman , 2007 ONCA 491, 86 O.R. (3d) 778, at para. 44, this court re-stated the principle that only objective factors are relevant in determining whether the parties reached a consensus: As was stated by Middleton J.A. in [ Lindsey v. Heron Co. (1921), 64 D.L.R. 92 (Ont. C.A.)] at 98-9, quoting Corpus Juris , vol. 13 at 265: The apparent mutual assent of the parties essential to the formation of a contract, must be gathered from the language employed by them, and the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. It judges his intention by his outward expressions and excludes all questions in regard to his unexpressed intention. If his words or acts, judged by a reasonable standard, manifest an intention to agree in regard to the matter in question, that agreement is established, and it is immaterial what may be the real but unexpressed state of his mind on the subject. [52] Equally, evidence of a party’s subjective intention is irrelevant to what the parties’ agreement means: Eli Lilly & Co. v. Novopharm Ltd. , [1998] 2 S.C.R. 129, at para. 54; Sattva , at paras. 59-61. [53] The principle that subjective intentions are ignored when interpreting an agreement is also applicable to interpreting an antecedent agreement in rectification cases: McLean v. McLean , 2013 ONCA 788, 313 O.A.C. 364, at para. 61. In Fairmont , at para. 29, the court quoted the following from the English Court of Appeal in Frederick E. Rose (London) Ld. v. William H. Pim Jnr. & Co. , [1953] 2 Q.B. 450 (C.A.), at p. 461: Rectification is concerned with contracts and documents, not with intentions. In order to get rectification it is necessary to show that the parties were in complete agreement on the terms of their contract, but by an error wrote them down wrongly; and in this regard, in order to ascertain the terms of their contract, you do not look into the inner minds of the parties — into their intentions — any more than you do in the formation of any other contract. [54] For this reason, the application judge’s reliance on the respondent’s subjective intention not to transfer more than Parts 1, 2, 3 and 4 was an error, as it was immaterial to the meaning of the antecedent agreement. [55] Not only did the application judge take into account irrelevant subjective intentions, she failed to analyze the words that did appear in the antecedent agreement in light of the factual matrix, as is required to interpret an agreement: Sattva , at paras. 50 and 57. The March 7 letter from the respondent’s lawyer contains two clauses that bear on the interpretation of what was to be conveyed. These were not adverted to or analyzed by the application judge. [56] First, the description of what would be transferred does not end with a reference to Parts 1 to 4. Instead, that reference is followed by the clause: “The Engineer for the project has advised my client [the respondent] that these 4 parts will be sufficient for the road which is to be built to access the subdivision.” This statement goes beyond what was in Mr. Patterson’s email to both parties. It instead refers to advice given directly to the respondent that describes what will be conveyed in functional terms, its key attribute being that it will be sufficient for the building of the Access Road. The statement is not qualified by anything indicating that the respondent holds a contrary view. Of critical importance, the statement that the respondent had received professional advice about the sufficiency of what will be conveyed and its implied corollary that the respondent held no contrary view, is included as part of the terms the respondent offered that, upon acceptance, became part of the antecedent agreement. [57] Second, the March 7 letter provided for an easement over the same lands as were to be transferred “to facilitate the development of the proposed subdivision”. This is another description of what was to be conveyed expressed in terms of its relationship to the ability to build the Access Road (and thus facilitate development of the proposed subdivision). The description of what the easement will accomplish—facilitate development—is also made part of the terms that formed the antecedent agreement. [58] Two important consequences flow from a consideration of this language. [59] First, these terms of the antecedent agreement make this case quite different from Fairmont . That the lands conveyed would be sufficient to build the Access Road and would facilitate development was not simply an “aspiration”, an “unspecified plan”, an “intended effect”, or an “inchoate or otherwise undeveloped “intent””, as was tax neutrality in Fairmont : see Fairmont , at paras. 30 to 31. That the lands would be sufficient for the Access Road and thus facilitate development is addressed in the terms of the antecedent agreement itself. [60] Second, the application judge’s statement that there was no representation or warranty by the respondent as to what was required for the Access Road was made without adverting to these terms, let alone giving them meaning. An agreement must be interpreted as a whole and by giving meaning to all of its terms: Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust , 2007 ONCA 205, 222 O.A.C. 102, at para. 24(a). [61] What meaning should be ascribed to the antecedent agreement stipulating that Parts 1 to 4 would be conveyed, but also stipulating that the respondent had received professional advice that Parts 1 to 4 were sufficient for the Access Road and that an easement over those lands would facilitate development, without any qualification that the respondent held a different view? Although the words “represent” or “warrant” are not used, in my view, the language is most reasonably interpreted as having a similar effect, given that representations and warranties in an agreement are a manner of allocating risk between the parties: 0759594 B.C. Ltd. v. 568295 British Columbia Ltd. , 2013 BCCA 381, 49 B.C.L.R. (5th) 67, at para. 41. [62] The language of the March 7 letter is usefully compared to the agreement considered in Lee v. 1435375 Ontario Ltd. , 2013 ONCA 516, 310 O.A.C. 187, at paras. 77-80. In Lee , the only term about zoning in an unconditional purchase agreement was one that specified that the real estate broker had advised the parties to obtain their own independent professional advice. That agreement was held to have allocated the risk of zoning to the purchaser. [63] In contrast to the agreement in Lee , the antecedent agreement in this case allocated, to the respondent, the risk that the lands described would be sufficient for the Access Road. It was a term of the antecedent agreement that the respondent had received professional advice that the lands conveyed were sufficient. That statement was not qualified in any way, including by any statement that the respondent held a different view about sufficiency. Parties to an agreement are under a duty of honest performance, under which they must not mislead each other about matters relevant to the contract: Bhasin v. Hrynew , 2014 SCC 71, [2014] 3 S.C.R. 494, at para. 73. In light of that duty, the unqualified reference in the antecedent agreement to the respondent having received advice of sufficiency must be taken as meaning the advice was accurate in the respondent’s view. Otherwise there would be no reason to include it and the reference to such advice would be misleading. [64] The court should also seek to avoid an interpretation of a commercial contract that “would result in commercial absurdity”: Toronto (City) v. W. H. Hotel Ltd. , [1966] S.C.R. 434, at p. 440; Ventas , at para. 24(d). Rather, commercial contracts are to be construed in accordance with sound commercial principles and good business sense, objectively rather than from the perspective of one contracting party: Kentucky Fried Chicken Canada v. Scott’s Food Services Inc. , 1998 CanLII 4427 (Ont. C.A.), at para. 27. Reading the antecedent agreement as providing a contractual assurance by the respondent that the lands transferred are sufficient for the Access Road accords with objectively sound commercial principles, as it gives appropriate significance to the term of the agreement which referred to advice only the respondent had received, and that did not invite further enquiry by the appellant or require it to satisfy itself. To read the antecedent agreement as only providing for a transfer of and easement over Parts 1 to 4, even if they were known by the respondent to be insufficient and incapable of facilitating development, would result in a commercial absurdity. [65] The factual matrix—the objective facts known to the parties at the time, including the genesis and aim of the transaction—is examined to enhance the understanding of the words used: Sattva , at paras. 47-48. The application judge did not undertake that examination. Here, it supports an interpretation of the words used in the antecedent agreement that the risk with respect to the sufficiency of Parts 1 to 4 was on the respondent. The March 7 letter was in response to a direct request of the appellant for parts of the Adjacent Property that would allow it to meet the condition in the Draft Plan of Subdivision requiring the Janlyn Crescent connection. That was the genesis and aim of the transaction. These objective facts underscore the importance of the lands being described in the antecedent agreement as “sufficient” and an easement over them as facilitating development. In light of the factual matrix, these words cannot be viewed as surplus. An interpretation that allows the contract to function in furtherance of its commercial purpose is preferred over one that does not: Humphries v. Lufkin Industries Canada Ltd., 2011 ABCA 366, 68 Alta. L.R. (5th) 175, at para. 15. (4) Did the Prior Agreement Include an Obligation about Part 5? [66] Properly interpreting the words in light of the factual matrix raises a further interpretive question, namely whether the antecedent agreement’s requirements to transfer and grant an easement over Parts 1 to 4, together with its language about their sufficiency for the Access Road and to facilitate development, imposed an obligation about Part 5. [67] The application judge found that Part 5 was never discussed, let alone made part of a prior agreement. With respect, I do not believe that fully addresses the question. [68] First, as a factual matter, the request of the appellant that the respondent transfer all of the Adjacent Property, with an option to reacquire those parts not required to fulfill the access condition, put Part 5 into play, even though it was never separately mentioned. [69] Second, and more importantly, what a vendor must do under an agreement to transfer or create an easement over land is a function of both the agreement’s express terms and its implied terms, including terms implied to give an agreement business efficacy: Dynamic Transport Ltd. v. O.K. Detailing Ltd. , [1978] 2 S.C.R. 1072, at pp. 1084-1085. As noted in M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd ., [1999] 1 S.C.R. 619, at para. 27, quoting Canadian Pacific Hotels Ltd. v. Bank of Montreal , [1987] 1 S.C.R. 711, a term will be implied into an agreement: based on the presumed intention of the parties where the implied term must be necessary “to give business efficacy to a contract or as otherwise meeting the ‘officious bystander’ test as a term which the parties would say, if questioned, that they had obviously assumed”. [70] It is not in dispute that the difference between sufficient and insufficient lands for the Access Road, or between what would and would not facilitate development, is whether Part 5 is included. In order for the respondent to comply with the express terms of the antecedent agreement about Parts 1 to 4 being sufficient and facilitating development, Part 5 had to be included; with it, Parts 1 to 4 are made to comply with the covenants about sufficiency and facilitation of development; without it, they do not. [71] In Dynamic Transport , the court found an implied term in a purchase agreement that was subject to approval under the Planning Act , R.S.A. 1970, c. 276, but silent on who would obtain it. The implied term was that the vendor was required to obtain the approval as only it could lawfully do so. At p. 1085, the court adopted with approval the following statement: “When a person undertakes to do a thing which he can himself do, or has the means of making others do, the court compels him to do it, or procure it to be done, unless the circumstances of the case make it highly unreasonable to do so…A vendor must do his best to obtain any necessary consent to the sale; if he has sold with vacant possession he must, if necessary, take proceedings to obtain possession from any person in possession who has no right to be there or whose right is determinable by the vendor.” [72] Here, the respondent having promised to convey Parts 1 to 4 on the basis that they were sufficient, was obligated to do what was necessary to make them sufficient and which was in its power to do, namely, to include Part 5. The circumstances for implying a term about Part 5 were undoubtedly present. With Part 5, the agreement has business efficacy; without it, the agreement does not. It cannot seriously be disputed that if parties who had contracted in good faith for the terms found in the antecedent agreement had been asked, by an officious bystander, about whether Part 5 would be included if the Parts specified as sufficient were not in fact sufficient, they would have answered: “obviously”. The inclusion of Part 5 is an implied term of the parties’ true agreement. (5) Did the Transfer Agreement Accurately Record the Parties’ True Agreement? [73] It follows that the Transfer Agreement did not accurately record the parties’ prior agreement because it did not fully record it: Fairmont, at para. 14. It did not include the provisions of the antecedent agreement about Parts 1 to 4 being sufficient according to advice from the project engineer to the respondent, or about the easement facilitating the development of the subdivision—terms which put the risk about such matters on the respondent. Nor did it include the implied term necessary to give the prior agreement business efficacy. Because Parts 1 to 4 were not sufficient and would not facilitate the development (as was known to the respondent only), this variation between the antecedent agreement and the Transfer Agreement was material. (6) Can Part 5 be Included in the Transfer Agreement by Rectification if it was not Expressly Mentioned in the Prior Agreement? [74] In this case, the request for rectification is not a request to include the exact language from the antecedent agreement in the Transfer Agreement, but to include Part 5 in it. The appellant does not ask for the inclusion, in the Transfer Agreement, of a representation and warranty about the sufficiency of Parts 1 to 4, or of language from which an obligation about Part 5 might be implied. It asks for the express inclusion of Part 5. [75] As rectification is available to correct a document that does not record the parties’ true agreement, but is not available to fill in something that was never agreed to, the precise nature of the actual correction must be approached with caution. An applicant for rectification must show the precise form in which the written instrument can be made to express the prior agreement. As stated in Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd. , 2002 SCC 19, [2002] 1 S.C.R. 678, at para. 40, “[t]his requirement closes the “floodgates” to those who would invite the court to speculate about the parties’ unexpressed intentions, or impose what in hindsight seems to be a sensible arrangement that the parties might have made but did not.” [76] In my view, in the circumstances of this case, the appropriate correction is to add Part 5 to the Transfer Agreement. I reach this conclusion for two reasons. [77] First, as the above analysis shows, an obligation about Part 5, as something necessary to the fulfilment of the terms agreed to about sufficiency for the Access Road, was part of the parties’ true agreement. Adding Part 5 to the Transfer Agreement does not extend beyond the express and implied terms of the prior agreement when properly interpreted. Adding Part 5 would not fill in something that existed only in the extra-contractual and speculative netherworld of inchoate or unexpressed aspirations. [78] Second, adding Part 5 is faithful to the way the parties chose to move from the language of the prior agreement—which identified Parts and described their sufficiency—to the Transfer Agreement, which described Parts only without added description as to their functionality regarding the Access Road. That could be done, without changing the meaning of the prior agreement, only by including the right Parts. [79] This approach follows that taken by the Supreme Court in Performance Industries . In that case, a formal joint venture agreement described an option for a residential development having a width of 110 feet and a length of 480 yards. Rectification of that document was granted to change the width from 110 feet to 110 yards . The court found an oral antecedent agreement that was incorrectly recorded in the formal joint venture agreement, even though the discussion leading up to the oral agreement did not include any metes and bounds description. Feet and yards were never discussed. What was important was that the discussion revealed what was intended to be built (a double row of town houses) from which it was clear that what was required was a sufficient width for that type of project. The width of 110 feet, inserted into the formal joint venture agreement by one party, knowing that it was insufficient and not noticed by the other party, did not meet that requirement; 110 yards did. [80] Accordingly, in Performance Industries , the parties did not have an antecedent agreement on a precise boundary or that included a metes and bounds description, and they had never orally agreed using the words “110 yards”. However, they had an adequate antecedent agreement to permit rectification to specify 110 yards because “there was a definite project in a definite location to which [the parties] had given their definite assent...they were working on a defined development proposal”: Performance Industries , at paras. 48-49. That was sufficient to support rectification of the formal agreement into which one party had inserted the inadequate width of 110 feet and knew the other had not detected this: Performance Industries , at para. 15. [81] Importantly, the court rejected the argument that the joint venture agreement could not be rectified to include a measurement that the parties had never discussed. Having chosen to reflect the effect of the prior agreement in metes and bounds measurements, the party who inserted an inadequate measurement could not object to the substitution of the adequate measurement: Although the parties did not discuss a metes and bounds description, they were working on a defined development proposal. O’Connor cannot complain if the numbers he inserted in clause 18 (110 x 480) are accepted and confirmed. The issue, then, is the error created by his apparently duplicitous substitution of feet for yards in one dimension. We know the 480 must be yards because it measures the 18th fairway. If the 110 is converted from feet to yards, symmetry is achieved, certainty is preserved and Bell’s position is vindicated: Performance Industries , at para. 49. [82] Similarly, here, there was a defined development (the Access Road) and a defined location (connecting the Development Lands to Janlyn Crescent). The language in the antecedent agreement, that the Parts conveyed would be “sufficient” for the access road and an easement over them would “facilitate” development, as well as the term that should be implied to give the prior agreement business efficacy, connotes the parties’ assent to the defined development and the defined location. [83] As in Performance Industries, the absence of a specific mention of Part 5 in the antecedent agreement does not prevent the conclusion that an adequate antecedent agreement existed justifying the inclusion of Part 5 in the Transfer Agreement. The Transfer Agreement expressed the terms of the antecedent agreement by a reference only to specific Parts without a statement about their sufficiency. As noted above, this could be done, without changing the meaning of the antecedent agreement, only by specifying Parts that were sufficient for the Access Road. The respondent was aware of both the insufficiency of the Parts referred to in the Transfer Agreement and of the appellant’s mistake about this. The respondent “cannot complain” now that the Parts only methodology it agreed to in the Transfer Agreement necessitates the inclusion of the additional Part required to make those referred to sufficient, so as to fully conform to the meaning of the antecedent agreement. [84] Accordingly, step (iii) of the rectification test was met. The application judge erred in concluding otherwise. (7) The Mistake and Equivalent to Fraud Elements of the Rectification Test [85] As discussed above, the Fairmont analysis provides for six steps in cases of unilateral mistake. Consideration of certain of the steps presupposes satisfaction of a prior step. This is the case regarding step (vi), which required the application judge to consider whether permitting the respondent to take advantage of the appellant’s mistake would amount to “fraud or the equivalent of fraud”. Both the application’s judge’s consideration of this step and the manner in which she did so necessarily entails the conclusion that she was satisfied that step (v) was met, namely that the appellant had made a mistake about the terms of the Transfer Agreement and that the respondent was aware of the appellant’s mistake. [86] The application judge’s finding that step (vi) was not met is summarized at para. 44 of her reasons: Further the applicant failed to satisfy requirement (vi), because permitting the respondent to take advantage of the unilateral mistake made by the applicant does not amount to fraud or the equivalent of fraud on the part of the respondent. The applicant signed a waiver with respect to the agreement and accepted the land on an “as is, where is” basis. There is no clause in either the agreement or parts agreement that stipulates that the respondent will convey all lands necessary for the development of the access road. I agree that the respondent did not intentionally deceive the applicant and that the applicant should have verified the boundaries prior to executing the parts agreement. [87] In my view, the application judge erred in law in reaching that conclusion. The fact that the appellant waived the due diligence condition in the February Agreement has no bearing on whether the antecedent agreement of March 7 was accurately recorded in the Transfer Agreement. As explained, the application judge’s statement that the February Agreement and Transfer Agreement did not contain a term that the respondent must convey all lands necessary for the Access Road is off point. The question was whether the antecedent agreement did in fact contain such a term, which was not reflected in the Transfer Agreement. The statement that the appellant should have verified the boundaries was in error in light of the Supreme Court’s rejection of a lack of due diligence as an absolute bar to rectification: Performance Industries , at para. 36. Moreover, the application judge’s statement that the respondent did not intentionally deceive the appellant does not advert to the proper test. Deceit or fraud in the strict legal sense is unnecessary; rather the court looks for conduct that makes it “unconscientious for a person to avail himself of the advantage obtained” and includes “all kinds of unfair dealing and unconscionable conduct”: Performance Industries , at para. 39. [88] The respondent’s principal was aware that the Access Road was the reason why the appellant wanted the transfer and easement. He was aware of the terms of the antecedent agreement and that it referred to advice received by the respondent regarding the sufficiency of the lands for the Access Road. Indeed, although he suggested that his lawyer ought not to have used the word “sufficient” in the March 7 letter, he admitted in cross-examination to seeing the March 7 letter after it was sent, and there was no evidence of any effort to revise or correct it. He was aware that the lands could only be sufficient with Part 5; Parts 1 to 4 were insufficient if Part 5 was not included. And he was aware that the formal Transfer Agreement only referred to Parts 1 to 4. In my view, the respondent’s explanation for its behaviour, a concern that the appellant might not close the purchase of the Development Lands unless it thought it was getting what it needed for the Access Road, accentuates rather than attenuates the unfair and unconscionable nature of the respondent’s conduct, which was to lead, or knowingly allow, the appellant to think it was getting what it needed. In my view, element (vi) of the rectification test was met in these circumstances. (8) Did the Appellant Come to Court with Clean Hands? [89] Correcting the errors in the application judge’s analysis results in the conclusion that the appellant had made out a proper claim for rectification. I now turn to consider the application judge’s finding that the appellant lacked clean hands and was thus barred from obtaining rectification. Her finding was premised on what she considered to be three breaches of the Transfer Agreement. In my view, each is the product of an unreasonable reading of the terms of the Transfer Agreement. The application judge’s reading of that document did not conform to the language used. [90] First, the application judge stated that the appellant breached the provisions of the Transfer Agreement which required it to use best efforts to obtain the Committee of Adjustment’s consent to a severance. This finding misreads the Transfer Agreement. The appellant was entitled, as an alternative to obtaining consent to a severance, to require the respondent to make the transfer to the City. It elected to do so, obtained the City’s consent to a transfer, and provided the respondent with a transfer document to sign to that effect. [91] Second, the application judge stated that the Transfer Agreement became null and void on September 10, 2018 because the appellant only provided the transfer document to the respondent on September 7, 2018, and the respondent was entitled to 7 business days to sign. Again, this misreads the Transfer Agreement. The requirement for 7 days to sign was in respect of severance-related documents and specified the time after which the appellant could sign the documents on the respondent’s behalf. It did not apply to documents that were designed to effect the alternative to severance (a transfer to the City). Nor in any event did that requirement allow the respondent to rely on its own delay in signing to declare the Transfer Agreement null and void. [92] Finally, the application judge stated that the appellant failed to restore municipal services to the new lot line and failed to provide assurances that it would do so. However, the Transfer Agreement required the municipal services to be restored following the severance and construction of the new Access Road. Even though there was to be a transfer to the City rather than a severance, the Access Road was not expected or required to have been constructed before the transfer even occurred; the time for restoring the municipal services had clearly not arrived. The Transfer Agreement itself was the assurance that the appellant would do so; there was nothing in it that required any further assurance. [93] The application judge thus erred in finding that the appellant had unclean hands by breaching the Transfer Agreement. REMEDY [94] The application judge did not determine what remedy would be appropriate if rectification were ordered. [95] The appellant asked that if rectification were granted, specific performance of the rectified Transfer Agreement should be ordered. The respondent argued that specific performance could not be ordered because the application judge found that the Transfer Agreement had come to an end. I have determined that the application judge erred when she found that the Transfer Agreement came to an end on September 10, 2018, given that the respondent could not rely on its own delay to bring about that result. [96] The respondent did not argue the absence of any other requirements for an order for specific performance. The property is unique, in the sense that it is uniquely positioned to fulfill the requirements for the Access Road, and therefore specific performance would be an appropriate remedy: Semelhago v. Paramadevan , [1996] 2 S.C.R. 415, at paras. 21-23. CONCLUSION [97] Accordingly, I would allow the appeal and substitute an order that the Transfer Agreement be rectified so that it includes Part 5 in the definition of Property, and that it be specifically performed as rectified. The parties should return to the Superior Court to deal with any issues that may arise out of the order and for any necessary directions to carry out its terms. [98] The appellant is entitled to its costs of the appeal, fixed in the sum agreed between the parties, namely $13,000, inclusive of disbursements and applicable taxes. The parties did not address the disposition of the costs below in the event of a successful appeal. They may do so in writing. The appellant’s submissions, not to exceed three pages, shall be delivered within 10 days of the release of these reasons. The respondent’s submissions shall be delivered within 10 days of the delivery of the appellant’s submissions. Released: “M.T.”  April 29, 2020 “B. Zarnett J.A.” “I agree. M. Tulloch J.A.” “I agree. K. van Rensburg J.A.” [1] The purchaser in the February Agreement is described as “2345221 Ontario Inc., in trust for a company to be incorporated.” [2] The Transfer Agreement describes the purchaser as “2482234 Ontario Inc.”

COURT OF APPEAL FOR ONTARIO CITATION: Carleton Condominium Corporation No. 476 v. Wong, 2020 ONCA 244 DATE: 20200403 DOCKET: C67296 Paciocco J.A. (In Chambers) BETWEEN Carleton Condominium Corporation No. 476 Plaintiff (Respondent) and Newton Wong Defendant (Appellant) Newton Wong, acting in person Cheryll Wood, for the respondent Heard by teleconference: April 2, 2020 REASONS FOR DECISION [1] The appeal in this matter is scheduled to be heard on April 9, 2020. Since oral in-person appeal hearings were suspended for the week of April 6, 2020 as a result of the Covid-19 health crisis, the parties were canvassed as to whether they would agree to having the appeal heard without an in-person hearing, or to have the matter adjourned to a date in September or early October. The parties could not agree. The appellant seeks an adjournment until September or early October. The respondent requests that the appeal proceed in writing, with an opportunity for the parties to respond to panel questions either by teleconference or videoconference on April 9, 2020. [2] I conducted a teleconference hearing on April 2, 2020, to rule on the appellant’s adjournment request and to decide how the appeal would proceed. It is in the interests of justice to have the appeal proceed in writing based on the materials filed. The parties will have an opportunity to respond, by teleconference, to any questions the panel may have, on the date set for the appeal, April 9, 2020. [3] By its nature, this appeal can be fairly adjudicated in writing. Although the respondent is self-represented, he is a lawyer. The written materials reflect that they were professionally prepared. The appellant’s materials present the issues with clarity and the appellant’s position is well developed. The respondent’s materials are responsive. [4] Moreover, the issues presented are, by their nature, capable of being adequately addressed in writing. The statutory interpretation questions raise narrow technical considerations that have been well delineated in the written materials. The sufficiency of the notice of lien can be easily calculated once the statutory arguments are resolved. The alleged misapprehension of evidence can be decided on the face of the record. The basis for the challenge to the limitation period finding, and the response, are also set out clearly. Again, they can be determined on the record with the assistance of the written argument made. The same is true of the vicarious liability issues raised in the counterclaim. [5] The appellant did not take the position during the teleconference that the appeal could not be resolved on the written record. He expressed a preference for taking the panel through the arguments during an in-court oral hearing at a future date. That preference is understandable, but it is not in the interests of justice. [6] With respect to the request to adjourn the matter to a future date, I accept the position of the respondent that the delay of the appeal would be prejudicial. It is not disputed that the appellant has withheld a significant amount of condominium fees pending the appeal, including debts accrued that are not linked to the debt that led the respondent to impose the lien that the appellant is now challenging. It is in the interests of justice to determine without further delay whether the shortfall that these withheld payments have generated should continue to be borne by other members of the condominium corporation. [7] Moreover, it is not in the interests of justice to overburden the court by adjourning matters that can be dealt with fairly, as scheduled. The backlog that will be created by cases that must be adjourned to protect the public and ensure fair hearings will be imposing and it should not be unnecessarily aggravated. [8] I have decided to order that the appeal proceed in writing rather than by remote oral hearing to ameliorate any litigation advantage that the respondents might have if a full, remote oral hearing is ordered. Although the appellant has not requested that the appeal be determined in writing, the appellant has taken the position that he cannot prepare adequately for an oral hearing because his materials are at his law firm and contain post-its and other endorsements that he would rely upon. He has made the personal choice, that I respect, that he will not risk the health of his employees by sending them into the office to assemble and retrieve this material, and he himself is not capable of doing so without help. He is uncomfortable working with electronic documents because he is accustomed to working with paper and is only slowly building up the technical capacity for his law firm employees to work remotely. In these circumstances, it would give the respondent a litigation advantage to conduct a full oral hearing, even by teleconference, since the respondent is not affected by similar limitations. [9] Similarly, that litigation advantage would arise for similar reasons if the parties were now invited to supplement their existing written submissions with further written arguments. Moreover, the parties did not suggest that further written arguments are required. [10] I appreciate that the impediments experienced by the appellant that I have described could pose challenges to the appellant’s facility to field any questions the panel may have, but these challenges can adequately by accommodated by accepting the respondent’s undertaking to furnish the appellant forthwith with electronic copies of all filed documents, which the appellant acknowledges he is capable of receiving electronically. I would also direct that the respondent file with the court the electronic copies of all filed documents sent to the appellant by sending them by email to coa.e-file@ontario.ca . Should any questions be posed by the panel that disadvantage the appellant given that he will not have his own annotated file, this can be addressed when those questions are posed. If necessary, the panel could invite a written response within a reasonable deadline. [11] The appellant’s adjournment request is denied. The appeal will proceed in writing, on condition that the respondent furnish to the appellant and file with the court, electronic copies of all documentation that has been filed with the court in connection with this appeal, by Monday, April 6 at 12:00 p.m. Should the respondent be unable or unwilling to do so, I will entertain a further request for an adjournment. [12] Should any panel members determine that questions are necessary, those questions will be posed during a teleconference to be held at 2:00 p.m. on April 9, 2020. Arrangements will be made to schedule that teleconference and contact information will be sent to the parties. Should the panel determine that there are no questions required, the parties will be notified. “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272 DATE: 20200429 DOCKET: C63082 Doherty, Brown and Thorburn JJ.A. BETWEEN The Catalyst Capital Group Inc. Plaintiff (Appellant) and Dundee Kilmer Developments Limited Partnership, Dundee Realty Corporation, KD Infrastructure L.P. Kilmer Van Nostrand Co. Limited , John Doe Corporations Partnerships, Infrastructure Ontario and Ontario Infrastructure and Lands Corporation (Formerly Ontario Infrastructure Projects Corporation) , The Ministry of Infrastructure of Ontario and Her Majesty the Queen in Right of Ontario Defendants ( Respondents ) David Moore and Kenneth G.G. Jones, for the appellant Mark A. Gelowitz and Kevin O'Brien, for the respondents, Dundee Kilmer Developments Limited Partnership, Dundee Realty Corporation, KD Infrastructure L.P., Kilmer Van Nostrand Co. Limited, Infrastructure Ontario and Ontario Infrastructure and Lands Corporation (Formerly Ontario Infrastructure Projects Corporation) Christopher P. Thompson, for the respondent, Her Majesty the Queen in Right of Ontario Heard: February 11, 2020 On appeal from the order of Justice Frank Newbould of the Superior Court of Justice, dated November 28, 2016, with reasons reported at 2016 ONSC 7365. BROWN J.A.: I.        OVERVIEW [1] The events underlying this action took place almost a decade ago, in 2011. Since this proceeding’s inception in late 2013, it has progressed no further than a series of challenges to the adequacy of the plaintiff’s pleading. This appeal is from part of the most recent order, made in 2016, that struck out some of the plaintiff’s claims. [2] The action concerns a dispute about whether the plaintiff, The Catalyst Capital Group Inc. (“Catalyst”), could participate in the financing and development of the Athletes’ Village for the 2015 Toronto Pan/ParaPan American Games (the “Project”). Catalyst pleads that in 2011 it struck a deal to participate in the financing of the Project with a group of the defendants, which it styles as DKD: Dundee Kilmer Developments Limited Partnership, Kilmer Van Nostrand Co. Limited, Dundee Realty Corporation, KD Infrastructure L.P., and John Doe Corporations Partnerships. Catalyst alleges that DKD broke that deal and it seeks significant damages against DKD. [3] As well, Catalyst seeks significant damages against two Ontario government actors, the Ontario Infrastructure and Lands Corporation/Infrastructure Ontario (collectively “IO”) [1] , as well as against the Ontario Crown. IO was responsible for procuring and approving bids for the design, construction, finance, and post-games marketing of the Project. Catalyst alleges that IO made material misrepresentations to it and, together with the Crown, acted tortiously by excluding it from participating in the Project. [4] The damages sought by Catalyst against DKD, IO, and the Crown exceed $110 million. [5] Catalyst commenced two actions (now consolidated) in November 2013 and January 2014: the first against DKD and IO; the second against the Crown. The ensuing six years have seen two separate challenges by the defendants to the adequacy of Catalyst’s statements of claim pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure . At this point, no statements of defence have been filed. [6] In disposing of the second challenge in 2016, the motion judge found parts of the pleading adequate, struck out some parts with leave to amend, and struck out other parts without leave to amend. The Divisional Court dismissed Catalyst’s motion for leave to appeal from the part of the motion judge’s order striking out certain claims with leave to amend. This appeal only concerns the part of the motion judge’s order that struck out five of the claims without leave to amend. [7] For the reasons that follow, I would grant Catalyst’s appeal in part, setting aside the portion of the motion judge’s order dismissing the claims against DKD for breach of s. 29 of the Funding Term Sheet, breach of fiduciary duty, and for unjust enrichment and quantum meruit . II.       FACTUAL BACKGROUND [8] The chronology of events before the court comes from Catalyst’s 2016 Consolidated Fresh as Amended Statement of Claim (the “Amended Claim”). October 2010 to May 2011 [9] In October 2010, IO started its solicitation of bidders for the design, construction, financing, and post-games marketing of the Project by issuing a Request for Qualifications (“RFQ”). DKD responded to the RFQ. IO accepted DKD as qualified to bid on the Project. [10] IO then issued a Request for Proposals (“RFP”) in January 2011, at which point DKD began to prepare its bid. While doing so, DKD became concerned about the competitiveness of its financial model and the costs of the financing options available to it at the time. As a result, in early May 2011, DKD approached Catalyst and asked it to participate in the financing of its bid. However, in its response to the RFQ, DKD had not named Catalyst as a member of its proponent team. Consequently, the terms of the RFP required DKD to obtain the written consent of IO in order to change the members of its bid team. May to June 2011: The oral agreement with DKD [11] From May 13, 2011 to June 6, 2011, senior executives of Catalyst and DKD held a series of meetings to discuss Catalyst’s participation in DKD’s bid. Catalyst pleads that it reached an oral agreement with DKD that contained the following terms: (i) Catalyst would allow DKD to conduct all material negotiations and discussions regarding DKD’s bid with IO and the Crown, including those affecting or involving Catalyst’s participation in the bid and the Project; (ii) Catalyst would develop and finalize a financial model to form the basis of the financial component of DKD’s bid and would provide financing in accordance with the finalized model; (iii) DKD would act in good faith to protect, promote, and advance Catalyst’s interests and participation in its bid and the Project, including in all of its communications and dealings with IO and the Crown; and (iv) DKD would keep Catalyst advised in a timely manner of all material developments in connection with its bid, including any developments that impacted Catalyst’s involvement, interests, and participation in the bid (the “Oral Agreement”). June 2011: The governmental representations by IO [12] In early June 2011, DKD asked IO to consent formally to Catalyst’s addition as a DKD proponent team member. IO refused. [13] However, Catalyst pleads that on or shortly after June 15, 2011, IO advised DKD that although it would not consent to add Catalyst as a formal proponent team member, Catalyst could nevertheless participate in DKD’s bid in a manner that did not require such consent. IO represented to DKD that: (i) it and the Crown did not have issues or concerns regarding the source of DKD’s funding or any equity structure DKD would enter with any of its funders, including Catalyst; (ii) it and the Crown decided that Catalyst could participate and provide funding to DKD for the Project without IO’s formal consent as long as Catalyst was kept “behind the curtain”; and (iii) if Catalyst provided funding for the Project “behind the curtain,” no issue or difficulty would be raised by IO or the Crown about such participation (the “Governmental Representations”). [14] Catalyst pleads that IO made the Governmental Representations to DKD in consultation with the Crown, or as a result of instructions received from representatives of the Crown, knowing and intending that DKD would communicate them to Catalyst and that Catalyst and DKD would rely and act upon them. June 2011: The term sheets between Catalyst and DKD [15] On June 22, 2011, DKD and Catalyst entered into two written agreements that Catalyst alleges were intended to supplement, but not replace, the earlier Oral Agreement. One of the written agreements was a Subordinated Notes and Letters of Credit Term Sheet (the “Funding Term Sheet”) that contained additional terms and conditions upon which Catalyst would participate in and provide funding for the Project. Section 29 of the Funding Term Sheet plays a key role in Catalyst’s allegations against DKD; it will be described in more detail later in these reasons. September to November 2011 [16] DKD was selected as the preferred Project bidder on September 2, 2011. In September and October 2011, DKD and Catalyst met with DKD’s senior lenders (the “Lenders”) to obtain the consents necessary for Catalyst’s continued participation in DKD’s bid. [17] Catalyst and the Lenders asked DKD to disclose to IO the details of Catalyst’s involvement in the financing of the Project. DKD initially resisted but ultimately met with IO on November 2, 2011 to disclose Catalyst’s involvement in its bid. Catalyst pleads that this information was relayed to the “Province”. [18] On November 8, 2011, Catalyst was advised that “the Province” had raised a “red flag” regarding Catalyst’s participation in the bid. On that date, IO provided a written response to DKD’s disclosure of Catalyst’s involvement in the Project, in which it detailed concerns about Catalyst’s involvement and directed DKD to remove Catalyst as a participant in the financing model that was proposed for the Project. Catalyst pleads that IO’s decision resulted from directions and instructions given by “Crown officials”. [19] Thereafter, DKD ceased all efforts to obtain the Lenders’ consent to Catalyst’s participation. DKD informed Catalyst that the Lenders would not consent to Catalyst’s participation and refused to allow Catalyst to participate any further in the Project. III.      PROCEDURAL HISTORY The Original Statements of Claim [20] Catalyst initially commenced two actions, the first against DKD and IO on November 7, 2013 (the “Original Claim against DKD and IO”), and the other against the Crown on January 10, 2014 (the “Original Claim against the Crown”) (collectively, the “Original Claims”). [21] In December 2014, DKD, IO, and the Crown successfully moved to strike out Catalyst’s Original Claims as disclosing no reasonable cause of action. Although the motion judge struck out the Original Claims in their entirety, he granted Catalyst leave to deliver an amended statement of claim and to consolidate the actions. The Amended Claim [22] Quite some time later, on April 4, 2016, Catalyst delivered its Amended Claim. As against DKD, Catalyst alleges that DKD: a. breached the terms of the Oral Agreement; b. breached s. 29 of the Funding Term Sheet; c. breached its fiduciary duty to act in Catalyst’s interests; d. made negligent or fraudulent misrepresentations relied on by Catalyst to its detriment; and e. deprived Catalyst of profits, benefits, and opportunities that were promised to it and that it reasonably expected to gain from its participation in DKD’s bid and the Project, thereby unjustly enriching DKD or entitling Catalyst to compensation on a quantum meruit basis. [23] As against IO and the Crown, Catalyst alleges that: a. IO and the Crown breached a public law duty to act to prevent Catalyst from being expelled from DKD’s winning bid; b. the actions of IO and the Crown constituted misfeasance in public office; c. IO and the Crown made negligent or fraudulent misrepresentations relied on by Catalyst to its detriment; and d. that it was deprived of profits, benefits, and opportunities that were promised to it and that it reasonably expected to gain from its participation in DKD’s bid and the Project, thereby unjustly enriching IO and the Crown or entitling Catalyst to compensation on a quantum meruit basis. [24] In early 2016, DKD, IO, and the Crown moved to strike out Catalyst’s Amended Claim on the basis that it disclosed no reasonable cause of action and certain claims were statute-barred. [25] In his November 28, 2016 order, the motion judge granted the motions in part: a. he refused to strike out the claims against DKD and IO for fraudulent or negligent misrepresentation; b. he struck out two claims with leave to amend: the claim against DKD for breach of the terms of the Oral Agreement and the claim against IO and the Crown for misfeasance in public office. In September 2019, the Divisional Court denied Catalyst leave to appeal from that part of the motion judge’s order; and c. he struck out five claims without leave to amend, specifically the claims against: 1) DKD for breach of s. 29 of the Funding Term Sheet; 2) DKD for breach of its alleged fiduciary duty to act in Catalyst’s interests; 3) DKD, IO, and the Crown for unjust enrichment and quantum meruit because they were statute-barred under the Limitations Act, 2002 , S.O. 2002, c. 24, Sched. B; 4) IO and the Crown for breach of an alleged public law duty to act to prevent Catalyst from being expelled from DKD’s winning bid; and 5) the Crown for fraudulent and negligent misrepresentations on the basis that the claims were precluded by s. 2(2)(b) of Proceedings of the Crown Act , R.S.O. 1990, c. P.27 (“ PACA ”). [26] The part of the motion judge’s order dismissing these five claims without leave to amend is the subject-matter of this appeal. IV.     FIRST GROUND OF APPEAL: THE CLAIM AGAINST DKD FOR BREACH OF S. 29 OF THE FUNDING TERM SHEET The issue stated [27] In its Amended Claim, Catalyst pleads two breach of contract claims against DKD. The first is for breach of the Oral Agreement that Catalyst alleges it entered into with DKD during the first week of June 2011. The motion judge struck out this claim but with leave to amend in order to identify when, where, and the individuals by whom the Oral Agreement was made. [28] The second is based on one of the two written term sheets that Catalyst entered into with DKD on June 22, 2011: the Funding Term Sheet and the Future Development Blocks Term Sheet. Catalyst pleads that the provisions of the term sheets supplemented, but did not replace, those contained in the Oral Agreement. Since the Amended Claim referred to both term sheets, they were included in the r. 21 record placed before the motion judge. [29] Catalyst alleges that DKD breached s. 29 of the Funding Term Sheet, which provides: Each of the DK Group and the Subordinated Noteholder agrees that from and after the date of execution of this Term Sheet and until such time as the Formal Agreements are entered into, it will not enter into any discussions or negotiations or solicit offers or execute any agreement relating to the subject matter of this Term Sheet or to the provision of financial assistance in connection with the Project (excluding, with respect to the DK Group, the Project Documents) with any party other than, in the case of the DK Group, the Subordinated Noteholder, and in the case of the Subordinated Noteholder, the DK Group. The parties acknowledge that the Senior Financing Term Sheet contains a condition precedent in favour of the Lenders with respect to the approval by the Lenders of the Subordinated Noteholder, the participation of the Subordinated Noteholder in the Project, the manner and terms and conditions of the provision (directly or indirectly) by the Subordinated Noteholder of subordinated debt to the Project including, without limitation, the terms of this Term Sheet and the corporate/partnership structure of ownership and control of the Project at all direct or indirect levels (collectively, the “CP”). The parties acknowledge and agree that time is of the essence with respect to the satisfaction of the CP. Each of the parties shall negotiate in good faith with each other and the Lenders to satisfy the CP. [Emphasis added.] [2] [30] Section 29 of the Funding Term Sheet is one of several provisions in Part H of the agreement, which is titled “Binding Nature of Term Sheet”. Part H begins with s. 27, which provides that the provisions of the Funding Term Sheet “other than Section 29 and the confidentiality obligation set out in the preamble, will not come into effect until such time as the Lenders consent to the provision by the Subordinated Noteholder [Catalyst] of the Contingency Equity Letter of Credit and the Cost to Complete Letter of Credit on the terms and conditions of this [Funding] Term Sheet.” Section 28 specifies when the Funding Term Sheet will expire. [31] Section 29 then deals, in part, with the exclusivity of negotiations between DKD and Catalyst in respect of the Project. It concludes with the obligation of DKD and Catalyst to “negotiate in good faith with each other and the Lenders to satisfy the [Condition Precedent].” [32] In its Amended Claim, Catalyst pleads that s. 29 of the Funding Term Sheet imposed two obligations on DKD: (i)    an obligation to negotiate in good faith with the Lenders and to use its best efforts to satisfy the conditions precedent identified in s. 29 of the Funding Term Sheet, “including taking all reasonable steps to persuade IO and the Crown to allow Catalyst’s participation in the DKD Bid”; and (ii)    a good faith obligation to ensure that the structure resulting from the two term sheets, DKD’s Bid, “and any subsequent agreements negotiated after September 1, 2011 resulted in Catalyst’s participation ‘behind the curtain’ in a manner that was acceptable to IO and the Crown”. [33] Catalyst alleges that DKD failed to satisfy both obligations, thereby breaching its obligations under s. 29 of the Funding Term Sheet and “its common law duties of honest performance in relation thereto, its duty to negotiate and act in good faith, its duties to use its best efforts, or in the alternative reasonable efforts, to obtain the Lenders’ consent to Catalyst’s continued participation” in the Project. [34] The motion judge interpreted s. 29 of the Funding Term Sheet to mean that DKD was obligated “to negotiate in good faith with Catalyst and the Lenders to satisfy the condition precedent in favour of the Lenders with respect to approving Catalyst to be in the deal. It was not an obligation to negotiate with IO”: at para. 46. Based on that interpretation, the motion judge struck out Catalyst’s pleading that DKD breached s. 29 of the Funding Term Sheet stating, at para. 51, that: [T]he complaint is not that DKD failed to deal with the Lenders to fulfill the condition precedent of the [Funding Term Sheet] to permit Catalyst's involvement in the project. Rather the complaint is that although Catalyst and DKD obtained the consent of the Lenders, it was afterwards that IO and the Crown had a problem with Catalyst and would not agree to Catalyst being involved. The complaint at its core is that DKD failed to convince IO to change its mind. However, the [Funding Term Sheet] contained no obligation on DKD to negotiate with IO to change its mind. Whether it was DKD’s fault that IO and the Crown had this problem is not relevant to the issue of a breach of the term sheet. [Emphasis added] He concluded that “[o]nce the IO and the Crown had decided not to permit Catalyst to be involved, that was the end of the matter for Catalyst. Even if the Lenders agreed to Catalyst being involved, it would not affect that”: at para. 55. The positions of the parties [35] Catalyst submits that the motion judge erred in law by adopting too narrow an interpretation of s. 29 of the Funding Term Sheet “without any analysis or assessment of the impact of the factual matrix upon the proper meaning of this provision.” It argues that in order to fulfill the condition precedent contained in s. 29 of the Funding Term Sheet, DKD was required to demonstrate the consent of IO and the Crown to Catalyst’s participation in the Project. [36] DKD submits that the motion judge correctly concluded that the cause of action alleging a breach of s. 29 could not succeed because the Funding Term Sheet contained no obligation on DKD to negotiate with IO to change its mind. The governing principles [37] Correctness is the applicable standard of review on an appeal from an order made under r. 21.01(1)(b) dismissing a claim as disclosing no reasonable cause of action: Ceballos v. DCL International Inc. , 2018 ONCA 49, at para. 7. [38] Determining whether Catalyst’s plea that DKD breached s. 29 of the Funding Term Sheet discloses no reasonable cause of action engages the process of contractual interpretation, specifically ascertaining the scope of the obligation to negotiate in good faith contained in s. 29. [39] A r. 21.01(1)(b) motion focuses on the legal sufficiency of a plaintiff’s pleading, in the sense of determining whether the plaintiff has pleaded the material facts necessary to support a cause of action recognized by the law: Brozmanova v. Tarshis , 2018 ONCA 523, 81 C.C.L.I. (5th)1, at paras. 25-26. [40] By contrast, contractual interpretation contains a strong factual component. It is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix. Contractual interpretation usually involves a question of mixed fact and law, except where a question of law can be extracted: Creston Moly Corp. v. Sattva Capital Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 50. A court’s consideration of the language of a contract always must have regard to the factual matrix that gave birth to the contract, even where the contractual provision is not ambiguous: Dumbrell v. The Regional Group of Companies Inc. , 2007 ONCA 59, 85 O.R. (3d) 616 (C.A.), at para. 54. At the same time, the factual matrix cannot overwhelm or displace the language of the contract: Sattva , at para. 57. [41] Given that most contractual interpretation claims involve questions of mixed fact and law, r. 21.01(1)(b) usually is ill-suited to dispose of such claims prior to trial. That is due to the restrictions built into the rule that limit its utility for assessing the factual adequacy of a claim. Of greatest significance is the restriction that no evidence is admissible on such a motion: r. 21.01(2)(b). This restriction rubs the wrong way against the jurisprudence’s recognition that a party is entitled to lead relevant evidence regarding the circumstances surrounding a contract’s formation or its context to aid in its interpretation: McDowell v. Fortress Real Capital Inc. , 2019 ONCA 71, 91 B.L.R. (5th) 181, at para. 83. [42] Yet, some moving party defendants, like DKD, contend that r. 21.01(1)(b) is an apt procedural device to strike out a claim involving contractual interpretation, pointing to the jurisprudence that holds a claim may be struck where it is plain and obvious that “the claim has no reasonable prospect of success”: Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17. [43] As well, DKD relies on the decision of the Superior Court of Justice in ArcelorMittal Dofasco Inc. v. U.S. Steel Canada Inc ., 2008 CanLII 56932, for the proposition that a court can rule on a breach of contract claim on a r. 21 motion where the operative provisions of a contract are clear. However, great care must be taken in applying the ArcelorMittal Dofasco decision. First, that decision pre-dated Sattva . Second, in ArcelorMittal Dofasco the parties agreed that the issue of the exercise of the contractual termination right was a question of law, not a question of mixed fact and law: at para. 17. Finally, the court held that “arguably” there was no need to consider the factual matrix as there was no ambiguity with respect to the interpretation of the termination right: at para. 33. However, Dumbrell and McDowell teach to the contrary: Dumbrell, at para. 54; McDowell , at para. 83. [3] [44] When the Rules of Civil Procedure are examined through the lens of Sattva’s teaching, a r. 20 summary judgment motion is better suited than a r. 21.01(1)(b) motion to deal with claims involving contractual interpretation because such claims typically involve mixed questions of fact and law and always require a consideration of the factual matrix. Still, it remains the case that the language of r. 21.01(1)(b) does not exclude its use to strike out causes of action that turn on an issue of contractual interpretation. However, r. 21.01(1)(b) contains certain features that reduce the risk of its misuse to dispose of contractual interpretation claims. [45] First, a motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven or are patently ridiculous: Imperial Tobacco , at para. 22; Transamerica Life Canada Inc. v. ING Canada Inc. (2003), 234 D.L.R. (4th) 367 (Ont. C.A.), at p. 375. Accordingly, a defendant who resorts to r. 21.01(1)(b) must take the plaintiff’s pleaded claim at its provable highest. [46] Second, a court must read the plaintiff’s pleading generously, making allowances for drafting deficiencies and erring on the side of permitting an arguable claim to proceed to trial: Transamerica , at p. 375; Raush v. Pickering (City) , 2013 ONCA 740, 369 D.LR. (4th) 691, at para. 34. [47] Finally, r. 21.01(1)(b) imposes a very high burden of proof on the moving defendant. It is not sufficient for a moving defendant to demonstrate that it is more probable than not that the plaintiff’s pleading does not disclose a reasonable cause of action. The defendant must meet the much higher standard of establishing that the claim as pleaded has no reasonable prospect of success. [48] At the same time, the notional availability of a r. 21.01(1)(b) motion to dispose of a cause of action involving contractual interpretation reminds a plaintiff that it must plead clearly the facts upon which it relies when making a breach of contract claim. A plaintiff is not entitled to rely on the possibility that new facts may turn up as the case progresses: Imperial Tobacco , at para. 22. As well, since r. 25.06(1) requires a plaintiff to plead “the material facts on which the party relies for the claim”, where a plaintiff’s cause of action puts into play an issue of contractual interpretation, its statement of claim must plead the material facts of the factual matrix upon which the plaintiff relies. Analysis [49] In permitting Catalyst to proceed with its claim for breach of the Oral Agreement, subject to pleading further particulars, the motion judge recognized that on a r. 21 pleadings motion the issue is not whether a claim could withstand a summary judgment motion or a trial. Instead, as he described it, the test is whether the claim is “patently ridiculous incapable of proof”: at para. 39. With respect, the motion judge did not apply the same approach when assessing under r. 21.01(1)(b) Catalyst’s claim that DKD breached s. 29 of the Funding Term Sheet.  His reasoning contained two errors that attract appellate intervention. [50] First, it is a fundamental principle of contractual interpretation that a contract must be interpreted as a whole. That, in turn, requires a consideration of related contracts entered into as part of a larger composite whole: Geoff R. Hall, Canadian Contractual Interpretation Law, Third Edition (Toronto: LexisNexis, 2016), at §2.2.6. As explained by this court in 3869130 Canada Inc. v. I.C.B. Distribution Inc ., 2008 ONCA 396, 239 O.A.C. 137, at para. 33: Where each agreement is entered into on the faith of the others being executed and where it is intended that each agreement form part of a larger composite whole, assistance in the interpretation of any particular agreement may be drawn from the related agreements. [51] In the present case, s. 29 of the Funding Term Sheet refers to a condition precedent contained in the “Senior Financing Term Sheet”. [4] Schedule 1 of the Funding Term Sheet defines “Senior Financing Term Sheet” as “the Senior Financing Executive Summary Term Sheet and the Senior Financing Common Terms Term Sheet attached to the Lenders’ Commitment and Mandate Letter.” None of those documents were included in the record placed before the motion judge on the r. 21.01(1)(b) motion. [52] That leaves the court in the unsatisfactory position of attempting to interpret the condition precedent clauses contained in s. 29 of the Funding Term Sheet using only the summary description of the condition precedent found in the section, without the benefit of reviewing the Senior Financing Term Sheet that precisely describes the condition precedent. And without the ability to review the Senior Financing Term Sheet, how can the court determine whether that document is a related contract relevant to the holistic contractual interpretation analysis prescribed by the jurisprudence, including cases such as 3869130 Canada ? [53] In the present case, the restriction on evidence embedded in a r. 21.01(1)(b) motion creates a real risk that a court cannot interpret s. 29 of the Funding Term Sheet within the contract “as a whole,” which potentially includes aspects of the Senior Financing Term Sheet. With respect, the motion judge did not give sufficient weight to that risk. Accordingly, he erred in dismissing Catalyst’s claim for breach of s. 29 of the Funding Term Sheet on the limited r. 21.01(1)(b) record before him. [54] Second, in addressing the main point of contractual interpretation argued by Catalyst, the motion judge failed to consider an important part of the factual matrix, the Oral Agreement that preceded the execution of the Funding Term Sheet: Resolute FP Canada Inc. v. Ontario (Attorney General) , 2019 SCC 60, 96 B.L.R. (5th) 1, at paras. 29-30. [55] Catalyst contends that since s. 29 required DKD to “negotiate in good faith with … the Lenders to satisfy the [Condition Precedent]”, and since the Lenders would not consent unless IO knew of and approved Catalyst’s participation, s. 29, properly interpreted, includes an obligation on DKD to negotiate in good faith to secure IO’s consent to Catalyst’s participation in the Project. Unless it did so, the Lenders would not consent. That is the interpretation advanced by Catalyst. [56] The motion judge did not allow for the possibility of such an interpretation. Instead, he reasoned that once the IO and Crown had decided against Catalyst’s involvement “that was the end of the matter for Catalyst. Even if the Lenders agreed to Catalyst being involved, it would not affect that”: at para. 55. [57] Although the motion judge considered much of the pleaded factual matrix, on this point he failed to take into account the Oral Agreement. The motion judge was required to take as proven, for purposes of the r. 21.01(1)(b) motion, Catalyst’s pleading at para. 25(f) of the Amended Claim that, as part of the Oral Agreement, “DKD agreed that it would act in good faith to protect, promote and advance Catalyst’s interests and participation in the DKD Bid on the Athlete’s Village Project…”. [58] When the s. 29 contractual obligation of DKD to negotiate in good faith is read in the context of the Oral Agreement, it is not plain and obvious that the interpretation of s. 29 proffered by Catalyst has no reasonable prospect of success. DKD failed to meet the very high burden required to strike out that claim. With respect, the motion judge erred in concluding otherwise, and I would allow this ground of appeal. V.      SECOND GROUND OF APPEAL: THE CLAIM AGAINST DKD FOR BREACH OF FIDUCIARY DUTY The issue stated [59] In its Amended Claim, Catalyst pleads that while it and DKD were sophisticated parties who were not in a fiduciary relationship in respect of many of the issues relating to the Project: [T]he terms of the Oral Agreement, the Term Sheets and the representations made by DKD to Catalyst, collectively or individually, created a fiduciary relationship between Catalyst and DKD in relation to the negotiations that DKD conducted with the Lenders, and with IO and the Crown, on Catalyst’s behalf. Specifically, Catalyst’s participation in the DKD Bid and the Athlete’s Village Project was conditional on Catalyst ceding to DKD its rights and ability to negotiate on its own behalf. In exchange, DKD agreed to use its expertise and extensive contacts to benefit Catalyst, by negotiating on Catalyst’s behalf and by promoting and advancing Catalyst’s interests in all negotiations and discussions with the Lenders and with IO and the Crown. [60] In such circumstances, Catalyst pleads it was vulnerable and dependent on DKD to protect and advance its interests “and, if necessary, to subordinate its own interests in the process.” Catalyst alleges that DKD breached its fiduciary obligations, resulting in Catalyst’s exclusion from the Project. [61] The motion judge struck Catalyst’s claim against DKD for breach of fiduciary duty without leave to amend. He held that it was plain and obvious that Catalyst could not succeed in its claims that a per se or ad hoc fiduciary relationship existed between Catalyst and DKD. [62] Catalyst had pleaded that it was in a joint venture relationship with DKD and that joint ventures are a per se category of a fiduciary relationship. The motion judge rejected that submission. Catalyst does not appeal that finding. [63] The motion judge also held that the facts as pleaded could not establish an ad hoc fiduciary relationship between DKD and Catalyst because: (i) Catalyst failed to plead that DKD undertook to give up its own interests to protect Catalyst; and (ii) “it would be absurd in a relationship that existed in this case between two highly sophisticated organizations in which DKD was seeking the assistance of Catalyst in the DKD bid to think that DKD would have agreed to subordinate its interests to those of Catalyst”: at para. 65. [64] Catalyst submits the motion judge misunderstood the narrow scope of its fiduciary duty claim – namely, that DKD stood in a fiduciary relationship with an obligation to take all reasonable steps to enable Catalyst to remain part of the Project and DKD could not resile from that obligation even if it was in DKD’s financial interest to do so. Not only was the fiduciary relationship limited in scope, it was limited in duration, existing only from the time that DKD was selected as the preferred bidder for the Project until the commercial close of the RFP with the execution of a project agreement, initially scheduled for November 2011. According to Catalyst, during that time, DKD had a fiduciary duty to act in the utmost good faith and take all reasonable steps to enable Catalyst’s continued participation in the Project. Analysis [65] To establish the existence of an ad hoc fiduciary relationship a claimant must demonstrate three elements: (i)    an undertaking, express or implied, by the alleged fiduciary to act in the best interests of a beneficiary. The claimant must be able to point to a forsaking by the alleged fiduciary of the interests of all others in favour of those of the beneficiary in relation to the specific legal interest at stake; (ii)    the identification of a defined person or class of persons who are vulnerable to the alleged fiduciary in the sense that the alleged fiduciary has a discretionary power over them; and (iii)   the alleged fiduciary’s power may affect the legal or substantial practical interests of the beneficiary. Elder Advocates of Alberta Society v. Alberta , 2011 SCC 24, [2011] 2 S.C.R. 261, at paras. 30-34; Professional Institute of the Public Service of Canada v. Canada (Attorney General) , 2012 SCC 71, [2012] 3 S.C.R. 660, at paras. 124, 128 and 138. [66] The motion judge held that Catalyst failed to plead the required element of an undertaking. I disagree. A review of Catalyst’s Amended Claim reveals that it substantively pleaded all three elements. [67] While Catalyst did not use the word “undertaking” to describe DKD’s relationship with it, the Amended Claim essentially pleads that DKD undertook to act in the best interests of Catalyst and forsake the interests of all others in favour of those of Catalyst. The Amended Claim pleads that the terms of the Oral Agreement, a potential form of undertaking, included the following: · para. 25(f): DKD agreed that it would act in good faith to protect, promote and advance Catalyst’s interests and participation in the DKD Bid on the Project, including in all of its communications and dealings with the IO and the Crown; and · para. 25(g): DKD agreed that it would apply the experience and expertise that it had represented it possessed in its dealings with IO and the Crown, to enable Catalyst to participate in the Project, including in the preparation and submission of the DKD Bid and, if DKD was selected as the preferred bidder, in any and all subsequent dealings and agreements relating to the Project. [68] The section of the Amended Claim dealing with the alleged breach of fiduciary duty by DKD builds on those pleaded terms to allege, in para. 113, that “DKD agreed to use its expertise and extensive contacts to benefit Catalyst, by negotiating on Catalyst’s behalf and by promoting and advancing Catalyst’s interests in all negotiations and discussions with the Lenders and with IO and the Crown” (emphasis added). In para. 114, Catalyst pleaded that it was “in a unique position of vulnerability and dependency” as it was dependent on “DKD to communicate with IO and the Crown regarding the terms under which Catalyst would be permitted to participate in the [Project]”. Catalyst went on to plead, in para. 116, that “DKD was required to take all necessary steps to protect and advance Catalyst’s interests, and, if necessary, to subordinate its own interests in the process ” (emphasis added). Combined, these portions of the Amended Claim adequately plead the undertaking element of the breach of fiduciary duty cause of action. [69] As well, Catalyst adequately pleads the elements of DKD’s discretionary power (Amended Claim, paras. 25 and 113-114) and that its power might affect the legal or substantial practical interests of Catalyst, specifically its participation in the Project (Amended Claim, paras. 113 and 118). [70] The motion judge also held that it would be “absurd” to think that a fiduciary relationship could arise between two sophisticated commercial parties like DKD and Catalyst. In making that comment, the motion judge strayed beyond the boundaries of examining the sufficiency of the pleading on a r. 21.01(1)(b) motion into the realm of assessing the claim on the merits in the absence of an evidentiary record. [71] The existence of an ad hoc fiduciary relationship is determined on a case-by-case basis, including in cases of commercial transactions: PIPSC , at para. 113; Lac Minerals Ltd. v. International Corona Resources Ltd. , [1989] 2 S.C.R. 574, at pp. 667-668. In the present case, Catalyst pleads that the fiduciary duty owed by DKD only covered one aspect of their relationship: “the negotiations that DKD conducted with the Lenders, and with IO and the Crown, on Catalyst’s behalf”: Amended Claim, para. 113. Catalyst claims that DKD needed its assistance to finance the Project but insisted on conducting all material negotiations with IO in the absence of Catalyst. In return, DKD agreed to act in good faith to protect, promote, and advance Catalyst’s interest and participation in its bid. Certainly not a typical commercial relationship between two sophisticated parties. But a determination as to whether the evidence bears out Catalyst’s claim properly awaits the hearing on the merits, not an evidence-free r. 21.01(1)(b) pleadings motion. [72] For these reasons, I would allow this ground of appeal. VI.     THIRD GROUND OF APPEAL: THE CLAIMS AGAINST DKD FOR UNJUST ENRICHMENT AND QUANTUM MERUIT The issue stated [73] In its Amended Claim, Catalyst pleads against DKD claims for unjust enrichment and quantum meruit . The motion judge struck out the claims, without leave to amend, on the basis that they were statute-barred under the Limitations Act, 2002 . He held that the Original Claim against DKD and IO had not pleaded substantially all of the material facts on which the claims of unjust enrichment and quantum meruit were based: at para. 35. That led him to conclude that the Amended Claim asserted new causes of action well beyond the two-year limitation period. [74] Catalyst submits that the motion judge erred, arguing that the Original Claim against DKD and IO pleaded the material facts needed to support those claims. Analysis [75] I accept this submission. The governing principles were stated by this court in Klassen v. Beausoleil , 2019 ONCA 407, 34 C.P.C. (8th) 180, at paras. 27-30: An amendment [to a statement of claim] will be statute-barred if it seeks to assert a “new cause of action” after the expiry of the applicable limitation period: North Elgin , at paras. 19-23, 33; Quality Meat Packers , at para. 65. In this regard, the case law discloses a “factually oriented” approach to the concept of a “cause of action” — namely, “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”: North Elgin , at para. 19; Quality Meat Packers , at para. 65. An amendment does not assert a new cause of action — and therefore is not impermissibly statute-barred — if the “original pleading ... contains all the facts necessary to support the amendments ... [such that] the amendments simply claim additional forms of relief, or clarify the relief sought, based on the same facts as originally pleaded”: Dee Ferraro , at paras. 4, 13-14; North Elgin Centre Inc. , at paras. 20-21; East Side Mario's Barrie , at paras. 31-32; Quality Meat Packers , at para. 65. Put somewhat differently, an amendment will be refused when it seeks to advance, after the expiry of a limitation period, a “fundamentally different claim” based on facts not originally pleaded: North Elgin , at para. 23. The relevant principle is summarized in Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario , 3rd ed. (Toronto: LexisNexis, 2017), at p. 186: A new cause of action is not asserted if the amendment pleads an alternative claim for relief out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon [which] the original right of action is based. In the course of this exercise, it is important to bear in mind the general principle that, on this type of pleadings motion, it is necessary to read the original Statement of Claim generously and with some allowance for drafting deficiencies: Farmers Oil and Gas Inc. v. Ontario (Ministry of Natural Resources) , 2016 ONSC 6359, 134 O.R. (3d) 390 (Div. Ct.), at para. 23. [76] A claim of unjust enrichment contains three constituent elements: (i) an enrichment or benefit to the defendant; (ii) a corresponding deprivation of the plaintiff; and (iii) the absence of a juristic reason for the enrichment: Kerr v. Baranow , 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 32. The question then is: Did the Original Claim against DKD and IO, read generously, plead all the material facts needed to support these three elements of the cause of action of unjust enrichment? [77] In my view, it did. [78] In its Original Claim against DKD and IO, Catalyst pleaded the material facts to support all three elements of unjust enrichment: (i) Enrichment/benefit of the defendant : As a result of Catalyst’s involvement, DKD was able to develop a more competitive financial model for its bid and submit a lower cost bid, which IO ultimately selected as the winning bid: Original Claim against DKD and IO, paras. 16, 22 and 23; (ii) Corresponding deprivation : Catalyst invested extensive time and resources in assisting DKD and was deprived of the profits, benefits and opportunities promised to it and that it reasonably expect to gain from its participation in DKD’s bid and Project: Original Claim against DKD and IO, paras. 16 and 36; and (iii) Absence of a juristic reason for the benefit : The retention of the benefit conferred by Catalyst lacked juristic reason as Catalyst was “wrongfully excluded from the DKD Bid and the Athletes’ Village Project”: Original Claim against DKD and IO, paras. 24-31 and 35. [79] Similarly, in its Original Claim against DKD and IO, Catalyst pleaded the material facts needed to support the two elements of a quantum meruit claim: (i) that the services were furnished at the request, or with the encouragement or acquiescence of, the opposing party; and (ii) that in the circumstances it would be unjust for the opposing party to retain the benefit conferred by the provision of the services: Consulate Ventures Inc. v. Amico Contracting & Engineering (1992) Inc. , 2011 ONCA 418, 278 O.A.C. 216, at para. 8. [80] Catalyst pleads that: (i) DKD approached it to participate in its bid and requested its services; and (ii) DKD’s retention of the benefits arising from Catalyst’s participation in the bid and Catalyst’s exclusion from the Project was unjust in the circumstances of the case: Original Claim against DKD and IO, paras. 16, 24-31 and 35. [81] The required generous reading of the Original Claim against DKD and IO discloses that the claims for unjust enrichment and quantum meruit advanced in the Amended Claim are not new causes of action but, rather, claims for additional forms of relief based on the same facts as originally pleaded. The motion judge erred in striking these claims as statute-barred. I would allow this ground of appeal. VII.    FOURTH GROUND OF APPEAL: THE CLAIM AGAINST IO AND THE CROWN FOR UNJUST ENRICHMENT AND QUANTUM MERUIT The issue stated [82] In its Amended Claim, Catalyst also advances claims of unjust enrichment and quantum meruit against IO and the Crown. The motion judge struck out those claims, without leave to amend, as statute-barred for the same reasons he struck out the similar claims against DKD. However, the motion judge went on to note that he would have struck out the claims in any event because it was plain and obvious that they could not succeed. The motion judge held that as Catalyst had not pleaded that it provided any services to IO and the Crown, IO and the Crown only received an indirect benefit from the services Catalyst did provide to DKD. Such an indirect benefit could not ground Catalyst’s unjust enrichment claim against IO or the Crown. Nor could the quantum meruit claim succeed because Catalyst failed to plead that its services were requested, encouraged, or acquiesced in by IO or the Crown. [83] Catalyst submits that the motion judge erred in reaching that conclusion. It contends that it pleaded the benefits received by IO and the Crown were tangible and substantial: namely, that Catalyst’s financial model significantly reduced the cost of DKD’s bid which directly lowered the cost of constructing the Project. This benefitted IO and the Crown directly. Moreover, as pleaded, IO and Crown encouraged and induced Catalyst to provide the benefit through the Governmental Representations. Analysis [84] I am not persuaded by Catalyst’s submissions. I see no error by the motion judge. [85] First, Catalyst’s Original Claim against DKD and IO and Original Claim against the Crown failed to plead that either IO or the Crown benefitted from the financial model Catalyst provided to DKD or that Catalyst’s actions provided any economic benefit to IO or the Crown. Consequently, in its Amended Claim, Catalyst is advancing new causes of action, not additional forms of relief on the same facts originally pleaded. The motion judge correctly held that the claims for unjust enrichment and quantum meruit against IO and the Crown were statute-barred. [86] As well, I agree with the motion judge that Catalyst’s claims for unjust enrichment and quantum meruit against IO and the Crown should be struck on the ground that it is plain and obvious they cannot succeed. In Peel (Regional Municipality) v. Canada , [1992] 3 S.C.R. 762, 98 D.L.R. (4th) 140, the Supreme Court stated, at p. 797, that any enrichment or benefit to the defendant must be conferred directly and specifically on the defendant and that it is not sufficient that the enrichment or benefit to the defendant is indirect: While not much discussed by common law authorities to date, it appears that a further feature which the benefit must possess if it is to support a claim for unjust enrichment is that it be more than an incidental blow-by. A secondary collateral benefit will not suffice. To permit recovery for incidental collateral benefits would be to admit of the possibility that a plaintiff could recover twice — once from the person who is the immediate beneficiary of the payment or benefit (the parents of the juveniles placed in group homes in this case), and again from the person who reaped an incidental benefit. … It would also open the doors to claims against an undefined class of persons who, while not the recipients of the payment or work conferred by the plaintiff, indirectly benefit from it. This the courts have declined to do. The cases in which claims for unjust enrichment have been made out generally deal with benefits conferred directly and specifically on the defendant , such as the services rendered for the defendant or money paid to the defendant. This limit is also recognized in other jurisdictions. For example, German restitutionary law confines recovery to cases of direct benefits… [Internal citations omitted, emphasis added.] [87] Catalyst’s Amended Claim does not plead that it directly provided any services to IO or the Crown. On the contrary, Catalyst pleads that it provided services to DKD because DKD wanted to make its bid more competitive. There is no suggestion in the factual matrix pleaded by Catalyst that IO or the Crown had asked it to provide any services. In these circumstances, even if Catalyst’s financial model significantly reduced the cost of DKD’s bid and lowered the cost of constructing the Project, any economic benefit received by IO and the Crown would constitute an indirect, secondary collateral benefit not recoverable through a claim of unjust enrichment. [88] In terms of the claim for quantum meruit , the motion judge correctly observed that Catalyst failed to plead that it furnished its services at the request, encouragement, or acquiescence of IO or the Crown. [89] For these reasons, I would dismiss this ground of appeal. VIII.   FIFTH GROUND OF APPEAL: THE PUBLIC LAW DUTY CLAIM AGAINST IO AND THE CROWN The issue stated [90] In its Amended Claim, Catalyst pleads what it describes as a “public law claim”, drawing upon the obiter comments of Stratas J.A. in Paradis Honey Ltd. v. Canada (Minister of Agriculture and Agri-Food ) , 2015 FCA 89, 382 D.L.R. (4th) 720, leave to appeal refused, [2015] S.C.C.A. No. 227 (S.C.C.). [91] One aspect of Catalyst’s public law claim replicates its discrete misrepresentation claims against IO and the Crown. But there are several distinctive elements to the public law “duty to act” claim that Catalyst pleads against IO and the Crown, specifically that IO and the Crown failed: (i) to provide DKD with timely and sufficient information to enable DKD and Catalyst to structure a financial model that met IO and the Crown’s “behind the curtain” requirements; (ii) to act fairly towards Catalyst; (iii) to make rational decisions based on factually correct information; (iv) to afford Catalyst a fair and reasonable opportunity to answer and alleviate any questions, issues, or concerns about its participation in DKD’s bid and the Project; (v) to act in a non-arbitrary, bona fide manner and in a manner that respected Catalyst’s reasonable expectations resulting from the Governmental Representations; and (vi) to avoid causing, contributing to, or assisting in any breach of contractual and other duties owed by DKD to Catalyst. Catalyst pleads that IO and the Crown breached those obligations, acted in bad faith, and their reasons “for excluding Catalyst were unreasonable and indefensible.” [92] The motion judge struck out Catalyst’s public law claim against IO and the Crown, without leave to amend, for being plain and obvious that it could not succeed. While respectfully considering the obiter analysis of Stratas J.A. in Paradis Honey , the motion judge concluded that the Paradis Honey framework did not apply to Catalyst’s case. The motion judge explained why at paras. 98-101 of his reasons: Without in any way denigrating the obiter analyses of Stratas J.A., I do not think it is at all applicable to this case. What he was dealing with was a case involving government policy unique to governmental action and he opined that in the future there could be a case to be made to permit such a claim to be decided on public law grounds. In the case against IO and the Crown, however, what is central is a claim that could and is quite regularly made against private actors, namely a claim for damages arising from an unsuccessful bid in a RFP request for bids on a construction project. In this case, the IO was acting as any other owner in seeking to obtain bids to finance and construct the Athlete’s Village. There was nothing in this that was unique to governmental actors. This is no different from Design Services in which Public Works and Government Services Canada launched a "design-build" tendering process for the construction of a building. Justice Rothstein for the SCC dealt with the case involving rights between the Government and subcontractors by an analyses of the common law test of Anns . He began his decision by saying: “The issue in this appeal is whether an owner in a tendering process owes a duty of care in tort to subcontractors.” It is also no different from Martel in which a claim arising from a tender process undertaken by the federal Department of Public Works was analysed by the SCC on contractual and tortious principles applicable to any private person. I see no basis to depart from cases such as Design Services and Martel , which are binding authority, to permit a different analysis of claims against a public authority for liability under a tender process for a construction contract. To do otherwise would be to ignore that binding authority. It is plain and obvious that the public law claim pleaded against IO and the Crown cannot succeed and it is struck without leave to amend. [93] Catalyst submits that the motion judge erred by improperly analogizing its claims to those in Design Services Ltd. v. R. , 2008 SCC 22, [2008] 1 S.C.R. 737 and Martel Building Ltd. v. R. , 2000 SCC 60, [2000] 2 S.C.R. 860. Its public law claim differs from the typical claim by an unsuccessful bidder under a tender process for a construction contract and lacks the element of indeterminate scope of liability that concerned the Supreme Court in Design Services and Martel . Catalyst contends it occupied a special position, as a non-prequalified proponent financier, known to IO and the Crown on the facts pleaded, and that its expulsion from DKD’s winning bid violated the public law principles identified by Stratas J.A. in Paradis Honey . Although Ontario courts have not affirmed the obiter reflections in Paradis Honey about the availability of monetary relief for an administrative law wrong, Catalyst contends that its claim based on the framework constructed by Stratas J.A. in obiter should have been allowed to proceed as a novel cause of action. Analysis [94] I am not persuaded by these submissions. For several reasons, I substantially agree with the motion judge’s analysis. [95] First, the context in which Stratas J.A. made his obiter comments in Paradis Honey differs materially from the circumstances from which Catalyst’s claim has emerged. At issue in Paradis Honey was the exercise by a Minister of the Crown of a regulatory discretion to issue permits for the importation of bees into Canada. At the material time, the Minister was only prepared to issue permits for the importation of a queen and a few attendant bees, not for small colonies, or a package, of bees. A class action was brought by a group of commercial beekeepers alleging that the government defendants had acted negligently and in bad faith by imposing such import restrictions. [96] The Federal Court struck out the statement of claim. A majority of the Federal Court of Appeal (Nadon and Stratas JJ.A.) reversed and allowed the claim to proceed. The ratio of their decision was that the facts as pleaded supported claims in negligence and bad faith: at para. 77. [97] However, all members of the court expressed the view that had the beekeepers attacked the government’s conduct by way of judicial review and proven their allegations, they would have been entitled to an award of administrative law remedies: at paras. 85 and 147. That prompted Stratas J.A., writing for the majority, to ask, in obiter , whether the available administrative remedies could include a monetary award. He expressed the view that it was not plain and obvious that a court would decline to exercise its remedial discretion against giving the beekeepers monetary relief as an administrative law remedy: at paras. 147-148. [98] By contrast, the facts pleaded in the present case do not concern the exercise by Ontario government actors of discretionary powers within a regulatory regime. Catalyst’s Amended Claim is devoid of any allegation of the breach of a statutory duty or discretionary power. [99] Instead, the factual context of Catalyst’s claim concerns the process to select the Project’s developer. That process was set out in the RFP, which IO issued as agent for the Crown: RFP, s. 1.1(1). The RFP operated as a “Contract A” in the tendering process framework adopted by the Supreme Court in a series of cases starting with R. v. Ron Engineering & Construction (Eastern) Ltd ., [1981] 1 S.C.R. 111. [100] The RFP set out the rights and obligations of the government sponsors and the various proponents and their team members. Section 3.6 of the RFP specifically addressed the process to change members of a proponent’s team. Section 3.6(7) reserved to the government sponsors the right, in their sole discretion, to “refuse to accept a change in an Identified Proponent Party that occurs or is requested by the Proponent after the Submission Deadline (Technical)”. In essence, all of Catalyst’s claims come down to DKD not negotiating hard enough or in good faith to secure IO’s consent to add Catalyst as a proponent team member and IO’s refusal to so recognize Catalyst pursuant to s. 3.6(7) of the RFP. [101] Second, to date the Supreme Court has not been prepared to recognize a tort duty of care by an owner to a proponent in the context of a tendering process, in part because the rights and obligations in the Contract A would inform any duty in any event: Martel , at para. 106. In Design Services , the court was not prepared to recognize a duty of care between an owner and the subcontractor of a proponent who had failed in its bid: at paras. 57-58 and 65-67. Recognizing Catalyst’s public law claim as a reasonable cause of action would run counter to both those decisions. [102] Third, Martel and Design Services involved tender processes run by government sponsors. In both cases, the Supreme Court applied the standard Anns/Cooper [5] analysis to the question of whether a duty of care existed. No special public law duty analysis was conducted. Significantly, for our purposes, in Design Services , the Supreme Court stated, at para. 32: The appellants’ economic losses do not fall within the first four categories. This case obviously does not involve a negligent misrepresentation, a negligent performance of services or a negligent supply of shoddy goods or structures. Neither is this a case of independent liability of statutory public authorities, which deals with the government’s “unique public power to convey certain discretionary benefits, such as the power to enforce by-laws, or to inspect homes or roadways” (Feldthusen, at p. 358). Here, the government is not inspecting, granting, issuing or enforcing something mandated by law. Instead, the present situation is akin to commercial dealings between private parties, not the exercise of unique government power . [Emphasis added] [103] This extract from Design Services supports the motion judge’s conclusion, at para. 100, that: “In this case, the IO was acting as any other owner in seeking to obtain bids to finance and construct the Athletes’ Village. There was nothing in this that was unique to governmental actors.” [104] Fourth, this court has not previously recognized a Paradis Honey -type claim. [6] In Hughes v. Liquor Control Board of Ontario , 2019 ONCA 305, 145 O.R. (3d) 401, this court considered the lower court’s decision to dismiss a class action against the Liquor Control Board of Ontario and several retailers alleging violations of the Competition Act , R.S.C. 1985, c. C-34. As one ground of appeal, the appellants contended that they had established their claim for damages under the “misconduct by a civil authority” claim discussed by Stratas J.A. in Paradis Honey . This court disposed of the ground of appeal on the basis that even if such a claim were adopted in Ontario, relief would not be available to the appellants on the facts of the case: at para. 47. [105] Finally, in Merrifield v. Canada (Attorney General ), 2019 ONCA 205, 145 O.R. (3d) 494, leave to appeal refused, 2019 CarswellOnt 14956 (S.C.C.), this court discussed at length the conditions supporting and the process required for the recognition of a new tort: at paras. 19-26. Merrifield stressed the importance of the incremental development of the common law and the grounding of any new tort in the emerging acceptance in the case law of a new type of claim: at para. 20-24. Here, the conditions, at least as argued, do not support the recognition of a new tort of “misconduct by a civil authority”. Catalyst relies on a single case, Paradis Honey , where comments were made in obite r, in a context where the government actors were not participating in a commercial transaction, as they are here. Moreover, in the present case, the jurisprudence very strongly points away from the recognition of such a claim in the tendering process where a government actor is the sponsor of the process. [106] For these reasons, I conclude that the motion judge did not err in striking out Catalyst’s public law claim, without leave to amend, on the ground that that it is plain and obvious that Catalyst’s public law claim would not succeed. [107] Given that conclusion, it is not necessary to address the submissions of the respondents that the enactment of s. 11 of the Crown Liability and Proceedings Act, 2019 , S.O. 2019, c. 7, Sched. 17, extinguished in Ontario the kind of public law claim described by Stratas J.A. in Paradis Honey . IX.     SIXTH GROUND OF APPEAL: THE CLAIM AGAINST THE CROWN FOR MISREPRESENTATION The issue stated [108] Catalyst pleads that at the time the Governmental Representations were made by IO in about mid-June 2011, IO and the Crown: (i) knew or ought to have known that they were untrue; and (ii) knew and intended that the Governmental Representations would be specifically and uniquely communicated to, accepted by, acted on, and relied on by Catalyst to its detriment. [109] The motion judge did not strike out Catalyst’s misrepresentation claim against IO. However, he struck out the claim against the Crown, without leave to amend, on the basis that it was precluded by s. 2(2)(b) of PACA , which states: Nothing in this Act … (b) subjects the Crown to a proceeding under this Act in respect of a cause of action that is enforceable against a corporation or other agency of the Crown [110] In striking out the claim against the Crown, the motion judge stated at paras. 27-28: To the extent that the pleading of Governmental Representations is a pleading of the existing state of mind of IO and the Crown, it is actionable if the statements were untrue. Catalyst however pleads in several places that the Governmental Representations were promises of what IO or the Crown would do in the future (paragraphs 127(a), 136, 137, 139 and 142) and damages are sought against IO and the Crown on that basis. There is no pleading of any contract between Catalyst and IO or the Crown, nor could there be as the basis for the claim of Catalyst is that it did not need to be a part of the RFP process as it could operate behind the curtain. Thus the only claim so far as the Governmental Representations is concerned is the claim that they were untrue when made. That claim as pleaded does not permit a finding that the Crown but not IO could be liable for the untrue representation made by IO. The plea is that the untrue representations were made by IO. Thus section 2(2)(b) of the PACA precludes an action against the Crown for misrepresentation. The claim against the Crown for misrepresentation is therefore struck without leave to amend. [111] Catalyst submits that the motion judge erred in striking out the misrepresentation claim against the Crown because it is conceivable that at trial it could be found that liability for the Governmental Representations could attach to the Crown, but not to IO, thereby bringing the case outside the scope of s. 2(2)(b) of PACA . Analysis [112] I am not persuaded by Catalyst’s submission. It is undercut by its own pleading of material facts. [113] In Imperial Tobacco , the Supreme Court stated, at paras. 22-23: It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted. Before us, Imperial and the other tobacco companies argued that the motion to strike should take into account, not only the facts pleaded, but the possibility that as the case progressed, the evidence would reveal more about Canada's conduct and role in promoting the use of low-tar cigarettes. This fundamentally misunderstands what a motion to strike is about. It is not about evidence, but the pleadings. The facts pleaded are taken as true. Whether the evidence substantiates the pleaded facts, now or at some future date, is irrelevant to the motion to strike. The judge on the motion to strike cannot consider what evidence adduced in the future might or might not show. To require the judge to do so would be to gut the motion to strike of its logic and ultimately render it useless. [Emphasis added] [114] Applying those principles to the present case, in its Amended Claim Catalyst clearly identifies the makers of the Governmental Representations as employees of IO: Amended Claim, para. 31. The IO employees named in the Amended Claim made the representations to DKD which, in turn, communicated them to Catalyst. It follows that if, at trial, Catalyst establishes that the IO employees made the Governmental Representations, as alleged, and those representations were not true, liability would attach to IO. [115] Since IO is an agent of the Crown – Ontario Infrastructure and Lands Corporation Act, 2011 , s. 3(1) – liability in respect of the misrepresentation cause of action would be “enforceable against a corporation or other agency of the Crown”, thereby bringing the claim pleaded against the Crown squarely within the immunity afforded by PACA s. 2(2)(b): Toronto (City) v. Longbranch Child Care , 2011 ONSC 548, at para. 44. [7] [116] Consequently, I would dismiss this ground of appeal. X.      DISPOSITION [117] For the reasons set out above, I would allow Catalyst’s appeal in part and set aside paras. 1(a), (b) and (c) of the Order in which the motion judge struck out Catalyst’s claims against DKD for breach of s. 29 of the Funding Term Sheet, breach of fiduciary duty, and unjust enrichment/ quantum meruit . I would dismiss the appeal in all other respects. [118] This proceeding was started in late 2013. Although it is on the Toronto Region Commercial List, the action has not progressed beyond successive attacks on the statement of claim. Active single-judge case management would be appropriate to move it along to a final adjudication on the merits. Once the Commercial List resumes normal operations following the current COVID emergency, the parties should appear before a judge of the Commercial List to secure the case management of this aging proceeding. [119] The Crown successfully resisted Catalyst’s appeal and is entitled to its costs of the appeal fixed in the amount of $10,000, inclusive of disbursements and applicable taxes. [120] There was mixed success as between Catalyst and DKD on the appeal. I would fix the costs of the appeal as between them at $15,000, inclusive of disbursements and applicable taxes, but make the costs payable in the cause of the action. I would not interfere with the order of the motion judge that there should be no order as to the costs of the motion below. Released: “DD”  APR 29 2020 “David Brown J.A.” “I agree. Doherty J.A.” “I agree. Thorburn J.A.” [1] The Ontario Infrastructure and Lands Corporation is the amalgamated corporation continued under the Ontario Infrastructure and Lands Corporation Act, 2011 , S.O. 2011, c. 9, Sch. 32, s. 2(1). It carries on business under the name Infrastructure Ontario. [2] The Funding Term Sheet defines the “Subordinated Noteholder” as Catalyst. Lenders were the consortium of financial institutions that were to provide DKD with financing for its bid and who were party to a Credit Agreement. [3] In ArcelorMittal Dofasco , the motion judge did take into consideration the surrounding circumstances and business context in interpreting the agreement, relying on the undisputed material facts plead in the statement of claim: at para. 34. [4] Section 29 of the Funding Term Sheet states, in part: “The parties acknowledge that the Senior Financing Term Sheet contains a condition precedent in favour of the Lenders …” [5] Anns v. Merton London Borough Council , [1977] UKHL 4, [1978] AC 728; Cooper v. Hobart , 2001 SCC 79, [2001] 3 S.C.R. 537. [6] This court considered Paradis Honey in Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada ), 2017 ONCA 526, at paras. 114-115, but not in respect of the discussion of a novel claim for misconduct by a civil authority. This court focused on the analysis in Paradis Honey using the standard Anns/Cooper framework. [7] I do not find persuasive the view expressed by Cullity J. in Dumoulin v. Ontario (2004), 71 O.R. (3d) 556 (Sup. Ct.), at para. 28, that before a court can apply PACA s. 2(2)(b), there must be a finding of liability against the Crown. On that basis, Cullity J. took the view that a r. 21.01(1)(b) motion was not the appropriate place in which to make a determination on the application of PACA s. 2(2)(b). In my view, such a restrictive interpretation of PACA s. 2(2)(b) would unnecessarily foster a multiplicity of litigation and would deprive the Crown of the section’s stated purpose of protecting it from a proceeding if the section’s conditions are met.

COURT OF APPEAL FOR ONTARIO CITATION: Curriculum Services Canada/Services Des Programmes D’Études Canada (Re), 2020 ONCA 267 DATE: 20200427 DOCKET: C66626 Hoy A.C.J.O., van Rensburg and Roberts JJ.A. IN THE MATTER OF THE BANKRUPTCY OF Curriculum Services Canada/Services Des Programmes D’Études Canada of the City of Toronto in the Province of Ontario Catherine Francis, for the appellant Alex Ilchenko and Monty Dhaliwal, for the respondent Heard: October 9, 2019 On appeal from the order of Justice Victoria R. Chiappetta of the Superior Court of Justice, dated February 15, 2019, with reasons reported at 2019 ONSC 1114. van Rensburg J.A.: I. OVERVIEW [1] The appellant is Medallion Corporation, as authorized agent for the landlord, 280 Richmond Street West Limited (the “Landlord”). The respondent, RSM Canada Ltd. (the “Trustee”), is the trustee in bankruptcy of Curriculum Services Canada/Services des Programmes d’Études Canada (“Curriculum” or the “Tenant”). Curriculum was a tenant of the Landlord. [2] This is the second appeal of the partial disallowance of the Landlord’s claim in the bankruptcy of the Tenant. The first appeal, from the decision of the Trustee, was to Chiappetta J. of the Superior Court of Justice (the “bankruptcy judge”). [3] Broadly, this appeal is about the rights of a commercial landlord as a creditor in the bankruptcy of its tenant following the disclaimer of the lease by the trustee in bankruptcy. Specifically, the issue is whether a landlord has a claim arising from the disclaimer of its lease for any amount in relation to the unexpired term of the lease, other than its preferred claim for three months’ accelerated rent under s. 136(1) of the Bankruptcy and Insolvency Act , R.S.C. 1985, c. B-3 (the “BIA”). In other words, can a landlord claim as an unsecured creditor for the disclaimer of its lease, calculated in accordance with its contractual rights under the lease? [1] [4] In Ontario, the law on this question was settled many years ago in Re Mussens Ltd. , [1933] O.W.N. 459 (H.C.). [2] As between the landlord and tenant, the disclaimer of a commercial lease by the tenant’s trustee in bankruptcy brings to an end the future or ongoing obligations of the tenant under the lease. The landlord has no right of compensation or claim as an unsecured creditor for damages in respect of the unexpired term of the lease in relation to the loss of the tenancy as a result of the disclaimer; the landlord is limited to its preferred claim for up to three months’ accelerated rent. The Landlord contends that this principle has been overtaken by more recent developments in the law. [5] In this case, the Landlord claims the repayment of the value of certain tenant inducements ($203,442.37) according to a formula provided for in the lease. The Landlord asserts that it is entitled to claim this amount as an unsecured creditor in the bankruptcy of its former tenant, upon and notwithstanding the Trustee’s disclaimer of the lease. The Landlord also claims the unpaid balance of its preferred claim for accelerated rent, pursuant to the lease, as an unsecured creditor under s. 136(3) of the BIA, which amounts to $50,289.28. [6] For the reasons that follow, I would allow the appeal, but only to permit the Landlord to rank as an unsecured creditor for the unpaid balance of its preferred claim. Subsection 136(3) of the BIA expressly authorizes a landlord to claim the unrecovered balance of its preferred claim as an unsecured creditor in the bankruptcy of its tenant. [7] As for the Landlord’s claim to rank as an unsecured creditor to recover unpaid tenant inducements, the obligations under the lease between the Tenant and Landlord came to an end once the Trustee disclaimed the lease. As I will explain, the long-accepted rule articulated in Re Mussens has not been attenuated by the decision of the Supreme Court in Highway Properties Ltd. v. Kelly, Douglas & Co. Ltd. , [1971] S.C.R. 562, nor has it been overruled by the Supreme Court’s decision in Crystalline Investments Ltd. v. Domgroup Ltd., 2004 SCC 3, [2004] 1 S.C.R. 60. The Landlord is not entitled to claim as an unsecured creditor in the bankrupt Tenant’s estate for damages relating to the unexpired term of the lease, except to recover the balance of its preferred claim for three months’ accelerated rent, which is specifically provided for by statute. II. FACTS [8] The Landlord and Tenant were parties to a lease dated May 26, 2017 (the “Lease”). The Lease was for 8,322 square feet of space at 150 John Street West, Toronto, for a term of ten years and six months, commencing on July 1, 2017 and ending on December 31, 2027. [9] On March 29, 2018, and without being in default of its obligations under the Lease, Curriculum made an assignment in bankruptcy. RSM Canada Inc. was appointed trustee. The Trustee occupied the leased premises and paid occupation rent of $25,698.31 to the Landlord. [10] On April 20, 2018, the Landlord filed a Proof of Claim in the bankruptcy. The Landlord claimed $100,558.59 as a preferred claim for three months’ accelerated rent, in accordance with the priority of claims prescribed by s. 136(1)(f) of the BIA. Because the realization of property on the leased premises yielded an amount that was less than the preferred claim ($24,571), the Landlord asserted its right to claim the balance of the unrecovered preferred claim ($75,987.59) as an unsecured creditor. [11] The Landlord also advanced an unsecured claim in the amount of $4,028,111.23. This represented its claim for rent payable for the balance of the unexpired portion of the term of the Lease, together with amounts for tenant inducements consisting of leasehold improvements provided at the Landlord’s cost under the Lease and free rent for a six-month period. In asserting its rights, the Landlord relied on the Tenant’s obligation under the Lease to make certain payments on bankruptcy, including on termination or disclaimer of the Lease. [12] Section 16.1 of the Lease provides for events of default, including the bankruptcy of the Tenant. It also provides for the Landlord’s remedies, including: the payment of three months’ accelerated rent; the right to terminate the Lease (with the right to obtain damages for the Landlord’s deficiency for the balance of the term); and upon any termination, including disclaimer, payment of the value of the unpaid amount of any tenant inducements calculated over the unexpired term of the Lease. The relevant portions of s. 16.1 read as follows: 16.1. If any of the following shall occur: (f) Tenant, any assignee or a subtenant of all or substantially all of the Premises makes an assignment for the benefit of creditors or becomes bankrupt or insolvent or takes the benefit of any statute for bankrupt or insolvent debtors or makes any proposal, assignment, arrangement or compromise with its creditors or Tenant sells all or substantially all of its personal property at the Premises other than in the ordinary course of business (and other than in connection with a Transfer requiring Landlord’s consent and approved in writing by Landlord), or steps are taken or action or proceedings commenced by any person for the dissolution, winding up or other termination of Tenant’s existence or liquidation of its assets (collectively called a “Bankruptcy”); (g) a trustee, receiver, receiver-manager, manager, agent or other like person shall be appointed in respect of the assets or business of Tenant or any other occupant of the Premises; then, without prejudice to and in addition to any other rights or remedies to which Landlord is entitled hereunder or at law, the then current and the next three (3) months’ Rent shall be forthwith due and payable and Landlord shall have the following rights and remedies, all of which are cumulative and not alternative, namely: (v)     to obtain damages from Tenant including, without limitation, if this Lease is terminated by Landlord, all deficiencies between all amounts which would have been payable by Tenant for what would have been the balance of the Term, but for such termination, and all net amounts actually received by Landlord for such period of time; (vii)    to obtain the Termination Payment from Tenant; [3] (viii) if this Lease is terminated due to the default of Tenant, or if it is disclaimed, repudiated or terminated in any insolvency proceedings related to Tenant (collectively “Termination”), to obtain payment from Tenant of the value of all tenant inducements which were received by Tenant pursuant to the terms of this Lease, the agreement to enter into this Lease or otherwise, including, without limitation, the amount equal to the value of any leasehold improvement allowance, tenant inducement payment, rent free periods, lease takeover, Leasehold Improvements or any other work for Tenant’s benefit completed at Landlord’s cost or any moving allowance, which value shall be multiplied by a fraction, the numerator of which shall be the number of months from the date of Termination to the date which would have been the natural expiry of this Lease but for such Termination, and the denominator of which shall be the total number of months of the Term as originally agreed upon. [4] [Emphasis added.] [13] On April 23, 2018, the Trustee issued a Notice of Disclaimer of the Lease. Following the disclaimer, the Landlord found a new tenant for the leased premises, effectively mitigating its claim for future rent. [14] On September 19, 2018, the Trustee issued a Notice of Partial Disallowance of Claim, allowing only the Landlord’s preferred claim in the amount of $24,571 (limited to the actual value of the property on the leased premises), and disallowing the Landlord’s unsecured claims. [15] The Landlord appealed the disallowance of its unsecured claim to the Superior Court of Justice. It confined its appeal to its claims under s. 16.1 of the Lease for tenant inducements in the amount of $203,442.37, including leasehold improvements and free rent, and the balance of the three months’ accelerated rent of $50,289.28 [5] , for a total unsecured claim of $253,731.65. III. RELEVANT STATUTORY PROVISIONS [16] The relevant statutory provisions are found in the BIA and the Commercial Tenancies Act , R.S.O. 1990, c. L.7 (the “CTA”). [17] Section 71 of the BIA provides that a bankrupt’s capacity to deal with its property ends on its bankruptcy, and that its property vests in the trustee in bankruptcy. The section reads: 71. On a bankruptcy order being made or an assignment being filed with an official receiver, a bankrupt ceases to have any capacity to dispose of or otherwise deal with their property, which shall, subject to this Act and to the rights of secured creditors, immediately pass to and vest in the trustee named in the bankruptcy order or assignment, and in any case of change of trustee the property shall pass from trustee to trustee without any assignment or transfer. [18] Subsection 30(1)(k) of the BIA provides that a trustee, with the approval of inspectors, may elect to retain for the whole or part of its unexpired term, or to assign, surrender, disclaim or resiliate, any lease of, or other temporary interest or right in, any property of the bankrupt. [19] Section 136 of the BIA provides for the priority of certain unsecured claims, including, under s. 136(1)(f), priority for a landlord’s claim for three months’ arrears of rent and three months’ accelerated rent. This claim ranks after: (a) a deceased bankrupt’s funeral and testamentary expenses; (b) the costs of administration of the bankrupt’s estate; (c) the Superintendent’s levy; (d) certain claims for wages, alimony and support payments; and (e) municipal taxes. A landlord’s preferred claim is limited to the value of the realization from the property located on the leased premises, and is to be credited against the amount payable by the trustee for occupation rent. [20] Subsection 136(1)(f) specifically provides: 136. (1) Subject to the rights of secured creditors, the proceeds realized from the property of a bankrupt shall be applied in priority of payment as follows: (f) the lessor for arrears of rent for a period of three months immediately preceding the bankruptcy and accelerated rent for a period not exceeding three months following the bankruptcy if entitled to accelerated rent under the lease, but the total amount so payable shall not exceed the realization from the property on the premises under lease, and any payment made on account of accelerated rent shall be credited against the amount payable by the trustee for occupation rent; [21] Under s. 136(3) of the BIA, where the realization is less than the amount of the preferred claim, a landlord may claim the unrecovered balance as an unsecured creditor. Subsection 136(3) reads as follows: “A creditor whose rights are restricted by this section is entitled to rank as an unsecured creditor for any balance of claim due him”. [22] While s. 136 of the BIA sets out a scheme of payment priorities, the landlord’s rights on a tenant’s bankruptcy are established under provincial law. Canada’s first bankruptcy legislation, the Bankruptcy Act, 1919 , S.C. 1919, c. 36, prescribed, at s. 52, the remedies available to landlords on a tenant’s bankruptcy. After part of s. 52(5) was held to be ultra vires in Re Stober (1923), 4 C.B.R. 34 (Que. S.C.), the section was repealed and replaced with what is now s. 146 of the BIA, which provides: 146. Subject to priority of ranking as provided by section 136 and subject to subsection 73(4) and section 84.1 [these sections are not relevant to this appeal], the rights of lessors are to be determined according to the law of the province in which the leased premises are situated. [23] The Ontario law that defines a commercial landlord’s rights on a tenant’s bankruptcy is found in the CTA. The landlord’s preferential lien for rent, and the trustee’s right to retain and to assign the lease, exercisable within three months of the bankruptcy and before the trustee has disclaimed the lease, are set out in s. 38. Section 39 provides for the right of the trustee in bankruptcy, at any time before electing to retain the leased premises, to “surrender or disclaim” the lease. Sections 38 and 39 read as follows: 38. (1) In case of an assignment for the general benefit of creditors, or an order being made for the winding up of an incorporated company, or where a receiving order in bankruptcy or authorized assignment has been made by or against a tenant, the preferential lien of the landlord for rent is restricted to the arrears of rent due during the period of three months next preceding, and for three months following the execution of the assignment, and from thence so long as the assignee retains possession of the premises, but any payment to be made to the landlord in respect of accelerated rent shall be credited against the amount payable by the person who is assignee, liquidator or trustee for the period of the person’s occupation. (2) Despite any provision, stipulation or agreement in any lease or agreement or the legal effect thereof, in case of an assignment for the general benefit of creditors, or an order being made for the winding up of an incorporated company, or where a receiving order in bankruptcy or authorized assignment has been made by or against a tenant, the person who is assignee, liquidator or trustee may at any time within three months thereafter for the purposes of the trust estate and before the person has given notice of intention to surrender possession or disclaim, by notice in writing elect to retain the leased premises for the whole or any portion of the unexpired term and any renewal thereof, upon the terms of the lease and subject to the payment of the rent as provided by the lease or agreement, and the person may, upon payment to the landlord of all arrears of rent, assign the lease with rights of renewal, if any, to any person who will covenant to observe and perform its terms and agree to conduct upon the demised premises a trade or business which is not reasonably of a more objectionable or hazardous nature than that which was thereon conducted by the debtor, and who on application of the assignee, liquidator or trustee, is approved by a judge of the Superior Court of Justice as a person fit and proper to be put in possession of the leased premises. 39. (1) The person who is assignee, liquidator or trustee has the further right, at any time before so electing, by notice in writing to the landlord, to surrender possession or disclaim any such lease , and the person’s entry into possession of the leased premises and their occupation by the person, while required for the purposes of the trust estate, shall not be deemed to be evidence of an intention on the person’s part to elect to retain possession under section 38. [Emphasis added.] [24] These provisions have been in place relatively unchanged since 1924: see Commercial Tenancies Act , S.O. 1924, c. 42. As I will explain, they have been consistently interpreted to limit an Ontario landlord’s rights once a lease has been disclaimed by a bankrupt tenant’s trustee in respect of claims for damages relating to the unexpired term of the lease; a landlord’s claim is limited to up to three months’ accelerated rent (where the lease so provides). [25] Before the bankruptcy judge and this court, the Landlord advanced a different interpretation of these provisions that would permit it to claim, as an unsecured creditor in the bankruptcy of its tenant, the specific amounts it bargained for under the Lease, which are payable on bankruptcy and specifically in the event of a disclaimer. I turn now to the reasons of the bankruptcy judge. IV. THE REASONS OF THE BANKRUPTCY JUDGE [26] The bankruptcy judge identified the issue as “whether it remains the law in Ontario that the disclaimer of a lease by a trustee in bankruptcy prevents a landlord from claiming unsecured damages”. She dismissed the Landlord’s appeal of the partial disallowance of its claim on the basis of a “long-established legal precedent”. [27] The bankruptcy judge referred to and followed the analysis of the Registrar in Bankruptcy in Re Linens ‘N Things Canada Corp. (2009), 53 C.B.R. (5th) 232 (Ont. S.C.). In that case, the Registrar upheld a trustee’s disallowance of amounts claimed under a lease, including the costs of building a structure expressly for the tenant, the tenant allowance, and the leasing commission. The Registrar relied on Re Mussens as authority that, after a disclaimer, there is no right in Ontario for a landlord to claim damages in respect of the unexpired portion of the lease. The bankruptcy judge noted that the Registrar in Re Linens ‘N Things rejected the argument, based on Highway Properties , that the landlord could recover contractual damages as Highway Properties did not involve an insolvency. She endorsed para. 21 of Re Linens ‘N Things where the Registrar stated that “the CTA and its predecessors has been found … to have the effect of a consensual ending of the lease, and … this is a statutorily permitted breach for which there is no damage remedy, beyond the s. 38 CTA and s. 136 BIA preferred claim”. [28] The bankruptcy judge also considered and rejected the Landlord’s argument that Crystalline Investments had effectively overruled Re Mussens . After a close examination of each of these cases, as well as Cummer-Yonge Investments Ltd. v. Fagot et al. (1965), 50 D.L.R. (2d) 25 (Ont. H.C.), aff’d without reasons (1965), 50 D.L.R. (2d) 30n (Ont. C.A.) (a case that was overruled in obiter in Crystalline Investments ), the bankruptcy judge concluded that Crystalline Investments had not addressed whether a landlord can claim unsecured damages in the bankruptcy proceedings of its tenant upon the disclaimer of a lease by the trustee, and that the principle in Re Mussens remained the law on this issue in Ontario, as correctly applied in Re Linens ‘N Things. [29] The bankruptcy judge dismissed the appeal of the partial disallowance of the Landlord’s claim, without addressing the balance of the Landlord’s claim for three months’ accelerated rent. V. ISSUES ON APPEAL [30] Two issues are raised in this appeal: 1. Is the Landlord entitled to assert a claim for unpaid tenant inducements under the Lease as an unsecured creditor in Curriculum’s bankruptcy? 2. Is the Landlord entitled to assert the balance of its preferred claim for three months’ accelerated rent as an unsecured creditor in Curriculum’s bankruptcy? [31] The bulk of these reasons will address the first question, which involves the Landlord’s challenge to the ongoing authority of Re Mussens and the Landlord’s interpretation of the relevant provisions of the BIA and CTA . With respect to the second issue, I will briefly explain that, on a plain reading of s. 38 of the CTA, together with s. 136(3) of the BIA, the Landlord is entitled to claim as an unsecured creditor for the balance of its preferred claim for three months’ accelerated rent. VI. ANALYSIS (1) Is the landlord entitled to assert a claim for unpaid tenant inducements under the lease as an unsecured creditor in Curriculum’s bankruptcy? [32] The Landlord contends that it should be able to claim in Curriculum’s bankruptcy for unpaid tenant inducements under the Lease in the same way that other unsecured creditors can assert claims for contractual damages. It argues that the principle in Re Mussens was overruled by the Supreme Court’s decision in Crystalline Investments . Further, the Landlord suggests that, while other provinces have specifically prohibited landlords from claiming damages for the unexpired portion of a lease, the CTA contains no such restriction and does not prohibit such a claim. In effect, the Landlord proposes an interpretation of ss. 38 and 39 of the CTA that, upon disclaimer, would give priority to its claim for up to three months’ accelerated rent, while permitting it to claim damages in respect of the unexpired term of the Lease in accordance with the terms of the Lease. [33] The Landlord relies on the principle stated in Highway Properties , that a lease both creates an interest in land and gives rise to contractual rights, and its recognition of a landlord’s right to accept a tenant’s termination of a lease and to sue for damages for its breach. The Landlord argues that there is nothing in the BIA or the CTA to prevent a landlord from filing an unsecured claim for damages in the estate of a bankrupt tenant, nor is there any principled reason why a landlord should be treated differently from other creditors in a bankruptcy. The Landlord points to the terms of the Lease that expressly contemplate and provide for the situation of a bankruptcy or disclaimer and set out the contractual damages to which the Landlord is entitled. [34] In the discussion that follows, I begin with a brief summary of Re Mussens and the way that this authority has been interpreted by the courts. I will specifically address a line of cases dealing with the obligations of guarantors, assignors, and others following the disclaimer of a commercial lease, including the leading case from Ontario, Cummer-Yonge Investments. [35] Turning to Crystalline Investments , I will explain that, while overturning the principle in Cummer-Yonge Investments that a trustee’s disclaimer can release a guarantor from its obligations under the lease, Crystalline Investments did not address, and left intact, the rule articulated in Re Mussens and later cases, that on disclaimer of a commercial lease by its trustee, an Ontario landlord has no claim against a bankrupt tenant arising out of the disclaimer for damages in respect of the unexpired term of the lease; the landlord has only what is specifically provided for – its preferred claim for three months’ accelerated rent. [36] I will then turn to the Landlord’s argument based on Highway Properties. As I will explain, the argument that Highway Properties alters the principle stated in Re Mussens , and affords additional remedies to a landlord post-disclaimer, has been rejected in other cases, and for good reason. Highway Properties recognized that a lease is also a contract, and provided for a landlord’s “fourth option” after a tenant’s repudiation, that of accepting the repudiation, and suing for prospective damages. The case, however, did not address a situation of bankruptcy or insolvency. The remedies for a tenant’s repudiation do not apply once a trustee has disclaimed the lease. The Landlord’s argument fails to recognize the fundamental distinction between a disclaimer and a repudiation of a lease. [37] Finally, on this issue, I will briefly consider the Landlord’s argument that the relevant statutory provisions should be interpreted harmoniously with those that apply to a reorganization under the Companies’ Creditors Arrangements Act , R.S.C. 1985, c. C-36 (the “CCAA”). While the CCAA contains provisions that permit the disclaimer of any agreement to which the company is a party, including leases, and specifically provides for a provable claim by a party suffering a loss in relation to the disclaimer, there is no comparable provision that applies to leases disclaimed by a trustee on bankruptcy. (a) The principle stated in Re Mussens [38] Re Mussens involved a landlord’s claim for damages under the Winding‑Up Act , R.S.C. 1927, c. 213, for breach of its tenant’s covenant to pay future rent after the liquidator had disclaimed the lease. Rose C.J. rejected the landlord’s claim, concluding, at pp. 460-61, that if the liquidator exercised its right under the Landlord and Tenant Act , R.S.O. 1927, c. 190 to “surrender possession or disclaim” the lease, then there could be no further liability of the tenant to pay rent “and no suggestion that, by failing to pay rent, the tenant was committing a breach of covenant and was rendering himself liable for liquidated or unliquidated damages”. Rose C.J. stated, at pp. 460-61: I think that by his letter of April 21, 1932, confirmed in his letter of June 21, 1932, the liquidator exercised his right “to surrender possession or disclaim” the lease, and that when he had exercised that right the obligation of the tenant, the insolvent company, to pay rent was at an end. It did not require a statute to confer upon the liquidator power to surrender possession or disclaim the lease with the consent of the lessor; the statute means I think that whether the lessor is or is not willing the liquidator may surrender possession or disclaim the lease, and that if he does so surrender possession or disclaim the lease the tenant in liquidation shall be in the same position as if the lease had been surrendered with the consent of the lessor. Of course, if the lease were surrendered with the consent of the lessor, there could be no suggestion of any further liability on the part of the lessee to pay rent and no suggestion that, by failing to pay rent, the tenant was committing a breach of covenant and was rendering himself liable for liquidated or unliquidated damages. [Emphasis added.] [39] In this passage, Rose C.J. concluded that the statutory right to “surrender possession or disclaim” a lease has the same effect as a surrender with the consent of the lessor. As I will explain, this statement, equating a disclaimer with a consensual surrender of a lease, was applied in subsequent cases, such as Cummer-Yonge Investments , to release derivative obligations such as those of a guarantor, after a lease had been disclaimed by a tenant’s trustee. [40] More important to the present analysis, however, is the court’s interpretation in Re Mussens of the relevant statutory provisions, and whether they permit a landlord to make a claim for damages for the surrender or disclaimer of the lease in the tenant’s bankruptcy proceedings. Contrasting the provisions of the Landlord and Tenant Act with the comparable legislation in England that provided specifically for a right to compensation following a disclaimer, at p. 461, Rose C.J. concluded that, in Ontario, there was no “similar saving of the rights of the lessor” and therefore no equivalent right to compensation. In other words, the silence in the Ontario legislation on the question of compensation meant that, after a disclaimer, the landlord had no claim for damages against the tenant in relation to the ending of the lease, and was limited to what it was specifically afforded by statute. Rose C.J. stated, at p. 461: In England, as is pointed out by the Master in his judgment, the statute with which sec. 38 of The Landlord and Tenant Act more or less corresponds, contains the provision that any person injured by the operation of the section (i.e., by the disclaimer or surrender) shall be deemed a creditor of the bankrupt to the extent of such injury and may accordingly prove the same as a debt under the bankruptcy; but the Ontario statute contains no similar saving of the rights of the lessor, and I think that the result is that in Ontario the liquidator has been given a statutory right to commit a breach of the insolvent's covenant, and that no right of compensation for the statutory breach having been given to the covenantee no damages can be recovered . [Emphasis added.] [41] Re Mussens accordingly stands for the principle that, under Ontario law, the trustee of a bankrupt tenant is permitted by statute to bring an end to the lease, and all future obligations of the tenant thereunder, by surrendering possession of the leased premises or disclaiming the lease within three months of the bankruptcy. The principle articulated in Re Mussens , and the case itself, have been referred to in subsequent cases (some of which are referred to later in these reasons) and in articles and texts dealing with bankruptcy and insolvency and commercial leases. See e.g. L.W. Houlden, “Bankruptcy of the Landlord or Tenant” (1965), 7 C.B.R. (N.S.) 113, at p. 123; Christopher Bentley et al. , Williams & Rhodes’ Canadian Law of Landlord and Tenant, 6th ed. (Toronto: Thomson Reuters Canada Limited, 2019), at c. 12:6:3 (WL); Steven Jeffery, “ Cummer-Yonge - A Post-Mortem: Crystalline Investments Ltd. v. Domgroup Ltd .” (2006), 21 B.F.L.R. 263, at p. 285; and David Bish, Canadian Bankruptcy and Insolvency Law for Commercial Tenancies , (Toronto: LexisNexis Canada Inc., 2016), at pp. 225, 394. [42] The Landlord notes that four provinces have legislation that expressly prohibits the type of claim it advances here (Prince Edward Island, Saskatchewan, Alberta and British Columbia), while nine provinces and territories have no such prohibition. However, it does not follow, as the Landlord argues, that such a claim is permitted where it is not expressly prohibited or restricted. Indeed, the Landlord has not cited a single case that would interpret the legislation this way, nor any case that is contrary to the interpretation provided for in Re Mussens . As discussed, Re Mussens interpreted the absence of a landlord’s statutory right of compensation for termination of the lease after a disclaimer (other than the claim for up to three months’ accelerated rent) as meaning that there is no such right. (b) Crystalline Investments changed the law in Ontario, but not in the way the Landlord contends [43] The Landlord argues that recent cases, including Crystalline Investments , specifically overruled the Re Mussens line of cases, such that a disclaimer does not bring an end to all obligations under the lease. As a result, the Landlord argues that the obligation to pay the tenant inducements, which was specifically contemplated by the Lease as an obligation upon any termination of the Lease, bankruptcy of Curriculum, or disclaimer by its trustee, must survive. (i) The Cummer-Yonge Investments line of cases [44] Re Mussens was applied in a number of cases as authority that, upon disclaimer by a trustee, all obligations in connection with a lease come to an end, not just those of the tenant. In particular, courts have relied on the statement in Re Mussens equating a disclaimer with a mutual surrender of a lease to conclude that the obligations of assignors and guarantors also come to an end with the disclaimer of a lease. [45] The leading case in Ontario articulating this conclusion was Cummer-Yonge Investments. In that case, a bankrupt tenant’s lease was disclaimed by a trustee in bankruptcy, leaving the landlord with a claim beyond its preferred claim in the bankruptcy. The landlord turned to a third-party guarantee securing “the due performance by the lessee of all of its covenants … including the covenant to pay rent”. The landlord accepted that the tenant’s further obligations under the lease had ended, but asserted that, upon disclaimer, the rights and obligations under the lease were revested in the bankrupt tenant, and so would permit a claim on a guarantee. [46] Gale C.J. rejected this argument, citing the passage from Re Mussens equating a disclaimer to a surrender. He concluded that on bankruptcy, all of the tenants’ rights and obligations under the lease irrevocably pass to the trustee and “when the trustee subsequently disclaimed that interest, all the rights and obligations which he inherited from the bankrupt were wholly at an end”: at p. 29. For this reason, the guarantee was inoperative. Thereafter there could be no covenants in the lease which the lessee was required to perform, so that the guarantee of the “due performance by the lessee of all its covenants in the lease" was thereupon extinguished. [47] This approach was followed in a number of cases that cited and relied on the statement in Re Mussens equating the statutory surrender of possession or disclaimer by a trustee to a surrender with the consent of the landlord. For example, in Re Salok Hotel Co. Ltd. (1967), 66 D.L.R. (2d) 5 (Man. Q.B.), aff’d on other grounds (1967), 66 D.L.R. (2d) 5 (Man. C.A.), at p. 14, Wilson J. cited Re Mussens as authority that, upon the disclaimer of a lease by the trustee, all liability of the trustee and of the estate of the bankrupt lessee up to that time was extinguished, and that the landlord could not rank against the estate of the bankrupt for breach of contract. Citing Cummer-Yonge Investments , Wilson J. also held that, upon disclaimer of the lease, the liability of guarantors is also at an end. [48] The decision in Cummer-Yonge Investments was controversial. It was cited and followed in a number of cases, including Titan Warehouse Club Inc. (Trustee of) v. Glenview Corp. (1988), 67 C.B.R. (N.S.) 204 (Ont. H.C.), aff’d 75 C.B.R. (N.S.) 206 (Ont. C.A.) and Peat Marwick Thorne Inc. v. Natco Trading Corporation (1995), 22 O.R. (3d) 727 (Gen. Div.). It was distinguished in 885676 Ontario Ltd. (Trustee of) v. Frasmet Holdings Ltd. (1993), 99 D.L.R. (4th) 1 (Ont. Gen. Div.). (Each of these cases involved claims under letters of credit.) Moreover, in Andy & Phil Investments Ltd. v. Craig (1991), 5 O.R. (3d) 656 (Gen. Div.) and Sifton Properties Limited v. Dodson (1994), 28 C.B.R. (3d) 151 (Ont. Gen. Div.), the courts accepted that a guarantee could be drafted to secure an obligation that would survive bankruptcy. [49] In 1993, the British Columbia Court of Appeal, without citing Cummer-Yonge Investments , concluded that the disclaimer of two assigned leases by an assignee’s trustee in bankruptcy did not end the assignors’ obligations to their landlords: Transco Mills Ltd. v. Percan Enterprises Ltd. (1993), 100 D.L.R. (4th) 359 (B.C.C.A.). In that case, the assignor tenants made the argument accepted in Cummer-Yonge Investments – that a disclaimer had the same effect as a mutual surrender of a lease, with the result that the obligations of any third party, such as an assignor, would be eliminated. The relevant B.C. legislation was comparable to ss. 38 and 39 of the CTA. [50] Writing for the court in Transco Mills , Taylor J.A., at pp. 364-65, traced the assertion that a disclaimer can be equated to a mutual surrender to s. 23 of the Bankruptcy Act 1869 (U.K.), 32 & 33 Vict., c. 71, which had specifically provided that a lease disclaimed by a trustee shall be deemed to have been surrendered . [6] He noted (as did Rose C.J. in Re Mussens ), that the U.K. statute specifically gave to any person injured by the operation of the section a right to claim in the bankruptcy for such injury. He then referred to later English case law restricting the meaning of surrender in this statutory context, including Hill v. East & West India Dock Co. (1884), 9 App. Cas. 448 (H.L.), where Lord Blackburn, at p. 458, stated that the statutory concept of deemed surrender was to be taken to apply only “so far as is necessary to effectuate the purposes of the Act and no further”. [51] Taylor J.A. observed that, by contrast to the U.K. legislation, there was no statutory or other basis in B.C. for equating the disclaimer of a lease by a trustee to a surrender. He approved of the way the English courts had approached the U.K. legislation: the effect of a disclaimer should be limited to accomplishing the purpose of the bankruptcy scheme only, and, so far as possible, to not adversely affect the position of those outside the bankruptcy. As a result, he held, at p. 369, that the trustee’s disclaimer did not end the leases for all purposes and that the assignor tenants remained liable for the bankrupt assignee’s failure to pay rent. [52] The issue in the cases discussed above was not whether the bankrupt tenant was relieved of its ongoing obligations under a disclaimed lease (this was either stated directly or assumed), but whether the disclaimer also ended the landlord’s rights against security provided by the tenant, a guarantor of the tenant’s obligations, or an assignor of a lease that was subsequently disclaimed. [53] Ultimately, the approach in Transco Mills was followed by this court in Crystalline Investments , which sought to distinguish Cummer-Yonge Investments. This court’s decision in Crystalline Investments was ultimately upheld by the Supreme Court which, in obiter , overruled the Cummer-Yonge Investments holding. I turn to Crystalline Investments now. (ii) The Supreme Court decision in Crystalline Investments [54] In Crystalline Investments , a commercial tenant (“Domgroup”), entered into leases with each of Crystalline Investments Limited and Burnac Leaseholds Limited (the “landlords”). Domgroup subsequently assigned the two leases to its subsidiary which was thereafter sold and amalgamated to form Food Group Inc. (“Food Group”). Food Group ultimately became insolvent and filed a proposal under s. 65.2 of the pre-1997 version of the BIA. The terms of the proposal purported to “repudiate” the assigned leases (s. 65.2 was later amended to use the term “disclaim”). [7] The landlords had a right to challenge the repudiation, but did not do so, and were then limited to a claim for the lesser of up to six months’ rent and the rent for the remainder of the leases following repudiation. The landlords sued Domgroup for their additional damages, relying on the provision in the leases confirming that the assignor would remain fully liable thereunder notwithstanding any assignment. [55] Domgroup argued successfully at first instance that its position was comparable to that of the guarantor in Cummer-Yonge Investments : the effect of the repudiation of the leases in the bankruptcy proposal was that all obligations under the leases had come to an end for all purposes, thereby terminating its obligations as assignor. Domgroup was successful in having the action dismissed in its summary judgment motion: (2001), 39 R.P.R. (3d) 49 (Ont. S.C.). The landlords prevailed in their appeal to this court: (2002), 49 R.P.R. (3d) 171 (Ont. C.A.). Carthy J.A., writing for this court, referred to and approved of the reasoning of the British Columbia Court of Appeal in Transco Mills. He also purported to distinguish Cummer-Yonge Investments , on the basis of the difference between a guarantor of obligations under a lease and one who has primary obligations. In this case, the assignor had signed “as principal and not as surety”. [56] The Supreme Court upheld the decision of this court. However, rather than attempting to distinguish the Cummer-Yonge Investments line of cases, Major J., writing for the court, examined the issue based on first principles. He concluded that, absent a contractual release from the landlord, the original tenant as assignor under the lease would remain liable on the covenant to the landlord, notwithstanding the insolvency of the assignee and any consequent repudiation of the lease. [57] The issue in Crystalline Investments was fairly narrow: did s. 65.2 of the BIA alone terminate the rights and obligations of the assignor under the leases? [8] At the time, s. 65.2 read as follows: 65.2 (1) At any time between the filing of a notice of intention and the filing of a proposal, or on the filing of a proposal, in respect of an insolvent person who is a commercial tenant under a lease of real property, the insolvent person may repudiate the lease on giving thirty days notice to the landlord in the prescribed manner, subject to subsection (2). [58] Major J. observed that, while s. 65.2 focusses on bilateral relationships, such as a simple lease between a landlord and a tenant, the effect of the repudiation does not change in a tripartite arrangement resulting from the assignment of a lease: “In both situations the repudiation must be construed as benefiting only the insolvent”: at para. 27. At para. 28, he observed that “[t]he plain purposes of the section are to free an insolvent from the obligations under a commercial lease that have become too onerous, to compensate the landlord for the early determination of the lease, and to allow the insolvent to resume viable operations as best it can”, and that “[n]othing in s. 65.2, or any part of the Act, protects third parties (i.e. guarantors, assignors or others) from the consequences of an insolvent’s repudiation of a commercial lease”. Major J. confirmed that such third parties would remain liable when the party on whose behalf they acted becomes insolvent. He explained that, on an assignment of a lease, while the landlord’s privity of estate with the original tenant comes to an end, the privity of contract continues and the original tenant remains liable upon its covenant: at para. 29. [9] [59] The Supreme Court addressed the argument that, unless a repudiation under s. 65.2 terminated a lease for all purposes, an assignor’s common law indemnification right against the original tenant could frustrate the BIA: the insolvent assignee could face an additional claim on the lease in excess of the preferred payment required to be paid to the landlord under s. 65.2. Major J. rejected this argument, noting that in such circumstances, the assignor would simply join the other unsecured creditors in the proceedings: at paras. 32-35. [60] Finally, Major J. confirmed that the same analysis should apply to the Cummer-Yonge Investments facts: “Post-disclaimer, assignors and guarantors ought to be treated the same with respect to liability. The disclaimer alone should not relieve either from their contractual obligations”: at para. 42. [61] Major J. observed that Cummer-Yonge Investments had created uncertainty in leasing and bankruptcy, as drafters of leases attempted to circumvent its holding by playing upon the primary and secondary obligation distinction, and courts performed “tortuous distinctions” in order to reimpose liability on guarantors: at para. 39. Major J. noted, at para. 41, that, in Cummer-Yonge Investments , Gale C.J. applied the reasoning of the English Court of Appeal in Stacey v. Hill , [1901] 1 K.B. 660 (C.A.), which was subsequently overruled by the House of Lords in Hindcastle Ltd. v. Barbara Attenborough Associates Ltd. et al. , [1996] 1 All. E.R. 737 (H.L.). He concluded that Cummer-Yonge Investments “should meet the same fate”: at para. 42. (iii) Crystalline Investments did not affect the principle stated in Re Mussens [62] In the present case, the bankruptcy judge concluded, after her own review of Crystalline Investments , that neither the ratio decidendi nor the obiter dicta of that case (overturning Cummer-Yonge Investments ) addressed whether a landlord can claim unsecured damages in the bankruptcy proceedings of its tenant upon the disclaimer of a lease by the trustee in bankruptcy. I agree with her analysis and conclusion. [63] In Re Mussens the court equated the legal effect of a trustee’s statutory right of disclaimer to a “mutual surrender” of the lease. Subsequent decisions, invoking that characterization, have reasoned that certain third-party obligations that are linked to the lease come to an end when the lease is disclaimed by the trustee. This has led to confusion and ultimately to cases, like Cummer-Yonge Investments , that were overtaken by Crystalline Investments . [64] As noted earlier, although Re Mussens used the language of “mutual surrender”, Taylor J.A. appears to reject that characterization in Transco Mills . In Crystalline Investments , the Supreme Court did not address the issue. Whether or not a disclaimer should be characterized as a mutual surrender, both Re Mussens and Transco Mills are consistent in their treatment of the legal effect of a disclaimer on the obligations of a bankrupt tenant. [65] The key underlying principle that emerges from Crystalline Investments is that the disclaimer of a lease by the tenant’s trustee benefits only the insolvent party. [10] The Supreme Court overruled Cummer-Yonge Investments , stating that the liability of assignors and guarantors would not be discharged by the disclaimer alone. Major J. did not contradict the premise that a trustee’s disclaimer ends the obligations of the tenant under the lease. Indeed, he assumed that the effect of a disclaimer is to bring the tenant’s obligations under the lease to an end, and he explained that the purpose of s. 65.2 of the BIA is “to free an insolvent from the obligations under a commercial lease that have become too onerous, to compensate the landlord for the early determination of the lease, and to allow the insolvent to resume viable operations as best it can”: at para. 28. Crystalline Investments is consistent with the principle stated in Re Mussens that a disclaimer operates to end the bankrupt tenant’s obligations under the lease. However, it would not support an interpretation of Re Mussens that would characterize a disclaimer as a consensual surrender for all purposes . [66] The parties to the present appeal requested and were granted leave to make written submissions on 7636156 Canada Inc. v. OMERS Realty Corporation , 2019 ONSC 6106, 74 C.B.R. (6th) 312, a decision released shortly after the hearing of the appeal. In that case, Hainey J. relied on Re Mussens and distinguished Crystalline Investments in the context of a landlord’s rights under a letter of credit following disclaimer by the tenant’s trustee in bankruptcy. After citing the Cummer-Yonge Investments line of cases referred to in para. 48 above he concluded that on disclaimer, “the bankrupt no longer has any obligations owing to the landlord under the lease, and the landlord is not entitled to draw on a letter of credit provided as security under the lease for any amounts in excess of the Landlord’s three months’ accelerated rent preferred claim under s. 136(1)(f) of the BIA”: at para. 39. He accepted the trustee’s submission that his conclusion was not impacted by Crystalline Investments because the obligation to make payment under the letter of credit was “wholly dependent on the continued existence of the Bankrupt’s obligations to the Landlord under the Lease”: at para. 44. [67] 736156 has since been appealed to this court: C67634. Because the case was concerned with the obligations under a letter of credit after disclaimer, and not any claim by the landlord in the tenant’s bankruptcy, and in view of the outstanding appeal, it is unnecessary and beyond the scope of these reasons to address the decision, except to note that the court accepted the continuing authority of Re Mussens . (c) Highway Properties does not provide a basis for the Landlord’s claim for tenant inducements under the Lease [68] I turn now to address the Landlord’s argument that Highway Properties would support its right to claim as an unsecured creditor for the tenant inducements provided for under the Lease. The same argument has been rejected in other cases, for good reason, and must be rejected here. In short, while Highway Properties recognized that, after accepting a tenant’s repudiation, the landlord can assert a contractual claim for its prospective losses, the case does not speak to a landlord’s remedies in bankruptcy or insolvency. In particular, it does not address the remedies that are available to a landlord after a lease has been disclaimed by the tenant’s trustee in bankruptcy. (i) The Supreme Court decision in Highway Properties [69] Highway Properties involved the claim of a landlord for prospective losses following a tenant’s repudiation of an unexpired lease. The tenant had abandoned the premises and the landlord took possession, while asserting a claim for damages for its loss calculated over the unexpired term of the lease. The lower courts had dismissed the landlord’s claim for prospective damages, concluding that the repudiation of the lease by the tenant and the taking of possession by the landlord amounted to a surrender by operation of law, so that the lease ceased to exist. Accordingly, claims for prospective loss could not be supported and only accrued loss could be claimed. [70] At the time the case was heard, the law recognized three mutually exclusive options available to a landlord on a tenant’s repudiation of a lease: (i) to do nothing and insist on the tenant’s performance of the terms and sue for rent or damages on the footing the lease remains in force; (ii) to elect to terminate the lease, retaining the right to sue for rent accrued due or for damages to the date of termination for prior breaches of covenant; or (iii) to advise the tenant of the landlord’s intention to re-let the property on the tenant’s account and to enter into possession on that basis: see Highway Properties , at p. 570. [71] In Highway Properties , Laskin J., writing for the court, observed that a lease is both a conveyance and a contract. The termination of the tenant’s estate in the land when its repudiation was accepted by the landlord did not necessarily mean that the tenant’s covenants under the lease came to an end. Laskin J. accepted the proposition that the landlord had a fourth contractual option on repudiation of the lease, which was exercised in that case: to terminate the lease with notice to the tenant that damages will be claimed for the loss of the benefit of the lease over its unexpired term, while repossessing the leased property. [72] Highway Properties specifically addressed remedies available to a landlord after a tenant’s repudiation of the lease. It did not, however, change the legal effect of a disclaimer or alter the principle in Re Mussens. To treat a disclaimer as a repudiation for damages purposes is to ignore the fundamental distinctions between surrender and disclaimer on the one hand and repudiation on the other. (ii) Cases considering the Landlord’s Highway Properties argument [73] The attempt to rely on Highway Properties to support a landlord’s claim for prospective damages in a bankruptcy after disclaimer has been rejected in a number of cases. [74] In Re Vrablik (1993), 17 C.B.R. (3d) 152 (Ont. Gen. Div.), the issue was whether, post-disclaimer, a landlord could claim as an unsecured creditor in its tenant’s bankruptcy for damages in lieu of payments that would have been due under the unexpired portion of a five-year commercial lease. These included rent before the premises were re-let, taxes, maintenance costs, and the shortfall on re‑letting the premises. Maloney J. observed that it would be a “grave error” to adopt the analysis and decision in Highway Properties as “the present case involves a bankruptcy, which is quite different from an outright repudiation of a contract. A bankruptcy is a final and irreversible situation”: at p. 158. He rejected the argument that the reference to the landlord’s rights being determined by the “laws of the province in which the leased premises are situated” in s. 146 of the BIA, referred to the common law of the province, including the option to accept the termination and to sue for prospective damages, as recognized in Highway Properties. Rather, this phrase referred to ss. 38 and 39 of the Landlord and Tenant Act , R.S.O. 1990, c. L.7, which together with the BIA would limit the landlord’s claim to three months’ rent. Maloney J. concluded that the BIA and the Landlord and Tenant Act provided a comprehensive scheme for the administration of the leasehold interests of bankrupt tenants and that Highway Properties had no application: at pp. 158-59. [75] Similarly, as I have noted in para. 27 above, in Re Linens ‘N Things , the Registrar dismissed an appeal of a trustee’s disallowance of a landlord’s claim for the costs of building a structure, amounts provided under the lease as a tenant's allowance, and the commission paid on the lease itself by the landlord, following the disclaimer of the lease by the trustee. The landlord, relying on Highway Properties , had characterized these claims as damages for breach of contract rather than rent. The Registrar rejected this argument, noting that in Highway Properties the tenant had repudiated the lease, and there was no insolvency or any question of the applicability of s. 146 of the BIA or anything like ss. 38 and 39 of the CTA. As such, the terms of the lease, which reserved to the appellant “all of its rights at law and equity for breach of the lease” were irrelevant: at paras. 15-16. [76] The Registrar observed, at paras. 20-21: The Ontario statute did not provide for such a damage claim and deemed creditor status 76 years ago, and it does not do so today. The Dominion Parliament, in exercising its jurisdiction over bankruptcy law in the Dominion, has wholly left it up to the Provinces to determine the rights of lessors in these circumstances, and the Provincial Parliament has not seen fit to provide for the type of damage claim advanced by the Appellant [N]either of the statutes which govern rights in these matters provides for the type of claim advanced. Even more, the CTA and its predecessors, has been found for the better part of a century to have the effect of a consensual ending of the lease, and the cases recognize that this is a statutorily permitted breach for which there is no damage remedy, beyond the s. 38 CTA and s. 136 BIA preferred claim. [77] The application of Highway Properties was argued and rejected in the Alberta case Principal Plaza Leaseholds Ltd. v. Principal Group Ltd. (Trustee of) (1996), 9 W.W.R. 539 (Alta. Q.B.). In that case, the trustee of a bankrupt tenant disallowed the landlord’s claim for damages for the unexpired portion of the leases, taking the position that on disclaimer, the entire balance of the unsecured claim was extinguished. The landlord argued that Re Mussens and Re Vrablik were wrongly decided because they concluded that a disclaimer has the same effect as a surrender, when in fact a disclaimer is a form of repudiation by the trustee without the landlord’s consent. The landlord argued that on disclaimer, the landlord has the same rights that it would have on repudiation in a non-bankruptcy situation under Highway Properties . Cairns J. rejected this argument, stating that the overwhelming weight of authority was that the combined effect of the federal and provincial legislation is that “the claim of the landlord respecting the unexpired portion of the leases has been extinguished by the disclaimer of the leases”: at p. 596. (iii) The Highway Properties remedies are for repudiation, not disclaimer [78] Highway Properties dealt with the remedies available to a landlord after the abandonment of the leased premises by the tenant. The tenant was not bankrupt and the provisions of the BIA and CTA were not at issue. Instead, the case addressed the landlord’s remedies, outside of bankruptcy or insolvency, following a tenant’s repudiation or fundamental breach. [79] The distinction between repudiation before bankruptcy and disclaimer after bankruptcy was central to the facts in Re TNG Acquisition Inc. , 2011 ONCA 535, 107 O.R. (3d) 304. In that case, a trustee in bankruptcy disallowed a claim for prospective damages [11] by a landlord after the tenant, which had been in CCAA proceedings, made an assignment in bankruptcy and the trustee had purported to disclaim the lease. The issue was whether the Chief Restructuring Officer (the “CRO”) had already repudiated the lease on behalf of the tenant before the restructuring efforts failed and the tenant declared bankruptcy. If so, the landlord could claim its prospective damages as an unsecured creditor in the tenant’s bankruptcy. [12] [80] The Initial Order in the CCAA proceedings gave the tenant the right to “vacate, abandon or quit any leased premises and/or terminate or repudiate any lease … without prior notice … in writing … on such terms as may be agreed upon between the Applicant and such landlord or, failing such agreement, to deal with the consequences thereof in the Plan”. The CRO exercised that right, sending a repudiation letter to the landlord. The landlord never acknowledged, accepted, signed or returned the repudiation letter before the restructuring failed and the bankruptcy occurred. The landlord submitted a Proof of Claim that included its “unrecoverable expenses” during the entire term of the lease. The trustee issued a disclaimer of the lease the following month. The landlord argued that the repudiation was complete when the trustee received the repudiation letter, and that the lease had already been forfeited when the trustee issued its disclaimer. This argument was rejected at first instance, and the appeal from the disallowance was dismissed. [81] In the landlord’s further appeal to this court, Gillese J.A. noted that the effect of the trustee’s disclaimer of the lease was to bring the lease to an end and to terminate all rights and obligations for the payment of rent: “Thus, if the trustee disclaims the lease, the landlord has no claim for rent for the remainder of the lease”: at para. 14. She went on to discuss the effect of the repudiation letter. Citing Highway Properties , Gillese J.A. explained that repudiation does not in and of itself bring a lease to an end. Rather, “[i]t confers on the innocent party a right of election to, among other things, treat the lease as at an end, thereby relieving the parties of further performance, though not relieving the repudiating party from its liabilities for breach”: at para. 34. In the absence of any election, the landlord/tenant relationship remained intact, and the lease, which had not been brought to an end in the CCAA proceedings, was therefore susceptible to statutory disclaimer by the trustee following the commencement of bankruptcy: at paras. 38, 40. [82] It was essential in Re TNG Acquisition to determine whether the landlord had already accepted the CRO’s repudiation of the lease at the time of the bankruptcy because this determined the remedies available to the landlord. If the repudiation had been accepted, the various options under Highway Properties would have been available to it, including an unsecured claim for its losses over the unexpired term of the lease. Unless this had already occurred, the effect of the disclaimer was to preclude any such claim. [83] In his text, Canadian Bankruptcy and Insolvency Law for Commercial Tenancies , David Bish observes that, while in practice, particularly outside of insolvency law, the terms “disclaim” and “repudiate” are used without distinction, [13] there are fundamental differences: “ [ F ] or example, as a matter of common law, a landlord has no claim for damages following a disclaimer (i.e., but for the statutory reservation of such claim), whereas a landlord does have a claim for damages following repudiation”: at p. 225n. [84] David Bish explains why disclaimer should not be viewed as a type of repudiation, at pp. 235-36: It may be argued that disclaimer ought to be viewed as a type of repudiation , or equivalent to a repudiation. In some respects, they achieve similar outcomes and share similar characteristics, including a fundamental refusal by a tenant to perform a lease. However, the better view is that there is an important distinction between the two concepts and neither the acts nor the consequences that flow from the acts are synonymous. Disclaimer is appealing because of its simplicity in insolvent circumstances and in sidestepping unnecessary legal complications that arise in cases of repudiation. In this respect, disclaimer is more akin to a unilateral and irrevocable act of the tenant (one that dispenses with complications such as the doctrines of waiver, notice, elections and the like), with established consequences for tenant and landlord alike. A disclaimer, unlike a repudiation, does not “put the ball in the landlord’s court”, so to speak; it avoids the dance between landlord and tenant that ensues where a repudiation occurs. [85] David Bish further observes that the argument that the panoply of Highway Properties options should be available on disclaimer makes little sense in the insolvency scenario where it is clear that certain of those options are unworkable and where the statute provides a specific right to compensation. The landlord should not be able to elect a remedy that would negate or undermine the statutory right to disclaim: at pp. 234-35. (iv) Conclusion on the Landlord’s Highway Properties argument [86] The Landlord asserts that Curriculum’s bankruptcy and the disclaimer were each events of default under s. 16.1 of the Lease, triggering the rights and remedies provided thereunder. The Landlord’s rights and remedies in this case, however, are determined by statute and not by the terms of the Lease. The remedies provided under the Lease for default – even those specifically applicable in bankruptcy or upon disclaimer – simply were not available once the Lease was disclaimed. [87] On bankruptcy, the Lease vested in the Trustee and was subject to the various rights and remedies prescribed by the legislation. As in Re TNG Acquisition there was no termination of the Lease that preceded the bankruptcy, and the Landlord’s claim for damages for the loss of the Lease is precluded. [88] It was suggested that the Landlord’s claim for tenant inducements might be considered an existing or accrued claim because the Landlord seeks to recover money it has already spent (in the nature of a loan to the Tenant) and not damages for the loss of the Lease. There is no merit to this argument. The Landlord’s claim is not for the value of the tenant inducements accrued up to the time of bankruptcy. The Landlord has already recovered such amounts in the rental payments it received. The claim is for the value of tenant inducements calculated for the remaining term of the Lease. The entitlement to recoup an amount for tenant inducements arises under the Lease and only “if [the] Lease is terminated due to the default of Tenant, or if it is disclaimed, repudiated or terminated in any insolvency proceedings”. It is a remedy for default, including bankruptcy or disclaimer. In other words, the Landlord had no right to recover such amounts prior to the bankruptcy, when the Lease was immediately vested in the Trustee. [89] To reiterate, the Trustee’s disclaimer brought to an end the rights and remedies of the Landlord against Curriculum with respect to the unexpired term of the Lease, apart from the three months’ accelerated rent specifically provided for under the CTA and BIA. The Landlord’s unsecured claim, however it is characterized, is precluded because the disclaimer brings to an end both the Tenant’s ability to insist on performance of the Lease by the Landlord and the Landlord’s ability to claim in the Tenant’s bankruptcy in respect of any of its remedies. The Lease ended by disclaimer without the Landlord having terminated it or invoked its remedies under the Lease upon the occurrence of events under s. 16.1. [90] The statutory claim is provided in place or in lieu of any ongoing rights a landlord might have against the tenant under its lease. In Ontario, the landlord has a right to claim for three months’ accelerated rent. While the right can only be exercised if the lease provides for it, the right is one prescribed by statute and does not assume the continued existence or enforceability of the lease. (d) The harmonization argument [91] The Landlord’s final argument on this issue is that the disclaimer provisions should be interpreted to permit it to assert a claim for damages for the unpaid tenant inducements because claims for damages are permitted under the parallel BIA proposal provisions and the CCAA disclaimer provision. The Landlord relies on the Supreme Court decision in Century Services Inc. v. Canada (Attorney General) , 2010 SCC 60, [2010] 3 S.C.R. 379 for its “harmonization argument”. The Landlord quotes para. 24 of that decision, which states the following: With parallel CCAA and BIA restructuring schemes now an accepted feature of the insolvency law landscape, the contemporary thrust of legislative reform has been towards harmonizing aspects of insolvency law common to the two statutory schemes to the extent possible and encouraging reorganization over liquidation. [92] Nothing in Century Services assists the Landlord in the present appeal. In that case, the issue was whether GST collected by a debtor but not yet remitted was subject to a statutory deemed trust under the Excise Tax Act , R.S.C. 1985, c. E-15 (the “ETA”) in favour of the Crown, and whether the deemed trust would prevail when a CCAA stay was lifted to permit the debtor to enter bankruptcy. The debtor had attempted reorganization under the CCAA, and the subject funds were held in the monitor’s trust account until it could be determined whether the reorganization would be successful. The ETA provided that the deemed trust operated despite any other enactment of Canada, except the BIA. Under the BIA, the Crown priority was lost. As a preliminary issue, the court confronted the apparent inconsistency between two federal statutes: the ETA which only expressly recognized the BIA loss of priority and the CCAA, which was enacted before the ETA and provided that “notwithstanding any provision in federal or provincial legislation that has the effect of deeming property to be held in trust for Her Majesty, property of a debtor company shall not be [so] regarded”: s. 18.3(1). [93] Deschamps J., writing for the majority, resolved the statutory interpretation issue by concluding that the Crown’s deemed trust was lost under the CCAA in the same way that it was lost under the BIA. She refused to accept that the ETA trumped the provision of the CCAA purporting to nullify most deemed statutory trusts. At para. 47, she noted that “a strange asymmetry would arise if the interpretation giving the ETA priority over the CCAA urged by the Crown is adopted here: the Crown would retain priority over GST claims during CCAA proceedings but not in bankruptcy”. Although the effect was to “harmonize” the two regimes in their treatment of the Crown deemed trust, in fact, this was simply a question of statutory interpretation. Deschamps J. gave effect to the provisions of the CCAA and the BIA which treated Crown GST claims the same way. [94] Later in her reasons, Deschamps J. used the term “harmonization” to describe something else: the ability of the CCAA judge to partially lift the CCAA stay to allow the debtor’s entry into bankruptcy, without requiring the term sought by the Crown – the payment of the claimed deemed trust for GST. She recognized that the CCAA judge’s order fostered a “harmonious transition between reorganization and liquidation” and that the court had discretion under the CCAA to “construct a bridge to liquidation under the BIA”: at paras. 77, 80. [95] The Landlord’s “harmonization” argument, advocating for the identical treatment of the disclaimer provisions, has no merit where Landlord claims are expressly treated differently in a BIA proposal, under the CCAA and in a bankruptcy. [96] In a proposal under the BIA, s. 65.2 provides for a commercial tenant to disclaim or resiliate [14] a lease, subject to the landlord’s objection and the court’s determination whether the insolvent person would be able to make a viable proposal without the disclaimer or resiliation. Section 65.2 provides that the landlord has no claim for accelerated rent even if the lease provides for it. The landlord has an election as to the calculation of its claim: it may claim its actual losses or an amount prescribed by a formula. No provision is made for priority of the landlord’s claim. The disclaimer provisions also contemplate what happens where the proposal fails and the tenant becomes bankrupt, and also the reverse – where a tenant is bankrupt and then makes a proposal. [97] Unlike the BIA proposal provisions that deal specifically with commercial leases, the CCAA disclaimer provision, s. 32, applies to the disclaimer of all agreements, including leases. Again, the disclaimer is subject to objection of the other party and court order. Subsection 32(7) provides that, where an agreement is disclaimed or resiliated, a party who suffers a loss in relation to the disclaimer is considered to have a provable claim. [98] The fact that the BIA proposal provisions and the CCAA disclaimer provision specifically provide for a landlord’s claims for damages following “disclaimer” simply indicates that Parliament intentionally departed from the bankruptcy model for landlord claims in the context of a restructuring. [99] In sum, the fact that the three insolvency regimes all permit disclaimer but provide for different remedies represents a policy choice by Parliament. In such circumstances, there is no scope for applying the “harmonization” principle, or reading the different provisions as providing for the same remedy. Such an interpretation would render the legislator’s deliberate policy choice irrelevant. (2) Is the Landlord entitled to assert the balance of its claim for three months’ accelerated rent as an unsecured creditor in Curriculum’s bankruptcy? [100] The second issue on appeal is governed by s. 136(3) of the BIA. Subsection 136(3) provides that “[a] creditor whose rights are restricted by this section is entitled to rank as an unsecured creditor for any balance of claim due him.” [101] The Landlord was entitled to a preferred claim for three months’ accelerated rent. However, the priority of its preferred claim was subject to higher ranking priorities and, under s. 136(1)(f), was limited to the realization from the property on the leased premises. As noted above, the Trustee realized only $24,571 from the sale of the property on the premises leased by Curriculum. In consequence, the Trustee allowed the Landlord’s preferred claim for $24,571, but disallowed the balance. [102] The Landlord is entitled to rank as an unsecured creditor for the unpaid balance of its preferred claim. This is the plain effect of s. 136(3) of the BIA. See also Re Gingras Automobile Lté e. , [1962] S.C.R. 676, at p. 680, where Abbott J., writing for the court, held that the combined effect of the relevant provisions under the Bankruptcy Act , R.S.C. 1952, c. 14 is that a landlord is only entitled to rank as an unsecured creditor for any balance to which it may be entitled under provincial law. Under s. 38 of the CTA, a landlord is entitled to a preferred claim for three months’ accelerated rent. [103] The Trustee ought to have permitted the Landlord to claim the balance of its preferred claim for three months’ accelerated rent ($50,289.28) as an unsecured creditor. VII. DISPOSITION [104] For these reasons, I would allow the appeal, but only to the extent of permitting the Landlord to claim the balance of its preferred claim for three months’ accelerated rent as an unsecured creditor in Curriculum’s bankruptcy in the amount of $50,289.28. The Trustee did not seek costs and given the divided success, I would not award costs of the appeal. Released: April 27, 2020 (“A.H.”) “K. van Rensburg J.A.” “I agree. Alexandra Hoy A.C.J.O.” “I agree. L.B. Roberts J.A.” [1] Subsection 136(1)(f) also gives a landlord a preferred claim in respect of three months of arrears of rent preceding the bankruptcy. However, there is no issue in this case about arrears of rent or other amounts that were owing at the time of the bankruptcy, claims that the Landlord could have asserted as an unsecured creditor in Curriculum’s bankruptcy. In these reasons, the analysis is limited to the issue of whether the landlord can claim as an unsecured creditor in the bankruptcy for damages relating to the unexpired term of the lease. [2] The principle cited in Re Mussens was articulated in Canada at least as early as 1922 in Eastern Nut Krust Bakeries, Ltd. v. Damphousse, Trustee and the Catherine Realties Ltd. (1922), 2 C.B.R. 215 (Que. S.C.). [3] “Termination Payment” is defined in s. 2.30 of the Lease and provides a formula based on the amount by which the net present value of the amounts payable as “Rent” and “Additional Rent” under the Lease for the lesser of the balance of the Term or the next three years following the Termination Date exceeds fair market Rent. “Termination Date” is defined as the date on which the Lease is terminated, disclaimed or repudiated. [4] Schedule C of the Lease provides a similar remedy to the Landlord on bankruptcy of the Tenant, but only in respect of the recovery of the unamortized portion of the leasehold improvement allowance. [5] The original claim of $100,558.59, less the recovered preferred claim in the amount of $24,571, less the occupational rent paid by the Trustee in the amount of $25,698.31. [6] The reference to “deemed surrender” was subsequently omitted from the U.K. Bankruptcy Act: see Transco Mills , at p. 365. [7] At the time s. 65.2 of the BIA used the word “repudiate” rather than disclaim and limited the landlord’s compensation to payment of an amount equal to the rent payable over the six-month period immediately following repudiation or the remainder of the term of the lease if less than six months. The section was amended in 1997 to substitute the word “disclaim” for “repudiate”. It was also amended to prescribe a different landlord remedy. [8] Major J. concluded that, whether the leases were terminated by surrender, which was raised for the first time by Domgroup in the Supreme Court, or by the application of some other principle of common law, was a question best left for trial: at para. 10. [9] While accepting that upon assignment, the landlord’s privity of estate with the original tenant/assignor comes to an end, Major J. did not address the question of what became of the leasehold interest as between the assignor and the landlord, once the assignor was called upon under the assignment. In Transco Mills , Taylor J.A. concluded that the disclaimer would result in the automatic revesting of the balance of the term in the assignor, preserving the leasehold interest, which could be recognized by a vesting order: at p. 369. This is similar to what is provided for expressly in the comparable U.K. legislation, as interpreted by cases such as Hindcastle Ltd. v. Barbara Attenborough Associates Ltd. et al. , [1996] 1 All. E.R. 737 (H.L.) . Indeed, in Hindcastle Ltd. , the House of Lords decision referred to by Major J. at para. 41 of Crystalline Investments , Lord Nicholls concluded, at p. 748, that a disclaimer operates to determine the bankrupt tenant’s interest in the leased property, and that it has the effect of accelerating the reversion expectant upon the determination of that estate, such that as between the landlord and tenant the lease ceases to exist. At the same time, the rights of others, such as guarantors and original tenants/assignors are to remain as though the lease had continued and had not been determined. [10] I note that although U.K. insolvency legislation is different, the House of Lords has treated a disclaimer in the same fashion; a disclaimer puts an end to the bankrupt’s obligations under the lease, but determination of the lease is not permitted to affect the rights or liabilities of other persons: see Hindcastle Ltd. , at p. 748; Re Park Air Services Plc , [1999] 1 All. E.R. (H.L.), at pp. 678-79, per Lord Millett. [11] The trustee allowed the landlord’s preferred claim for three months’ accelerated rent limited to the value of assets on the premises as well as an unsecured claim for a portion of the arrears, operating costs and the cost of repairs. At issue was the landlord’s claim for prospective losses. [12] The events in this case preceded amendments to the CCAA (S.C. 2005, c. 47, s. 131) that came into force in 2009 permitting the disclaimer of agreements, including leases: see CCAA, s. 32. [13] As discussed, even in the insolvency context, “repudiate” and “disclaimer” are at times used to mean the same thing. The proposal provisions under the BIA authorized the “repudiation” of leases, until “repudiation” was replaced by “disclaimer” in 1997. In that context, the statutory “repudiation” that was authorized was the same as a “disclaimer”. [14] “Resiliate” is a term used under Quebec’s civil law. The discussion in this paragraph leaves out references to resiliation, as only disclaimer is relevant in Ontario.

COURT OF APPEAL FOR ONTARIO CITATION: Girao v. Cunningham, 2020 ONCA 260 DATE: 20200421 DOCKET: C63778 Lauwers, Fairburn and Zarnett JJ.A. BETWEEN Yolanda Girao Plaintiff (Appellant) and Lynn Cunningham and Victor Mesta Defendant ( Respondent ) Yolanda Girao, acting in person David Zuber and Michael Best, for the respondent Heard: September 26, 2019 On appeal from the judgment of Justice Peter Cavanagh of the Superior Court of Justice, sitting with a jury, dated March 3, 2017, from the order on the threshold motion, dated April 20, 2017, with reasons reported at 2017 ONSC 2452, and from the costs order, dated July 20, 2017, with reasons reported at 2017 ONSC 4102. Lauwers J.A.: I. Overview [1] The appellant, Yolanda Girao, was injured in a car accident. The respondent, Lynn Cunningham, was at fault. The appellant claimed that her injuries caused her to suffer pain in her back and neck that eventually became chronic, and other symptoms including major depression. She claimed $500,000 in general damages and $500,000 in special damages. [2] The jury found the respondent to be fully liable for the accident, and awarded the appellant $45,000 in general damages and $30,000 in special damages for past loss of income. [3] Ms. Cunningham was represented by counsel appointed by her insurer. In these reasons I will occasionally refer to the respondent as the “defence” for convenience. [4] After the case had gone to the jury, the defence moved to dismiss the action on the basis that the appellant had not met the statutory threshold to qualify for general damages – having sustained a serious and permanent impairment of important physical, mental, or psychological function under s. 267.5(5) of the Insurance Act , R.S.O. 1990, c. I.8. The trial judge allowed the motion and dismissed the appellant’s claim for general damages. He also reduced her damages award for loss of income to $0 to account for statutory accident benefits received by the appellant from her insurer. The trial judge then awarded partial indemnity costs against the appellant in the amount of $205,542.38 plus $106,302.96 in disbursements, for a total of $311,845.34. [5] The appellant was self-represented at trial, as she was on the appeal. She used a Spanish interpreter throughout. [6] The appellant set out a number of grounds of appeal on the merits in her notice of appeal and her supplementary notice of appeal, tangentially referencing the threshold motion. In her factum, she also appealed the threshold decision. The respondent complained about the irregular form of the appeals but did not claim prejudice. Making due allowance for the appellant’s status as self-represented, I would deem her appeal to have been properly brought on all these grounds. [7] I would allow the appeal and order a new trial. This is one of those rare civil cases in which a new trial should be ordered because “the interests of justice plainly require that to be done,” in the words of this court in Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), at para. 68. The appellant has shown that a “substantial wrong or miscarriage of justice has occurred”: s. 134(6) of the Courts of Justice Act , R.S.O. 1990, c. C.43 and see Vokes Estate v. Palmer , 2012 ONCA 510 , 294 O.A.C. 342, at para. 7. II. The trial Context [8] The appellant immigrated to Canada from Peru in 1999. She had been employed by a commercial bank in Peru and hoped to do the same work in Canada. However, she was unable to overcome her difficulty with the English language. She undertook more physical work and at the date of the accident was employed as a cleaner. [9] The appellant experienced a traumatic event at the age of 18 when she was sexually assaulted. She experienced another traumatic event at Sheridan College in Toronto when she was belittled by an instructor. Then came the accident on June 19, 2002. [10] The appellant pursued statutory accident benefits under the Insurance Act against her insurer, Allstate, for the injuries she suffered in the accident. Eventually, the appellant and Allstate settled the statutory accident benefits claim, on February 28, 2006, for a lump sum payment of $82,300 in addition to all amounts which had been received by the date of the settlement. The total settlement included $890.64 for transportation, $6,252 for housekeeping, $91,246.24 for income replacement, $28,360.43 for medical expenses, and $32,667.32 for medical rehab. The appellant’s accident benefits claim was supported by several expert reports, including a series of reports summarized and gathered into a single report by Dr. Harold Becker. [11] Allstate’s considerable involvement in the action was largely driven by the groundless claim in Ms. Cunningham’s statement of defence, rejected by the jury, that the accident had been caused by an unidentified motorist. There was no evidence to support this claim. Ms. Cunningham refused to accept even 1 percent fault for the accident. The allegation in the statement of defence obliged the appellant to sue her own insurer Allstate in order to recover under the unidentified motorist endorsement in the event that the jury accepted the unidentified motorist claim. Allstate’s participation as a party added significantly to the complexity and the costs of the trial for no good purpose. While in his costs decision the trial judge was not unduly critical of the defence for drawing in Allstate by asserting the claim against an unidentified motorist, his negative view is shown in that he made a Sanderson Order in favour of Allstate for its costs of $ 98,813.06 against the respondent. III. The Positions of the Parties at Trial [12] The appellant asserted that she was happy and productive before the accident. She was working as a cleaner. While she acknowledged the traumatic events in her past, she asserted that she had recovered from both before the accident. [13] After the accident the appellant claimed that she developed chronic pain and other symptoms, including major depression that the appellant asserts was caused by the accident. These injuries were acknowledged by the statutory accident benefits insurer and resulted in the statutory accident benefits settlement. At the date of the trial the appellant was on disability, receiving Ontario Disability Support Program (ODSP) payments. [14] In this action the appellant claimed general damages for pain and suffering and for economic losses that were not fully covered by statutory accident benefits. [15] The defence’s position was that this was a minor motor vehicle accident not causally related to Ms. Girao’s physical, emotional, psychiatric, or mental problems. The statutory accident benefit settlement provided Ms. Girao with more money, over four years, than she would have earned as a cleaner, and that accounted for her failure to get new employment and for her approach to this action. Her real motive is not compensation for actual injuries caused by the accident but secondary gain; she is a malingerer. [16] The nub of the defence position was expressed in the defence’s statement, which the trial judge included in his charge to the jury: All the experts retained by Ms. Cunningham had denied that Ms. Girao has sustained a permanent and serious impairment that can be related to the June 19, 2002 motor vehicle accident, and have provided opinions that Ms. Girao’s depression, [temporomandibular joint] issues, chronic pain, and fibromyalgia claims are wholly and utterly unrelated to the accident, and that Ms. Girao has features of secondary gain pre-accident depression. Even the doctors treating Ms. Girao, including Dr. Manohar, have provided the same psychiatric diagnosis of Ms. Girao in 2012, of that of major depressive disorder with psychotic features in partial remission that she had in 2001 with Dr. Sanchez. [17] The defence used a three-point strategy to persuade the jury to accept the defence theory. First, the defence asserted and relied on the truth of psychiatrist Dr. Sanchez’s pre-accident letter of opinion dated October 12, 2001 concerning the appellant’s pre-accident state; the defence did not call Dr. Sanchez as a witness. Second, the defence raised and promoted the secondary gain theory using the statutory accident benefits settlement. Third, the defence worked to exclude from the jury and from the trial record the substantive expert evidence that justified the settlement, particularly evidence that gave a different portrait of the psychological effects the appellant claimed to have suffered from the accident than the defence’s portrayal based on the Sanchez report. [18] The statutory accident benefits settlement was portrayed by the defence as an undeserved windfall. The appellant was thrust into the position of accounting for the settlement, said to be undeserved, but was prevented from putting before the jury the evidence that justified the settlement. IV. The Issues [19] I will confine my reasons to four elements of substantial trial unfairness: 1. the preparation, content, delivery and use of the so-called “Joint Trial Brief”; 2. the defence’s treatment of expert evidence; 3. the defence’s use of information about the appellant’s accident benefits insurance settlement; 4. the role of the trial judge and counsel where one party is self-represented. [20] I will then consider the appellant’s challenge of the trial judge’s refusal to strike the jury, and conclude with the threshold decision. V. Analysis (1) Issue One: The “Joint Trial Brief” [21] On the eve of trial, the defence dropped a massive and selectively redacted 16 volume “Joint Trial Brief” on the appellant, who has substantial difficulty with the English language, something of which the defence was well aware. The content of the Brief can be summarized as falling into several categories: medical records, notes, and reports; employment, educational, and tax records; and documents relating to the collision and insurance claims. The Brief became the basis of the trial record in an unfair way that was inconsistent with the trial practice directions of this court. (a) The Governing Principles [22] It is clear law that: “ The goal of a trial judge in supervising the assembly of a trial record is completeness and accuracy, so that the panel of this court sitting on the appeal can discern without difficulty exactly what was before [the trial judge] at any moment in the course of the trial”: 1162740 Ontario Ltd. v. Pingue , 2017 ONCA 52, 135 O.R. (3d) 792, at para. 14. This court has given instructions on the preparation and use of document briefs, for example, in Iannarella v. Corbett , 2015 ONCA 110, 124 O.R. (3d) 523, at paras. 127-128, and in Pingue , at paras. 39-40. [23] Any document introduced by any party that does not become a numbered exhibit should become a lettered exhibit. The important distinction between numbered exhibits and lettered exhibits is that, subject to the trial judge’s discretion, lettered exhibits do not go in with the jury during its deliberations, but numbered exhibits do: Pingue , at para. 17. [24] As a more general observation, it is customary for experts to prepare reports, which counsel provides to the parties and to the judge. The admissible evidence of the expert is normally understood to be the oral evidence, particularly in jury trials. However, the best practice in jury trials is to make expert reports lettered exhibits in order to preserve the integrity of the trial record for the purpose of an appeal: Pingue , at para. 21. [25] The problem in this case with the trial record went further. It is quite usual in civil actions for counsel to prepare an agreed trial document brief containing documents that are admitted as authentic and admissible. See J. Kenneth McEwan, Sopinka on the Trial of an Action , 3rd ed. (Toronto: LexisNexis, 2016) at pp. 66-72. In Blake v. Dominion of Canada General Insurance Company , 2015 ONCA 165, 331 O.A.C. 48, at para. 54, Brown J.A. emphasized the necessity of ensuring that the record reflects the document’s intended use: When a document brief is tendered at trial, the record should reflect clearly the use the parties may make of it. Such use may range from the binder’s acting merely as a convenient repository of documents, each of which must be proved in the ordinary way, through an agreement about the authenticity of the documents, all the way to an agreement that the documents can be taken as proof of the truth of their contents. Absent an agreement by the parties on the permitted use of a document brief, the trial judge should make an early ruling about its use. [26] Counsel typically agree on a list of documents and one party attends to the brief's preparation. As observed in Iannarella , at para. 128: “It is regrettably not unusual, however, for counsel to differ on the precise basis on which a document in the brief is being tendered or whether it was to have been included, as the implications materialize in the course of the trial.” Pingue stated, at para. 40: [I]t is necessary for counsel to clarify to the court and to each other the extent to which the authenticity of each document in the proffered document brief is accepted…. If, as is too often the case, counsel has not done so, it is the trial judge’s responsibility to get the requisite clarity when the documents are made exhibits, especially concerning a document's hearsay content. [27] This discipline of judicial oversight applies even more forcefully where one party is self-represented and the opposing lawyer prepares the brief, and in a jury trial where the brief goes into the jury room. (b) The Principles Applied [28] The Joint Document Brief was prepared by the defence without input from the appellant, despite the misleading label: “Joint”. There is no good explanation for its late delivery, which put the appellant at a disadvantage leaving her to run from behind through the course of the trial. [29] The volumes in the Joint Document Brief were made numbered exhibits. The trial judge’s approach was to simply accept all the volumes. He said, when he marked vol. 16 as exhibit one: [M]y assumption is for the most part, the documents are going to be admissible. And, rather than marking them first for identification and changing it, I thought I would do it the other way around. It does not appear from the record that the trial judge later excluded any documents from the Brief tendered by the defence. [30] Dr. Becker’s report supporting the appellant’s account of her injury was initially made a numbered exhibit. It was later struck, but no copy was then filed as a lettered exhibit. This failure obliged the appellant to add it as well as some other reports to the appeal book in order to ensure that they were available to this court on the appeal. [31] Some of the medical reports favouring the appellant’s claim in the statutory accident benefits file were included in the Joint Document Brief but they were redacted by the defence in order to excise any opinion evidence favourable to Ms. Girao. [32] I would not consider the flaws in the management of the trial record to be fatal to trial fairness in this case, but they unfairly enabled the defence’s strategy of keeping expert evidence favourable to the appellant from the jury and from the trial record. [33] In my view, counsel and the court should have addressed the following questions, which arise in every case, in considering how the documents in the joint book of documents are to be treated for trial purposes: 1. Are the documents, if they are not originals, admitted to be true copies of the originals? Are they admissible without proof of the original documents? 2. Is it to be taken that all correspondence and other documents in the document book are admitted to have been prepared, sent and received on or about the dates set out in the documents, unless otherwise shown in evidence at the trial? 3. Is the content of a document admitted for the truth of its contents, or must the truth of the contents be separately established in the evidence at trial? 4. Are the parties able to introduce into evidence additional documents not mentioned in the document book? 5. Are there any documents in the joint book that a party wishes to treat as exceptions to the general agreement on the treatment of the documents in the document book? 6. Does any party object to a document in the document book, if it has not been prepared jointly? [34] It would be preferable if a written agreement between counsel addressing these matters were attached to the book of documents in all civil cases. In addition, it would be preferable if the trial judge and counsel went through the agreement line by line on the record to ensure that there are no misunderstandings. [35] In my view, none of these issues or questions are novel. The answers to these questions are not implicit in the filing of a joint document book and must be expressly addressed on the record or by written agreement. The problem frequently comes because the parties have not turned their minds to the issues in sufficient detail before the document book is tendered as an exhibit. This must change as a matter of ordinary civil trial practice. Had the trial judge taken himself, counsel and Ms. Girao through this list of questions relating to the document book, some of the problems identified in these reasons could have been avoided. (2) Issue Two: The Use of Expert Evidence [36] Two issues concerning the use of expert evidence arose in this trial that are especially concerning. The first relates to the trial judge’s refusal to allow Dr. Becker to testify as to his opinion as to Ms. Girao’s injuries. He was the director of the clinic whose team members examined Ms. Girao in connection with her statutory accident benefits claim. Dr. Becker authored the covering report in which he summarized the reports of the team members, including the psychiatrist Dr. Rosenblat. [37] The second relates to the use of Dr. Sanchez’s opinion. This was adduced by the defence to substantiate its theory that, before the accident, the appellant suffered from the same mental problems that she manifested after the accident. [38] The admissibility of these opinions engages two intertwined sets of governing principles, the first related to expert evidence, and the second to the use of ss. 35 and 52 of the Evidence Act , R.S.O. 1990, c. E.23 to permit the introduction into evidence of medical reports without the need to call the doctors who prepared them. (a) The Governing Principles on Expert Evidence [39] The threshold requirement for the admission of expert evidence has four elements: the evidence must be relevant; it must be necessary in assisting the trier of fact; no other evidentiary rule should apply to exclude it; and the expert must be properly qualified, assuming there is no novel science issue. Then the trial judge must execute the gatekeeper function. See White Burgess Langille Inman v. Abbott and Haliburton Co. , 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 19. See also R. v. Abbey , 2017 ONCA 640, 140 O.R (3d) 40, per Laskin J.A., at paras. 47-48. These four threshold elements implicitly give rise to another element: Can a person who has expertise, but who is not qualified as an expert witness under r. 53.03 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, still provide opinion evidence? [40] The short answer is that such a person can give opinion evidence as this court affirmed in Westerhof v. Gee Estate , 2015 ONCA 206, 124 O.R. (3d) 721, leave to appeal refused, [2015] S.C.C.A. No. 198. It was a case about the quantum of damages for injuries suffered in a car accident. Simmons J.A. identified two types of witnesses with special expertise who can provide opinion evidence but who are not expert witnesses as described in r. 4.1.01 and Form 53: The first are “participant experts,” who form opinions based on their participation in the underlying events, such as treating physicians. The second are “non-party experts,” who are retained by a non-party to the litigation and who form opinions based on personal observations or examinations that relate to the subject matter of the case, but for another purpose. One example would be a medical examination of a claimant for statutory accident benefit insurance purposes: see Westerhof , at para. 6. ( Westerhof implicitly overrules the trial decision to the contrary reached in Beasley v. Barrand , 2010 ONSC 2095, 101 O.R. (3d) 452.) [41] Simmons J.A. held, at para. 60, that both participant experts and non-party experts may give opinion evidence without complying with rule 53.03: I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where: · the opinion to be given is based on the witness’s observation of or participation in the events at issue; and · the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events. (b) The Governing Principles Regarding the Evidence Act [42] Dr. Sanchez’s letter was adduced by the defence in order to substantiate its theory that the appellant was suffering before the accident from the same mental problems that she manifested after the accident. The defence wanted to rely on the words of Dr. Sanchez’s opinion as being true. This would be to use Dr. Sanchez’s statement for the truth of its content, making it hearsay evidence. Hearsay evidence “is presumptively inadmissible because – in the absence of the opportunity to cross-examine the declarant at the time the statement is made – it is often difficult for the trier of fact to assess its truth”: R. v. Bradshaw , 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 1. [43] There are certain exceptions to the hearsay rule under which a statement may be adduced for its truth value. Two such exceptions, hedged about with additional protections, are found in ss. 35 and 52 of the Evidence Act . [44] Section 35 of the Evidence Act relates to business records. If a record is made “in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act,” then the record is admissible as evidence of such act: s. 35(2). [45] Section 52 of the Evidence Act relates to medical reports and is more expansive than s. 35. It permits the court to allow the report to be admitted into evidence without the need to call the practitioner. The opinion can then be accepted for the truth of its contents. However, the trial judge must, at the request of a party, oblige the medical practitioner to testify in order to permit cross-examination. See Kapulica v. Dumancic , [1968] 2 O.R. 438 (C.A.); Reimer v. Thivierge , [1999] 46 O.R. (3d) 309, at paras. 12-15; see also Doran v. Melhado , 2015 ONSC 2845. See generally Michelle Fuerst, Mary Anne Sanderson, and Donald Ferguson, Ontario Courtroom Procedure , 4th ed. (Toronto: Lexis Nexis Canada, 2016), c. 41. [46] The respective roles of the two sections have been distinguished in several cases. Section 35 is not a proper basis on which to admit opinion evidence. In Westerhof , Simmons J.A. said, at para. 103: Because these reports were tendered under s. 35 of the Evidence Act , the opinions concerning causation were not admissible for the truth of their contents: Robb Estate v. Canadian Red Cross Society (2001), 152 O.A.C. 60 (Ont. C.A.), at para. 152; McGregor v. Crossland , [[1994] O.J. No. 310] 1994 CanLII 388 (Ont. C.A.) at para. 3. Further, the appeal record contains no indication that notice was served for the admission of these reports under s. 52 of the Evidence Act . [Emphasis added.] [47] In Robb Estate v. Canadian Red Cross Society (2001), 152 O.A.C. 60 (Ont. C.A.), the court noted, at para. 152: “Section 52 differs from s. 35 in that it permits the admission of opinions and diagnoses contained in medical reports signed and prepared by qualified practitioners… Section 52 was designed as an alternative to oral testimony.” [48] In McGregor v. Crossland , [1994] O.J. No. 310 (Ont. C.A.) the court noted, at para. 3: We do not think that the diagnosis … is admissible under s. 35. It does not relate to “any act, transaction, occurrence or event”. If the notes were to be admissible at all this would have had to have been under s. 52 of the Evidence Act . (c) The Principles Applied [49] Ms. Girao served a notice of intent under ss. 35 and 52 of the Evidence Act and listed many of her medical reports including the reports prepared by Dr. Becker and Dr. Rosenblat. She did not include the report prepared by Dr. Sanchez. [50] On September 16, 2011, defence counsel served a request to admit on Ms.  Girao under r. 51 of the Rules of Civil Procedure requesting her to admit to “[t]he facts set out in the attached report of Dr. A. Sanchez dated October 12, 2001”. Ms. Girao responded on September 20, 2011 stating that she “denies the facts set out in the attach [sic] report of Dr. Sanchez which are not accurate.” Defence counsel then served a notice under s. 35 of the Evidence Act , dated September 26, 2011, which listed several medical reports and which gave notice that the defence could rely on the evidence of various healthcare providers, including Dr. Sanchez, by either calling them to testify or by filing their reports. [51] Allstate later served a notice of intention under both ss. 35 and 52 of the Evidence Act listing a number of medical records including Dr. Sanchez’s report and his clinical notes and records. (i) Dr. Becker’s Opinion [52] The expert evidence most favourable to the appellant was contained in the covering report authored by the director of the clinic, Dr. Becker, in which he summarized the reports of the team members who examined Ms. Girao in connection with her statutory accident benefits claim. The most important was a psychiatry report authored by Dr. Rosenblat. [53] However, the trial judge only permitted Dr. Becker to testify about the system for determining a person’s entitlement to statutory accident benefits for catastrophic impairment, but not about the substance of his report. In his jury charge, the trial judge effectively expunged Dr. Becker’s limited evidence, telling the jury that it was not in issue. [54] As I noted earlier, the defence worked to exclude the substantive expert evidence that justified the statutory accident benefits settlement from the jury and from the trial record. Consider the positive view of Ms. Girao’s claim expressed by Dr. Rosenblat, whose opinion was incorporated in Dr. Becker’s accident benefits report: Ms. Girao is a woman who has functioned well for most of her life outside of three specific areas. There is a significant history of a highly traumatic rape at the age of 18 from which she recovered. There was also a possible major depressive episode about one year prior to the accident from which she had full recovery. Furthermore, she had been suffering some back pain, again approximately a year prior to the accident. After the accident she developed gradually worsening bodily pains. She only began experiencing her depression approximately six months after the accident. Because her depression came on so many months after the onset of pain, it is clear that her pain triggered her depression and therefore her accident played a substantial role in precipitating her second depression. It is likely that her earlier rape and possible episode of depression predisposed her to the impact of this motor vehicle accident. [55] Dr. Rosenblat concluded: “Clearly this motor vehicle accident has played a substantial role in her current psychiatric functioning.” [56] The defence did not want these opinions favourable to Ms. Girao to reach the jury. Dr. Becker’s report was initially admitted as exhibit 61 when it was put to Dr. Finkle, the defence psychiatrist, in cross-examination, but it was later “struck as an exhibit,” according to a note in the exhibits list. The basis on which the trial judge struck the exhibit has not been put before this court, nor was the report included in the trial record as a lettered exhibit. Ms. Girao included a copy in her Appeal Book. [57] I can see no reasonable legal basis on which the evidence of Dr. Becker could be excluded in light of the governing principles regarding s. 52 of the Evidence Act noted earlier. It is not unusual in an assessment of a claimant for statutory accident benefits for there to be a summative report attaching the individual reports of multiple specialized assessors who prepared reports within their field of expertise. The usual approach would have the author of the summative report, in this case Dr. Becker, called as a witness by the appellant to provide his opinion. That is what the appellant tried to do in this case. The defence would have cross-examined Dr. Becker and, if necessary and if so inclined, the other assessors like Dr. Rosenblat, whose opinions underpinned Dr. Becker’s summative opinion. [58] In my view it was an error not to allow Dr. Becker to testify about the substance of his report and it was also an error to exclude his report from the record, given that Ms. Girao had served a notice under s. 52 of the Evidence Act . Dr. Becker should have been allowed to testify about what reliance he placed on Dr. Rosenblat (and others), subject to any demand by the defence to require Dr. Rosenblat to be available for cross-examination. [59] There is an actuating judicial perspective within which these principles operate, well-expressed by Barr J.: “[I]t should be remembered that any time a court excludes relevant evidence the Court's ability to reach a just verdict is compromised”: Hunter v. Ellenberger (1988), 25 C.P.C. (2d) 14 (Ont. H.C.). [60] Allowing the defence experts to testify and offer opinions contrary to Dr. Becker and Dr. Rosenblat presented a skewed picture to the jury and was grossly unfair to the appellant. (ii) Dr. Sanchez’s Opinion [61] The defence asserted and relied on the truth of Dr. Sanchez’s 2001 letter of opinion concerning the appellant’s pre-accident state but did not call Dr. Sanchez as a witness. The importance of that opinion is shown by the fact that the defence placed it in the statement of its position that the trial judge expressed in his jury charge, which I repeat for convenience: Even the doctors treating Ms. Girao, including Dr. Manohar, have provided the same psychiatric diagnosis of Ms. Girao in 2012, of that of major depressive disorder with psychotic features in partial remission that she had in 2001 with Dr. Sanchez. [62] Dr. Sanchez’s report is two pages long and concludes with the “Impression” that the appellant was then suffering from a: “Major Depressive Disorder With Psychotic Features in partial remission.” She had been referred to Dr. Sanchez by her family doctor, Dr. Malicki. [63] The appellant objected to the use of Dr. Sanchez’s opinion at the trial when defence counsel asked her about Dr. Sanchez’s report. Ms. Girao: Your Honour, the content of this report, I told the jurors. He hasn’t brought Dr. Sanchez, so The Court: Just, just Ms. Girao: … he hasn’t, I mean, so he can be cross-interrogated about this. The Court: The witness wasn’t allowed to address this document as part of her evidence-in-chief on the basis that it was not evidence. Defence Counsel: Right. But, this is cross-examination Your Honour. The Court: I know, but it’s cross-examination on evidence. Defence Counsel: No. It’s cross-examination on the statements made, which is different in, then it’s [sic] prior inconsistent statements which then is admissible. And, that’s…. The Court: We marked all these documents as…. Defence Counsel: As exhibits, as business records. The Court: Yes. Defence Counsel: Right. Ms. Girao: Your Honour…. The Court: So, it’s in evidence. You gave your evidence about this. And, she’s answered your questions, I think, with respect to it. Let’s just carry on. [64] And the questioning regarding Dr. Sanchez continued, taking up several pages of the transcript. I interpret this exchange as Ms. Girao’s objection, as a lay person, to the use by the defence of the Sanchez report for the truth of its contents without the defence producing Dr. Sanchez as a witness in accordance with s. 52 of the Evidence Act . [65] The exchange shows the way in which making the Joint Document Brief an exhibit made it easy for the defence to use the evidence for its hearsay purposes. This is what defence counsel did with Dr. Sanchez’s report, but without calling him. [66] Defence counsel stated that Dr. Sanchez’s report was in evidence under s. 35 of the Ontario Evidence Act , related to business records. It is also worth noting that as a result of the notice given by Allstate, Dr. Sanchez’s report was also in under s. 52 of the Ontario Evidence Act related to medical reports. [67] Dr. Sanchez’s report loomed large in the cross-examination of the appellant, the cross-examination of other medical witnesses, and in the argument. [68] I note that in his general jury instruction about medical records, the trial judge made comments about hearsay evidence: [The] record makers “impression”, opinion or diagnosis recorded in these records, is not admissible for its truth unless the record maker testified before you about that opinion and you accept the evidence of that person. By opinion I mean an impression or a diagnosis of what in the opinion of a healthcare profession was wrong with the plaintiff and why. [69] However, the trial judge did not bring this caution home to the jury with respect to Dr. Sanchez’s opinion. His jury charge including his review of the evidence ratified the defence’s abuse of the opinion for hearsay purposes. [70] In his summary of the defence position, the trial judge told the jury: After the accident, Ms. Girao’s pre-existing mental health issues and depression continued to worsen unabated as they had been leading up to the accident. Ms. Girao, despite working for some time after the accident, then went off work and pursued litigation as a full time job and began receiving accident benefits payments from her accident benefits carrier, eventually resulting in a large settlement that paid Ms. Girao $8,000 … more per year by not working. Ms. Girao’s progressive mental illness and psychiatric problems continued to worsen and Ms. Girao used the motor vehicle accident as the scapegoat of all her problems regarding her inability to adapt to life in Canada, her difficulties with English, her worsening pre-existing mental health issues, past memories and familial problems in raising her children. [71] In his summary of the evidence, the trial judge made extensive reference to evidence about Dr. Sanchez in the appellant’s testimony in-chief and in cross-examination. Dr. Maliki, the appellant’s one-time family doctor who had referred her to Dr. Sanchez was cross-examined on his report. Dr. Sanchez’s opinion also came up in the evidence of the appellant’s one-time psychiatrist, Dr. Manohar, who testified that she was her psychiatrist from 2005 to June 2012. Dr. Manohar was cross-examined about Dr. Sanchez’s report. Dr. Finkle, the defence psychiatrist, was cross-examined by the appellant regarding Dr. Sanchez’s report. The trial judge’s jury instructions including his summary of the evidence was provided to the jury. [72] The trial judge made no reference to Dr. Sanchez’s report in his threshold ruling or in the costs endorsement. (iii) Discussion [73] I infer that the defence used s. 35 of the Evidence Act as the basis for introducing Dr. Sanchez’s opinion letter in order to avoid having to call him as a witness and to avoid exposing him to cross-examination. Defence counsel then proceeded to cross-examine Ms. Girao on Dr. Sanchez’s opinion. He also put the opinion to several other witnesses, as noted earlier, and relied on it in the defence portion of the jury charge. Allstate used s. 52 as the basis of its notice but did not call Dr. Sanchez, even though the appellant had objected to his evidence. [74] In my view, the trial judge should have held that s. 35 of the Evidence Act is not the proper way to get medical opinion evidence in for the truth of its contents, which is what the defence did with Dr. Sanchez’s opinion. Section 35 relates to business records and the ordinary notations made in such records. As the cases hold, where the report is that of a medical practitioner, s. 52 is applicable. But, once the plaintiff objected, as she did, the trial judge was required to refuse to admit Dr. Sanchez’s report for the truth of its contents unless he was presented for cross-examination. On this basis, the hearsay content of Dr. Sanchez’s opinion was not admissible for any purpose, yet it formed a substantial plank in the defence position, and was amplified in the jury instructions. This error of law was procedurally and substantively unfair to Ms. Girao. (iv) Conclusion [75] Ms. Girao properly served a notice under s. 52 of the Evidence Act and was entitled to refer to and rely upon Dr. Becker’s report, and the reports that it summarized and attached including Dr. Rosenblat’s report. She was entitled to summon Dr. Becker as a witness, as she did, and was entitled to have Dr. Becker explain his opinion to the jury. And if the defence wished to dispute Dr. Becker’s report, counsel could have cross-examined him, and then could have required Dr. Rosenblat to come and testify as to his psychiatric opinion. [76] A straightforward and conventional application of s. 52 of the Evidence Act to Dr. Becker’s report was the only way in which a reasonably level playing field could have been maintained in this action. As it was, because the trial judge effectively disqualified Dr. Becker and his evidence, Ms. Girao was left to fend for herself in a pitched battle with seasoned trial lawyers, with one hand effectively tied behind her back. [77] The injustice was compounded because the defence was able to extract from and rely on the hearsay value of Dr. Sanchez’s opinion without calling him so that he too could be subject to cross-examination. The trial judge did not recognize Ms. Girao’s objection to Dr. Sanchez’s report going into evidence as an objection that obliged the defence to summon Dr. Sanchez to give viva voce evidence and to be subject to cross-examination. The jury heard a one-sided story. [78] These combined errors alone, in my view, are a sufficient basis upon which to allow the appeal. (3) Issue Three: The Use of Information about Insurance [79] The statutory accident benefits settlement played an out-sized role in the defence’s strategy. It formed the basis of the defence’s attack on Ms. Girao’s evidence, her credibility and her reliability, and the credibility and reliability of the witnesses she called in support of her case, including the experts. Was evidence about the settlement properly admitted? In my view it was not, as I explain in this section of the reasons. [80] To set the context, the old law was that in a civil action a jury must be discharged automatically if something happened at the trial from which the jury might reasonably infer that the defendant was insured. The belief was that a jury sympathetic to the plaintiff would not hesitate to reach into the defendant’s insurer’s deep pocket to excessively compensate the plaintiff. The mention of insurance no longer necessarily results in the jury’s automatic discharge, because the court understands that juries share the general public awareness that motor vehicles are insured. See Hamstra (Guardian ad litem of) v. British Columbia Rugby Union , [1997] 1 S.C.R. 1092. [81] If anything, the fact the jurors are savvy about car insurance leans in the other direction. Jurors are aware that larger insurance awards can increase the costs of the car insurance premiums they pay. The Ontario Law Reform Commission noted that one speculative explanation for the tendency of juries to make lower awards than judges was “the jurors’ self-interest in keeping insurance premiums low”: Report on the Use of Jury Trials in Civil Cases (Toronto: Ontario Law Reform Commission, 1996), at p. 28. [82] The change in the judicial approach does not mean it is open season in the treatment of evidence about insurance in jury trials. [83] Insurance defendants have seen it to their litigation advantage in some tort actions, as in this case, to seek to have details of the plaintiff’s previous statutory accident benefits settlement revealed to the jury. This has also occurred when the tort settlement preceded the statutory accident benefits dispute. [84] The issue is whether some or all of the details of the statutory accident benefits settlement can be admitted into evidence in the related tort trial arising out of the same accident in the examinations and cross-examinations of parties and witnesses, and in argument. [85] Trial courts have wrestled with this issue and the cases are mixed. Judges have been somewhat hesitant in admitting the evidence, recognizing the possible impact on the jury to the prejudice of the plaintiff. [86] I begin by describing the litigation dynamic set by Ontario’s system for compensating people injured in motor vehicle accidents. I then address the law of evidence in that context. (a) Ontario’s system for compensating people injured in motor vehicle accidents [87] Ontario has a hybrid system for compensating people injured in motor vehicle accidents. One component is the modified at-fault tort system. The other component is the no-fault statutory accident benefits system. The policy basis for the hybrid system was explained by this court in Meyer v. Bright (1993), 15 O.R. (3d) 129, [1993] O.J. No. 2446 (C.A.), at para. 6. The plaintiff’s access to the at-fault tort system is limited, but the plaintiff is given access to no-fault accident benefits for income loss and medical and rehabilitation expenses. The system is based on “an exchange of rights wherein the accident victim loses the right to sue unless coming within the statutory exemptions, but receives more generous first-party benefits, regardless of fault, from his or her own insurer.” The system is “designed to control the cost of automobile insurance premiums to the consumer by eliminating some tort claims.” See also Chisholm v. Liberty Mutual Group (2002), 60 O.R. (3d) 776 , (C.A.), per Laskin J.A., at para. 7, and Cadieux (Litigation Guardian of) v. Cloutier , 2018 ONCA 903, 143 O.R. (3d) 545, at paras. 10-11, 85-86, leave to appeal refused, [2019] S.C.C.A. No. 63. [88] The intersection between the two components of the system occurs when the statutory accident benefits are reconciled with the award of tort damages under s. 267.8 of the Insurance Act . Although the two sources of compensation are independent, there is some overlap and s. 267.8 is intended to prevent double recovery by the plaintiff. The functioning of the system is explained in Cadieux at paras. 22-24. [89] As noted in Basandra v. Sforza , 2016 ONCA 251 , 130 O.R. (3d) 466, at para. 21, affirmed in Cadieux , the statutory scheme sets up benefits silos: “ Section 267.8 of the Insurance Act creates several categories of statutory accident benefits to be taken into account as possible reductions in a jury award: [the first silo is] income loss and loss of earning capacity (s. 267.8(1)); [the second silo is] health care expenses, which includes attendant care costs by definition under s. 224(1) of the Act (s. 267.8(4)); and [the third silo is] other pecuniary losses such as housekeeping costs (s. 267.8(6)).” The tort award is to be reduced by the amount of statutory accident benefits received by the plaintiff on the basis of these three silos. [90] The trial judge reconciles the no-fault benefits received by the plaintiff with the award of tort damages after the jury’s damages verdict by reducing the tort award: Basandra , at para. 20. The jury has no role in this exercise. The practice in civil jury trials is to include a jury instruction that they are to “make their award, if any, on a gross basis with no deduction for any collateral benefits” on the basis that the trial judge will make any required adjustment: Malfara v. Vukojevic , 2014 ONSC 6604, at para. 1, per Firestone J. (b) The Governing Principles of the Law of Evidence [91] It is trite law that evidence is admissible if it is relevant to a fact in issue in the case and is not subject to an exclusionary rule. The trial judge also has discretion to refuse to admit evidence where its prejudicial effect would exceed its probative value: Draper v. Jacklyn (1969), [1970] S.C.R. 92. That case involved graphic photographs of a motorist’s injuries that were admitted at trial. While holding that the photographs were properly admitted, Spence J. said at p. 98: The occasions are frequent upon which a judge trying a case with the assistance of a jury is called upon to determine whether or not a piece of evidence technically admissible may be so prejudicial to the opposite side that any probative value is overcome by the possible prejudice and that therefore he should exclude the production of the particular piece of evidence. [92] This principle applies generally and beyond physical evidence along with the trial judge’s residual discretion to exclude evidence. See R. v. Lyttle , 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 44; R. v. Meddoui , [1991] 3 S.C.R. 320, at para. 3; and Bruff-Murphy v. Gunawardena , 2017 ONCA 502, 138 O.R. (3d) 584, at paras. 29-32. [93] I bring both lenses, relevance and prejudicial effect/probative value, to bear on the admissibility of the evidence of a statutory accident benefits settlement in a tort action. (i) Relevance [94] The first question is whether evidence of the details or existence of the statutory accident benefits settlement is relevant to a fact in issue in the tort action. “ Evidence is relevant if, as a matter of logic and human experience, it renders the existence or absence of a material fact in issue more or less likely”: R. v. Truscott (2006), 216 O.A.C. 217 (C.A.), at para. 22. In a civil trial, the material facts in issue are set in general by the nature of the cause of action and defence and then more specifically by the pleadings: Rules of Civil Procedure , r. 25.06(1). [95] The limited case law shows that defendants have pursued several avenues to argue that the details of the statutory accident benefits settlement are relevant in the tort action and should be revealed to the jury. [96] The less contentious avenue has been to allege the plaintiff’s failure to use the settlement proceeds to mitigate future losses, as in Farrugia v. Ahmadi , 2019 ONSC 4261, and Peloso v. 778561 Ontario Inc . (2005), 28 C.C.L.I. (4th) 10 (Ont. S.C.). [97] In Farrugia , the trial judge did not permit the defence to reveal the totality of the settlement to the jury but did permit questions on several benefits on the basis that the pleadings had put them in dispute. He permitted questions on caregiver expenses, attendant care expenses, and housekeeping and home maintenance expenses: at para. 29. The plaintiff had used some of the proceeds to renovate her house. [98] In Peloso , the trial judge permitted the defence to ask questions about the plaintiff’s lack of compliance with treatment recommendations on the basis of the allegation that she had failed to mitigate her future losses. Instead of using the money for the recommended treatments, the plaintiff bought a house. The trial judge reduced the damages 30 percent for the plaintiff’s failure to mitigate: at para.  377. [99] The more contentious avenue has been to claim that the benefits settlement eroded the plaintiff’s motivation to work, thereby increasing the future income losses the defendant will be required to pay through the tort award. This avenue has been rejected by trial judges on the basis of relevance, as in Ismail v. Flemming , 2018 ONSC 5979, or on the basis that it was excessively prejudicial to the plaintiff, as in Farrugia , which I consider in the next section [100] In Ismail the trial judge granted an order prohibiting questions by the defence as to “any suggestion, submission, argument or other reference at trial to the effect that the receipt of collateral benefits is relevant to [the plaintiff’s] motivation to work”: at para. 37. He acknowledged, at para. 17, that “there was an intuitive logic to the defendants' contemplated line of questioning and argument, and their corresponding assertions of relevance,” but he largely rejected that logic, relying in part on the trial and appellate decisions in Kitchenham v. AXA Insurance , 23 C.C.L.I. (4 th ) 76 (Ont. S.C.), rev’d on other grounds, 229 O.A.C. 249 (Div Ct.), rev’d on other grounds, 2008 ONCA 877, 94 O.R. (3d) 276. [101] In Kitchenham , the tort settlement came before the benefits trial. [1] The benefits carrier wanted to argue that the plaintiff could work, which would have reduced the carrier’s liability to pay income replacement benefits, alleging that the plaintiff, having been enriched by the tort settlement, lacked the financial incentive to work. The motion judge in Kitchenham said, at para. 53, that “documents relating to the settlement of the tort claim have no relevance to the present proceedings,” and refused to order the production of the tort settlement documents. His view on this issue was accepted by the Divisional Court and by this court. [102] The motion judge in Kitchenham explained, at para. 52: The best that [the defendant insurer] could do was to suggest that the quantum of the settlement might affect the plaintiff’s motivation to return to work. However, the issue to be determined at trial is whether or not the plaintiff is disabled from working, not whether the plaintiff has a financial incentive to work . A wealthy person might have no incentive to work at all, yet would still be entitled to loss of income benefits if he were disabled from doing so. [Emphasis added.] [103] Doherty J.A. agreed with the motion judge and noted, at para. 14: The issue in the benefits action is whether the plaintiff is disabled and unable to work. The impact, if any, of the settlement in the tort action on the plaintiff’s motivation to work and the extent to which the plaintiff is actually disabled are both so speculative as to be beyond even the generous notion of relevance applied at this [discovery] stage of a proceeding[.] [104] The trial judge in Ismail found, at para. 32, that Kitchenham applied in principle whether the tort settlement came first or the statutory accident benefits settlement. He prohibited the defence from making any suggestion that the receipt of collateral benefits affected the plaintiff’s motivation to work. [105] The defence argues that the Ismail trial judge’s reliance on Kitchenham was misplaced; it is distinguishable because it was a benefits action, not a tort action like this case. [106] There is a basic difference between benefits actions like Kitchenham and tort actions like Ismail . In tort actions the statutory accident benefits must be accounted for in the final tort award under the Insurance Act. The same is not true for benefits actions in which there is no direct relationship between the tort settlement and the benefits settlement. That said, they are similar from the perspective of the trier of fact, for whom, as Doherty J.A. stated in Kitchenham : “The issue in the benefits action is whether the plaintiff is disabled and unable to work.” That is a substantive issue in tort actions including this one; motivation to work is relevant to credibility but credibility is a collateral and testimonial issue. [107] The defence submits that the governing authority is McLean v. Knox , 2013 ONCA 357, 306 O.A.C. 203, which effectively elevated the plaintiff’s credibility to the equivalent of a fact in issue of substantive relevance. In my view, this submission overstates the effect of McLean. [108] In McLean the plaintiff was a passenger injured in a car accident in which the driver was intoxicated. He sued the driver and the bar that overserved him. The jury awarded the plaintiff general damages but did not award him anything for future income loss. The trial judge set aside the jury’s verdict on future income loss and substituted his own award of $117,200. This court allowed the bar’s appeal. Gillese J.A. noted, at para. 24, that “it cannot be said that there was no evidence on which the jury could reject a claim for future income loss.” To the contrary, she found, at para. 23: There was evidence that the plaintiff earned as much income, or more, following the accident as he had earned before the accident. Also, the plaintiff suffered from serious credibility issues in respect of his income and his motivation to work. In addition, there was evidence that the plaintiff had alternative job opportunities available to him. [109] This sets the context for the sentence on which defence counsel relies, in para. 24: “ Even assuming that the defence evidence on the plaintiff's injuries was ‘uncontradicted and uncontested’, as the trial judge found, that evidence was not determinative of the question of future income loss - credibility and motivation to work were also relevant to such a determination ” (emphasis added). [110] I would not give effect to the respondent’s argument regarding the effect of McLean for two reasons: First, McLean did not elevate the plaintiff’s credibility to the equivalent of a fact in issue of substantive relevance. This is not the jurisprudential point on which the case turned. The court was not expressing a general principle of broad application, but was merely commenting on the actual evidence in the case. The defence adduced positive evidence showing that the plaintiff earned more after the accident than before and that he had other job opportunities he had not taken. No doubt the plaintiff did not fare well in cross-examination in light of that evidence, hence the reference to his poor credibility. Even with his acknowledged injuries, the jury did not believe that he was unable to work because he had been working. [111] Second, the court in McLean was not using the word “relevant” in the sense of specifying a norm for future cases but as a description of the plaintiff’s failure to establish the credibility of his claim to be unable to work. [112] In my view, a plaintiff’s motivation to work is a collateral issue related to the credibility of the assertion that she or he is unable to work. How much evidence will be permitted on the issue of the plaintiff’s alleged malingering or motivation to work is a matter for the trial judge’s discretion in considering the balance of prejudicial effect and probative value, to which I now turn. (ii) The prejudicial effect/probative value balance [113] The second question in the admissibility of evidence is whether its prejudicial effect would exceed its probative value. In Farrugia , the defendants argued that the plaintiff had misspent the proceeds of her statutory accident benefits settlement. Because she could have used the funds to reduce her future losses, she had failed to mitigate the damages she sought in the tort action. [114] The trial judge refused to allow the total amount of the settlement to be revealed to the jury but did allow evidence about certain components of the settlement to be adduced, for two reasons. First, he pointed to reasoning prejudice that disclosure of the total settlement could create in the minds of the jury. He found, at para. 27, that questions on the totality of the settlement “would create a prejudicial effect in the minds of the jury that would exceed the probative value of those questions, as would any answer as to the receipt of those funds or the use to which they were put.” He added that: “This prejudicial effect would be all the more pronounced because of the lack of materiality for asking those questions in the first place.” [115] Second, the trial judge in Farrugia pointed to the unfairness of the position in which the plaintiff would be left as a form of “double jeopardy.” He noted, at para. 28: In my view, permitting a question about the totality of the accident benefits settlement received and any related question would expose Ms. Farrugia to double jeopardy. She would be subject to the impact of both the prejudicial effect of that question, as well as the fact that the very same accident benefits will be deducted under the Insurance Act , where applicable, from any award the jury makes. [116] The trial judge in Farrugia assessed relevance against the pleading. In his view it “was overly broad and failed to provide any other basis to establish how such a question would be relevant”: at para. 27. He did permit limited cross-examination, as I will explain. [117] In the same vein, while the trial judge in Ismail , at para. 10, cited McLean v. Knox , he then pointed out, at para. 33, that the defence’s challenge was not focussed on preventing double recovery, but on “quite a different purpose”, being to form the “basis for suggesting that the plaintiff is not really disabled, but effectively choosing not to work because her receipt of collateral benefits undermines her motivation to work.” This he saw as a purpose related purely to credibility. [118] In Ismail , the trial judge canvassed several policy considerations implicated by the suggestion that the plaintiff was not actually disabled but rather lacked the motivation to work because she had received statutory accident benefits. Noting the statutory entitlement to no-fault benefits and the fact that most people injured in a motor vehicle accident would claim them, the trial judge said, at para. 34: “In my view, use of collateral entitlements premised on disability to support arguments of ability , in order to undermine residual claims for recovery not addressed by such collateral benefits, seems not only ironic but unfair.” He cautioned that such an argument could be made “in every case where a plaintiff has received collateral benefits, regardless of idiosyncratic concerns about credibility.” He worried that this avenue of attack could create a perverse incentive under which, in order “to avoid having their legitimate and possibly greater claims for future income loss being compromised,” plaintiffs “legitimately disabled by motor vehicle accidents, and unable to work, [would] … refrain from aggressively pursuing all collateral benefits otherwise properly available to them.” (iii) Credibility [119] Several decisions have highlighted the plaintiff’s credibility as the basis for allowing full exploration of the benefits settlement by the defence. It is fair to say that credibility is often especially in issue when the plaintiff’s complaint relates to soft tissue injuries or to the psychological effects of a motor vehicle accident that lack objective markers. See for example Djermanovic v. McKenzie , 2014 ONSC 1335, 32 C.C.L.I. (5th) 96, at para. 40. [120] Can the holdings from McLean and Kitchenham be reconciled? I do not read them to be inconsistent. Kitchenham identified the substantive fact in issue as the plaintiff’s ability to work. McLean noted that the plaintiff’s credibility in asserting the inability to work can be tested with positive evidence and in cross-examination leading to the jury finding the plaintiff not to be credible. [121] The core issue is whether the plaintiff is able to return to work, not the motivation to work, as Doherty J.A. noted in Kitchenham . The plaintiff’s burden is to prove his or her inability to work. The defence asserts that the plaintiff is able to return to work. Typically, the evidence will involve a physical examination of the plaintiff including medical reports, a psychological examination where psychological injury is alleged, the testimony of other witnesses, evidence such as surveillance showing the plaintiff doing something he or she claimed not to be able to do, and effective cross-examination. [122] Motivation to work is a collateral issue that the defence can raise in cross-examination to test the plaintiff’s credibility as to why he or she is not working. Can evidence in the form of the details of the benefits settlement be used in the plaintiff’s cross-examination? [123] Cross-examining counsel are afforded broad scope for cross-examining a witness on matters related to credibility: R. v. Krause , [1986] 2 S.C.R. 466, [1986] S.C.J. No. 65, at para. 17. But there are limits. [124] One limit flows from the trial judge’s ruling excluding certain evidence that fails the test of relevance or the prejudicial effect/probative value balance. Examining counsel cannot go down the forbidden road. [125] Another limit is the collateral fact rule, stipulated by Peter J. Sankoff, The Law of Witnesses and Evidence in Canada , (Toronto: Thomson Reuters Canada Limited, 2019) , at c. 12.5(a): [W] hile a witness may be properly questioned as to any matter that is relevant to credibility, independent evidence may not be introduced to contradict the answer that the witness gave . It follows that if on cross-examination a witness is asked questions by opposing counsel solely with a view to attacking the credibility of that witness, any answers provided are conclusive and cannot be contradicted by the calling of independent evidence to show that the answers might be untrue. [126] In Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada , 5th ed. (Toronto: LexisNexis Canada, 2018), the authors give a special caution regarding juries at s. 16.136: “Juries, in particular, could be influenced by suggestions made in cross-examination, but not subsequently proved. Most juries would assume that a responsible counsel would not make such suggestions unless there was some justification for them in his or her brief.” [127] The trial judge can also place limits on cross-examination where it lacks a good faith basis: Lyttle , at para. 66; takes “cheap shots”: R. v. F. (J.E.) (1993), 16 O.R. (3d) 1, [1993] O.J. No. 2589 (C.A.), at para. 51; or is “sarcastic, personally abusive and derisive”: R. v. Bouhsass (2003), 169 C.C.C. (3d) 444 (Ont. C.A.), at para. 11. As noted by Doherty J.A. in R. v. R. (A.J.) (1994), 20 O.R. (3d) 405, [1994] O.J. No. 2309 (C.A.), at para. 27: while counsel is entitled to conduct a vigorous cross-examination, “[n]o counsel can abuse any witness.” This is the point of r. 53.01(2) of the Rules of Civil Procedure . [128] The trial judge in R. v. Hawke , (1974), 3 O.R. (2d) 201, [1974] O.J. No. 1856 (Ont. H.C.), made a pertinent comment at para. 29, rev’d on other grounds (1975), 22 C.C.C. (2d) 19, [1975] O.J. No. 2200 (Ont. C.A.): “And I would think that in appropriate situations, any trial Judge would at least protect the witness who was asked a demeaning question where the Judge has reason to believe it is without foundation or for some ulterior motive.” (c) The Emerging Principles [129] Several principles emerge from this discussion. [130] First, the trial judge has broad discretion to control the proceedings to ensure that trial fairness results. [131] Second, Ontario’s hybrid motor vehicle accident compensation system has as its primary concern the adequate compensation of injured persons. The reconciliation of benefits and tort damages aims to prevent double recovery. As noted, the practice in civil jury trials is to include an instruction to the jury to make their award of damages on a gross basis with no deduction for any collateral benefits. The reconciliation of the receipt of benefits and tort damages is not expected to be controversial in most instances. The task is left to the trial judge in order to take it out of contention before the jury. Perhaps that statutory allocation of responsibility to the judge reflects a recognition that the jury might otherwise be tempted to do some informal discounting of the damages award to take account of the statutory accident benefits the plaintiff has already received. [132] Third, it falls to the trial judge in a tort action to decide contextually whether and to what extent evidence about the statutory accident benefits settlement is to be admitted. The principles of evidence law guide the decision. The first question is whether evidence of the details or existence of the statutory accident benefits settlement is relevant to a fact in issue in the tort action. The second question is whether the probative value of the evidence would exceed its prejudicial value. Striking the balance engages the trial judge’s discretion. [133] Fourth, evidence regarding some of the individual benefits received in the statutory accident benefits settlement would be relevant and admissible if the allegation is made that the plaintiff’s abuse of a benefit will have an impact on the calculation of the tort damages. For example, if the defence pleads that the plaintiff failed to use the earmarked settlement proceeds to mitigate certain related future losses, as in Farrugia and Peloso , then certain details of a settlement will be directly relevant to whether the defendant or the plaintiff is liable to the future losses. The plaintiff is free to use proceeds of a settlement as he or she sees fit, but in some circumstances it is appropriate to require the plaintiff to account for the expenditure of settlement funds. [134] There is a two-fold proviso: the pleadings must have put the issue into dispute with appropriate particularity; and there must be an air of reality to the issue, to be assessed in a voir dire , which is supported by evidence and admissible expert evidence if necessary. In my view, the same proviso would apply to a defence allegation that the plaintiff is malingering or lacks the motivation to work. [135] Fifth, the totality of the statutory accident benefits settlement would rarely be relevant and would usually be more prejudicial than probative, particularly in a jury trial, even when the defence alleges that the plaintiff is malingering or lacks the motivation to work. These allegations are easy to make and difficult for the plaintiff to defuse. The plaintiff’s burden to prove his or her inability to work is especially heavy for soft tissue injuries, chronic pain, and psychological injury such as depression where objective evidence is lacking. The accusation of malingering prejudicially adds to the plaintiff’s evidentiary burden by sowing suspicion in the minds of the jury. The accusation of malingering can form the basis of withering cross-examination of the plaintiff and allow counsel to repeat the malingering accusation in the examination and cross-examination of other witnesses. In this way, the allegation of malingering can achieve narrative heft by repetition as a mnemonic reminder to the jury of the defence’s theory. [136] Sixth, there are public policy grounds for being cautious. Permitting the benefits settlement to undermine the tort claim can expose the plaintiff to unfairness, as Leitch J. noted in Ismail , at para. 34, which I repeat for convenience: the “use of collateral entitlements premised on disability to support arguments of ability , in order to undermine residual claims for recovery not addressed by such collateral benefits, seems not only ironic but unfair.” In Farrugia , Emery J. called it a form of double jeopardy. I agree with their observations. Further, making the evidence of statutory accident benefits settlement generally admissible in tort actions can create a perverse incentive on the plaintiff to keep the statutory accident benefits claim alive so that it does not become a defence weapon in the tort action. However, it is a general principle of our law that settlements are to be encouraged, not discouraged. [137] Finally, where evidence of the statutory accident benefits settlement is in evidence before the jury, the jury instructions should carefully explain how the motor vehicle accident compensation system in Ontario functions, including the fact that the plaintiff was entitled to the statutory accident benefits, and the distinct roles of the trial judge and the jury in setting the tort damages and accounting for benefits received so that the jury can understand the reasons for the allocation of the roles. The jury should be instructed not to reduce the award of damages because it believes that the benefits have compensated the plaintiff adequately for the accident. The current rather sparse standard instruction is not adequate. (d) The Principles Applied [138] In my view Ms. Girao’s trial did not satisfy most of these principles. I address them in the same order as the previous section. [139] First, the trial judge in this case gave the standard instruction to the jury and the defence argues that nothing more was required of him. I disagree for the reasons set out earlier. The prejudice of introducing evidence of a statutory accident benefits settlement must be carefully balanced against its probative value. The current practice of requiring the jury to establish damages on a gross basis, while leaving the trial judge the task of giving credit for benefits received, does not stop the jury from falling prey to reasoning prejudice. [140] Second, the record before this court does not show the trial judge’s reasoning process on admitting the statutory accident benefits settlement documents: the rationale for their admission based on relevance or the prejudicial effect/probative value balance is therefore not evident from the record. The trial judge permitted the defence to rely on the settlement and to cross-examine Ms. Girao on it. The settlement documents and details were included in volume 16 of the joint trial brief, which was slipped in as the first trial exhibit on the first day of the trial. Ms. Girao did not object to the admission of this material, probably because she did not know that she could. [141] Third, unlike Ferrugia , Ismail and Peloso , there was no clear basis on which the details of the benefits settlement should have been admitted. There is nothing in the statement of defence that put the benefits settlement in issue. In my view, there was no basis upon which to admit the evidence of Ms. Girao’s statutory accident benefits settlement or to allow the defence to cross-examine Ms. Girao on its details. Based on the pleadings, nothing in the cross-examination was relevant to a material fact at issue. [142] Fourth, the defence sought to reveal the total benefits settlement to the jury in order to underpin the assertion that Ms. Girao was malingering and unmotivated to work. [143] As previously noted, in his summary of the defence position, the trial judge told the jury in his charge: “Ms. Girao, despite working for some time after the accident, then went off work and pursued litigation as a full time job and began receiving accident benefits payments from her accident benefits carrier, eventually resulting in a large settlement that paid Ms. Girao $8,000 … more per year by not working.” [144] The defence alleged that Ms. Girao’s health issues were wholly unrelated to the accident and that her claim had features of “secondary gain”. In oral argument, counsel for the respondent agreed that the defence claim was essentially that Ms. Girao was malingering. He asserted that malingering was a psychological diagnosis according to the Diagnostic and Statistical Manual of Mental Disorders , 5th ed., issued by the American Psychiatric Association, (Washington DC: American Psychiatric Publishing, 2013). The DSM-V identifies malingering as a “condition,” not a “disorder,” at p. 726-727. That would make all trial questions regarding the influence of the statutory accident benefits settlement relevant. However, neither the statement of defence nor the factum before this court identified Ms. Girao’s alleged malingering as an issue. [145] Moreover, the transcript reveals that the whole thrust of the cross-examination was to portray the settlement as an unearned windfall to which Ms. Girao wanted to add another unearned windfall: Defence Counsel: Okay. So, using this simple math, ma’am, you acknowledge you were paid $85,000 by Allstate from 2002 through to 2006, under less than 4 years. And, you’ve also acknowledged, using the simple math, that’s approximately $21,000 a year. Correct? You’ve acknowledged this. Ms. Girao: Okay. Okay. Defence Counsel: Okay. But, yet, ma’am, now you acknowledge, for a full year at work at Hallmark you were only getting paid for, more or less a year, $13,000. Correct? Ms. Girao: Okay. Defence Counsel: So, ma’am, your cleaning toilets and making $13,000 a year. You’re not working, and Hallmark [sic], and Allstate Insurance Company is paying you $8,000 more a year for not working. Correct? You made money by not working. Correct? Ms. Girao: But, I was sick. Defence Counsel: Ma’am, you agree with me, you had additional $8,000 a year in income by not working. Correct? Ms. Girao: Okay. Okay. Defence Counsel: Ma’am, before the morning break we talked about the fact that you’re receiving $8,000 more a year by staying home as opposed to working. Do you remember that? Ms. Girao: Yes. Defence Counsel: Okay. Thank you. Now, and then, when you went on ODSP in 2008.... Ms. Girao: Yes. Defence Counsel: Right. You started receiving $21,000 a year from ODSP. Correct? Ms. Girao: That’s correct. Defence Counsel: So, ma’am, from 2002 through to, at least, 2006, you didn’t have to work because you were getting more money from your accident benefit carrier than you were cleaning toilets in a building and working 40 hours a week. Yes? Ms. Girao: Yes. Defence Counsel: Yes. And, then from 2008 up until the present day, you don’t have to work either because you’re getting all that money from ODSP, which is more than you’d make if you were cleaning toilets again. Correct? Ms. Girao: Well, just by the way, cleaning toilets, it’s not something that someone should be ashamed of. It’s a dignified piece of work. Okay? [146] Given the pleadings and the material facts at issue, there was minimal, if any, probative value in this mocking and belittling cross-examination on the benefits settlement. It was highly prejudicial to Ms. Girao, having the perverse effect identified in Ismail of using “ collateral entitlements premised on disability to support arguments of ability ”. The trial judge did nothing. [147] In my view the trial was unfair to Ms. Girao for all of these reasons, quite apart from my earlier conclusion that the combined errors in addressing the medical evidence alone are a sufficient basis upon which to allow the appeal. (4) Issue Four: The role of the trial judge and counsel where one party is self-represented [148] The overarching principle is that the trial judge is responsible for controlling proceedings to ensure trial fairness. Trials involving self-represented litigants can be especially challenging. (a) The Governing Principles [149] Numerous trial fairness concerns arise for self-represented litigants. In Pintea v. Johns , 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4, the Supreme Court endorsed the Statement of Principles on Self-represented Litigants and Accused Persons (2006) issued by the Canadian Judicial Council. The Statement provides guidance to the judiciary on how to ensure litigants “understand and meaningfully present their case, regardless of representation”: at p. 2. The enumerated principles appear under the following headings: promoting rights of access, promoting equal justice, and responsibilities of the participants in the justice system. The Statement sets out directions for the judiciary, court administrators, self-represented persons, and members of the bar. The section on promoting equal justice is particularly relevant. It states: 1. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons. 2. Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case. 3. Where appropriate, a judge should consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons. Such case management should begin as early in the court process as possible. 4. When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may: a. explain the process; b. inquire whether both parties understand the process and the procedure; c. make referrals to agencies able to assist the litigant in the preparation of the case; d. provide information about the law and evidentiary requirements; e. modify the traditional order of taking evidence; and f. question witnesses. [150] In Morwald-Benevides v. Benevides , 2019 ONCA 1023, 148 O.R. (3d) 305, I surveyed some of the responsibilities that trial judges have to self-represented litigants, and noted, at para. 34: It is no longer sufficient for a judge to simply swear a party in and then leave it to the party to explain the case, letting the party flounder and then subside into unhelpful silence. As this court has noted, “it is well-accepted that trial judges have special duties to self-represented litigants, in terms of acquainting them with courtroom procedure and the rules of evidence”: Dujardin v. Dujardin , 2018 ONCA 597, 423 D.L.R. (4th) 731, at para. 37, repeated in Gionet v. Pingue , 2018 ONCA 1040, 22 R.F.L. (8th) 55, at para. 30. The court added, at para. 31 of Gionet : “In ensuring that a self-represented litigant has a fair trial, the trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case”, citing Davids v. Davids (1999), 125 O.A.C. 375, at para. 36. See also Manitoba (Director of Child and Family Services) v. J.A. , 2006 MBCA 44, at paras. 19-20. [151] Although fairness concerns may animate how a trial judge exercises control over their courtrooms, there are clear limits to a trial judge’s duty to assist a self-represented litigant. The actuality and the appearance of judicial impartiality must be maintained. As Brown J.A. said in Sanzone v. Schechter , 2016 ONCA 566 , 402 D.L.R. (4th) 135 , at para. 22: “A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented.” In order to preserve fairness in a trial, “the trial judge must, of course, respect the rights of the other party”: Davids , at para. 36. [152] Turning now to counsel’s duties as officers of the court. I note that the professional ethical obligations of a lawyer toward a self-represented litigant is fairly limited under the Law Society of Ontario’s Rules of Professional Conduct : see Law Society of Ontario, Rules of Professional Conduct , Toronto: Law Society of Ontario, 2000, (as amended), ch. 7, s. 7.2-9. [2] I would further note that lawyers have more general ethical obligations when acting as an advocate, such as the duty to bring to the court’s attention any binding authority that the lawyer considers to be directly on point that has not been mentioned by an opponent: see generally, Rules of Professional Conduct , ch. 5, s. 5.1-2. (b) The Principles Applied [153] I pointed out several fairness problems earlier in these reasons. There is no need to repeat them. [154] In this case the defence advanced evidentiary positions that were problematic on legally complex topics. In advancing those positions, the defence ought to have assisted the trial judge, as officers of the court, with the legal issues embedded in the positions. Ms. Girao needed the active assistance of the trial judge to deal with those positions. [155] In my view, it was open to the trial judge faced with a legally contentious issue to require counsel to assist. In this trial, for instance, the trial judge could have asked for a briefing note on the interplay of ss. 35 and 52 of the Evidence Act in relation to the medical evidence, including the relevant authorities. The same would apply to the introduction of the evidence of the totality of the statutory accident benefits settlement on which there are several relevant cases. [156] The impression left by the limited trial record is that the trial judge allowed himself to be led by trial counsel’s arguments. Ms. Girao, a self-represented, legally unsophisticated plaintiff who struggled with the English language, was left to her own devices. Fairness required more, consistent with the expectations placed on the trial judge by Statement of Principles on Self-represented Litigants and Accused Persons. [157] These are additional reasons for finding the trial to have been unfair to Ms. Girao. (5) Striking the Jury [158] The appellant moved to strike the jury under s. 108(3) of the Courts of Justice Act and r. 47.02 of the Rules of Civil Procedure . The trial judge refused but his reasons are not in the record on appeal. The appellant submits that the trial judge erred in refusing her motion and seeks an order for a new trial before a judge sitting without a jury. (a) The Governing Principles [159] The principles governing the discharge of a jury and appellate review were set out in Kempf v. Nguyen , 2015 ONCA 114, 124 O.R. (3d) 241, by Epstein J.A. for the majority, at para. 43, and by Laskin J.A. who dissented but not on this point, at para. 118. Both relied on Cowles v. Balac (2006), 83 O.R. (3d) 660, leave to appeal refused, [2006] S.C.C.A. No. 496. [160] The respondent relies on the premise underlying these decisions: “[T]he moving party has a substantial onus because trial by jury is a fundamental right”: McDonald-Wright v. O’Herlihy , 2007 ONCA 89, 220 O.A.C. 110, at para. 13, per Gillese J.A., who cited Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 60 O.R. (3d) 665 (C.A.). The respondent also relies on McDonald-Wright to support her position that the trial judge did not err in declining to strike the jury [161] To paraphrase several principles invoked by Epstein J.A. in Kempf , at para. 43 (5) and (7) : Complexity of a case is a proper consideration in determining whether a jury notice should be struck, and that relates not only to the facts and the evidence, but also to the legal principles that apply to the case. Trial judges are presumed to know the law and to be able to explain it to a jury. [162] In Kempf , at para. 119, Laskin J.A. said: “The question for the trial judge is simply this: will justice to the parties be better served by dismissing or retaining the jury? ” This standard has been cited in numerous cases: see e.g. Cowles , at para. 37; Graham v. Rourke (1990), 75 O.R. (2d) 622, [1990] O.J. No. 2314, at para. 6. In Graham , Doherty J.A. continued at para. 6: “In many situations that discretion may, with equal propriety, be exercised for or against discharging the jury.” [163] As Laskin J.A. further pointed out in Kempf , at para. 119, in assessing whether a trial judge exercised discretion appropriately about whether to retain or discharge a jury, “context matters. Although the right to a trial by jury in a civil case is an important right, it is far from absolute.” [164] One contextual issue clearly at play with respect to Ms. Girao is the degree to which, if at all, a trial judge should consider a party’s self-represented status, among other factors, when determining whether to strike a jury. I addressed this issue in the immediately preceding section of these reasons. [165] The cases in which the principles have been expressed have tended to be family law cases in which there is no jury. But there are cases in which a party’s self-represented status was a factor considered by the trial judge in determining whether to strike a jury notice. In Desjardins v. Arcadian Restaurants Ltd. (2005), 77 O.R. (3d) 27 (Ont. S.C.), the defendant filed a jury notice but then later brought a motion to strike the jury several months before trial. The self-represented plaintiff opposed the motion. The motion judge initially dismissed the motion to strike without prejudice to the defendant on the belief that “with proper instructions to the plaintiff and to the jury, [he] would be able to manage the trial in a manner that would be perceived by the jury to be fair to both sides”: at para. 12. However, he left it open to the defendant to renew the motion at trial. When the defendant renewed the motion closer to trial, the motion judge granted the motion to strike the jury notice, noting that the self-represented status of the plaintiff has made the case “unduly complicated” so that the trial would be prolonged as a result: at para. 11(i) and (ii). He explained: “I have now come to the conclusion that it will virtually be impossible to provide the assistance I anticipate the plaintiff will require at trial in a manner that ensures that the defendant will not be placed at a significant disadvantage in the eyes of the jury”: at para. 13. See also Belende c. Greenspoon , 2006 Carswell 9135. (b) The Principles Applied [166] This case involved medical evidence that was not markedly different from the factual issues and legal principles routinely handled by juries in cases involving motor vehicle accidents and medical malpractice. [167] The respondent relies on McDonald-Wright , but I note Gillese J.A.’s statement, at para. 15: The trial judge also considered the character of the jury and concluded that the jurors were dedicated, took their responsibilities seriously and had the benefit of experienced counsel who knew their cases thoroughly and were exceptionally skilled at presenting evidence before a jury . [Emphasis added.] This excerpt identifies one of the critical elements missing from this jury trial: the presence on both sides of experienced counsel. [168] The presence of a jury might well inhibit a trial judge in providing assistance to a self-represented litigant. In both Desjardins and Belende , the self-represented status of the plaintiff was clearly a significant factor that weighed in favour of striking the jury. [169] This is a case where the trial judge should have reconsidered his decision not to strike the jury as the trial unfolded and difficulties in trying this case fairly mounted through the long days of the trial. · The appellant was self-represented and did not know the law. · She was testifying and conducting cross-examinations through an interpreter and the transcript excerpts in the appeal record show that difficulties occurred from time to time as the evidence unfolded. · She faced two sets of experienced and highly active jury counsel. · When the defence objected to a question or a statement made by Ms. Girao, as it frequently did, the jury had to be taken out so that argument could take place and appropriate instructions given, usually to her. This added to the trial time and to the frustrations of all involved, and likely to Ms. Girao’s detriment. [170] In my view, the self-represented status of a litigant is a factor that might unduly complicate or lengthen the trial, leading the trial judge to conclude that prudence suggests the jury be discharged. As noted by Epstein J.A. in Kempf , “in many cases the ‘wait and see’ approach is the most prudent course to follow”: at para. 43 (9). As the trial unfolds, the trial judge becomes better able to assess the capacity of the self-represented party to present the case, whether as a plaintiff or a defendant. While remaining mindful of the substantive but not absolute right to a trial by jury, the trial judge then is positioned to determine whether justice to the parties would be better served by dismissing or retaining the jury. [171] While I recognize that the right to a jury trial in a civil action has been recognized as fundamental, it is not absolute and must sometimes yield to practicality. I should not be understood as stating that the presence of a self-represented litigant should invariably lead to the dismissal of a civil jury. In many if not most cases, a trial judge should be able to fairly manage a civil jury trial with a self-represented litigant, with the willing assistance of counsel acting in the best traditions of officers of the court. [172] In my view, the trial judge erred in failing to revisit his decision not to strike the jury. [173] The appellant asks that this court order the case to be retried by a judge sitting without a jury. This court has from time to time reversed a trial judge for striking a jury notice, directing a new trial before a judge and jury: see e.g. Kempf, at para. 78. While s. 134(1) of the Courts of Justice Act gives this court broad jurisdiction to make remedial orders, I have found no cases in which this court has directed that a new trial proceed without a jury. In my view the prudent response to the appellant’s request is to refuse the order she seeks and to leave it to the trial judge to determine whether the jury should be discharged should a new trial proceed. (6) The Threshold Decision [174] I have outlined above the skewed orientation in the evidence that went to the jury. This orientation also made its way into the trial judge’s threshold decision. In the threshold motion, the trial judge “incorporate[d] by reference the review of the evidence in [the] jury charge”: at para. 6. Although he did not otherwise refer to the opinion of Dr. Sanchez, it underpinned the trial judge’s basic approach. Because some of the best evidence that supported the statutory accident benefits settlement was excluded by the trial rulings, there was little to oppose the defence’s evidence. Dr. Sanchez’s opinion also provided the trial judge with a lens through which he looked askance at the other medical evidence Ms. Girao led. Because of the basic unfairness that permeated the trial, I would set aside the ruling on the threshold motion. VI. Disposition [175] At trial, the appellant functioned as a legally-untrained, self-represented, non-English speaking litigant in testifying, examining and cross-examining through a Spanish interpreter. She was faced with a phalanx of defence counsel, two representing Ms. Cunningham, and two representing Allstate Insurance Company of Canada.  The trial was 20 days long, involved many witnesses, and considered complex medical evidence. [176] Ms. Girao was entitled to but did not get the active assistance of the trial judge whose responsibility it was to ensure the fairness of the proceeding. As a self-represented litigant, she was also entitled to, but did not get, basic fairness from trial defence counsel as officers of the court. The trial judge was also entitled to seek and to be provided with the assistance of counsel as officers of the court, in the ways discussed above. This did not happen. [177] I would allow the appellant’s appeal, set aside the judgment and orders, and order a new trial. I would award the costs of this appeal and of the trial to the appellant, including her disbursements. If the parties cannot agree on the quantum the appellant may file a written submission no more than five pages in length, in addition to receipts for disbursements, within 10 days of the date of this decision, and the respondent may respond within an additional 10 days. Released: April 21, 2020 [1] Benefits actions were abolished by Schedule 3 of the Fighting Fraud and Reducing Automobile Insurance Rates Act , 2014, S.O. 2014, c. 9. It came into force on January 1, 2015. [2] Effective October 1, 2014, the Law Society approved new Rules of Professional Conduct , modelled on the Federation of Law Societies of Canada's Model Code of Professional Conduct .

COURT OF APPEAL FOR ONTARIO CITATION: IAP Claimant H-15019 v. Wallbridge, 2020 ONCA 270 DATE: 20200428 DOCKET: C66737 Simmons, Pepall and Trotter JJ.A. BETWEEN IAP Claimant H-15019 Respondent (Plaintiff) and P. James Wallbridge , Lindsy McNicoll, Wallbridge, Wallbridge and The Attorney General of Canada Appellants (Defendants) Geoffrey D.E. Adair, Q.C., for the appellants W. Cory Wanless, for the respondents Catherine A. Coughlan, for the Attorney General of Canada Heard : February 4, 2020 On appeal from the order of Justice Robbie D. Gordon of the Superior Court of Justice, dated March 13, 2019. REASONS FOR DECISION [1] The main issue on appeal is whether the motion judge erred in dismissing a motion brought by the appellant lawyers under r. 21.01(3)(d) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, to dismiss the respondent's action against them as frivolous and vexatious and an abuse of process. On the motion, the appellants asserted that the respondent’s action was barred by a release and cause of action bar contained in a settlement agreement approval order. The motion judge found that the respondent’s action is not barred and dismissed the motion. For the reasons that follow, we dismiss the appeal. Background [2] The respondent is a member of Fort Albany First Nation and a survivor of St. Anne's Indian Residential School. He is also a class member of one of the Indian Residential Schools Survivors’ Class Actions that was settled subject to court approval in May 2006 by the Indian Residential Schools Settlement Agreement (the “IRSSA”). The IRSSA was approved by court order dated December 15, 2006 (the “Settlement Approval Order”). Among other things, the IRSSA established the Independent Assessment Process (“IAP”) as a modified adjudicative process for addressing claims and awarding compensation arising from physical, sexual or psychological abuse suffered by Indian Residential School survivors: Fontaine v. Canada (Attorney General) , 2017 ONSC 2487, at para. 57. [3] The respondent retained the appellant lawyers in 2009 to bring an IAP claim on his behalf. His initial claim was dismissed, as was a subsequent review, because his evidence was found not sufficiently reliable to meet the burden of proof. Eventually, the respondent retained a new lawyer who obtained a new hearing that resulted in a July 18, 2017 award granting the respondent significant compensation for what was found to be repeated serious abuse. [4] On August 31, 2017 the respondent commenced an action against the appellants, another lawyer, and The Attorney General of Canada (“Canada”) for psychological harm he claims he suffered, not because of his mistreatment at St. Anne's, but rather as the result of:  being disbelieved, the initial dismissals of his IAP claim and review, and having to undergo a further hearing. As against the lawyers, the respondent’s action is based on breach of contract, breach of fiduciary duty and negligence. As against Canada, the respondent’s action alleges breaches of Canada’s obligations under the IRSSA, the Settlement Approval Order and related orders to disclose documents and compile reports relating to St. Anne’s prior to his initial IAP hearing and review that were relevant to his IAP claim. [5] The Settlement Approval Order contained a release and cause of action bar in favour of the Indian Residential Schools Class action defendants and other released organizations (collectively the “Class Action Defendants”). Under paragraph 15 of the Settlement Order, Indian Residential Schools Class Action class members (the “Class Members”) released the Class Action Defendants, including Canada, from claims “in relation to an Indian Residential School or the operation generally of Indian Residential Schools” (the “paragraph 15 release”). [6] Paragraph 19 of the Settlement Order barred Class Members from commencing proceedings that might give rise to claims for contribution and indemnity or similar relief against Class Action Defendants in relation to the released claims (the “paragraph 19 cause of action bar”). [7] Relying on the paragraph 15 release and the paragraph 19 cause of action bar, the appellants moved to have the respondent’s action against them dismissed as frivolous and vexatious and an abuse of process. As of the date of the motion, the appellants had not sought contribution or indemnity from Canada. However, pleadings had not closed and the appellants relied on the language of the paragraph 19 cause of action bar precluding proceedings against any person who “might” claim contribution and indemnity against the Class Action Defendants. [8] In a motion heard the same day, Canada moved to have the action dismissed as an abuse of process based on the paragraph 15 release (the “Canada motion”). [1] In addition, Canada argued that the issues in the action against it had already been litigated as part of the respondent’s IAP proceeding. In the alternative, Canada asked that the action against it be stayed pending application to the Eastern Administrative Judge under the Court Administration Protocol to the Settlement Order. Canada asserted that under the terms of the Settlement Order, the respondent required leave to commence the action and, in any event, the action had to be initiated by a Request for Directions as it involved implementation or enforcement of the IRSSA. [9] In separate reasons released on the respective motions, the motion judge determined that the respondent’s action against Canada is not barred by the paragraph 15 release. However, in his reasons on the Canada motion, he stayed the respondent’s action against Canada pending further order of the Eastern Administrative Judge. The motion judge found the action against Canada involved implementation and enforcement of the IRSSA and therefore should have been initiated by a Request for Directions. [10] In his reasons on the appellant’s motion, the motion judge also found  that the respondent’s claim against the appellants is not barred by the paragraph 19 cause of action bar and dismissed the appellants’ motion for a dismissal of the action as against them. [11] The appellants appeal from the motion judge’s order dismissing their motion. Canada has not appealed from the motion judge’s order made on the Canada motion, nor has the formal order relating to its motion been taken out. Although counsel for Canada appeared at the oral hearing of this appeal and responded to questions from the panel, Canada did not file a factum and took the position it was not a party to the appeal. The Paragraph 15 Release and Paragraph 19 Cause of Action Bar [12] As paragraphs 15 and 19 of the Settlement Approval Order are central to the issue on appeal, we set them out in full. The paragraph 15 release reads as follows: THIS COURT ORDERS AND DECLARES that, subject to the provisions of the Agreement, and in particular, section 4.06 thereof, each Class Member and his or her heirs, personal representatives and assigns or their past and present agents, representatives, executors, administrators, predecessors, successors, transferees and assigns, have released and shall be conclusively deemed to have fully, finally and forever released the Defendants and the Other Released Church Organizations and each of their respective past and present parents, subsidiaries and related or affiliated entities and their respective employees, agents, officers, directors, shareholders, partners, principals, members, attorneys, insurers, subrogees, representatives, executors, administrators, predecessor, successors, heirs, transferees and assigns from any and all actions, causes of action, common law and statutory liabilities, contracts, claims and demands of every nature or kind available, asserted or which could have been asserted whether known or unknown including for damages, contribution, indemnity, costs, expenses and interest which they ever had, now have or may have hereafter have [ sic ], directly or indirectly or any way relating to or arising directly or indirectly by way of any subrogated or assigned right or otherwise in relation to an Indian Residential School or the operation generally of Indian Residential Schools and this release includes any such claim made or that could have been made in any proceeding including the Class Actions and including claims that belong to the Class Member personally, whether asserted directly by the Class member or by any other person, group or legal entity on behalf of or as a representative for the Class Member. [Emphasis added.] [13] The paragraph 19 cause of action bar reads as follows: THIS COURT ORDERS AND DECLARES that each Class Member and each of his or her respective heirs, executors, administrators, personal representatives, agents, subrogees, insurers, successors and assigns shall not make any claim or take any proceeding against any person or corporation, including the Crown, in connection with or related to the claims released pursuant to paragraph 15 of this judgment, who might claim or take a proceeding against the Defendants or Other Released Church Organizations, in any manner or forum, for contribution or indemnity or any other relief at common law or in equity or under any other federal, provincial or territorial statute or the applicable rules of court . A Class Member who makes any claim or takes any proceeding that is subject to this paragraph shall immediately discontinue such claim or proceeding and this paragraph shall operate conclusively as a bar to any such action or proceeding. The Motion Judge’s Reasons on the Appellants’ Motion [14] In his reasons on the appellants’ motion, the motion judge found that it is “clear from the nature of the allegations against [the appellants] and Canada that [the appellants] might claim contribution or indemnity from Canada”. However, he concluded that the respondent’s action was not barred by the Settlement Approval Order essentially for two reasons. [15] First, although the language of the paragraph 15 release was broad and general, in the motion judge’s view, causes of action and damages were treated differently. While the release specifically included future damages, it did not include causes of action arising in the future. He said: The release at paragraph 15 of the Approval Order, when speaking to causes of action, provides for the release of “…any and all actions, causes of action asserted or which could have been asserted whether known or unknown… and this release includes any such claim made or that could have been made in any proceedings…”. It does not specifically include causes of action arising in the future. This is to be contrasted with the release provisions pertaining to damages, which provide for the release of “damages…which they ever had, now have or may hereafter have, directly or indirectly…”. [Emphasis in the original.] [16] Thus, he concluded that the wording of the paragraph 15 release “does not include causes of action which arise after the effective date of the release even if in some way related to an Indian Residential School or the operation generally of Indian Residential Schools”. [17] Second, the motion judge held that even if he was incorrect in his interpretation of the language of paragraphs 15 and 19, a release of claims for solicitor negligence in the prosecution of IAP claims could not reasonably have been within the contemplation of the parties when the IRSSA was made. In reaching this conclusion the motion judge adopted language from the respondent’s factum: It is inconceivable that in 2006, in the context of settling a class action brought by Indian Residential survivors against those who established and operated Indian Residential Schools … for the various abuses and harms suffered by the survivors when they were students at these schools [the parties] intended to draft a release that provides total and blanket immunity to future IAP claimant lawyers for malpractice claims that would deprive survivors from their right to sue their IAP lawyers The Appellants’ Position on Appeal [18] On appeal, the appellants acknowledge that the motion judge correctly set out the principles that apply to the interpretation of a release. Nonetheless they assert he made extricable errors of law and a palpable and overriding error of fact in his interpretation. [19] First, the appellants say the motion judge erred by failing to consider the words of paragraph 15 in the context of the factual matrix, namely, the IRSSA, which led to the Settlement Approval Order. [20] The appellants point to several provisions of the IRSSA, which they say make it clear that the parties intended to release the Class Action Defendants not only from existing causes of action, but also from any causes of action arising in the future in any way arising in relation to an Indian Residential School or the operation of Indian Residential Schools, whether directly or indirectly. This, they say, clearly evidences an intent to release the respondent’s claim against Canada. [21] For example, the appellant’s point to the following language in the preamble of the IRSSA which they say patently contemplates a release of future causes of action: the Parties agree that all actions, causes of action , liabilities, claims and demands whatsoever of every nature or kind for damages, contribution, indemnity, costs, expenses and interest which any Class Member … ever had, now has or may hereafter have arising in relation to an Indian Residential School or the operation of Indian Residential Schools … will be finally settled and the Releasees will have no further liability except as set out in this Agreement. [Emphasis added.] [22] Similarly, Article 4.06 (d) reads as follows: 4.06 Approval orders will be sought: (d) ordering and declaring that … all class members … have released each of the defendants … from any and all actions they have, may have had or in the future may acquire against any of the defendants arising in relation to an Indian Residential School or the operation of Indian Residential Schools. [Emphasis added.] [23] Further, Article 11.01(1)(a) stipulates: 11.01(1) The Approval Orders will declare that in the case of Class members Each Class Member … has fully, finally and forever released each of the Releasees f rom any and all actions, causes of action claims and demands of every nature or kind available, asserted or which could have been asserted whether known or unknown including for damages, contribution, indemnity, costs, expenses and interest which any Class Member … ever had, now has, or may hereafter have , directly or indirectly arising from or in any way relating to … an Indian Residential School or the operation of Indian Residential Schools … [Emphasis added.] [24] By failing to consider these provisions when interpreting the paragraph 15 release, the appellants say the motion judge committed an extricable error of law. [25] Second, the appellants say the motion judge erred in failing to consider the whole of the wording of paragraph 15 when interpreting it. In particular, they say the motion judge erred in failing to take account of the words “contribution and indemnity” in paragraph 15. Those words they say make it clear that the future claims intended to be released by the phrase "including for damages, contribution, indemnity … which they ever had, now have or may have hereafter have [ sic ]” were not limited to claims for damages. Rather they modified the earlier phrase "cause of action". Read as a whole, the wording of the release makes it clear that post-agreement causes of action against Canada, such as the respondent’s claim against Canada, were intended to be released. [26] Finally, the appellants argue that the motion judge erred in considering whether a solicitor’s negligence claim was within the contemplation of the parties when the Settlement Approval Order was made. As the paragraph 19 cause of action bar is derivative of the paragraph 15 release, they say the only relevant claim for consideration is the claim against Canada. In relation to that claim, they argue that the Settlement Approval Order implemented the IRSSA, which documented a complex settlement that unequivocally released all claims, including claims arising post-IRSSA, whether arising directly or indirectly out of Indian Residential Schools – all in exchange for a comprehensive compensation process funded by Canada. [27] Particularly in light of the oversight levels, such as the Request for Directions process that resulted in an order for Canada to produce documents, the appellants say there is no basis for concluding that a breach of duty or slip by Canada in performing its obligations under the IRSSA was not within the contemplation of the parties. In any event, what was within the contemplation of the parties must turn on the language of the IRSSA and Settlement Approval Order within the context of the factual matrix. Here they say there is no basis for concluding the claim against Canada was not within the contemplation of the parties. Discussion [28] As we have said, the appellants acknowledge that the motion judge correctly set out the principles applicable to interpreting a release. The motion judge relied on this court’s decision in Biancaniello v. DMCT LLP , 2017 ONCA 386, 138 O.R. (3d) 210, to summarize those principles. [29] As acknowledged by this court, the guiding principle was set out in London and South Western Railway v. Blackmore (1870), L.R. 4 H.L. 610: “The general words in a release are limited always to the thing or those things which were specifically in the contemplation of the parties at the time the release was given.” [30] In Biancaniello , this court set out five principles for determining what was in the contemplation of the parties when interpreting a broadly worded release: 1. One looks first to the language of the release to find its meaning. 2. Parties may use language that releases every claim that arises, including unknown claims. However, courts will require clear language to infer that a party intended to release claims of which it was unaware. 3. General language in a release will be limited to the thing or things that were specifically in the contemplation of the parties when the release was given. 4. When a release is given as part of the settlement of a claim, the parties want to wipe the slate clean between them. 5. One can look at the circumstances surrounding the giving of the release to determine what was specially in the contemplation of the parties. [31] In his related reasons on the Canada motion, apart from his conclusion that the paragraph 15 release did not release claims for factual situations that had not yet occurred, the motion judge gave one further reason for saying the respondent’s claim against Canada was not barred by the paragraph 15 release. [32] At para. 22 of his reasons on the Canada motion, the motion judge opined that it could not have been the intention of the parties to release Canada from obligations it was assuming under the IRSSA. He said: Even if I am incorrect in this interpretation of the release provisions, it is my view that the release of all claims relating to compliance by Canada of its obligations under the IRSSA could not reasonably have been in the contemplation of the parties . Surely, claimants cannot, by the same agreement that imposes obligations on Canada, be taken to have released it from those very obligations . [Emphasis added.] [33] We agree with the motions judge that compliance by Canada of its obligations under the IRSSA would not be encompassed by the release. This conclusion is dispositive of this appeal. [34] For ease of reference, we repeat the central language of the paragraph 15 release: THIS COURT ORDERS AND DECLARES that, subject to the provisions of the Agreement, and in particular, section 4.06 thereof, each Class Member and his or her heirs, personal representatives and assigns have released and shall be conclusively deemed to have fully, finally and forever released the Defendants from any and all actions, causes of action, common law and statutory liabilities, contracts, claims and demands of every nature or kind available, asserted or which could have been asserted whether known or unknown including for damages, contribution, indemnity, costs, expenses and interest which they ever had, now have or may have hereafter have [ sic ], directly or indirectly or any way relating to or arising directly or indirectly by way of any subrogated or assigned right or otherwise in relation to an Indian Residential School or the operation generally of Indian Residential Schools and this release includes any such claim made or that could have been made in any proceeding including the Class Actions [35] The language is undoubtedly broad. That said, the key concept is that the claims released are those “arising directly or indirectly … in relation to an Indian Residential School or the operation generally of Indian Residential Schools”. Here the respondent’s claim against Canada is not a claim in relation to an Indian Residential School or the operation of Indian Residential Schools, either directly or indirectly. Rather, it is a claim for psychological harm suffered by the respondent because his evidence was adjudged insufficiently reliable to meet the burden of proof in an alternative adjudicative process as a result of Canada’s alleged failure to satisfy its disclosure obligations under the IRSSA. [36] As the motion judge said, it cannot have been within the reasonable contemplation of the parties that Class Members would give up any rights they could have arising from Canada’s failure to fulfill its obligations under the IRSSA or the Settlement Approval Order. [37] Based on the foregoing reasons, we conclude that the respondent’s claim against Canada is not barred by the paragraph 15 release, and, as a corollary to that conclusion, that the respondent’s claim against the appellants is not barred by the paragraph 19 cause of action bar. [38] During the appeal hearing, the panel raised questions about the motion judge’s finding in the Canada motion that the respondent’s claim against Canada is not barred by the paragraph 15 release, in particular, whether that finding is final for the purpose of the respondent’s action against Canada, and the impact, if any, of that finding and Canada’s failure to appeal that finding on this appeal. [39] The parties did not agree on whether that finding is final for the purpose of the respondent’s action against Canada. Assuming the finding is final, we have reached the same conclusion as the motion judge in any event. Even if the finding is not final, as a party to the same proceeding, Canada attended but chose not to seek the right to participate in this appeal. [40] Finally, we note that the parties did not address whether the absence of privity of contract would prevent the appellants from relying on the release and cause of action bar: Van Patter v. Tillsonburg District Memorial Hospital (1999), 45 O.R. (3d) 223 (C.A.); Owen v. Zosky , [2000] O.J. 4838 (C.A.); Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd. , [1999] 3 S.C.R. 108. Nothing in these reasons should be taken as commenting on that issue. Nor of course do we comment on the merits of the respondent’s action against the appellants or Canada. Disposition [41] Based on the foregoing reasons, the appeal is dismissed with costs to the respondent on a partial indemnity scale in the agreed upon amount of $10,000 inclusive of disbursements and applicable taxes. “Janet Simmons J.A.” “S.E. Pepall J.A.” “Gary Trotter J.A.” [1] The respondent filed a copy of the motion judge’s reasons on the Canada motion in a respondent’s compendium. However, the Canada motion record was not before us and we have discerned the relief sought based only on the motion judge’s reasons.

COURT OF APPEAL FOR ONTARIO CITATION: Leitch v. Novac, 2020 ONCA 257 DATE: 20200417 DOCKET: C66681 Lauwers, Hourigan and Thorburn JJ.A. BETWEEN Jennifer Ann Leitch Applicant (Appellant) and Anthony Charles James Novac, Michael Novac, Nelly Novac, Sonco Group Inc., The Novac 2011 Family Trust, The Novac Family Trust (2013) , John McClure and David Tam Respondents ( Respondents ) Linda Rothstein, Dan Rosenbluth, Ilana Zylberman Dembo, Sheila Gibb and Stephanie Romano, for the appellant Avra Rosen and Kelly Eckert, for the respondent, Anthony Novac Bryan Smith, Lindsey Love-Forester and Cynthia Kuehl, for the respondents, Michael Novac, Nelly Novac, Sonco Group Inc., The Novac 2011 Family Trust and The Novac Family Trust (2013) Heard: February 26, 2020 On appeal from the summary judgment order of Justice Cory A. Gilmore of the Superior Court of Justice, dated January 31, 2019, reported at 2019 ONSC 794, the costs award dated March 7, 2019, reported at 2019 ONSC 1534, and the order for security for costs and preservation of assets dated April 30, 2019, reported at 2019 ONSC 1541. Hourigan J.A.: I. Overview [1] The appellant, Jennifer Leitch, commenced an application seeking a divorce and corollary relief from her husband, the respondent, Anthony Novac. She later amended her application to seek damages in conspiracy from Anthony [1] , his father Michael Novac, his mother Nelly Novac, certain family trusts, and a related corporation, Sonco Group Inc. (“Sonco”). Jennifer alleged that the respondents had conspired to keep money out of Anthony’s hands specifically for the purpose of reducing her family law entitlements. [2] The respondents to the conspiracy claim (apart from Anthony) brought a motion for partial summary judgment. In her responding motion, Jennifer requested summary judgment on the conspiracy claim declaring the existence of the conspiracy and that damages be assessed at trial. The hearing lasted nine days. Partial summary judgment was granted, dismissing Jennifer’s conspiracy claim as not raising a genuine issue requiring trial. The motion judge concluded that while the appellant could not succeed in her conspiracy claim, she could still pursue at trial a claim to impute additional income to Anthony for the purpose of determining support. [3] Jennifer appeals from the order granting partial summary judgment, as well as the costs award and an order for security for costs and the preservation of assets. [4] These reasons explain why I would allow the appeal. In summary, the motion judge erred in law by bifurcating the issues and in her analysis of the tort of conspiracy. She also made a palpable and overriding error of fact about critical evidence that Jennifer relied on in support of her conspiracy claim and did not advert to other important evidence in her analysis. [5] The motion judge’s costs orders, including the order for security for costs and related relief, result from her partial summary judgment order and accordingly cannot stand. II. Facts (a) Background [6] This is a factually complex case with multiple allegations. Recognizing that I would order a trial and it will be for the trial judge to make factual findings, the following very brief factual summary is offered to provide context for the issues to be determined on the appeal. [7] Jennifer and Anthony cohabited for 17 years. They married on May 10, 1997, and separated on September 29, 2012. They have 15-year-old twins. Jennifer was a litigator for nine years of the marriage. After Anthony sold an on-line gaming platform for $11.5 million, Jennifer left litigation to pursue a graduate legal education. She then began to teach law part-time at Osgoode Hall and the University of Toronto. Since then, her annual income has typically been less than $30,000. [8] Anthony is an entrepreneur who has been working in the casino and gaming industry for over 20 years. He has experience managing casinos and casino resorts. From 2009 to date, Anthony has done paid work for Sonco and its related corporations. Michael incorporated Sonco and it holds various real estate and gaming businesses. Anthony occupies senior positions with Sonco and other related entities. [9] By the time the parties separated, their wealth had been significantly depleted. Jennifer sold the matrimonial home, which she owned, and she retained the net sale proceeds from the house in the amount of $1,066,361. [10] As the matrimonial litigation unfolded, Anthony disclosed an income of $120,000 per year plus $5,000 per year for director fees. Jennifer’s position was that Anthony had undisclosed additional income or an undisclosed ownership interest in the casino business. (b) Alleged Conspiracies [11] Jennifer alleged six separate tortious conspiracies. On the appeal, she focuses her submissions on the alleged conspiracy related to the management of the River Cree Casino. The background of that project is as follows. [12] In 2013, Michael was approached to manage the River Cree Casino in Alberta. The River Cree Casino is owned by the Enoch Cree Nation. Michael incorporated Sonco Gaming Management Inc. and, with Anthony's assistance, entered into a five-year contract with River Cree Casino. Michael and Anthony had an informal oral agreement that Anthony would be the project manager and receive 40% of the management fees that were to be paid to Sonco Gaming Management Inc. over the life of the contract. In 2015, the Enoch Cree Nation decided to buy out the contract and manage the casino itself. It paid Sonco $5.75 million as part of the transaction (the “buyout”). [13] There are two disputed events that Jennifer alleges are at the heart of the River Cree Casino conspiracy. [14] The first is Michael’s decision to keep all of the proceeds from the buyout. The buyout price represented the net present value of Sonco Gaming Management Inc.’s fees. Jennifer argues that, had the contract been carried out, Anthony would have received 40% of those fees. However, Anthony apparently received none of the proceeds of the buyout. Jennifer’s position is that Anthony had equal control over this project with his father and was integral in negotiating and structuring the buyout. [15] Jennifer asserts that Anthony should have been paid at least 40% of the buyout. She pleads that the respondents conspired to temporarily divert Anthony’s share of the proceeds so that she would receive less in support payments. Three documents are critical to this theory. [16] The first two documents are memos to file drafted by Sonco’s external accountant, Keith MacIntyre. Both memos were dated June 22, 2015, and are marked “DRAFT,” with the reference line “Sonco Alta Sale.” They were copied to MacIntyre’s partner at Grant Thornton LLP, John Roy. [17] Memo #1 lists “steps”. Number eight is this: 8. Michael Novac takes his tax free proceeds and lends to Antony [ sic ] his portion as a loan that will be forgiven when Anthony’s divorce is final. [18] Seven more steps are listed under the heading “Alta and Estate”. Numbers six and seven are as follows: 6.  Michael Novac takes his tax free proceeds and lends to Antony [ sic ] his portion as a loan that will be forgiven when Anthony's divorce is final; This reduces Michael Novac’s estate tax. 7. Michael Novac takes his tax free proceeds and lends to Antony [ sic ] his portion as a loan that will be forgiven when Anthony’s divorce is final; [19] Memo #2 is similar to the second part of Memo #1, with a few changes and additions. It was addressed to the Chief Financial Officer of Sonco, Richard Landzatt, and copied to Michael Novac. Numbers four and five read as follows: 4. Michael Novac takes his tax free proceeds and lends to Antony [ sic ] his portion as a loan that will be forgiven when Anthony’s divorce is final; This reduces Michael Novac’s estate tax; This keeps income out of Anthony’s hands; 5.  Michael Novac takes his tax free proceeds and lends to Antony [ sic ] his portion as a loan that will be forgiven when Anthony’s divorce is final; Again this prevents income from being shown in Anthony’s hands. [20] The third critical document regarding this alleged conspiracy is an email from Landzatt to MacIntyre and Kelsi Campbell, a colleague of MacIntyre’s. It is dated August 18, 2015, which was shortly after the closing of the buyout on August 14, 2015 (the “August 18 Email”). In that email, Landzatt states: So based on this model the complete after tax cash flow, both corporate and personal, will be $5,030,772? This will be the cash available personally for distribution between Michael and Anthony? They want to move some of the money now and I want to be certain that they have all the tax amounts set aside so they don’t spend/invest it. [21] The second part of the alleged River Cree Casino conspiracy is Anthony's decision to conceal management fees owing to him for the month of May 2015. In June 2015, Anthony directed Sonco employees not to distribute the May 2015 management fees due to him under his agreement with Michael. Anthony delayed disclosing the May 2015 fees as income to Jennifer. She did not discover the existence of these undisclosed fees until over two years later. [22] Jennifer alleges that Anthony’s failure to disclose his income was compounded by a series of misleading or inaccurate disclosures by Anthony, Michael, and Sonco. Anthony concedes that he directed Sonco employees to hold back his May 2015 payment. However, he asserts that he did not conspire with any party to hide this income. III. Decision below [23] The motion judge held that the conspiracy claim was appropriate for partial summary judgment. In addition to the extensive record before her, there had been five days of cross-examination on Michael and Anthony's evidence. She found that “all parties have put their best foot forward” and that summary judgment would allow streamlining of the remaining issues for trial. [24] The motion judge then set out the elements of the tort of conspiracy and referred to Frame v. Smith , [1987] 2 S.C.R. 99, in which the Supreme Court ruled that the tort did not apply in the context of custody or access claims. She went on to state that the same policy concerns from Frame applied to the support context and that the comprehensive legislation and guidelines contained in the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp.), Family Law Act , R.S.O. 1990, c. F.3, Federal Child Support Guidelines , SOR/97-175, and the Spousal Support Advisory Guidelines applied and provided a comprehensive code for dealing with support issues relating to both spouses and children. [25] Ultimately, the motion judge concluded that there was no unlawful conspiracy on the facts of the case and made the following findings: a. There is no evidence of an agreement; b. Inaccurate representations by Anthony about his income were not made in concert with Michael; c. The steps taken by Michael were not intended either actually or foreseeably to harm Jennifer; and d. None of the actions of Michael or Anthony were wrong at law. [26] The motion judge also concluded that Jennifer is unable to establish damages, at para. 313: While Anthony is a trustee of the 2013 Trust, Jennifer is unable to establish that this entitled him to any portion of the River Cree buyout proceeds.  Notwithstanding the two memos drafted by [Keith MacIntyre], there is insufficient evidence to show that any steps were taken with the intent of harming Jennifer.  In fact, there is evidence that advice which might have been interpreted as an agreement to keep money away from Jennifer was never acted upon nor was it even considered by Michael.  Michael decided to retain the proceeds, as it was his company that entered into the agreement with the Nation.  He had the right to act in that manner. [27] Regarding costs, the motion judge awarded $300,000 to Anthony for the costs of the summary judgment motion and the variation motion he brought to reduce his support payments, of which half would be enforceable as fees related to the payment/collection of support. She also awarded $40,000 in costs to Anthony to offset a costs award made against him for a November 2017 disclosure motion. The motion judge awarded $900,000 to the remaining respondents for the costs of the summary judgment motion. [28] After the motion judge released her ruling on the summary judgment motion, but before she issued her decision on costs, Anthony brought a motion for a preservation and non-dissipation order under ss. 12 and 40 of the Family Law Act . The remaining respondents also brought a motion for security for costs seeking an order that Jennifer preserve her assets. The motion judge released her ruling on these motions one day after she released her decision on costs, granting an order that Jennifer preserve all of her assets as security for costs. This order effectively freezes all of Jennifer’s assets. In so ruling, the motion judge relied on rule 24(13)(2) of the Family Law Rules , R.S.O. 1990, c. C.43, which allows an order for security for costs if “[a] party has an order against the other party for costs that remains unpaid, in the same case or another case.” IV. analysis 1. Did the motion judge err in law in awarding partial summary judgment? [29] Partial summary judgment is reserved for issues that may appropriately be bifurcated without creating a material risk of inconsistent outcomes, and that may be dealt with expeditiously and cost-effectively: see Butera v. Chown, Ciarns LLP , 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 27-34. [30] The motion judge’s analysis of this case’s suitability for summary judgment spans four short paragraphs. That analysis opens with the statement, “Not much needs to be said on whether this case is suitable for summary judgment.” She then refers to the extensive documentary evidence as well as the oral evidence of Anthony and Michael and states, “There is more than enough material on which the court may rely in order to make findings of fact and credibility.” The motion judge also comments that dealing with the conspiracy claim by summary judgment will allow for a streamlining of any remaining issues for trial, clear the way for settlement of issues put on hold until determination of the conspiracy issue, and would support the policy and principles articulated in Hryniak v. Mauldin , 2014 SCC 7, [2014] 1 S.C.R. 87, as well as rule 2(3) of the Family Law Rules , of saving expense and time and dealing with cases fairly and justly and in a manner appropriate to their complexity and importance. [31] At no point does the motion judge engage with the question of whether bifurcating the issues is appropriate. Specifically, the reasons are conspicuously silent as to whether there is an inherent risk here of inconsistent findings. I appreciate that the parties both took the position before her that partial summary judgment was appropriate. However, the motion judge was still required to turn her mind to the possibility of a material risk of inconsistent outcomes. [32] Jennifer asserts that the risk of inconsistent outcomes here is genuine because “the factual footprint of the conspiracy claim is substantially the same as the support issues that remain for trial.” Her submission is that, by finding that Michael had the right to allocate to himself the entire proceeds of the buyout, but also that it was open to a trial judge to impute to Anthony part of those proceeds as a remedy for the artificiality of Michael’s allocation to himself, the motion judge created a material risk of inconsistent results. [33] I agree with that submission. [34] For Jennifer to convince a court that it is appropriate to attribute or impute additional income to Anthony, she would need evidence of Sonco's earnings as well as proof that Anthony had indirectly received some of it, would have received a portion of it but for the divorce, and/or would be receiving it in the future. All of this was precisely what Jennifer alleged the respondents were complicit in concealing from her. Notably, despite Jennifer’s requests, Anthony did not disclose Sonco’s business records when requested as part of the family law proceedings. It was only after Michael and Sonco were named in her conspiracy claim that she received the information that could form the basis of an assertion that additional income should be attributed to Anthony. [35] Section 18(1) of the Federal Child Support Guidelines provides: Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 [the “Total income” in the T1 General form issued by the Canada Revenue Agency] does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the  situations described in section 17 [Pattern of income] and determine the spouse’s annual income to include (a)     All or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or (b)     An amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income. [36] Attribution of income under s. 18 of the Federal Child Support Guidelines can depend on the degree of control exercised by the spouse over a corporation. Corporate income attribution may be appropriate even where the spouse does not control the corporation but where, for example, control is held by a cooperative relative, and there is a past practice of the spouse receiving compensation: see Potzus v Potzus , 2017 SKCA 15, at paras.19, 56. Thus, the very same evidence brought in support of the conspiracy allegation would be relevant to a request to attribute additional income for support purposes. [37] The motion judge mentions several times that it will be open to Jennifer to ask the trial judge to attribute or impute more income to Anthony than he has declared. This is no more clearly stated than at para. 287 of her reasons: While I agree that the buyout proceeds could be characterized as a lump sum of income derived from a future stream of payments, and that therefore Anthony may be entitled to a portion of it, conspiracy is too blunt an instrument to use to get at this for support purposes.  A trial judge may well find that a portion of the buyout proceeds should be characterized as income for support purposes and that income would form part of the retroactive calculation of support.  The Family Law Rules and the Child Support Guidelines have plenty of tools for the court to choose from to achieve those ends. [38] For Anthony to be entitled to a portion of the buyout directly contradicts the motion judge’s conclusion earlier in para. 287 on the conspiracy claim that “Anthony had no ownership interest in the buyout contract”. It also directly contradicts her conclusion at para. 313, already mentioned above, that, “Michael decided to retain the proceeds, as it was his company that entered into the agreement with the Nation. He had the right to act in that manner”. [39] The evidence about Anthony’s interest in Sonco should have been considered alongside Jennifer’s claims for support. The risk of inconsistent findings actually materialized in the motion judge’s own inconsistent statements relating to the conspiracy claim and her assertions about avenues that remained open to Jennifer in her family law litigation. [40] In short, this was not an appropriate case for partial summary judgment. The motion judge erred in law by failing to consider the substantial risk of inconsistent outcomes before bifurcating the proceeding. 2. Did the motion judge err in law in her analysis of the tort of conspiracy? [41] The motion judge articulated a concern about the far-reaching implications of extending the tort of conspiracy where family members are involved. She worried that if the damages Jennifer requested were permitted, policy concerns would arise about claims for damages in every case where a payor spouse, in conjunction with a new spouse/relative/business partner, did not fully disclose income, unreasonably deducted expenses, or received income in the form of cash or goods. Her concern was that conspiracy claims would “become the new norm.” She concluded that, given the existing mechanisms for recovery, damages for conspiracy “would effectively be a form of punitive damages”. According to the motion judge, any concerns about bad faith conduct can be remedied by imputing income to the payor for the purposes of calculating support obligations or through costs awards. [42] In rejecting the availability of the tort of conspiracy in the family law context, the motion judge was clearly motivated by the view that the family law statutory scheme creates a complete code for addressing all issues related to support and that there are sound policy reasons not to permit additional tort claims. In my view, it is not accurate to say, as the respondent does, that the trial judge’s analysis of the availability of the tort was obiter . In fact, it obviously motivated her analysis of whether the tort had been established. Despite her stated acceptance that the case law does not preclude the application of the tort of conspiracy in family cases, her approach was that all claims should be determined under the family law regime and this approach imbued her analysis of whether the tort had been established. [43] While the motion judge found that the tort had not been established on the facts even “apart from any policy considerations”, one of two reasons she provided for her conclusion that “the facts of this case are not ripe for its application” was her concern “about the far-reaching implications of extending the tort of conspiracy where family members are involved”. The motion judge’s statement that “conspiracy is too blunt an instrument to use to get at [the buyout proceeds] for support purposes” suggests that she went beyond a mere finding that the test for conspiracy could not be satisfied on these facts. [44] As the Supreme Court suggested in Leskun v. Leskun , 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 34, nondisclosure is the cancer of family law. This is an apt metaphor. Nondisclosure metastasizes and impacts all participants in the family law process. Lawyers for recipients cannot adequately advise their clients, while lawyers for payors become unwitting participants in a fraud on the court. Judges cannot correctly guide the parties to a fair resolution at family law conferences and cannot make a proper decision at trial. Payees are forced to accept an arbitrary amount of support unilaterally determined by the payor. Children must make do with less. All this to avoid legal obligations, which have been calculated to be a fair quantification of the payor's required financial contribution. In sum, nondisclosure is antithetical to the policy animating the family law regime and to the processes that have been carefully designed to achieve those policy goals. [45] There is a related malady that often works hand-in-hand with nondisclosure to deny justice in family law proceedings. The problem is what I will call “invisible litigants.” These are family members or friends of a family law litigant who insert themselves into the litigation process. They go beyond providing emotional support during a difficult time to become active participants in the litigation. Usually their intentions are good, and their interference makes no difference in the ultimate result. However, sometimes they introduce or reinforce a win-at-all-costs litigation mentality. These invisible litigants are willing to break both the spirit and letter of the family law legislation to achieve their desired result, including by facilitating the deliberate hiding of assets or income. [46] If we were to accept the analysis of the motion judge, co-conspirators who engage in such behaviour could do so with impunity. Contrary to the observation of the motion judge, conspiracy is not a “blunt instrument” to respond to this misconduct. It is a valuable tool in the judicial toolbox to ensure fairness in the process and achieve justice. If the tort of conspiracy is not available, then co-conspirators have no skin in the game. Their participation in hiding income or assets is a no-risk proposition. If their conduct is exposed, all that happens is that the payor will be forced to pay what is appropriately owing. If there is to be deterrence, there must be consequences for co-conspirators who are prepared to facilitate nondisclosure. [47] There is a further practical reason for permitting the use of the tort of conspiracy in family law claims. Where income or assets have been hidden with the assistance of a co-conspirator, often the family law litigant will be effectively judgment-proof. That, after all, is the whole purpose of the conspiracy. In those circumstances, the imputation of income or the inclusion of hidden assets into the net family property calculation will be a futile exercise, as the recipient cannot collect on what is owing. A judgment against a co-conspirator will often be the only means by which a recipient will be able to satisfy a judgment. [48] The motion judge also erred in law in finding that a damage claim in conspiracy “would effectively be a form of punitive damages” because the appellant would already have an imputation remedy under the family law framework. It would appear that the motion judge’s concern was that permitting multiple claims would necessarily result in double recovery. This concern is based on a misunderstanding of the law of damages. [49] Overlapping remedies arising out of the same loss are always subject to the limiting principle of double recovery. However, the risk of double recovery does not arise simply because there are two damages awards extant. It is only where a damages award is satisfied that the principle of double recovery operates to prevent recovery beyond the damages suffered: see SFC Litigation Trust v. Chan , 2019 ONCA 525, 147 O.R. (3d) 145, at para, 133. There was no risk of overcompensation on the facts of this case. [50] As noted, it is my view that this case should proceed to trial, and there is no reason why a claim in conspiracy cannot be asserted. It will be for the trial judge to decide if the appellant has established her claim on a balance of probabilities. That said, it is essential to clarify a further misconception of the law of conspiracy advanced by counsel for Michael that appears to have found favour with the motion judge. [51] Michael’s lawyer argues that the tort was not established because there was no evidence that the parties acted on the alleged agreement. By that submission, he means that there was no evidence that any money flowed from Michael to Anthony. It will, of course, be up to the trial judge to determine on a full record what Michael did with the funds. However, to be clear, a transfer of funds by loan, gift, or otherwise, is not the only way that the alleged co-conspirators could have acted in furtherance of the conspiracy. If the trial judge is satisfied that Anthony had an entitlement to funds and that a co-conspirator withheld the transfer of funds to him as part of a conspiracy with the understanding that he would receive the money at some future date, the withholding of the funds may itself be an act in furtherance of the conspiracy. It is not necessary to establish more than an acted-upon conspiracy to conceal Anthony’s entitlement. 3. Did the motion judge make a palpable and overriding error of fact and fail to advert to important evidence? [52] The palpable and overriding error of fact made by the motion judge concerned the August 18 Email. The motion judge’s analysis of that document was limited to the following, at para. 180: “ He [Michael] denied any awareness of an email from Kelsi Campbell to RL [Landzatt] advising that the closing was upcoming, and money would be available to Michael and Anthony. He does not know who Kelsi Campbell is.” [53] The email was not sent from Campbell to Landzatt, but from Landzatt to Campbell and MacIntyre. Nor could it have concerned the “upcoming” closing, as the email was sent days after the closing. At first glance, this may not seem like a significant error. However, this mistake coloured the motion judge’s analysis of this critical piece of evidence. Arguably, the email is consistent with Memo #1 and Memo #2 and suggests that, at the very least, there was an agreement that Anthony had an entitlement to a portion of the buyout proceeds. By misdescribing the August 18 Email as a communication from Campbell to Landzatt, the motion judge effectively minimized its importance. Implicit in her analysis was that Michael should not be expected to be aware of what an external accountant, who was unknown to him, had to say about the distribution of the buyout proceeds. [54] Had the motion judge correctly analyzed the August 18 Email, she would have had to consider why it appeared that Sonco’s CFO was suggesting immediately after the closing of the buyout that Anthony had an entitlement to a portion of the proceeds. She also would have been required to decide whether she should draw an adverse inference from the failure of Sonco to tender Landzatt as a witness. [55] This error was compounded by her failure to analyze in her reasons a later email, sent from Landzatt to MacIntyre and copied to Campbell, dated November 18, 2015, that included the following: He's not using the house but we are hopeful it will sell sometime soon. I'll discuss the option with Michael but there are plans to take money out of the corp in 2016 to lend Anthony....so if we dividend out the entire amount this year and sell the house next year, there will still be an ability to reduce funds withdrawn next year. So maybe best to do it for 2015 as tax rates may go up? [56] This email is at least suggestive of an ongoing intention among the alleged co-conspirators to divert funds to Anthony. The motion judge was obliged to consider this significant piece of evidence in her reasons. 4. Should the costs orders stand? [57] Given my conclusion that a new trial is needed, it is unnecessary to consider whether the motion judge erred in her costs award, or in ordering security for costs and making a preservation order. Those orders should be set aside. I would remit to the trial judge the issue of costs for the first trial. [58] Nothing in these reasons should be considered an approbation of the quantum of costs awarded or of the motion judge’s ancillary costs orders. There are aspects of these orders that are troubling. In particular, it is concerning that in making the order for security for costs and preservation of assets, the motion judge did not consider the justice of the case and whether Jennifer would be able to pursue her claims, including those on behalf of her children, in light of the order made. [59] As stated in Yaiguaje v. Chevron Corporation , 2017 ONCA 827, 138 O.R. (3d) 1, at para. 23, in a discussion of orders for security for costs , “ Courts must be vigilant to ensure an order that is designed to be protective in nature is not used as a litigation tactic to prevent a case from being heard on its merits”. In considering an order for security for costs, “the correct approach is for the court to consider the justness of the order holistically, examining all the circumstances of the case and guided by the overriding interests of justice to determine whether it is just that the order be made”: see Yaiguaje , at para. 25 . V. Disposition [60] I would allow the appeal, set aside the order granting partial summary judgment, and order that the case proceed to trial before a different judge of the Superior Court. In making that order, I would reserve the costs below to the trial judge. [61] As the appellant was entirely successful on this appeal, she is entitled to her costs of the appeal payable by the respondents on a joint and several basis. I would fix the amount of those appeal costs, in accordance with the agreement of the parties, in the all-inclusive amount of $50,000. Released: “P.L.” April 17, 2020 “C.W. Hourigan J.A.” “I agree. P. Lauwers J.A.” “I agree. Thorburn J.A.” [1] For ease of reference, the parties will be referred to by their first names.

COURT OF APPEAL FOR ONTARIO CITATION: Lum v. College of Physiotherapists of Ontario, 2020 ONCA 271 DATE: 20200429 DOCKET: M50951 and M51145 (M50815) Gillese, Brown and Huscroft JJ.A. BETWEEN Lo-Ming Lum Plaintiff (Moving Party) and College of Physiotherapists of Ontario, College of Physical Therapists of British Columbia, Unity Health Toronto as successor to St. Joseph's Health Centre, St. Joseph's Health Centre (Toronto) , Attorney General of Canada, The Honourable Harjit Singh Sajian Sajjan and The Honourable Judy Foote Defendants (Responding parties) Lo-Ming Lum, acting in person Joanna Birenbaum, for the responding party College of Physiotherapists of Ontario Kate Deakon, for the responding party Unity Health Toronto Elizabeth Ackman and Sean McGarry, for the responding party College of Physical Therapists of British Columbia Heard in writing REASONS FOR DECISION [1] Ms. Lum brings two motions to this court. They arise within the context of an action that Ms. Lum brought against the defendants in April 2018 for harm she allegedly suffered as a result of “whistleblowing” (the “Action”). BACKGROUND IN BRIEF [2] The defendants brought motions asking that the Action be dismissed. Justice Dunphy heard the motions. He found that the statement of claim was frivolous and vexatious. By order dated August 13, 2019, Dunphy J. granted the motions and dismissed the Action, without leave to amend (“Justice Dunphy’s Order”). Justice Dunphy’s Order also ordered costs against Ms. Lum and barred her from bringing any further proceedings against the defendants without leave of a judge of the Superior Court of Justice. [3] In the fall of 2019, Ms. Lum attempted to appeal Justice Dunphy’s Order to the Divisional Court. By endorsement dated September 11, 2019, Corbett J. ordered that Ms. Lum bring a motion, on notice to the parties, for leave of the court to commence an appeal. [4] Instead, Ms. Lum filed a motion in the Divisional Court seeking to set aside Corbett J.’s order of September 11, 2019. [5] By Notice of Motion dated September 16, 2019, Ms. Lum sought leave to appeal to this court from the order of Corbett J. dated September 11, 2019. [6] On September 27, 2019, Ms. Lum wrote to the Divisional Court requesting that the September 11, 2019 order of Corbett J. be revised. Justice Corbett reviewed Ms. Lum’s submissions and signed the revised order, as she had requested. A copy of the order was issued and entered on September 30, 2019. [7] On October 1, 2019, Ms. Lum wrote to the Divisional Court asking to appear before it and make oral submissions to amend the order of Corbett J. dated September 11, 2019. The court refused to book an appearance before Corbett J., and directed that she file her concerns in writing. [8] By endorsement dated October 2, 2019, Corbett J. ruled that, as he had signed Ms. Lum’s draft order and it had been issued and entered by the Divisional Court (on September 30, 2019), the matter was settled. Accordingly, he refused to entertain the motion. [9] On October 23, 2019, Ms. Lum brought a motion in this court asking for an order to set aside or vary the order of September 11, 2019. In an order dated October 23, 2019 (the “Order”), Tulloch J.A. dismissed the motion, as the proper forum for Ms. Lum’s motion was a panel of the Divisional Court. [10] Ms. Lum then brought the two motions now before the court (the “Motions”). In the first of the two Motions, Ms. Lum asks that the Order be set aside. In the second, she asks for an order dispensing with the requirement to file a copy of an order made by Corbett J. dated September 11, 2019, in her materials seeking leave to appeal that order. Alternatively, she asks that the September 11, 2019 order be amended and she be granted an extension of time to file the materials seeking leave to appeal against it. [11] The College of Physiotherapists of Ontario prepared and filed a single responding factum on the Motions, on behalf of the College of Physical Therapists of British Columbia, Unity Health Toronto, and itself (the “Respondents”). In the current pandemic, it had been unable to reach counsel for the Attorney General of Canada and so could not submit a joint response on behalf of all the defendants to the Action. [12] The Respondents oppose the Motions and ask that they be dismissed with costs against Ms. Lum. They contend that the motions that Ms. Lum has brought in this court are yet another attempt by Ms. Lum to circumvent Justice Dunphy’s Order, which requires that she obtain leave of the Superior Court of Justice before she may take any further proceedings in that court in respect of the defendants. The Respondents further ask that this Court issue an order, pursuant to Rule 2.1 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, requiring Ms. Lum to obtain leave of a single judge of this Court before she may take any further proceedings in respect of the defendants in this Court. [13] The Motions were scheduled to be heard on April 16, 2020. Due to the pandemic and the physical closure of the Court, the parties were offered the opportunity to have the Motions heard in writing. It was Ms. Lum’s strong preference that the Motions be heard in writing. The Respondents consented and the Motions were set down to be heard in writing on April 21, 2020. [14] Shortly before the in-writing hearing of the Motions, Ms. Lum sent further correspondence to the hearing panel dated April 15, 2020. In the correspondence, Ms. Lum sets out details of her complaints of improper treatment by the Divisional Court and this court. We have reviewed that correspondence, as well as the documentation filed by the parties on the Motions. ANALYSIS [15] The issue raised by the first of the two Motions is whether Tulloch J.A. erred in determining that the correct appeal route for Ms. Lum was to a panel of the Divisional Court and not to this court. Justice Tulloch made no error. The jurisprudence makes it clear that an appeal from, or review of, a single judge of the Divisional Court lies to a panel of the Divisional Court: see, for example, Bernard Property Maintenance v. Taylor , 2019 ONCA 830. As Tulloch J.A. explained in his reasons for decision, he was without jurisdiction to hear Ms. Lum’s motion. Accordingly, the first Motion is dismissed. [16] In the second of the two Motions, Ms. Lum seeks to have this court hear an appeal of the order dated September 11, 2019. As an interlocutory order, an appeal from that order lies to the Divisional Court, not this court. For that reason, the second Motion is dismissed. [17] In light of the history of this proceeding, Ms. Lum’s apparent disregard for Justice Dunphy’s Order, and the procedural motions wrongly brought to this court, we are of the view that an order pursuant to Rule 2.1 of the Rules of Civil Procedure is warranted. DISPOSITION [18] Accordingly, the Motions are dismissed with costs to the College of Physiotherapists of Ontario, fixed at $1,000, all inclusive. Further, an order shall go, pursuant to Rules 2.1 and 37.16 of the Rules of Civil Procedure , requiring Ms. Lum to obtain leave of a single judge of the Court of Appeal before she may take any further steps or proceedings related to this action in this Court. “E.E. Gillese J.A.” “David Brown J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Nguyen (Re), 2020 ONCA 247 DATE: 20200408 DOCKET: C67178 Watt, Fairburn and Zarnett JJ.A. IN THE MATTER OF: Hung Van Nguyen AN APPEAL UNDER PART XX.1 OF THE CODE Paul Calarco, for the appellant Michael S. Dunn, for the respondent, the Attorney General of Ontario Kendra Naidoo, for the respondent, the Person in Charge of the Centre for Addiction and Mental Health Heard: March 12, 2020 On appeal from the disposition of the Ontario Review Board, dated May 27, 2019, with reasons dated June 13, 2019. REASONS FOR DECISION OVERVIEW [1] The appellant, Hung Van Nguyen, has been detained at the Centre for Addiction and Mental Health (“CAMH”) in Toronto since 2012. After a hearing on May 14, 2019, the Ontario Review Board (the “Board”) ordered that the appellant continue to be detained at CAMH, subject to certain conditions. In making that disposition, the Board rejected the parties’ joint submission that the appellant be transferred from CAMH to the High Secure Provincial Forensic Programs at Waypoint Centre for Mental Health (“Waypoint”) in Penetanguishene. [2] The appellant argues that the Board erred in two respects and that its disposition therefore cannot stand. First, he submits that the Board failed to give notice that it was contemplating rejecting the joint submission, and thus breached its duty of procedural fairness. Second, he submits that the decision of the Board not to give effect to the requested transfer was unreasonable. [3] For the reasons that follow, we dismiss the appeal. BACKGROUND [4] In January 2012, the appellant was admitted to Waypoint. In March 2012, he was found not criminally responsible on account of mental disorder (“NCR”) on a charge of committing an indecent act. In November 2012, he was transferred from Waypoint to a general forensic unit at CAMH. [5] In October 2013, the appellant was found NCR on a charge of invitation to sexual touching. In December 2013, the appellant was transferred to a secure unit at CAMH. He remained detained at the Secure Forensic Unit at CAMH at the time of the Board’s hearing. [6] The appellant suffers from schizophrenia, which is treatment-resistant and complicated by substance abuse, medication nonadherence, and a personality disorder. He exhibits symptoms of psychosis and has limited insight into his mental illness. He has a history of violence and inappropriate behaviour towards others. He requires close supervision and medication monitoring, as he decompensates rapidly if he abuses substances or is medication noncompliant. [7] In the four years leading up to the May 2019 Board hearing, there were three occasions on which the appellant absconded while on passes; on the last two of these occasions, he tested positive for cannabis use after returning to CAMH. There was no report of violence on any of these occasions. [8] Following these events, the appellant was determined to be a high risk for elopement and needed to be escorted by security to appointments on CAMH grounds. From November 2017 to the time of the Board’s hearing, he was not granted any off-unit passes, meaning that he was essentially confined to his unit. This was a source of frustration for the appellant, who asked on a number of occasions to be transferred to other facilities, including Waypoint. THE BOARD HEARING [9] The Board’s hearing was to review the disposition under which the appellant was detained at CAMH. At the hearing, the parties made a joint submission. They agreed that the appellant continues to represent a significant threat to the safety of the public and should continue to be detained. CAMH recommended that the conditions of the existing disposition continue with one change: the appellant should be transferred to the high secure program at Waypoint. The reason articulated was that Waypoint, unlike CAMH, has a secure perimeter, which would allow granting the appellant privileges to be outside of his unit but within Waypoint’s secure perimeter. The Crown and the appellant agreed with the CAMH recommendation. [10] The Board noted the joint submission, but indicated it wished to hear the evidence. Accordingly, the appellant’s attending psychiatrist, Dr. Walton, testified. In addition, hospital reports from CAMH and a letter from the Director of Waypoint’s Forensic Assessment Program regarding the requested transfer (the “Waypoint Letter”) were entered as Exhibits. [11] The Waypoint Letter commented specifically on CAMH’s view that a transfer to Waypoint “could afford [the appellant] more liberal off-unit privileges within the confines of a secure perimeter”. It explained the risk assessments that are made before Waypoint allows a patient to access services and amenities within the high secure perimeter. The author of the letter opined: Given Mr. Nguyen’s history and risk factors, I expect that he would not experience independent off-unit access to the common areas contained within our high secure perimeter. Instead, once his risk is assessed to be low enough for him to leave his unit, he would need to be escorted or accompanied to the common and centralized areas of our facility. [12] The letter also pointed out the limited resources that Waypoint had to “assess and manage risk at the community interface that exists when a patient is re-integrating into the community…[W]e do not have the resources to provide discretionary privileges beyond our high secure perimeter with the minimal exception of staff escorted (at a 2:1 minimum staff to patient ratio) hospital grounds walks, should such discretionary privileges be included in a patient’s disposition.” [13] The Board members asked Dr. Walton questions, including questions about the Waypoint Letter and the concerns it raised about the appellant getting access to the secure perimeter area. There were also questions about the therapeutic relationship that the appellant appeared to have with a behavioural therapist at CAMH and whether that would continue at Waypoint. Dr. Walton was also asked about other facilities in Ontario with secure perimeters and whether the appellant had any reason to prefer Waypoint to them. THE BOARD DECISION [14] The Board agreed with the first part of the joint submission—that the appellant continued to represent a significant threat to the safety of the public and that a detention order, with the existing conditions, was therefore justified. However, the Board rejected the second part of the joint submission involving a transfer to Waypoint. It found that the transfer to a high secure facility was “not necessary or appropriate in all the circumstances”. The Board provided several interrelated reasons for this conclusion. [15] First, the Board noted that, although the appellant had absconded three times while at CAMH, he had been off-unit on passes at other times and did not abscond. In the Board’s view, there was a prospect of limited passes off-unit with security and “further engagement on the unit and work with [the behavioural therapist that] may result in more privileges for Mr. Nyugen as his intrusive behaviour diminishes.” It noted that no inquiry had been made as to whether Waypoint would have a behavioural therapist available for the appellant. [16] Second, the Board discounted the prospect that the appellant’s lack of engagement in programs at CAMH might increase if his request for a transfer were met. It noted Dr. Walton’s evidence that his challenges may continue wherever he was transferred. The Board also highlighted that, while at CAMH, the appellant had participated in several recreational activities and attended three social events, displaying some progress. There had also been no incidents of inappropriate touching since January 2019. [17] Third, while the Board noted CAMH’s view that a transfer would allow the appellant more liberal off-unit privileges within a secure perimeter, it found that the appellant would not be granted such privileges “any time soon” given the content of the Waypoint Letter. Specifically, the Board stated that it “cannot conclude that Mr. Nguyen could have more off-unit privileges at Waypoint.” [18] Finally, the Board was not prepared to find that a move from CAMH, a medium secure facility, to Waypoint, a high secure facility, would be the least onerous and least restrictive disposition in the circumstances. This was especially so given that other medium secure facilities with secure perimeters had not been explored as transfer options. ANALYSIS Rejection of the Joint Submission [19] A joint submission is beneficial to the Board’s process. It can narrow the issues, reduce the time and expense of hearings, and minimize inconvenience to witnesses. It can also temper adversarial positions to the benefit of the person whose disposition is under consideration. Nevertheless, the Board is inquisitorial in its approach, and has the authority and duty to reject a joint submission that does not meet the requirements of s. 672.54 of the Criminal Code , R.S.C. 1985, c. C-46: Re Benjamin, 2016 ONCA 118, 345 O.A.C. 210, at paras. 19-20. [20] Where the Board considers that it might reject a joint submission, it must provide notice in order to give procedural fairness to the parties, especially to the person subject to the Board’s disposition. The form of the notice may vary. For example, it may be given expressly by a statement that the Board is considering rejecting the joint submission and inviting additional evidence or submissions. This statement may be made during the hearing or after the Board has taken the matter under deliberation. Or it may be given implicitly, by Board members asking questions during the hearing that “are significantly probing about the core elements of the joint submission”: Re Benjamin , at para. 22. Ultimately, whether appropriate notice has been given is a contextual issue, the test being whether the method followed satisfied the objective of allowing the person subject to the Board’s disposition to present evidence and argument relevant to the Board’s decision: Benjamin , at paras. 22-23; Re Osawe, 2015 ONCA 280, 125 O.R. (3d) 428, at paras. 73-74. [21] In this case, the Board did not give an express notice that it was considering rejecting the joint submission. However, it also gave no indication that it was satisfied with it. During the hearing, Board members asked questions about the core plank of the joint submission—the proposed transfer to Waypoint. These included questions about the statements in the Waypoint Letter concerning whether, and when, the appellant might enjoy off-unit privileges within Waypoint’s secure perimeter; the existence and availability of such privileges were the key advantage ascribed to the proposed transfer. Beyond that, there were also questions about another effect of the proposed transfer—the end of the appellant’s relationship with the behavioural therapist at CAMH and whether anything similar would be available to the appellant at Waypoint. [22] In our view, taken as a whole, the questions asked were “significantly probing about the core elements of the joint submission” so as to provide the required notice that the joint submission may be rejected. The fact that more than one Board member picked up the same topic for questioning adds important contextual support for this conclusion. The recurring themes in the questions show not only that Board members had initial concerns about the joint submission, but that they maintained those concerns even after initial answers were proffered. [23] The appellant argues that, in determining whether the asking of questions conveys notice that the joint submission might be rejected, consideration must be given not only to the questions but also to the answers. We agree that the answers form part of the context; but we do not agree that consideration of them detracts from what the questions conveyed concerning the fate of the joint submission. Dr. Walton gave thoughtful answers to the Board members’ questions. However, Dr. Walton had no experience at Waypoint or direct familiarity with the way it performed risk assessments. The Board was not required to accept her views about the likelihood of the appellant receiving off-unit passes there and the Board was entitled to form its own views based on the Waypoint Letter. Nor was the Board required to accept her suggestion that behavioural therapy would be available to the appellant at Waypoint equivalent to that at CAMH, as she had acquired no information on that topic. [24] Nothing in the Board members’ reactions to Dr. Walton’s answers suggested that Dr. Walton had allayed their concerns; the revisiting of certain subjects by more than one Board member would, if anything, suggest that the concerns were not allayed. [25] The implicit notice that the Board provided through its questioning satisfied the objective of allowing a meaningful opportunity to present evidence and argument relevant to the Board’s disposition. While it is undoubtedly preferable for a Board, when considering the rejection of a joint submission, to give express notice and an express opportunity to lead more evidence and make additional submissions, here the Board did not err by failing to do so. The parties were well placed, in listening to the Board’s questions and evaluating the answers Dr. Walton was able to give, to determine whether more evidence should be led and/or whether any specific submissions should be made to better ensure acceptance of the joint submission. [26] The Board did not fail in its duty of procedural fairness. We reject this ground of appeal. The Unreasonableness Ground of Appeal [27] The appellant, supported by CAMH, also argues that the Board’s disposition, to the extent that it fails to give effect to the requested transfer to Waypoint, is unreasonable. The appellant submits that the Board misapprehended the evidence about when the appellant had been off the unit at CAMH, and the evidence in the Waypoint Letter about when off-unit access would occur there. The appellant also submits that the Board unreasonably rejected evidence suggestive of a treatment impasse at CAMH that had a prospect of being overcome at Waypoint. [28] This court may allow an appeal against a disposition of the Board where the disposition is “unreasonable or cannot be supported by the evidence”: Criminal Code , s. 672.78(1)(a). A reasonable decision is one where the Board’s “reasoning process and the outcome” reflects “an internally coherent and rational chain of analysis…that is justified in relation to the facts and law”: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, at paras. 83, 85; Re Ahmadzai , 2020 ONCA 169, at paras. 12-13. A proper appreciation of the evidence is related to whether the resulting decision is reasonable, as “[t]he reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it”: Vavilov , at para. 126; Re Ahmadzai , at para. 23. [29] In our view, the Board’s decision was not unreasonable. The Board did not misapprehend the evidence about when the appellant had been off the unit at CAMH, nor the statement in the Waypoint Letter about what needed to occur before off-unit access would be allowed there. The Board’s decision accounted for the evidence before it. The Board’s critical finding, that off-unit access at Waypoint would not be allowed “any time soon”, was available to it on the record. [30] There was no evidence of a treatment impasse at CAMH in the sense of there being an absence of treatment, a complete refusal to engage with the treatment team, or treatment of no effect on the management of the appellant’s mental health issues: Re Abeje , 2019 ONCA 734, at para. 30. The Board’s finding that there had been some progress with the behavioural therapist at CAMH was not contrary to the evidence. For example, there was evidence that interaction with the behavioural therapist had recently resulted in the appellant meeting certain goals relating to hygiene and a reduction of inappropriate touching. This progress was appropriately contrasted by the Board with the lack of evidence that anything similar would be available at Waypoint, and was appropriately assessed by the Board in light of Dr. Walton’s statement that the appellant’s motivation to engage in treatment might not be better even if he moved to Waypoint. [31] The Board’s disposition is internally coherent and reflects a rational chain of analysis justified in light of the facts and law. We reject this ground of appeal. CONCLUSION [32] For the above reasons, the appeal is dismissed. “David Watt J.A.” “Fairburn J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265 DATE: 20200424 DOCKET: C66835 Doherty, Brown and Thorburn JJ.A. BETWEEN Brittany Pucci Plaintiff (Respondent) and The Wawanesa Mutual Insurance Company Defendant (Appellant) Katy Commisso and David Scott, for the appellant Timothy Gindi and Anthony J. Potestio, for the respondent Heard: February 14, 2020 On appeal from the judgment of Justice H.M. Pierce of the Superior Court of Justice, dated March 15, 2019, reported at 2019 ONSC 1706. Doherty J.A.: I overview [1] This appeal raises a narrow question. Did the trial judge err in holding that the respondent (“Ms. Pucci”) was entitled to payment of household and attendant care expenses for the time period prior to judgment, even if Ms. Pucci had not actually incurred those expenses? [2] I would allow the appeal. With respect, the trial judge erred in holding the expenses had been incurred. She made that finding without regard to the definition of “incurred” in s. 3(7)(e) of the Statutory Accident Benefit Schedule , O. Reg 34/10 (“ SABS-2010 ”). The trial judge further erred in holding, in any event, those expenses should be deemed to have been incurred under s. 3(8) of the SABS -2010 . In making that finding, the trial judge misapprehended material evidence and failed to consider a significant body of evidence relevant to the reasonableness inquiry mandated by s. 3(8). [3] I am also satisfied this court cannot make the factual findings necessary to determine whether the payment of the expenses was unreasonably withheld by Wawanesa. I would order a new trial. II the evidence [4] Ms. Pucci was in a motor vehicle accident on June 16, 2013. She was 22 years old. A vehicle improperly entered the intersection and broadsided Ms. Pucci’s car. Her car was totally destroyed. [5] Ms. Pucci went to the hospital. She had back, neck, and left thumb pain. She was unsure whether she had briefly lost consciousness at the time of the accident. A CAT scan was negative. Ms. Pucci was released from hospital on the same day. [6] In the days, weeks, and months after the accident, Ms. Pucci’s condition worsened dramatically. Her physical symptoms continued. New symptoms suggestive of some kind of brain trauma appeared. For example, she temporarily lost vision in one eye. Most significantly, Ms. Pucci began to experience severe, debilitating, emotional and behavioural problems. Her speech, and then her behaviour, regressed to that of a young child. Her speech slowed noticeably and her thought processes became obviously impaired. Ms. Pucci had difficulty controlling her emotions and sometimes was oblivious to her surroundings. She also had trouble remembering things and often could not make even the most basic personal decisions. [7] Ms. Pucci became unable to work or go to school. She could not look after her basic needs without help. [8] There is no suggestion that Ms. Pucci was fabricating or exaggerating her conditions and symptoms. The two psychiatrists who testified at trial agreed Ms. Pucci’s symptoms met the criteria for conversion and somatic disorders, both major mental disorders. They also agreed Ms. Pucci’s condition related more to her psychiatric and emotional problems than to the physical sequela of the accident. Finally, the two experts agreed Ms. Pucci was unable to work or look after herself. [9] The two experts disagreed about the connection, if any, between Ms. Pucci’s catastrophic impairment and her accident. Ms. Pucci had struggled, with intermittent success, to overcome several longstanding psychiatric and emotional problems pre-existing the car accident for many years. Dr. Feinstein, the expert called by Ms. Pucci, described the effect of those pre-accident conditions on Ms. Pucci’s post-accident condition: And here, pre-accident psychological factors loom large. Ms. Pucci’s psychiatric history during her teenage years is a troubled one characterized by significant emotional trauma, related symptomatology, problematic relationships, severe substance abuse necessitating the use of methadone and extensive contact with mental health specialists. This history suggests she was highly vulnerable from a psychological perspective when the accident of June 16, 2013 occurred. This premorbid vulnerability should therefore be viewed as a key factor in understanding why her post-accident reactions had been so maladaptive and regressed. While Ms. Pucci’s pre-accident psychiatric history alone cannot explain her current presentation, it has nevertheless contributed to it. [10] In his report and testimony, Dr. Feinstein indicated Ms. Pucci’s treatment team had incorrectly diagnosed her condition as attributable primarily to physical brain trauma suffered in the accident. He believed Ms. Pucci’s condition flowed primarily from a pre-existing cycle of psychopathology, properly described as somatic and conversion disorder. Dr. Feinstein also testified Ms. Pucci’s pre-accident condition was exacerbated by the significant chronic pain and emotional turmoil directly associated with the accident and the physical injuries suffered in the accident. In Dr. Feinstein’s opinion, Ms. Pucci’s treatment program should move from one centered on treating disabling cerebral  trauma to one focusing on the major underlying psychiatric issues. [11] Dr. Ozersky, Wawanesa’s expert, opined that Ms. Pucci’s symptomatology reflected her underlying psychiatric problems and were not the product of injury caused by the accident. In his report, Dr. Ozersky acknowledged the significant deterioration in Ms. Pucci’s condition post-accident, but said: I find it hard to imagine that an accident of this nature could be responsible for this woman’s psychological regression, neither do I believe there is any head injury involved of any significance. [12] Nowhere in the report does Dr. Ozersky explain what he meant when he said the accident was not “responsible” for Ms. Pucci’s psychiatric condition. In his testimony, he explained his understanding of causation: My test is on the balance of probabilities, was the accident responsible for her conversion disorder ? And my answer would be no, it was not responsible. Her pre-existing history of sexual assault, drug abuse, depressions that’s what, working, those factors working together created the circumstance for a conversion disorder. The accident may have been the a trigger but in itself it would not be sufficient to cause a conversion disorder . [Emphasis added.] [13] As I understand Dr. Ozersky’s evidence, he believed the accident was not “responsible” for Mr. Pucci’s subsequent psychiatric disorders for two reasons. First, he believed Ms. Pucci’s pre-accident condition put her on the edge of total emotional disintegration such that the slightest event could push her into the psychiatric disorders she developed post-accident. Consequently, because she was so close to disintegration, the accident could not be said to be “responsible” for her condition, even though it triggered the development of that condition. Second, Dr. Ozersky explained that the accident was not “responsible” for Ms. Pucci’s condition because the accident alone could not have caused that condition. [14] The trial judge, after reviewing the evidence of the two experts, accepted Dr. Feinstein’s opinion that Ms. Pucci’s conversion disorder was triggered by the motor vehicle accident. The trial judge, at para. 83, referred to the accident as “the tipping point in the plaintiff’s ability to function on a day-to-day basis”. She said, at para. 84: I conclude that, but for the collision, Ms. Pucci would not have suffered the conversion disorder described by her physicians. This disorder catastrophically impairs her ability to function from a mental or behavioural perspective. [15] Wawanesa does not challenge the trial judge’s finding that, for the purposes of determining Ms. Pucci’s entitlements under the SABS-2010 , the accident was the direct cause of her subsequent condition, [1] or that the condition renders her catastrophically impaired. III ms. pucci’s accident benefits claim [16] At the time of the accident, Ms. Pucci was insured under a motor vehicle policy issued by Wawanesa. A representative of Wawanesa visited Ms. Pucci within days of the accident to provide information about her coverage. Ms. Pucci’s doctor submitted a disability certificate to Wawanesa, describing the nature of Ms. Pucci’s injuries and explaining that she could not work. Wawanesa immediately provided income replacement at the rate required under the SABS-2010 , as of the date of the accident. [17] Based on information provided from time-to-time by Ms. Pucci’s doctors, assessments done for Wawanesa, and treatment plans provided to Wawanesa, Wawanesa classified Ms. Pucci as eligible for the maximum household expenses and attendant care benefits available under the SABS-2010 to persons who had not been characterized as catastrophically injured. Under the SABS-2010 , attendant care costs for persons not catastrophically injured were available for two years post-accident (104 weeks). Over that time, Wawanesa paid the benefits required under the SABS-2010 . The amounts paid by Wawanesa approached closely the total amounts available under the scheme. [18] Ms. Pucci’s lawyer advised Wawanesa in March 2015 that Ms. Pucci would apply under s. 45 of the SABS-2010 for a determination that her condition amounted to a catastrophic impairment. Under that designation, she would be entitled to recover certain expenses incurred more than two years post-accident. [19] Wawanesa received Mrs. Pucci’s application in early May 2015. In July 2015, Wawanesa advised Ms. Pucci that it would not pay attendant care costs beyond the two years. Wawanesa also exercised its right to have Ms. Pucci assessed. That assessment involved a series of examinations performed by different experts appointed by Wawanesa. [20] Ms. Pucci and her parents travelled to Toronto for the examinations in May and July of 2015. Unfortunately, Ms. Pucci became very tired during the July examinations and she could not finish the testing. The parties agreed the assessment would be completed six weeks later in Thunder Bay where Ms. Pucci lived. On the morning that the assessors were to fly to Thunder Bay, one of them suffered a medical condition, necessitating the cancellation of the trip. The examinations were completed about eight weeks later in October 2015. Wawanesa received the reports generated by the examinations in February 2016, and  immediately forwarded those reports to Ms. Pucci’s lawyer. [21] Based on the opinion advanced by Dr. Ozersky in his report, Wawanesa took the position that Ms. Pucci’s admittedly catastrophic impairment was not directly caused by the accident. Wawanesa declined to provide Ms. Pucci with the benefits available to persons found to have suffered a catastrophic impairment as a result of an accident. Wawanesa acknowledged it was required, under the relevant SABS, to pay any attendant care and housekeeping benefits incurred by Ms. Pucci prior to Wawanesa’s notification to her in February 2016 that it had concluded she had not suffered a catastrophic impairment as a direct result of the car accident. [22] Ms. Pucci was entitled to challenge Wawanesa’s determination and to seek mediation through the Financial Services Commission of Ontario (“FSCO”). The parties, however, agreed the mediation should be treated as failed without actually attempting mediation. This allowed Ms. Pucci to commence the action in the Superior Court which she did in late March 2016. The judgment was released some three years later. [2] IV the trial judgment [23] The trial judge’s reasons focused primarily on causation. Was Ms. Pucci’s admittedly catastrophic impairment the direct result of her car accident? The trial judge found the necessary causal link and made a declaration to that effect in para. 1 of the trial judgment. That paragraph is not challenged on appeal. [24] In para. 2 of the trial judgment, the trial judge made an order with respect to payments for income replacement. That paragraph of the judgment is not challenged on appeal. [25] In paras. 3 and 4 of the judgment, the trial judge made orders pertaining to housekeeping (para. 3) and attendant care (para. 4) benefits. She declared Ms. Pucci was entitled to housekeeping expenses, fixed at the rate of $100 per week, and attendant care benefits at the rate of $6,000 per month. These are the maximum rates available under the SABS. The trial judge further provided these benefits were to run from June 14, 2015 (104 weeks post-accident) to the date of judgment and “thereafter as incurred”. Wawanesa appeals from the orders made in paras. 3 and 4 of the judgment. V wawanesa’s position [26] Wawanesa accepts Ms. Pucci is entitled to the housekeeping and attendant care benefits flowing from the determination that she had suffered a catastrophic injury as a result of her car accident. Wawanesa argues, however, that while the trial judge properly limited payments for housekeeping and attendant care post-judgment to expenses “incurred”, she erred in failing to place the same limitation on any amounts owed in reference to those benefits for the pre-judgment period from February 2016 to March 2019. Wawanesa submits Ms. Pucci is entitled to expenses for that period only to the extent she actually incurred those expenses. The Agreed Statement of Facts filed at trial states that Ms. Pucci paid about $29,000 for attendant care in 2018. There is no evidence of any payments made by Ms. Pucci for housekeeping-related expenses in the time period prior to judgment. [27] Wawanesa submits if the trial judge found the pre-judgment expenses had been “incurred”, she erred in law in failing to apply the definition of “incurred” in s. 3(7)(e) of the SABS-2010 . Alternatively, Wawanesa submits, if the trial judge did not find the expenses were incurred, but rather deemed the expenses to have been incurred under s. 3(8) of the SABS-2010 on the basis of Wawanesa’s delay in providing its reports, she acted on a material misapprehension of the relevant evidence. VI analysis (i) Overview [28] Pursuant to the declarations in paras. 3 and 4 of the trial judgment, Wawanesa was required to pay Ms. Pucci about $18,000 for housekeeping-related benefits and about $270,000 for attendant care benefits for the period prior to judgment (June 2015 – March 2019), regardless of what amount, if any, Ms. Pucci had spent in respect of either housekeeping or attendant care costs, and regardless of whether she had actually received any housekeeping or attendant care services. [29] The SABS-2010 requires an insurer to pay expenses referable to benefits provided under the policy, if those expenses have been “incurred”. Section 3(7)(e) identifies when an expense will be said to have been “incurred”: 3(7) For the purposes of this regulation, (e) subject to subsection (8), an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless, (i) the insured person has received the goods or services to which the expense relates, (ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and (iii) the person who provided the goods or services, (A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the insured person. [30] Under the definition in s. 3(7)(e), the expense for goods or services is incurred only if the insured has received the goods or service and has either paid for the goods or services or assumed an obligation to do so. Further, the expenses related to the goods or service is incurred only if the person supplying the goods or service does so in its ordinary course of business or has sustained an economic loss as a result of providing the goods or services. [31] Section 3(8) of the SABS-2010 provides an exception to the requirement that expenses must be incurred before they are payable by the insurer. At the relevant time, that section read: If in a dispute to which sections 279 to 293 of the Act apply, a Court or arbitrator finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Court or arbitrator may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred. [32] The exception created by s. 3(8) requires three things: · payment for the benefit in issue must be payable under the SABS; · the insurer must have “withheld or delayed payment”; and, · the withholding or delaying of payment must have been “unreasonable”. [33] The focus of s. 3(8) is primarily on the actions of the insurer. An insured’s need for the services or benefits, or her inability to pay for those services or benefits on her own, cannot justify the deeming of the expense to have occurred under s. 3(8): Stegenga v. Economical Mutual Insurance Company , 2019 ONCA 615, 147 O.R. (3d) 65 at para. 47; Veley v. Motor Vehicle Accident Claims Fund , 2014 CarswellOnt. 6405, at para. 25 (Ont. F.S.C.), rev’d on other grounds 2015 CarswellOnt. 6752 (Ont. F.S.C. App. Div.). (ii) Were the expenses incurred? [34] The trial judge did not refer to s. 3(7)(e) in her reasons. Apart from the payments for attendant care in 2018, set out in the Agreed Statement of Facts, there was no evidence that any of the payments ordered in paras. 3 and 4 of the judgment, as it related to the time period before judgment, were payments for expenses incurred within the meaning of s. 3(7)(e) of the SABS-2010 . [35] Although the trial judge did not refer to the definition of “incurred” in s. 3(7)(e), she did refer, at paras. 102-106, to a line of cases interpreting the word “incurred” as used in the SABS prior to the enactment of s. 3(7)(e): [3] e.g. , see Monks v. ING Insurance Company of Canada , 2008 ONCA 269, 90 O.R. (3d) 689 at paras. 46-52; McMichael v. Belair Insurance Co. (2007), 86 O.R. (3d) 68 (Ont. Div. Ct.). Under those authorities, expenses were said to be incurred as long as there was a reasonable necessity for the service or item in issue and the costs of that service or item could be determined, with certainty, within a designated period. On that approach, expenses for goods and services could be incurred, even when those goods or services had not been provided or obtained. There was also no requirement that the insured have paid for, or assumed the obligation to pay for, the services or goods. [36] The judge-made definition of “incurred”, adopted in Monks and McMichael , is clearly much broader than the legislative definition found in s. 3(7)(e). The broader meaning found in the case law has been overtaken by the more precise language of s. 3(7)(e). [37] Although it is not entirely clear, I take the trial judge to have relied on the broad meaning of “incurred” advanced in the earlier caselaw to hold that the expenses she had ordered paid in paras. 3 and 4 of the judgment had been “incurred” by Ms. Pucci. The trial judge, at para. 106, referred to McMichael and related cases as “on point with this case.” [38] The trial judge was obliged to apply s. 3(7)(e) to determine whether Ms. Pucci had incurred the relevant household and attendant care expenses. She erred in law in applying the broader meaning found in the earlier case law. On the definition of “incurred” in s. 3(7)(e), there was no evidence of any incurred expenses, apart from the payments for attendant care in 2018. Setting aside the possible application of the exception in s. 3(8) for the moment, the declarations in paras. 3 and 4 of the judgment, requiring Wawanesa to pay household and attendant care expenses for the period prior to judgment (March 2019) should have required payment only of expenses “incurred” by Ms. Pucci within the meaning of s. 3(7)(e) of the SABS-2010 . (iii) The application of s. 3(8) of SABS-2010 [39] At trial, counsel for Ms. Pucci argued Wawanesa had acted unreasonably in withholding payments based exclusively on Dr. Ozersky’s causation opinion. Counsel highlighted certain alleged shortcomings in the report and in Dr. Ozersky’s approach to his task. Counsel also emphasized Dr. Ozersky’s causation opinion conflicted with the opinion of other experts, some of whom had been retained by Wawanesa in the course of its management of Ms. Pucci’s benefits claim. Counsel submitted Wawanesa acted unreasonably in accepting, apparently without question, Dr. Ozersky’s opinion when his opinion was inconsistent with the position Wawanesa had taken in the first two years of its management of Ms. Pucci’s benefits claim. [40] The trial judge did set out the text of s. 3(8) of the SABS-2010 in the part of her reasons that addressed Ms. Pucci’s entitlement to the various benefits. The trial judge did not, however, address Ms. Pucci’s submission that reliance on Dr. Ozersky’s opinion constituted an unreasonable withholding or delaying of payment of a benefit in all of the circumstances. Instead, as I read her reasons, the trial judge focused on two things in determining that Wawanesa had unreasonably withheld payments. [41] First, at paras. 107-108, the trial judge referred to what she described as the unfairness in reimbursing only insured persons who were able to fund their own expenses while the dispute with their insurer over their entitlement to benefits was ongoing. Second, the trial judge referred specifically to the delay in providing the defence catastrophic impairment assessments. She said, at para. 108: While an insurer is entitled to seek its own opinions to determine liability under a policy, a delay of nine months to produce the report is not reasonable. [42] In my view, the trial judge’s assessment of the fairness of the scheme for payment of expenses established under the SABS-2010 is irrelevant to whether the insurer acted unreasonably in withholding or delaying payments. The scheme is predicated on the repayment of expenses “incurred” within the very specific definition provided in s. 3(7)(e). The scheme does not create entitlement to payment based on need or a damages-like assessment of the insured’s entitlements. Whatever the merits of the policy reflected in the current scheme, the operation of that policy in a given case does not assist in determining whether an insurer acted unreasonably in withholding payments. [43] I turn next to the trial judge’s finding that the nine-month delay in producing the reports was “not reasonable.” She made no reference to the evidence in making this finding. Nor had counsel for Ms. Pucci argued that any delay in providing the reports made the refusal to pay the benefits unreasonable. [44] I have reviewed the relevant evidence above (see para. 20). The examinations began in May 2015 but did not end until late October 2015. The completion of the examinations took some time, first, because Ms. Pucci was physically unable to complete the assessments in July, and second, because one of the testers retained by Wawanesa fell ill on the day he was scheduled to fly to Thunder Bay to complete those tests and could not fly to Thunder Bay. [45] The delay in completing the assessments between May 2015 and October 2015 cannot be attributed to any inappropriate, unnecessary, or unreasonable conduct by Wawanesa. One might argue that it took longer than it should have to prepare the reports after the assessments were completed (end of October 2015 to early February 2016). There was no evidence on this point. However, even if the reports should have been prepared somewhat more quickly, there is no basis in the evidence for the trial judge’s finding that a nine-month delay was unreasonable. [46] Counsel for Ms. Pucci submits that the trial judge relied on factors other than the delay in obtaining the necessary reports in finding that Wawanesa’s conduct amounted to an unreasonable withholding of the benefits. Counsel refers to the trial judge’s summary of various parts of the evidence in the course of her detailed reasons. [47] I cannot accept this submission. Although the trial judge did summarize some of the evidence relevant to various issues in the trial, she did not relate that evidence to the fundamental question raised by s. 3(8) – did Wawanesa act unreasonably in not paying the benefits? [48] I also reject counsel for Ms. Pucci’s submission that the meaning of “incur” in the case law prior to the enactment of s. 3(7)(e) can assist in assessing the reasonableness of Wawanesa’s conduct for the purposes of s. 3(8). The overtaken case law provided a broad definition of “incurred”. Under that definition, expenses could be incurred, even though they were not paid for or received. Section 3(8) applies only where expenses were not incurred and looks to the reasonableness of the insurer’s conduct. Case law which provided a meaning of “incurred” in the absence of a statutory meaning had no relevance to whether an insurer acted reasonably in withholding payment of certain expenses. [49] The trial judge materially misapprehended the evidence in concluding that there had been a nine-month delay in producing the reports. She also made that finding without considering Ms. Pucci’s argument that the insurer acted unreasonably in relying on Dr. Ozersky’s opinion. (iv) Ms. Pucci’s alternative arguments [50] Counsel for Ms. Pucci submits that even if the trial judge erred in finding that Wawanesa was obliged to pay the household and attendant care expenses, either because they were “incurred”, or because Wawanesa acted unreasonably in withholding them, Wawanesa could not raise causation for the first time in response to Ms. Pucci’s request for a determination that she had suffered a catastrophic injury. [51] Counsel makes three arguments. First, counsel contends that by paying the expenses in the first two years post-accident, Wawanesa waived any right to assert that the accident was not a direct cause of Ms. Pucci’s admittedly catastrophic condition. Second, counsel submits Wawanesa, by paying the benefits for the first 104 weeks, is estopped from challenging causation at the catastrophic impairment stage of the process. Third, counsel relies on the language of s. 45 of the SABS-2010 : An insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment. [52] Counsel contends that s. 45 precludes any causation inquiry at the catastrophic impairment inquiry. On counsel’s interpretation, only the nature and extent of the impairment can be addressed at that point in the SABS process. [53] I begin with s. 45. I do not read the section as requiring the insurer, at the catastrophic injury phase of the process, to accept the impairment in issue was caused by the accident. I read the opening language of the section, which requires the insured to have sustained “an impairment as a result of an accident”, as setting down a precondition to the bringing of an application for the determination that the insured has suffered a catastrophic impairment. Under the generally applicable principles of proof, it falls to the insured, as the party seeking the determination of catastrophic impairment, to demonstrate the existence of the pre-condition. [54] Apart from the language of s. 45, there could be significant harm to the fair and efficient operation of the SABS benefit scheme if payments of benefits post-accident by the insurer were to be taken as foreclosing any causation-based argument at some later point in the process. Were that interpretation of s. 45 to prevail, I would think it would strongly disincentivize the timely payment of benefits in the immediate aftermath of accidents. Prudent insurers, before making any payments for expenses referable to benefits claimed, would first fully explore any potential causation-related issues. Resolving those issues can require significant input from experts. That exercise takes time. [55] The waiver and estoppel arguments must also fail. This court recently considered both doctrines in the context of the insured/insurer relationship: Bradfield v. Royal Sun Alliance Insurance Company of Canada , 2019 ONCA 800, 148 O.R. (3d) 161. I need not repeat the principles summarized in Bradfield . [56] Waiver has no application. There is no evidence that Wawanesa knew, or had reason to believe, that Ms. Pucci’s condition was not the result of her accident, but chose to waive any reliance on the absence of a causal connection and make payments according to the policy. Ms. Pucci’s position at trial was not that Wawanesa waived any right it had under the policy, but that the causal connection was clearly established and accepted by Wawanesa from the outset. The trial judge ultimately accepted her position. [57] I would also reject the estoppel argument. Estoppel is essentially an evidence-based claim. Estoppel requires reliance. There is no basis in the evidence to suggest that Ms. Pucci relied, to her detriment, on anything done by Wawanesa. To the contrary, at the appropriate time in the process, she initiated the catastrophic impairment determination. In doing so, she advanced a full and ultimately convincing case for a finding that her condition was the direct result of the accident. She was not prejudiced by anything done by Wawanesa in advancing that position. [58] The waiver and estoppel arguments also fail for another reason. On the appeal, Wawanesa accepts Ms. Pucci was catastrophically injured as a result of the car accident. To the extent that estoppel or waiver might have application, they would foreclose Wawanesa from arguing that the causal connection was not established. Wawanesa does not make that argument on appeal. [59] The factual issue on which this appeal turns – did Wawanesa act unreasonably in denying payment of the expenses – cannot be answered by resort to the doctrines of waiver or estoppel. Wawanesa’s conduct is relevant to the question before the court, not as a waiver or an estoppel, but as one of the factors to be considered in determining whether Wawanesa acted unreasonably in withholding payment of the benefits. VII the appropriate order [60] The errors outlined above do not necessarily compel the quashing of paras. 3 and 4 of the judgment. Section 134(4)(a) of the Courts of Justice Act allows this court to draw inferences of fact from the evidence, as long as those inferences are not inconsistent with any finding made by the trial judge that has not been set aside by this court. In this appeal, the court could first set aside the trial judge’s finding that Wawanesa acted unreasonably in withholding the benefits because that finding was based on a material misapprehension of the evidence and a failure to consider relevant evidence, and then, on its own review of the evidentiary record, make a finding that Wawanesa did act unreasonably. If the court exercised its limited fact-finding power and made that finding, it would dismiss the appeal. Paragraphs 3 and 4 of the trial judgment would stand. [61] Appellate courts do not routinely exercise fact-finding powers. For example, appellate courts will not make findings of fact if credibility assessments are required, or if the evidentiary basis required for the drawing of the necessary inferences is inadequately developed in the trial record: see, Cook v. Joyce , 2017 ONCA 49, at para. 82; Weyerhaeuser Company Limited v. Ontario (Attorney General) , 2017 ONCA 1007, at para. 166. [62] Appellate fact-finding can, however, promote finality and efficiency in the civil justice process. In civil proceedings, appellate courts should avoid ordering a new trial if, in light of the nature of the factual issues, and the state of the trial record, the appellate court can confidently make the necessary factual findings without working any unfairness to either party: Cook , at para. 78-80. [63] Ms. Pucci argued at trial Wawanesa acted unreasonably by relying on the opinion of Dr. Ozersky to effectively deny payment of benefits over a three-year period. The trial judge did not address that argument in her reasons. [64] Can this court, on the basis of the trial record, make a finding that Wawanesa acted unreasonably in relying on Dr. Ozersky’s opinion? [65] Wawanesa, as Ms. Pucci’s insurer, owed her a duty of good faith. In 702535 Ontario Inc. v. Non-Marine Underwriters, Lloyd’s London England (2002) 184 D.L.R. (4th) 687, at paras. 27-29, O’Connor J.A. described the scope of the insurer’s duty of good faith in the context of a claim for damages based on an allegation of bad faith against the insurer. [4] His observations are, however, apposite here: The relationship between an insurer and an insured is contractual in nature. The contract is one of utmost good faith The duty of good faith also requires an insurer to deal with its insured’s claim fairly. The duty to act fairly applies both to the manner in which the insurer investigates and assesses the claim and to the decision whether or not to pay the claim. In making a decision whether to refuse payment of a claim from its insured, an insurer must assess the merits of the claim in a balanced and reasonable manner. It must not deny coverage or delay payment in order to take advantage of the insured’s economic vulnerability or to gain bargaining leverage in negotiating a settlement. A decision by an insurer to refuse payment should be based on a reasonable interpretation of its obligations under the policy. This duty of fairness, however, does not require an insurer necessarily to be correct in making a decision to dispute its obligation to pay a claim. Mere denial of a claim that ultimately succeeds is not, in itself, an act of bad faith. [66] Wawanesa’s duty of good faith required it to fully and fairly assess Ms. Pucci’s claim that she had been catastrophically impaired as a result of the car accident. Wawanesa could not simply treat Ms. Pucci as though she were a tort claimant and, armed with an expert’s opinion, put her to the proof of her claim: see, for example, Personal Insurance Company v. Hoang , 2014 ONSC 81, 319 O.A.C. 90 at para. 55 (Div. Ct.); 17001681 v. Motor Vehicle Accident Claims Fund , 2018 CarswellOnt 19835, at para. 85 (Ont. Licence App. Tribunal); 16 -004073 v. TD Insurance Company , 2017 CarswellOnt 14273, at paras. 26-29 (Ont. Licence App. Tribunal). [5] [67] The steps an insurer must take to fulfil its good faith obligations will depend on the specific circumstances. Here, Wawanesa knew that Dr. Ozersky’s causation opinion contradicted the position Wawanesa had taken for two years. Wawanesa also knew that Dr. Ozersky’s opinion stood alone. Finally, Wawanesa appreciated Ms. Pucci’s vulnerability. She was catastrophically impaired and very much in need of the household and attendant care services she claimed. She could not fund those services on her own. These facts dictated that Wawanesa take a long careful look at Dr. Ozersky’s causation opinion before relying on it to deny benefits. [68] There is merit in Ms. Pucci’s submission that Dr. Ozersky’s opinion on causation would not have withstood a critical analysis by Wawanesa. As counsel points out, Dr. Ozersky’s concession in cross-examination, that the car accident “triggered” Ms. Pucci’s condition seems entirely inconsistent with the assertion that the car accident did not cause her condition. The trial judge specifically referred to Dr. Ozersky’s concession in cross-examination in finding that the accident was the immediate cause of Ms. Pucci’s condition. [69] There is an additional problem with Dr. Ozersky’s opinion, that may also assist in determining whether Wawanesa acted reasonably in relying on that opinion. In his report, Dr. Ozersky indicated that the accident was “not responsible” for Ms. Pucci’s condition. He provided little, if any, insight into the analysis that led to that conclusion. [70] In his testimony, particularly his cross-examination, Dr. Ozersky elaborated on what he meant when he opined in his report that the accident was “not responsible” for Ms. Pucci’s condition. I have reviewed Dr. Ozersky’s evidence relating to causation earlier in these reasons (see paras. 11-13). As summarized, he offered two reasons for his opinion that the accident was “not responsible” for Ms. Pucci’s condition. After acknowledging that the accident triggered the condition, he went on to assert that the accident, while a trigger, was not a cause because the accident, on its own, would not have caused the conversion disorder. Second, Dr. Ozersky testified that the accident was “not responsible” for Ms. Pucci’s condition because, given her tenuous psychiatric state, had the accident not triggered her condition, some other event, even a minor one, would have triggered the condition. [71] It appears to me that the two explanations offered by Dr. Ozersky for his conclusion that the accident was not “responsible” for the condition are not medical opinions but are, instead, legal opinions about the meaning of causation under s. 3(1) of the SABS-2010 . Dr. Ozersky was, of course, not qualified to advance legal opinions. Additionally, his evidence suggests an understanding of causation that is at odds with the meaning given to causation under s. 3(1) in a series of decisions from this court: Greenhalgh v. ING Halifax Insurance Company (2014), 243 D.L.R.  (4th) 635, at paras. 10-12, 36; Martin v. 2064324 Ontario Inc. (Freeze Night Club) , 2013 ONCA 19, 113 O.R. (3d) 561 at para. 37; Chisholm v. Liberty Mutual (2002), 217 D.L.R. (4th) 145 , at paras. 24-31. Nothing in those cases supports the proposition that the proverbial “thin skulled” driver, who has an accident that precipitates or triggers consequences that are particularly dire because of the driver’s prior medical vulnerability, is not covered under her motor vehicle insurance policy. [72] My difficulty in making a finding of fact as to the reasonableness of Wawanesa’s refusal to pay the benefits lies in the paucity of evidence permitting informed inferences about the steps, if any, Wawanesa took to critically review Dr. Ozersky’s report, and the steps, if any, counsel for Ms. Pucci took to bring the inadequacies in Dr. Ozersky’s report to the attention of Wawanesa. While the trial judge ultimately rejected Dr. Ozersky’s opinion, and for good reason, one must bear in mind that he was an admittedly qualified expert to whom Wawanesa could legitimately look for a medical opinion in respect of causation. Ms. Pucci’s condition was far from straightforward or a common result of a relatively minor accident. Even Dr. Feinstein took a significantly different position with respect to the nature of Ms. Pucci’s condition than had earlier experts retained on her behalf. [73] Neither Ms. Pucci nor Wawanesa chose to proceed with mediation once Wawanesa had given the reports to Ms. Pucci. There is nothing in the record about any interaction between the parties after Wawanesa sent its reports in February 2016. It would appear that both sides simply chose to proceed to trial once the conflicting opinions had been exchanged. Ms. Pucci did not plead s. 3(8) of the SABS-2010 in her statement of claim. [74] In my view, the record does not permit a finding of fact in this court about the reasonableness of Wawanesa’s denial of coverage. The question attracted little attention in the development of the evidence at trial. Any attempt to draw the necessary inferences from this record would quickly slip into speculation. [75] The trial record provides ample basis to question the reasonableness of Wawanesa’s reliance on Dr. Ozersky’s opinion. It does not, however, speak with sufficient clarity and force to justify this court’s exercising of its fact-finding function. There must be a new trial. VIII conclusion [76] I would allow the appeal, set aside paras. 3 and 4 of the trial judge’s order, and direct a new trial on those issues. [77] Wawanesa is entitled to its costs on the appeal, fixed at $15,000, inclusive of taxes and disbursements. Released:  “DD” “APR 24 2020” “Doherty J.A.” “I agree David Brown J.A.” “I agree Thorburn J.A.” [1] The test for causation is found in s. 3(1) of the SABS-2010 , which provides: “Accident” means an incident in which the use or operation of an automobile directly causes an impairment [2] The legislative scheme governing disputes relating to entitlement under the SABS-2010 has changed (effective April 1, 2016). Under the present legislation, the Licence Appeal Tribunal has exclusive jurisdiction to resolve disputes over entitlement to benefits under the SABS: see Stegenga v. Economical Mutual Insurance Co. , 2019 ONCA 615. The amendments were motivated, in part, by efforts to speed up adjudication of these disputes. [3] A new Statutory Accident Benefit Schedule became effective September 1, 2010. This amendment narrowed the prior definition of “incurred” under s. 3(7)(e). [4] Ms. Pucci alleged bad faith against Wawanesa in her statement of claim, but did not pursue that claim at trial. [5] Hoang is concerned with the making of a lump sum payment under s. 282(10) of the Insurance Act (now found in Automobile Insurance, O. Reg. 664, s. 10). That special award is, however, predicated on the insurer acting unreasonably in delaying or withhold payment. Cases decided under that provision clearly have relevance to the assessment required under s. 3(8) of the SABS-2010 .

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Buchanan, 2020 ONCA 245 DATE: 20200408 DOCKET: C65914 Watt, Fairburn and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Jetter Buchanan Appellant James Foy, for the appellant Sarah Shaikh, for the respondent Heard: March 12, 2020 On appeal from the conviction entered on October 26, 2017 by Justice Cecile Applegate of the Ontario Court of Justice. FAIRBURN J.A.: A. OVERVIEW [1] Police officers believed that drug trafficking was taking place within a residence. They watched as the appellant drove up to that residence, parked his car, went inside, emerged a short time later, and drove off. The police then stopped the appellant and arrested him for being in possession of controlled substances. A search incident to arrest revealed a good deal of cash, a loaded firearm, heroin and cocaine. [2] While the trial judge concluded that the appellant’s ss. 8 and 9 Charter rights had been breached, she dismissed the appellant’s application to exclude the evidence under s. 24(2) of the Charter . Convictions were entered on various drug trafficking and firearm offences. A four-and-a-half-year sentence was imposed. [3] This is an appeal from conviction on the basis that the trial judge erred in failing to exclude the evidence under s. 24(2). In the alternative, the appellant claims that the verdict was unreasonable. [4] For the reasons that follow, I would dismiss the appeal. B. CONTEXT [5] A confidential informant told the police that an individual by the name of Jason Nacinovich was trafficking heroin and fentanyl out of a specific residential address in Barrie, Ontario. Several civilians had previously made complaints about people coming and going from that home. The police set up surveillance on the address and made observations consistent with what they believed to be drug trafficking in the home. [6] Based on the confidential tip and the surveillance on the home, the police applied for a search warrant for the home. The warrant was declined by a Justice of the Peace on the following basis: Grounds as presented and when considered in totality, falls short of rpg to believe that items to be searched for will be at the location. No evidence to show that heroin and fentanyl would be in residence. [7] When the police learned that the search warrant had been denied, they decided to arrest “the next suspected buyers.” The team leader, Det. Fitzgerald, explained at trial his understanding as to why the warrant had been denied: that there were insufficient grounds to believe that heroin and fentanyl, as opposed to other controlled substances, were in the residence. Accordingly, he instructed his team to “arrest the next suspected buyers … [p]ersons that come and show behaviour similar to what we’ve observed over the last couple of days.” Det. Fitzgerald was hopeful that by proceeding in this way, the police would obtain grounds to advance a second search warrant application for the home: I believe we have reasonable grounds to make the arrest and then search incident to arrest. Yes, I would hope to locate the drugs that in my mind, they’re purchasing from the residence, and they’re under arrest for possession of a controlled substance, and then we have the evidence to support that which then I can add to my warrant hopefully meet the threshold to get the warrant for [the address]. [8] The appellant’s vehicle was the next one to arrive after the police learned that the search warrant was refused. He and his passenger went inside the home, stayed for about 15 minutes and then left. An officer making the observations believed that there were grounds to arrest the appellant and his passenger for being in possession of a controlled substance. Accordingly, two uniform officers were instructed to pull over the vehicle and make the arrests. [9] Searches of the vehicle incident to arrest revealed: a) a case that had been secreted behind a modified glove box, containing a stolen, loaded, restricted firearm; b) four cell phones; c) a significant amount of cash; d) 23.56 grams of cocaine and 29.84 grams of heroin packaged in small baggies and secreted in an air vent. [10] The appellant also had a leather wallet slip in his pocket, one that matched his wallet. That slip contained ownership and insurance documents for the vehicle in someone else’s name. The car also contained auto financing documents in relation to the vehicle, dated only weeks before the offence. They were addressed to the appellant and suggested that he owed a sum of money for the vehicle, as well as costs that had been incurred as a result of non-payment. C. THE DECISION APPEALED FROM [11] The appellant claimed that: (a) his s. 9 Charter rights had been infringed on the basis that the police lacked sufficient reasonable grounds to arrest him; (b) his s. 8 Charter rights had been infringed as a result of conducting a search incident to an unlawful arrest; and (c) the evidence arising from the search incident to the unlawful arrest should be excluded under s. 24(2) of the Charter . [12] The trial judge found that the appellant’s ss. 8 and 9 Charter rights had been infringed. While she accepted that the police held a subjective belief that the appellant had purchased drugs in the residence, she concluded that this belief was not objectively reasonable in the circumstances. Accordingly, the trial judge found that the arrest breached the appellant’s s. 9 Charter rights. The s. 8 breach necessarily flowed from the fact that the search incident to arrest was unreasonable given the unlawful nature of the arrest. [13] The trial judge then went on to address the three Grant factors for consideration in determining whether to exclude the evidence obtained in a manner that infringed the appellant’s Charter rights: (a) the seriousness of the Charter - infringing state conduct; (b) the impact of the breach on the Charter - protected interests of the accused; and (c) society’s interest in an adjudication of the case on the merits: R. v. Grant , 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71. [14] Under the first branch, the trial judge found that while the police conduct was negligent, it was not flagrant or abusive. She held the view that, while the police did not have adequate grounds to arrest the appellant, they had sufficient grounds to have justified an investigative detention. Even so, the trial judge found that the police failed to consider that option. She also recognized that, on its own, an investigative detention would not have afforded the police the ability to search the vehicle where the drugs and gun were located. Ultimately, she concluded that the police behaviour, “while serious, [was] not such that requires the Court to distance itself from that behaviour, in these particular circumstances.” [15] On the second branch, the trial judge accepted that the impact of the breach on the accused’s Charter - protected interests was significant and favoured exclusion. This is not in dispute on appeal. [16] On the third branch, the trial judge found that the charges were serious, that the evidence was reliable, and that it was critical to the Crown’s case. Overall she found that these factors favoured inclusion. At the same time, she observed the “equally” important fact that when investigating serious crime, the police should respect Charter rights. [17] After balancing all three factors, the trial judge dismissed the application for exclusion. She concluded as follows: In summary: (a) the police conduct was serious, but not egregious; (b) the impact on the accused’s Charter rights was significant, and (c) the value of the evidence is also significant. In weighing all of these factors, the defence have not satisfied me that the admission of the evidence would bring the administration of justice into disrepute. Therefore, the evidence of the drugs and the gun are admissible. [18] The trial judge then moved on to consider whether she was satisfied beyond a reasonable doubt that the Crown had proven the various possession offences. The parties agreed that the core issue for her determination was whether the appellant had knowledge of the contents of the vehicle, specifically the loaded firearm and drugs. Satisfied that the Crown had proven knowledge beyond a reasonable doubt, the trial judge convicted the appellant. The passenger was acquitted. D. DID THE TRIAL JUDGE ERR IN HER SECTION 24(2) ANLAYSIS? (i) The Alleged Errors and Standard of Review [19] The appellant maintains that the trial judge made three specific legal errors in her s. 24(2) analysis, all of which relate to the first prong in the Grant test: the seriousness of the Charter - infringing state conduct. He argues that she erred in: a) finding that the police had the grounds to conduct an investigative detention; b) failing to appreciate that the police arresting the appellant after the search warrant had been denied showed a “cynical disregard” for the judicial process; and c) treating police negligence as a factor that pulled away from exclusion. [20] The appellant argues that any one or combination of these errors allow this court to conduct a fresh s. 24(2) analysis, which exercise should result in exclusion. [21] It is not for this court to substitute its own views respecting the seriousness of state conduct for those of the trial judge: R. v. White , 2015 ONCA 508, 127 O.R. (3d) 32, at para. 63. The three-prong Grant inquiry requires trial judges to find facts and engage in nuanced balancing exercises, ones that call for the weighing of numerous factors and competing interests. Strong deference is owed to determinations that arise from that process. Accordingly, absent an error in principle, palpable and overriding factual error or an unreasonable determination, a s. 24(2) decision is entitled to deference: Grant , at paras. 86, 127; R. v. Mian , 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77; R. v. Côté , 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44. [22] Applying that standard in this case, I conclude that there is no basis to overturn the trial judge’s decision. (ii) The Police had Sufficient Grounds to Detain for Investigation [23] The police may detain an individual for investigation where, in all of the circumstances, there exist reasonable grounds to suspect that the individual is connected to a particular crime and the individual’s detention is necessary: R. v. Mann , 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45. Reasonable grounds to suspect is a lower standard than reasonable grounds to believe. The first engages a reasonable possibility, while the latter engages a reasonable probability: R. v. Chehil , 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 27. When determining whether those thresholds have been reached, a common sense and practical approach to considering all of the circumstances is called for. [24] The trial judge concluded that while the police had “mistakenly believed” that they had the grounds to arrest the appellant, she was satisfied that their grounds rose to the level of a reasonable suspicion that the appellant was in possession of a controlled substance, sufficient to justify an investigative detention. The appellant argues that the trial judge erred in arriving at that conclusion. Relying upon R. v. Simpson , (1993) 79 C.C.C. (3d) 482 (Ont. C.A.), the appellant maintains that an individual cannot be stopped and investigated simply on the basis that he or she has attended at a home where drug trafficking is suspected to occur. The appellant says that is exactly what happened in this case. Accordingly, the appellant argues that the police had no grounds to even stop the appellant’s vehicle, let alone arrest him. He contends that, had the trial judge appreciated this fact, it would have worked to aggravate the seriousness of the breach. [25] I start with the observation that the trial judge’s finding that there were sufficient grounds for an investigative detention appears to have been conceded by the appellant at trial. Early in her reasons, the trial judge specifically adverted to that concession. As she noted, while the grounds were not sufficient to support an arrest, “it is conceded that this was sufficient to conduct an investigatory detention of the accused.” [26] The trial judge’s view that the matter had been conceded is an understandable one when counsel’s closing submissions are considered. By way of example, counsel made the observation, “you don’t arrest suspected buyers, you detain them and the police would have been entitled to do that and ask a few questions, make observations”. When counsel was asked if the matter was being “concede[d], on the evidence before [the trial judge], that the police officers had sufficient grounds to conduct an investigative detention of [the appellant]”, counsel answered “ [c]ertainly I think they could have ” [emphasis added]. [27] While the appellant argues that other aspects of trial counsel’s argument qualify the concession, I do not need to resolve this point. As I will explain, whether the fairly clear concession was later qualified, is neither here nor here because there were ample grounds upon which to detain the appellant for investigation. [28] I do not accept the appellant’s suggestion that this case is similar to Simpson . As the respondent points out, the Simpson case operates against a completely different set of facts. While Ms. Simpson was arrested shortly after she was seen leaving a suspected “crack house”, the police information about the house was of unknown age and unknown reliability. Indeed, the officer who detained Ms. Simpson testified that he had simply read an internal police memorandum authored by another officer describing that residence as a suspected “crack house”. That information was obtained from an unidentified “street contact”. The detaining officer knew nothing about the house and the tip from the “street contact” had not been confirmed. [29] It was against that factual backdrop that Doherty J.A. said in Simpson , at p. 504: Attendance at a location believed to be the site of ongoing criminal activity is a factor which may contribute to the existence of ‘articulable cause’. Where that is the sole factor, however, and the information concerning the location is itself of unknown age and reliability, no articulable cause exists . Were it otherwise, the police would have a general warrant to stop anyone who happened to attend at any place which the police had reason to believe could be the site of ongoing criminal activity. [emphasis added] [30] Although the term “articulable cause” was replaced with the term “reasonable grounds to detain” in Mann , at para. 33, the law as articulated by Doherty J.A. in Simpson remains good law. Even so, it does not assist the appellant in his argument. [31] The facts of this case are not analogous to those in Simpson . Here, the police were not dealing with information about the drug house that was of “unknown age and reliability”. Rather, while the information initially came to light through a confidential informant tip, the police had amply confirmed that information. For instance, by the time that the decision was made to arrest the appellant, the police knew the following: a) a confidential informant tip had been received in May 2016 that heroin and fentanyl trafficking was taking place in the Nacinovich residence at which the appellant attended; b) citizens had made “several” complaints to the police about vehicle and pedestrian traffic at that residence; c) two days of surveillance was conducted on that residence; d) several experienced drug investigators were involved in interpreting the activity seen at that residence, including: (i) numerous individuals attending at the residence on foot, by bicycle, and by car; (ii) some of those individuals were known drug users; (iii) one person was known to the police as a heroin dealer; (iv) most of the people stayed in the residence for less than ten minutes and, in a few cases, it was three minutes or less; (v) in a few cases, people who had entered the residence were seen placing something in their pockets or had something in their hands; (vi) on one occasion, Mr. Nacinovich drove with two females to another location, entered it and emerged several minutes later. He was seen walking back to the car while putting something in his right pocket; (vii) while the police awaited the search warrant application, they saw Mr. Nacinovich emerge from his residence, approach a waiting vehicle, reach into the driver’s side and then look down at his hand as he walked back toward his home. [32] The appellant suggests that Simpson stands for the proposition that mere attendance at a drug house cannot furnish the grounds to an investigative detention. There is no such blanket rule arising from Simpson . While reasonable grounds to suspect may not exist where the “sole factor” informing the grounds is attendance at a drug house where “the information concerning the location is itself of unknown age and reliability”, this does not mean that attendance at a drug house in other circumstances cannot furnish the grounds for an investigative detention. Indeed, there are times where, based upon the totality of circumstances, a person’s attendance at a drug house may even form sufficient grounds for arrest: R. v. Rover , 2018 ONCA 745, 145 O.R. (3d) 135, at paras. 11-13. [33] When considering the sufficiency of grounds to detain and arrest, it is essential to take into account all of the circumstances known to the police at the time that the investigative step is taken. The factual matrix of this case is fundamentally different than the one that drove the result in Simpson . This case involved experienced police officers, some of whom had deep experience in investigating drug-related crime. They were permitted to bring their practical, everyday experience to the interpretation of what they were seeing: Chehil , at para. 29. [34] Unlike Simpson , this is not a case where the age or reliability of the information about what was believed to be going on in the home was wanting. There was a confidential tip about drug trafficking at the exact residence where civilians had made complaints about activity that suggested short visits to buy drugs. Police surveillance confirmed that activity, revealing numerous people, some of whom were known to the police from the local drug community, attending at the residence for very short periods of time. The police even observed what they believed to be a hand-to-hand drug transaction through the window of a vehicle out front of the residence, just prior to the appellant’s attendance at the home. He was only in the home for fifteen minutes. Again, the police testified that this was consistent with a drug transaction. [35] There was an ample factual foundation upon which the trial judge could conclude that the police had sufficient grounds to detain the appellant for investigation. Indeed, so plentiful were the grounds that this may well have been a case where the s. 9 issue could have resolved differently. (iii) The Police did not Improperly Ignore the Justice of the Peace’s Refusal [36] The trial judge concluded that the police were “genuinely trying to respond to the concerns raised by the Justice of the Peace in order to satisfy her of the grounds to enter [the] residence.” [37] The appellant maintains that this was an unsupportable view of the evidence because the Justice of the Peace was not seeking additional information or raising concerns. Rather, she denied the search warrant because there were insufficient grounds to believe that the items to be searched for – heroin and fentanyl – would be found in the residence. [38] The appellant argues that the police misinterpreted the warrant denial as an “invitation” to arrest the next suspected buyer. By doing so, the appellant contends that the police essentially flouted the Justice of the Peace’s decision, one that clearly conveyed to the police that they did not have reasonable grounds to believe there were controlled substances in the apartment. The appellant argues that the denial of the warrant to search the residence clearly telegraphed to the police that they did not have the grounds for arrest, seeing as the arrest was predicated on the fact that the appellant had bought drugs in that location. The appellant maintains that the failure to respect the Justice of the Peace’s decision should have aggravated the seriousness of the police conduct. [39] I do not agree that the police saw the denial of the search warrant as an “invitation” to arrest the next person who came to the residence. Rather, the denial of the search warrant caused the police to pursue alternative means to advance their investigation. There was nothing wrong with doing so. Indeed, the appellant appropriately acknowledges that there is nothing inherently wrong with the police using a lawful arrest to advance an investigation, even where that arrest is to assist with furnishing the grounds upon which a search warrant application may rest. [40] Moreover, the police did not simply arrest the next person to arrive at the residence. Rather, they set out to arrest the next person who they believed to have done a drug transaction in the home. In other words, they set out to arrest the next person they had reasonable grounds to arrest. Given the short time that the appellant attended at the residence, the police believed that he fit the same pattern as the people who they had been previously seen coming and going from the residence. [41] The denial of a search warrant does not act as a legal declaration that the police are prohibited from using the grounds contained within the Information to Obtain the warrant to furnish grounds for other purposes. It is important to distinguish between the role of a justice in determining whether to issue a search warrant and the role of the police in determining whether they have sufficient grounds to arrest. These are two fundamentally different acts. [42] When considering whether to issue a search warrant, a Justice of the Peace has a specific and discrete job to do: consider whether there are sufficient reasonable grounds to support the statutory prerequisites to issuance. Justices are not required to give reasons for granting or dismissing search warrant applications. Accordingly, it will not always be possible to know why a search warrant has been denied. There may be any number of reasons for the dismissal of an application, including insufficient grounds about the alleged offence, about the location to be searched, whether the items to be seized are in the location to be searched and so on. [43] On the other hand, the grounds for arrest involve an assessment of all of the circumstances known to the police at the time of the arrest. In this case, those circumstances involved information that was included in the Information to Obtain the search warrant, but also included what the police observed while the warrant was being considered: what appeared to be a hand-to-hand drug transaction outside of the home. Determining whether the police had sufficient grounds to justify an arrest is a matter that falls within the exclusive domain of the trial judge. [44] While I accept that it would be wise for the police to pause and consider the strength of their grounds in the face of a search warrant denial, particularly where their grounds to arrest overlap with the grounds for the search warrant, there is nothing inherently wrong with the police pursuing other investigative options based upon their own view of the facts. In other words, the police are not required to alter what they believe (or suspect) to be true, simply because a search warrant has been denied: R. v. Bacon , 2010 BCCA 135, 285 B.C.A.C. 138, at paras. 20-21. [45] This is particularly true in a case like this, where the police have direct insight into why the search warrant was denied because the Justice of the Peace gave short reasons for the denial. She said it was because she was not satisfied that the specific drugs – heroin and fentanyl – would be found in the place to be searched. [46] Accordingly, there was nothing about the police conduct in this case that aggravates the seriousness of the breach. The police were not, as the appellant suggests, flouting the Justice of the Peace’s decision. Indeed, to the contrary, they showed respect for that decision and worked toward obtaining further grounds to fill what the Justice of the Peace perceived as the gap in the warrant application: evidence respecting the actual drugs of heroin and fentanyl. (iv) Negligent Police Conduct Does not Always Pull Toward Exclusion [47] The appellant emphasizes that the trial judge concluded that the police behaviour was “more towards negligent conduct”. In light of that finding, he argues that the trial judge erred when she concluded that the “police conduct was serious, but not egregious .” [emphasis added.] He says that by finding the conduct was not egregious, the trial judge treated the negligent conduct as almost a neutral factor in the s. 24(2) analysis. He maintains that the finding that the conduct was negligent necessarily made it of such a quality that it had to pull toward exclusion. [48] It is important to start with what the trial judge actually concluded. She found that the police were mistaken in their belief that they had reasonable grounds to arrest. While she rejected that the police conduct was “inadvertent or a minor violation of the accused’s Charter rights”, she found that “on the spectrum, their conduct falls more towards negligent conduct, which is higher than blameless conduct (at the lower end), and lower than blatant, wilful or reckless conduct (at the higher end).” She then concluded that, while serious, the conduct was not such that it required the court to distance itself from the police behaviour. [49] I see no error in that approach. The trial judge was cognizant of the fact that not every Charter breach is made equal. She properly adverted to the “spectrum” on which the seriousness of breaches must be placed. As noted by Doherty J.A. in R. v. Kitaitchik , (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 41, and adopted many times since: Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights …. What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct. [50] The placement of the police conduct on the spectrum requires an exercise of discretion that the trial judge is uniquely positioned to undertake from her or his chair in the courtroom. It was open to the trial judge to find, as a fact, that the police were merely “mistaken” about whether they had sufficient grounds to arrest and that their conduct was worse than “blameless” but less serious than conduct that shows a “wilful” or “reckless” or “blatant” disregard for the Charter . Rather, it was negligent conduct. [51] It is not for this court to consider these matters afresh. They are findings that are owed deference by this court. I would show that deference. [52] As well, I do not agree with the suggestion that all negligent police conduct must push toward exclusion. While negligence cannot be equated with good faith (see Grant , at para. 75), neither can it necessarily be equated with bad faith. The key determining factor is not the name given to the conduct, but the underlying findings about the conduct. [53] Negligent police conduct itself may fall on a spectrum. Clear violations of well-established rules governing state conduct may exist at one end of a negligence spectrum, while less clear violations of less clear rules may be at the other. [54] Here, the law surrounding the grounds for arrest has been clear for some time: R. v. Storrey , [1990] 1 S.C.R. 241, at pp. 250-251. But it is a test that is applied using the best judgment of police officers, engaged in real time, on the ground policing. There is a difference between a police officer miscalculating whether she had sufficient grounds to arrest, when on the trial judge’s view she only had sufficient grounds to detain for investigation, and other more serious forms of police miscalculation. As found by the trial judge, there was nothing cavalier or flagrant about the police conduct. Nor was there any pattern of Charter breaches. In my view, if the police were short on reasonable grounds to arrest, it was by a short distance only. The fact is that the trial judge did not find that the level of negligence, a simple, unintentional miscalculation as to the strength of the grounds to arrest, rose to the level that would aggravate the seriousness of the state-infringing conduct. She is owed deference on that point. (v) Conclusion [55] There is no error in the trial judge’s s. 24(2) analysis. E. THE VERDICT WAS REASONABLE [56] Once the application to exclude the drugs and gun was dismissed, the trial judge turned her mind to what all agreed was the real triable issue in the case: whether the appellant knew that the drugs and gun were in the vehicle he was driving. [57] The appellant contends that the trial judge erred in concluding beyond a reasonable doubt that he knew about the presence of the guns and drugs. He contends that the convictions represent unreasonable verdicts because, in this circumstantial case, guilt was not the only reasonable inference that the totality of the evidence supported: R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30. [58] The question of knowledge depended upon circumstantial evidence. Accordingly, the question on an unreasonable verdict ground of appeal is whether the trier of fact, acting judicially, could reasonably be satisfied that the “accused’s guilt was the only reasonable conclusion available on the totality of the evidence”: Villaroman , at para. 55. [59] I start by noting that the trial judge set out an accurate review of the law. She well understood that this case turned on whether the appellant knew about the contraband. She also quoted directly from Villaroman , noting that she had to be satisfied that the accused’s guilt is the only reasonable conclusion that she could reach on the totality of the evidence, before she could find him guilty. She specifically noted that she was aware that not everyone who drives or rides in a car containing concealed objects will know of their existence. [60] Having regard to the correct legal principles, she turned to the evidence and found that certain factors satisfied her beyond a reasonable doubt that the appellant knew of the existence of the firearm and drugs, including: a) the appellant was the driver of the vehicle; b) while the ownership and insurance documents were in another person’s name, those documents were found inside of his pocket, inside of a wallet slip that matched his wallet; c) there was a bank document also found in his possession, that referenced the fact that he owed money for the vehicle. [61] In addition, the trial judge concluded that the gun and drugs were valuable items that would not have been entrusted to just anyone. This was a reasonable, common sense inference available to the trial judge: R. v. DaCosta , 2017 ONCA 588, at para. 21; R. v. Pannu , 2015 ONCA 677, 127 O.R. (3d) 545, at para 173, leave to appeal ref’d [2015] S.C.C.A. No. 478. [62] In these circumstances, the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence. F. CONCLUSION [63] I would dismiss the appeal. Released: “D.W.” April 8, 2020 “Fairburn J.A.” “I agree. David Watt J.A.” “I agree. B. Zarnett J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. C.L., 2020 ONCA 258 DATE: 20200416 DOCKET: C66746 Hoy A.C.J.O., Paciocco and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and C.L. Appellant Matthew B. Day, for the appellant Lisa Joyal, for the respondent Heard: March 9, 2020 On appeal from the conviction entered on October 19, 2018 by Justice Julianne A. Parfett of the Superior Court of Justice, sitting with a jury. Paciocco J.A.: OVERVIEW [1] In the fall of 2013, the complainant visited C.L. at his home. She alleges that he sexually assaulted her. He says that they engaged in consensual sex. [2] The complainant ultimately gave a statement to the police, and C.L. was eventually charged with sexual assault, contrary to s. 271 of the Criminal Code , R.S.C., 1985, c. C-46 . He was found guilty after trial by a jury. C.L. now appeals that conviction. He raises several grounds of appeal. [3] One of C.L.’s grounds of appeal relates to the trial judge’s decision to modify the reasonable doubt portion of her charge to the jury relating to R. v. W.(D.) , [1991] 1 S.C.R. 742. This was done by the trial judge in an apparent effort to incorporate an instruction that would reflect this court’s recognition in R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69, that, despite the absence of obvious flaws in the evidence of the accused, the law permits conviction based on acceptance beyond a reasonable doubt in the truth of conflicting credible evidence. [4] For the reasons that follow, I would find, as C.L. contends, that the trial judge erred in making this modification. On this basis I would allow the appeal, quash the conviction, and order a retrial. THE MATERIAL FACTS [5] C.L. met the complainant through her brother, who was C.L.’s friend. C.L. also periodically supplied marijuana to both of them. He found the complainant to be beautiful and told her so, but they were not in a relationship. [6] In the fall of 2013, when C.L. was 20 years of age, the 17-year-old complainant arranged to meet C.L. to obtain marijuana. She took the bus to the bus stop near his home and met C.L. there. They proceeded to the home that he shared with roommates and went to his bedroom to complete the marijuana transaction. [7] At some point C.L. and the complainant began to play chess, at his invitation. The complainant claims that after some time passed, C.L. made a sexual invitation to her that she described as “disgusting”. She had been sitting on a shelf near the closet but stood up. He became “really, really angry”, pushed her down on the bed and pushed himself on top of her. She said “no” and tried unsuccessfully to push him away. Despite her telling him to stop, he penetrated her with his penis, and he licked her vagina against her will. After the assault he tried to walk her to the bus, ultimately calling a taxi for her and paying the fare. [8] C.L.’s account is diametrically opposed. He admits he was romantically interested in the complainant, and he believed that she was interested in him. He claims that after playing chess for some time he moved to the bed. He told the complainant that she was special and asked her to lie down with him. When he laid down, she joined him. He asked her if he could kiss her and she agreed. They kissed for some time before he asked if he could perform oral sex on her. She agreed and “indicated pleasure” while it was happening. She declined his invitation that she performs oral sex on him, but agreed to intercourse after instructing him not to ejaculate inside of her. They had sex and he wore a condom. Again, she signalled her pleasure. At no time did she tell him to stop but was “100 percent” a “willing participant” in all that had happened. He claims he walked her to the bus stop, but after discovering there were no more buses he secured and paid for a taxi to take her home. He says that he had not been drinking and had not taken drugs that evening. [9] The complainant and C.L. agree that they exchanged texts in the following day or days but disagree on the messages sent. The complainant describes C.L. attempting to meet to apologize to her for the sexual assault. He contends that he wrote the complainant to let her know that he was not interested in a relationship and that he wanted to apologize if she felt misled about that. Neither party preserved the messages. [10] C.L. testified at his trial that in the following month he received a threatening call from a person he believed to be the complainant’s boyfriend. C.L. says that, in response, he taunted the boyfriend by bragging about having had sex with the complainant. He said he then received a message from the complainant claiming she had not consented. [11] Subsequently, during an argument with her mother that included insults directed at her friends, the complainant told her mother that C.L. had sexually assaulted her. At some point her brother was also told. The brother believes that this conversation occurred roughly two or three months after the alleged event. [12] During a November 6, 2013, Facebook exchange with C.L. about an unrelated topic, the complainant’s brother evidently became annoyed with something C.L. messaged. The brother responded, “why the fuck do you bring this up”, “you try and get with my sister in the worst way possible”, “now this”, “don’t even bother with me”. C.L. replied, “dude she consented and I was drunk it takes two to tango bro”. C.L. testified that he made up the part about being drunk to downplay his responsibility for sleeping with his friend’s sister, but the rest was true. [13] The complainant’s allegation did not come to the attention of the police until January 19, 2014, when the complainant’s mother called the police after another argument with the complainant. The complainant’s mother reported the allegation. This led to the complainant submitting a police statement, after several drafts. [14] Nothing happened with the allegation until January 12, 2016, when the complainant was arrested for stealing money from a seasonal gift-wrapping charity where she had volunteered. Before she was interviewed on videotape about the theft [“the theft investigation interview”] she mentioned the sexual assault allegation to Det. Kit, who was investigating the theft. Det. Kit brought up the sexual assault allegation at the end of the theft investigation interview after telling the complainant that the theft charge would be diverted. The videotape of the theft investigation interview shows the complainant crying near the end of that interview. [15] As the result of this further complaint, arrangements were made for the complainant to give a videotaped statement in accordance with s. 715.1 of the Criminal Code . This statement was provided on February 4, 2016. It captured the complainant’s account, outlined above, and C.L. was charged with sexual assault. [16] C.L. was tried by jury in October of 2018. The complainant testified, adopting the s. 715.1 videotaped statement as part of her evidence, and she was cross-examined. She was confronted with inconsistencies between her trial testimony and earlier versions of events she had given, including about: whether she had been to C.L.’s apartment before; whether C.L. said that the marijuana transaction would take place at the bus stop; whether the marijuana transaction occurred before or after the alleged sexual assault; how she ended up on the bed; and whether C.L. had invited her back after the alleged sexual assault. Defence counsel took the position that in each case, the change in her evidence at trial made C.L. look as though he was an unwanted suitor, whereas the earlier versions were consistent with C.L.’s testimony. [17] During her examination-in-chief the complainant had been asked about her theft from the charity. She testified that when interviewed by the police about the theft she wanted to be “straight up and honest” and therefore admitted the theft, which she said was for bus fare. Despite objections, the trial judge ultimately allowed the videotape of the theft investigation interview to be played in full. Defence counsel took the position that the portion of the videotape relating to the theft allegation showed that, contrary to her testimony, instead of accepting responsibility for the theft, the complainant denied it until she was cornered. He also took the position that the complainant’s statement during the preliminary inquiry that she told Det. Kit before the interview that the theft was a cry for help made no sense given that she could be seen denying the theft immediately after that purported conversation. The Crown took the position that the balance of the videotape, which he was permitted to show during the complainant’s re-examination, supported the sexual assault allegation by depicting the complainant’s distraught demeanour when the topic of the alleged sexual assault was raised. [18] Det. Lorentz testified about records extracted from the complainant’s cellphone. No deleted text messages between C.L. and the complainant were retrieved. The extraction report confirmed four unanswered phone calls from C.L.’s phone to the complainant’s phone, date-stamped March 5, 2014, months after the alleged assault. There was no way to independently confirm the accuracy of the date-stamps. Only C.L. was asked about these phone calls. He said he had a drug customer with the same first name as the complainant and both women were listed in his cellphone by that name. He was trying to contact his customer, not the complainant. The Crown’s position was that the after-the-fact failure of the complainant to answer these phone calls was consistent with her testimony that she did not want anything to do with C.L. because of the sexual assault. [19] The complainant’s brother testified about the Facebook exchange. The Crown then closed its case. [20] C.L. testified in his defence, giving the exculpatory version described above. [21] During the charge to the jury, at the invitation of the Crown, the trial judge modified the standard W.(D.) jury direction, as described below. [22] The jury returned with a verdict of guilty after close to two days of deliberations. ISSUES [23] C.L. raises several grounds of appeal relating to the trial judge’s decision to permit the Crown to play, during the complainant’s re-examination, the portion of the videotape of the theft investigation interview showing the complainant reacting to Det. Kit’s mention of the sexual assault allegation. C.L. also contends that rhetorical questions posed by the Crown in its closing address rendered the trial unfair, and he maintains that the verdict was unreasonable. [24] With the exception of the unreasonable verdict challenge, it is not necessary to consider these grounds of appeal. I would allow the appeal on the remaining ground of appeal, that the trial judge erred by incorporating a “ J.J.R.D. instruction” into her jury direction relating to the application of the reasonable doubt standard to the evaluation of credibility. Since the appropriate remedy for this ground of appeal is a retrial, I must also address the unreasonable verdict challenge, for if this ground of appeal were to succeed, the appropriate remedy would be an acquittal. As I will explain, I would not find the conviction to be unreasonable. I would therefore order a retrial. ANALYSIS A. THE J.J.R.D. INSTRUCTION [25] The W.(D.) jury direction is intended to explain “what reasonable doubt means in the context of evaluating conflicting testimonial accounts”: R. v. J.H.S. , 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9. That direction, set out in W.(D.) , at p. 758, provides: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence you do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused. [26] This formula is not a magic incantation that must be slavishly parroted in a jury direction: R. v. S. (W.D.) , [1994] 3 S.C.R. 521 at 533; R. v. C.L.Y. , 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 7. However, the W.(D.) direction provided to a jury must be sufficiently clear to ensure that the jury is not under any misapprehension as to the correct standard of proof and how it applies to credibility issues: W.(D.) , at pp. 757-58. [27] It is instructive to note that the W.(D.) formula seeks to ensure that the correct standard of proof is applied to credibility issues by describing the three general states of belief a trier of fact may arrive at after evaluating credibility and reliability in a case where there is evidence inconsistent with guilt, and directing the trier of fact to the outcomes that follow from each of those three general states of belief. In R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), a leading decision prior to R. v. W.(D.) , Morden J.A. described the three alternative states of belief relating to the exculpatory evidence as “total acceptance, total rejection, or something in between”: at p. 557. The first W.(D.) alternative describes total belief; the last, total rejection; and the middle alternative being the “something in between” where the trier of fact cannot decide whether to believe or disbelieve the exculpatory evidence. [28] The trial judge modified the W.(D.) jury instruction that she gave by offering five propositions, which I will number 1-5 for convenience: 1. If you believe [C.L.]’s evidence that he did not commit the offence charged, you must find him not guilty. 2. Even if you do not believe [C.L.]’s evidence that he did not commit the offence, if it leaves you with a reasonable doubt about his guilt, or, about an essential element of the offence charged, you must find him not guilty. 3. When you assess the evidence of [C.L.], you should not view it in a vacuum. You may conclude that you reject [C.L.]’s evidence even though you consider that on its own it does not contain any obvious flaws. You may reject [C.L.]’s evidence based on a considered and reasonable acceptance beyond a reasonable doubt of the truth of conflicting credible evidence. 4. If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must find [C.L.] not guilty because Crown counsel would have failed to prove [C.L.]’s guilt beyond a reasonable doubt. 5. Even if [C.L.]’s evidence does not leave you with a reasonable doubt of his guilt, or, about an essential element of the offence charged, you may convict him only if the rest of the evidence that you do accept proves his guilt beyond a reasonable doubt. [29] C.L. does not take issue with propositions 1, 2, 4, or 5. He argues, however, that the trial judge erred in adding proposition 3, what he refers to as the “ J.J.R.D. instruction”. Although J.J.R.D. was not a jury instruction case, this reference is apt because it is evident that proposition 3 was adapted from the following passage from this court’s decision in J.J.R.D. at para. 53, where Doherty J.A. said: The trial judge’s analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified the way the accused testified or the substance of the accused’s evidence. [Emphasis added.] [30] I agree that the trial judge committed an error in proposition 3 of her W.(D.) direction. I accept the Crown submission that J.J.R.D. endorses the proposition that a proper conviction can be arrived at even where exculpatory testimony has no obvious flaws if the Crown mounts a strong prosecution: R. v. O.M. , 2014 ONCA 503, 313 C.C.C. (3d) 5, at para. 40. In such a case a trier of fact may appropriately find that the incriminating evidence is so compelling that the only appropriate outcome is to reject the exculpatory evidence beyond a reasonable doubt and find guilt beyond a reasonable doubt. There may be exceptional cases where it is appropriate for a trial judge to explain this avenue of conviction to the jury. We need not decide whether this is so since the direction the trial judge provided in this case was in error, for the following reasons. [31] First, and most plainly, the trial judge misquoted the relevant extract from J.J.R.D. in a way that confuses the standard of proof beyond a reasonable doubt. Instead of instructing the jury that they could reject C.L.’s evidence “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence” she said they could do so “based on a considered and reasonable acceptance beyond a reasonable doubt of the truth of conflicting credible evidence” (emphasis added). The first use of the word “reasonable” in that direction has meaning only if it is understood to be modifying the kind of reasonable doubt that will suffice for a conviction. This direction could well have been understood by a juror to be authorizing C.L.’s conviction if acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is a reasonable conclusion. This is not consistent with the law. The burden of proof in a criminal jury trial requires that each juror must be convinced, subjectively, of the guilt of the accused beyond a reasonable doubt. Based on this direction a hold-out juror could mistakenly choose to convict because the decision of other jurors to do so, while not agreed with, is reasonable. This was a misdirection on a crucial matter. [32] Second, and more broadly, the “considered and reasoned acceptance” language of J.J.R.D. has no place in a W.(D.) jury direction. As the totality of the passage quoted above reveals, J.J.R.D. was a sufficiency of reasons case. It was not a jury instruction case, nor even a case about the content of the W.(D.) formula. The issue was whether the reasons given by a trial judge, sitting alone, were sufficient to permit effective appellate review: see J.J.R.D. , at paras. 1-2. That is why Doherty J.A. describes “a considered and reasoned acceptance … of the truth of conflicting credible evidence” as an “ explanation for the rejection of an accused’s evidence” (emphasis added). The case is about whether the trial judge explained the conviction by offering a considered and reasoned basis: see R. v. Slatter , 2019 ONCA 807, 148 O.R. (3d) 81, at para. 84, leave to appeal to S.C.C. requested, [2019] S.C.C.A. No. 368; R. v. R.D. , 2016 ONCA 574, 342 C.C.C. (3d) 236, at paras. 18-19. It does not purport to offer a formula for overcoming facially unassailable exculpatory evidence. [33] Put otherwise, the prerequisite terms, “considered and reasoned”, were chosen because J.J.R.D. was about the sufficiency of reasons. These terms are meaningful in a sufficiency of reasons case. They direct appellate courts to ask what the trial judge’s reasons for decision reveal about the basis for conviction, and whether those reasons provide a pathway to conviction by showing that a decision to convict without identifying problems with the exculpatory evidence was based on a considered and reasoned acceptance of the truth of conflicting credible evidence beyond a reasonable doubt. In contrast, those same terms, “considered and reasoned”, offer no guidance to a trier of fact about when it is appropriate to convict in the face of exculpatory evidence that has no obvious flaws. Since every decision a trier of fact is to reach must be considered and reasoned, telling the trier of fact that it may reject exculpatory evidence beyond a reasonable doubt based on considered and reasoned acceptance of conflicting evidence adds nothing. Indeed, doing so in a jury trial runs the risk of planting the suggestion that this determination must be considered and reasoned, whereas the other W.(D.) conclusions, less so. [34] Simply put, the “considered and reasoned” language in J.J.R.D. has nothing to do with a W.(D.) direction, adds nothing of use to a W.(D.) direction, and may even be misleading. [35] Third, I agree with C.L. that inserting paragraph 3 in the W.(D.) direction as the trial judge did in this case resulted in an uneven charge. As I have stressed, the W.(D.) formula functions by instructing jurors on the implications of the alternative possible conclusions that can arise from credibility evaluation where there is exculpatory evidence and conflicting inculpatory evidence. Proposition 3 does not do so. It does not describe a conclusion and its consequences, but rather purports to describe a mode of reasoning. Indeed, it describes a mode of reasoning that will result in conviction. Expressly inserting only one mode of reasoning into the W.(D.) charge can only serve to emphasize its importance over other competing modes of reasoning, which is not appropriate, particularly not when the only mode of reasoning inserted is inculpatory. [36] Even the place where proposition 3 was inserted, immediately after propositions 1 and 2, adds to the unevenness of the charge. Proposition 1 and 2 describe the two circumstances in which C.L.’s testimony could lead to an acquittal. To then immediately describe a way in which C.L.’s testimony can be overcome even if it is without obvious problems could well diminish the importance of propositions 1 and 2 in the eyes of a juror. [37] Fourth, I accept C.L.’s concern that featuring a mode of reasoning that focuses on the comparative value of the conflicting evidence in a “he said/she said” case increases the risk that jurors might engage in credibility contest reasoning. This is perhaps the key mischief that the W.(D.) decision intended to ameliorate, the very risk that materialised in that case and that featured in the reasoning in Challice , at pp. 554-57. I appreciate that jurors are to consider the whole of the charge, and jurors faithful to propositions 1, 2, 4, and 5 would not simply decide which version of events to prefer. For that reason, I would not find the charge to be in error on this basis alone. Still, the increased risk of confusion that could arise by featuring a contrast between the inculpatory and exculpatory evidence in a “he said/she said” case underscores further why a such an instruction should not be inserted into a W.(D.) charge. [38] Finally, although there may be exceptional cases where it is appropriate to alert jurors that they may reject defence evidence outright and find guilt beyond a reasonable doubt based on the strength of the Crown case despite finding no identifiable material flaws in that defence evidence, this is not one of them. Given the problems with the complainant’s evidence and the absence of supporting evidence, there is no air of reality to the proposition that a jury could fairly convict C.L., even if unable to identify any material flaws in his evidence. A jury direction should relate to the needs of the specific case. This case did not call for such a direction. B. THE REASONABLENESS OF THE VERDICT [39] C.L. argues that the complainant’s testimony was so problematic that a finding of guilt, in the face of C.L.’s testimony, was unreasonable. I am not persuaded that the verdict was unreasonable. The unreasonable verdict standard is high. In R. v. Charlton , 2019 ONCA 400, 146 O.R. (3d) 353, at para. 61, this court recently re-iterated the relevant standard in credibility cases: In evaluating the reasonableness of the jury’s verdict in a case that turns on findings of credibility, the reviewing court must ask whether the jury’s verdict is supportable on any reasonable view of the evidence: R. v. W.H. 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 2. The reviewing court must remain mindful that the trier of fact is best-placed to assess the significance of any inconsistencies in the witnesses’ testimony, and their motive to lie: R. v. François , [1994] 2 S.C.R. 827, at pp. 835-837; R. v. Beaudry , 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 4, 63. [40] I have already expressed my view that this would not have been a proper case for an outright rejection of C.L.’s evidence based solely on the complainant’s testimony, had the jury found no material flaws in C.L.’s testimony. There are obvious risks in rejecting exculpatory evidence where that evidence is immune from cogent criticism. One would think that the credibility of inculpatory evidence must be particularly impressive before that evidence can be credited beyond a reasonable doubt in the face of otherwise unassailable exculpatory evidence. As I have said, the complainant’s evidence was not compelling enough to accomplish this, had the jury taken the view that it could find no material flaws in C.L.’s testimony. [41] However, C.L.’s testimony was not without problems of its own. For example, the jury could have taken the view that C.L.’s testimony that he suddenly changed his mind about wanting to have a relationship with the complainant was implausible, or the jury may have been troubled by his admitted lie about being drunk when he had sex with the complainant, or it may have rejected C.L.’s claim that the complainant’s brother reluctantly agreed that C.L. could date the complainant, which the brother denied in his evidence. For these and other reasons the jury could reasonably have taken the view that C.L.’s testimony itself was flawed and should therefore be rejected as incapable of raising a reasonable doubt as to his guilt. It could also have concluded in the absence of credible exculpatory evidence that the complainant’s evidence should be believed beyond a reasonable doubt, despite its problems. Since a reasonable conviction could have been fashioned in this way, this ground of appeal must be dismissed. [42] Because the verdict was not unreasonable on at least one reasonable view of the evidence the unreasonable verdict appeal must be denied. CONCLUSION [43] I would therefore find that the trial judge erred in proposition 3 of her W.(D.) direction to the jury, set aside C.L.’s conviction, and order a new trial. [44] As a result of the COVID-19 emergency, the panel relieved C.L. from the term of his bail that requires him to surrender into custody prior to this decision being released. Released: “A.H.” April 16, 2020 “David M. Paciocco J.A.” “I agree. Alexandra Hoy A.C.J.O.” “I agree. I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Hartling, 2020 ONCA 243 DATE: 20200403 DOCKET: C63569 Benotto, Paciocco and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Gordon Hartling Appellant Danielle Robitaille, for the appellant Christopher Webb, for the respondent Heard: January 16, 2020 On appeal from the conviction entered by Justice John Kukurin of the Ontario Court of Justice on August 13, 2014, with reasons reported at 2014 ONCJ 769, and the sentence imposed on October 9, 2015. Benotto J.A.: [1] Following an afternoon of heavy drinking with her adult son and boyfriend, the complainant was seriously assaulted. She told first responders that her son was responsible. The son was charged. The mother testified for the Crown that her son attacked her and her boyfriend following an argument. Months later the trial resumed. This time the mother testified for the defence. She changed her testimony and said that it was her boyfriend – not her son – who attacked her. [2] The son was convicted of aggravated assault against his mother, assault causing bodily harm against the boyfriend and two counts of breach of probation. He was given a global sentenced of 30 months in custody. [3] The son appeals his convictions and sentence. He seeks to rely on fresh evidence from an expert in blood spatter patterns to support his position that it was not him but the boyfriend who attacked his mother. He alleges that the trial judge erred by relying on his mother’s utterances to the first responders. Further, he submits that he received ineffective assistance at trial because his counsel did not retain a blood spatter expert, did not pursue his s. 10(b) right to silence nor his s. 11(b) rights to a trial and sentence within a reasonable time. He seeks a new trial or a reduced sentence to remedy the post-verdict sentencing delay. [4] For the reasons that follow, I would dismiss the conviction appeal, stay the second breach of probation charge, and allow the sentence appeal in part. FACTS [5] On March 8, 2012, the appellant, Gordon Hartling was visiting his mother, Sharon Hartling who was at home with her then-boyfriend Francis Gill. At the time, the appellant was 41 years old, Ms Hartling was 64 and Mr. Gill was 62. All three were sitting in the living room drinking several bottles of sherry and becoming intoxicated. An argument began and erupted into violence. [6] Two versions of events unfolded at trial when Ms Hartling testified first for the Crown and next for the defence. Evidence for the Crown [7] The Crown’s case was supported by the evidence Ms Hartling gave when called as a witness by the Crown, and the evidence of Mr. Gill. Both testified that an argument between the appellant and Ms Hartling focused on whether she showed favouritism to his sister. Ms Hartling said she did not want to argue and got up to go to her bedroom. At this point the appellant punched her twice in the back of the head, knocking her out. Mr. Gill intervened, and the appellant turned on him. The appellant hit and kicked Mr. Gill until he fell to the floor. Mr. Gill told Ms Hartling to get help. He was then rendered unconscious. When he woke up, he called to Ms Hartling, did not see her, so left. [8] Meanwhile, Ms Hartling had gone to her bedroom ostensibly to call 911. Her next memory is waking up in hospital with numerous severe injures. The Crown contended that the appellant continued beating his mother in her bedroom, where forensics later identified a great deal of blood spatter. [9] It is unclear how 911 was contacted but someone did call because emergency ambulance responders arrived: two paramedics, two firemen and a police officer. One of the firemen recalled seeing the appellant walk from Ms Hartling’s room to another bedroom. Mr. Gill was not there. [10] The first responders found Ms Hartling in her bedroom. She was sitting on the bed holding her nose. She was crying, clearly intoxicated and bleeding. She, the walls and the bedding were covered in blood. They asked what happened. Paramedic Onofrio, the first person to see her, said she said that her son hit her several times, initially in the living room then when she tried to call for help, and that he continued beating her in the bedroom and ripped the phone from her. Fireman Johns testified that he heard her say that she could not believe her son did this to her. She repeated that statement many times as they tried to get information for a medical history. Sergeant Bell, who saw her being taken out of the home on the gurney, asked her what happened, and she said that her son beat her up. [11] Ms Hartling’s injuries were severe. She suffered a broken ankle, broken finger, all her left orbital bones were broken into small pieces, her nose was fractured in four places and her nose cartilage disintegrated. Portions of her skin were displaced. She was in Intensive Care at the hospital for over a month. While there she suffered a stroke and contracted pneumonia. [12] Mr. Gill suffered bruises, sore ribs, shoulder injuries, sore jaw and sore leg. Evidence for the defence [13] Several months later, Ms Hartling testified for the defence and she recounted a different scenario. This scenario is relied upon by the appellant who contends that Mr. Gill and Ms Hartling were the ones who started the altercation. Specifically, Ms Hartling confronted Mr. Gill and slapped him, and he slapped her back, causing her to fall back on a chrome kitchen chair. The chair moved and she fell, further hitting her face on the base of the dining room table. The appellant then intervened and had a “scuffle” with Mr. Gill. The appellant punched him and told him to leave. Ms Hartling says she then got up and snatched a nail file and was poking at both men to get them apart. She said the son noted that she was bleeding, and he helped her to her bedroom. She said it was the appellant who called 911 even though she did not want the police involved. All the while she said she drifted in and out of consciousness. She claimed that it was contact with the chair and/or table that caused her injuries. [14] The appellant did not testify. The trial [15] The trial in the Ontario Court of Justice was plagued with delays. [1] Ms Hartling gave the evidence outlined above as part of the Crown’s case in February 2013. Fifteen months later in May 2014, she testified for the defence. [16] Between those two dates, in December 2013, the trial judge conducted a voir dire with respect to the admissibility of Ms Hartling’s statements to the first responders. In addition, she and Mr. Gill separated. Voir dire [17] The trial judge found that Ms Hartling’s statements to first responders met the criteria for a res gestae statement because: (1) they were made under ongoing stress of a dramatic event, (2) the statement related to the occasion that caused the stress, and (3) there was little or no possibility of concoction or fabrication. Specifically, the statements were made right after a severe attack, and there was little time for her to have thought of a fictitious story, nor was she in a state of mind to do so. [18] He then considered the principled approach to hearsay and determined that admission of the evidence was necessary and reliable. First, the trial judge found the evidence necessary because Ms Hartling could recall what happened to her. Second, there was threshold reliability, based on the following circumstances: · statements made while she was still in the throes of stressful, extraordinary events; · statements which were consistent inter se ; · some statements were unprompted; · she had no one with whom to collude at the time; · her intoxication level was not so high as to nullify or severely discount the believability of her statements; · she understood questions and responded appropriately. Expert testimony regarding bloodstains [19] The police took photographs of the home. There was blood throughout including in the living room, the hallway, the master bedroom and the guest bedroom. [20] Staff Sergeant Jason Hlady was qualified as a bloodstain pattern analysis expert on consent. He had 17 years of experience with the OPP and received advanced education and training in the field. He provided a basic education to the court regarding bloodstain pattern analysis and explained the conclusions he drew from the bloodstain pattern evidence at Ms Hartling’s home. [21] He opined that the there were impact patterns on the wall of Ms Hartling’s bedroom attributable to at least one strike to something that already had blood on it. The stains could also be caused by multiple strikes to the same object covered in blood as it remained stationary. This impact pattern has a “transfer pattern with wispy features” indicating that hair had come in contact with this area of the wall. After the hair contacted the bloody section of the wall a heavy blood stain flowed down over this contact pattern. The size, shape and distribution of the bloodstain patterns on Ms Hartling’s bedroom wall are typical of what Staff Sergeant Hlady would see as a result of an assault or a beating. They are caused by a force being applied to a blood source already covered in wet blood being struck. The patterns on the wall are not consistent with coughing, sneezing, spitting or otherwise throwing blood. They do not have the directionality that such patterns would display. Their placement on the wall means the beating would have occurred at the height of the chair arm or mattress, approximately 16.9 inches from the floor. Decision below [22] The trial judge found that the Crown had proven beyond a reasonable doubt that it was the appellant who inflicted injuries on his mother. He rejected the defence theory that the injuries were caused by a slap by Mr. Gill and a resulting fall. The trial judge preferred the testimony of Mr. Gill and Ms Hartling’s Crown evidence. He found that Ms Hartling likely changed her story after realizing her son was in serious trouble, and at this point, she had broken up with Mr. Gill. Her contention that she sustained her injuries by being slapped and falling into a chair and table, were inconsistent with the extent of her injuries and with the forensic evidence. There was extensive blood in her bedroom, rather than the living room where the chair was located. The trial judge also considered her statements to the paramedic and found her defence evidence not to be credible. [23] He further found that her evidence about intervening in the fight between Mr. Gill and the appellant to be incredible. During that time, she was sliding in and out of consciousness, bleeding profusely, had fractured her ankle and suffered the serious injuries referred to above. Her first account accorded with the photographs of the injuries. [24] The trial judge found the appellant guilty of aggravated assault against Ms Hartling, assault against Mr. Gill, resisting arrest and two counts of breach of probation. In his reasons, he stated that it was clear that the appellant had been drinking contrary to the terms of probation and, therefore, he had breached the prohibition on drinking and the requirement of good behaviour. [25] Mr. Hartling was sentenced to a 30-month sentence: 24 months for aggravated assault, six months consecutive for assault causing bodily harm, two months concurrent each for resisting arrest and the two breaches of probation. Following 8.2 months of pretrial custody, he was sentenced to 21.8 months of incarceration. Position of the appellant [26] The appellant appeals his conviction and sentence. He seeks to admit the fresh evidence of an expert to show that blood stains in the bedroom were likely caused by expiration (coughing or sneezing), as the hospital records show that Ms Hartling had blood in her airways. He submits that the trial judge misapprehended the forensic evidence and erred by admitting the statements to the first responders. He argues that he had ineffective assistance because trial counsel failed to call an expert to rebut the Crown’s blood spatter evidence, failed to challenge the admission of a statement he made, and failed to inform him of his s. 11(b) rights before and after conviction. [27] He appeals the sentence on the basis that the trial judge erred by failing to give effect to the mitigating factors of the appellant’s alcohol addiction and family history of violence. ISSUES [28] The appellant has raised three issues in his principal argument: (i) the trial judge misapprehended the forensic evidence; (ii) he erred in admitting the statements to the first responders; and (iii) he erred in not applying the Kienapple principle to the breach of probation charges. In his fresh evidence application, he raises additional issues, namely: (i) the fresh evidence of a blood spatter; (ii) breach of his s. 11(b) rights before and after conviction; (iii) ineffective assistance of trial counsel because no blood analysis expert was called and his s. 10(b) rights were not pursued with respect to his statement to Sgt. Bell. [29] I address the issues in the following order: 1. Should the fresh evidence be admitted? 2. Did the trial judge misapprehend the forensic evidence? 3. Did the trial judge err by admitting the statements to the first responders? 4. Did the trial judge err by not applying the Kienapple principle to the breach of probation charges? 5. Did trial counsel provide ineffective assistance? 6. Were the appellant’s s. 11(b) rights violated? 7. Did the trial judge err in principle by imposing the sentence? ANALYSIS (1) Should the fresh evidence be admitted? [30] I explain the evidence sought to be admitted, the principles to be applied and the application of those principles. The fresh evidence [31] Ms Hartling’s testimony for the defence was that there had been no assault in the bedroom. The expert testimony at trial was that the blood stains on the wall of the bedroom were the result of a beating or assault. Staff Sergeant Hlady rejected the suggestion put to him by defence counsel that the blood stain on the wall could have come from the expiration of the blood during Ms Hartling’s coughing or sneezing. [32] The appellant seeks to introduce the evidence of forensic consultant, Joseph Slemko, who concluded that the stains on the wall were consistent with an expiration pattern because of the presence of “near-misted” blood and diluted blood. The perpendicular direction that the stains appeared to originate from, he opines, was more consistent with expiration than an impact event. [33] The appellant submits that this evidence undermines the Crown’s evidence that the blood on the bedroom walls was caused by a beating. The principles [34] An expert must be properly qualified and willing to fulfil the duty to the court to provide evidence that is impartial, independent and unbiased. In White Burgess Langille Inman v. Abbott and Haliburton Co. , 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 32, the Supreme Court noted: Underlying the various formulations of the duty are three related concepts: impartiality, independence and absence of bias. The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party’s position over another. [35] A consideration of the admissibility of fresh evidence on appeal begins with R. v. Palmer , [1980] 1 S.C.R. 759. There, at p. 775, the court articulated the following principles: (1) The evidence should generally not be admit­ted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases . (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief, and (4) It must be such that if believed it could reasonably, when taken with the other evi­dence adduced at trial, be expected to have affected the result. [36] These criteria have been somewhat refined to a three-part inquiry: (1) Is the evidence admissible under the operative rules of evidence; (2) Is it sufficiently cogent such that it could reasonably have affected the verdict; (3) What is the explanation for the failure to adduce the evidence and should the explanation affect admissibility? (See: Truscott (Re) , 2007 ONCA 575, 226 O.A.C. 200 at para. 92; R. v. Plein , 2018 ONCA 748, 365 C.C.C. (3d) 437, at para. 56; also R. v. Manasseri , 2016 ONCA 703, 132 O.R. (3d) 401, at paras. 205 and 213). Principles applied [37] I consider first the qualifications of Mr. Slemko, whether he is an unbiased expert, and whether the proposed testimony is sufficiently cogent to have reasonably affected the result. [38] Mr. Slemko has not worked as a bloodstain analyst since 1998. Nor has he consulted for the police since then. Since 2015 he has been an accident reconstructionist in the collision investigation unit of the Edmonton Police Service. He received his training during a five-day course in 1994, and another course in 1997. He has not taken other substantive courses. He testified that he does not get paid for his bloodstain analysis work, so his accountant calls it a hobby. He was unfamiliar with the leading text on the subject published in 2015. [39] I also have concerns about his willingness to provide impartial evidence to the court. A full reading of his cross-examination discloses an unwillingness to fulfil his duty to provide unbiased opinion. The Supreme Court explained in White Burgess that the “acid test [for unbiased expert evidence] is whether the expert’s opinion would not change regardless of which party retained him or her.” [40] When confronted during cross-examination with journal-article examples of expiration events, he conceded that they did not resemble the spatter on the bedroom wall but was quick to point out that this divergence did not necessarily exclude the possibility of his expiration theory. When asked about the precise location of the high velocity particles that would arise from sneezing or coughing, he refused to substantiate his position. When asked about the apparent absence of mucus blood stains and air bubbles in scene photos, Mr. Slemko did not budge in terms of his theory: “if they’re not present … it’s not going to change my opinion at all that this is consistent with expirated blood”. He went on to say about the same issue: “I haven’t been able to see it because of the type of photography that was conducted. It may or may not be there. It if isn’t, that is not going to change my opinion”. [41] Mr. Slemko later conceded that his use of terminology in the report – “misted” rather than “near-misted” – was in error, but would not concede what seems a logical consequence: that the discrepancy at least somewhat weakened his opinion in favour of the expiration theory. In multiple instances Mr. Slemko was confronted with the limitations of his analysis – the granularity of his examination of scene photos, for example – and chose to remain adamant in his opinion. [42] Having reviewed the cross-examination, it appears that in both substance and tone, Mr. Slemko’s opinion was one-sided and did not reflect the independent, objective analysis required for an expert. [43] A combination of his lack of qualifications together with lack of independent judgment leads me to find his testimony inadmissible. But there is an additional reason: the evidence is not sufficiently cogent to have affected the result. The trial judge did not base his findings solely on the Crown’s expert evidence. He explicitly stated that the “forensic and photographic evidence do not lead to an inevitable conclusion that the son beat the mother”. Further, he acknowledged that the fact that bleeding occurred in the bedroom “does not link the son as the perpetrator of an assault on the mother”. [44] The trial judge rejected Ms Hartling’s defence evidence in part because, had she in fact started bleeding by the chair in the dining room or the living room, there would have been “copious amounts of blood” on the table, in the hallway and into the bedroom. There were not. The copious amounts of blood were in the bedroom. These findings are discussed in more detail below. [45] I would not admit the fresh evidence. (2) Did the trial judge misapprehend the forensic evidence? [46] The appellant submits that, when the trial judge said there was no blood in the dining or living room, he misapprehended evidence. The impugned finding relates to his rejection of Ms Hartling’s testimony that the main cause of her injuries was what happened when she fell on the dining room chair and/or table base. The trial judge said: [ 36 ] It is clear from the mother’s later testimony as a defence witness that she was bleeding after striking the table base. In fact, she said that she was bleeding “profusely”. She claims that her son noted that she was bleeding and commented on this when he first realized it. Later, while in the bedroom, she says that it was her son who wanted to call 911 because she was still bleeding. The mother stated that she was hit only once, a slap by the boyfriend. No one else struck her. The only inference to be made from this is that the bleeding was caused by her head striking the base of the table or the chair. [ 37 ] The forensic evidence does not support this at all. If what the mother recounts as a defence witness is true, there should have been copious amounts of her blood on the base of the table, on the floor in the dining room near the table, and down the hallway from the dining room area to her bedroom doorway. There was no report of any blood, much less her blood, in any of these locations. There were, however, in the forensic and first responders’ evidence, reports of quite a bit of blood on the mother, on her clothing, on her bedroom walls and on bedding in her bedroom. It is inconceivable that the mother was bleeding in the dining room or living room area with absolutely none of her blood found there. That she was bleeding while still there is clear from her own evidence that her son commented to her that she was bleeding and that, after noting this, he helped her down the hallway to her bedroom. [Emphasis added.] [47] The appellant says this is not an accurate reflection of the evidence. He points to the photographs showing “apparent” blood spatter on the living room curtains and photos that show something that could be blood on the doorframe to the bedroom [48] In my view, these photographs are not inconsistent with the trial judge’s findings. They do not show copious amounts of blood. All the evidence, including that of Ms Hartling, is that she was bleeding profusely. The small amounts of what could be blood on the curtains and the doorframe pale by comparison to the bedroom walls and linens that were covered in blood. Had her defence evidence been true, there would have been a significant amount of blood in the area of the table and chair. There was not. Moreover, her testimony that after she hit her head, she witnessed a scuffle between her son and Mr. Gill, and tried to poke them with a nail file while bleeding profusely, further demonstrated why there would be blood in the area. Simply put, the trial judge did not misapprehend the photographic evidence in finding that it did not support Ms Hartling’s defence evidence. [49] In concluding that the appellant was responsible for Ms Hartling’s injuries the trial judge relied on the evidence of Mr. Gill, and the sheer illogic of Ms Hartling’s defence evidence. (3) Did the trial judge err by admitting the statements to the first responders? [50] The trial judge admitted several statements made by Ms Hartling to first responders. Paramedic Onofrio was the first person to see her. On entering Ms Hartling’s bedroom, he saw her sitting on the bed holding her nose. Paramedics and firemen described her as crying, intoxicated and covered in blood. She had an obvious fracture by her orbital bone and a broken nose. [51] They asked her what happened and who did this to her. Ms Hartling replied “my son. He’s up here visiting … I can’t believe he would do this to me.” She repeated that statement many times as they tried to get information for a medical history. [52] She went on to say that her son became agitated, aggressive and hit her, initially in the living room, then hit her again in the bedroom. As she tried to call for help, he ripped the phone away from her. [53] As Ms Hartling was being wheeled out of her bedroom, Sgt. Bell asked her what happened. She said her son did it. [54] The trial judge admitted these statements into evidence for the truth of their contents under the spontaneous utterance (which he also referred to as “ res gestae” ) exception and, alternatively, under the principled approach. [55] The appellant submits that the trial judge erred in applying the spontaneous utterances exception because there was, at the time the statements were made, the possibility of concoction or fabrication. Ms Hartling and Mr. Gill could have collaborated. Further she was clearly drunk and could have mixed up Mr. Gill with her son because she said that her son (not Mr. Gill) had left. The appellant also points to the gap in time between the attack on her and the statements to the first responders. [56] The appellant says that these same factors also should have eliminated the trial judge’s use of the principled exception to the hearsay rule. [57] Again, I refer to the principles and their application to these facts. The principles [58] I begin with R. v. Khan ( 1988), 27 O.A.C. 142, at pp. 207-8: The test for determining admissibility, as Lord Wilberforce framed it in Ratten v. The Queen , supra at pp. 389-90, is the following: ... [T]he test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. The rationale for this hearsay exception lies in the trustworthiness of the utterance which is regarded as furnished by an occurrence of so startling or shocking a nature as to suspend the declarant's ability to reflect and fabricate. [59] John Henry Wigmore [2] suggests that the phrase “ res gestae ” which implies contemporaneousness is not correct. Rather, the statement that is made in circumstances of reliability is admissible because there is no opportunity for concoction. Wigmore’s point is that reliability derives not from contemporaneity, per se , but from the fact that the declarant is so overwhelmed with, or shocked by, the pressure or involvement of the event that the declarant would have no real opportunity for the reflection required to concoct a story. My colleague has written that rather than describing this as a res gestae exception the better – and more descriptive – phrase is “spontaneous statement”. [3] To be clear, since the sense of pressure or involvement in the event will reduce over time, temporal considerations are not immaterial, but the focus must be on whether the effects of the pressure or involvement from the event are operating at the time the statement is made. [60] In R. v. Nicholas (2004), 70 O.R. (3d) 1 (Ont. C.A.), this court considered a 10-minute gap between the event and the utterance. There, a complainant awoke to find someone standing by her bed. The intruder repeatedly hit her on the head, covered her face with a pillow and had intercourse with her. She made an 11-minute 911 call approximately ten minutes after the intruder left. In determining that the statement was admissible, the court referred to R. v. Dakin (1995), 80 O.A.C. 253. In that case, the accused was charged with the murder of two women who died as a result of burns. The Crown sought to introduce statements made by one of the women an hour after the fire. The court cited Khan , at p. 207: [A] spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive or misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received. [Emphasis added] [61] Therefore, while a temporal connection to the event that triggered the statement is a factor, it is not determinative. The admissibility is an issue to be determined by the trial judge. Principles applied [62] The trial judge admitted all the statements made to the first responders that were made in Ms Hartling’s home while being treated and prepared for the ambulance. [63] There was no direct evidence of the time between the 911 call and the arrival of the first responders. The Hartling home was 15 minutes from Sault Ste. Marie where the responders originated from. As the trial judge said in his ruling: Although no specific evidence was presented as to the lapse of time between the traumatic event (or events) between the son and the mother, from the totality of the evidence can be drawn the inference that the time interval was not very lengthy. The mother was still bleeding from her mouth and from her orbital area. Her highly emotional state, her crying and her repetitive exclamations suggest that what had taken place between her son and her was relatively recent. Her words “Help me, help me”, suggest a perceived danger that was still close at hand, or, at least very recently had been. [64] All of the statements satisfy the requirements of the spontaneous statement exception. With the exception of the statement to Sgt. Bell, they took place in Ms Hartling’s bedroom. The statement to Sgt. Bell took place in the hallway outside of her bedroom. [65] The trial judge found that the statements were made under the stress of a dramatic event and she was repeating herself over and over. Further, the beating was the trigger for the statements. She was emotional and still bleeding when the first responders arrived and spoke to her. [66] The appellant submits that there was opportunity to concoct, because Mr. Gill said that when he awoke he called and looked for Ms Hartling. He argues that this would have given Mr. Gill an opportunity to have Ms Hartling concoct a story. However, Mr. Gill’s evidence was that he did not see Ms Hartling after he was knocked unconscious. Even in Ms Hartling’s defence testimony she said that she was “in and out of consciousness” and barely recalls the ambulance arriving. The trial judge’s ultimate conclusion that “she was still and very clearly, under the stress and pressure of the assault upon her when she made the statements in question” refutes the allegation of concoction and is entitled to deference. [67] The trial judge did not err by admitting the statements as spontaneous utterances. I note in any event that he also admitted the statements pursuant to the principled approach. In light of my conclusion, it is not necessary to discuss this approach. (4) Did the trial judge err by not applying the Kienapple principle to the breach of probation charges? [68] The trial judge convicted the appellant on two counts of breach of probation: one related to his consumption of alcohol; the other the requirement to keep the peace and be of good behaviour. On the first count it was clear that he breached his probation by consuming alcohol. But the trial judge said that by consuming alcohol he was also not “being of good behaviour” so he breached that condition as well. The trial judge did not rely on any other conduct for the second count. [69] In my view, the second charge should have been stayed because the trial judge relied on the same conduct to ground both charges. [70] The Crown agrees that the trial judge erred but submits that the curative proviso should be applied to the second count because there was other conduct that clearly violated the terms of the probation order. I do not agree. While the appellant committed numerous offences that could ground the second breach, I would not apply the proviso. The trial judge specifically relied on the consumption of alcohol to ground the second count. I am unable to say whether, but for the Kienapple error, he would have found the appellant guilty of the second count. Nor do I think that, in the circumstances of this case, the interests of justice require that the proviso be applied. (5) Did trial counsel provide ineffective assistance? [71] The appellant alleges that his trial counsel provided ineffective assistance by not obtaining an independent bloodstain pattern analysis report. He also contends that counsel was ineffective in not challenging the constitutionality of the statement he made to Sgt. Bell pursuant to s. 10(b) of the Charter . [4] Specifically, before the appellant was advised of his right to counsel Sgt. Bell noticed blood on his hands. She asked him what happened, and he replied: “it is what it is”. The principles [72] An ineffective assistance of counsel claim has two components: performance and prejudice. The appellant must show that (i) trial counsel’s acts or omissions amounted to incompetence, and (ii) a miscarriage of justice occurred: R. v. Prebtani , 2008 ONCA 735, 243 O.A.C. 207, at paras. 3-4. [73] To establish a claim of ineffective assistance of counsel, the appellant must establish: 1. The facts that underpin the claim; 2. That counsel’s representation was inadequate; and, 3. That counsel’s inadequate representation resulted in a miscarriage of justice. [74] This test presents a high bar that is not easily met: R. v. Cherrington , 2018 ONCA 653, at para. 25. As Watt J.A. explained, once the first step of the test is established, the analysis turns to the third step, or the prejudice component, of whether there was a miscarriage of justice. If there was no prejudice, then it is “undesirable” for the court to proceed to the second step, or the performance component, of the test: R. v. Girn , 2019 ONCA 202, 373 C.C.C. (3d) 139, at para. 92. The analysis under the performance component “proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”: R. v. G.B.D. , 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27. The presumption of competence “is tested against a standard of reasonableness, and accords no place to hindsight”: Cherrington , at para. 26; see also G.B.D. , at para. 27. The principles applied with respect to the expert [75] In my view, the appellant cannot meet the threshold requirement of prejudice. There was no miscarriage of justice. As I have already stated, the trial judge did not base his findings solely or even mainly on the Crown’s expert evidence. Recall he said the “forensic evidence and the photographic evidence do not lead to an inevitable conclusion that the son beat the mother” (emphasis added). And, while the evidence established that the bleeding occurred in the bedroom, the expert evidence “does not link the son as the perpetrator of an assault on the mother”. [76] Even if trial counsel had retained an expert, establishing that coughing – not impact – caused the blood spatter, that does not change the fact Ms Hartling’s blood was found on the bedroom walls, not elsewhere in the house. Notably, even the appellant’s expert agrees that if a “significant bloodletting event” had happened somewhere else in the house, like the living room, there would be blood spatter patterns in that spot. Photographic evidence corroborates the Crown expert’s view and the trial judge’s finding. Even to an untrained eye, the photos show profuse quantities of blood smeared across the bedroom wall. [77] Moreover, it appears defence counsel made a strategic decision not to call an expert. Counsel’s cross-examination of Staff Sergeant Hlady established evidence favourable to the defence: the photos were not the best evidence on which to form an expert opinion; and he conceded that he speculated that an assault caused the blood spatter. It cannot be said, in the circumstances, that the only adequate choice counsel could have made at trial was to retain a defence expert. The principles applied with respect to the exclusion of the appellant’s statements [78] Although the appellant did not testify, the trial judge relied on evidence presented about him when determining whether he was the person who caused the injuries to his mother. He said that the appellant made a statement to Sgt. Bell when she asked what had happened: His response was “It is what it is” . This is not the response one would expect from a person who was aware of his mother’s distressed condition and who cared for her. Nor was it the response of a son who had helped his mother after she was slapped by her boyfriend. [79] In his appeal factum the appellant submits that counsel failed to challenge the admissibility of this statement on the basis of voluntariness and the police did not caution the appellant on his Charter right to remain silent until after he was detained in a cell at the station. The voluntariness argument was not pressed in oral argument, only the failure by trial counsel to bring a s. 10(b) challenge. I will nonetheless address the voluntariness issue briefly. [80] Counsel did not challenge the voluntariness of the statement at trial, and the appellant has not appealed on the basis that the trial judge failed to conduct a voir dire . I would reject the argument that was raised in the factum, that trial counsel was ineffective in failing to challenge the voluntariness of the appellant’s statement. There is no air of reality to the prospect that the statement would have been found to be involuntary if there had been a challenge. The trial judge found that statement to have been spontaneous. There were no inducements or coercion revealed on the record, and no oppression. The failure to raise voluntariness therefore caused no prejudice. [81] I conclude that the failure to bring a s. 10(b) Charter claim did not result in a miscarriage of justice. I say this for two reasons. [82] First, although the trial judge considered the impugned statement, this factor was not central to the trial judge’s reasoning. The trial judge took a number of other factors into account – namely, that the appellant was the “only other person in the house when first responders arrived” and that remnants of the broken cord of the telephone were found in his bedroom. When the first responders entered the home, “a male person was seen moving from the mother’s bedroom to the guest bedroom” before the mother was found in her bedroom with severe injuries. In her first version of events, Ms Hartling said she had gone to her bedroom to call the police, had picked up the phone, and that was the last thing she remembered. The telephone cord leads to the inference the appellant “took it from the mother and brought it to his bedroom”. [83] Second, the appellant was not detained when he made that statement. One of the firefighters, Mr. Nolan, was concerned the appellant was going to be aggressive, so he kept the bedroom door closed to avoid “‘deal[ing] with him’ while they were treating Ms Hartling”. He closed the door so that the paramedics could “do their job” without him getting in the way. This type of detention is not the same as being detained by law enforcement. Nothing prevented the appellant from leaving the house. [84] I note here as well that trial counsel’s decision not to challenge the admissibility was strategic. He testified that the right to counsel was not a “great argument”. [85] There was no miscarriage of justice with respect to counsel’s decision not to challenge the statement to Sgt. Bell. (6) Did the trial judge err in principle in imposing the sentence? [86] The appellant submits that the trial judge erred in principle by failing to give effect to the mitigating factors of the appellant’s alcohol addiction and history of family violence. [87] I do not agree . The trial judge’s reasons for sentence provided due consideration to the relevant aggravating and mitigating factors, including the Gladue report. I see no error in principle. [88] The appellant further submits that the sentence should be clarified so that it is served in a provincial reformatory as intended by the trial judge when he said: I am particularly aware that the duration of incarceration would place the offender in a provincial correctional institution as opposed to a penitentiary. That is my intention. [89] The Crown agrees and understands that the sentence is to be served in a provincial reformatory. There is no need for further clarification by this court. (7) Were the appellant’s s. 11(b) rights violated? [90] The appellant alleges that his s. 11(b) Charter rights were violated both pre- and post- conviction. Pre-verdict delay [91] There is no doubt that the trial was plagued with delay. [5] The total delay was 29 months. However, ten months of the delay is attributable to the defence: a six- month delay which resulted directly from a meritless recusal motion brought by the defence; a two-month delay representing the difficulty rescheduling after the motion; and another two-month delay when the defence asked for time to prepare closing submissions. I will address the recusal motion in some detail to explain why it is defence delay. [92] The defence asked the trial judge to recuse himself after he made the following comment: So, I have a real inconsistency here that you both are leaving me with and saying you deal with it. So, I am dealing with it to try and find out why, why is it that she could see something and remember something when she has told both of you that she didn’t. [93] Based on this one comment alone, which the defence argued was an inappropriate question by the trial judge, the defence brought a recusal motion alleging a reasonable apprehension of bias. The bar for reasonable apprehension of bias is high, and this case clearly did not meet the standard. The trial judge’s comment was not inappropriate, nor did it prejudice the accused. The recusal motion had no merit. Accordingly, the six-month period of delay caused by the recusal motion should be attributed to the defence. In addition, the subsequent delay that was caused while waiting for trial to resume was also attributed to the accused. The recusal motion resulted in a delay of an additional two months because of the time for a ruling and the difficulty of rescheduling the continuation. [94] There was also an exceptional circumstance delay of two months caused by the appointment of initial trial counsel to the bench and a two-month delay when the defence asked for time to prepare closing submissions. [95] After these periods of 12 months are subtracted, there are 17 months of remaining delay, which does not surpass the presumptive ceiling. There was no pre-verdict delay causing a s. 11(b) breach. Post-verdict delay [96] The post-verdict delay is another matter. It took 14 months after conviction for the sentence to be imposed. This delay was not caused by ineffective judicial management. It was not caused by the appellant, nor was it caused directly by the actions of the prosecutor. It was caused by the lack of institutional resources to obtain a Gladue report. [97] Immediately upon conviction, trial counsel obtained an order for a Gladue report from the trial judge. However, court administration services denied funding. At the time – as difficult to understand as it seems – there was only one Gladue writer in the Algoma district. There were no Gladue writers provided by Aboriginal Legal Services in the Algoma district. Therefore, there were only two options: (a) paying privately out of pocket; or (b) obtaining Legal Aid funding. Ultimately, the appellant, with the assistance of his counsel, chose to pay privately. [98] The issue of post-verdict delay was addressed by this court in R. v. Charley, 2019 ONCA 726, 147 O.R. (3d) 497, where a presumptive ceiling of five months was set for the time from verdict to sentence. At paras. 86 and 87, Doherty J.A. explained: In fixing a presumptive ceiling, I bear in mind that the presumptive ceiling is not intended to identify the amount of time it should take to move the case from verdict to sentence. As stated by the majority in Jordan , at para. 56 : We also make this observation about the presumptive ceiling. It is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling. For this reason, as we will explain, the Crown bears the onus of justifying delays that exceed the ceiling. It is also for this reason that an accused may in clear cases still demonstrate that his or her right to be tried within a reasonable time has been infringed, even before the ceiling has been breached. I would set the presumptive ceiling for post-verdict delay at five months. In doing so, I stress that five months is not the norm, and should not be allowed to become the norm. Instead, five months is the point at which the delay is sufficiently long that it is regarded as presumptively unreasonable for the purposes of s. 11(b). The onus falls to the Crown to justify the delay. [99] Five months is the point at which post-verdict delay to sentence becomes presumptively unreasonable. Fourteen months is nearly three times the delay. So the burden now shifts to the Crown to justify the delay. [100] In an attempt to justify the delay, the Crown alleges extraordinary circumstances because of the issues with the Gladue report and because the case was already in the system when Charley was decided. [101] I accept neither part of this submission. [102] I do not agree that the circumstances are exceptional. It cannot be said that it is exceptional to require a Gladue report in the Algoma district where there is a large Indigenous population. Gladue reports were created in order to address systemic injustice that uniquely affects Indigenous offenders, and which leads to overrepresentation in the criminal justice system. A long delay undermines the purpose of the Gladue report by creating another level of unfairness. Moreover, to submit that the preparation of such a report is exceptional is untenable. [103] The appellant was entitled to a Gladue report, the trial judge ordered it, and subsequently relied on it. [104] The second branch of the Crown’s justification for the delay is that this case was already “in the system” on the release of Charley. Therefore, the Crown says, there should be no remedy for post-verdict delay. [105] I do not agree. [106] The impact on transitional cases was addressed in Charley , at para. 105: I make one further observation with respect to the application of the Jordan analysis to post-verdict delay. Jordan recognized that the new framework it put in place should be applied somewhat differently in respect of cases that were in the system before Jordan was released: see Jordan , at paras. 95-100. The majority described transitional exceptional circumstances that could, in some situations, justify delay above the presumptive ceiling. I would take the same approach in applying the presumptive ceiling applicable to post-verdict delay set down in this case. [107] According to Jordan , the new framework, including the presumptive ceiling, applies to cases currently in the system, subject to qualifications: [ 96 ] First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed . This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. [ 97 ] Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel’s behaviour is constrained by systemic delay issues. [ 100 ] Further, if the delay was occasioned by an institutional delay that was reasonably acceptable in the relevant jurisdiction under the Morin framework before this decision was released, that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system. [Emphasis added]. [108] These qualifications do not apply here. There was no reasonable reliance on the appropriateness of the long delay. The delay was not a result of a “change [that] takes time” to implement. R. v. Gladue , [1999] 1 S.C.R. 688, was decided in 1999. Before the release of Charley , it could not be said that a 14-month delay was acceptable. Nor can it be said that the parties would have been reasonable to rely on the previous state of the law. A 14-month delay was unreasonable then, and it is now. [109] The 14-month post-conviction delay was unreasonable and breached the appellant’s s. 11(b) Charter rights. [110] This brings me to remedy. [111] Although no post-verdict delay was found in Charley , this court discussed the remedy when a post-conviction breach is found. When the breach is pre-verdict, a stay is the only available remedy. Post-verdict is different. [112] Compare the rationale to that of a pre-verdict breach. A pre-verdict breach targets conviction because – as explained in R. v. Rahey , [1987] 1 S.C.R. 588 – the court loses jurisdiction when there is an s. 11(b) breach before trial. If an accused has the right to be tried within a certain time, the accused has the right not to be tried beyond that point and “no trial … is permissible. To allow a trial to proceed after such a finding would be to participate in a further violation of the Charter ”: Rahey , at p. 614. [113] When there has been no pre-verdict delay, the conviction is not tainted by a Charter breach. The appellant is no longer presumed innocent. A stay of a valid conviction would impact public confidence in the administration of justice. As Doherty J.A. said at para. 108: In Betterman v. Montana , 578 U.S. ___, 136 S. Ct. 1609, at p. 1615, Ginsburg J., for the court, described the possibility of vacating a valid conviction based on sentencing delay as “an unjustified windfall” for the accused. That seems to me to be an accurate description. [114] The appropriate and just remedy here should target the sentence, not the conviction. The appellant was convicted of a violent offence against his mother in her home. It would bring the administration of justice into disrepute to stay the conviction. [115] On the other hand, delay in sentencing causes prejudice to the offender and to society. The offender is unable to begin rebuilding a life, rehabilitation is impacted, and the offender lives with the anxiety of an uncertain future: Rahey at pp. 605-06. Likewise, society “has a keen interest in ensuring that those guilty of committing crimes receive an appropriate sentence promptly”: R. v. MacDougall, [1998] 3 S.C.R. 45, at para. 36. [116] For the remedy to target the sentence, it must be based on and align with sentencing principles. Section 718.2(a) of the Criminal Code requires: A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender… [Emphasis added] [117] The process of sentencing is highly individualized with reference to the offender. It also involves discretion on the part of the sentencing judge particularly when a sentence is reduced to reflect relevant mitigating circumstances. One such mitigating circumstance is delay from conviction to sentence. [118] Delay in sentencing that does not rise to the level of a Charter breach has long been considered a factor in mitigation of sentence: R. v. Cooper (No.2) (1977), 35 C.C.C. (2d) 35 (Ont. C.A.) , R. v. Bosley ( 1992), 59 O.A.C. 161. [119] Delay in sentencing that breaches an offender’s Charter rights should also be considered a mitigating circumstance. But it is one that should result in more than standard mitigation; it should result in enhanced mitigation. This would meet the objectives and principles of sentencing codified in s. 718 of the Criminal Code while also providing a meaningful remedy for the Charter breach. [120] Delay was not considered when the appellant was sentenced to 30 months incarceration. The delay which led to a Charter breach is a circumstance giving rise to enhanced mitigation. [121] I conclude that the appellant is entitled to enhanced mitigation to reduce the sentence. [122] As with mitigating circumstances generally, there can be no automatic or formulaic calculation of the reduction in sentence. Nor can a firm principle be established based on one case. The jurisprudence will – as always – develop with each case determined on its own particular facts, considering the offence, the offender, the length of the delay, the circumstances of the delay and any other relevant factors. Here, the offence was serious. The appellant did nothing to contribute to the delay. The delay was caused by a failure to provide adequate services to a vulnerable segment of society. The appellant was required to wait over a year to have his future determined. These are serious factors which caused a significant Charter breach. [123] In the circumstances here, I would reduce the sentence by five months. CONCLUSION [124] I would dismiss the conviction appeal, stay the second breach of probation charge, and allow the sentence appeal in part by reducing the sentence by five months. Released: April 3, 2020 “MLB” “M.L. Benotto J.A.” “I agree David M. Paciocco J.A.” I agree Thorburn J.A.” APPENDIX A: SECTION 11(B) DELAY TIMELINE Date Event March 8, 2012 Charges laid. March 12, 2012 First appearance in bail court. March 15, 2012 Appearance in bail court. Bail hearing adjourned. March 16, 2012 Appearance in bail court. Bail hearing adjourned. March 30, 2012 Appearance in bail court. Bail hearing adjourned for appellant to retain counsel. April 5, 2012 Appearance in bail court. Bail hearing adjourned. Initial trial counsel had been retained and requested disclosure. April 13, 2012 Initial trial counsel advised she was awaiting outstanding disclosure. April 17, 2012 Initial trial counsel advised she was awaiting outstanding disclosure. May 1, 2012 Initial trial counsel advised she was awaiting outstanding disclosure. May 8, 2012 Initial trial counsel advised she was awaiting outstanding disclosure. May 15, 2012 Initial trial counsel advised she was awaiting outstanding disclosure. June 5, 2012 Initial trial counsel advised she was awaiting outstanding disclosure. June 19, 2012 Initial trial counsel’s agent asked for two weeks to review disclosure and schedule Crown pre-trial. July 3, 2012 Initial trial counsel advised she was still awaiting outstanding disclosure. July 10, 2012 Initial trial counsel advised she was still awaiting outstanding disclosure. July 17, 2012 Initial trial counsel’s agent advised that some disclosure was still outstanding. Matter adjourned to set a judicial pre-trial. July 24, 2012 Disclosure still outstanding. Initial trial counsel was trying to set judicial pre-trial and trying to get different Crown assigned because Crown not available for some time. July 31, 2012 Adjourned for a bail hearing. August 3, 2012 Initial trial counsel appointed to the bench. August 16, 2012 Appellant released on bail following bail hearing. New counsel, Mr. Tijerina (“trial counsel”), appeared for appellant. September 17, 2012 New counsel officially on record. Trial counsel requested an adjournment for a Crown pre-trial, so that counsel could meet with the Crown to ensure all disclosure provided. October 15, 2012 Matter adjourned for two weeks at the request of trial counsel to obtain instructions from the appellant. October 29, 2012 Matter adjourned to pre-set court to set trial dates. Nov 8, 2012 Pre-set court, trial counsel attempted to set a 1- to 2-day trial. The trial coordinator refused because the Crown had not provided an estimate and the matter needed to be judicially pre-tried. November 19, 2012 Parties spoke to the matter before the trial judge and it was adjourned to pre-set court. November 29, 2012 Appearance in pre-set court. Trial dates selected for February 7 and 8, 2013. · At this time, Crown had not raised forensic blood evidence. February 7, 2013 Trial begins. Crown only gets through two of nine witnesses. February 8, 2013 Trial continues. Crown calls Ms Hartling. Trial counsel asks for an adjournment to consider a possible recusal application. The parties tentatively determined April 22-24, 2013 were available to continue trial. February 25, 2013 Parties returned before the trial judge. Trial counsel advised he needed time to review the transcripts from trial. Recusal motion not filed February 26, 2013 Trial counsel confirmed that it would bring a recusal motion – would need 2.5 hours. The matter was put in pre-set court for scheduling. February 28, 2013 The parties learned that the April 22-24, 2013 dates for continuation were no longer available. Recusal motion set for April 24, 2013. April 24, 2013 Trial counsel was not prepared to proceed with the recusal motion. April 25, 2013 Motion adjourned to May 16, 2013, at defence request. May 16, 2013 Recusal motion did not take place because of judge’s ill health. Recusal motion further adjourned. July 2, 2013 Recusal motion takes place. August 6, 2013 Trial judge makes decision on recusal motion. August 12, 2013 Further trial dates set for November 19, December 4,5, and 17, 2013. October 16, 2013 Appellant’s bail varied. November 19, 2013 Trial continues. December 4, 2013 Trial counsel asks to vacate December 5 because of external obligations. But replacement date and one additional date were obtained: December 9 and 18. December 9, 2013 Voir dire on voluntariness of appellant’s statements to Sgt. Bell. December 17, 2013 Trial continues. Trial judge issued ruling on admissibility of Mr. Hartling’s statements to first responders ( res gestae ). December 18, 2013 Trial did not finish. Ruling issued on voluntariness voir dire . Defence requested an adjournment to respond to two evidentiary rulings by the trial judge. Adjournment granted. January 2, 2014 Appearance in pre-set court to set continuation dates. Crown was not available in January or two weeks in February. Trial judge was retired and working per diem, he was not available until April, as he was not sitting mid-January to April. January 8, 2014 Appearance in pre-set court to set continuation dates. Defence counsel available any time in April. Crown and trial judge had conflicting schedules. January 13, 2014 Appearance in court to confirm dates. Parties advised no dates could be set. January 16, 2014 Appearance in re-set court. Trial coordinator confirmed trial judge not available until April. Crown not available for April dates. May dates are set. January 20, 2014 Continuation dates of May 7, 8 and 9, 2014 confirmed. May 7, 2014 Trial continues. May 8, 2014 Trial continues. Crown calls reply evidence. Trial counsel advised he had instructions from the appellant to seek and adjournment to prepare. May 9, 2014 Trial date vacated for trial counsel to prepare closing. July 7, 2014 Closing submissions made. July 17, 2014 Appearance in pre-set court. Trial judge instructed the parties to set matter for decision, but he was not available. Crown had limited availability. Trial coordinator thought early August too soon, August 15 selected. August 15, 2014 Conviction entered. Trial counsel expresses in court that appellant requires Gladue report. Trial judge orders Gladue Report. August 25, 2014 Crown requests pre-sentence report. September 4, 2014 Trial counsel wrote to the local Gladue writer, Ms Tijerna Notes (based on cross-examination of trial counsel): · Gladue writer was trial counsel’s ex-wife. · She was the only Gladue writer in the jurisdiction according to trial counsel. · No court Gladue writers available. · Court administration office would not pay for the report, meaning it needed to be paid out-of-pocket or by Legal Aid. · Aboriginal Legal Services of Toronto was not doing Gladue reports in Algoma District. September 4, 2014 Parties appear at pre-set court to select sentencing dates. Trial coordinator advised them that the Regional Office would not offer any dates for sentencing until they knew when the pre-sentence report and Gladue report would be completed. September 8, 2014 Matter put over to November 10, 2014 to allow Gladue report to be completed. Pre-sentence report formally requested. October 23, 2014 Gladue writer accepted retainer and advised she would begin when paid by Legal Aid. November 10, 2014 Matter adjourned because the Gladue report was not ready. Gladue report again not ready. Date for sentencing not selected. December 8, 2014 Matter adjourned to later that month for the Gladue report to be completed. December 18, 2014 Date for sentencing not set because the Gladue report was not prepared. Trial coordinator advises that trial judge will be available in the first part of January, but then not again until April. December 22, 2014 Matter adjourned to January 2015 for April dates to be set. January 2015 Sentencing dates set for April 30, 2015. January 7, 2015 Trial counsel wrote to Legal Aid requesting funding for Gladue report. · Note: Trial counsel suggests in cross-examination that he had privately paid a retainer to the Gladue writer at some point after October 23, 2014 and January 7, 2015. He states that he recalled paying her privately while waiting for Legal Aid Funding. He is not sure when exactly it occurred. April 30, 2015 Gladue report not ready. Trial counsel obtained adjournment. May 7, 2015 Pre-set court. Trial counsel advised Gladue report would be ready the following week. May 11, 2015 Gladue report not ready. Sentencing dates were not set. Matter adjourned to pre-set court on May 14. May 14, 2015 Crown advised pre-sentence report to be completed within six weeks. Trial coordinator offered July dates, Crown unavailable. Matter set for sentencing August 4, 2015 July 24, 2015 Pre-sentence report completed. August 4, 2015 Sentencing submissions. September 23, 2015 Reasons for sentence were released October 9, 2015 Sentence imposed. [1] These are discussed in a separate section below. [2] Evidence in Trials at Common Law , 3rd ed., vol. 6 (Boston: Little, Brown, 1976), at para. 1767. [3] David M. Paciocco and Lee Stuesser, The Law of Evidence , 7th ed. (Toronto: Irwin Law, 2015), at p. 186. [4] The appellant also alleged ineffective assistance in relation to s. 11(b). This issue is dealt with separately. [5] A full summary, based on submissions by parties, is attached as Appendix A.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)   Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.5 (1)     Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. (2)     On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice. (2.1) The offences for the purposes of subsection (2) are (a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c). (3)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community. (4)     An applicant for an order shall (a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies. (5)     An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice. (6)     The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private. (7)     In determining whether to make an order, the judge or justice shall consider (a) the right to a fair and public hearing; (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; (c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation; (d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (f) the salutary and deleterious effects of the proposed order; (g) the impact of the proposed order on the freedom of expression of those affected by it; and (h) any other factor that the judge or justice considers relevant. (8)     An order may be subject to any conditions that the judge or justice thinks fit. (9)     Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (a) the contents of an application; (b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19 486.6 (1)  Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)  For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Keating, 2020 ONCA 242 DATE: 20200401 DOCKET: C65506 Doherty, Watt and Benotto JJ.A. BETWEEN Her Majesty the Queen Respondent and Dwayne Keating Appellant Michael Pasquale, for the appellant Adam Wheeler, for the respondent Heard: In-writing appeal submitted to the panel on March 23, 2020 On appeal from the convictions entered by Justice Paul T. O’Marra of the Ontario Court of Justice, dated April 12, 2018. Doherty J.A.: I overview [1] This is an appeal from conviction only. [2] The appellant was charged with three “pimping” related offences. The trial judge convicted on all three counts. [3] The appellant acknowledges that the conduct and events described by the complainant, and accepted as factually accurate by the trial judge, established the requisite elements of the three offences charged. The appellant submits, however, that the trial judge erred in finding that the appellant was the person who committed the offences. II the evidence [4] The Crown’s case rested almost exclusively on the evidence of the complainant. She testified and, on consent, the trial judge admitted a video statement made by the complainant pursuant to s. 715.1 of the Criminal Code . That statement, once admitted, became part of her testimony. [5] In April 2017, the complainant was destitute, abusing drugs and trying to survive on the streets by herself. She was 17. Her parents had ordered her out of the house earlier. [6] The complainant found herself alone in a Tim Hortons in Thornton, Ontario. She was under the influence of the drug Xanax. The complainant contacted a person she knew as “Chicken” on her Instagram. They had communicated over Instagram previously. They had never met. [7] Eventually, Chicken, at the complainant’s request, picked her up at the Tim Hortons. Over the next four or five days, the complainant and Chicken were constantly together, first, at his mother’s home and later at various hotels. They had sexual intercourse on various occasions. They were joined by another woman, who the complainant knew as Shanice. The complainant soon realized that Shanice worked as a prostitute for Chicken. [8] Chicken quickly began to pressure the complainant to work as an escort. He assured her that she could make some “easy money”. Chicken prepared and placed an advertisement offering the complainant’s sexual services on a website known as Backpage. Chicken controlled all inquiries generated by that advertisement. [9] Having  lived on the streets for about two years,  the complainant had some familiarity with the world of escorts. She did not want to become involved in prostitution and did all she could to avoid meeting the “clients” who answered the advertisement placed by Chicken. She and Chicken quarrelled over her reluctance to work as an escort. He became very angry. [10] During the  four or five days the complainant was with Chicken, she had little sleep and was constantly under the influence of drugs that he provided. [11] The complainant met only one client. He paid her the agreed upon amount for sex, but apart from some awkward kissing, they only talked. The complainant gave the money to Chicken after the client left. [12] On the fourth or fifth night that the complainant was with Chicken, she and Shanice got into a heated argument in a hotel room. Eventually, the complainant went to the front desk and asked the clerk to call the police. Chicken and Shanice fled before the police arrived. [13] The police took the complainant to the police station. A police officer conducted a video interview with the complainant later that night. This was the video eventually admitted at trial under s. 715.1 of the Criminal Code . [14] In the course of the video interview, the complainant was shown screenshots taken from the complainant’s Facebook page, containing photos of a Facebook friend who used the name “Teff Dot”. The complainant told the police officer that the person in the photos was the same person she had been referring to as Chicken when describing the events of the previous four or five days. [15] The complainant did not know the identity of the person she knew as Chicken at the time she was interviewed by the police. The appellant was eventually arrested about six weeks later. [16] In her trial testimony, the complainant again identified the person in the Facebook photos as the person she knew and referred to as Chicken. The complainant also made an in-court identification of the appellant as that person. The complainant, who testified by closed circuit tv, indicated, however, that she could not see the appellant clearly on the camera, although she did notice that his hair was shorter than it had been. [17] The Crown also introduced into evidence a photograph of the appellant taken when he was arrested, about six weeks after the complainant spoke to the police. [18] The appellant did not testify or call any evidence. III Did the trial judge err in his consideration of the identification evidence? [19] There is no gainsaying the risks inherent in eyewitness identification. Equally, there can be no doubt that care must be taken by a trier of fact when assessing, and before relying on, eyewitness evidence. [20] It is important, however, that the risks be assessed in the context of the specific facts of the case. Here, the complainant testified that she met a person she knew as Chicken through Instagram. She had pictures of that person on her Facebook page. In her video statement, she identified the photographs as pictures of the person she knew as Chicken, the very same person she had been with continually over the previous four or five days. She gave the same evidence at trial. [21] The Facebook photographs, which the complainant identified as Chicken, were exhibits at trial. The trial judge compared those photographs to the mugshot photograph of the appellant taken some six weeks after the relevant events. He said: I have examined Exhibit Number 3, the Facebook pages, and the mugshot taken in May 2017. Although they were black and white photocopies, the Facebook pages were dated January and October. I am satisfied they were of good quality. They have sufficient clarity for me as a trier of fact to identify the accused beyond a reasonable doubt. [22] The trial judge concluded that the complainant’s identification of the Facebook photographs as pictures of Chicken, the man who had tried to force her into prostitution, combined with the trial judge’s own observation that the Facebook pictures were indeed pictures of the accused as shown in his mugshot, was sufficient to prove beyond a reasonable doubt that the appellant and the person who the complainant referred to as Chicken were one in the same person. [23] The appellant’s primary submission arises out of the trial judge’s reliance on his own observation of the Facebook photographs to conclude that they were photographs of the appellant. The appellant argues that R. v. Nikolovski , [1996] 3 S.C.R. 1197 limits a trier of fact’s ability to identify an accused as a person depicted in a photograph or video to situations in which the photograph or video is a depiction of the accused committing the crime or acting in close proximity to the commission of the crime. [24] There is nothing in Nikolovski , the case law flowing from it, or logic which supports the limitation advanced by the appellant. In cases like Nikolovski , in which the photograph or video is relied on as the exclusive evidence to establish an accused’s guilt, it follows that the photograph or video must be sufficiently probative to carry the evidentiary burden on all essential elements of the offence. In practical terms, it must show the accused committing the offence. [25] In this case, the Crown did not depend exclusively on the identification by the trial judge of the appellant as the person in the Facebook photographs tendered by the Crown. The Crown’s case had two planks. First, the Crown relied on the complainant’s evidence that the person shown in the Facebook photographs was the same person she had lived with the preceding four or five days, and the same person who had attempted to coerce her into acting as an escort. Second, the Crown relied on the trial judge’s comparison of the photographs of the person in the Facebook photographs with the person shown in the appellant’s mugshot. Based on that comparison, the trial judge was satisfied that the appellant, who was obviously the person shown in the mugshot, was also the person shown in the Facebook photographs identified by the complainant. [26] The Facebook photographs, on their own, could not prove that the accused committed any crime. The complainant’s evidence, which the trial judge accepted after careful analysis, established that the person in the Facebook photographs, known to the complainant as Chicken, committed the crimes alleged. The trial judge’s in-court observations, including his assessment of the complainant’s credibility and acceptance of her testimony, allowed him to conclude that the person in the Facebook photographs who had committed the crimes, was the same person who was before him in court. The trial judge’s reliance on his own observations to forge the connection between the perpetrator of the crimes and the accused before the court did not offend the analysis in Nikolovski or any other evidentiary principle. [27] The other submissions advanced by the appellant effectively challenged the reasonableness of the convictions. The appellant makes many of the same arguments that were made at trial. For example, he submits that the police failed to take basic and necessary investigative steps, that the trial judge failed to consider the lack of corroborating evidence, and that the complainant had a motive to fabricate the allegations against the appellant. [28] The trial judge considered these arguments and the other submissions made at trial. He rejected all of them. In doing so, he was clearly alive to the dangers associated with identification evidence. His analysis reveals neither legal nor factual error. [29] Nor can it be said that the evidence could not reasonably support the trial judge’s findings. In assessing the complainant’s evidence that Chicken was the person shown in the Facebook photographs, it is significant that when the complainant identified the picture as a picture of Chicken, she had been living with that person on intimate terms over the previous four or five days. Her identification of Chicken as the person in the photographs was hardly based on a fleeting glance. [30] The trial judge gave careful and thorough reasons for accepting the complainant’s evidence, including her evidence that Chicken, the person who attempted to coerce her into prostitution, was the person depicted in the Facebook photographs. In concluding that the appellant before the court was the person in the photographs, the trial judge had regard to the quality of the photographs and carefully took into account certain differences between the appellant’s courtroom appearance and the appearance in the photographs. The trial judge’s findings were reasonably open on the evidence and reasonably arrived at by him. [31] I would dismiss the appeal. Released: “DD” “APR 01 2020” “Doherty J.A.” “I agree David Watt J.A.” “I agree M.L. Benotto J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. J.J., 2020 ONCA 280 DATE: 20200429 DOCKET: M51506 (C67525) Brown J.A. (Motions Judge) BETWEEN Her Majesty the Queen Respondent and J.J. Appellant (Applicant) Colleen McKeown, for the applicant Elena C. Middelkamp, for the respondent Heard by Teleconference: April 24, 2020 REASONS FOR DECISION OVERVIEW [1] The applicant, J.J., applies for bail pending appeal. This is his second application; the initial order granting him bail pending appeal was revoked. [2] On April 18, 2019, the applicant was convicted of one count of sexual assault. On October 7, 2019, he was sentenced to three years in custody, in addition to four months’ credit for pre-sentence custody. [3] The applicant applied for bail pending appeal. The Crown consented to his release. Bail pending appeal was granted by order of Fairburn J.A. dated October 18, 2019. The applicant entered into a recognizance in the amount of $7,500, with two sureties: his mother pledged $6,000; his sister $1,500. The terms of release required the applicant to live with his mother under house arrest. [4] Notwithstanding that requirement, on November 28, 2019, the applicant was arrested and charged with several new offences, including firearms offences, drug offences, and breaches of a probation order and of the recognizance signed on October 18, 2019 (the “November Charges”). [5] The Crown thereupon sought and obtained a revocation of the applicant’s bail pending appeal, by order of Miller J.A. dated December 16, 2019. [6] On December 19, 2019, the applicant’s bail hearing on the November Charges proceeded in the Ontario Court of Justice in Hamilton. Bail was set but not met. The Justice of the Peace determined that the applicant could only be released with a new surety who could establish his or her financial viability, to be approved in bail court. The terms set by the Justice of the Peace included 24/7 supervision and ankle monitoring. [7] On April 15, 2020, the applicant proposed two new sureties: D.T.D., who has been the applicant’s friend since elementary school; and his father, D.C.D. As sureties, D.C.D. pledged $14,000; his son pledged $1,000. Both proposed sureties were cross-examined by the provincial and federal Crowns and approved by a Justice of the Peace. A release order was granted. [8] The applicant remains in the Hamilton-Wentworth Detention Centre and brings this second application for bail pending appeal. POSITIONS OF THE PARTIES [9] The Crown opposes the application on the basis that the applicant has not demonstrated that his detention is not necessary in the public interest: Criminal Code , R.S.C. 1985, c. C-46, s. 679(3)(c). In particular, the Crown relies on the public safety component of the public interest criterion: R. v. Oland , 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 23. The Crown submits that the applicant’s failure to comply with the terms of his October 2019 release signifies that a risk exists that he will commit further offences if released on bail pending appeal. [10] The applicant submits that the strictness of his bail plan attenuates any such risk. The new sureties were found satisfactory by the Justice of the Peace who granted interim release on the November Charges. As well, the applicant’s bail plan requires that he: reside with his sureties; be in the visual presence of one surety at all times; remain in their residence at all times except for medical emergencies or when he is in the direct visual presence of a surety; wear an electronic ankle bracelet provided by Recovery Science Corporation (“RSC”); and enter into a monitoring agreement with that firm, which includes a requirement that the applicant provide photo verification of a surety’s presence each time he leaves the residence. ANALYSIS [11] I am not persuaded that the applicant has established that his detention is not necessary in the public interest. The public safety component [12] The public safety component of s. 679(3)(c) of the Criminal Code essentially tracks the requirements of s. 515(10)(b) governing an accused’s release pending trial: Oland , at para. 24. B ail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, where this "substantial likelihood" endangers "the protection or safety of the public" and when it is "necessary" for public safety: R. v. Morales , [1992] 3 S.C.R. 711 at p. 737. As was noted in Morales , at p. 738: [T]he bail system also does not function properly if individuals commit crimes while on bail. One objective of the entire system of criminal justice is to stop criminal behaviour. The bail system releases individuals who have been accused but not convicted of criminal conduct, but in order to achieve the objective of stopping criminal behaviour, such release must be on condition that the accused will not engage in criminal activity pending trial. [13] Several reasons lead me to conclude that even under the applicant’s new bail plan there exists a substantial likelihood that he will commit a criminal offence that would endanger the safety of the public. [14] The first involves the November Charges. The October 2019 order of Fairburn J.A. required the applicant to reside with his sureties – his mother and sister – and remain in their residence at all time except for medical emergencies or “unless you are in the presence of either of your sureties.” [15] The police synopsis of the November Charges states that on the evening of November 28, 2019 members of the Hamilton Police Service were monitoring a known drug house when a car parked in front of the house. A person left the house, entered the car, and the car went on its way. The police pulled the car over at 10:49 p.m. Five persons were in the car. The applicant was in the front passenger seat. A glass pipe with suspected cocaine residue was observed in plain view in the vehicle. A clear baggy of white powder fell to the ground from the back seat when the occupants left the car. A search of the vehicle disclosed a backpack on the back seat that contained a loaded handgun. Baggies containing what was believed to be fentanyl and heroin were also found. [16] The police synopsis states that the applicant was bound by two firearms prohibitions and two probation orders. He was charged with two counts of possession contrary to order, two counts of breach of recognizance, and two counts of failure to comply with a probation order. He was also charged with drug offences. [17] As applicant’s counsel points out, the applicant is presumed innocent of committing the new charges until proven guilty. However, as the December 16, 2019 endorsement of Miller J.A. records, at that time applicant’s counsel conceded that the test for revocation of the release order and cancellation of the recognizance had been met by reason of the November Charges. [18] The terms of the October 2019 release order of this court required the applicant to be in presence of a surety if he left his residence for a non-medical emergency. The evidence strongly indicates that the applicant was not on the evening of November 28, 2019. [19] Second, evidently the financial consequences to his mother and sister of breaching his recognizance were not sufficient to dissuade the applicant from leaving their presence. Notwithstanding the assurances given by the applicant in his most recent affidavit to abide by the directions of his sureties, his track record does not give me confidence that he will do so. [20] I come to this view not only based on the events underlying the November Charges, but also on the basis of the applicant’s criminal record. In his affidavit, he acknowledges that he has a criminal record in addition to the sexual assault conviction that is the subject of his appeal. As a youth, the applicant was convicted of assault (2011), theft under $5,000, failure to comply with an undertaking, and possession of stolen property (under $5,000) (2013). As an adult, he was convicted of simple drug possession (2016), and he pleaded guilty to breaking and entering and was sentenced to four months in jail (2019). For purposes of assessing the public safety factor, the existence of a conviction for failure to comply with an undertaking is troubling. [21] Third, the police synopsis records that a loaded handgun was found in the car on the evening of November 28, 2019. Whether the Crown can establish that the applicant had the knowledge and control required to prove possession of the handgun is a matter for a later trial. But, for purposes of this application, it is a relevant factor that the applicant, who was to be in the presence of a surety, apparently was in a car with others where a loaded handgun was present. [22] Fourth, the younger of the proposed sureties, D.T.D., was convicted five years ago of mischief under $5,000 and failure to comply with an undertaking. I accept the Crown’s submission that while those convictions do not tip the scale against the suitability of D.T.D. as a surety, the conviction for failure to comply with an undertaking should be of concern to the court. [23] Fifth, I have read the materials filed by the applicant from RSC. The monitoring service it offers uses a GPS ankle bracelet attached to the applicant and provides real-time information about the applicant’s location, as well as periodic compliance reports. [24] There are limits to the practical effectiveness of the RSC service. In a document titled, “Overview of Criminal Programs”, the company states: In our view, monitoring ought not to be relied upon if the required standard is to prevent violations or to ensure an immediate police response. Rather, monitoring is best thought of as a risk management tool - it cannot prevent an accused from fleeing nor can it guarantee police intervention in a breach or offence in progress. [25] RSC makes a similar point in a document titled, “Radio-Frequency (RF) & GPS Monitoring for Criminal Cases – Program Summary”, which states: 16. While the system can and does deliver violation alerts very quickly, typically in 1-10 minutes, we do not encourage reliance on rapid police response time as a factor in making a decision to release rather than detain an accused. This is for two reasons: firstly, because there are many factors that create the potential for delay in the chain of communications that lead from a violation event to the ultimate police response and, secondly, because even when there are no such delays and the police response is immediate, that may still not be sufficient to prevent an accused from fleeing or committing an offence. 17. These considerations regarding response time lead us to encourage decision makers to view monitoring not as a prevention tool but as a risk management tool that, in some cases, can have a significant impact on a plan’s ability to meet the applicable legal requirements [26] In R. v. Fleming , [2015] O.J. No. 4380 (S.C.J.), Trotter J. (as he then was), pointed out at para. 18 that GPS monitoring only reveals where a person is, not what he is doing. As observed by Hourigan J. (as he then was) in R. v. Palijan , [2012] O.J. No. 6549 (S.C.J.), at para. 25, a company such as RCS focuses on gathering evidence of compliance, not preventing non-compliance. [27] The weight to be given to an applicant’s willingness to enter into a GPS monitoring program with a company such as RCS will depend on the specific circumstances of a case: R. v. Sotomayor , 2014 ONSC 500, at para. 41, fn. 1. In the present case, I am not persuaded that the proposed GPS monitoring program significantly reduces the likelihood of the applicant committing an offence that will endanger the safety of the public. While a GPS monitor can record the presence of the applicant at a specific location, such as the one where the events of November 28, 2019 are alleged to have occurred, it cannot provide a quick response that would prevent such events. As well, the applicant does not have an unblemished record of complying with court orders. [28] Taking the evidence as a whole, I am not satisfied that the applicant has established that his release plan would reduce the risk of him re-offending. On the contrary, I conclude that the evidence demonstrates that a substantial risk exists that the applicant would commit a criminal offence that endangers public safety if released pending his appeal. I conclude that the public safety considerations are sufficient to warrant the continued detention of the applicant in the public interest. The public confidence component [29] Although the Crown does not rely on the public confidence component of s. 697(3)(c), the applicant did file evidence about the merits of the appeal. He also filed some evidence regarding the COVID-19 pandemic. As stated in Oland at para. 27, the public safety and public confidence components are not to be treated as silos for a public interest analysis. I therefore will consider the evidence concerning the strength of the applicant’s appeal, as well as that concerning COVID-19: at para. 40. [30] The applicant’s conviction for sexual assault concerned events that took place when he was 20 years old and the complainant 15 years old. Both had been drinking at a party. There is no dispute that sexual intercourse took place between them. The only issue is whether the intercourse was consensual. The complainant testified that it was not, and that she had screamed for the applicant to stop. The applicant testified that the complainant wanted to have intercourse. [31] The applicant contends that there were inconsistencies and contradictions in the evidence of both the complainant and himself. His contends that the trial judge committed several errors: he discounted material inconsistencies and a deliberate falsehood in the complainant’s evidence; he improperly used post-offence conduct of the applicant, including a text the applicant sent to a friend about the incident; and he relied on impermissible stereotypical reasoning about the circumstances under which a 15-year old female would be interested in having sex in rejecting the applicant’s version of events as implausible. [32] The record available to assess the strength of the applicant’s grounds of appeal is, at this point, limited to the trial judge’s reasons. Transcripts of the evidence of the complainant and the applicant are not yet available. As a practical matter, the absence of those transcripts makes it difficult to assess the impact of the inconsistencies and contradictions raised by the applicant within the context of the entirety of the witness’ evidence, especially in the circumstances of a “he said/she said” case like the present one. [33] The applicant attempted to re-open his trial prior to sentencing, relying on evidence not led at the trial from a young woman who knew both the complainant and the applicant. The applicant submitted that the evidence would undercut that of the complainant. However, the applicant’s notice of appeal and argument on this application does not suggest that a motion for leave to adduce fresh evidence will be brought or that the trial judge erred in refusing to re-open the trial to admit such evidence. [34] The Crown does not dispute that the applicant’s appeal is not frivolous. However, I am not persuaded that the merits of the applicant’s appeal are such that they tip the scale against continued detention in light of the substantial risk to public safety that I have identified. [35] Finally, the applicant submits that his continued incarceration during the time of the COVID-19 pandemic is broadly relevant to the public interest analysis. [36] The fact of the current COVID-19 pandemic is a factor that can be taken into account in considering the public interest criterion: R. v. Omitiran , 2020 ONCA 261, at para. 26. The weight played by that factor depends upon the particular circumstances of each case. For example, it might play a role where an applicant’s known or documented health conditions, including his age, place him within a vulnerable group that is more likely to suffer complications and require hospitalization if he contracts the virus: R. v. Kazman , 2020 ONCA 251, at para. 17. [37] In the present case, the applicant is detained in the Hamilton-Wentworth Detention Centre. He is 23 years old. His affidavit does not disclose any medical condition that puts him in a group with increased vulnerability to the effects of COVID-19. While his counsel’s supporting affidavit states that in late March one employee at the Hamilton-Wentworth Detention Centre tested positive for the virus, the applicant’s record does not contain evidence of a significant COVID-19 outbreak at the facility. [38] Consequently, I do not see the fact of the COVID-19 pandemic outweighing, on its own or in combination with the merits of the applicant’s appeal, the substantial risk to public safety that I have identified. DISPOSITION [39] For the reasons set out above, I dismiss the application for bail pending appeal. “David Brown J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Omitiran, 2020 ONCA 261 DATE: 20200420 DOCKET: M51469 (C67983) Harvison Young J.A. (Motion Judge) BETWEEN Her Majesty the Queen Respondent and Adekunle Johnson Omitiran Applicant Gabriel Gross-Stein and Riaz Sayani, for the applicant Jeffrey Wyngaarden, for the respondent Heard: March 31 and April 9, 2020 REASONS FOR DECISION A. Introduction [1] The applicant was convicted of several offences arising out of a sophisticated credit card fraud scheme. The trial judge concluded that there was overwhelming body of evidence implicating the applicant as the perpetrator. On January 20, 2020, she sentenced the applicant to 48 months’ imprisonment and imposed a restitution order totalling $486,748.26. He has appealed his convictions and sentence and now seeks bail pending appeal. [2] I advised the parties on April 9, 2020, that the application was dismissed and that I would release the reasons later. These are those reasons. B. The offences [3] The numerous frauds in question involved stealing a customer’s personal information (such as credit card numbers, addresses, dates of birth, and PIN numbers), ordering a replacement credit card, and then using the fraudulent replacement card to make purchases or withdraw money without authorization. The fraudulent scheme was large and sophisticated. The trial judge found the applicant in possession of 313 pieces of mail from over 200 people. [4] The applicant has been convicted on several fraud related charges before, in 2008 and 2015. He also has three prior convictions for failure to comply with a recognizance, including one while he was being supervised by his wife, one of his proposed sureties (2008), and one while he was awaiting trial for the offences currently under appeal (2018). [5] At the time of the offences under appeal, the applicant was on probation after being convicted for similar frauds. The offences now under appeal were committed in direct contradiction with his probation terms, which included a prohibition from possessing other people’s credit or debit cards, credit or debit card data, cheques, banking documents, or mail. C. Positions of the Parties [6] The applicant submits that there are arguable grounds of appeal and that there is no evidence that he would not surrender, given that he has attended court as required when he was on bail pending trial. He submits further that the public interest requires his release for the following reasons: (i) There are arguable grounds of appeal. These include the trial judge’s dismissal of an application pursuant to R. v. O’Connor , [1995] 4 S.C.R. 411, in support of the applicant’s alternate suspect defence, and the trial judge’s alleged misapprehension of evidence relating to the use of nicknames, which was relevant to who possessed the Yorkville apartment where much of the incriminating evidence was found. (ii) While the applicant has a record for financial frauds, he is not violent. (iii) The release plan controls the risk that the applicant will reoffend. His wife, one of the proposed sureties, will pledge her equity in her house in the amount of approximately $400,000. The deterrent effect of this is very strong given the amount pledged is significantly higher than it was before, and his breach could put his wife and children’s home at risk. (iv) Recent case law has affirmed that the current COVID-19 pandemic is to be considered in bail hearings. This includes the fact that not only inmates are at greater risk of contracting COVID-19, but also that it is in the public’s interest that the pandemic be contained. A reasonable member of the public will understand the applicant’s release in light of the public interest in preventing a mass outbreak and in preserving scarce medical resources. [7] For these reasons, the applicant concludes that the reviewability interest outweighs the enforceability interest, and the application should be allowed. [8] The Crown does not press its arguments that the accused has failed to meet his onus under s. 679(3)(a) and (b) of the Criminal Code , R.S.C., 1985, c. C-46. Rather, it focuses on the public interest ground under s. 679(3)(c). The Crown points to four key factors which, it argues, weigh in favour of enforceability over reviewability and against release: (i) The grounds of appeal, if not frivolous, are very weak. (ii) The offences are serious and while not violent, caused financial pressure on many individuals and some financial institutions. The offences raise concerns about protection of the public, particularly in the present difficult economic circumstances created by the COVID-19 pandemic, and given the applicant’s record of reoffending. (iii) Because the applicant has some three years left on his sentence, he is unlikely to serve his sentence before his appeal is determined. (iv) The applicant has a demonstrated history of disregarding court orders and committing similar offences. [9] For all of these reasons, the Crown concludes that enforceability outweighs reviewability, and the application should be dismissed. [10] Within a day after the parties argued this motion before me on March 31, but before the court released its decision, the Crown advised that it had learned that the police were trying to arrest the applicant on new charges. The new charges are: · seven counts of breaching his recognizance, which the applicant entered into pending his trial on the offences now on appeal before this court; · one count of fraud; · one count of possession of property obtained by crime; and · one count of possession of identify information. [11] The charges arise from events occurring very shortly after the applicant was released on bail pending his trial in late 2017, until late 2019. Most of the breaches of his recognizance are relatively minor — such as being out of his home without his surety — but the other charges indicate additional fraudulent behavior. [12] First, it is alleged that between September and December 2017, the applicant was a party to a $1,035,000 fraud, where one victim was persuaded to transfer money to a purported romantic partner, but instead the funds went to bank accounts controlled by the applicant and his associates. Second, when police executed a search warrant at the applicant's alleged new residence on May 9, 2019, they discovered valuable items such as suits and jewelry, which are suspected to have been obtained by crime. Subsequent analysis of the electronics seized from that residence revealed personal victim information, such as SIN numbers and credit cards. [13] The Crown submitted that the court should consider this information as a factor in this application. The applicant argued that this was new evidence that should not be admissible. After hearing argument on the point, I concluded that the new evidence was admissible. [14] On April 9, the parties made additional submissions on the new evidence’s relevance and weight. The Crown agreed with the applicant that the charges should be treated cautiously because they are simply allegations at this point. However, it did submit that the charges add weight to the public safety concern, given the applicant’s record of disregarding court orders and reoffending. [15] The applicant submitted that as allegations, the new charges should be given little weight. He acknowledged that he had not cross-examined Detective Constable Macdonald on his affidavit, which was sworn in support of the Crown’s application and explains why the charges have not yet been formally laid. Nevertheless, the applicant submitted that there are inconsistencies on the face of the affidavit that should give rise to additional caution about the charges. D. Analysis [16] Detective Constable Macdonald states in his affidavit that he has tried unsuccessfully to arrange for the applicant’s arrest on the new charges at the Joyceville Penitentiary, where the applicant is incarcerated. While I agree with the applicant that Detective Constable Macdonald could have arrested him before he was taken to the Joyceville Penitentiary shortly after being sentenced in January, I do not think this impugns the fact that there are new charges and of what they allege. In any case, the new charges are simply allegations and must be treated cautiously as such. As such, I give them limited weight in this application. [17] I find that the grounds of appeal pass the low bar of “not frivolous” under s.  679(3)(a) of the Criminal Code . The first main ground of appeal is that the trial judge erred in dismissing the applicant’s O’Connor motion for disclosure of third-party records in support of its alternate suspect theory. The third suspect was someone who had also been charged in respect of the same frauds but had been deported before trial. While this is arguable, it is not strong in the circumstances of this case. The applicant’s co-accused testified at the trial and tried to advance the theory that the central occupier of the Yorkville apartment was this person. The trial judge did not accept this evidence and gave thorough reasons for doing so. [18] The second ground of appeal is that the trial judge misapprehended the evidence relating to the use of a nickname by the appellant. This nickname was critical to the issue of who was in possession of the Yorkville apartment where much of the incriminating evidence was found. Again, a review of the trial judge’s reasons as a whole suggests that this is a weak ground of appeal. [19] With respect to s. 679(3)(b), there is no evidence that the applicant will not surrender when required. He has done so in the past. [20] This application turns on the public interest factor under s. 679(3)(c). As I have just indicated, the merits of the appeal are arguable but weak. The central concern in this case is public safety. His offences were not violent, but they were serious, complex, and motivated by greed. The trial judge also noted that the frauds had an economic cost to society as a whole and required a sentence that emphasized denunciation and deterrence. [21] The applicant also has a significant record both for disregarding court orders and for committing similar frauds. He was on probation when he committed the offences now under appeal. [22] While I give little weight to the new charges, they do nothing to assuage the court’s concern that the applicant’s release could put more people at risk of credit card and other frauds. As outlined earlier, the applicant is a repeat fraud offender and also has a history of convictions for breaching court orders. These charges are similar to the substantive charges with which he has been convicted in the past, and also include the breach of court orders: see R. v. C.L. , 2018 ONCA 470, at paras. 15 and 16; R. v. Mehan , 2016 BCCA 129, 386 B.C.A.C. 1, at para. 29. [23] Many individuals, businesses, and Canada’s financial institutions are currently under increased stress due to the COVID-19 crisis. Given the applicant’s repeat offending and the current economic climate, protecting the public against the fraudulent schemes is an important factor weighing against the applicant’s release. [24] The applicant submitted that the release plan will provide the necessary assurance against breaches. The applicant’s wife is his proposed surety and he is to live with her. She is prepared to pledge the entire equity of over $400,000 in her home, which also houses their children. The applicant argues that he would not risk the roof over his children’s head. [25] I am not prepared to draw that inference. I note that it appears that the applicant has lived apart from his family at various times, though his wife states that he is a good father and that they miss him. In addition, his wife was his surety when the applicant breached his bail by failing to advise the police that he had moved in 2008. I am not satisfied that she is able to control her husband’s conduct or that she would contact the police if he breached any conditions. [26] I do not agree that the recent COVID-19 outbreak tips the balance in favour of release in these circumstances, though it is a factor to be considered: see, for instance, R. v. Kazman , 2020 ONCA 251, at paras. 16-18; R. v. J.S. , 2020 ONSC 1710, at paras. 18-19. [27] Finally, given the length of his sentence, it is highly unlikely that the applicant will have served his sentence before his appeal is determined. [28] In this case, given the weak grounds of appeal, the seriousness of the offences of which the applicant was convicted, the concerns about his compliance with any release plan, his record of recidivism, and the length of sentence that was imposed, the public interest analysis favours enforceability over reviewability. I cannot conclude that a reasonable, fully informed member of the public would understand his release to be warranted in these circumstances. [29] The application is dismissed. Released: April 20, 2020 “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Paul, 2020 ONCA 259 DATE: 20200417 DOCKET: C65497 Roberts, Paciocco and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Tola Dirk Paul Appellant Maurice Mattis and Lucas Jack-Sadiwnyk, for the appellant Kevin Rawluk, for the respondent Heard: January 10, 2020 On appeal from the conviction entered by Justice Tamarin M. Dunnet of the Superior Court of Justice, sitting with a jury, on March 12, 2018, with reasons reported at 2018 ONSC 1643. Harvison Young J.A.: A. Overview [1] The appellant, Tola Paul (“Paul”), was convicted of aggravated assault, and possession of a weapon for a dangerous purpose . He was also found guilty of assault with a weapon, but that charge was stayed to avoid double jeopardy. These charges were laid after Paul hit Paul Campbell (“Tall P”) in the hand with a machete. There is surveillance video footage of the events immediately prior to and following the strike, which occurred outside a strip mall bar. Paul appeals from his convictions on the basis that the trial judge erred in refusing to put the defences of self-defence and defence of others to the jury. The trial judge held that there was no air of reality to these defences, specifically because she found that the jury could not reasonably conclude that the act was reasonable in the circumstances. [2] I would allow the appeal. While the trial judge correctly identified the applicable legal principles, she erred in the application of these principles. There was evidence before her upon which a properly instructed jury acting reasonably could have concluded that the defences of self-defence and the defence of others were made out. The defences had an air of reality and should have been put to the jury. B. Background [3] At trial, the jury heard evidence from the security guard at Africa House that evening, Tequan Campbell, and from the appellant. They also saw surveillance video footage of much of what transpired from three different angles. Here, I review only the evidence relevant to the convictions on appeal. (1) Tequan Campbell’s Evidence [4] On April 17, 2016, Campbell was working as a security guard at the bar known as Africa House. The appellant entered with three other men: Kristian Gatto; a man referred to as the “South Park guy”; and a man referred to as Richard. Campbell testified that he asked the appellant not to leave the bar with a beer. Tall P also told the appellant to leave his beer in the bar, then Tall P went upstairs. According to Campbell, the appellant became upset, and also went upstairs and outside with his beer. At this point, Tall P and the appellant were having a “face-to-face”, during which Tall P’s shoulder touched the appellant’s shoulder. [5] Campbell then heard people yelling outside. He went upstairs and looked out the door. Tall P was on his cell phone and was arguing with Gatto and the South Park guy. Campbell then saw the appellant approach Africa House quickly from the south with a machete in his hand. When he was about ten feet from Tall P, the appellant was restrained by another man referred to as the “dreadlocks guy”, before turning and walking away. At this point, other people began coming outside from the bar and walking south, including Campbell. [6] Campbell testified to seeing Tall P and Gatto arguing on the sidewalk. Gatto lifted his shirt to reveal a machete in his waistband. Campbell also saw Tall P and the appellant fighting in the parking lot between an SUV and another car. At this point, Tall P had a machete in one hand and a knife in the other. The appellant had a hammer. [7] Campbell then saw the appellant running north with a machete. Campbell, and others who were outside, also ran north. The appellant caught up to Tall P at the door to Africa House, where he hit him with the machete. (2) The Appellant’s Evidence [8] The appellant testified to going to Africa House on the night in question with three friends. At some point, he went to go outside and Campbell asked him to leave his drink downstairs. As he went up the stairs, Tall P was walking behind him and said, “All you fucking guys don’t listen. You all just want to do what you feel like.” Tall P was swearing at the appellant and the appellant was swearing back at him. While they were on the stairs, Tall P threatened him and pulled out a knife. The appellant walked outside and Tall P followed. Gatto and South Park guy were already outside. The appellant testified that Tall P threatened to stab the appellant and was on his cell phone asking someone to “come and link him.” [9] The appellant then walked south and retrieved a machete from the back of the SUV. He began walking towards Tall P to scare him but was restrained by the dreadlocks guy, and then returned the machete to the SUV. [10] The appellant says he then walked back to Tall P, this time with only a cigarette in his hands. At this point, Tall P was talking to Gatto, and the appellant testified that Tall P was still threatening him with the knife and he felt scared. He says he then returned to his SUV to listen to music and to smoke. [11] While he was in the SUV, he heard someone say, “These guys stabbed me” and recognized Gatto’s voice. He then saw Tall P running towards him with a machete. Tall P swung the machete which hit the SUV’s door and fell to the ground. The appellant then reached for a sledgehammer in the SUV. Tall P struck the appellant on the back with the knife and the appellant swung the hammer, which touched Tall P and then dropped to the ground. [12] The appellant then picked up the machete, and Tall P turned around and ran. Tall P was carrying a knife. When Tall P reached the entrance to Africa House, he turned around. The appellant says that he did not know if Tall P was going to attack him or his friends, and was still afraid. He swung the machete at Tall P and cut his hand. [13] Tall P then went inside Africa House. The appellant testified to following him inside to see if Tall P was coming back with anybody. (3) The Agreed Statement of Facts [14] It was agreed that Tall P sustained an injury to his hand requiring surgery and that Gatto received a wound in his upper abdomen approximately three inches deep. (4) The Parties’ Submissions [15] The appellant brought an application to have the defences of self-defence and defence of others put to the jury on the charges of aggravated assault and assault with a weapon. [16] Before the trial judge, the appellant argued that there was a sufficient evidentiary foundation to ground the defences of self-defence and defence of others. He pointed to the evidence that Tall P, who is considerably taller than the appellant, threatened him with a knife and had a knife in his hand the whole time. The appellant then heard, while he was sitting in the SUV, that Tall P had stabbed and attacked his friend with a machete. Tall P came to the SUV and attacked the appellant with a machete and a knife. When the machete fell, the appellant chased Tall P and slashed him with the machete seconds later. The appellant’s evidence was that as he was chasing Tall P, Tall P was holding a knife, and he believed that Tall P would attack him or his friends. He submitted that the events happened at a fast pace and in a stressful environment with little time for reflection. [17] The respondent’s position below was that, even accepting the appellant’s evidence at its highest, the acts he committed were not objectively reasonable in the circumstances. The respondent submitted that before he started chasing Tall P, the appellant had already successfully defended himself with the hammer. It was not necessary, in the objective sense, for the appellant to then pick up the machete, chase after Tall P, and slash him. (5) The Trial Judge’s Ruling on Self-Defence and Defence of Others [18] After conducting a thorough review of the evidence adduced at trial, including the video surveillance footage, the trial judge set out the relevant evidence. Notably, she made a number of factual conclusions including that: (1) at the point where Tall P was on the cell phone, there were no indications of aggressive movements towards the appellant or towards anyone; (2) the fight between Tall P and the appellant at the SUV was “almost consensual”; and (3) following this fight, when the appellant chased Tall P north towards Africa House, “the threat was over.” [19] The trial judge concluded that the appellant’s conduct was not objectively reasonable in the circumstances. In her view, the appellant had “no reason” to hit Tall P with the machete. The appellant was chasing Tall P, who was trying to escape, and who did not engage the appellant. [20] Though cognizant that the threshold at this stage of the analysis is low, given these conclusions, the trial judge ruled that there was no air of reality to the defences of self-defence or to the defence of others and dismissed the application. C. Issue and Applicable Law [21] The sole issue for this panel to decide is whether the trial judge erred in finding that there was no air of reality to the defences of self-defence and defence of others. [22] A defence should be put to the jury if, and only if, there is an air of reality to that defence: R. v. Cinous , 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 51. A trial judge’s failure to put a defence to the jury for which there is an air of reality is therefore an error of law. [23] A defence has an air of reality if, and only if, a properly instructed jury, acting reasonably, could acquit the accused on the basis of the defence: Cinous , at para. 92. This inquiry requires a consideration of the totality of the evidence, assuming the evidence relied upon by the accused to be true: Cinous , at para. 53. [24] In the case of self-defence and the defence of others, the success of each defence turns on three requirements pursuant to s. 34(1) of the Criminal Code , R.S.C. 1985, c. C-46: (a) the accused must believe on reasonable grounds that force or threat of force is being used against them or someone else; (b) the purpose for the act that constitutes the offence must be to protect oneself or others from that force or threat of force; and (c) the act committed must be reasonable in the circumstances. The first and last requirements blend objective and subjective considerations to determine what is reasonable in the circumstances, while the second requirement is subjective: R. v. Khill , 2020 ONCA 151, at paras. 54 and 57. [25] The ruling below turned on the third criterion, the reasonableness of the act. This criterion is evaluated in reference to a non-exhaustive list of factors at s. 34(2), with the trier of fact having wide discretion to determine how such factors are to be weighed and assessed: Khill , at paras. 62-63. In making this assessment, the trier of fact must be mindful that people using defensive force in stressful and dangerous situations are not expected to weigh their responses to a nicety: R. v. Cunha , 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 7; R. v. R.S. , 2019 ONCA 832, at para. 36. D. Analysis (1) Observations on the Standard of Review [26] I begin with a brief comment on the proper standard of review. The appellant directs us to authority for the proposition that the question of whether a defence has an air of reality is a question of law reviewable on a correctness standard: R. v. Budhoo , 2015 ONCA 912, 343 O.A.C. 269, at para. 40. The respondent directs us to authority for the proposition that the trial judge’s decision to leave a defence with a jury is entitled to “some deference” on appeal: R. v. Dupe , 2016 ONCA 653, 340 C.C.C. (3d) 508, at para. 79. I accept both propositions as binding on me. [27] These principles are not obviously reconciled. As Paciocco J.A. recently observed in R. v. Land , this has resulted in the standard of review on appeal in these cases being afflicted by “some complexity”: 2019 ONCA 39, 145 O.R. (3d) 29, at para. 71. [28] Reviewing a trial judge’s proper role in this exercise can assist in navigating this complexity. In some instances, there will be evidence that, if believed, would establish an element of a defence: Cinous , at para. 88. For example, an accused may testify and give direct evidence as to the existence of a subjective element of a defence. The trial judge, when faced with this direct evidence, must then find that there is an air of reality to that element. Since the trial judge must attribute an air of reality to an element supported by direct evidence in the record, we logically do not owe deference to this determination. [29] In other cases, there will be no direct evidence going to a particular element. I note, for example, there can be no direct evidence as to the reasonableness of the act in self-defence: Cinous , at para. 89. In this case, the trial judge must engage in a “limited weighing” of the evidence to determine whether the element can be “reasonably inferred”: Cinous , at para. 91. In so doing, she must not draw determinative factual inferences, nor make credibility assessments: R. v. Pappas , 2013 SCC 56, [2013] 3 S.C.R. 452, at para. 22. The limited weighing is only for the relatively narrow purpose of deciding whether there is evidence upon which the trier of fact could reasonably conclude that the element has not been disproved beyond a reasonable doubt. [30] The deference owed when reviewing this limited weighing is necessarily less than that owed to a trial judge’s findings of fact. Some of the reasons for generally deferring to trial judges on their weighing of the evidence – namely their ability to assess credibility of live witnesses and their expertise in making findings of fact – are not relevant to a limited weighing: see Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 15-18. Nevertheless, I recognize that the trial judge has the privilege of extensive exposure and immersion in the entire trial record. [31] In any event, in this case, as in Land , the trial judge’s errors obviate the need for any deference: at para. 71. (2) The Trial Judge Erred in Her Approach to the Air of Reality Test [32] In this case, the trial judge erred in her application of the air of reality test by making a number of findings that went to the heart of the factual controversies between the parties. Accordingly, her conclusion that there was no air of reality to the plea of self-defence and defence of others does not warrant deference from this court. [33] After reviewing the evidence adduced at trial, instead of determining whether a reasonable trier of fact could accept either of the defences, the trial judge undertook her own assessment of the events. For example, she concluded that the altercation between Tall P and the appellant by the SUV was “almost consensual.” She also concluded that at the time Tall P began to run away from the appellant, “the threat was over”, and found further that the appellant “had no reason to use a machete to ‘chop’ Tall P.” [34] The first of these conclusions contradicted the appellant’s version of events. It was the appellant’s evidence that he was sitting in the SUV when Tall P ran at him holding a machete and knife. According to the appellant, Tall P swung his weapons at him before he picked up a sledgehammer to defend himself. The appellant’s evidence was that when he chased Tall P, he was afraid because two people had attacked him, and he did not know if someone else was behind him. The appellant did not describe a “consensual” fight. Given that the trial judge’s finding that the fight was “almost consensual” is contradicted by the appellant’s evidence, the trial judge must necessarily have considered the appellant’s credibility, which she was not permitted to do. This finding cannot be found to have been reasonable: Pappas , at para. 53. [35] Further, there is evidence inconsistent with the trial judge’s finding that the threat was over at this point. Events happened quickly. Tall P had pursued Paul to his car and attacked him with weapons. Gatto had just been stabbed. There was evidence that Tall P still had a knife in his hand as he ran north after dropping the machete. There was evidence that Tall P had asked others to come and link him, in other words, to back him up, and there were a number of people moving about at the time. Video surveillance evidence shows that the appellant was followed when he ran after Tall P. By finding that the “threat was over” in the face of evidence that it was not, the trial judge exceeded her gatekeeping role. [36] The trial judge’s findings may have been findings which a trier of fact could have arrived at on this record. But this was not the trial judge’s task on the self-defence application: Cinous , at para. 54. These conclusions indicate that the trial judge did not restrict her role to that of limited weighing. This gives rise to the danger that her conclusion was based on these findings of fact, rather than an evidentiary assessment. Usurping the fact-finding function in this way is an error of law: Budhoo , at para. 49. [37] I note that this error is further evidenced by the wording of the trial judge’s conclusion on this point. She concluded that the appellant’s conduct “was not reasonable in the circumstances.” This was a conclusion for the jury to reach. The trial judge’s task was to ask whether a jury could reasonably reach this conclusion: Cinous , at para. 92. A simple misstatement does not positively establish a reviewable error. However, when read in context with the incorrectly made findings of fact, the trial judge’s misstatement indicates that she went beyond the scope of her role and usurped the jury’s function. [38] Given that the trial judge erred in her application of the test, no deference is owed to the decision below. I must now consider whether there is an air of reality to self-defence and defence of others on this record. (3) There is an Air of Reality to Self-defence and Defence of Others [39] I conclude that there is an air of reality to the defences of self-defence and defence of others in relation to the machete chop of Tall P. As the foregoing discussion reveals, there is evidence on which a jury could reasonably find that each of the three criteria of self-defence and defence of others were not disproven beyond a reasonable doubt. [40] On the first criterion, a jury could reasonably conclude that the accused believed on reasonable grounds that force or threat of force was being used against him or someone else. The appellant’s evidence was that as he approached Tall P at the door to Africa House, Tall P turned around to face him, holding a knife. Further, while the subject act is the machete strike that occurred at the entrance to Africa House, I note that it would be open to the jury to find that this was one among a longer chain of violent events that occurred between Tall P, the appellant, and others. The jury could reasonably have considered this broader context. In particular, it was the appellant’s evidence that Tall P had threatened to stab him, and that Tall P attacked him with a machete as he was sitting in the SUV after hearing Gatto say that he had been stabbed. [41] On the second criterion, there is no real dispute that a jury could reasonably conclude that the subjective purpose of the act was for the appellant to protect himself or others. The appellant gave direct evidence to this effect. He testified that he heard Gatto yell that he had been stabbed just before Tall P approached him with the machete. He also testified that he was scared that there was someone else behind him as he was running after Tall P. He said that when Tall P turned around at the door of Africa House he was scared that Tall P would “rush” him with a knife. There is accordingly direct evidence which, if accepted, would establish this criterion. [42] The third criterion concerns the reasonableness of the act. As with the first criterion, I am mindful that there is evidence that the subject act occurred as part of a series of altercations between the appellant, Tall P, and others. I am also mindful that in assessing the objective reasonableness of the appellant’s conduct the jury must not weigh his response to a nicety: Cunha , at para. 7. Further, s. 34(2) of the Criminal Code makes clear that this is an inherently contextual exercise: Khill , at para. 60. [43] It may be open to the jury to conclude, as the trial judge did, that the altercation between Tall P and the appellant at the SUV was “almost consensual”. However, it would also be open to the jury to conclude, based on the appellant’s evidence, that Tall P was the aggressor in this altercation. Similarly, the jury could conclude that, after the appellant picked up the machete and Tall P started running away, the threat was over, as the trial judge would have found. Yet, the jury could also conclude that the threat was not over, but that the appellant and his friends continued to be in danger such that his subsequent actions were reasonable in the circumstances. Without commenting on the likelihood that a jury would reach this conclusion, it is a conclusion that would be open to the jury on this record. [44] Thus, the jury could reasonably have acquitted the appellant of all charges in reliance on the defences of self-defence and defence of others. The defences should have been put to the jury. E. Conclusion [45] For these reasons, I would allow the appeal, set aside the convictions, and order a new trial on the charges of aggravated assault, assault with a weapon, and possession of a weapon for a dangerous purpose. Released: April 17, 2020 “LR” “A. Harvison Young J.A.” “I agree L.B. Roberts J.A.” “I agree David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Thompson, 2020 ONCA 264 DATE: 20200423 DOCKET: C65748 Strathy C.J.O., Harvison Young and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and O’Neil Thompson Appellant Marianne Salih, for the appellant Meaghan Hourigan, for the respondent Heard: November 25, 2019 On appeal from the conviction entered on December 14, 2017 by Justice John R. Sproat of the Superior Court of Justice, sitting with a jury. Jamal J.A.: A. overview [1] The appellant, a 31-year-old black man, was sitting in his parked car at a Brampton shopping plaza at night when he was arrested for being in possession of the remains of a partially smoked marijuana cigarette or “roach”. After arresting the appellant, the police searched his car incident to arrest and found cocaine, marijuana, a weighing scale, and a large amount of cash. [2] Two police officers had driven to this shopping plaza after receiving an anonymous tip about drug dealing from a car, and found the appellant’s car parked with its engine running. Although the police had no basis to believe the car’s occupants were engaged in criminal activity, they parked two police cruisers directly behind it — boxing in the appellant so he could not drive away. [3] The police then approached the car, with one officer on either side. One officer smelled burnt marijuana from the open driver-side window; the other officer directed the passenger to roll down her window, smelled burnt marijuana, and then spotted a marijuana roach on the centre console. The officers arrested the two occupants for possession of the marijuana roach, searched the car incident to arrest, and discovered the cash and other drugs. About 21 minutes after having parked behind the appellant, the police advised him of his right to counsel. [4] The appellant was charged with possession of cocaine for the purpose of trafficking, the only count on which the Crown proceeded. At trial the appellant moved to exclude the evidence found in the car pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms because the police had arbitrarily detained him (s. 9), illegally searched his car (s. 8), and failed to inform him of his right to counsel immediately (s. 10(b)). The trial judge rejected the ss. 8 and 9 arguments, but accepted that there was a “fairly serious” breach of s. 10(b) that reflected a “chronic problem” with the Peel Regional Police in systematically delaying s. 10(b) rights. Even so, the trial judge admitted the evidence under s. 24(2), and a jury convicted the appellant. The appellant now appeals his conviction, arguing that the trial judge erred in finding no breach of ss. 8 or 9 and contending that the evidence should have been excluded under s. 24(2). [5] For the reasons below, I would allow the appeal. Unlike the trial judge, I conclude that the appellant was arbitrarily detained contrary to s. 9 of the Charter the moment the first police cruiser parked directly behind his car, because at that point the appellant could no longer choose to leave by driving away unless and until the police decided otherwise. This arbitrary detention triggered the appellant’s right to counsel. Like the trial judge, I conclude that because of a systemic problem with Peel Regional Police in delaying the right to counsel, this was a serious breach of s. 10(b). I do not find it necessary to address the alleged breach of s. 8 of the Charter because, based on the combined effect of the ss. 9 and 10(b) breaches, I conclude that the admission of this evidence would bring the administration of justice into disrepute. I would therefore exclude the evidence and acquit the appellant. B. background [6] The following background draws on the trial judge’s factual findings and the undisputed evidence of the two arresting officers, Officers King and Wong. [7] Officer King received an anonymous tip that drug dealing was taking place behind a shopping plaza in Brampton. The tip, which was vague, alleged that women were going to and from a vehicle. [8] On April 19, 2016, at 12:14 a.m., while on patrol, Officer King shared the tip with Officer Wong, who was also on patrol in a separate car. Both officers were in uniform and in marked police cruisers. [9] At 12:23 a.m., both officers arrived at the plaza and drove to the back. A Cadillac was parked in a parking spot facing the curb. Officer Wong could tell that the car was occupied because he saw movement inside. Officer King could not discern this because the car’s windows were tinted, but she knew that the car was running because she saw exhaust fumes. She thought it was unusual for a car to be parked with its engine running at this time of night. [10] At 12:23 a.m., Officer King parked her police cruiser “directly behind” the Cadillac, which she estimated was about 11 feet away. She acknowledged that the way she parked led to “blocking the Cadillac from exiting”. Officer Wong then parked his car directly behind Officer King’s car. He acknowledged that “[b]oth [police] vehicles were essentially preventing the Cadillac from reversing should it choose to do so.” Both officers conceded that at this point they had no basis to believe that anyone in the car had committed a criminal offence. [11] Officer King got out of her car and approached the Cadillac on the passenger’s side, while Officer Wong got out of his car and approached on the driver’s side. Officer King tapped on the passenger-side window. When the female passenger rolled down the window, Officer King smelled burnt marijuana. She shone her flashlight into the car and within a minute saw the stub of a smoked marijuana cigarette in the centre console. This was at about 12:26 a.m. [12] Meanwhile, as Officer Wong approached on the driver’s side, he also smelled burnt marijuana. The driver-side window was already down. When he shone his flashlight at the driver, the appellant’s head “popped up”, possibly because he had been reclining. The trial judge inferred from this that the appellant was not even aware of the presence of the police, much less the position of the police cruisers, until Officer Wong was very close to the driver-side window and had shone his flashlight at him. [13] Officer Wong asked both occupants for identification and asked the appellant for vehicle ownership documents. The appellant gave Officer Wong his Ontario driver’s licence. The female passenger orally identified herself. Officer King then told the appellant and the passenger that they were both under arrest for possession of a controlled substance — the marijuana roach. [14] At about 12:26 a.m., Officer Wong told the appellant to get out of his car and took him to the rear of it. He then spent about five minutes doing a pat-down search of the appellant. At about 12:33 a.m., he put the appellant in Officer King’s car and went to help Officer King by taking control of the female passenger. [15] Officer King then searched the appellant’s car. She found some loose cash and a scale in the centre console. She also found a backpack in the back seat and searched it – finding 29 grams of cocaine, 5 grams of marijuana, 8 grams of hash oil, 12 grams of hash, and about $18,000 in cash. [16] At 12:41 a.m., Officer King told Officer Wong what she had seized. She then went to her car. [17] At 12:44 a.m., Officer King told the appellant that he was charged with possession for the purpose of trafficking, cautioned him, and advised him of his right to counsel. C. the voir dire ruling [18] At trial the appellant applied to exclude the evidence from the car under s. 24(2) of the Charter based on breaches of ss. 8, 9, and 10(b), among other grounds. [19] The trial judge rejected the appellant’s argument that he was detained when Officer King parked her police cruiser behind his car. He concluded that the appellant was detained only when he was arrested because: (1) the appellant was not even aware of the presence of the police until Officer Wong shone his flashlight close to the open driver-side window; (2) the occupants were sitting in the car with no immediate plan to move; (3) the encounter involved general neighbourhood policing, rather than the police effectively taking control of the appellant; (4) the encounter was not inherently intimidating and was brief, lasting less than a minute from when the appellant noticed the flashlight to when he was arrested; and (5) the appellant was not a young person. The trial judge also stated that it was safer for the police to park directly behind the appellant’s car to signal that the police were there rather than someone who might pose a threat. [20] The trial judge, however, found that Officer Wong should have advised the appellant of his right to counsel and cautioned him when he placed him in Officer King’s car at 12:33 a.m. The failure to do so breached the appellant’s rights under s. 10(b). [21] The trial judge also found that the police did not breach the appellant’s s. 8 rights by using a flashlight to identify the marijuana roach or in searching his car incident to arrest. They could use flashlights for their own and the occupants’ safety and to warn the occupants that they were approaching. And because the appellant’s arrest was lawful, the police could search the appellant’s car and backpack incident to his arrest. [22] Finally, despite finding a breach of s. 10(b), the trial judge declined to exclude the evidence under s. 24(2) of the Charter . He concluded that even if the police had advised the appellant of his right to counsel immediately upon arrest, they still would have obtained the evidence. The evidence was thus not “obtained in a manner” that breached the Charter , and s. 24(2) did not apply. [23] Even if s. 24(2) did apply, the trial judge still would have admitted the evidence. Although he found that the s. 10(b) breach was “fairly serious” — reflecting a “chronic problem” with Peel Regional Police officers believing that the right to counsel only needs to be provided “as soon as practicable” — he concluded that the impact of the violation on the appellant’s rights was minimal. He was not questioned before he was advised of his right to counsel, the evidence was non-bodily physical evidence that did not arise from any deliberate or egregious police conduct, and it was reliable and essential to the Crown’s case. D. ANALYSIS [24] I will address the following issues: 1. Was the appellant arbitrarily detained contrary to s. 9 of the Charter ? 2. When were the appellant’s rights under s. 10(b) of the Charter engaged? 3. Should the evidence have been excluded under s. 24(2) of the Charter ? [25] Because I conclude that the evidence should have been excluded under s. 24(2) based on the combined breaches of ss. 9 and 10(b), I need not address the alleged breaches of s. 8 of the Charter . Issue 1: Was the appellant arbitrarily detained contrary to s. 9 of the Charter ? Introduction [26] I will begin by reviewing some of the general principles that apply to whether an individual is “detained” under s. 9 of the Charter . I will then apply those principles to assess whether the appellant was psychologically detained, and if so, whether any detention was arbitrary. I conclude that the appellant was detained and, because the Crown concedes (as it did at trial) that the police lacked reasonable grounds to detain the appellant, the detention was arbitrary and breached s. 9. General principles [27] Section 9 of the Charter provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” [28] An inquiry under s. 9 involves two questions. First, was the claimant detained? Second, was any detention arbitrary? Both questions are reviewed on appeal under a correctness standard: R. v. Le , 2019 SCC 34, 434 D.L.R. (4th) 631, at para. 29. [29] As with other Charter rights, the Supreme Court has adopted a generous and purposive interpretation of s. 9, one that seeks to balance society’s interest in effective policing with robust protection for constitutional rights: see R. v. Suberu , 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 24; R. v. Grant , 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 15-18, 23. [30] The purpose of s. 9, broadly stated, is to protect individual liberty against unjustified state interference: Grant , at para. 20. This liberty includes an individual’s right to make an informed choice about whether to interact with the police or to simply walk away. If the police have removed an individual’s choice to leave, the individual is detained: Grant , at paras. 20-21. As noted by then-Professor David Paciocco: “[w]hat is given protection, essentially, is the right to choose whether to stay or leave when interacting with state agents”: David M. Paciocco, “What to Mention About Detention: How to Use Purpose to Understand and Apply Detention-Based Charter Rights” (2010) 89 Can. Bar Rev. 65, at p. 71. [31] A detention occurs where the individual has been taken “into the effective control of the state authorities”: Grant , at para. 22. At this point, the individual’s liberty has been “meaningfully constrained”, and the individual has a “genuine need of the additional rights accorded by the Charter to people in that situation”: Grant , at para. 26. These rights include the right to be informed of the reasons for the detention (s. 10(a)); the right to retain and instruct counsel without delay and to be informed of that right (s. 10(b)); and the right to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful (s. 10(c)). [32] Yet not every trivial or insignificant interference with individual liberty attracts Charter scrutiny under s. 9. Such a broad interpretation would “trivialize the applicable Charter rights and overshoot their purpose”: Grant , at para. 26. The police may, as a result, interact with or even delay members of the public, without necessarily prompting a “detention” under ss. 9 or 10(b): Suberu , at para. 23, citing R. v. Mann , 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19; Le , at para. 27. [33] Instead, a “detention” arises only where the police have suspended an individual’s liberty interest through “a significant physical or psychological restraint”: Grant , at para. 44. [34] Physical restraint has been called “the paradigm form of detention”, with arrest being the “paradigm form of physical restraint”: Paciocco, at p. 75. [35] But a detention can also arise from psychological restraint. This is because police conduct “short of holding an individual behind bars or in handcuffs can be coercive enough to engage the rights protected by ss. 9 and 10 of the Charter ”: Suberu , at para. 21. [36] A psychological detention can arise either if: (1) an individual is legally required to comply with a police direction or demand (as with a demand for a roadside breath sample); or (2) absent actual legal compulsion, “the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand”: Grant , at paras. 30-31; Suberu , at para. 22; and Le , at para. 25. This involves “an objective determination, made in light of the circumstances of an encounter as a whole”: Suberu , at para. 22. [37] The Supreme Court summarized the framework for analyzing whether an individual is detained at para. 44 of Grant : 1.   Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. 2.   In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia , the following factors: (a)     The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. (b)     The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. (c)     The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [38] I now turn to consider the appellant’s claim that he was psychologically detained. Was the appellant psychologically detained? [39] The appellant asserts that the trial judge erred in concluding that he was detained only when he was arrested. He says he was psychologically detained earlier, when the police parked the first police cruiser behind his car, because at that point the police had removed his choice to drive away. He submits that the trial judge erred in law by applying a subjective rather than an objective approach to the encounter. Based on all the circumstances, he says it is inconceivable that a reasonable person in his shoes would believe that he was free to leave after the police obstructed his car. [40] As I will explain, I agree that the trial judge erred by failing to apply the objective approach to psychological detention mandated by the Supreme Court in Grant , Suberu , and most recently, Le . [41] Grant and Suberu clarified that, when there is no legal compulsion, psychological detention is evaluated under an objective test. The operative question is “whether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand”: Grant , at para. 31. An objective test allows the police to know when a detention occurs so that they can discharge their obligations under s. 10 of the Charter . While the test is objective, the individual’s particular circumstances and perceptions at the time may be relevant in assessing the reasonableness of any perception that the individual had no choice but to comply with the police directive: Grant , at para. 32. The failure of the claimant to testify is not fatal to the detention claim: Suberu , at para. 28. [42] The Supreme Court’s recent decision in Le , which was released after the trial judge’s decision here, confirms the objective nature of the inquiry. The majority warned that “[u]ndue focus on subjective perceptions detracts from the underlying rationales for adopting an objective test”, of which it identified at least three: (1) to allow the police to know when a detention occurs so that they can discharge their attendant Charter obligations and afford the individual its added protections; (2) to maintain the rule of law, as all claims will be subjected to the same standard; and (3) to recognize “the reality that some individuals will be incapable of forming subjective perceptions when interacting with the police”: Le , at para. 115. [43] Given these strong reasons for an objective approach, the majority in Le warned that the focus must not be on “what was in the accused’s mind”, but on “how the police behaved” and “how such behaviour would be reasonably perceived”. This avoids putting “the onus on the claimant to gauge correctly when they are detained and when they are not”: Le , at para. 116. [44] In Le itself, the claimant had testified that he did not believe that he was detained by the police at a particular point. The majority placed little stock in the claimant’s belief because it concluded that he was already detained based on an objective evaluation of the circumstances: at para. 116. [45] This court has similarly highlighted that it is an error of law to approach psychological detention “largely as a subjective inquiry”: R. v. McSweeney , 2020 ONCA 2, at para. 35; see also R. v. Wong , 2015 ONCA 657, 127 O.R. (3d) 321, at paras. 26-28, 43. [46] Here, the trial judge did exactly that. He conducted a largely subjective inquiry into the appellant’s state of mind during the encounter, rather than an objective inquiry about whether the police conduct would cause a reasonable person in the appellant’s circumstances to conclude that he was free to leave. I say this for two reasons. [47] First, in finding that the appellant was not detained, the trial judge highlighted that he was not subjectively aware that the police had parked behind him until they shone a flashlight into his car: I do not accept the defence argument that Mr. Thompson was detained the moment the police cruiser parked behind his vehicle. Officer Wong testified that Mr. Thompson’s head popped up when he directed his flashlight in the direction of Mr. Thompson. That evidence suggests, and I find, that he was not even aware of the presence of the police, much less the position of the police cruisers until Officer Wong shone his flashlight and was positioned very close to the driver’s side window that was open . I conclude that it was his flashlight that initially attracted Mr. Thompson’s attention, that Mr. Thompson’s attention would immediately be directed to Officer Wong who was by then at the driver’s side window. [Emphasis added.] [48] The trial judge focussed on what the appellant subjectively perceived about the police presence, rather than what a reasonable person in his circumstances would conclude from the nature of the police interaction. Whether the appellant was detained, triggering the police’s Charter obligations, should not turn on whether the appellant saw the police in his rear-view mirror as they boxed him in (a subjective approach), but on whether a reasonable person in his circumstances would conclude that this police conduct effected a detention (an objective approach). [49] Second, the trial judge inferred that the appellant had no subjective intention to drive away when the police arrived: Stepping in the path of someone and forcing a person to stop is more confrontational and potentially intimidating than parking a vehicle behind another vehicle particularly when on the evidence there was no indication that Mr. Thompson had any indication of moving the vehicle. I find that the occupants of the vehicle were simply sitting there with no immediate plan to move . [Emphasis added.] [50] The correct question, however, was not whether the appellant intended to drive away, but whether objectively the police had taken away his choice to do so. [51] This case underscores each of the three reasons supporting an objective approach: (1) it allows the police to know when the detention occurs, based on their own conduct rather than the subjective perceptions of the accused; (2) it maintains the rule of law, as all claims are subjected to the same standard, avoiding a different result if, for example, one accused saw the police in his rear-view mirror as they obstructed his car, but another did not; and (3) it recognizes that some individuals are incapable of forming subjective perceptions, like the appellant here, who did not appear to immediately perceive when the police obstructed his car. [52] In view of the error of law in applying a largely subjective analysis, this court must apply an objective approach based on the factors identified in Grant , at para. 44: (i) the circumstances giving rise to the encounter; (ii) the nature of the police conduct; and (iii) the characteristics and circumstances of the appellant. (i) The circumstances giving rise to the encounter [53] The circumstances giving rise to the encounter as they would be perceived by a reasonable person support a finding that the appellant was detained when the police obstructed his car. The police were not called to provide general assistance, maintain order, or respond to unfolding events. No one called the police to attend at the plaza. While the police were there at first in response to an anonymous tip, the tip was general, and they approached the appellant’s car because they thought it was suspicious for a car to have its engine running late at night. The trial judge fairly characterized this police activity as “general neighbourhood policing”, at least before they obstructed the appellant’s car. [54] But after that, a reasonable person would know only that the police showed up late at night and for no apparent reason obstructed the appellant’s car. Regardless of the officers’ intentions as they blocked the appellant, a reasonable person would not perceive this action as “assisting in meeting needs or maintaining basic order”: Grant , at para. 40; Le , at para. 42. (ii) The nature of the police conduct [55] The police conduct was authoritative from the outset. By obstructing the movement of the appellant’s car, the police would reasonably be perceived as sending the message that the appellant was not free to leave until the police decided otherwise. [56] This conclusion that the police conduct was authoritative is only reinforced by considering other circumstances of the encounter: the police were uniformed and in marked police cars; they placed themselves on either side of the car to question the occupants; they looked into the car with flashlights and directed the passenger to roll down her window; and they directed the occupants to produce identification and vehicle ownership documents. [57] I therefore disagree with the trial judge’s view that the character of the encounter did not move from “general neighbourhood policing to a situation where the police had effectively taken control of Mr. Thompson.” That is exactly what happened. As in Grant , the police effectively took control of the appellant’s car and its occupants, first by obstructing the appellant’s car, and then by approaching the car and seeking information from the appellant and the passenger: see Grant , at para. 49. [58] While the police did not engage in physical contact with the appellant before his arrest, their physical proximity in blocking his car would have created “an atmosphere that would lead a reasonable person to conclude that the police were taking control of the situation and that it was impossible to leave”: Le , at para. 50. [59] I also disagree with the trial judge that it was “safer for all concerned for the police to park in plain view”, directly behind the appellant’s car, or that the encounter was “not inherently intimidating” and only “fleeting” before the appellant was arrested. The brevity of the encounter “is simply one consideration among many”: Le , at para. 65. A psychological detention can occur at the start of an interaction or within seconds: see Le , at para. 66; Grant , at para. 42. That occurred here, as soon as the police parked behind the appellant. In my view, most reasonable people would find it intimidating to have their car’s movement obstructed by two police cruisers. [60] The Crown did not provide any authority for the lawfulness of the police detaining the appellant in this case. Nor did the Crown rely on any statutory power of the police to obstruct the appellant’s car, such as under the Highway Traffic Act , R.S.O. 1990, c. H.8 or the Criminal Code , R.S.C. 1985, c. C-46. The appellant had a right to be where he was and a basic liberty to come and go by car as he pleased without being impeded by the police. [61] Finally, I reject the Crown’s argument that the appellant was not detained, even though his car was obstructed, because he always remained free to “walk away” – by literally exiting his car and leaving on foot. In my view, a reasonable person in the appellant’s position, whose car was deliberately obstructed by a police cruiser, would conclude that they were not free to leave, on foot or otherwise. [62] But even if the appellant was free to leave on foot, as the Crown asserts, this confirms that his freedom of movement was significantly constrained. If the individual is a motorist or a driver, their freedom of movement includes the freedom to leave by driving away: see R. v. Orbanski , 2005 SCC 37, [2005] 2 S.C.R. 3, at paras. 30-31 (referring to the rights of “a driver” and “every motorist”); Suberu , at para. 33 (accused not detained because the police “made no move to obstruct [his] movement” as he sat in his van). Here, the appellant’s freedom to drive away was significantly constrained, which suggests that he was detained. (iii) The characteristics and circumstances of the appellant [63] The trial judge noted that “Mr. Thompson is not a young person”, but more to the point he was a black man sitting in his car at night in Brampton when his car was obstructed without apparent reason by two marked police cruisers. I am not suggesting that the police engaged in racial profiling – to the contrary, they could not determine the race of the occupants because the windows were tinted. But the appellant’s status as a racialized Canadian in Brampton, one of the largest majority-racialized cities in Canada, is relevant to the perception of a reasonable person in his shoes. The majority in Le , at para. 97, referred to “a common and shared experience of racialized young men: being frequently targeted, stopped, and subjected to pointed and familiar questions”. As in Le , at para. 97, I conclude that “[t]he documented history of relations between police and racialized communities would have had an impact on the perceptions of a reasonable person in the shoes of the [appellant]”. Here, the appellant’s race would contribute to a reasonable person’s perception in all the circumstances that he was detained. [64] I therefore conclude that the appellant was detained the moment the first police cruiser boxed in his car, because at that point the police had eliminated his choice to drive away unless and until the police decided otherwise. Was the detention arbitrary? [65] A detention without at least reasonable suspicion is unlawful and therefore arbitrary: Grant , at para. 55. The trial judge accepted that the “generic” anonymous tip the police received “did not provide the police with any right to detain” the appellant. Nor did the police have any other basis to do so. The Crown does not suggest otherwise. [66] The appellant was therefore arbitrarily detained contrary to s. 9 of the Charter . Issue 2: When were the appellant’s rights under s. 10(b) of the Charter engaged? [67] When an individual is arrested or detained, s. 10(b) of the Charter guarantees the individual the right to retain and instruct counsel “without delay” and to be informed of that right. Subject to concerns for officer or public safety, or limitations prescribed by law and justified under s. 1 of the Charter , “without delay” means “immediately”: Suberu , at para. 42. [68] Here, the trial judge found that the police did not inform the appellant of his right to counsel immediately. The relevant timeline is as follows: · 12:23 a.m. — The police arrive and park behind the appellant’s car. · 12:26 a.m. — The police arrest the appellant. · 12:26 a.m. to 12:33 a.m. — The police conduct a pat-down search of the appellant and place him in the back of a police cruiser. · 12:33 a.m. to 12:41 a.m. — The police search the appellant’s car incident to arrest. · 12:44 a.m. — The police inform the appellant of his right to counsel. [69] The trial judge found a delay in informing the appellant of his right to counsel, running from 12:33 a.m. to 12:44 a.m. Although the appellant was arrested at 12:26 a.m., the trial judge did not count the period when the police did a pat-down search because he found this search was justified by concerns for officer safety. [70] The appellant submits that he was arbitrarily detained at 12:23 a.m., not when he was arrested at 12:26 a.m., and that the trial judge had no basis to deduct the time for the pat-down search. He submits that this delay was unjustified because the police advanced only “generalized” rather than “concrete and specific” officer-safety concerns. [71] I agree that the appellant’s s. 10(b) rights were triggered when he was arbitrarily detained rather than when he was arrested. I have concluded, however, that it is unnecessary in this case to decide whether the police were justified in conducting a pat-down search before advising the appellant of his right to counsel, given the subsequent delay before the appellant was advised of his right to counsel and the lack of any reason for that delay. There was no reason why the police could not have advised the appellant of his right to counsel at the latest at 12:33 a.m., before they searched his car. Instead they waited another 11 minutes. As the trial judge found, this conduct breached s. 10(b). Issue 3: Should the evidence have been excluded under s. 24(2) of the Charter ? [72] The final issue is whether the evidence should have been excluded under s. 24(2) of the Charter . The trial judge found only a breach of s. 10(b), while I would also find a breach of s. 9. [73] Because the trial judge erred in law in assessing the nature and extent of the Charter breaches, his conclusion to admit the evidence does not attract appellate deference. This court must consider that issue afresh: Le , at para. 138; Grant , at para. 129; R. v. Paterson , 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 42; R. v. Gonzales , 2017 ONCA 543, 136 O.R. (3d) 225, at paras. 162, 166; and R. v. Adler , 2020 ONCA 246, at para. 40. [74] Section 24(2) is triggered where evidence is “obtained in a manner” that violates an accused’s Charter right. A s. 24(2) inquiry examines the impact of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term, based on: (i) the seriousness of the Charter -infringing state conduct; (ii) the impact of the breach on the accused’s Charter -protected interests; and (iii) society’s interest in the adjudication of the case on the merits. The court’s task is to balance the assessments under these three inquiries “to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute”: Grant , at para. 71; Le , at paras. 139-141; and McSweeney , at para. 76. [75] In Le , the Supreme Court recently clarified the interaction of the three inquiries under s. 24(2). The majority noted that while the first two inquiries typically “both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion”: at para. 141. The evidence can be excluded even if the first two inquiries do not both support exclusion, such as in a case of a serious Charter breach coupled with a weak impact on a Charter -protected interest: at para. 141. The third inquiry, while not a rubber stamp deeming all evidence reliable, typically points to admission. When, however, the first two inquiries taken together make a strong case for exclusion, the third inquiry “will seldom if ever tip the balance in favour of admissibility”: Le , at para. 142; see also Paterson , at para. 56. [76] I now turn to apply the s. 24(2) analysis to this case. “Obtained in a manner” [77] Because the trial judge found no Charter breach before the discovery of the contents of the backpack and the s. 10(b) breach was brief, he concluded that the evidence was not “obtained in a manner” that breached the Charter , and thus s. 24(2) was not engaged. He still conducted a s. 24(2) analysis for completeness. [78] The Crown asserts that the trial judge correctly found no causal connection between the breach of s. 10(b) and the discovery of the evidence, but concedes that because the breach and discovery were close in time and part of the same transaction, there was a temporal connection sufficient to trigger s. 24(2). [79] I accept the Crown’s concession. A temporal connection between the breach of a Charter right and the discovery of evidence is enough to engage s. 24(2): see R. v. Mian , 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 83; R. v. La , 2018 ONCA 830, 366 C.C.C. (3d) 351, at para. 35; and R. v. Rover , 2018 ONCA 745, 143 O.R. (3d) 135, at para. 35. Here, there was such a connection between the breach of s. 10(b) and the discovery of the evidence. [80] I would, however, also find a causal connection because the evidence was discovered as a result of the arbitrary detention. The arbitrary detention had a direct causal connection to the discovery of the marijuana roach, and then to the arrest of the appellant, the search of his car, and the discovery of the evidence. [81] I therefore conclude that s. 24(2) of the Charter was engaged. [82] I now turn to the three lines of inquiry under s. 24(2). (i) The seriousness of the Charter-infringing state conduct [83] The first line of inquiry considers the seriousness of the police conduct that infringed the Charter and led to the discovery of the evidence. It asks whether the police engaged in misconduct from which the court should dissociate itself, such as where the departure from Charter standards was significant or where the police knew or should have known that their conduct breached the Charter ; or rather whether the breach was merely of a technical nature or reflected an understandable mistake, in which case dissociation is much less of a concern: Grant , at paras. 72-74; R. v. Harrison , 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22; and McSweeney , at para. 78. [84] The courts should dissociate themselves from evidence obtained through a negligent breach of the Charter : Le , at para. 143; see also Grant , at para. 75. [85] Moreover, a systemic problem or pattern of Charter -infringing conduct is an aggravating factor that supports exclusion: Grant , at para. 75; Harrison , at para. 25. [86] To recap, I have concluded that there were breaches of ss. 9 and 10(b). [87] With respect to the breach of s. 9, I conclude that the police conduct in arbitrarily detaining the appellant was moderately serious in that it reflected negligence rather than wilful or deliberate conduct. When Officer King was cross-examined on why she had parked directly behind the Cadillac and blocked its exit, she simply said: “[i]t was just where I chose to stop my vehicle.” The police appear to have been unaware that their actions constituted or might constitute a detention. [88] Even though the police did not deliberately set out to violate the appellant’s rights under s. 9, their failure to appreciate their duties led to this result: see Wong , at para. 63. [89] More than a decade after Grant , the police must appreciate that, absent exigent circumstances or other appropriate justification, they cannot go about their undeniably important duties to enforce the law by obstructing ordinary Canadians in their cars until they are satisfied that they have answered their questions. To do so without a statutory or common law power would undercut the individual’s fundamental right to choose whether to engage with the police or to leave. [90] The breach of s. 10(b) was, however, more serious. The police did not advise the appellant of his right to counsel “immediately”, as required by well-established jurisprudence under s. 10(b), but waited without justification before doing so: Suberu, at paras. 41-42. As this court recently noted, “[t]he law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out”: R. v. Noel , 2019 ONCA 860, at para. 34. [91] Both officers here appeared to be confused about their obligations under s. 10(b). At trial Officer King testified that she understood that, on arrest or detention, the appellant had to be informed of his right to counsel “immediately”, though she also conceded that at the preliminary inquiry she had said, “as soon as practicable”. She said that at the preliminary inquiry she may have mixed up the word “possible” and “practicable”, but she also testified that, to her, “as soon as possible” means “if it’s convenient for [her] to give rights to counsel and practical”. Officer Wong testified that his understanding was that the appellant had to be informed of his right to counsel “as soon as practicable”. He said that this had been his practice for the two years that he had been a police officer and was still his practice. He said this is what he was taught at his initial police training and what he is taught as part of his ongoing training. But “as soon as practicable” is necessarily a laxer standard than “as soon as possible” or “immediately”. [92] Worse still, the breach of s. 10(b) is rooted in a systemic disregard by the Peel Regional Police for their constitutional obligations. The trial judge himself found the breach of s. 10(b) to be “fairly serious” and highlighted a “chronic problem” with the Peel Regional Police and its officers believing that the right to counsel need be given only “as soon as practicable”. In support of this observation he referred to the comments of Schreck J. in R. v. Sandhu , 2017 ONCJ 226, 378 C.R.R. (2d) 306, at paras. 8-11. It is worth quoting Schreck J.’s comments at length given the serious systemic concerns he highlighted, at paras. 9-11: Suberu was decided over seven years ago. As the Court noted, the concept of immediacy leaves little room for misunderstanding. Despite this, the police in Peel Region have repeatedly demonstrated what is at best a failure to grasp the dictates of the judgment, or, at worst, an unwillingness to follow it. See, for example, R. v. Athwal , 2017 ONSC [9]6 at para. 230; R. v. Kraus , 2015 ONSC 2769 at paras. 36-37; R. v. Moulton , 2015 ONSC 1047 at paras. 86-89; R. v. Grewal , 2015 ONCJ 691 at paras. 41-44; R. v. Medeiros , 2015 ONCJ 707 at para. 30; R. v. Singh , 2015 ONCJ 643 at para. 39; R. v. Ahmad , 2015, ONCJ 620 at paras. 15-19; R. v. Lam , 2014 ONSC 3538 at para. 230; R. v. Soomal , 2014 ONCJ 220 at para. 39; R. v. Ramocan , 2014 ONCJ 692 at para. 66; R. v. Volkov , [2014] O.J. No. 5346 (C.J.) at para. 25; R. v. Thomson , 2013 ONSC 1527 at paras. 137-140; R. v. Godday , 2013 ONSC 1298 at para. 86; R. v. Thompson , [2013] O.J. No. 3570 (C.J.) at para. 5; R. v. Dinh , 2011 ONSC 5644 at para. 48; R. v. Watson , 2010 ONSC 448 at para. 109. Cst. Darcy is not the only Peel officer who seems to believe that he is obliged to advise people he has arrested of their right to counsel “as soon as practicable”: Kraus at para. 36; Medeiros at para. 12. The term “as soon as practicable” is often used in the drinking and driving context as it appears in s. 258(1)(c)(ii) of the Criminal Code in relation to when breath samples should be taken. In that context, it means “within a reasonably prompt time in the circumstances” and does not mean as soon as possible: R. v. Vanderbruggen (2006), 2006 CanLII 9039 (ON CA), 206 C.C.C. (3d) 489 (Ont. C.A.) at para. 12. It clearly does not mean “immediately”. Rather, it denotes a degree of flexibility that is simply not present in the s. 10(b) context. In Lam , which was decided in 2014, Hill J. stated (at para. 337): While the denial of the right to counsel, over 10 months after Suberu , was deliberate on the part of the officers in the sense of intended, it was without individual knowledge of its wrongness. However, once again, the PRPS [Peel Regional Police Service] as an institution failed to equip its officers with the knowledge required of a reasonably trained police officer by unreasonably delaying formal notification of its officers of this change in the law until an August 2013 Training Bulletin, over four years after the Suberu (SCC) decision - a Bulletin which still does not make it explicitly clear that both the informational and implementational duties of the s. 10(b) Charter right are to be provided immediately upon the imposition of investigation detention. These concerns, expressed by a very experienced and well-respected jurist in this jurisdiction, apparently remain unheeded as in this case, an officer with almost 10 years of experience still does not appreciate that the right to counsel has to be provided immediately. This appears to be a systemic problem, which renders the breach more serious: R. v. Harrison , 2009 SCC 34 at para. 25. [93] Since Schreck J. wrote these words, there have been even more instances of the Peel Regional Police failing to respect their obligation to inform a detainee of the right to counsel immediately, underscoring that this is an ongoing systemic problem: see, for example, R. v. Kou, 2019 ONCJ 966, at paras. 26-32; R. v. Gordon, 2018 ONSC 1297, at paras 49-54; R. v. Bullock , 2018 ONCJ 598, 418 C.R.R. (2d) 299, at paras. 59-66; R. v. Lima , 2017 ONSC 2224, 379 C.R.R. (2d) 1, at paras. 34-37; R. v. Christopoulos , 2017 ONCJ 845, at paras. 21-24; R. v. Paskaran , 2017 ONCJ 696, 394 C.R.R. (2d) 340, at paras. 10, 17, 19; R. v. Williams , [2017] O.J. No. 5787 (C.J.), at paras. 55-60, 67; and R. v. Simpson , 2017 ONCJ 321, 383 C.R.R. (2d) 134, at paras. 24-26. [94] To be clear, I do not wish to single out the individual officers here for blame. Neither of them appears to have intentionally breached s. 10(b) and both were relatively inexperienced officers who appear to have been following their training. The issue, rather, is institutional and systemic. It is, as the trial judge noted, a “chronic problem” with the Peel Regional Police force breaching their clear and well-settled constitutional obligations under s. 10(b). [95] Even without a systemic problem, a clear breach of settled rules governing state conduct supports exclusion of evidence under s. 24(2). As noted in Paterson , at para. 44: “[e]ven where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct ( R. v. Harrison , 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 24-25)”; see also Noel , at para. 34. [96] Here, the infringement does reflect a systemic breach of settled rules under s. 10(b). This serves as an aggravating factor supporting exclusion. When coupled with the s. 9 breach, I conclude that this case involved serious Charter violations. (ii) Impact of the breach on the appellant’s Charter-protected interests [97] The second line of inquiry under s. 24(2) asks whether the Charter breach “actually undermined the interests protected by the right infringed”: Grant , at para. 76; Le , at para. 151. This involves identifying the interests protected by the relevant Charter rights and evaluating how seriously the Charter infringements impacted those interests. The more serious the impact on Charter -protected interests, “the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute”: Grant , at paras. 76-77; Harrison , at para. 28; and Le , at para. 151. [98] Here, the appellant’s interest protected by s. 9 of the Charter was his liberty from unjustified state interference — his right, absent compelling state justification, “to live his life free of police intrusion”, and “to make decisions, including decisions of fundamental importance, free from state interference”: Le , at paras. 152-154; Grant , at paras. 19-20; see also Harrison , at para. 31. [99] The s. 10(b) right to retain and instruct counsel without delay and to be informed of that right allows a detainee to obtain advice about how to exercise their rights relevant to their legal situation: R. v. Taylor , 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21; Wong , at para. 77. This helps ensure that a detainee’s choice to speak to the police is free and informed and guards against the risk of involuntary self-incrimination: Suberu , at para. 40; R. v. Sinclair , 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25; and Wong , at para. 77. [100] Here, the trial judge found that the impact of the violation of s. 10(b) was minimal because the police did not try to question the appellant before advising him of his right to counsel and he made no inculpatory comments. I agree with that assessment. [101] But the impact of the violation of s. 9 — which the trial judge did not consider because he found no such violation — was far from minimal. Being obstructed by a police car without justification curtails a person’s rightful expectation of liberty and therefore intrinsically injures s. 9 interests. In addition, although the detention was brief before the appellant was arrested, the detention did not merely restrict but eliminated any realistic choice the appellant might have had about whether to leave. This impact on his s. 9 interests is heightened by the lack of any reasonable basis for the police conduct in detaining him. As the Supreme Court has emphasized, even trivial or fleeting detentions “must be weighed against the absence of any reasonable basis for justification”: Mann , at para. 56 (emphasis in original); Le , at para. 155. [102] As a result, I conclude that the impact on the appellant’s s. 9 interests was significant and favours a finding that the admission of the evidence would bring the administration of justice into disrepute. (iii) Society’s interest in the adjudication of the case on the merits [103] The last line of inquiry considers factors such as the reliability of the evidence and its importance to the Crown’s case. It typically supports finding that admission of the evidence would not bring the administration of justice into disrepute: Grant , at paras. 79-84; Harrison , at para. 33; and Le , at para. 142. [104] This inquiry asks whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion: Grant , at para. 79; McSweeney , at para. 81. Reliable evidence that is critical to the Crown’s case will generally pull towards inclusion: Harrison , at paras. 33-34; R. v. McGuffie , 2016 ONCA 365, 131 O.R. (3d) 643, at para. 62; and McSweeney , at para. 81. [105] Here, the appellant concedes that because the evidence is reliable and essential to the Crown’s case against him, the third inquiry favours admission of the evidence. I agree with that concession. Balancing the factors [106] The final step under the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision: Harrison , at para. 36. [107] If, however, the first two inquiries together make a strong case for exclusion, the third inquiry “will seldom if ever tip the balance in favour of admissibility”: Le , at para. 142; Paterson , at para. 56; and McSweeney , at para. 81. [108] Here, both the first and second lines of inquiry pull towards exclusion, though not with identical force. This case involves serious Charter breaches coupled with a somewhat weaker but still significant impact on the appellant’s Charter -protected interests. Cumulatively, the first two inquiries make a strong case for exclusion, one that in my view outweighs society’s interest in the adjudication of the case on the merits. [109] Despite the reliability of the evidence and its importance to the Crown’s case, I have therefore concluded that the administration of justice would be brought into dispute by its admission. The evidence therefore should have been excluded under s. 24(2). E. conclusion [110] For these reasons, I would allow the appeal, exclude the evidence under s. 24(2) of the Charter , and set aside the conviction. Because the appellant could not be convicted without the evidence obtained as a result of the Charter breaches, I would direct an acquittal. Released: April 23, 2020 (“G.R.S.”) “M. Jamal J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Stewart v. Toronto (Police Services Board), 2020 ONCA 255 DATE: 20200416 DOCKET: C65779 Brown, Huscroft and Trotter JJ.A. BETWEEN Luke Stewart Appellant (Plaintiff) and The Toronto Police Services Board Respondent (Defendant) Davin Charney and Christopher Rapson, for the appellant Kevin McGivney and Jonathan Thoburn, for the respondent Winston Gee and Sarah Whitmore, for the intervenor Canadian Civil Liberties Association Heard: December 17, 2019 On appeal from the judgment of Justice Bernadette Dietrich of the Superior Court of Justice, dated July 13, 2018, with reasons reported at 2018 ONSC 2785. Brown J.A. : I. OVERVIEW [1] This appeal, like that in Figueiras v. Toronto (Police Services Board) , 2015 ONCA 208, 124 O.R. (3d) 641, concerns the interaction during the June 2010 Toronto G20 summit between members of the Toronto Police Services (“TPS”) and protestors who were demonstrating on public property. Prior to 2010, the protests accompanying G20 summits had presented significant policing challenges, with large peaceful protests intertwined with protestors who were intent on violence and the destruction of property. [2] In Figueiras , this court held that the police did not have the power, under the common law ancillary powers doctrine, to target apparent demonstrators and require that they submit to a search of their bags and backpacks in order to continue down a public street toward a protest. [3] This appeal raises the issue of whether the police, acting as agents of the City of Toronto (the “City”) under the Trespass to Property Act , R.S.O. 1990, c. T.21 (the “ TPA ”), had the power to require persons trying to enter a public park to join a protest to submit to a search of their bags and backpacks as a condition of entry into the park, Allan Gardens, which was serving as an assembly point for protestors before they departed on a march along Toronto’s public streets. [4] The appellant, Mr. Luke Stewart, alleges that the police acted tortiously and breached certain of his rights under the Canadian Charter of Rights and Freedoms when they imposed such a condition of entry and subsequently detained him and searched his backpack when he tried to enter the park without submitting to a bag search. [5] The trial judge held that the police had the power to impose such a condition of entry, both under the common law police ancillary powers doctrine and as agents of the City in respect of the TPA . As a result, she dismissed Mr. Stewart’s action for damages and declaratory relief. [6] Although the trial judge held that the police had the power to impose the condition of entry under the ancillary powers doctrine, she did not have the benefit of the decision of the Supreme Court of Canada in Fleming v. Ontario , 2019 SCC 45, 437 D.L.R. (4th) 220. That decision reviewed in detail the requirement in the ancillary powers doctrine that the police action be reasonably necessary for the fulfillment of the police duty at issue: at para. 47. [7] On this appeal, the TPS took the position that in light of the decision in Fleming , it was not relying on the ancillary powers doctrine as a source of legal authority for the imposition of the condition of entry into Allan Gardens. Instead, the TPS relies on a combination of the common law powers of a property occupier and powers under the TPA that it contends the City delegated to it. [8] For the reasons set out below, I would allow Mr. Stewart’s appeal. I conclude that in these circumstances the police did not have the power, as agents of the City for purposes of administering the TPA , to require Mr. Stewart to submit to a bag search as a condition of entering Allan Gardens to join the protest. I would award Mr. Stewart damages in the amount of $500 pursuant to s. 24(1) of the Charter . II. THE EVIDENCE REGARDING THE POLICE CONDUCT AT ISSUE The June 2010 Toronto G20 summit [9] In June 2010, Toronto hosted the G20 summit, an international forum attended by the leaders of the 20 largest economies in the world. Various groups organized a week-long series of public events, protests, and demonstrations that were held in parallel with the official G20 meetings. Prior to the event, police forces in Toronto and the surrounding Greater Toronto Area received specialized training on how to control large crowds and demonstrations. Police preparation for the June 25 protest rally at Allan Gardens [10] A public rally was scheduled to be held on Friday, June 25, 2010 at around 2:30 p.m. in Allan Gardens, a public municipal park located in downtown Toronto. A protest parade through some Toronto streets would follow the rally. [11] On the day before the rally, steps were taken to remove furniture from the park, including benches, tables, and other items that could compromise safety in a large crowd. [12] At trial, four members of the TPS testified about the events at Allan Gardens on June 25. Three of the officers were directly involved in the encounter with Mr. Stewart that afternoon: Sergeant Nancy McLean and two members of her platoon, Constables David Hinchcliffe and Christopher Hoeller. The fourth officer, Staff Sergeant Grant Burningham, was in charge of police operations at Allan Gardens that day. [13] The officers’ day started with a parade, or briefing, conducted by S/Sgt. Burningham for the members of various the police forces assigned to patrol Allan Gardens. The trial judge summarized the information the officers received before and at that parade, at paras. 12-14 of her reasons: Each of the police officers who testified confirmed that he or she was aware of events relating to the G20 that had taken place in other cities and other countries in which the G20 had been held in the past. They appreciated that a high level of violence and destruction of property was common at G20 events. The evidence was uncontroverted that the G20 was a unique event in Toronto. It brought with it unprecedented peacekeeping and security challenges over the course of the weekend of June 26-27, 2010. It was also made clear that the Toronto police had never undertaken a security challenge of this magnitude. On the morning of Friday, June 25, 2010, the police had a parading session. Individual officers were briefed and given certain intelligence that had been gathered. At this session, police officers were provided with copies of a magazine entitled “The Peak – G20 Special Issue”, which was entered into evidence. Earlier in the week, the police had discovered a copy of The Peak in a car they had stopped. Among other articles in the magazine was an article on “Advanced Street Fighting”, which included information on “Breaking Police Lines”, “Security Fencing”, and “Throwing Projectiles”. Sgt. Burningham testified that the police officers were cautioned that some of the expected protesters may have studied the magazine and readied themselves to use the recommended tactics against the police. The police officers who testified stated that they had been told to expect protesters arriving by bus from Kitchener and from Montreal. They also testified that they were advised to be prepared for the use of “Black Bloc” tactics by some of these protesters. The evidence before the court is that “Black Bloc” refers to groups of protesters who wear black clothing, scarves, sunglasses, ski masks or other face-concealing items to conceal their identity, making it difficult to distinguish between participants. Photos taken on June 25, 2010 and entered into evidence show that there were indeed protesters in Allan Gardens on that day utilizing Black Bloc tactics. Mr. Stewart and the police officers who testified each confirmed the presence of Black Bloc protesters. [14] Upon their arrival at Allan Gardens, the officers were first tasked with inspecting the park to locate sticks and other items that could be used as weapons at the demonstration that might have been cached in the park the night before. S/Sgt. Burningham directed the approximately 80 officers under his command to then place themselves in clusters around the perimeter of Allan Gardens. He told them to initiate contact with anyone trying to bring a knapsack or other container into the park that could contain weapons or items that could injure members of the public or police officers. The officers were to ask anyone with a knapsack or container to allow the police to inspect it and to make entry into Allan Gardens conditional upon a person agreeing to a search of the knapsack or container. [15] Cst. Hoeller testified that if a person was not carrying anything in which they could conceal items, access to the park was granted right away without a search or any discussion. [16] S/Sgt. Burningham described the perimeter formed by the police as “very porous” as there were not enough officers to create a complete ring around Allan Gardens. He placed groups of officers at “all points of the compass” about every hundred yards. The officers, mostly members of bike patrols, set themselves up in groups of three or four at the paths that serve as entrances into the park. As a person tried to enter Allan Gardens, an officer would initiate contact with those carrying a backpack or other container and ask them to submit their bags to a search. [17] One witness, Mr. Murray Douglas Bush, described the police formation for most of the time as involving “clumps or groupings of three or four or five police officers.” Another, Lisa Walter, a reporter who filmed most of the encounter between Mr. Stewart and the police, characterized the police presence as “clusters of officers stationed every few metres around the park” with the police approaching and stopping anyone who was entering the park with bags or large objects like sticks. [18] The trial judge summarized the evidence regarding why the police wanted to search the bags of those entering Allan Gardens at para. 17 of her reasons: With the objective of interdicting weapons and would-be weapons, the police asked individuals entering Allan Gardens to allow their bags and belongings to be screened as a condition of entry. The evidence shows that the bags and belongings screened included knapsacks, purses, strollers, and wheelchairs. The screening function involved a search to the extent that members of the police looked into the bags and belongings. The police officers testified that they were instructed to look for weapons, things that could be used as weapons at a protest (e.g., flagpoles, sticks) and items that could be used to defeat police tactics such as goggles, bandanas and vinegar. Sgt. McLean testified that a bandana soaked in vinegar and used by a protester to cover his or her face would allow the protester to defeat the effects of tear gas. When prohibited items were found, they were taken by the police. Constable Hoeller testified that some would-be entrants to Allan Gardens elected not to consent to a search and left the park. An inference can be drawn that they may have had weapons or other prohibited items concealed in their bags, but the police perimeter served as a deterrent to bringing those items into Allan Gardens. The police interaction with Mr. Stewart [19] At paras. 19-24 of her reasons, the trial judge comprehensively summarized the evidence regarding Mr. Stewart’s encounter with the police at Allan Gardens: Mr. Stewart’s evidence is that when he approached Allan Gardens at the northwest corner, he observed that police officers were looking into the bags of people seeking to enter. He decided to enter at a more [easterly] point in an effort to avoid this search. When he attempted to enter Allan Gardens, Mr. Stewart was confronted by three police officers, including Constable Hinchcliffe and Constable Hoeller, each of whom testified that they had asked Mr. Stewart to let them look at the contents of his backpack as a condition of entry to the park. Mr. Stewart objected. He wanted freedom of access to Allan Gardens and was adamant that the police had no right to interfere with his freedom of assembly. He refused to consent to any police officer looking into his backpack. The exchange between the police officers and Mr. Stewart was recorded on video by a reporter, Lisa [Walter], who testified in this action. The video evidence was reviewed by the court several times. The video shows that during Mr. Stewart’s interaction with the police, the officers remain calm throughout. The police attempt to answer Mr. Stewart’s questions of them. He specifically asks for the authority on which they were relying to search his backpack. When told by Constable Hinchcliffe that the police derive their authority from the Trespass to Property Act , Mr. Stewart is dismissive of this response and continues to shout at the police and attract a crowd, including the press. Mr. Stewart’s persistent refusal to co-operate leads the police officers to call upon Sgt. McLean in a bid to de-escalate the situation and to allow Mr. Stewart to speak to a more senior officer. Mr. Stewart is not persuaded by anything that Sgt. McLean tells him. He proclaims to the police officers present that in order to search his backpack they are going to have to detain him. He then forces his way past the police officers, into the park, causing them to react. Under cross-examination, Mr. Stewart agreed that he was, prior to breaching the perimeter, free to leave Allan Gardens. If, however, he wished to enter the park, his backpack would need to be inspected. Upon breaching the perimeter by pushing past the police, Mr. Stewart had breached the condition of entry and become a trespasser. Police officers stopped him so that they could remove his backpack and inspect it for weapons, would-be weapons and items that could be used to defeat police tactics. The video shows that the entire incident involving stopping Mr. Stewart and inspecting his backpack lasted less than three minutes. During this time, Mr. Stewart was momentarily restrained, under his protest, long enough to allow the officers to remove his backpack from his back and examine its contents. At this point, Mr. Stewart was being denied further entry into Allan Gardens until the condition of entry was enforced. The police took Mr. Stewart’s swimming goggles from his backpack. The officers involved testified that they did so out of a concern that the goggles could be used to defeat police tactics, such as the use of tear gas. Mr. Stewart objected vociferously to the officers taking his goggles, proclaiming that, having done so, he would not be able to protect himself from the “chemical weapons” that he said the police would use on him. The officers testified that the goggles were not taken with any intention to keep them. The video shows Sgt. McLean asking Mr. Stewart for his name so that a receipt could be prepared and his goggles returned to him at a later time. Mr. Stewart refused to give his name and made his way into Allan Gardens. He testified that he had no further involvement with the police that day and he was free to meet his friends in the park and to participate in the demonstrations and the march. Lisa [Walter], who shot the video, testified that, with the exception of very little time at the beginning of Mr. Stewart’s encounter with the police, the video captures the entire interaction between him and the police. The video demonstrates that each police officer who dealt with Mr. Stewart was calm and polite, but firm. They repeatedly told him that a search of his backpack was a condition of entry to Allan Gardens on that day. The video also shows that, in carrying out their duties, the police officers acted in accordance with the instructions they were given. First, they formed a perimeter around the park and then they asked for permission to look into the bags and belongings of all persons entering the park, including Mr. Stewart. [20] Cst. Hinchcliffe testified that Mr. Stewart was asked to submit to an inspection only because he was carrying a backpack; he was not profiled for any other reason. [21] Sgt. McLean testified that until the point when Mr. Stewart tried to enter the park without submitting to a bag search, he was free to go, but not into the park. According to Sgt. McLean, Mr. Stewart became a trespasser when he tried to walk past the police into the park. Cst. Hinchcliffe testified that the police detained Mr. Stewart at that time pursuant to the TPA because he had refused to comply with the condition imposed by the police prohibiting entry to the park unless a person allowed a bag search. Cst. Hoeller stated that Mr. Stewart was “under arrest in my mind.” Both Csts. Hinchcliffe and Hoeller testified that when Mr. Stewart was detained, the police had the authority to search his backpack at that point under the common law power to conduct a search incident to an arrest. [22] At some point after the interaction between Mr. Stewart and the police, S/Sgt. Burningham directed the officers in Allan Gardens to “disregard searches for the time being, unless it’s painfully evident.” He testified that given the size of the crowd, the police could not stop everybody coming into the park: “[P]eople were blowing by [the officers]. They weren’t talking to them. When they, when they did stop and talk to people, they were surrounded by groups of people.” S/Sgt. Burningham ultimately decided to “back off” the searches due to safety concerns. The police understanding of their authority to condition entry to the park on a bag search [23] The police witnesses identified the TPA as the source of their authority to restrict entry to Allan Gardens to those who allowed a bag search. The officers stated they knew that each year the City provided the TPS with a letter authorizing the police to act as agents of the City for purposes of the TPA . [24] The letter that covered the period of the G20 was one dated March 16, 2010 – about three months before the G20 summit – from the City’s General Manager, Parks, Forestry and Recreation to the TPS Chief of Police (the “City TPA Letter”). It stated: Re: Trespass to Property Act for all Parks and Community Centres I would like to advise that, with respect to the Trespass to Property Act, the Toronto Police Services is authorized to act as agents of the City of Toronto for purposes of administering the Act and to take appropriate action, including removing people in contravention of the Act. The authority being extended to your Department is intended to be directed only against trespassers. It is understood that this authority may be revoked at any time upon written notice being received by the appropriate police inspector or other designated police contact at the relevant division. [25] Sgt. McLean, who was in direct command of the officers who interacted with Mr. Stewart, explained her understanding of the police’s authority to search the bags of those wishing to enter Allan Gardens: Our concerns on that day ultimately was for the safety, the safety of the public, the safety of the people attending, the safety of the officers, and based on the information we had received, it was reasonable for us to request a search of bags, knapsacks, whatever someone may have in their possession that they would be able to conceal things … So … pursuant to the Trespass to Property Act , as a result, we’re there as the agents for the city, we’re there to provide a safe environment for the demonstrators, and as a result we were con… –screening and conducting searches. [26] Cst. Hinchcliffe testified about his understanding of the authority to condition entry to the park upon a bag search: I know that at the park, I’m an agent acting for the Trespass to Property Act , and I have to ensure everyone’s safety in that park. I have to ensure that acts or illegal things don’t take place in the park, and it’s my job not only to enforce but a large part of my job, even more so than the enforcement pieces, is actually to prevent things from happening or potentially happening where we believe the likelihood is great On the conditions that were set out, the Trespass to Property Act , because we’re responsible to keep everybody safe. III. The CLAIM AND DEFENCE Mr. Stewart’s claim [27] In his Amended Statement of Claim, Mr. Stewart advances two types of claims against the TPS. [28] First, he asserts tort claims against the officers with whom he interacted as well as against their superiors. As against the officers, he claims they unlawfully detained him, searched his backpack without his consent, and unlawfully seized his swimming goggles, thereby committing assault and battery, false imprisonment, false arrest, negligence, misfeasance in public office, and trespass against his property. As against the officers’ superiors, Mr. Stewart alleges that their plan to form a perimeter around Allan Gardens and restrict entry only to those who consented to bag searches was unlawful, they knew the plan was unlawful, and acted with malice and in bad faith. For those actions of the officers’ superiors, Mr. Stewart seeks damages for misfeasance in public office and negligence. [29] Mr. Stewart’s second group of claims are Charter -based, arising from the same conduct upon which the tort claims rest. He pleads that: (i) the officers prevented him from attending the protest, thereby interfering with his right to freedom of expression contrary to s. 2(b) of the Charter ; (ii) arbitrarily detained him contrary to ss. 7 and 9 of the Charter ; and (iii) violated s. 8 of the Charter by unlawfully searching his backpack and seizing his swimming googles. [30] In his Amended Statement of Claim, Mr. Stewart sought damages of $100,000. In his factum, he submitted that $50,000 would be an appropriate award. At the hearing of his appeal, Mr. Stewart further reduced his damages claim to $20,000. In addition, Mr. Stewart seeks declaratory relief, which I will describe in the remedies section of these reasons. The TPS defence [31] In its Amended Statement of Defence, the TPS denies that its officers engaged in any tortious conduct or violated Mr. Stewart’s Charter rights. TPS pleads that on June 25, 2010 its members were engaged in the lawful performance of their duties in Allan Gardens, including acting as authorized agents of the City for the purposes of the TPA . TPS officers were engaged in fulfilling their statutory and common law duties, including preserving the peace and protecting the safety and property of persons. The examination of backpacks was “necessary to protect the safety of those persons within the park in the circumstances as they existed on that day.” IV. THE TRIAL JUDGE’S REASONS [32] The trial judge dismissed Mr. Stewart’s action. She held that the police had the authority to establish a perimeter around Allan Gardens and to impose a bag search condition of entry on two bases: (i) the TPA ; and (ii) the common law police ancillary power to take reasonable measures to maintain the safety of the public and the protection of property: at para. 26. Later in these reasons, I will consider in more detail the trial judge’s analysis of the TPA as a source of authority to impose the condition of entry. [33] The trial judge found that the police have a common law duty and authority to take reasonable measures in maintaining the safety of the public and the protection of property: at para. 43. In the unique circumstances of the G20 and “its well-known history of chaos, property damage, personal injury and even death”, the police were permitted to impose a limited search or inspection for weapons, items that could be improvised into weapons and items useful in defeating police tactics, where an individual declined to consent to the search and insisted on entering the park in defiance of police authority: at para. 45. [34] The trial judge held that when Mr. Stewart breached the condition of entry and attempted to enter Allan Gardens without allowing a search of his backpack, the police then had reasonable and probable grounds to believe that he was a trespasser who might be attempting to bring weapons into the park: at para. 37. When the police physically restrained Mr. Stewart from entering the park, they acted in a way that was reasonably necessary for carrying out their duty. Mr. Stewart was “momentarily detained” so the police could “satisfy themselves that he was not bringing weapons, would-be weapons or items used to defeat police tactics into the park, which could pose a danger to the public or to the police”: at paras. 38 and 42. [35] In her reasons, the trial judge focused on Mr. Stewart’s Charter claims. She concluded that the TPS did not violate Mr. Stewart’s rights under ss. 2, 8 or 9 of the Charter . Alternatively, she held that “any such infringement, limited to the interdiction of weapons, would-be weapons and items useful in defeating police tactics, was reasonable and demonstrably justifiable in the context of the G20”: at para. 56. [36] The trial judge held that the police did not violate Mr. Stewart’s s. 2(b) freedom of expression. As the TPS now concedes that finding was in error, there is no need to review in detail the trial judge’s reasoning on that issue. [37] The trial judge also held that the police did not violate Mr. Stewart’s s. 8 Charter right. She reasoned, at para. 84: By breaching the condition of entry and attempting to force his way past the police and into the park, Mr. Stewart committed a trespass and placed himself in investigative detention. The police may investigatively detain someone for trespassing contrary to the Trespass to Property Act : R. v. Amofi , 2011 ONCA 368 and R. v. Peterkin , 2013 ONSC 165. The search for weapons and would-be weapons was done incident to the investigative detention and in the interest of safety for all users of the park and the police on June 25, 2010. [38] The trial judge continued by holding that s. 9 of the Charter was not engaged because Mr. Stewart was not arbitrarily detained but subject to an investigative detention for a period of less than three minutes: at para. 80. [39] Finally, the trial judge held that in the context of the G20 and Mr. Stewart’s attempt to rush through the police perimeter, an inspection of Mr. Stewart’s backpack was a reasonable exercise of police common law powers in pursuit of their duty to ensure the safety of the public in the face of a perceived threat: at para. 85. Finally, by forcing his way into the park knowing of the condition of entry, Mr. Stewart “implicitly consented to the search, knowing it was a condition of entry”: at para. 86. [40] The trial judge dismissed Mr. Stewart’s action and ordered him to pay costs of $25,000 to the TPS. V. THE ISSUES ON APPEAL AND POSITIONS OF THE PARTIES [41] The overarching issue on this appeal is whether the TPS acted lawfully in imposing, as a condition of entry into Allan Gardens on June 25, 2010, the requirement that a person submit to a search of any bag, backpack, or other thing in which weapons could be concealed. For the sake of brevity, I shall hereafter refer to that police-imposed condition as the “Condition of Entry”. A.      Two issues that are no longer in dispute or in play on the appeal [42] The issues on this appeal are narrower than those placed before the trial judge. (1) Mr. Stewart’s claim that the police infringed his Charter s. 2(b) freedom of expression [43] Before the trial judge, the TPS took the position that the police-imposed Condition of Entry did not infringe Mr. Stewart’s freedom of expression guaranteed by s. 2(b) of the Charter . The trial judge accepted that submission. [44] Before this court, the TPS acknowledged that in its effect the Condition of Entry infringed Mr. Stewart’s s. 2(b) freedom of expression. That was an appropriate concession for the TPS to make. [45] The trial judge clearly erred in finding that the Condition of Entry did not infringe Mr. Stewart’s freedom of expression. Mr. Stewart met the criteria in Irwin Toy Ltd. v. Quebec (Attorney-General) [1989] 1 S.C.R. 927, at pp. 978-979, 58 D.L.R. (4th) 577 (S.C.C.) at 613-614, as modified in Montreal (City) v. 2952-1366 Qué bec Inc ., 2005 SCC 62, [2005] 3 S.C.R. 141, at paras. 56-62, 74 and 82, to establish an infringement of his freedom of expression, namely that his activity involved expressive conduct, the method or location of his expressive conduct did not remove its s. 2(b) protection, and the purpose or effect of the government action was to restrict his freedom of expression. [46] First, Mr. Stewart sought to enter Allan Gardens in order to participate in a public protest – quintessential expressive activity. [47] Second, Mr. Stewart’s expressive conduct in seeking to enter Allan Gardens did not run afoul of either internal limitation placed by the jurisprudence on the scope of the s. 2(b) freedom of expression: Bracken v. Fort Erie (Town ), 2017 ONCA 668, 137 O.R. (3d) 161, at paras. 28-33. [48] Mr. Stewart was not engaged in acts of physical violence or threats of violence: Bracken , at paras. 28-31. At the time Mr. Stewart approached the park, the protest was a peaceful one. Indeed, it remained peaceful throughout the time the protestors stayed in the park before departing on their street march. [49] Nor was Allan Gardens a location that was incompatible with expression: see the jurisprudence summarized in Bracken , at paras. 32-33. To the contrary, our civil liberties tradition recognizes that public parks, such as Allan Gardens, are civic spaces naturally compatible with the public expression of views, whether the content of those views support or dissent from the popular sentiments of the day: Montréal (City) , at para. 61; Committee for the Commonwealth of Canada v. Canada , [1991] 1 S.C.R. 139, per McLachlin J., at p. 230. [50] Third, the Condition of Entry required Mr. Stewart to submit to a search of his personal belongings as a precondition to exercising his right to express himself by attending the protest in the park, thereby having the effect of placing a limit on his freedom of expression: Figueiras , at para. 77; Langenfeld v. Toronto Police Services Board , 2019 ONCA 716, 148 O.R. (3d) 471, at paras. 28-32, leave to appeal refused, 2020 CarswellOnt 4590. As stated by this court in Langenfeld , at para. 43: “A precondition that effectively dissuades individuals from engaging in expressive activity in which they would otherwise have engaged is surely as much a limit on freedom of expression as is one that limits the content, time, place or manner of expression.” [51] Finally, it is clear that the type of expression in which Mr. Stewart sought to engage promoted the recognized purposes of constitutionally protected expression: enabling democratic discourse, facilitating truth-seeking, and contributing to personal fulfillment: Montréal (City) , at para. 83; Bracken , at para. 34. [52] Accordingly, the police conduct clearly infringed Mr. Stewart’s freedom of expression protected by s. 2(b) of the Charter . With respect, the trial judge erred in finding otherwise. (2) The common law police ancillary powers doctrine [53] The trial judge held that the police had the authority under the common law police ancillary powers doctrine to impose a bag search condition of entry on those who wished to enter Allan Gardens to join the protest. [54] On appeal, the TPS, in its written and oral submissions, no longer relies on the ancillary powers doctrine as authority for the police-imposed Condition of Entry. Again, that was an appropriate concession for the TPS to make. [55] First, the Condition of Entry the police imposed did not fall within the limited category of cases involving a common law police power to control access to an area, such as establishing a perimeter around: a police officer who is executing an arrest; a police officer who is questioning a suspect or a witness; a crime scene to preserve evidence; a hazardous area to preserve public safety; or a potential target of violent crime in order to ensure the target’s protection: Figueiras , at para. 59. [56] Second, the concession by TPS acknowledges the impact of the most recent articulation of the scope of the common law police ancillary powers doctrine by the Supreme Court in Fleming . In that case, the Supreme Court re-iterated, at para. 55, that the ancillary powers doctrine is designed to balance intrusions on an individual’s liberty with the ability of the police to do what is reasonably necessary in order to perform their duties. Those general duties include preserving the peace, preventing crime, and protecting life and property: Flemin g, at para. 69. Fleming cautions that “courts should tread lightly when considering proposed common law police powers”: at para. 41. [57] A key element of the second step of the ancillary powers doctrine analysis – whether the police action involves a justifiable exercise of police powers associated with a statutory or common law duty – is “the necessity of the interference with individual liberty for the performance of the duty”: at paras. 46-47. The analysis must proceed with “rigour” and the bar to establish a police power is high where the power asserted is preventative in nature and has an impact on law-abiding individuals: at para. 76. [58] As a result, for an intrusion on liberty to be justified, the common law rule is that it must be “reasonably necessary”. As stated in Fleming at para. 98: “If the police can reasonably attain the same result by taking an action that intrudes less on liberty, a more intrusive measure will not be reasonably necessary no matter how effective it may be. An intrusion upon liberty should be a measure of last resort, not a first option.” Further, police powers that involve interference with liberty will not be justified if they are ineffective at preventing breaches of the peace: Fleming , at para. 99. [59] In the present case, the police imposed the Condition of Entry as a preventative measure to preserve the peace. While proactive, preventative policing measures can fall within the ancillary powers doctrine, where they intrude upon individual liberty courts “must be very cautious about authorizing them merely because an unlawful or disruptive act could occur in the future”: Fleming , at para. 83. Two aspects of the factual record in particular support the TPS’ concession that the conditions were not present on June 25, 2010 to justify the imposition of the Condition of Entry under the police ancillary powers doctrine. First, when Mr. Stewart sought to enter Allan Gardens, the protest was a lawful, peaceful one. Second, shortly after the police interaction with Mr. Stewart, the Condition of Entry was cancelled because it proved ineffective given the number of people trying to enter the park.  In those circumstances, the police did not have the authority under the common law police ancillary powers doctrine to impose a bag search condition of entry on those who wished to enter Allan Gardens to join the protest. With respect, the trial judge erred in finding otherwise. B.      The remaining issues on appeal [60] Three issues therefore remain for consideration and determination on this appeal. First issue: The legal authority for the police conduct [61] There is no dispute that: (i) the police-imposed Condition of Entry infringed Mr. Stewart’s freedom of expression guaranteed by s. 2(b) of the Charter ; (ii) he was detained briefly; (iii) his bag was searched; and (iv) his swimming goggles were seized. To survive Charte r scrutiny, those actions by the police must find some authority or justification in the law: (i) the infringement of Mr. Stewart’s s. 2(b) freedom of expression can be justified by demonstrating that the Condition of Entry was a reasonable limit “prescribed by law”: Charter , s. 1; (ii) for his detention to be non-arbitrary and compliant with s. 9, it must be authorized by a law that is itself non-arbitrary: R. v. Grant , 2009 SCC 32, [2009] 2 S.C.R. 533, at para. 56; and (iii) for the search of his backpack and the seizure of his swimming goggles to be reasonable and compliant with s. 8, they must be authorized by law: R. v. Collins (1987), 38 D.L.R. (4th) 508 (S.C.C.) at 521. [62] Accordingly, the first issue on this appeal concerns the legal authority of the police to impose the Condition of Entry into Allan Gardens. [63] The TPS submits that the City TPA Letter delegated two powers to the police: (i) the City’s enforcement powers under the TPA ; and (ii) the City’s common law power as the owner/occupier of Allan Gardens to impose conditions of entry to the park. Vested with those delegated powers, the TPS submits that it had the lawful authority to impose the Condition of Entry in the unique circumstances of the G20 protest at Allan Gardens on June 25, 2010. Because the Condition of Entry was lawful, Mr. Stewart’s refusal to submit to a bag search, as well as his effort to walk unsearched into the park, breached the lawful Condition of Entry, thereby making him a trespasser. The police were then authorized to arrest or detain Mr. Stewart pursuant to the warrantless arrest power contained in s. 9 of the TPA and to conduct a search of his bag incident to that arrest. [64] By contrast, Mr. Stewart argues that the City TPA Letter did not delegate to the police any power to impose the Condition of Entry. If this court agrees that no such power was delegated, then Mr. Stewart submits that the police demand to search his backpack, his subsequent brief detention, the actual search of his backpack, and the seizure of his swimming goggles were all performed without lawful authority and the analysis should stop at that point. The second issue: The Charter analysis in the event legal authority existed for the police conduc t [65] If, however, this court finds that the City TPA Letter provided the police with the lawful authority to impose the Condition of Entry, then that restriction on his freedom of expression, his detention, the bag search, and the seizure of the swimming goggles, must still pass scrutiny under the various tests contained in the Charter and its jurisprudence. The third issue: The appropriate remedy for any violations of Mr. Stewart’s Charter rights [66] If the TPS conduct violated Mr. Stewart’s Charter rights and freedoms, then the final issue is the appropriate remedy to grant Mr. Stewart for the violation of his Charter rights and freedoms. [67] I shall deal with these three issues in that order. VI. FIRST ISSUE: THE LEGAL AUTHORITY FOR THE POLICE CONDUCT A.      Overview [68] As mentioned, the TPS takes the position that its members, acting as agents of the City under the City TPA Letter, were authorized by the common law powers the City possessed as an occupier and the powers under the TPA to impose and enforce the Condition of Entry. Mr. Stewart argues that the police officers lacked any such authority. [69] To determine this issue, I will: first examine the duties and powers, statutory and common law, of the City as the owner and occupier of Allan Gardens; then consider the powers available to the City under the TPA ; and, finally, ascertain the scope of the powers delegated by the City to the TPS and its officers by the City TPA Letter. B.      The City’s duties and powers as the owner and occupier of public parks [70] According to the TPS, the placement of officers in clusters around the perimeter of Allan Gardens on June 25, 2010 and the imposition of the Condition of Entry were done in order to ensure the safety of the public attending the public park for a protest. I therefore will examine the relationship between the duties of a property owner/occupier and its powers in the context of conduct that seeks to ensure the safety of those who enter onto its property. The duty of an occupier [71] The provisions of the Occupiers’ Liability Act , R.S.O. 1990, c. O.2  (the “ OLA ”) were enacted to replace many of the common law rules “for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons”: s. 2. The intention of the OLA was to replace, refine, and harmonize the common law duty of care owed by occupiers of premises to visitors on those premises: Waldick v. Malcolm , [1991] 2 S.C.R. 456, at p. 475, 83 D.L.R. (4th) 114 (S.C.C.), at p. 127. The OLA promotes and, where circumstances warrant, requires positive action on the part of occupiers to make their premises reasonably safe: Waldick , at p. 477. [72] To that end, s. 3(1) of the OLA imposes a basic duty on the occupier of premises “to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons, are reasonably safe while on the premises.” While the duty is framed quite generally and does not change with the circumstances, the factors relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation: Waldick , at p. 472. [73] The provisions of the OLA impose duties and obligations on occupiers; they do not grant occupiers any powers. Nevertheless, the jurisprudence recognizes that in order to discharge their duties of care under the OLA , occupiers of premises must have the powers necessary to ensure that persons are reasonably safe while on the occupier’s premises. In Langenfeld , at paras. 58-59, this court observed that while the OLA does not contain provisions that empower the occupier to take the steps necessary to comply with the duties imposed by the Act, occupiers of property have powers at common law. Those common law powers have long included the ability of an owner/occupier to limit access to its property, as described in the next section. A property owner’s common law powers [74] As recognized by the case law, the common law powers of property owners/occupiers include the powers to exclude persons from the property, remove persons from the property, and impose terms and conditions on persons while they are on the property: Commonwealth , at pp. 244-45; Weisfeld v. Canada (1994), 116 D.L.R. (4th) 232 (F.C.A.), at p. 251; Bracken , at paras. 69-73. [75] One case has recognized a common law power of an occupier to require those entering its property to submit to a bag search. In Nakochee v. Linklater , 1993 CarswellOnt 5678 (Ont. Ct. J. (Gen. Div.)), the court concluded that a policy formulated by the Band Council of a reserve to authorize baggage searches of those entering the remote reserve by airplane was an exercise of the Band Council’s right and responsibility on behalf of the Band as occupier of the reserve lands. The court stated, at para. 19: An owner or occupier of land has a common law right to impose conditions precedent to entry upon the land. This right is premised, upon the occupier's obligation to ensure the safety of all who are upon the land. Such conditions must be reasonable under the circumstances, and may include a search, provided that it is conducted reasonably, in good faith and with a minimum of intrusion. It would also seem that the person entering upon the land must have prior knowledge of the search as a precondition to entry, and must have the option of not entering upon the land in order to avoid the search. [76] Two points need to be made regarding the exercise of such common law powers of exclusion or restriction by the owner or occupier of government property. [77] First, while the common law entitles the Crown to withdraw permission from an invitee to be present on its property, the exercise of that power is “subject always to the Charter ”: Commonwealth , at p. 245. [78] Second, in Langenfeld this court held that the common law powers of an occupier, at least as they apply in the context of an occupier performing the duties imposed by s. 3(1) of the OLA , are the antithesis of an arbitrary power and are sufficiently precise to be a limit “prescribed by law” for purposes of Charter s. 1. The powers must be exercised reasonably, having regard to the specific circumstances, and any measures taken must be motivated by legitimate concerns about the safety of persons on the property: Langenfeld , at para. 66. Powers under The City of Toronto Act, 2006 [79] Although the City enjoys the common law powers of an owner/occupier in respect of City-owned property, it is also subject to a statutory regime that governs how it can deal with its property. [80] The City owns Allan Gardens and is authorized to pass by-laws respecting such a public asset: City of Toronto Act, 2006 , S.O. 2006, c. 11, Sched. A, s. 8(2)4. By-laws may regulate or prohibit in respect of a matter: s. 8(3). Pursuant to its by-law making power the City enacted the City of Toronto Municipal Code , which contains, in Chapter 608, a by-law respecting “Parks” (the “Parks By-law”): City of Toronto, Toronto Municipal Code , By-law No. 608, Parks , (30 September 2004); Batty v. Toronto (City) , 2011 ONSC 6862, 108 O.R. (3d) 571, at para. 58. [81] For the most part, the Parks By-law, as it read at the time of the G20 summit in 2010, regulated the activities persons could carry on in City parks. However, it imposed a few restrictions regarding entry into parks. Specifically, the Parks By-law stated that: · while in a park, no person shall enter into areas posted to prohibit or restrict admission of the public: §608-2; · no person shall use, enter or gather in a park between the hours of 12:01 a.m. and 5:30 a.m. unless authorized by permit: §608-9.B; · no person shall hold an organized gathering for more than 25 persons unless authorized by permit: §608-11.A; and · the Commissioner of Parks was authorized to close off for such temporary period as the Commissioner deemed appropriate a park or any part of it “to relieve or prevent overcrowding or traffic congestion, or in the interests of public safety, or as may otherwise be authorized by Council: §608-51. [82] The Parks By-law did not contain a provision imposing a restriction on entry remotely similar to the Condition of Entry imposed by the TPS officers on June 25, 2010 at Allan Gardens. [83] The Parks By-law authorized a provincial offences officer, which includes a police officer, to enforce its provisions: §608-53.C; Provincial Offences Act , R.S.O. 1990, c. P.33, s. 1(1). A police officer who believed that a person was contravening or had contravened the Parks By-law could ask the person to leave the park: §608-53.B(3). If the person failed to do so, “the permission and licence of the person to remain in that park is revoked”: §608-53.D. [84] However, in this case the TPS does not take the position that in imposing the Condition of Entry its officers were acting to enforce the provisions of the Parks By-law. The officers agreed that they were not provided with any information at the parade about City By-laws. Sgt. McLean testified that she was not aware of Mr. Stewart breaching any City by-law on June 25, 2010. Cst. Hinchcliffe did not recall any specific direction from the City to police officers regarding Allan Gardens during the G20. Nor was any direction given by the Commissioner of Parks, pursuant to Parks By-law § 608-51, to close Allan Gardens for a temporary period. C.      Powers created by The Trespass to Property Act [85] Central to the TPS’ position that its officers’ imposition of the Condition of Entry was lawful is its view of the relationship between the TPA and the common law powers of the owner/occupier of property, which it succinctly summarized at para. 60 of its factum: As authorized agent of the City, for the purposes of administering the TPA , and therefore in the position of the City as occupier, the TPS was entitled by the occupiers’ common law power to impose a “precondition to entry, such as a security screening, if the precondition is reasonable and connected to maintaining the safety of persons on the property.” [86] As I will explain, this position misconceives the relationship amongst the common law powers of an occupier to restrict entry to its property, the TPA , and the City TPA Letter. [87] The product of a 1980 reform of long-standing petty trespass legislation, the TPA was intended by the government to provide a “relatively quick, cheap and intelligible remedy” for trespass: Ontario, Ministry of the Attorney General, Discussion Paper on Occupiers’ Liability and Trespass to Property , (May 1979), at p. 13. In R. v. Asante-Mensah , 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 32, the Supreme Court described the key remedies made available to occupiers by the TPA : [T]he Trespass to Property Act , 1980, S.O. 1980, c. 15, provides owners or agents of the owners with a number of options. Under the current law, s. 2 makes trespass a provincial offence subject to a fine of up to $2,000. Occupiers may direct persons to leave a property (s. 2(1)(b)), and give notice that further activity or entry onto the property is prohibited either absolutely (s. 3) or within limits (s. 4). More intrusively, as already discussed, occupiers or their agents (and police officers) are empowered to arrest without warrant if on reasonable grounds they believe the individual is trespassing (s. 9). The inconvenience and indignity of being arrested may sometimes be seen as more of a punishment than the amount of the fine ultimately levied. It is equally, on that account, more of a deterrent. [88] Although the TPA provides owners/occupiers with a suite of enforcement powers against those who should not be on a property or carrying on a particular activity on the property, it does not confer on an owner/occupier or its agent any legal power to create restrictions on access to its property. Those powers find their source either in the common law powers of owners/occupiers or, in some cases, statutes respecting a specific owner/occupier or class of owner/occupier. What the TPA does provide is a set of statutory remedies to which an owner/occupier, such as the City, can resort in order to enforce its common law or statutory powers to restrict access. However, the TPA is not, in itself, a source for the power of an owner/occupier to establish restrictions on or conditions for access to a property. [89] This point was made clearly in Bracken . In that case, the Town of Fort Erie issued a notice under the TPA to Mr. Bracken to stop his protests outside of the Town Hall. The Town took the position that it had the authority to issue the trespass notice under s. 229 of the Municipal Act, 2001 , S.O. 2001, c. 25, which gave its Chief Administrative Officer the authority for “exercising general control and management of the affairs of the municipality”, and the Occupational Health and Safety Act , R.S.O. 1990, c. O.1, s. 25(2)(h), which requires an employer to “take every precaution reasonable in the circumstances for the protection of a worker”: Bracken , at para. 68. This court did not accept those statutory provisions as sources of authority for the trespass notice: at para. 69. [90] This court then went on to consider, and reject, the TPA as a discrete source of a power to restrict entry onto municipal property, stating at paras. 70-72: Neither does the authority to exclude others from property come from the Trespass to Property Act , R.S.O. 1990, c. T.21, which does not set out the preconditions for its use. The authority to invoke the Act must come from other legal sources, such as the right to exclude others that is inherent in the status of an occupier in the common law of property. That is, the Act does not create any substantive property rights, but functions as an enforcement mechanism for rights that come from other sources : see Batty v. Toronto (City) , 2011 ONSC 6862, 108 O.R. (3d) 571, at paras. 81-82; R. v. S.A. , 2014 ABCA 191, 312 C.C.C. (3d) 383, at para. 277-278. In Commonwealth , McLachlin J. noted that under the common law, “the Crown as property owner is entitled to withdraw permission from an invitee to be present on its property, subject always to the Charter .” At common law, an occupier of a property has the power to expel others, and has the power to invoke the remedies supplied by the Trespass to Property Act . In my view, the authority to revoke Mr. Bracken’s licence to be present on the premises and issue the trespass notice, and thus the “law” that is the source of the limit on Mr. Bracken’s rights, is the common law. The Trespass to Property Act has also long been used by government as a mechanism to exercise this common law power to exclude persons from public property : see, for example, Batty; Smiley v. Ottawa (City) , 2012 ONCJ 479, 100 M.P.L.R. (4th) 306; R. v. Semple , 2004 ONCJ 55, 119 C.R.R. (2d) 295; Gammie v. Town of South Bruce Peninsula , 2014 ONSC 6209, 322 C.R.R. (2d) 22. Unlike other municipalities, the Town has no by-law regulating its use of trespass notices, or even a trespass policy. I observe that the risk of arbitrary action is higher in the absence of a well-crafted by-law, and there are greater opportunities for uncertainty as to what sorts of actions will be permitted. [Emphasis added.] D.      Application to the facts of this case [91] The TPS contends that the trial judge properly concluded that a combination of the City TPA Letter, the City’s duty as an occupier under the OLA , the City’s common law powers as an occupier, and the provisions of the TPA provided the officers with the authority to impose the Condition of Entry into Allan Gardens on June 25, 2010. TPS put the argument in the following terms at para. 58 of its factum: The common law as it applies to occupiers allows an occupier, or an agent of occupier, to place a condition on entry upon premises. The TPA creates a mechanism to enforce that condition. As per the [City TPA] Letter, the General Manager of City Parks designated the TPS as agents of the City for purposes of enforcing the TPA in the [Allan Gardens] Park. The Trial Judge found that pursuant to the [City TPA] Letter, “the police were given the authority to act as agent of the City of Toronto for the purposes of administering the Trespass to Property Act and thus had all the authority of an occupier on June 25, 2010”. [Emphasis in original.] [92] To repeat, the City TPA Letter stated: Re: Trespass to Property Act for all Parks and Community Centres I would like to advise that, with respect to the Trespass to Property Act, the Toronto Police Services is authorized to act as agents of the City of Toronto for purposes of administering the Act and to take appropriate action, including removing people in contravention of the Act. The authority being extended to your Department is intended to be directed only against trespassers. It is understood that this authority may be revoked at any time upon written notice being received by the appropriate police inspector or other designated police contact at the relevant division. [Emphasis Added] [93] The City provided this letter to the TPS as part of its normal course of operations; it was not issued to deal specifically with events anticipated to accompany the G20 summit. [94] In finding that the TPS had the authority to impose the Condition of Entry into Allan Gardens on June 25, 2010, the trial judge reasoned as follows, at paras. 27-31: · The City, as the owner and occupier of Allan Gardens, has an affirmative duty under the OLA to ensure the safety of the park for all users. · The OLA and TPA share the same definition of the term “occupier” as including “(a) a person who is in physical possession of premises, or (b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, despite the fact that there is more than one occupier of the same premises”: OLA , s. 1; TPA , s. 1(1). · The TPA provides owners or agents of owners with a number of “options”, including directing a person to leave a property. · The City TPA Letter gave the police the authority to act as agent of the City “for the purpose of administering the [ TPA ] and thus had all the authority of an occupier on June 25, 2010” (emphasis added): at para. 30. · Subsection 3(1) of the TPA “allows the occupier to place a prohibition on a person’s entry to the premises by notice and the [ TPA ] provides that any person breaching such a prohibition is considered a trespasser”: at para. 31. · Consequently, the police “had the authority to place a prohibition on a person’s entry into Allan Gardens on June 25, 2010 and the police exercised this authority by asking all persons entering the park on that day to allow the police to inspect their bags and belongings”: at para. 31. [95] Assessing the trial judge’s reasoning first requires determining the appropriate approach to take for interpreting the City TPA Letter. The jurisprudence consistently takes a rigorous approach when interpreting the sources of legal authority relied upon by government to encroach upon the liberty of the subject. For example, statutes that encroach on the liberty of the subject are to be construed, where ambiguous, in favour of upholding such liberty: Asante-Mensah , at para. 41. More recently, in Fleming, at para. 5, the Supreme Court emphasized that “[t]he courts of this country, as custodians of the common law, must act cautiously when asked to use it to authorize actions that interfere with individual liberty.” A similar rigour should inform the interpretation of the scope of powers delegated by the City TPA Letter. [96] Here, the trial judge properly interpreted the City TPA Letter as authorizing the TPS to act as the City’s agents to administer the TPA ; the City TPA Letter clearly states that the TPS was “authorized to act as agents of the City of Toronto for purposes of administering the Act and to take appropriate action including removing people in contravention of the Act.” However, the trial judge erred in holding that: (i) as such agents the TPS officers had the authority under s. 3(1) of the TPA “to place a prohibition on a person’s entry to the premises by notice”; and (ii) the shared definition of “occupier” in the OLA and TPA somehow vested in the TPS all the common law powers of the City as owner/occupier to restrict access to its parks. [97] The trial judge misconstrued the powers granted by the TPA to occupiers, or their agents, in two respects. [98] First, the trial judge erred in her interpretation of TPA s. 3(1). Subsection 3(1) of the TPA states: “Entry on premises may be prohibited by notice to that effect…” [1] As held in Bracken , the enforcement powers contained in the TPA do not set out the preconditions for their use: at para. 70. Instead, the authority to impose a restriction of entry to premises must come from some legal source other than the TPA , such as a statutory or common law power to exclude or restrict access to property: at para. 70. Subsection 3(1) of the TPA merely provides the means by which to enforce a prohibition or restriction on entry sourced elsewhere, and TPA s. 5(1) describes the forms of notice, oral or written, that may be given to enforce such a prohibition or restriction. [99] Second, the fact that the OLA and TPA share a common definition of “occupier” does not operate to somehow transfer an owner/occupier’s common law powers to restrict access to property into the TPA . The OLA does not vest in an occupier the statutory power to prohibit or restrict entry to premises. The OLA imposes duties on occupiers; it does not create powers for occupiers. As Langenfeld states at para. 58: “The OLA does not contain provisions that authorize the occupier to take steps necessary to comply with the duty imposed on the occupier by that Act . Occupiers of the property, however, have powers at common law.” [100] Moreover, the shared definition of “occupier” in the OLA and TPA does not assist in answering the key question: Did the City TPA Letter delegate to the police the City’s common law or statutory (by-law) powers to create and impose restrictions on entry to public parks? [101] The City TPA Letter did not grant the TPS any of the City’s common law or statutory powers to impose conditions of entry into parks. No such language of delegation appears in the text of the letter. Instead, by its terms, the letter delegated remedial powers possessed by the City under the TPA to enforce prohibitions or restrictions on entry already adopted or imposed by the City in the exercise of its statutory or common law powers to prohibit or limit access to the parks it owns or occupies. The letter did not give the TPS the authority to fix what conduct amounted to an act of trespass in the City parks; the authority to do so remained with the City and was not delegated by the letter. [102] At the time, the City had not enacted a bag search condition of entry for any of its parks, either through exercising its statutory power to enact by-laws regarding its parks or through exercising its common law power as owner/occupier to restrict access to parks. [103] In terms of the City’s statutory authority to impose prohibitions or restrictions on entry to parks, the Parks By-law did not establish a restriction on entry of the kind imposed by the TPS officers in their Condition of Entry. This is a key distinction between the facts in the present case and those in Batty . In Batty , the City used its enforcement powers under the Parks By-law to issue a trespass notice under the TPA to protestors camped out in a City park. The notice called upon the protestors to refrain from conduct that breached two provisions of the Parks By-law: Batty , at paras. 59 and 81-82. [104] Further, the enforcement section of the Parks By-law contemplates that police officers will enforce restrictions created by the City elsewhere in the Parks By-law, not create new restrictions. The Parks By-law authorizes police officers to: (i) inform a person about the provisions of the Parks By-law and request compliance with them; and (ii) order a person to stop contravening the Parks By-law or leave the park: § 608-53.A and § 608-53.B. Where a person fails to comply with such orders, the Parks By-law states that “the permission and licence of the person to remain in that park is revoked”: § 608-53.D. In other words, at that point the person becomes a trespasser and a police officer may enforce the Parks By-law using the remedies set out in the TPA . [105] In terms of the City’s common law power to impose prohibitions or restrictions on entry to parks, as conceded by the TPS in oral argument, at the time of the G20 in June 2010, the City had not created or imposed a restriction on entry to its parks of the kind imposed on June 25, 2010 by TPS officers at Allan Gardens. [106] Further, there was no evidence from the TPS officers that prior to or on June 25, 2010, the City had asked the TPS to enforce a restriction on entry created by the City exercising its common law powers or purported to delegate to the officers the City’s common law powers to do so. [107] Moreover, the City of Toronto Act, 2006 addresses in some detail the circumstances in which the City can delegate its powers under ss. 7 and 8 of that Act. [2] Although the scope of those restrictions on delegation did not receive extensive argument on this appeal, suffice it to say that the delegation of a legislative power to an individual who is an agent of the City requires the approval of City Council and must be limited to powers of a minor nature: ss. 21(1) and (4). [3] No such approval by City Council was given in the present case. The creation and imposition of the Condition of Entry was done at the direction of S/Sgt. Burningham, who thought, incorrectly, that the City TPA Letter enabled him to do so. E.      Conclusion [108] At the time Mr. Stewart tried to enter Allan Gardens on June 25, 2010, the City had not enacted a bag search condition of entry to that park, either in the exercise of its statutory power to enact by-laws regarding its parks or in the exercise of any common law power as owner/occupier to restrict access to parks. Further, the City TPA Letter did not delegate to TPS officers the authority to create and impose such a Condition of Entry; it delegated only the authority to administer the TPA by enforcing existing prohibitions or restrictions on entry. [109] Given that the City’s authorization of the TPS “to act as agents of the City of Toronto for purposes of administering the [ TPA ] and to take appropriate action, including removing people in contravention of the [ TPA ]” did not vest in the TPS the authority to create and impose the Condition of Entry on those seeking to enter Allan Gardens on June 25, 2010, the Condition of Entry imposed by the police that day lacked any legal foundation. Lacking a source in a legal rule, the police-imposed Condition of Entry was unlawful: see the cases cited in Figueiras , at para. 41; Kosoian v. Société de transport de Montréal , 2019 SCC 59, 440 D.L.R. (4th) 78, at paras. 6 and 38. [110] The trial judge therefore erred when she concluded that the combination of the OLA , the TPA , and the City TPA Letter authorized the police “to place a prohibition on a person’s entry into Allan Gardens on June 25, 2010”: at para. 31. VII. SECOND ISSUE: WAS THE POLICE INTERFERENCE WITH MR. STEWART’S CHARTER RIGHTS JUSTIFied? The infringement of Mr. Stewart’s freedom of expression [111] The TPS concedes that its officers’ imposition of the Condition of Entry infringed Mr. Stewart’s freedom of expression guaranteed by s. 2(b) of the Charter . Because I have concluded that the police did not have the authority to impose and enforce the Condition of Entry, it follows that their interference with Mr. Stewart’s s. 2(b) Charter freedom was not prescribed by law. As a result, the infringement of Mr. Stewart’s s. 2(b) freedom cannot be justified under s. 1 of the Charter . The detention of Mr. Stewart and the search of his backpack [112] Nor did the police detention of Mr. Stewart, their search of his backpack, or the seizure of his swimming goggles comply with ss. 8 and 9 of the Charter . [113] The TPS contend that s. 9 of the TPA authorized the officers to detain Mr. Stewart once he tried to enter Allan Gardens contrary to the Condition of Entry. Subsection 9(1) of the TPA states: 9(1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2. [114] Subsection 2(1) of the TPA states, in part, that: Every person who is not acting under a right or authority conferred by law and who, (a) without the express permission of the occupier, the proof of which rests on the defendant, (i) enters on premises when entry is prohibited under this Act … is guilty of an offence and on conviction is liable to a fine of not more than $10,000. [115] While the police officers certainly believed subjectively that they had reasonable and probable grounds to arrest or detain Mr. Stewart when he tried to enter the park without making his backpack available for a search, those grounds cannot be justified from an objective point of view: R. v. Storrey , [1990] 1 S.C.R. 241, at pp. 250-251. No objective grounds existed to believe that Mr. Stewart was a trespasser because no lawful basis existed for the Condition of Entry that the police were purporting to enforce. Accordingly, the arrest power in s. 9 of the TPA was not available to the police in the circumstances. [116] Nor was this a case where the TPS officers were investigating the commission of an offence under the TPA that might provide the legal basis for an investigative detention and search incident to investigative detention: R. v. Amofa , 2011 ONCA 368, 282 O.A.C. 114, at paras. 15-17; R. v. Peterkin , 2015 ONCA 8, 328 O.A.C. 321, at para. 56. The evidence of the police officers was clear that the imposition of the Condition of Entry was not related to the investigation of any specific offence. [117] I conclude that the police arbitrarily detained Mr. Stewart when he attempted to cross the police line into the park without submitting to a search of his backpack, thereby violating his right under s. 9 of the Charte r. [118] Finally, the police sought to justify their search of Mr. Stewart’s backpack and seizure of his swimming goggles as a search incident to an arrest. However, because the police detention or arrest of Mr. Stewart was not lawful, the search of his backpack and seizure of the swimming goggles cannot be justified: R. v. Stillman (1997), 144 D.L.R. (4th) 193, at p. 210; Kosoian , at para. 100. Consequently, the police violated Mr. Stewart’s right under s. 8 of the Charter to be secure against unreasonable search or seizure. Summary [119] Mr. Stewart has established that by restricting his entry to Allan Gardens under the Condition of Entry, detaining him, searching his backpack, and seizing his swimming goggles, the police violated his rights guaranteed by ss. 2(b), 8, and 9 of the Charter . The City, as the owner/occupier of parks, including Allan Gardens, had not enacted a by-law that authorized the imposition of bag searches as a condition of entry into its parks, nor had it utilized the process under the City of Toronto Act, 2006 to appropriately delegate to another decision-maker, such as the police, the power to impose such a condition of entry. Consequently, the trial judge erred in dismissing Mr. Stewart’s action: at paras. 93-94. Accordingly, I would set aside para. 1 of her Judgment dated July 13, 2018. VIII. THIRD ISSUE: REMEDY A.      Overview [120] In his Amended Statement of Claim, Mr. Stewart advances causes of action seeking damages resulting from the tortious conduct of the police, as well as damages under s. 24(1) of the Charter . His notice of appeal also asks for judgment based on his tort claims: trespass to his property, assault, battery, false imprisonment and false arrest. However, on appeal Mr. Stewart did not advance or develop his claims sounding in tort. Instead, he focused his argument on his claim for Charter damages, submitting that an award of Charter damages would overlap with any tort damages: Vancouver (City) v. Ward , 2010 SCC 27, [2010] 2 S.C.R. 28, at paras. 22 and 36. Given Mr. Stewart’s position, I see no need to deal with his claims in tort. As a result, I will limit my consideration of his damages claim to that under s. 24(1) of the Charter . In addition to an award of damages, Mr. Stewart seeks declarations that the conduct of the police was unlawful. B.      The general principles regarding Charter damages [121] In Ward , the Supreme Court, at para. 4, set out the four-step framework for considering claims for damages for the breach of Charte r rights: 1) Proof of a Charter breach : Establishing whether a Charter right has been breached; 2) Functional justification of damages : Showing why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation for the personal loss caused by a breach, vindication of the Charter right, and/or deterrence of future breaches; 3) Countervailing factors : Considering any demonstration by the state that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust; [4] and 4) Quantum : Assessing the quantum of damages. [122] As Mr. Stewart has established breaches of his Charter rights, the damages analysis must first consider whether awarding damages to Mr. Stewart would be a just and appropriate remedy having regard to whether damages would fulfill one or more of the related functions: (i) compensation, which focuses on the claimant’s personal loss, whether physical, psychological, pecuniary or involving intangible interests; (ii) vindication, which focuses on the harm the infringement causes society and emphasizes the importance and gravity of the breach; and (iii) deterring state agents from committing future Charter breaches: Ward , at paras. 27-29 and 31. [123] Even if a claimant establishes that Charter damages are functionally justified, the state may establish that other considerations render s. 24(1) damages inappropriate or unjust. Such countervailing considerations include the existence of alternative remedies and concerns for good governance: Ward , at para. 33. [124] The quantum of damages awarded must be “appropriate and just”: Ward , at para. 46. Any claim for compensatory damages must be supported by evidence of the loss suffered: at para. 48. Absent exceptional circumstances, non-pecuniary compensation is fixed at a fairly modest conventional rate, subject to variation for the degree of suffering in the particular case: at para. 50. When considering quantum in respect of the objectives of vindication and deterrence, making the appropriate determinations is an exercise “in rationality and proportionality”, taking into account the seriousness of the breach, its impact on the claimant, and the seriousness of the state misconduct: at paras. 51-52. C.      The position of the parties regarding Charter damages [125] Mr. Stewart submits that he is entitled to compensatory damages because: (i) his schooling was delayed; (ii) his reputation was negatively impacted as were his relationships with family and friends; and (iii) he feared for his safety as a result of abusive and threatening comments left on the YouTube page to which Ms. Walter posted her video of the incident. [126] Mr. Stewart also submits that a damage award should contain a deterrence component. Although the police may have been motivated by public safety, Mr. Stewart argues that their actions at Allan Gardens were flawed, carried out without any real planning or forethought, and were overly broad, impacting a great number of peaceful protestors like him. [127] TPS argues that Mr. Stewart has put forward no evidence to substantiate his claim of delayed schooling or damage to his reputation. Mr. Stewart was not prejudiced by Ms. Walter’s video. Instead, he embraced it by including a link to the video in an online article he wrote five days after the incident and playing the video at the press conference that announced the launch of his lawsuit. Finally, given the trial judge’s finding that the officers did not act maliciously or exhibit bad faith in their execution of the search, the objectives of deterrence and vindication could be achieved without the need for a substantial damages award. D.      Analysis [128] As the trial judge did not making any finding regarding the amount of damages, I must conduct a damages assessment. I conclude that Mr. Stewart is entitled to an award of damages, but one that is quite modest in amount. My reasoning is as follows. Compensatory function [129] Mr. Stewart adduced little evidence to demonstrate that the conduct of the police caused him personal loss, whether physical, psychological, pecuniary or affecting his intangible interests. [130] In examination-in-chief, Mr. Stewart stated that he was not claiming that he was physically hurt by the altercation or had been diagnosed with any psychological injury. The Walter video shows that the police used minimal force to detain Mr. Stewart. After the police released Mr. Stewart, he gave a media interview, continued into the park, joined the protest, and then participated in the subsequent street demonstration. [131] Mr. Stewart testified that he found the police conduct “highly troubling” and he suffered distress. He explained that his distress arose because “I feel like I’ve been illegally searched and indeed my swimming goggles have been illegally taken from me”, all of which “seemed entirely unfair and unjust.” [132] Mr. Stewart stated that the incident affected his reputation, especially because it had been videotaped, with the video posted on the internet by Ms. Walter. The incident led to some disagreements with family and friends, including some “tough conversations”. Some friends told him that what he did was wrong; he should have listened to the police. He formed the impression that some family members did not take him seriously because he was a protestor. As well, some of the comments posted on YouTube concerning the video of the incident were highly critical of Mr. Stewart. At the same time, some comments were quite supportive. [133] I see no harm caused to Mr. Stewart by those “tough conversations” or YouTube comments. In his factum, Mr. Stewart describes himself as “an activist and an academic with an interest in social justice.” Tough conversations and strong comments inevitably accompany such activities. [134] More significantly, while pointing to the posted Walter video as a source of concern about his reputation, Mr. Stewart made use of it for his own purposes. He acknowledged that in a June 30, 2010 article that he posted to the Toronto Media Co-op website, he included a link to the Walter video. In addition, he played the video at the press conference he held when he started his lawsuit. [135] Although Mr. Stewart testified that the incident caused him to finish his PhD eight months later than he had planned or intended, his evidence strongly suggests that he chose to put initiating this lawsuit ahead of his studies. Moreover, Mr. Stewart did not file any documentary evidence about his studies and expected date of completion of studies at the University of Waterloo. [136] Further, although Mr. Stewart testified that he was concerned about what future employers might think when they saw the video of the incident, he did not file any evidence that the incident or the video had prejudiced any employment opportunities. His first job after graduating was teaching at the University of Nice from 2014 to 2015. He was then unemployed for a period of time, although he did not explain the reason for his lack of employment. Thereafter, he found a teaching position at the University of Lyon in France where he was employed at the time of the trial. Mr. Stewart did not lead any evidence that the incident caused a delay in his employment or his unemployment after 2015. [137] In summary, Mr. Stewart has not established any personal loss. As a result, there is no basis for awarding compensatory damages. Vindication and deterrence functions and countervailing factors [138] Mr. Stewart submits that although the police may have been motivated by public safety, their actions at Allan Gardens were flawed, carried out without any real planning or forethought, and were overly broad, impacting a great number of peaceful protestors like him. This supports an award related to the vindication or deterrence functions of Charter damages. [139] I accept this submission in principle. The freedom to engage in the peaceful public expression of political views is central to our conception of a free and democratic society. Freedom of expression requires zealous protection. The police infringed Mr. Stewart’s freedom of expression without lawful justification and violated his rights to be free from unreasonable search and seizure, as well as from arbitrary detention. It does not follow, however, that a large award of damages is required. As I will explain, in all of the circumstances of this case, a modest award of damages would be just and appropriate to affirm the constitutional value of freedom of expression, together with s. 8 and 9 Charter rights, and serve the deterrence function of Charter damages. The quantum of damages [140] An award of damages under Charter s. 24(1) must be appropriate and just, fair to both the claimant and the state: Ward , at para. 53. [141] Mr. Stewart has not made out a case for compensatory damages as he has not demonstrated that he suffered personal loss. His interaction with the TPS officers lasted approximately 10 minutes, including a three-minute detention, and, after being released, Mr. Stewart gave a media interview and continued on his way to the protest. His injury was not serious. [142] Although he has established a case for damages to functionally serve the vindication and deterrence objectives of Charter damages, there are several factors that work to limit the quantum of such damages. [143] By 2010, G20 summits inevitably had attracted violent protests, as conceded by Mr. Stewart. The TPS knew that and tried to put in place at Allan Gardens a system that balanced the right of individuals to protest with the safety of all who participated in the protest or who might feel the effects of the protest. In this case, the system they chose was to impose the Condition of Entry. Although the condition proved ineffective, as numbers ultimately overwhelmed the ability to the police to deal with those entering the park, and while the condition was based on an incorrect understanding by the police of the legal effect of the City TPA Letter, I agree with the trial judge’s finding that on June 25, 2010 the police acted in good faith to protect the safety of all users of Allan Gardens: at para. 91. [144] The Condition of Entry was not designed to turn protestors away from Allan Gardens, but to ensure that those who entered were not carrying objects that could be used as weapons or used to defeat police crowd control tactics. Indeed, once searched, Mr. Stewart continued into the park and joined the protest. [145] As well, on June 25, 2010, the police acted in a calm and professional manner at Allan Gardens. The Walter video fully supported the following two findings made by the trial judge: “The video demonstrates that each police officer who dealt with Mr. Stewart was calm and polite, but firm”; and, “The police were trying to de-escalate the situation while Mr. Stewart was trying to escalate the situation”: at paras. 24 and 48. [146] The good faith and professionalism of the TPS officers go a long way to reducing the appropriate quantum of damages linked to the vindication and deterrence functions of Charter damages. [147] Moreover, the facts of this case differ considerably from those in Ward and Fleming by an order of magnitude. In Ward , the plaintiff was mistakenly identified and arrested, wrongfully strip-searched, his car impounded, and he was held for several hours. In Fleming , the plaintiff was not only precluded from attending a peaceful protest, he was also arrested, thrown to the ground – causing him serious injury – handcuffed, held in a police van, moved to a jail cell, and released after two and a half hours. In both cases, awards of $5,000 in Charter damages were made and upheld on appeal. [148] By contrast, in the present case Mr. Stewart’s interaction with the police lasted only a few minutes, he was restrained but suffered no physical injury, and he was then allowed to proceed to the protest. His person was not searched. His knapsack was, and the police seized a pair of swimming goggles, which Mr. Stewart could have recovered had he given the police his name for a property receipt as requested. [149] Considering all the factors, I conclude that the vindication and deterrence functions of Charter damages can be served by a modest award of damages. I would award Mr. Stewart damages in the amount of $500. The claim for a declaration [150] In his factum, Mr. Stewart sought two declarations: (i) that S/Sgt. Burningham did not have the lawful authority “to direct subordinate officers to surround Allan Gardens on June 25, 2010 and search people as a condition of entry and to seize items found pursuant to these searches”; and (ii) “the conduct of police officers under the command of S/Sgt. Burningham acted contrary to the law including ss. 2, 8, and 9 of the Charter when they surrounded Allan Gardens on June 25, 2010 and searched people as a condition of entry and seized items found pursuant to these searches”. [151] Both declarations ask the court to go beyond the legal characterization of the officers’ conduct as it affected Mr. Stewart’s Charter rights to grant a remedy in favour of a larger, indeterminate class of persons. [152] I see no need to grant such broad declarations. Mr. Stewart brought this action in his personal capacity seeking damages for the conduct of the police towards him. In the course of assessing his Charter claims, I have held that the police did not have a lawful basis to impose the Condition of Entry, found violations of Mr. Stewart’s Charter rights, and awarded him Charter damages. That is sufficient to dispose of Mr. Stewart’s personal claim. No broader declarations are required. IX. DISPOSITION AND COSTS [153] For the reasons set out above, I would allow the appeal, set aside para. 1 of the trial judge’s Judgment, allow Mr. Stewart’s claim, and grant him Charter damages in the amount of $500. [154] It follows that I also would set aside the award of costs made by the trial judge against Mr. Stewart in para. 2 of the Judgment. [155] As to the costs of the appeal, Mr. Stewart seeks partial indemnity costs of $48,000. The TPS submits costs in the amount of $17,500 would be fair. Having reviewed Mr. Stewart’s bill of costs, I conclude that an award of costs for the appeal in the amount of $20,000, inclusive of disbursements and applicable taxes, would be just and reasonable and would order the TPS to pay such costs to Mr. Stewart. [156] The parties could not agree on the disposition of the costs below in the event the appeal was allowed. They may make written submissions on that issue. Mr. Stewart may file cost submissions of up to 10 pages in length on or before May 15, 2020. The TPS may file responding submissions of similar length by June 12, 2020. Mr. Stewart may file reply submissions of up to 5 pages in length by June 24, 2020. Released: “DB”  APR 16 2020 “David Brown J.A.” “I agree. Grant Huscroft J.A.” “I agree. Gary Trotter J.A.” [1] Section 3(1) of the TPA states: 3(1) Entry on premises may be prohibited by notice to that effect and entry is prohibited without any notice on premises, (a) that is a garden, field or other land that is under cultivation, including a lawn, orchard, vineyard and premises on which trees have been planted and have not attained an average height of more than two metres and woodlots on land used primarily for agricultural purposes; or (b) that is enclosed in a manner that indicates the occupier’s intention to keep persons off the premises or to keep animals on the premises. [2] Section 7 states: “The City has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act.” Subsection 8(2) contains the City’s general by-law making power. [3] Subsection 20(1) states: “Without limiting sections 7 and 8, those sections authorize the City to delegate its powers and duties under this or any other Act to a person or body subject to the restrictions set out in this Part.” Subsections 21(1) and (4) state: (1) Sections 7 and 8 do not authorize the City to delegate legislative and quasi-judicial powers under any Act except those listed in subsection (2) and the legislative and quasi-judicial powers under the listed Acts may be delegated only to, (a) one or more members of city council or a council committee; (b) a body having at least two members of whom at least 50 per cent are, (i) members of city council, (ii) individuals appointed by city council, (iii) a combination of individuals described in subclauses (i) and (ii); or (c) an individual who is an officer, employee or agent of the City. (4) No delegation of a legislative power shall be made to an individual described in clause (1)(c) unless, in the opinion of city council, the power being delegated is of a minor nature and, in determining whether or not a power is of a minor nature, city council, in addition to any other factors council wishes to consider, shall have regard to the number of people, the size of geographic area and the time period affected by an exercise of the power. [Emphasis added.] [4] The Supreme Court commented further on the third step of the Ward analysis in Henry v. British Columbia (Attorney General) , 2015 SCC 24, [2015] 2 S.C.R. 214, at para. 38, stating: “[I]f a declaration of a Charter breach would adequately achieve the objectives that would otherwise be served by a damages award, then granting damages as well as a declaration would be superfluous, and therefore inappropriate and unjust in the circumstances”.

COURT OF APPEAL FOR ONTARIO CITATION: Thistle v. Schumilas, 2020 ONCA 248 DATE: 20200408 DOCKET: C66432 Watt, Hourigan and Trotter JJ.A. BETWEEN Jason Michael Thistle Plaintiff (Respondent) and James Schumilas, Jr. , WCS Financial Services, Cinaber Financial Inc. and Bridgeforce Financial Group Inc. Defendants ( Appellant ) Marie Sydney, for the appellant Sean Zeitz, for the respondent Heard: In writing On appeal from the order of Justice Catrina D. Braid of the Superior Court of Justice, dated December 21, 2018. COSTS ENDORSEMENT [1] The appellant was successful on his appeal and was awarded costs of the appeal in the all-inclusive sum of $10,000. This court also ordered that the appellant is entitled to his costs of the motion and cross-motion in the Superior Court. Further, we ordered that, to the extent that there are costs of the action below other than the costs of the motion and cross-motion, the appellant is prima facie entitled to those costs given that the respondent’s action has been dismissed. [2] We have been advised that the parties cannot agree on the costs of the motion and cross motion or the other costs of the action. They have filed written submissions on these issues. [3] The appellant seeks its partial indemnity costs of the motion and cross-motion in the amount of $36,889, and its other costs of the action on a partial indemnity basis in the amount of $71,614. The total amount claimed is $108, 503. [4] The respondent submits that the appellant should receive no indemnity for costs incurred after the close of pleadings because it waited for several years to bring its summary judgment motion to dismiss the action. He argues that this delay constitutes special circumstances that disentitle the appellant from recovering his costs after the close of pleadings. [5] We are not satisfied that special circumstances have been established. There was delay in bringing the motion, but the respondent has been aware of the appellant’s position that he does not have standing to bring the action since discoveries. Neither party took steps to deal with this issue expeditiously or in the least expensive way possible in the circumstances. The costs consequences of this should not be borne solely by the appellant. [6] The appellant, as the successful party, is entitled to his costs below. However, we find that the total amount claimed is excessive, given the straightforward nature of the case and the amounts in issue. Therefore, we order that the respondent pay the appellant his costs of the action, including his costs of the motion and cross-motion, in the all-inclusive sum of $75,000. “David Watt J.A.” “C.W. Hourigan J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Urbancorp Cumberland 2 GP Inc. (Re), 2020 ONCA 253 DATE: 20200414 DOCKET: C66812 Pepall, Lauwers, van Rensburg, Zarnett and Thorburn JJ.A. IN THE MATTER OF the Companies’ Creditors Arrangement Act , R.S.C. 1985, c. C-36, as amended AND IN THE MATTER OF a plan of compromise or arrangement of Urbancorp Cumberland 2 GP Inc., Urbancorp Cumberland 2 L.P., Bosvest Inc., Edge on Triangle Park Inc., Edge Residential Inc., and Westside Gallery Lofts Inc. Kevin D. Sherkin and Jeremy Sacks, for the appellants, Toro Aluminum (A Partnership), Speedy Electrical Contractors Ltd., and Dolvin Mechanical Contractors Ltd. Kenneth D. Kraft and Neil S. Rabinovitch, for the respondent, Guy Gissin, in his capacity as the Israeli Court Appointed Functionary Officer of Urbancorp Inc. Adam M. Slavens and Jonathan Silver, for the respondent, Tarion Warranty Corporation Robert J. Drake, for Fuller Landau Group Inc. Hart Schwartz, for the intervener, the Attorney General of Ontario Heard: October 3, 2019 On appeal from the order of Justice Frederick L. Myers of the Superior Court of Justice, dated November 27, 2018. COSTS ENDORSEMENT [1] Counsel for those parties seeking costs of the hearing of the appeal have now submitted their requests. [2] The panel is satisfied that the amounts requested are reasonable.  Accordingly, the following costs, inclusive of disbursements and applicable tax, are to be paid out of the Estate of the Cumberland Group: Kevin D. Sherkin and Jeremy Sacks for the appellants Toro Aluminum (A Partnership), Speedy Electrical Contractors Ltd., and Dolvin Mechanical Contractors Ltd. – $8,190.24 Kenneth D. Kraft and Neil S. Rabinovitch for the respondent Guy Gissin, in his capacity as the Israeli Court Appointed Functionary Officer of Urbancorp Inc. – $9,517.50 Adam M. Slavens and Jonathan Silver for the respondent Tarion Warranty Corporation – $9,786.09 [3] Neither Fuller Landau Group Inc. as Monitor nor the Attorney General of Ontario as Intervener sought any costs. “S.E. Pepall J.A.” “P. Lauwers J.A.” “K. van Rensburg J.A.” “B. Zarnett J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Volk v. Volk, 2020 ONCA 256 DATE: 20200414 DOCKET: M51430 (C67918) Paciocco J.A. (Motion Judge) BETWEEN George Volk Applicant (Respondent/Moving Party) and Doris Volk, Darlene Mussato , Lisa Volk, Felicia Mussato and Public Guardian and Trustee Respondents ( Appellants/Responding Parties ) Ellen Ann Brohm, for the moving party Jerry W. Switzer, for the responding parties Heard: April 14, 2020 REASONS FOR DECISION [1] Litigation under the Substitute Decisions Act , 1992 , S.O. 1992, c. 30, is underway relating to the property of Doris Volk, who is not competent to handle her legal affairs. Included in the dispute is real property registered in the name of Doris Volk (1%) and her granddaughter, Felicia Kowalski (n é e Mussato) (99%), as tenants-in-common (“the home”). The home is currently occupied by Doris Volk’s daughter, Darlene Mussato, who is Felicia Kowalski’s mother. [2] George Volk, Doris Volk’s husband, instituted the action by application claiming that Darlene Mussato, a co-attorney of Doris Volk’s property along with her sister Lisa Volk, abused her power of attorney in order to enrich herself and her daughter, Felicia Mussato, and that property of Doris Volk was improperly disbursed to Darlene Mussato and Lisa Volk. George Volk contends that the considerable, ongoing expenses relating to the operation and maintenance of the home are being paid for with Doris Volk’s money, in further breach of trust. [3] On January 7, 2020, George Volk brought an interlocutory application for an order freezing various assets, ordering the transfer of other assets into the name of George Volk in trust for Doris Volk, and providing for the sale of the home, with the deposit of the proceeds to be paid to George Volk in trust for Doris Volk. The respondent to the application, Lisa Volk, consented to the order. The respondents Darlene Mussato, Felicia Kowalski and the Public Guardian and Trustee, did not appear or file opposing materials. The order was granted. Pursuant to that order, an agreement of purchase and sale has since been entered relating to the home, with a closing date of May 16, 2020. This agreement of purchase and sale gives the stay motion added urgency. [4] Darlene Mussato and Felicia Kowalksi are now appealing the order of January 7, 2020, in appeal C67918. Included in the grounds of appeal is that the order was made in the absence of Darlene Mussato and Felicia Kowalski, who were not properly served or provided with adequate notice of the application. [5] Darlene Mussato and Felicia Kowalski now bring a motion before this court, M51316, to stay the order of January 7, 2020, relating to the sale of the home. Filed in support of that stay motion is an affidavit of Felicia Kowalski, dated February 3, 2020. [6] On February 26, 2020, Felicia Kowalski was cross-examined on her affidavit of February 3, 2020. On the advice of counsel, she refused to answer several of the questions, and an undertaking that was provided has yet to be answered. As a result, George Volk brought a “refusals motion”, seeking to compel the refused questions and the undertaking to be answered, either through further cross-examination or in writing. George Volk has also requested the adjournment of the stay motion brought by Darlene Mussato and Felicia Kowalksi, contending that the refusals by Felicia Kowalski have prejudiced his ability to respond to the stay motion. [7] Both the refusals motion and the stay motion were scheduled to be heard before me on April 14, 2020. I heard the refusals motion and the adjournment application relating to the stay motion during a hearing in which counsel for Darlene Mussato and Felicia Kowalksi attended by teleconference and counsel for George Volk attended by videoconference. At the completion of the hearing I advised the parties that I would be granting the refusals motion in part, adjourning the stay motion, and establishing a timetable for compliance with this order and for the hearing of the stay motion. I ordered that Felicia Kowalski is to provide answers in writing to the questions I identify within seven (7) days of the receipt of my written decision, as well as related orders. This is the written decision and the timetable I am ordering. [8] The refused questions and undertaking can be grouped thematically, using the question numbers employed in the “Chart of Refusals and Undertakings” found at pp. 12-19 of George Volk’s Motion Record, filed in motion M51430, dated March 7, 2020, as follows: (a) Questions pertaining to the non-attendance of Darlene Mussato and Felicia Kowalski at the January 7, 2020 application: Questions 7,8,11,43,44,45, 47; (b) Questions pertaining to the use of funds provided by Doris Volk: Questions 12, 13, 40; (c) Question pertaining to the operation/ownership of the hairdressing business: Question 39; (d) Questions pertaining to utility payments: Question 76; (e) The undertaking pertaining to Doris Volk’s contribution to the property: Question 156; (f) Questions pertaining to other gifts from Doris Volk to Felicia Kowalski: Question 12, 13; (g) Question relating to other support and help Felicia Kowalski provided to Doris Volk: Question 167; (h) Questions relating to Doris’s state of mind or actions: Question 111, 164; and (i) Questions seeking undertakings relating to future use of the property: Question 159, 160, 161. [9] On the advice of counsel, Felicia Kowalski refused to answer these questions because, in counsel’s view, they did not fall within the four corners of Felicia Kowalski’s affidavit. Felicia Kowalski’s conception of the questions that need to be answered when an affiant is being cross-examined on an affidavit in support of a motion is unreasonably narrow and wrong in law. [10] As Borins J. noted in Moyle v. Palmerston Police Services Board , [1995] O.J. No. 627 (Div. Ct.), at para. 11, “the nature of the relief sought on an interlocutory motion often plays a significant role in determining the proper scope of cross-examination”. This is because the cross-examination is meant to serve the fact-finding needs that the motion requires. Accordingly, as Borins J. affirmed, quoting Gale J. from Thomson v. Thomson , [1948] O.W.N 137 (H.C.) at 138, a person cross-examining on an affidavit is not confined to the four corners of the affidavit but may cross-examine on matters that are relevant to the issue in respect of which the affidavit was filed. Therefore, although the cross-examiner is not free to cross-examine on all matters that touch upon the underlying action, if the cross-examiner has a bona fide intention to direct questions to the issues relevant to the resolution of the motion and those questions are fair, the question should be answered, not refused. This includes questions relevant to credibility determinations that are within the competence of the motion judge, which would include questions intended to expose “errors, omissions, inconsistencies, exaggerations or improbabilities of the deponent’s testimony contained in his or her affidavit”: Moyle , at para. 14. [11] The motion in this case is for the stay of an order to preserve the disputed asset. A motion for a stay pending appeal engages the same general legal standards from RJR-MacDonald Inc. v. Canada (Attorney General) , [1994] 1 S.C.R. 311, which are employed in granting interlocutory injunctions, namely, consideration of whether the appeal raises a serious issue, whether the applicant will suffer irreparable harm if the stay is not granted, and the balance of convenience: see Buccilli v. Pillitteri , [2013] O.J. No. 6110 (C.A.), at para. 34 (Gillese J.A., in Chambers). In Moyle , Borins J. noted that because of the nature of the discretionary remedy to grant in interlocutory injunction, the scope of cross-examination for such motions is apt to be broader than in respect of many motions for other remedies: at para. 18. The same is necessarily true of motions for a stay pending appeal. [12] I would therefore order Felicia Kowalski to answer, in writing, the questions listed above in (a), (b), (c), (d), and the undertaking in (e), for the following reasons. [13] The questions related to topic (a), the non-attendance of Darlene Mussato and Felicia Kowalski, are relevant to the seriousness of the issues to be tried, given that Darlene Mussato and Felicia Kowalski seek to rely in their appeal on their absence from the January 7, 2020 application hearing where the disputed order was made. [14] Questions related to topic (b) are relevant to the use of Doris Volk’s funds, which use is relevant to Felicia Kowalksi’s description of the use of funds set out in her affidavit, and to the balance of convenience in granting the stay sought. [15] Question (c) is relevant to the claim made by Felicia Kowalski in her affidavit that she “has a small hair salon business” which she operates from the home. [16] Question (d), relating to the utilities payments, is relevant to the claim made by Felicia Kowalski in her affidavit that she paid for the utilities and upkeep of the home. [17] The undertaking in (e) was provided and should be answered. I do not accept Felicia Kowalski’s position, taken through her counsel, that this undertaking can be answered later as part of the responding materials in the application. This undertaking was furnished during the cross-examination on the affidavit filed in support of the motion for a stay and the information is relevant to the seriousness of the issue to be tried, and to the balance of convenience in determining whether the stay should be granted. [18] I would not order questions (f) and (g) to be answered. They do not relate to the issues raised in the motion. I recognize that the answers provided to question (f) could raise questions about the plausibility of some of the facts represented in Felicia Kowalski’s affidavit, but this is not the kind of credibility factor a motion judge could properly consider during a stay motion, as described in para. 10 of these Reasons for Decision. [19] I would not order questions (h) or (i) to be answered. The questions in (h) relating to what Doris Volk could have done were unfair to Felicia Kowalski, who is not poised to speak to other steps Doris Volk could have taken in accomplishing her goals. The questions in (i) are irrelevant and unfair. Felicia Kowalski’s position is that she has done nothing wrong. There is no reason for her to give the kinds of undertakings sought in those questions. [20] As counsel for George Volk recognizes, it is not feasible in the current COVID-19 crisis to order the parties to reconvene for cross-examination. I therefore direct that the erroneous refusals are to be remedied, in the following manner, and on the following schedule: (1) Questions (a), (b), (c) and (d) are to be answered in writing by Felicia Kowalski, with the answers delivered electronically to counsel for George Volk, by 10:00 a.m. on April 22, 2020; (2) Counsel for George Volk may deliver follow-up questions arising from the answers to questions (a), (b), (c) and (d), in writing to counsel for Felicia Kowalski by electronic transmission by 10:00 a.m. on April 24, 2020; (3) Unless the information being sought is privileged or otherwise protected by law, Felicia Kowalski will answer in writing any and all follow-up questions received by her counsel according to paragraph (2) above, by electronic transmission by 10:00 a.m. on April 28, 2020, along with the undertaken information described above in question (e) at para. 8 of these Reasons for Decision. Disputes about the propriety of the answered questions shall be resolved by the motion judge hearing the stay motion. If those questions prove to have been improper the motion judge can disregard the answers as inadmissible; (4) George Volk may serve and file an amended factum relating to the stay motion incorporating information arising from paragraphs (1) and (3) above, by joint electronic transmission to counsel for Felicia Kowalski, and the court, by 10:00 a.m. on May 1, 2020. No further proof of service shall be required. (5) George Volk shall serve and file electronic copies of the answers, follow-up questions, answers to follow-up questions, and the response to the undertaking described in paragraphs (1), (2), and (3) above, by joint electronic transmission to counsel for Felicia Kowalski and to the court, by 10:00 a.m. on May 1, 2020. No further proof of service shall be required. (6) The stay motion, M51316 shall be adjourned to May 6, 2020, peremptory on Darlene Mussato and Felicia Kowalski. The parties shall confirm in advance whether the motion will be heard in person, or electronically, and shall be responsible for ensuring that proper arrangements have been made for their attendance. [21] Costs in this motion are reserved to the motion judge hearing the stay motion. If the stay motion is abandoned, costs will be reserved to the panel hearing the appeal. If the appeal is abandoned, the parties may bring a costs application before me in writing, not to exceed 3 pages in length plus supporting bills of costs, within 10 days of the notice of abandonment of the appeal being filed. “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 2222868 Ontario Inc. v. Grimsby (Town), 2020 ONCA 376 DATE: 20200612 DOCKET: C67759 Pepall, van Rensburg and Paciocco JJ.A. BETWEEN 2222868 Ontario Inc. Applicant (Respondent) and The Corporation of the Town of Grimsby Respondent (Appellant) R. Andrew Biggart, for the appellant Scott Snider and Shelley Kaufman, for the respondent Heard: April 28, 2020 by video conference On appeal from the judgment of Justice Meredith Donohue of the Superior Court of Justice, dated November 4, 2019. Pepall J.A.: INTRODUCTION [1] This appeal concerns the interpretation of a municipal by-law, and in particular, the Town of Grimsby Zoning By-law 14-45 (the “By-law”). [2] The respondent, 2222868 Ontario Inc. (“2222”), purchased a 119-acre property (the “property”) located in the Town of Grimsby on March 30, 2018, after reviewing zoning and permitted uses. The property is adjacent to a private regional airport that is on the same parcel of land as that of 2222. [3] 2222 proposed to operate a works yard to store construction machinery for a private company. It unsuccessfully applied for site plan approval to permit a “Works Yard”, as that term is defined in the By-law, on part of its property. It maintained that its proposed Works Yard was a permitted use in the Zone designated as the “Utility Zone” in the By-law. The appellant, the Town of Grimsby (the “Town”), took the position that the proposed use did not comply with its By-law, stating: “…the use of the subject lands for a works yard for a private company which does not deliver a public or quasi-public utility is not intended in the terminology contained in either the Zoning By-law or the Official Plan.” [4] 2222 brought an application for a determination that a private Works Yard is included as a permitted use in the By-law. [5] The application judge granted the application and subsequently ordered costs of $40,000 on a partial indemnity scale in favour of 2222. The Town appeals. [6] For the reasons that follow, I would dismiss the appeal. The application judge correctly concluded that the By-law permits the use proposed by 2222 . FACTS (1) The By-law [7] The Town passed the By-law on May 20, 2014. The By-law states that it is in conformity with the Official Plan of the Town that was approved by the Ontario Municipal Board under the Planning Act , R.S.O. 1990, c. P.13. The stated purpose of the By-law is to regulate the use of land, buildings and structures, to regulate the construction and alteration of buildings and structures, and to implement the policies of the Town’s Official Plan. [8] The By-law creates numerous Zones, three of which are Employment Zones: the General Employment Zone; the Prestige Employment Zone; and, at issue in this appeal, the Utility Zone. “Utility” is not a defined term in the By-law. [9] Section 10 of the By-law describes the permitted uses within each Employment Zone. The Utility Zone has four permitted uses: Airport; Utility Corridor; Water and Sewage Treatment, Pumping and Storage Facility; and Works Yard. [10] Works Yard is defined as “a facility for the storage and repair of machinery, vehicles and equipment.” [11] The By-law provides that where a use is defined, it shall not be interpreted to include any other defined use unless it is stated in the definition to the contrary: s. 2.5.7. Italicized words in the By-law are to provide clarity and to ensure that the By-law and its intent are applied consistently. [12] Some permitted uses have qualifications. For example, in the Prestige Employment Zone, “Professional and Administrative Office” is a permitted use but “Restaurant” is noted as an “Accessory use” to that Office use. Accessory use is defined in the By-law as “a use naturally and normally incidental to, subordinate to or exclusively devoted to a principal use and located on the same lot ”. [13] No Accessory uses are identified in the Utility Zone. Accordingly, Works Yard is a stand-alone use. A Works Yard Permitted Use is not found elsewhere in the By-law. (2) The Official Plan [14] The Town’s Official Plan received final approval on May 12, 2012. Pursuant to s. 24(1) of the Planning Act , no by-law shall be passed that does not conform to an Official Plan that is in effect. [15] Pursuant to s. 24(4) of the Planning Act , zoning by-laws are deemed conclusively to conform with an Official Plan where there is no outstanding appeal or appeal periods applicable to the relevant provisions. [16] In this case, neither party suggested that there is any outstanding appeal or appeal periods relating to the Town’s Official Plan. [17] 2222’s property is located in the “Utility Area” designation of the Town’s Official Plan. Utility is defined in the Official Plan as “all public and/or private utilities, including but not limited to licensed broadcasting,…a water supply, storm or sanitary sewage…or any other similar works or systems necessary to the public interest.” [18] Section 3.9 of the Official Plan describes the “Intent”, “Objectives” and “Permitted Uses” of the Utility Area. [19] Under the heading “Intent”, the Official Plan states that the Utility Area recognizes the existing water treatment plant and pollution control plant and other public and private utilities. The “Objective” is to “ensure that utilities are located in a manner that maximizes their performance while limiting any land use incompatibilities.” Lastly, the “Permitted Uses” within the Utility Area designation “shall include [p]ublic and quasi-public utility uses of Town-wide or regional significance including existing sewage and water treatment facilities, existing pumping stations, airport use, and transmission towers” (underline emphasis added). [20] As the application judge observed, the Official Plan uses language of inclusion in the Permitted Uses designation, not prohibition. [21] The Town states that as a portion of the parcel of land was used for a regional airport, 2222’s property was designated as a “Utility Area” in the Official Plan. (3) The Provincial Policy Statement and the Greenbelt Plan [22] Pursuant to s. 3 of the Planning Act , the Province may issue Policy Statements on municipal planning. The Provincial Policy Statement states that the Official Plan is the most important vehicle for implementation of the Provincial Policy Statement. Decisions of the municipal council shall be consistent with the Policy Statements. [23] According to the appellant, the Provincial Policy Statement addresses the provincial interest in transportation and infrastructure corridors. An airport is treated as infrastructure, which also includes transit and transportation corridors and facilities. Planning authorities are to plan for and protect corridors and rights-of-way for infrastructure, including transportation, transit and electricity generation facilities, and transmission systems to meet current and future needs. According to the Provincial Policy Statement: “Planning authorities shall not permit development in planned corridors that could preclude or negatively affect the use of the corridor for the purpose(s) for which it was identified” and “Planning for land uses in the vicinity of airports shall be undertaken so that:…their long-term operation and economic role is protected…” [24] The Ontario Government has established a Greenbelt Area for which it has a Greenbelt Plan. Pursuant to s. 7 of the Greenbelt Act , 2005 , S.O. 2005, c.1, a decision made under the Planning Act or in relation to a prescribed matter by a municipal council shall conform with the Greenbelt Plan and no municipality shall pass a by-law that conflicts with the Greenbelt Plan. [25] The Town states that 2222’s lands are located in a “Specialty Crop Area” within the “Protected Countryside” designation under the Greenbelt Plan, and that with certain permitted exceptions such as Infrastructure, a Specialty Crop Area is for agricultural use. APPLICATION JUDGE’S REASONS [26] As mentioned, the application judge granted 2222’s application and declared that a private works yard is a permitted use for the Utility Zone in the By-law. She rejected the Town’s argument that “use” must support or be limited to a utility. [27] The application judge considered the contents of the Official Plan and went on to note that it speaks of what shall be included in Utility Areas, but does not prohibit non-public or quasi-public uses. Moreover, there was no evidence or argument that the proposed construction equipment storage use is incompatible with the land use objectives. She noted that permitted use does not take its context from the name of the zone. For example, “Agricultural use” is permitted in the Prestige Employment Zone. [28] Importantly, the Town failed to link all uses in the Utility Zone to public or quasi-public uses, which it could have done with a qualification or an accessory use designation, as seen elsewhere in the zoning tables included in the By-law. The application judge concluded that the Town’s proposed narrow public uses interpretation was not intended; the By-law was unambiguous and clearly-stated. As such, there was no need to consult the Provincial Policy Statement or the Greenbelt Plan. [29] The application judge applied this court’s decision in St. Mary's Cement Inc. (Canada) v. Clarington (Municipality) , 2012 ONCA 884, 299 O.A.C. 357, at para. 17: The modern principles of statutory interpretation apply equally to the interpretation of a municipal by-law and a statute [citation omitted]. Thus, the interpretation of a by-law involves consideration of the text of the by-law, the intent of municipal council, and the purpose and scheme of the by-law as a whole [30] The application judge concluded her analysis as follows: The plain language of the by-law permits the use sought by the applicant. The by-law did not qualify the use to be for a public purpose. The by-law defined “Works Yard” without any restriction to a public use. The zone has already permitted a private airport to operate within the zone. There is no suggestion of the proposed use being incompatible. GROUNDS OF APPEAL [31] The Town submits that the application judge erred: a) in her interpretation of the By-law by permitting a private Works Yard “that is not in any way related to a Utility use”, notwithstanding: i. that the lands are designated in the Official Plan as “Utility Areas” and are zoned “Utility” in the Town’s By-law consistent with the Official Plan; ii. the context which includes consideration of the Official Plan and the permitted uses in the Utility Zone; and iii. the applicable statutory and policy regime, which includes the Provincial Policy Statement and the Greenbelt Plan; and b) in considering compatibility of land use as part of her assessment. ANALYSIS [32] It is helpful to first set forth the legal principles applicable to the interpretation of a by-law. · The interpretation of a by-law is a question of law, reviewable on a correctness standard: Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia , 2015 ONCA 494, 336 O.A.C. 373, at para. 22. · A zoning by-law is the end-product in law of the planning process legislated by the Planning Act : Rotstein v. Oro-Medonte (Township) , 2002 CarswellOnt 4411 (S.C.), at para. 22. · The modern principles of statutory interpretation apply equally to the interpretation of a municipal by-law and statute. Thus, the interpretation of a by-law involves consideration of the text of the by-law, the intent of municipal council, and the purpose and scheme of the by-law as a whole: Clarington , at para. 17. · Official Plans are not statutes: Bele Himmell Investments Ltd. v. Mississauga (City) , 1982 CarswellOnt 1946 (Div. Ct.), at para. 22. The purpose of an Official Plan is to set out a framework of “goals, objectives and policies”. It establishes the broad principles that are to govern the municipality’s land use planning generally: Goldlist Properties Inc. v. Toronto (City) , 232 D.L.R. (4th) 298 (Ont. C.A.) , at para. 49. · As by-laws are the means by which Official Plans are implemented, the terms of an Official Plan aid in the contextual interpretation of the by-law: Clarington , at para. 21. · Under the Building Code Act , 1992 , S.O. 1992, c. 23, an applicant for a building permit must be in compliance with the applicable By-law. Unambiguous by-laws provide clarity to the Chief Building Official and to a landowner. [33] In this case, the application judge identified and applied the correct test. She examined the Zone and the Permitted Uses contained in the By-law. Works Yard was specifically and unambiguously defined in the By-law. A Works Yard was identified as a separate Permitted Use and not as an Accessory Use. Had the Town intended to link Works Yard to utility use or to public or quasi-public uses, it could have done so by including a Qualification or Accessory use designation in the By-law as it did for other uses. Instead, the Town opted not to do so. [34] Furthermore, the name of a Zone did not dictate a Permitted Use; this was not the scheme of the By-law. For example, as the application judge observed, Agricultural Use was permitted in the Prestige Employment Zone. [35] As mentioned, under the Planning Act , zoning by-laws are deemed conclusively to conform with an Official Plan in the absence of an appeal or appeal period applicable to the relevant provision. Neither party in this case suggested that there was an outstanding appeal or appeal period. The application judge nonetheless did consider the Official Plan in her interpretation of the By-law. She fairly reasoned that it used language of inclusion rather than prohibition within the Permitted Uses designation of the Utility area. In addition, she noted that the objective of the designation in the Official Plan was to “ensure that Utilities are located in a manner that maximizes their performance while limiting land use incompatibilities.” A Works Yard was compatible with the uses enumerated in the Utility Area designation of the Official Plan. [36] In these circumstances, I need not comment further on the Provincial Policy Statement or the Greenbelt Plan. I would note, however, that the appellant was unable to direct the court to any authority reflecting a requirement to have recourse to these documents when interpreting a by-law. Furthermore, in oral argument, the appellant acknowledged that while it was open to the application judge to look at these documents, she was not required to do so. [37] I would also note that, as mentioned, Works Yard is not found as a Permitted Use elsewhere in the By-law. If one were to accept the appellant’s proposed interpretation, a Works Yard unconnected to a utility would be prohibited anywhere in the Town, surely an unintended result. [38] In conclusion, the interpretation of Works Yard in the By-law permitted the use advocated by the respondent. [39] Lastly, I see no error in the application judge’s statement that there was no evidence or argument that the proposed land use of storing construction equipment was in any way incompatible with the land use objectives. This was not the drawing of an adverse inference; it was simply a statement of fact. DISPOSITION [40] For these reasons, I would dismiss the appeal with costs of the appeal fixed in the amount of $21,700 on a partial indemnity scale inclusive of disbursements and applicable tax to be paid by the Town to the respondent. [41] I see no basis on which to interfere with the application judge’s discretionary award of $40,000 in favour of the respondent for costs of the application. Released: June 12, 2020 “S.E.P.” “S.E. Pepall J.A.” “I agree. K. van Rensburg J.A.” “I agree. David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 4352238 Canada Inc. v. SNC-Lavalin Group Inc., 2020 ONCA 303 DATE: 20200513 DOCKET: C67394 Roberts J.A. (Case Management Judge) BETWEEN 4352238 Canada Inc. Applicant (Appellant) and SNC-Lavalin Group Inc., SNC-Lavalin Inc., SNC-Lavalin Highway Holdings Inc., 7577702 Canada Inc., and MICI Inc. Respondents (Respondents) Mark A. Gelowitz, Allan D. Coleman and Lia Bruschetta, for the appellant Linda Fuerst and Fahad Siddiqui, for the respondents SNC-Lavalin Group Inc., SNC-Lavalin Inc. and SNC-Lavalin Highway Holdings Inc. Eliot N. Kolers and Alexander Rose, for the respondents 7577702 Canada Inc. and MICI Inc. Heard: May 8, 2020 by teleconference REASONS FOR DECISION A. Overview [1] This appeal was scheduled to be heard on April 16, 2020, but was adjourned sine die due to the COVID-19 pandemic emergency. The parties appeared before me for a case management conference to determine how this matter will proceed. The appellant objected to the appeal proceeding in writing, as suggested by the respondents. It argued that this court would not have jurisdiction to hear an appeal in writing over a party’s objection. I disagree. For the following reasons, this matter will proceed in writing. B. Analysis (1) This Court Has Jurisdiction to Order a Civil Appeal Heard in Writing [2] The appellant submitted that this court has limited supervisory jurisdiction over its own process, restricted to governing administrative details, and cannot order an appeal be heard in writing over the objection of one of the parties to the appeal. This, according to appellant, would run contrary to the provisions of the Courts of Justice Act , R.S.O. 1990, c. C.43, and the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, which mandate an oral hearing of a civil appeal unless the parties consent to an appeal in writing. [3] I do not accept these submissions. [4] It is well settled that this court’s implicit or ancillary jurisdiction to manage its own process is broad. This court has the jurisdiction to make any procedural order to prevent an abuse of process or to ensure the just and efficient administration of justice: see R. v. Anderson , 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 58; R. v. Cunningham , 2010 SCC 10, [2010] 1 S.C.R. 331, at paras. 18, 19; Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd. , 2007 ONCA 695, 87 O.R. (3d) 660, at para. 24. The court’s implicit powers include those that are reasonably necessary to accomplish the court’s mandate and perform its intended functions: see R. v. 974649 Ontario Inc. , 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 70. They arise by necessary implication even in the absence of express statutory or common law authority: see Cunningham , at para. 19; see also Pierre v. McRae , 2011 ONCA 187, 104 O.R. (3d) 321, at paras. 30-42. [5] The exercise of the court’s jurisdiction to manage its own process by directing that some appeals proceed on the written record is not inconsistent with any provision of the Courts of Justice Act or the Rules of Civil Procedure , which, in any event, do not mandate the absolute right to an oral hearing of an appeal. The Courts of Justice Act prescribes the composition of the Court of Appeal, but not the mode of hearings. And, while oral hearings are contemplated, the Rules of Civil Procedure do not explicitly direct that appeals to the Court of Appeal require an oral hearing. Rather, r. 1.04(1) expresses the governing principle that the Rules “shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” [6] It is also beyond controversy that the COVID-19 pandemic has created extraordinary circumstances to which we must all adapt as best we can. Since March 17, 2020, there have been no in person appeals heard at the Court of Appeal. More than 100 scheduled appeals had to be adjourned. Through a series of Practice Directions, this court has endeavoured to address the tremendous disruption caused by the pandemic. As a result, appeals are being heard in writing or remotely until in person appeals can resume. Case management conferences are being held to manage and schedule them. [7] Accordingly, it is well within this Court’s jurisdiction to order that a civil appeal be heard in writing when the due administration of justice requires it. During these extraordinary times, judicial resources are strained. The ability to hear appeals remotely is not unlimited. Where appropriate, some appeals must be heard in writing in order to ensure that appeals continue to be heard in a timely and an orderly fashion. (2) This Appeal Should Proceed in Writing [8] In the present case, this appeal is entirely suited to being heard in writing. It arises out of the dismissal of an application for narrow declaratory relief. The application proceeded on a paper record. It concerns the interpretation of a clause in a contract within the context of a relatively straightforward factual matrix. The parties are permitted to file supplementary facta. Further submissions are not foreclosed: if necessary, the panel has the option to seek further oral and written submissions. There is absolutely no prejudice or unfairness to the appellant by proceeding in writing. But the potential prejudice to the respondents by any further delay and the unnecessary strain on the court system are obviated. C. Directions [9] This appeal will proceed in writing. [10] The parties shall serve and file electronically all material previously filed in paper and supplementary facta of no more than ten pages as follows: (1) the appellant by June 3, 2020; and (2) the respondents by June 24, 2020. [11] The supplementary facta shall include the parties’ respective brief costs submissions and append a costs outline. The facta and supplementary facta shall include hyperlinks as described in section 11 of the Practice Direction Regarding the Electronic Conduct of Matters During the COVID-19 Emergency . Where possible, as described in section 12 of the same Practice Direction, parties are encouraged, but not required, to hyperlink the key documents referred to in their factums and use PDF bookmarks to facilitate navigation of the materials filed. The parties are to consult the Practice Direction Regarding the Electronic Conduct of Matters During the COVID-19 Emergency at https://www.ontariocourts.ca/coa/en/notices/covid19/practice-direction-electronic-conduct.pdf . All electronic filings must be sent via email to coa.e-file@ontario.ca . [12] The court’s appeal scheduling unit will contact the parties to advise the week during which the appeal shall be considered by the panel so that they are available in the event the panel requires additional submissions orally or in writing. [13] There is no publication ban nor any concerns about members of the public or media having access to the hearing. “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 2484234 Ontario Inc. v. Hanley Park Developments Inc., 2020 ONCA 293 DATE: 20200507 DOCKET: C67171 Tulloch, van Rensburg and Zarnett JJ.A. BETWEEN 2484234 Ontario Inc. Applicant (Appellant) and Hanley Park Developments Inc. Respondent (Respondent) Richard P. Quance, for the appellant Howard J. Alpert and Vivian Xu, for the respondent Heard: February 7, 2020 On appeal from the judgment of Justice Jane Ferguson of the Superior Court of Justice, dated June 13, 2019 with reasons reported at 2019 ONSC 3696. COSTS ENDORSEMENT [1] By reasons dated April 29, 2020 (2020 ONCA 273), the appellant’s appeal was allowed, and costs of the appeal were awarded to the appellant. The parties were invited to make submissions, in writing, on the disposition of the costs below. Counsel for the appellant has advised that the parties have now reached agreement on these costs. [2] In accordance with the agreement of the parties, costs of the proceedings in the Superior Court, fixed in the sum of $30,000 all inclusive, shall be paid by the respondent to the appellant. “M. Tulloch J.A.” “K. van Rensburg J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Abu-Saud v. Abu-Saud, 2020 ONCA 314 DATE: 20200522 DOCKET: M51538 (C67699) Benotto J.A. (Motion Judge) BETWEEN Amneh Tawfic Abu-Saud Applicant (Respondent/Moving Party) and Azam Asaad Abu-Saud Respondent (Appellant /Responding Party ) William R. Clayton, for the responding party Sharon E. Hassan, for the moving party Heard: In writing with brief oral submissions on May 19, 2020 REASONS FOR DECISION [1] The appellant has not complied with the support order that he seeks to appeal. The respondent brings this motion to adjourn the appeal. She also requests a partial lifting of the automatic stay for a portion of the equalization payment, security for costs and an extension of time to file her factum. BACKGROUND [2] The parties were married for 27 years. They have two adult children. The respondent was primarily responsible for child-rearing while the appellant pursued a career in tax preparation. He opened a business in 1992 that was operated from the family home with assistance from the respondent. The business eventually moved to an office, and the respondent assisted with the business while the children were in daycare or school. In 1996, the appellant registered as a mutual fund dealer and started a company, “Superstar Investment Corp”. He is the sole shareholder and operating mind of Superstar. [3] In 2002, the respondent stopped working for the family business and obtained a job at another company. In 2010 she was diagnosed with fibromyalgia, which required her to withdraw from the workforce. She has not worked since. [4] The parties separated in 2015 and the respondent brought the underlying application seeking spousal support and an equalization of net family property. The highly contested litigation continued until 2019 when the trial judgment was released. In the meantime, in 2017, the appellant entered into an agreement with Monarch Wealth Corporation whereby this company became the dealer under which he sold mutual funds to his clients. Superstar was de-registered for the sale of mutual funds, but the appellant continued to carry on his business through Superstar and all fees and commissions were paid to it. DECISION BELOW [5] The trial judge awarded the respondent spousal support retroactive to the date of separation. The support was ordered on both a compensatory and a needs basis, recognizing her important contribution to the management of the household and to the appellant’s business. [6] The main issue as to equalization was the value of the goodwill of Superstar. The trial judge accepted the evidence of the respondent’s expert that the goodwill has a value because clients continue to seek the appellant’s advice and he continues to earn money for that advice. Even though by the time of the trial, the appellant was de-registered as a mutual fund dealer, the application judge found that he continues to manage his clients’ books of business. This was evidence of the goodwill value of Superstar at the valuation date for the purpose of calculating net family property and equalization. The trial judge rejected the evidence of the appellant’s expert, which attached no value to the goodwill absent evidence of a special purchaser. The trial judge accepted the respondent’s expert’s methodology and value of Superstar’s goodwill as $172,500. [7] The final Judgment released on October 30, 2019, with reasons reported at 2019 ONSC 6303, provided that: 1. The appellant pay spousal support in the amount of $2,653 per month, commencing January 1, 2019; 2. The retroactive spousal support of $94,305 be payable at a minimum rate of $500 per month, commencing April 1, 2019; 3. The appellant pay an equalization payment of $ 278,316.85, plus pre-judgment interest, with one-half being payable by April 30, 2019 and the remainder in equal instalments commencing January, 2020 and continuing until January, 2029; 4. The payments for support and equalization were secured against the appellant’s holdings in Superstar. EVENTS FOLLOWING TRIAL [8] The delivery of a notice of appeal automatically stays, until the disposition of the appeal, any provision of the order for the payment of money, except a provision that awards support or enforces a support order: rule 63.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [Emphasis added.] [9] The appellant has not paid the support ordered by the trial judge. The appellant did not pay the arrears in spousal support, retroactive spousal support, or increased monthly spousal support. Instead he initially paid spousal support of $1,500 per month, pursuant to an interim order, instead of the increased monthly support of $2,653. Then, in January 2020 he further reduced his monthly support payment to $1,100. He acknowledges that he has not complied but submits that he pays “what he can afford to pay”. He has not sought to stay the support provisions in the judgment. [10] Six days after receipt the judgment, the appellant transferred his 50% interest in his home to his current wife for consideration of $2. He did not transfer his liability under the mortgage to her, nor did she assume it. [11] Counsel for the respondent wrote to Monarch Wealth advising the company of the order securing the payments against Superstar. On March 16, 2020 Monarch Wealth sent an email to counsel as follows: This is to inform you that [the appellant] has recently redeemed 100% of the holdings in the account Superstar Investments Corp. We had this account frozen due to the correspondence you provided to us; however [the appellant] sent his request directly to the fund company without our knowledge, which is against our policies and procedures. [12] The respondent submits that this breaches the trial judge’s order. The appellant admits that he withdrew $200,000 from Superstar but says this was to assist with the purchase of his home, not to make himself judgment-proof. He says he still has the shares of Superstar so he has not violated the judgment provisions. He further submits that he was required pursuant to a pre-nuptial agreement with his current wife to make the payment for the home. The respondent points out that this alleged agreement was never disclosed to her or to the trial judge and this is the first time it has been mentioned. THE APPEAL [13] The appellant submits that the trial judge erred in his determination of the equalization payment owing and support. [14] The equalization payment error alleged is that the trial judge accepted the respondent’s expert evidence as to the value of the goodwill of Superstar. He says that the equalization payment award of $278,316.85 should instead have been $150,685.22. [15] He submits as well that the trial judge erred by awarding retroactive support and by imputing income to him of $90,000 in order to arrive at the Guidelines amount of support. DISCUSSION [16] Against this background, I address the respondent’s motion. Support arrears [17] I begin with the appellant’s failure to pay the support ordered in the judgment. Compliance with an order for support is not optional. Support payments are not stayed pending appeal. If the appellant seeks relief from this requirement, the procedure is to bring a motion to stay the support. The procedure is not to decide for yourself how much to pay. This court has repeatedly admonished payors who do not pay the support pending appeal. In Murphy v. Murphy , 2015 ONCA 69, 56 R.F.L. (7th) 257, the court refused to entertain submissions from a party who had not paid support pending appeal. To do otherwise “would be to reward his deliberate and willful misconduct”: at para. 6. [18] The court may also refuse to hear an appeal when the appellant is in arrears until the arrears are cured. (See: Laskin J.A. in Dickie v. Dicki e (2006), 78 OR (3d) 1 at para. 21, endorsed by the SCC in Dickie v. Dickie 2007 SCC 8, [2007] 1 S.C.R. 346, at para. 6 ; Brophy v. Brophy , 180 O.A.C. 389 , at paras. 11-12; A.A. v. Z.G., 2016 ONCA 660 ; Siddiqui v. Anwar, 2018 ONCA 965 ). [19] The appellant’s failure to pay is flagrant. Currently he owes more than $17,000. He acknowledges that he has the funds to pay. [20] Until his payments are brought up-to-date and he complies with the judgment, his appeal will not be listed for hearing. This is the just result and consistent with the approach of Laskin J.A. in Dickie at para. 21, and then endorsed by the SCC: It is worth noting that requiring an appellant to comply with outstanding support orders, as a condition of proceeding with an appeal, does not make an appellant's appeal pointless. If the appellant is successful on appeal, the court's disposition can take into account the extent to which the support payments made have exceeded the level of support ordered on appeal. Equalization payment [21] I turn to the equalization payment. The appellant has conceded that he owes a portion of the equalization payment. The respondent calculates the conceded amount to be $57,448.68 [1] . The judgment provides that half of the equalization was to be paid on April 1, 2019. [22] Rule 63.01(5) provides that this court may order that the stay provision in r. 63.01(1) does not apply. Usually, the court looks to the merits of the appeal, the need for funds, and whether there is a danger that the payment will not be made: Popa v. Popa , 2018 ONCA 972, at para. 7. This is not a case like Popa . Here the appellant acknowledges that a portion of the equalization payment is owed. There is therefore no dispute about the funds requested by the respondent. In light of all the circumstances, it is just that the funds be paid now. The automatic stay on the equalization payment is hereby lifted to the extent of half of the admitted amount owing. Therefore $28,724.34 plus pre-judgment interest is payable now. Support arrears and partial equalization to be paid [23] The appellant is to pay the respondent the support owed together with the portion of the equalization set out above. These payments are to be paid, together with outstanding interest, no later than June 19, 2020. Security for costs and an extension of time [24] The respondent has not had the funds necessary to address the appeal and has not filed a responding factum. Consequently, she seeks security for costs and an extension of time to file the factum on the appeal. I will consider these requests immediately after June 19, 2020 or when the above payments are made, whichever is earlier. Summary [25] In conclusion: 1. The appeal is stayed until the appellant complies with this order. 2. The appellant is to comply with judgment by bringing support payments up to date with a payment of $17,071 to the respondent no later than June 19, 2020. 3. The appellant is to pay the respondent $28,724.34 plus pre-judgment interest to the respondent no later than June 19, 2020. 4. If the payments are not made, the respondent has leave to apply to a panel of this court to quash the appeal. 5. If the payments are made, then I will address the portion of the motion dealing with an extension of time for the respondent to file her factum and security for costs. I therefore ask counsel to advise the motions office of the status of the payments. 6. Costs of this portion of the respondent’s motion are payable to her in the amount of $3500 inclusive of HST and disbursements. Released: May 22, 2020 “M.L. Benotto J.A.” [1] The difference between what the trial judge ordered and what he says it should have been less a payment already received by the respondent.

COURT OF APPEAL FOR ONTARIO CITATION: Anderson (Re), 2020 ONCA 277 DATE: May 1, 2020 DOCKET: C67672 MacPherson, Benotto and Nordheimer JJ.A. IN THE MATTER OF: Duane Anderson AN APPEAL UNDER PART XX.1 OF THE CODE Terrance Luscombe, for the appellant Ken Lockhart, for the respondent Her Majesty the Queen Naveen Hassan, for the respondent Ontario Shores Centre for Mental Health Services Heard: in writing On appeal from the disposition of the Ontario Review Board dated October 15, 2019 with reasons dated October 28, 2019. REASONS FOR DECISION [1] Duane Anderson appeals from the decision of the Ontario Review Board that continued his detention order and, in doing so, imposed a condition that he abstain absolutely from the non-medical use of alcohol or drugs. The appellant particularly objects to this condition insofar as it would prohibit him from the recreational use of cannabis. Medical use of cannabis is permitted under the current disposition. [2] The appellant submits that the condition regarding the use of drugs is not the least restrictive disposition available to the Board. He also submits that the condition was based on an inadequate evidentiary basis. There was no direct evidence that the use of cannabis would be a problem in the appellant’s case. [3] What the Board did have was the expert evidence of a psychiatrist that the use of cannabis “generally” exacerbates psychotic symptoms in people. The Board also had information in the hospital report, provided by the appellant’s mother, of a prior incident of the appellant acting aggressively that was tied to his excessive use of cannabis. All of this evidence had to be considered against the backdrop that there was no dispute that the appellant continues to pose a significant risk to the safety of the public. [4] The appellant points to a number of prior decisions of this court that he says supports his position that the Board must impose the least restrictive conditions in making a disposition. In particular, he relies on the decisions in Re Sheikh , 2019 ONCA 2019; Re Wall , 2017 ONCA 713 and Re Anuff , 2016 ONCA 280. None of those decisions actually addresses the issue that we have here. In each of those cases, the issue was whether the evidence supported a finding by the Board that the individual posed a significant risk to the public. Here, that finding is conceded. [5] Rather, we are dealing with the legitimacy of a condition of the appellant’s disposition that restricts his access to cannabis. While those conditions must still pass the least restrictive test, in our view, there was sufficient evidence before the Board to warrant the imposition of that condition. It is not necessary for the Board to have direct evidence amounting to an absolute certainty that the imposition of such a condition is necessary in the appellant’s case. The Board was entitled to rely on the expert evidence regarding the effect of cannabis on individuals generally, coupled with evidence as to prior effect on the appellant, as a sufficient foundation to warrant the imposition of that condition. We note that there was no evidence to the contrary, that is, that the appellant was somehow immune from the general effect of cannabis. [6] It would be contrary to the Board’s duty to protect the safety of the public to require it to withhold the imposition of a condition until an actual adverse event took place. The Board is entitled to rely on expert evidence as to the likelihood of an event happening as being sufficient to warrant the imposition of a specific condition. It certainly cannot be said that, in doing so, the Board acted unreasonably. [7] For the foregoing reasons, the appeal is dismissed. “J.C. MacPherson J.A.” “M.L. Benotto J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Barry v. Barry, 2020 ONCA 321 DATE: 20200527 DOCKET: C67550 Feldman, Lauwers and Huscroft JJ.A. BETWEEN Susan Barry Applicant (Appellant) and Marc Andrew Barry and James Michael Barry Respondents ( Respondent ) Michael H. Murray, for the appellant Marc Andrew Barry, acting in person Heard: In writing On appeal from the order of Justice Timothy G. Price of the Superior Court of Justice, dated September 11, 2019. REASONS FOR DECISION [1] Following a four-day trial to resolve financial issues arising from marital breakdown, the trial judge ordered that the respondent owed the appellant an equalization payment of $226,670.96. The order also provided that, after a fair market value assessment, the respondent had the “right to conclude the purchase” of the appellant’s interest in the jointly-owned matrimonial home within 30 days of the date of the release of the trial judge’s reasons, and to obtain the release of the appellant from her obligations under the existing first mortgage registered against the matrimonial home. [2] The appellant seeks to vary the trial judge’s order to omit the respondent’s right to conclude the purchase of the matrimonial home. She seeks the sale of the matrimonial home and division of its net proceeds. [3] The respondent initially informed the court that he would not be participating in the appeal. In a letter to the court, he stated that the appeal belonged in the Divisional Court, and asserted that he was not properly the respondent and that it was incumbent on the trial judge to explain his order. Just prior to the date scheduled for consideration of this appeal, the respondent filed a factum and reiterated these positions, and in addition took issue with the conduct of the appellant and her counsel throughout the proceedings. He stated that he had been required to live in a trailer as the matrimonial home sat vacant while the appellant lived with her mother, and sought compensation for his expenses and hardship. [4] Having considered the positions of the parties, we allow the appeal for these reasons. [5] First, the appeal is properly heard in this court rather than the Divisional Court. This court has jurisdiction to hear this appeal pursuant to s.6(1)(b) of the Courts of Justice Act , R.S.O. 1990, c. C.43 ( CJA ) as an appeal from a final order of a judge of the Superior Court. [1] [6] Second, the trial judge’s order speaks for itself. Trial judges do not defend their decisions on appeal. The respondent is entitled to defend the trial judge’s order. In any event, the appellant bears the burden of establishing that the trial judge’s decision should be varied on appeal. [7] This case raises a single issue: the arrangements for selling the matrimonial home. The appellant wanted to sell the home and divide the net proceeds of the sale, while the respondent wanted to purchase the appellant’s interest in it. The current value of the home was not established at trial. The trial judge granted the respondent the right to purchase the matrimonial home within 30 days from the release of his decision after obtaining a fair market value assessment. [8] The appellant submits that the trial judge erred in making this order. We agree. [9] As this court explained in Martin v. Martin , [1992] 8 O.R. (3d) 41 (C.A.), a right of first refusal is a substantive right that has economic value. It falls outside the boundaries of what is ancillary or what is reasonably necessary to implement the order for sale of the matrimonial home. It distorts the market for the sale of the matrimonial home by eliminating the need to compete against any other prospective purchaser, thus potentially reducing the amount the joint owning spouse realizes on the sale. In the absence of consent, the right of first refusal should not have been granted in this case. If the respondent seeks to purchase the matrimonial home, he must compete with any other interested purchaser. [10] Accordingly, the appeal is allowed. [11] Section 3 of the order is vacated. Section 4 of the order is replaced with the following provision: “The matrimonial home shall be listed for sale immediately.” [12] The appellant is entitled to costs on the appeal fixed at $7,500, inclusive of taxes and disbursements. “K. Feldman J.A.” “P. Lauwers J.A.” “Grant Huscroft J.A.” [1] Part I of the Family Law Act , R.S.O. 1990, c. F.3, which deals with equalization of net family properties, does not have an appeal provision captured by the deeming provision in s. 21.9.1 of the CJA, which directs certain final appeals from decisions of the Family Court to the Divisional Court.

COURT OF APPEAL FOR ONTARIO CITATION: Bowman v. Martineau, 2020 ONCA 330 DATE: 20200529 DOCKET: C66751 Rouleau, Hourigan and Roberts JJ.A. BETWEEN Aden Bowman personally and as executor for the estate of Shirley Bowman Plaintiffs (Respondents) and Alma Emond, Shelley Emond, Paul Studholme , Suzanne Martineau and Re/Max Hallmark Realty Limited Defendants ( Appellants ) Paul Le Vay and Stephen Aylward, for the appellants David A. Morin and Peter Reinitzer, for the respondents Heard: March 12, 2020 On appeal from the judgment of Justice Guy P. Di Tomaso of the Superior Court of Justice dated March 4, 2019, with reasons reported at 2019 ONSC 1468, and from the costs judgment dated April 4, 2019, with reasons reported at 2019 ONSC 2141 and 2019 ONSC 2328. Roberts J.A.: A. Overview [1] The appellant real estate agent and broker appeal from the judgment ordering them to pay damages to the respondent purchasers of a residential home. The trial judge ordered the appellants to pay for the costs necessary to repair water and mould damage that the respondents discovered only after their purchase due to the appellant real estate agent’s negligence. [2] The appellants do not appeal the trial judge’s finding or apportionment of liability but submit that the trial judge erred in his assessment of damages. [3] For the following reasons, I would allow the appeal, set aside judgment in respect of the damages awarded for the costs to repair the property, and remit the matter to the trial judge to determine the diminution in value of the property given its damaged state. B. BACKGROUND [4] The appellants acted both for the vendors, Alma and Shelley Emond, and the respondents on the sale of a house. The trial judge found the vendors liable to the respondents for non-disclosure and concealment of water damage. He determined that the appellants were negligent in the execution of their professional responsibilities and therefore liable to the respondents. [5] Specifically, the trial judge determined that the appellant real estate agent, Ms. Martineau, had failed to review and verify with the vendors and then the respondents the information contained in the Seller Property Information Statement (“SPIS”), the checklist of information about the property. The trial judge concluded that if she had done so, Ms. Martineau would have discovered that the property suffered from ongoing water leakage. As a result, the respondents were left without the means to find out about the ongoing roof leakage and mould problems. [6] The trial judge assessed the respondents’ damages at $450,215.35, calculated as follows: $332,706.59 for the cost to repair the property; $10,282.13 for out of pocket expenses for time and materials spent on the tearing out of the damaged portions of the house; $101,500 for the respondents’ alternative living expenses from September 2014 to July 2019; $726.63 for hydro and insurance costs thrown away; and $5,000 in general damages. He apportioned the appellants’ liability at 70% and the vendors’ liability at 30% [1] . Accordingly, judgment was granted against the appellants in the amount of $315,150.74 (70% of $450,215.35) and costs of $144,679.55. C. Issues [7] The appellants submit the trial judge erred in his assessment of the respondents’ damages as follows: 1. The trial judge erred by applying a cost of repair rather than a diminution in value measure of damages; 2. The trial judge erred in concluding that the respondents had not failed to mitigate their damages; and 3. The trial judge erred in determining that the frost heave damage was reasonably foreseeable. D. Analysis (1) The Measure of Damages (a) Applicable Legal Principles [8] The general, well-settled rule for the assessment of compensatory damages in tort actions is that, as far as damages can accomplish this, the plaintiff is entitled to be put into the position he or she would have occupied but for the injury caused by the defendant: Nan v. Black Pine Manufacturing Ltd. (1991), 80 D.L.R. (4th) 153 (B.C.C.A.), at p. 157. [9] Restoration of the plaintiff’s position should not amount to under or over compensation but only result in the amount of compensation that will make the plaintiff whole. Accordingly, limits are placed on compensation: a plaintiff can generally only recover for actual injury caused by the defendant’s conduct, and not for damages that are too remote in that they are speculative or not reasonably foreseeable: Clements v. Clements , 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 13; Deloitte & Touche v. Livent Inc. , 2017 SCC 63, [2017] 2 S.C.R. 855, at para. 77. [10] Achieving the restoration of the plaintiff’s position requires an approach that is not unnecessarily complicated or rule-ridden but responsive to the facts of each given case: James Street Hardware and Furniture Co. v. Spizziri , 1987 CanLII 4172 (Ont. C.A.), at pp. 27-28. [11] In cases where the harm to be compensated for is property damage, damages have typically been assessed either as the cost to repair the property or its resulting diminution in value. The historical common law position was that damage caused to real property was measured by the diminution in the value of the land: C.R. Taylor (Wholesale) Ltd. and others v. Hepworths Ltd. , [1977] 2 All E.R. 784 (Q.B.) at pp. 790-91, citing Jones v. Gooday (1841), 8 M. & W. 146. However, later English cases held that the cost of reinstatement, or repair, could be awarded in an appropriate case: Dominion Mosaics and Tile Co. Ltd. and another v. Trafalgar Trucking Co. Ltd. and another , [1990] 2 All E.R. 246 (C.A.), at pp. 249-50; Hepworths , at p. 791, citing Harbutt’s Plasticine Ltd. v. Wayne Tank and Pump Co. Ltd. , [1970] 1 All E.R. 225 (C.A.). These later authorities have been received into the law of this country: James Street Hardware ; Nan , at pp. 157-158 . The application of one or the other of these approaches is governed by the specific facts of the particular case and the further regulating factors of causation, reasonableness and proportionality that I have already referenced. [12] In professional negligence cases involving real property, like the present, careful attention must be paid to the causal link between the injury suffered and the act of negligence. Depending on the facts, the negligence may not actually have caused property damage, rendering the case law concerning the assessment of damages for harm to property inapplicable. [13] In some cases, the professional negligence will actually have caused the defect in the property or will have caused the plaintiff to lose the right to recover for that defect. For example, in Kienzle v. Stringer (1981), 35 O.R. (2d) 85 (C.A.), leave to appeal refused, [1982] S.C.C.A. No. 252, the solicitor’s negligence in conveying the property caused a defect in title and the plaintiff was entitled to recover the cost of putting the title in good order. In Jarbeau v. McLean, 2017 ONCA 115, 410 D.L.R. (4th) 246, the solicitor negligently failed to commence an action against an engineer who negligently certified the defective construction of a new home. But for the negligence, the plaintiffs would have recovered the cost to repair the property against the negligent engineer, whose negligence had, in turn, caused the defect in the property. Finally, in Tabata v. McWilliams et al. (1982), 40 O.R. (2d) 158 (C.A.), the solicitor negligently failed to warn the client, who was purchasing a home, of the need for an occupancy permit prior to occupation of the property. But for the negligence, the plaintiff could have insisted on an occupancy permit being obtained by the vendors prior to closing, which would have “in all probability” involved the repair of the property . Given these cases involve defects in property, the case law concerning the assessment of damage to property applies. [14] In other cases, however, the professional negligence will not have caused damage to property, but rather will have merely caused the plaintiff to enter into a transaction they would otherwise have avoided. For example, in Messineo et al. v. Beale (1978), 20 O.R. (2d) 49 (C.A.), a solicitor negligently failed to discover and report a pre-existing defect in the vendor’s title but did not cause the defect. In Toronto Industrial Leaseholds Ltd. v. Posesorski (1994), 119 D.L.R. (4th) 193 (Ont. C.A.), a solicitor negligently failed to report the existence of an option to rent the purchased property at below current market rents but did not bring the option into existence. Finally, in Krawchuk v. Scherbak , 2011 ONCA 352, 106 O.R. (3d) 598, leave to appeal refused, [2011] S.C.C.A. No. 319, the real estate agent negligently failed to take any steps to inquire into the accuracy of the vendors’ representations concerning the condition of the property, but did not cause its poor condition. In these cases, damages were assessed by looking to the overpayment paid by the plaintiff and their consequential damages, rather than the cost to repair or remove the defect. (b) The Trial Judge Erred by Mischaracterizing the Nature of the Harm Suffered by the Respondents [15] Relying on the approach followed by this court in Messineo and Posesorski , the appellants submit that the trial judge erred in measuring damages as the cost to repair the premises because the appellants’ professional negligence did not cause the water and mould damage to the property. [16] The respondents argue that diminution of value is not the appropriate measure of damages. In their submission, in the case of the loss of a family home, where there is a reasonable desire to rebuild, cost to repair provides the appropriate measure of damages. [17] I agree with the appellants’ position. The difficulty with the respondents’ argument is that it conflates the cause in fact of their damages with the reasonableness of the quantum. In my view, the trial judge erred in his approach to causation. Specifically, the trial judge mischaracterized the respondents’ loss flowing from the appellants’ negligence and misinterpreted this court’s decision in Jarbeau. [18] The trial judge properly concluded that but for the appellants’ negligence, the respondents would not have entered into the agreement of purchase and sale to buy the house. This finding was supported by the respondents’ pleading and Mr. Bowman’s evidence at trial. It is not contested on appeal. [19] However, the trial judge erred by mischaracterizing the respondents’ resulting loss as their entitlement to a house free of mould and water damage. He also misinterpreted Jarbeau as standing for the general proposition that “cost to repair is a more appropriate measure of damages” when assessing loss related to defective property. These errors led the trial judge to reject the diminution in value calculation and apply the cost to repair approach without considering whether the latter measure of damages compensated for the injury actually caused by the appellants’ negligence. [20] Referring to Jarbeau , the trial judge explained his reasoning as follows: I reject the diminution in value approach for the following reasons. This approach fails to take into account the purpose of damages in a tort claim – to ensure that “the damages awarded to a plaintiff should put him or her in the same position as they would have been in had they not sustained the wrong for which they are receiving compensation or reparation.” In the context of property loss matters, where a purchaser believes it had purchased a home free of defects, “the fairest measure of damages is that which would provide the [plaintiffs] with what they bargained for – a home free of defects. ” [Emphasis added.] [21] Jarbeau does not stand for the general proposition espoused by the trial judge that cost to repair invariably represents “the fairest measure of damages” regardless of the causal link. Jarbeau was a solicitor’s negligence action. The plaintiffs claimed damages against their solicitor for failing to commence an action within the requisite limitation period against the engineer who negligently certified the design and construction of the plaintiffs’ brand-new, but defective home. The plaintiffs were entitled to be put into the position they would have occupied had the action been commenced in time against the negligent engineer. In their proposed action against the negligent engineer, the plaintiffs would have been entitled to be put into the position they would have occupied had the engineer not been negligent, namely, they would have received the new, defect-free house for which they had bargained. It was in those particular circumstances that this court upheld the cost of reinstatement as the reasonable and proportionate measure of damages. [22] In the present case, the trial judge erroneously equated the respondents’ loss with the loss of a house free of mould and water damage. This reasoning is reflected in the trial judge’s observations that: “No evidence was tendered at trial suggesting that damages calculated on a diminution in value basis would permit [the respondents] to obtain a home similar to the one they purchased that is free of mould and water damage ” (emphasis added). However, the loss that the respondents suffered as a result of the appellants’ negligence was not property loss of this nature. [23] The respondents’ loss consisted of entering into a transaction to purchase a house damaged by water and mould. The appellants’ negligent provision of professional services caused the respondents to enter into a transaction that they would not have otherwise undertaken. But the appellants did not cause the water and mould damage to the property. In other words, even if the appellants had not been negligent, the respondents would still not have received a water and mould-free property; they would merely have avoided this bargain. This takes this case outside the scope of Jarbeau , Nan , and other cases where the negligence was causally related to property damage. [24] As the appellants’ wrong did not cause the property defect, the respondents are not entitled to demand what they could never have had even if the appellants had not been negligent, namely, a house free of mould and water damage: Posesorski , at p. 210; Avrom Evenchick (Trustee of) v. Ottawa (City) (1998), 111 O.A.C. 132 (C.A.) , at para. 12; Samson v. Lockwood , 1998 CanLII 1920 (Ont. C.A.) , at p. 13. They are only entitled to damages to compensate them for entering into a bad transaction they would have otherwise avoided. These damages will include their overpayment for the defective property, namely, its diminution in value. [2] [25] I do not accept the respondents’ additional argument that the cost of repair is the default method for ascertaining damages in this case. Awarding cost to repair would over-compensate the respondents and therefore not put them in the position they would have occupied but for the appellants’ negligence: Evenchick , at para. 12; Esso Petroleum Co. Ltd. v. Mardon , [1976] 2 All E.R. 5 (C.A.), at p. 16; see also Downs and another v. Chappell and another , [1996] 3 All E.R. 344 (C.A), at p. 358. [26] As a result, the trial judge’s cost to repair approach to damages that awarded the equivalent of a house free of mould and water damage to the respondents was not the true measure of the respondents’ loss caused by the appellants’ negligence and must be set aside. (c) The Assessment of Damages Must be Remitted [27] While I conclude that the cost to repair the home was not an appropriate measure of damages in this case, it is not possible on the record before us to assess the damages flowing to the respondents from the appellants’ negligence. There is, for example, no admissible evidence concerning the value of the property given the mould and water damage, which is necessary to calculate the magnitude of overpayment. The trial judge rejected the evidence of the real estate expert called by the appellants and the appellants have not challenged that ruling on appeal. [28] In consequence, I would remit the assessment of damages to the trial judge for his determination, as well as the case management of what further evidence and submissions from the parties will be required for the determination of this issue. (2) Mitigation [29] The appellants argue that the trial judge erred in rejecting their submission that the respondents failed to mitigate their damages. Specifically, they say the respondents should have simply walked away from the property and the mortgage. [30] I disagree. [31] The respondents were required to make reasonable efforts to mitigate their damages. It is the appellants’ onus to demonstrate they failed to do so: Janiak v. Ippolito , [1985] 1 S.C.R. 146, at p. 163. I see no error in the trial judge’s conclusion that the appellants did not meet that onus. The trial judge’s determination of the mitigation issue was reasonable in the circumstances of this case. His conclusion is therefore entitled to deference on appeal. [32] There was no evidence establishing that the respondents could have sold or walked away from the property, or that it was reasonable for them to take either course in their circumstances, which included their straitened finances and obligations under the vendor-take-back mortgage. Even accepting the appellants’ real estate expert evidence of property value at $165,000, the respondents would not have been able to recoup enough money from a sale to repay the vendor-take-back mortgage. The unchallenged evidence at trial showed that the respondents were in difficult financial circumstances: they could not afford to buy another property, remediate this property, or maintain the property while paying the mortgage and renting alternative living accommodations. As a result, it was not unreasonable for them to retain the property and seek damages from the appellants. (3) Frost Heave Damage [33] The appellants submit that the trial judge erred in his consideration of this issue in that the trial judge made inconsistent findings concerning the question of whether the frost heave damage was reasonably foreseeable. Specifically, the appellants say that the trial judge erred by determining that while the respondents could not have foreseen the cause of the heaving of the foundation, the frost heave damage was a reasonably foreseeable consequence of the negligence. [34] I do not accept these submissions. In my view, the appellants are conflating the trial judge’s findings on mitigation with those on remoteness of damages. [35] At trial, the appellants argued that the frost heave damage was too remote and not causally connected to the appellants’ negligence; and, further, that the respondents had failed to mitigate their damages. A fair reading of the trial judge’s reasons shows that the trial judge dealt with both these issues. [36] With respect to the issue of mitigation, the trial judge determined that it was fair and reasonable for the respondents to shut down the house rather than reinstate a heating system that they could not afford to operate in order to heat a house that was not insulated because of the gutting required by the water and mould damage. He also found that it was reasonable for the respondents to follow the measures recommended by Mr. Korner, a professional engineer, to try to protect the house. As a result, he found that the appellants had failed to satisfy their onus to demonstrate that the respondents did not mitigate their damages. [37] Turning next to the trial judge’s findings concerning causation and remoteness of damages, he found that “it is foreseeable that a home rendered inhabitable by mould and water damage cannot be lived in, that a home not lived in will not be heated and that an unheated home subjected to the effects of freezing temperatures during the winter months could suffer from floor heaving”. In consequence, he determined that “the basement floor heaving is not so removed as to be unrecoverable”. [38] It is clear that the trial judge concluded that the frost heave was reasonably foreseeable and hence the necessity for the respondents’ efforts to protect the empty house’s foundation with straw as recommended by their engineering expert. What was not foreseeable, and therefore not a failure to mitigate on the part of the respondents, was that the recommended protective steps would not be effective. The trial judge effectively concluded that the failure of the recommended measures to adequately protect the foundation should not be visited against the respondents as a failure to mitigate their damages. His mitigation finding was separate from the trial judge’s findings respecting causation and remoteness. [39] I see no inconsistencies or errors in the trial judge’s findings concerning the issues of mitigation, causation and remoteness of the frost heave damage. They were available to him on the record. (4) Conclusion [40] Awarding the cost of repair was an error in this case because the defect in the property did not result from the negligence. This head of damage should be replaced with the diminution in value of the property as a result of the now-revealed defects. In light of my conclusions above that the respondents have not failed to mitigate their damages and that the frost heave damage is a reasonably foreseeable consequence of being negligently advised into this transaction, the relevant measure is the difference between the purchase price paid and the actual value of the property in its damaged state at the time of trial, including as a result of the frost heaving. E. Disposition [41] Accordingly, I would allow the appeal in part and set aside the trial judge’s March 4, 2019 judgment in relation to his award of costs to repair against the appellants in the amount of $232,894.61. The balance of the trial judge’s award is not affected by this result. I would also set aside his April 4, 2019 judgment of costs, fixed in the amount of $144,679.55, against the appellants. [42] I would remit to the trial judge the assessment of the respondents’ damages arising from the overpayment and diminution in value of the property caused by the appellants’ negligence and the issue of the costs from the first trial. [43] In my proposed disposition of the appeal, since the appellants would succeed on only their first ground of appeal, the results would be mixed, and I would make no order as to costs of the appeal. Released: May 29, 2020 (“P.R.”) “L.B. Roberts J.A.” “I agree. Paul Rouleau J.A.” “I agree. C.W. Hourigan J.A.” [1] The respondents and the vendors entered in to a proportionate share agreement in settlement of the respondents’ claim against them. [2] These damages are not limited to overpayment. As reflected in the portion of the trial judge’s damages award that is not challenged on this appeal, there may be various consequential losses suffered as a result of being wrongfully advised into the transaction: Posesorski , at p. 40 .

COURT OF APPEAL FOR ONTARIO CITATION: Deschenes v. Lalonde, 2020 ONCA 304 DATE: 20200520 DOCKET: C66312 van Rensburg, Paciocco and Thorburn JJ.A. BETWEEN Irene Deschenes Plaintiff (Respondent) and Pauline Lalonde as estate trustee with a will (“Executrix”) of the Estate of Charles H. Sylvestre, the Roman Catholic Episcopal Corporation of the Diocese of London in Ontario , the Estate of John Christopher Cody, the Estate of Gerald Emmett Carter, John Michael Sherlock , St. Clair Catholic District School Board, the Sarnia Police Force, John Smith, J. Torrance, Le Conseil scolaire de district des écoles catholiques du Sud-Ouest, the Sisters of Charity of Ottawa (also known as Grey Nuns of the Cross – “Soeurs Grises de la Croix”) and Anthony Daniels Defendants ( Appellants ) John K. Downing and Brian Whitwham, for the appellants Loretta P. Merritt, for the respondent Heard: November 19, 2019 On appeal from the judgment of Justice David Aston of the Superior Court of Justice, dated November 27, 2018, with reasons reported at 2018 ONSC 7080. van Rensburg J.A.: A. OVERVIEW [1] This is an appeal from a judgment rescinding and setting aside a settlement agreement and order dismissing the settled action. The respondent, Irene Deschenes, alleged that she was sexually assaulted as a child by a priest in the early 1970s. She sued the priest and the appellant, the Roman Catholic Episcopal Corporation of the Diocese of London in Ontario (the “Diocese”), claiming vicarious liability for the priest’s actions, and negligence in failing to prevent the assaults. The Diocese maintained, and at the time there was no reason to believe otherwise, that it had no knowledge of the priest’s prior abuse of others until 1989, many years after the assaults on Ms. Deschenes had ceased. Armed with this knowledge, and the fact that the law respecting vicarious liability was uncertain, Ms. Deschenes settled her action in 2000 for a payment by the Diocese of $100,000. [2] In 2006, it came to light that in 1962, the Diocese had received police statements alleging that the priest had assaulted three girls well before Ms. Deschenes was assaulted. In 2008, Ms. Deschenes commenced a new action against the Diocese and others, claiming rescission of the settlement agreement and other relief. The parties moved for summary judgment to determine the enforceability of the settlement agreement entered into in 2000. [3] For the reasons that follow, I would dismiss the appeal. Briefly, although the motion judge’s analysis at times confounded the terminology of misrepresentation and mistake, the settlement agreement was properly rescinded for innocent misrepresentation. The motion judge’s conclusions that there was a misrepresentation by the Diocese, that it was material, and that it was relied on by Ms. Deschenes in concluding the settlement, as well as his conclusion that it would be fair and just to rescind the settlement agreement in the circumstances, reveal no error. B. FACTS [4] Ms. Deschenes was sexually assaulted by Charles Sylvestre when she was a student at St. Ursula Catholic School and a member of St. Ursula’s Parish in Chatham, Ontario, which falls within the jurisdiction of the Diocese. Father Sylvestre had been ordained as a Roman Catholic priest in or about 1948. He retired in 1993. In 2006, Father Sylvestre pleaded guilty to having sexually assaulted 47 girls under the age of 18, including Ms. Deschenes. [5] In 1996, Ms. Deschenes commenced an action in the Ontario Court (General Division) (the “First Action”) against Father Sylvestre and the Diocese. She claimed damages for the sexual assaults committed against her by Father Sylvestre between 1970 and 1973. Among other things, she pleaded that the Diocese was both vicariously liable for Father Sylvestre’s actions and that it was negligent in failing to protect her from Father Sylvestre when it knew or ought to have known that he was or might be assaulting members of the church. [6] Father Sylvestre’s Statement of Defence denied the allegations of sexual assault. The Statement of Defence of the Diocese did not admit any of the allegations in the Statement of Claim and denied direct and vicarious liability for Father Sylvestre’s alleged actions. In particular, the Diocese denied “that it had direct, indirect, actual or constructive knowledge of the alleged sexual propensities or acts of Sylvestre” and stated that it had “no direct, indirect, actual or constructive knowledge of the allegations made by the plaintiffs until October 1992, well after the alleged assaults had ceased”. [7] Father Anthony Daniels (now Bishop Daniels) was the deponent of the affidavit of documents on behalf of the Diocese and was examined as its representative for discovery in the First Action. Father Daniels confirmed that he had conducted a search of the records of the Diocese and made diligent inquiries to determine when it first learned about the allegations against Father Sylvestre. He denied that anyone in the Diocese had any idea of the events alleged by Ms. Deschenes, and he specifically stated that no one at the Diocese had reason to believe that there were problems with Father Sylvestre until 1989, when a fellow priest raised concerns about his possible alcohol abuse. [8] The parties attended a mediation in the First Action. In its mediation brief, the Diocese asserted the following: There were never any complaints about Father Sylvestre, or reason to believe there could be any problems with him or his behaviour prior to 1989 when a fellow priest raised concerns with the Bishop about possible alcohol abuse by Father Sylvestre. He was immediately removed from the parish where he was then serving, and sent to a treatment centre. [9] Shortly after the mediation, the parties agreed to settle the First Action. The relevant terms of the settlement were that: (1) the Diocese would pay Ms. Deschenes $100,000; (2) Father Sylvestre would pay the Diocese $50 per month until his death; (3) Ms. Deschenes would execute a full and final release in favour of Father Sylvestre and the Diocese (the “Release”); and (4) Ms. Deschenes would obtain an order dismissing the action. Ms. Deschenes executed the Release, received her payment, and the First Action was dismissed on consent by order dated October 16, 2000. [10] In late 2006, certain information came to light: on January 17, 1962, three girls had complained to the Sarnia Police Service that they had been sexually assaulted by Father Sylvestre, and each had provided a statement to the police to this effect. The police, who took no action against Father Sylvestre, provided copies of the statements to Monsignor Cook, of the Catholic Social Services in Sarnia, who forwarded them to the then bishop of the Diocese, Bishop Cody. Bishop Cody passed away suddenly in December 1963, apparently without having told anyone about the police statements. Between January 1962 and January 1963, Father Sylvestre was on a leave of absence in Roxboro, Québec. The police statements were discovered in 2006 by the executive assistant of the bishop of the Diocese at the time, in a filing cabinet where they had been misfiled with old accounting records. Shortly thereafter, copies of the statements were sent to all lawyers representing plaintiffs with outstanding claims against Father Sylvestre, including Ms. Deschenes’ former counsel. [11] As a result of receiving this information, Ms. Deschenes commenced an action (the “Second Action”) against the Diocese and others in December 2008, seeking to rescind her settlement of the First Action and claiming damages against the Diocese for, among other things, vicarious liability for Father Sylvestre’s assault, and negligence in failing to prevent the assaults. [12] Ms. Deschenes’ position in the Second Action was that she would never have settled the First Action on the terms she did had she known that the Diocese had information about Father Sylvestre’s prior abuse of children at the time she was assaulted. [13] Eventually, the parties brought competing motions for summary judgment. The appellants moved to dismiss the Second Action on the basis that it was barred by the Release. Ms. Deschenes moved for a declaration rescinding or setting aside the Release and the related order giving effect to the settlement. Ms. Deschenes also sought summary judgment on the issue of liability, leaving damages as the only outstanding issue in the Second Action. Judgment was granted in Ms. Deschenes’ favour. [14] The appellants assert that the motion judge erred in rescinding the settlement agreement. They do not appeal the declaration of vicarious liability, which was made on consent. C. DECISION OF THE MOTION JUDGE [15] The motion judge began his reasons by recognizing, at para. 2, the “well-established public policy argument favouring finality in litigation”, and that “[s]ettlement agreements and associated releases ought to be enforced unless enforcement would create a real risk of injustice.” [16] The motion judge reviewed the evidence of the Diocese in the context of the First Action, including its denial that it had failed to supervise Father Sylvestre, and the statements on discovery and in the Diocese’s mediation brief stating that it had no knowledge or reason to believe there were problems with Father Sylvestre’s behaviour nor had there been any complaints. He then described the terms of the parties’ settlement and the events that precipitated the Second Action, namely the discovery of the police statements in 2006 and their subsequent disclosure to Ms. Deschenes’ former counsel. [17] The motion judge explained that actual or constructive knowledge on the part of the Diocese was an essential part of Ms. Deschenes’ negligence claim. The motion judge summarized Ms. Deschenes’ legal position at the time as follows: Ms. Deschenes’ vicarious liability claim was problematic because an employer was generally only vicariously liable if the employee’s conduct was within the scope of their employment. He further noted that claims against non-profit organizations were even less likely to succeed: at para. 11. [18] The motion judge considered the affidavit evidence of Ms. Deschenes and her former counsel, who both asserted that Ms. Deschenes would not have settled as she did in the fall of 2000 had they known about the 1962 police statements. He referred to Ms. Deschenes’ position that the representation by the Diocese that it had no knowledge of Father Sylvestre’s sexual abuse until 1989 constituted a misrepresentation of a material fact that she relied on in settling her claim. [19] Citing Guarantee Co. of North America v. Gordon Capital Corp. , [1999] 3 S.C.R. 423, at para. 47, the motion judge noted that rescission would be available as an equitable remedy, even if the misrepresentation was innocent, provided that the misrepresentation was “material”, “substantial” or “[went] to the root of the contract”. He also cited Buccilli v. Pillitteri , 2012 ONSC 6624, 84 E.T.R. (3d) 208, at paras. 173-75, aff’d 2014 ONCA 432, 96 E.T.R. (3d) 6, as support for the proposition that reliance only requires that the misrepresentation was an influential part of Ms. Deschenes’ decision to settle. [20] The motion judge stated, at para. 14, that he agreed with Ms. Deschenes’ counsel that the misrepresentation in this case “cannot be regarded as an ‘innocent misrepresentation’ as the law defines it”. He did not question the veracity of Father Daniels’ statement under oath that he had done a diligent search of the Diocese’s records and found nothing to alert the Diocese to Father Sylvestre’s sexual abuse of young girls before 1989. However, he stated that the Diocese is a corporate body, that Bishop Cody knew of the police statements in 1962, and he agreed with Ms. Deschenes’ counsel that “Father Daniels’ ignorance of those police reports in 2000 is not the ignorance of the Diocese because Bishop Cody’s knowledge in 1962 or 1963 is the knowledge of the Diocese”: at para. 14. The motion judge further noted that “for the same reason, the misrepresentation cannot be considered a mutual or common mistake” but is “a unilateral mistake by the Diocese”: at para. 15. These statements by the motion judge play a central role in the appellants’ arguments on appeal and will be discussed in more detail in the balance of these reasons. [21] The motion judge, at para. 16, characterized the misrepresentation as a “unilateral mistake” and considered whether this mistake was “material” to the settlement and relied on by Ms. Deschenes. [22] The Diocese had submitted that the police statements were not material to the settlement because the settlement reflected the same damages Ms. Deschenes would have received had the settlement been based in negligence, and the June 1999 decision of the Supreme Court in Bazley v. Curry , [1999] 2 S.C.R. 534 had established the liability of the Diocese on the basis of vicarious liability. The motion judge described Bazley as a “landmark case in extending vicarious liability to non-profit organizations”, and then referred to a decision released the same day, Jacobi v. Griffiths , [1999] 2 S.C.R. 570, where the Supreme Court concluded that vicarious liability would not be imposed when the only evidence was in relation to sexual assaults that took place off-site and outside working hours. The motion judge noted that in John Doe v. Bennett (2000), 190 Nfld. & P.E.I.R. 277 (Nfld. S.C.) , a diocese and three of its bishops had been found vicariously liable, but that this decision had been appealed and was only affirmed by the Supreme Court in March 2004. The motion judge observed that “[t]he decisions in Bazley and Bennett provided the plaintiff with strong precedents in her favour, but not necessarily decisive precedents”: at para. 19. The motion judge also referred to the fact that, although the Diocese indicated in 1999 that it would be accepting liability on the basis of vicarious liability, it never did so formally, and had continued to deny such liability. He stated that “the vicarious liability of the Diocese in this case was not a certainty in the settlement with the plaintiff”: at para. 20. [23] The motion judge referred to Ms. Deschenes’ motivations in settling the First Action, which were informed by the relevant case law at the time and the position of the Diocese. He concluded that what he characterized as the “unilateral mistake of the Diocese” was relied on by Ms. Deschenes. He accepted her evidence, and that of her former counsel, that the settlement reflected a “liability discount”, and that Ms. Deschenes’ claim was compromised because of the apparent inability to prove the prior knowledge of the Diocese as an essential element of the negligence claim and the remaining uncertainty of the law regarding vicarious liability: at paras. 21-22. [24] The motion judge concluded, at para. 23, that the failure to disclose the 1962 police statements was a “material misrepresentation” relied on by Ms. Deschenes in her decision to settle. [25] Finally, the motion judge turned to the discretionary nature of the remedy of rescission and policy considerations favouring the finality of settlements. In this context, he referred to what had come to light since the settlement of Ms. Deschenes’ claim in 2000 regarding the cover-up policy of the Diocese in the 1960s and 1970s with respect to allegations of misconduct by its priests. He recognized that the Diocese had dramatically changed its ways in Southwestern Ontario and had genuinely tried to make amends. Nevertheless, he concluded, at para. 24, that there were overarching considerations of fairness and justice that favoured Ms. Deschenes and that it would be wrong in the circumstances of this case to protect the settlement. D. ISSUES [26] The appellants raise the following issues on this appeal: 1. Did the motion judge err in rescinding the settlement agreement on the basis of unilateral mistake? 2. Did the motion judge err in his assessment of materiality? 3. Did the motion judge err in not giving effect to the “finality of settlements” and in relying on findings in another action in deciding whether to grant the equitable remedy of rescission? E. ANALYSIS (1) The relevant legal principles [27] I begin by setting out the relevant legal principles. The point of departure is that there is a strong presumption in favour of the finality of settlements: Tsaoussis (Litigation Guardian of) v. Baetz (1998), 165 D.L.R. (4th) 268 (Ont. C.A.), at paras. 15-16, leave to appeal refused, [1998] S.C.C.A. No. 518; Mohammed v. York Fire & Casualty Insurance Co. (2006), 79 O.R. (3d) 354 (C.A.), at para. 34, leave to appeal refused, [2006] S.C.C.A. No. 269. A settlement agreement will not be rescinded on the basis of information that has come to light following the settlement that indicates that a party has entered into an improvident settlement. As the motion judge recognized here, “it is not enough to revisit a settlement decision based on the better vision of hindsight”: at para. 2. [28] A settlement agreement, as a contract, may be rescinded on the basis of misrepresentation. The interest in the finality of settlements will not “trump” the need to rescind a settlement agreement in such cases. In Radhakrishnan v. University of Calgary Faculty Association , 2002 ABCA 182, 215 D.L.R. (4th) 624, at paras. 30, 43, Côté J.A. stated that “[t]he recognized ways to upset a settlement contract are the same as those to upset any other contract”, and that “[in a settlement] [i]nterests of finality prevail, unless there are contractual problems such as fraud, misrepresentation, duress, undue influence, unconscionability, or mutual or unilateral mistake”. See also Teitelbaum v. Dyson (2000), 7 C.P.C. (5th) 356 (Ont. S.C.), at para. 38, aff’d (2001), 151 O.A.C. 399 (C.A.), leave to appeal refused, [2001] S.C.C.A. No. 532. [29] The equitable remedy of rescission is available for a false or misleading representation that induces a contract: Guarantee Co. of North America , at para. 39. Rescission requires proof that the misrepresentation was material and was relied on by the party seeking to rescind the contract: 1323257 Ontario Ltd. o/a “Hyundai of Thornhill” v. Hyundai Auto Canada Corp . (2009), 55 B.L.R. (4th) 265 (Ont. S.C.), at para. 71; Barclays Bank v. Metcalfe & Mansfield , 2011 ONSC 5008, 82 C.B.R. (5th) 159, at paras. 156-59, aff’d 2013 ONCA 494, 365 D.L.R. (4th) 15, leave to appeal refused, [2013] S.C.C.A. No. 374. To be material, a misrepresentation must relate to a matter that would be considered by a reasonable person to be relevant to the decision to enter the agreement, but it need not be the sole inducement for acting: York University v. Makicevic and Brown , 2016 ONSC 3718, 33 C.C.E.L. (4th) 26, at para. 145, aff’d 2018 ONCA 893, 51 C.C.E.L. (4th) 30, leave to appeal refused, [2019] S.C.C.A. No. 134. Whether a contracting party did in fact rely on the misrepresentation, at least in part, to enter into the agreement is a “question of fact to be inferred from all the circumstances of the case and evidence at trial”: Barclays Bank , at para. 159. [30] The remedy of rescission is available even if the misrepresentation was made innocently, that is, by a party who believed it was true: “Where rescission is claimed it is only necessary to prove that there was misrepresentation. Then, however honestly it may have been made, however free from blame the person who made it, the contract, having been obtained by misrepresentation, cannot stand”: Derry v. Peek (1889), [1886-90] All E.R. Rep. 1 (H.L.), at p. 13, per Lord Herschell. In Kingu v. Walmar Ventures Ltd ., [1986] B.C.J. No. 597 (C.A.), McLachlin J.A. (as she then was) set out a list of requirements for rescission of a contract on the basis of innocent misrepresentation. In addition to the requirement of a positive misrepresentation of an existing fact that induced the plaintiff to enter into the contract, in order for rescission to be granted, the plaintiff must have acted promptly upon discovery of the misrepresentation to disaffirm the contract, no third party may have acquired rights for value as a result of the contract, and it must be possible to restore the parties substantially to their pre-contract position: Kingu , at para. 15. [31] It is apparent from this summary of the legal principles that, in determining whether the settlement agreement could be rescinded for innocent misrepresentation, the motion judge had to consider: (1) whether the Diocese made a misrepresentation; (2) whether the misrepresentation was material to the settlement; and (3) whether Ms. Deschenes had relied on the misrepresentation in settling the First Action on the terms she did. The record before this court indicates that while questions of delay, third-party rights, and the ability to restore the parties to their pre-settlement positions were pleaded in the appellants’ Statement of Defence, they were not pressed at the hearing of the motions. Nor did they figure in the appeal. [32] As noted by Côté J.A. in Radhakrishnan , a settlement agreement may also be rescinded on the basis of unilateral mistake. I will explain why I reject the appellants’ submission that the motion judge, after finding a “unilateral mistake by the Diocese”, erred in this case in rescinding the settlement agreement on this basis. The law on rescission for unilateral mistake is that a party may seek rescission of a contract for its own unilateral mistake only where the mistake goes to a material term of the contract, where the other party knows or ought to know of the mistake, and where it would be unconscionable for the second contracting party to rely on the contract: 256593 B.C. Ltd. v. 456795 B.C. Ltd . (1999), 171 D.L.R. (4th) 470 (B.C.C.A.), at p. 479. See also Gerald H. Fridman, The Law of Contract in Canada , 6th ed. (Toronto: Thomson Reuters Canada Limited, 2011), at pp. 252-54; Toronto Transit Commission v. Gottardo Construction Limited et al. (2005), 257 D.L.R. (4th) 539 (Ont. C.A.), at para. 30, leave to appeal refused, [2005] S.C.C.A. No. 491. The motion judge did not refer to these principles, and for good reason. Although the motion judge characterized the misrepresentation as a “unilateral mistake of the Diocese”, he did not, nor could he have, rescinded the settlement agreement for unilateral mistake, where the only mistake he found was that of the Diocese, not Ms. Deschenes. Rather, the framework he applied was that of rescission for innocent misrepresentation. [33] I turn now to consider in detail the appellants’ arguments based on the law of unilateral mistake. (2) The motion judge did not err in applying the law of unilateral mistake; he applied the law of innocent misrepresentation [34] The appellants assert that the motion judge erred in law when he rescinded the settlement agreement based on unilateral mistake. Referring to the elements that are required to rescind an agreement for unilateral mistake, the appellants contend that: (1) the Diocese had no actual or constructive knowledge of the mistake at the time it was made; and (2) there was no evidence of unconscionable conduct on the part of the Diocese. [35] On the knowledge point, the appellants argue that the motion judge erred in imputing knowledge of the 1962 police statements to the Diocese at the time of the settlement when, at para. 14, he agreed with Ms. Deschenes’ counsel that “Father Daniels’ ignorance of those police reports in 2000 is not the ignorance of the Diocese because Bishop Cody’s knowledge in 1962 or 1963 is the knowledge of the Diocese”. The appellants submit that because Bishop Cody (who was the only person in authority who knew about the statements) had since passed away, although the statements existed, no “directing mind” of the Diocese knew about the police statements when the settlement was concluded in 2000. Without actual or constructive knowledge on the part of the Diocese that there was a mistake, there is no basis for rescinding the settlement agreement on the grounds of unilateral mistake. [36] According to the appellants, the imputation of knowledge requires the application of the corporate identification doctrine, which was ignored by the motion judge. The appellants refer to the Supreme Court decision in Canadian Dredge & Dock v. The Queen , [1985] 1 S.C.R. 662, which addresses the circumstances in which, under the corporate identification doctrine, liability will be attributed to a corporation for a mens rea offence, as well as certain civil authorities where the corporate identification doctrine was applied to causes of action requiring knowledge or intention on the part of a corporate defendant. The appellants submit that the motion judge erred in attributing Bishop Cody’s knowledge in the 1960s to the Diocese some 40 years later. [37] The corporate identification doctrine, which applies when liability is sought to be attributed to a corporation for the wrongdoing of an individual, has no application here. Rescinding the settlement agreement on the basis of an innocent misrepresentation does not require proof of a crime, or even of an intentional wrong by the Diocese that might require an inquiry into whose intentional misconduct could be attributed to the Diocese to found liability. [38] It is unclear why the motion judge made the statement he did at para. 14 about the knowledge of Bishop Cody in 1962 and 1963 being the knowledge of the Diocese in 2002. Perhaps it was simply a rejection of the argument – made obliquely on appeal as well – that the institutional memory of the Diocese was somehow lost when Bishop Cody died without having told anyone about the police statements. [39] Whether or not the motion judge, at para. 14, imputed knowledge to the Diocese ultimately had no bearing on his decision to rescind the settlement agreement. The appellants’ argument on this point is based on the assumption that the motion judge rescinded the settlement agreement for unilateral mistake. However, as I will explain, the motion judge did not, and could not have, rescinded the settlement agreement on this basis. Instead, the settlement agreement was properly rescinded for innocent misrepresentation. [40] Rescission based on innocent misrepresentation does not require a finding that the Diocese had actual or constructive knowledge that the representation was false at the time it was made. An innocent misrepresentation is one that is made without knowledge that it is wrong: see Barclays Bank , at para. 156. [41] I note here that, although the motion judge said that he accepted that the misrepresentation was not “innocent”, later in his reasons, he stated that he was “mindful that the evidence of Father Daniels in the original proceeding reflected an honest, albeit mistaken belief”: at para. 24. Regardless of the motion judge’s characterization of the misrepresentation, the motion judge properly found that the requirements for rescinding the settlement agreement on the basis of misrepresentation had been made out: the Diocese made a misrepresentation; the misrepresentation was material to the settlement; and the misrepresentation was relied on by Ms. Deschenes. [42] The appellants’ second argument also assumes that the motion judge rescinded the settlement agreement for unilateral mistake. The appellants submit that unconscionable conduct had to be established for the motion judge to rescind the settlement agreement on the basis of unilateral mistake, and that the finding that Father Daniels had an honest but mistaken belief precluded such a finding. [43] The appellants insist that, because of the motion judge’s use of the language of mistake on a number of occasions in his reasons, his decision to rescind the settlement agreement must have been based on the law of unilateral mistake. For example, at para. 15, the motion judge stated that “the misrepresentation cannot be considered a mutual or common mistake”, and that it was a “unilateral mistake by the Diocese”. Moreover, at para. 16, he identified the question as whether “the unilateral mistake of the Diocese was relied upon by the plaintiff”. [44] I agree that the motion judge, at times, confused the language of mistake and misrepresentation and described the misrepresentation as a “unilateral mistake by the Diocese”. The Diocese’s misrepresentation could be viewed as a unilateral mistake in the sense that it was a one-sided error made on the part of the Diocese, but not in the legal sense of the term. Despite this confusion, the motion judge only applied the framework of rescission for innocent misrepresentation, and made the findings that were necessary to rescind the settlement agreement on this basis. [45] As I have previously noted, a contracting party may obtain rescission on the basis of its own unilateral mistake where the mistake goes to a material term of the contract (something that goes to the root of the contract, or is fundamental to the contract), where the other party knows or ought to know of the mistake, and where it would be unconscionable for the second contracting party to rely on the contract. Indeed, this is the law that the appellants rely on in this appeal. There is no question that where there has been a unilateral mistake by the innocent party to a contract, a contract can be rescinded only if the non-mistaken party knew, or ought to have known, of the innocent party’s mistake. The core element of knowledge, however, is that of the non-mistaken party. Professor Fridman makes this clear when he says, at pp. 252-54: If the party not in error knows or ought to know of the other’s mistake, any purported agreement between them may not be enforceable in equity … on the ground that equity will not permit a party to take advantage of the error in offering or accepting by the other party. The rationale of such cases is that equity penalizes unconscionable conduct, whether it actually constitutes fraud or involves something amounting to fraud in the view of equity. It must be unfair, unjust or unconscionable to enforce or uphold the contract. It is not necessary for the party seeking to avoid the contract on the ground of mistake to prove that the other party caused or induced the mistake (although if such causation is established it might lead to rescission for fraud, or for innocent misrepresentation). As long as the unmistaken party knows of the mistake, without having caused it, that party cannot resist a suit for rectification on the grounds of mistake. The same will apply if the other party had good reason to know of the mistake and to know what was intended. The converse of the proposition as to the knowledge of the other party’s mistake is that if the unmistaken party is ignorant of the other’s mistake the contract will be valid and neither rescission nor rectification will be possible. [Footnotes omitted.] [46] The unilateral mistake analysis simply does not fit this case. Here, the mistake was that of the Diocese, not Ms. Deschenes. Indeed, as noted above, the motion judge characterized the misrepresentation at various points in his reasons as a “unilateral mistake by the Diocese ” (emphasis added). To support an analysis based on rescission for unilateral mistake, the motion judge would have had to have found that Ms. Deschenes was the mistaken party and that the Diocese was trying to take advantage of her mistake. It may be that Ms. Deschenes was also “mistaken”, in which case, as Professor Fridman notes in the passage quoted above, rescission for innocent or fraudulent misrepresentation could follow on proof that the other party caused or induced the mistake. [47] The proper characterization of what occurred here is that the Diocese made a representation that was false when it stated repeatedly, including under oath, that no one knew that there was any reason to be concerned about Father Sylvestre’s behaviour before Ms. Deschenes claimed to have been assaulted by him, and that there had been no prior complaints. In this sense, the Diocese made a “mistake”. Although the Diocese was mistaken when it made the representation, this was not a case of rescission for unilateral mistake. Rather, rescission of the settlement agreement was warranted on the basis of the law of innocent misrepresentation. [48] Although there were points in the motion judge’s analysis where he spoke of a “unilateral mistake”, the motion judge arrived at his decision by applying the test for innocent misrepresentation. He identified the misrepresentation made by the Diocese. He then assessed the evidence to determine whether the misrepresentation was material to the settlement and had been relied on by Ms. Deschenes. Finally, he considered factors relevant to the exercise of his discretion in rescinding the settlement agreement for misrepresentation, including the importance of the finality of settlements. [49] Even assuming that the motion judge did incorrectly apply the law of unilateral mistake, this court has jurisdiction to apply the correct legal framework to the evidence: Courts of Justice Act , R.S.O. 1990, c. C.43, s. 134(1)(a); L.M. v. Peel Children’s Aid Society , 2019 ONCA 841, 149 O.R. (3d) 18, at para. 54; and Ontario (Attorney General) v. Darby Road, Welland (In Rem) , 2019 ONCA 31, 431 D.L.R. (4th) 243, at para. 30. In doing so, for the reasons stated above, I would conclude that rescission was warranted under the framework of innocent misrepresentation. (3) The motion judge did not err in his assessment of materiality [50] The appellants submit that the motion judge erred in finding that the nondisclosure of the 1962 police statements was material to Ms. Deschenes’ decision to settle her claim. I disagree. [51] The conclusion that the misrepresentation was material to Ms. Deschenes’ decision to settle on the terms she did was fully supported by the evidence, and by a reasonable understanding of the case law and the legal position of the Diocese at the time. The motion judge accepted the evidence of Ms. Deschenes and her former counsel that Ms. Deschenes would not have settled her claim as she did if they had known about the 1962 police statements. [52] At the time the First Action was settled, Ms. Deschenes had a difficult case in respect of vicarious liability, and she had no evidence that the Diocese knew about Father Sylvestre’s history of abusing girls. She could not make out a case of negligence against the Diocese without such evidence. Further, although the Diocese contends that it advised Ms. Deschenes’ counsel in 1999 that it would accept vicarious liability for Father Sylvestre’s actions, the motion judge correctly noted that there was no admission in this regard, and that in 2000, both on discovery and at the mediation, the Diocese continued to deny liability on all bases, including vicarious liability. [53] Moreover, the motion judge’s determination that Ms. Deschenes did in fact rely on the misrepresentation in deciding to enter into the settlement agreement is a question of fact that was properly inferred from all the circumstances of the case and the evidence before the motion judge: see Fridman, at p. 291; York University v. Makicevic , 2018 ONCA 893, 51 C.C.E.L. (4th) 30, at para. 21, leave to appeal refused, [2019] S.C.C.A. No. 134; and Barclays Bank , at para. 159 . This is a finding that can only be disturbed on the basis of a palpable and overriding error. No such error has been shown. (4) The motion judge did not err in failing to enforce the finality of the settlement [54] As noted by the appellants, settlements are compromises made on the basis of the information that is available to the parties at the time. In many instances, civil actions are settled on the basis of imperfect or incomplete information. In other cases, as here, they are settled after the discovery of documents and oral discovery. Settlement decisions are based on the available information and the parties’ assessment of the strength or weakness of their case, informed by a consideration of legal precedent. [55] Contrary to the appellants’ suggestion, Ms. Deschenes did not seek to resile from the settlement simply because new information had come to light which would have strengthened her case. Rather, rescission was available because certain key information that was provided to Ms. Deschenes by the Diocese was false. Rescission was available as a remedy for innocent misrepresentation, which could only be granted once the requirements had been met. [56] The appellants assert that the judgment rescinding the settlement agreement is contrary to the principle of finality of litigation. I disagree. [57] The appropriate framework, which was applied by the motion judge, was to consider whether there were grounds to rescind the settlement agreement on the basis of the Diocese’s innocent misrepresentation, and, in deciding whether to grant the remedy of rescission, to address the equitable considerations of whether such a remedy would be fair and just. In this context, the motion judge, at para. 24, adverted to the appellants’ arguments with respect to the public policy considerations favouring the finality of settlements. After referring to the Diocese’s historical conduct, he concluded that there were overarching considerations of fairness and justice that favoured Ms. Deschenes and that it would be wrong in the circumstances of this case to protect the settlement. I see no error in the manner that the motion judge exercised his discretion. [58] In any event, in the circumstances of this case, any interest in the finality of settlements could not “trump” the need to rescind a settlement agreement that, based on the evidence, was induced by the Diocese’s innocent misrepresentation. [59] In oral submissions, the appellants advanced another argument in respect of the motion judge’s conclusions at para. 24. The appellants submitted that the motion judge erred in relying on the findings and evidence in another case against the Diocese involving sexual assaults by Father Sylvestre, K.M.M. v. The Roman Catholic Episcopal Corp. , 2011 ONSC 2143, when he stated: “I cannot disregard what has come to light since the settlement of the plaintiff’s claim in 2000 regarding the cover-up policy of the Church in the 1960s and 70s respecting allegations of misconduct by its priests.” [60] I agree that it would not have been appropriate for the motion judge to base his decision on whether the requirements of innocent misrepresentation had been made out on evidence and findings in another decision. However, that is not what the motion judge did here: his findings with respect to the misrepresentation, materiality and reliance were all based on the evidence that was before him in Ms. Deschenes’ case. It was only in the context of his overall consideration of fairness and justice in deciding whether to rescind the settlement agreement, and in responding to the appellants’ arguments regarding the finality of the settlement, that the motion judge referred to “what has come to light since the settlement”. [61] Evidence that the Diocese had, in the past, attempted to cover up allegations of sexual assault was relevant to the consideration of fairness and justice, to be weighed in the balance with the arguments of the Diocese in favour of the finality of the settlement. The fact that the parties had placed the K.M.M. decision before the motion judge as part of the Agreed Facts on the motion suggests that they agreed that this decision was both relevant and admissible. In any event, whether or not the motion judge was entitled to rely on the finding in that case that there had been a cover-up policy by the Diocese, there was evidence before him from which a cover-up policy could be inferred: in 1962, the police statements were not disclosed by Bishop Cody to anyone in authority at the Diocese and Father Sylvestre was transferred out of the Diocese and placed on a leave of absence. The motion judge’s decision did not turn on the K.M.M. decision. [62] There is no reason to interfere with the motion judge’s determination that the interests of fairness and justice favoured the equitable remedy of rescission in this case. F. DISPOSITION [63] For these reasons, I would dismiss the appeal. I would award costs to Ms. Deschenes in the agreed sum of $60,000, inclusive of disbursements and HST. Released: May 20, 2020 (“K.M.v.R.”) “K. van Rensburg J.A.” “I agree. David M. Paciocco J.A.” “I agree. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310 DATE: 20200525 DOCKET: C67321 Gillese, Brown and Huscroft JJ.A. BETWEEN Falcon Lumber Limited Plaintiff (Respondent) and 2480375 Ontario Inc., carrying on business as "GN Mouldings and Doors", Muhammad Asjid Iqbal, GN Trim and Doors Ltd., a.k.a. "GN Trim & Door Ltd.", Surinder P. Lotey a.k.a. "Paul Lotey" , 2562825 Ontario Inc., carrying on business as VK TRIM & DOORS, 2625068 Ontario Inc., carrying on business as VK Trim & Doors Defendants ( Appellant ) Micheal Simaan and Rahul Gandotra, for the appellant Ritchie J. Linton, for the respondent Heard: In-writing On appeal from the order of Justice Leonard Ricchetti of the Superior Court of Justice, dated October 15, 2019, reported at 2019 ONSC 4280. BROWN J.A.: I.        OVERVIEW [1] There are two appellants on this appeal. The first, Mr. Paul Lotey, appeals the order of the motion judge striking out the statement of defence filed on behalf of himself and two of his companies, GN Trim and Doors Ltd. a.k.a. “GN Trim & Doors Ltd.” (“GN Trim”) and 2562825 Ontario Inc., carrying on business as VK TRIM & DOORS (“256”) (collectively the “Lotey Defendants”). They were defending a March 31, 2016 action commenced by the respondent, Falcon Lumber Limited (“Falcon Lumber”), for the payment of $131,748.17 for lumber and building materials sold and delivered to GN Trim in 2015. [2] The second appellant is the law firm of Kramer Simaan Dhillon LLP (the “KSD Firm”) who represented the Lotey Defendants in the proceeding below and who continue to represent Mr. Lotey on this appeal. The KSD Firm appeals that part of the motion judge’s order requiring it to pay Falcon Lumber’s costs of the motion fixed in the amount of $6,246.54. [3] In addition to the Lotey Defendants, there are two other groups of defendants in this action. The second is the Moulding Defendants, which consists of Muhammad Asjid Iqbal and 2480375 Ontario Inc., carrying on business as “GN Mouldings and Doors”. Falcon Lumber pleaded that in 2015 the Lotey Defendants and Mouldings Defendants colluded to avoid payment of its invoices for the goods sold and delivered. As the litigation unfolded, the claim against the Mouldings Defendants took a back seat to an amended claim involving the dealings between the Lotey Defendants and the third defendant group, 2625068 Ontario Inc., carrying on business as VK Trim & Doors (“262”). It purchased the assets of GN Trim in April 2018 from Mr. Lotey’s company, 256. [4] In October 2018, Falcon Lumber amended its statement of claim to add 262 and Mr. Lotey’s company 256 as defendants. The amendment resulted from the disclosure the motion judge had ordered in June 2018 concerning the November 2017 receivership of GN Trim. The productions revealed the following series of transactions: (i) In March 2017, Mr. Lotey incorporated 256; (ii) In April 2017, Mr. Lotey caused GN Trim – the company to which Falcon Lumber had sold the lumber – to grant him a security interest over its assets; (iii) In November 2017, Mr. Lotey took the position that GN Trim had defaulted on the general security agreement and appointed a private receiver over GN Trim’s assets. At the time, Mr. Lotey was the largest creditor of GN Trim; (iv) Two days after its appointment, the receiver sold GN Trim’s assets to Mr. Lotey’s new company, 256, by way of a private sale for $147,000. 256 operated its business from the Bolton, Ontario address from which GN Trim had operated (the “Premises”); (v) In March 2018, 262 was incorporated with its registered head office listed as the Premises; and (vi) In late April, 262 closed the purchase of GN Trim’s assets from 256 for $580,000. The assets acquired by 262 were the same assets of GN Trim that 256 had bought from the receiver. [5] Falcon Lumber pleads that the 2017 and 2018 transactions involving GN Trim, 256, and 262 were intended to defeat its claim as a creditor for the goods it had sold and delivered to GN Trim and resulted in Mr. Lotey receiving a personal financial benefit. Mr. Lotey and 262 deny the allegations. [6] By Superior Court of Justice standards, this is a claim for a modest amount of money. One would expect a reasonably prompt disposition of the dispute on its merits. [7] That has not occurred. [8] The main reason is that close to three years were consumed by Falcon Lumber trying to obtain proper documentary disclosure and production from the Lotey Defendants regarding their dealings with GN Trim’s assets including what, if any, benefit Mr. Lotey personally received from those dealings. [9] According to the motion judge in his July 2019 reasons, by July 4, 2019, when he heard Falcon Lumber’s motion to strike out the statement of defence of the Lotey Defendants for failure to make proper production: (i) there had been 30 dates for motions, cross-motions, and case conferences; (ii) on most court attendances the primary issue had been the Lotey Defendants’ failure to provide complete productions; (iii) 22 orders or judicial endorsements had been made; (iv) six court production orders had been made against the Lotey Defendants; and (v) as of the date of the motion, the Lotey Defendants still had not made full and complete production of relevant documents: at para. 1. [10] The motion judge struck out the statement of defence of the Lotey Defendants, without leave to amend, noted them in default, and permitted Falcon Lumber to proceed to obtain default judgment against them. As well, he awarded Falcon Lumber its costs of the motion of $6,246.54 against the Lotey Defendants’ counsel, the KSD Firm. [11] As noted above, Mr. Lotey appeals the striking out of his statement of defence; his companies, GN Trim and 256, do not join in the appeal. The KSD Firm appeals the award of costs made against it. [12] For the reasons set out below, I would dismiss Mr. Lotey’s appeal and deny the KSD Firm leave to appeal the cost order. II.       THE LITIGATION A. The ACTION’S PROCEDURAL HISTORY [13] Following the close of pleadings in June 2016, Falcon Lumber and the Lotey Defendants pursued separate, but parallel, procedural tracks in this litigation. [14] Falcon Lumber sought documentary production from and the examination of the Lotey Defendants. The Lotey Defendants did not appear in response to an initial notice of examination, which led Falcon Lumber to obtain a consent order from Price J., dated August 18, 2016, that examinations for discovery take place on October 7, 2016. [15] Contemporaneously, Mr. Lotey informed Falcon Lumber that he intended to seek summary judgment dismissing the action as against him personally. In August 2016, he advised Falcon Lumber that he had secured the first available motion date: April 5, 2017. [16] Falcon Lumber’s difficulties in obtaining proper production from the Lotey Defendants resulted in motions to produce and culminated in its motion to strike out their statement of defence. The return dates for Mr. Lotey’s summary judgment motion tracked those for the Falcon Lumber motions. 2016 [17] Mr. Lotey first attended for examination for discovery in October 2016. He appeared both in his capacity as a named defendant and as the representative of GN Trim. Mr. Lotey confirmed that he was the sole shareholder of GN Trim. [18] Mr. Lotey swore GN Trim’s initial August 2016 Affidavit of Documents as the principal of the company. The only documents listed were the invoices sent by Falcon Lumber. Mr. Lotey’s personal affidavit did not list any documents. [19] Mr. Lotey brought to the discovery only the Falcon Lumber invoices; he refused to produce any other documents. Falcon Lumber was not prepared to proceed in the circumstances and advised it would bring a motion to compel production. In his July 2019 reasons, the motion judge stated, at para. 26: There can be no dispute that the Lotey Defendants had not produced all relevant documents in the Affidavit of Documents as required by the Rules (as subsequently decided by this court) and as such, the Plaintiff did not want to and had every right not to proceed with the examination for discovery. 2017 [20] Falcon Lumber moved for an order requiring the Lotey Defendants to produce a full and complete Affidavit of Documents. That motion was heard by Barnes J. in March 2017. He disposed of the motion by order dated July 21, 2017 (the “Barnes J. Production Order”) . [21] In his reasons, Falcon Lumber Limited v. 2480375 Ontario Inc ., 2017 ONSC 4470, Barnes J. stated, at para. 22: Thus the documents sought by the Plaintiff are relevant to the issues raised by the action. The documents can help discover why the amount claimed has not been paid, who may have obtained the benefit arising from the failure to pay, whether there is any financial relationship between the [Lotey] Defendants and the nature of any financial relationships. All of these items are relevant to the issue of unjust enrichment and whether the corporate veil can be pierced in this action. [22] Barnes J. ordered the Lotey Defendants to “produce full disclosure of the last 24 months of their business records, corporate records and financial information, including the last 24 months of financial statements; the last 12 months [bank] statements with cancelled cheques; and payroll ledger for the prior 24 months. They shall also produce a full and complete affidavit of documents”: at para. 3. [23] As the motion judge wrote about the Barnes J. Production Order in his July 2019 reasons, at para. 29: “This court order should have finally resolved the production issues. It did not.” [24] In April 2017, Mr. Lotey’s motion for summary judgment had been adjourned to late August 2017. Mr. Lotey was cross-examined in June 2017. Barnes J. released the reasons for his production order the following month. [25] Falcon Lumber then brought a motion to compel Mr. Lotey to re-attend for cross-examination to answer undertakings given and refusals made on his June cross-examination. Shaw J. disposed of the motion in October 2017: Falcon Lumber Ltd. v. 2480375 , 2017 ONSC 6248. He wrote, at para. 4, that: The defendants have not complied with Justice Barnes order. GN [Trim] and [Mr.] Lotey were to have provided disclosure by August 31, 2017. Counsel for the defendants informed the court during the motion that the disclosure would be provided by September 28, 2017. [26] Shaw J. also ordered Mr. Lotey to answer certain questions refused on his cross-examination. Counsel for the Lotey Defendants advised that proper production would be made by September 28, 2017. It was not. 2018 [27] Falcon Lumber arranged for the continuation of Mr. Lotey’s cross-examination and the examination for discovery of the Lotey Defendants to take place in March 2018. Although Mr. Lotey attended, full production had not been made. As a result, Falcon Lumber did not proceed with the examination for discovery, although it did continue its cross-examination of Mr. Lotey on his summary judgment motion affidavit. [28] Counsel from the KSD Firm took the position that the examination for discovery of the Lotey Defendants should proceed notwithstanding deficient production. The motion judge quite properly rejected that contention, stating at paras. 39-40: Clearly, the Lotey Defendants' counsel did not and does not understand that all relevant documents should have been produced in advance for a proper and complete cross-examination. This is a further example of the deliberate delay and failure to comply with the Rules for almost two years and the failure to comply with the Barnes J.’s order for almost a year. Six months had elapsed since Lotey Defendants' counsel advised the court that the productions would be made by September 28, 2017. [1] [Emphasis in original.] [29] Further production-related steps took place during 2018: · On May 3, 2018, GN Trim served an unsworn further affidavit of documents, that bore Mr. Lotey’s name, which its counsel advised included the disclosure ordered by the July 2017 Barnes J. Production Order. · On May 16, 2018, Falcon Lumber’s motion to strike and Mr. Lotey’s motion for summary judgment came before the motion judge. This was the parties’ first attendance before the motion judge, who dealt with all subsequent motions. In his July 2019 reasons, the motion judge wrote that at that time “it was painfully obvious that the Lotey Defendants continued to be in breach of the Barnes J.’s order”: at para. 43. · The motion judge adjourned Mr. Lotey’s summary judgment motion because “it would be unfair to [Falcon Lumber] to force on the motion for summary judgment with such multiple and deliberate delays by Lotey and without a full examination for discovery of Lotey by [Falcon Lumber]”. · The motion judge directed that an examination of Mr. Lotey occur in June 2018. The examination did not proceed due to a dispute over whether Mr. Lotey’s answers would bind GN Trim which, at that point, was in receivership. · At a June 28, 2018 case conference, the Lotey Defendants advised the motion judge that GN Trim had been placed in receivership. The motion judge ordered the production of documents relating to the receivership. Some were produced in August 2018. · As a result of the productions, Falcon Lumber amended its claim as described in paras. 4 and 5 above. · Other productions due from the Lotey Defendants remained outstanding at the time of a further attendance before the motion judge in December 2018. The motion judge directed the completion of productions. 2019 [30] By the time of a January 10, 2019 case conference before the motion judge, the Lotey Defendants had not made complete production. A further order for a better Affidavit of Documents was made and examinations directed for February. [31] Following the case conference, the Lotey Defendants produced some further documents. They did not make full production before the scheduled February 27, 2019 examinations notwithstanding letters from Falcon Lumber’s counsel requesting that they do so. As put by the motion judge at para. 62: [D] espite now having consented to provide a fresh and complete Affidavit of Documents, the Lotey Defendants continued to fail to produce all relevant documents, in particular the documentation in relation to the trail of the monies and assets from GN [Trim] Ltd., the security, receivership and subsequent sales. [32] On the day of examination, February 27, 2019, the Lotey Defendants produced some additional documents. Counsel for Falcon Lumber stated that he was “not going to be ambushed” or conduct an examination “in dribs and drabs”. Counsel for the Lotey Defendants invited him to examine on the documents produced. Counsel for Falcon Lumber refused and adjourned the examination. The motion judge quite properly stated, at para. 64: It was entirely appropriate for Plaintiff’s counsel to refuse to proceed with the examination that day. On the other hand, Lotey Defendants' counsel's position is, in light of the history, absolutely shocking and unprofessional. B. The motion to strike [33] In April 2019, Falcon Lumber initiated a motion for an order either to strike out the Lotey Defendants’ statement of defence or to produce a better, complete Affidavit of Documents. For the motion, Falcon Lumber filed an affidavit from its sales manager, Stephen Blackadder, that itemized the types of documents the Lotey Defendants had failed to produce to date. [34] As well, in its notice of motion, Falcon Lumber put the SKD Firm on notice that it would seek costs of the motion against it. Mr. Blackadder deposed that “it appears to me that Counsel for the Lotey Defendants has engaged in a litigation policy promoting non-disclosure; failing to inform of all material changes in the course of litigation, and causing unnecessary delay and costs in consequence.” [35] On the return of the motion on May 17, 2019, the SKD Firm sought an adjournment to retain counsel to deal with the claim for costs against it. The motion judge granted an adjournment until July 4, 2019. As terms of adjournment, the court ordered the Lotey Defendants to deliver by the end of June 2019 a better Affidavit of Documents that disclosed specific items, deliver the related productions at least a week before the motion’s return date, and bring the productions to court on the return of the motion so that the court could examine them. [36] In late June, the Lotey Defendants served a fresh Affidavit of Documents, which Mr. Lotey affirmed on behalf of himself and his two corporations. [37] According to the motion judge, on the July 4, 2019 return of the motion: “it became clear that the Lotey Defendants had not produced what was ordered”; the “Affidavit of Documents was incomplete”; “[m]any of the produced documents were redacted; and some were missing”; and the “redactions and missing documentation obfuscated exactly what happened” and whether “the transactions were bona fide ”: at paras. 69-71. When the motion judge asked counsel for the Lotey Defendants about the missing documentation, counsel’s “response was that he would ‘now’ ask the bank for this documentation”: at para. 72. The motion judge continued, at para. 74: To get to the “bottom line,” I asked the Lotey Defendants’ counsel whether the new Affidavit of Documents and the most recently produced documents showed what happened to the assets and monies regarding the sale of the GN [Trim] Ltd. Counsel for the Lotey Defendants admitted that the documentation/information in the now produced documentation did not disclose this information. [Emphasis in original.] C. Reasons of the motion judge [38] The motion judge found that the Lotey Defendants had: willfully disregarded court procedure and orders for three years; done everything in their power to avoid an adjudication on the merits; and done everything they could to prejudice Falcon Lumber’s claim by failing to provide full disclosure of the various transactions relating to GN Trim’s assets : at paras. 86-91. [39] The motion judge considered but rejected the option of affording the Lotey Defendants yet a further opportunity to make proper production. The Lotey Defendants had ignored his “last chance order” of May 17, 2019 and their actions were “clearly contumelious”. In striking out the Lotey Defendants’ statement of defence, the motion judge stated, at para. 95: If the Rules and court orders can be ignored repeatedly and over a number of years without severe consequences, then there would be no point in having Rules or making orders on such motions. The Lotey Defendants’ actions can no longer be excused. [40] The motion judge ordered the SKD Firm to pay the substantial indemnity costs of the motion to strike fixed in the amount of $6,246.54. I will consider his reasons for doing so in Part IV below. III.      FIRST ISSUE: STRIKING OUT THE LOTEY DEFENDANTS’ STATEMENT OF DEFENCE A. The governing principles The fundamental obligation to disclose and produce relevant documents [41] At the heart of the rules governing actions in the Superior Court of Justice lie the obligations of every party to an action to disclose every document relevant to any matter in issue in an action that is or has been in its possession, control or power, whether or not privilege is claimed in respect of a document, and to produce all such documents, unless privilege is claimed in respect of a document: Rules of Civil Procedure , rr. 30.02(1)-(2). [42] Three requirements imposed by the Rules of Civil Procedure emphasize the importance of the obligation to disclose and produce relevant documents to the proper and fair functioning of the civil litigation process: · First, the obligation to disclose all relevant documents is not limited to documents upon which the party intends to rely to establish its claim or defence. A party must disclose “every document relevant to any matter in issue”, whether or not the document helps or hurts the party’s case: r. 30.02(1); · Second, in order to ensure that a party fully understands its obligation to disclose and produce all relevant documents, the party’s lawyer must certify in the party’s Affidavit of Documents that the lawyer has explained “the necessity of making full disclosure of all documents relevant to any matter in issue in the action” and “what kinds of documents are likely to be relevant to the allegations made in the pleadings”: Forms 30A and 30B; rr. 30.03(4) and 76.03(4). Courts expect that a party has received from its counsel legal advice that the documents it must disclose and produce are determined by their relevance to the issues pleaded, not by whether the party regards the document as favourable or harmful to its case. No doubt this advice may rub against the litigation instincts of some parties, who would prefer to “deep-six” relevant documents that might undermine their claims or defences; and · Third, the obligation to disclose and produce is not a “one-time” obligation. It is a continuing one: Tripp v. Ontario (Ministry of Transportation) (1999), 123 O.A.C. 278 (C.A.), at para. 22. Where, after serving an affidavit of documents, a party comes into the possession or control of a relevant document or discovers that its Affidavit of Documents is inaccurate or incomplete, the party must “forthwith” serve a supplementary affidavit of documents “specifying the extent to which the affidavit of documents requires modification and disclosing any additional documents”: Rules of Civil Procedure , r. 30.07. Taken together, these key rules are designed to ensure that parties make full disclosure of all relevant documents and production of all relevant non-privileged documents well in advance of the examinations for discovery permitted in Superior Court actions or, in the case of newly discovered documents, “forthwith” – i.e. within a few days – after their discovery. [43] The goal of Ontario’s civil justice system is to provide the public with the just, most expeditious, and least expensive determination of every civil proceeding on its merits: Rules of Civil Procedure , r. 1.04(1); Rules of the Small Claims Court , r. 1.03(1). To achieve that goal, parties to every action must comply with their document disclosure and production obligations without the need for a court to intervene to compel their adherence. This court has stated, in regard to family law litigation, that a party’s fundamental duty to disclose financial information is automatic, immediate, and ongoing, and should not require court orders to obtain production: Roberts v. Roberts , 2015 ONCA 450, 65 R.F.L. (7th) 6, at paras. 11 and 13. The same applies to civil actions. The fundamental obligation to disclose relevant documents and produce those that are not privileged should be performed automatically by a party, without the need for court intervention. [44] Of course, the Rules of Civil Procedure provide for means by which a party can seek the assistance of the court where an opposite party has ignored or breached its obligation to make automatic, immediate, and ongoing full disclosure and production. A party usually seeks the court’s intervention by bringing a motion against the defaulting party under either r. 30.06 or r. 30.08. In certain parts of the province, parties may have ready access to a case management judge who can deal more informally and expeditiously with requests for relief under these rules. [45] Rule 30.06 focuses on the situation where the served affidavit of documents is inadequate or the opposite party wishes to challenge the other party’s assertion of privilege over a document. It states: 30.06 Where the court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the court may, (a) order cross-examination on the affidavit of documents; (b) order service of a further and better affidavit of documents; (c) order the disclosure or production for inspection of the document, or a part of the document, if it is not privileged; and (d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege. [46] Rule 30.08 overlaps to some degree with r. 30.06, as it deals with the situation where a party fails to disclose a document. But r. 30.08 also addresses a party’s failure to produce a document for inspection. Rule 30.08(1) authorizes a court to impose certain sanctions at the trial of an action. It states: 30.08 (1) Where a party fails to disclose a document in an affidavit of documents or a supplementary affidavit, or fails to produce a document for inspection in compliance with these rules, an order of the court or an undertaking, (a) if the document is favourable to the party’s case, the party may not use the document at the trial, except with leave of the trial judge; or (b) if the document is not favourable to the party’s case, the court may make such order as is just. [47] Rule 30.08(2) authorizes a court to impose certain pre-trial sanctions, including striking out a pleading. It states: 30.08(2) Where a party fails to serve an affidavit of documents or produce a document for inspection in compliance with these rules or fails to comply with an order of the court under rules 30.02 to 30.11, the court may, (a) revoke or suspend the party’s right, if any, to initiate or continue an examination for discovery; (b) dismiss the action, if the party is a plaintiff, or strike out the statement of defence, if the party is a defendant; [2] and (c) make such other order as is just. [48] However, each time a party defaults on its disclosure and production obligations and requires the opposite party to seek the court’s assistance to remedy the default, two things happen. First, the cost of the litigation increases. Motions are not cheap; they add significantly to the overall costs of a civil case. Second, the final determination of the case on its merits gets pushed back, delayed by the need to bring a defaulting party into compliance with its disclosure obligations. The principles guiding the striking out of pleadings for breach of production obligations [49] Limited jurisprudence exists about when it is appropriate to strike out a party’s pleading under r. 30.08(2)(b) for breach of documentary disclosure and production obligations. Given the variety of circumstances in which a party may resort to r. 30.08, the most pragmatic articulation of a guiding principle is that made by Wein J. in Newlove v. Moderco Inc. , 2002 CanLII 34748 (Ont. Sup. Ct.), at para. 21, that “the scope of the remedy is one within the discretion of the Court, to be determined in the context of the particular case.” Several principles guide the exercise of that discretion. [50] First, contrary to the appellant’s assertion, striking out a pleading under r. 30.08(2)(b) is not restricted to “last resort” situations, in the sense that it must be preceded by a party breaching a series of earlier orders that compelled better disclosure or production. Some cases have granted the remedy where previous orders were breached: DLE Consulting Inc. v. Graham , 2016 ONCA 315, 130 O.R. (3d) 799; Vacca v. Banks , 2005 CanLII 1054 (Ont. Div. Ct.). In others, no prior order had been made: Royal Bank of Canada v. Russo , 2002 CarswellOnt 73 (Ont. Div. Ct.). However, courts usually want to ensure that a party has a reasonable opportunity to cure its non-compliance before striking out its pleading: Koohestani v. Mahmood , 2015 ONCA 56, 124 O.R. (3d) 205, at para. 54. [51] Second, a court should consider a number of common sense factors when deciding whether to strike out a pleading under r. 30.08(2): (i) whether the party’s failure is deliberate or inadvertent; (ii) whether the failure is clear and unequivocal; (iii) whether the defaulting party can provide a reasonable explanation for its default, coupled with a credible commitment to cure the default quickly; (iv) whether the substance of the default is material or minimal; (v) the extent to which the party remains in default at the time of the request to strike out its pleading; and (vi) the impact of the default on the ability of the court to do justice in the particular case: Royal Bank of Canada , at para. 12; and see the cases reviewed in King v. Belair Direct (2004), 184 O.A.C. 189 (Div. Ct.), at paras. 12-13. [52] Third, although a court may also consider the merits of a party’s claim or defence, as it does under r. 60.12 dealing with the failure to comply with an interlocutory order [3] , this factor may play only a limited role where breaches of production obligations are alleged as one would reasonably expect a party with a strong claim or defence to comply promptly with its disclosure and production obligations. [53] Finally, a court must consider whether an order to strike out a pleading would constitute a proportional remedy that is consistent with the recent calls of the Supreme Court of Canada to alter the Canadian litigation culture. [54] Parties who default on their documentary disclosure and production obligations impede the ability of our civil justice system to provide the fair, timely, and cost-effective adjudication of civil disputes on their merits. Their defaulting conduct promotes the culture of complacency towards delay decried by the Supreme Court, in the context of the criminal justice system, in R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 40. As well, such conduct undermines on-going efforts to shift the Canadian civil litigation culture in the direction of providing more accessible justice to the public. As the Supreme Court pointed out in Hryniak v. Mauldin , 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 27, the “developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted.” (emphasis added) In Hryniak , the Supreme Court called for a civil justice system that not only provides a fair process that results in the just adjudication of disputes, but also is “accessible — proportionate, timely and affordable,” for without an accessible process, a fair process is illusory: at para. 28. [55] Hryniak requires judges to actively manage the civil legal process in line with the principle of proportionality: at para. 32. Orders to strike out pleadings are one means by which to ensure that the civil justice process delivers justice that is proportionate, timely, and affordable. Accordingly, when considering whether to strike out a party’s pleading by reason of its failure to comply with its documentary disclosure and production obligations, in addition to the factors set out in paras. 50 to 54 above, a court should consider: · the extent to which the defaulting party’s conduct has increased the non-defaulting party’s costs of litigating the action, including the proportionality of those increased costs to the amount actually in dispute in the proceeding; and · to what extent the defaulting party’s failure to comply with its obligation to make automatic disclosure and production of documents has delayed the final adjudication of the case on its merits, taking into account the simplicity (or complexity) of the claim and the amount of money in dispute. [56] Applying the principle of proportionality in the context of a motion to strike out a pleading for failure to perform document disclosure and production obligations means that the moment when a court may make the order to strike will come much earlier in a simple claim for a modest amount of money than it will in a complex case where millions are in dispute. Common sense dictates that the simple case should spend less time in the court system and impose lower legal costs on the litigants than the more complex one. [57] To summarize, several principles guide the exercise of a court’s discretion to strike out a party’s claim or defence under r. 30.08(2) for non-compliance with documentary disclosure and production obligations: · The remedy is not restricted to “last resort” situations, in the sense that it must be preceded by a party breaching a series of earlier orders that compelled better disclosure or production. However, courts usually want to ensure that a party has a reasonable opportunity to cure its non-compliance before striking out its pleading; · A court should consider a number of common sense factors including: (i) whether the party’s failure is deliberate or inadvertent; (ii) whether the failure is clear and unequivocal; (iii) whether the defaulting party can provide a reasonable explanation for its default, coupled with a credible commitment to cure the default quickly; (iv) whether the substance of the default is material or minimal; (v) the extent to which the party remains in default at the time of the request to strike out its pleading; and (vi) the impact of the default on the ability of the court to do justice in the particular case; · The merits of a party’s claim or defence may play only a limited role where breaches of disclosure and production obligations are alleged as one would reasonably expect a party with a strong claim or defence to comply promptly with its disclosure and production obligations; · In considering whether an order to strike out a pleading would constitute a proportional remedy in the circumstances, a court should consider: o the extent to which the defaulting party’s conduct has increased the non-defaulting party’s costs of litigating the action, including the proportionality of those increased costs to the amount actually in dispute in the proceeding; and o to what extent the defaulting party’s failure to comply with its obligation to make automatic disclosure and production of documents has delayed the final adjudication of the case on its merits, taking into account the simplicity (or complexity) of the claim and the amount of money in dispute. B. Application of the governing principles [58] Where a motion judge exercises discretion, an appellate court should intervene only where the discretion has been exercised on a wrong principle of law or a clear error has been made. An appellate court should defer to the findings of fact made by a motion judge unless he or she disregarded or failed to appreciate relevant evidence: Bottan v. Vroom , 2002 CanLII 41691 (Ont. C.A.), at para. 13. [59] In the present case, Mr. Lotey submits that the motion judge made three reversible errors in striking out his statement of defence. His submissions must be assessed in the larger context of the case: a claim for only about $131,000; a three-year history of the Lotey Defendants failing to make full disclosure and production of relevant, non-privileged documents; and six court orders directing them to cure their non-compliance. The Lotey Defendants were in default of their production obligations [60] First, Mr. Lotey submits that the Lotey Defendants were not in default at the time the motion to strike came before the motion judge in July 2019. As part of his argument, Mr. Lotey contends that there was no evidence of continued non-compliance by the Lotey Defendants with past orders. [61] Mr. Lotey’s submission stands at odds with the record. In his reasons, the motion judge thoroughly and accurately reviewed the disclosure and production orders made against the Lotey Defendants following the close of pleadings, which showed continued non-compliance by them. As well, the record clearly shows that at the time of the July 4, 2019 hearing, the Lotey Defendants were in default of the May 17, 2019 production order, as found by the motion judge. [62] First, the motion judge had ordered the production, by June 27, 2019, of the bank statements and cancelled cheques of GN Trim. Mr. Lotey, in his June 27, 2019 affidavit, admitted that he had not produced them but stated that he had requested them from his bank. Waiting for three years after the start of an action to ask for obviously relevant documents does not satisfy a party’s obligation of prompt and automatic disclosure and production. [63] Second, the April 2018 sale of assets by 256 to 262 contemplated that 256 would assign its lease of the Premises to 262. In his May 17, 2019 endorsement, the motion judge ordered the Lotey Defendants to produce, by June 27, 2019, the assignment of lease. In his June 27, 2019 affidavit, Mr. Lotey deposed that the lawyer who acted for his company, 256, on the transaction advised him that there was no assignment of lease because 262 entered into a new lease with the landlord. The motion judge did not accept Mr. Lotey’s explanation, stating at para. 70(c) that: While the Lotey Defendants were to show how the leased business premises were “transferred” between the companies, the Lotey Defendants simply said there was no assignment. There was no new lease produced, no termination documents, or other documents which would show this was either a sham transaction or a legitimate leasing transaction. [64] In his supplementary submissions, Mr. Lotey describes these comments by the motion judge as “improper and unreasonable”. On the contrary, they were astute and most appropriate given the issues raised by Falcon Lumber’s pleading. [65] Finally, the Lotey Defendants were ordered to produce the cancelled cheques of 256. Mr. Lotey deposed that they were produced in late June 2019. But, as the motion judge found, the information on many of the cheques had been redacted. As the motion judge quite accurately wrote, at para. 71, the “ redactions and missing documentation obfuscated exactly what happened with respect to the initial corporate dealings/transfer, the securitization, the receivership and the subsequent sale.” [66] Notwithstanding this evidence of the continuing failure of the Lotey Defendants to discharge their production obligations, in his supplementary submissions Mr. Lotey argues that “any prejudice by the redactions could easily be remedied by ordering that the documents be unredacted.” This extraordinary submission speaks volumes about the Lotey Defendants’ cavalier attitude toward their production obligations, showing that they regard them as nothing more than a game of “catch me if you can”. The culture shift directed by Hryniak has no place for such tactical gameship, which unreasonably increases litigation costs and delays the adjudication of a case on its merits. The motion judge’s order was not disproportionate in the circumstances [67] Mr. Lotey next submits that the motion judge’s order was disproportionate because there was no prejudice to Falcon Lumber and he could remedy any remaining production deficiencies. [68] There is no merit in that argument. [69] This action involved a modest monetary claim of about $131,000. If the action were started today, it would fall within the Simplified Procedure regime. Part of the claim is a straight-forward debt claim for the payment of invoices for goods sold and delivered. That is the type of claim that should enter and exit the Superior Court civil justice system quite quickly. [70] However, the claim contains an additional element: it seeks to impose the liability for a corporate debt on the principal of the company based on allegations that the principal used a scheme to take the benefit of the transaction with Falcon Lumber for himself. Corporate principals who are the targets of such claims are entitled to defend an action. But, they are not entitled to defend by ignoring and defaulting on their fundamental document disclosure and production obligations. Breaching the Rules of Civil Procedure is not a legitimate defence tactic. [71] In the present case, the various motion judges were generous in affording the Lotey Defendants multiple opportunities to cure their disclosure defaults. As the chronology of events set out above discloses, three judges made production orders and one of them, the motion judge, made several production orders during the one-year period that he case managed the action. The Lotey Defendants’ default of their production obligations ran from at least July 21, 2017, when the Barnes J. Production Order was made, until the July 4, 2019 hearing before the motion judge. [72] Hryniak’s goal of accessible civil justice cannot be achieved if courts allow defendants in modest monetary claims to remain in default of their fundamental production obligations for two years. Such cases should be disposed of on their merits within two years, not remain mired in production disputes and motions for two years. [73] On the record before us, the motion judge did not “jump the gun” in striking out the Lotey Defendants’ statement of defence. He had been case managing this action for the better part of a year. As the Divisional Court appropriately observed in Starland Contracting Inc. v. 1581518 Ontario Ltd . (2009), 252 O.A.C. 19 (Div. Ct.), at para. 26: The authority to dismiss proceedings for repeated failure to comply with court orders and flagrant disregard for the court process is an essential management tool. A case management judge or master who has a continuous connection with an action, the parties and their counsel is well-positioned to monitor the conduct of the participants throughout the proceedings, and to determine whether anyone is deliberately stalling, showing bad faith or abusing the process of the court when deadlines are missed and defaults occur under procedural orders. A decision to dismiss an action or strike a pleading because of such defaults is entitled to deference, unless that decision is shown to have been exercised on wrong principles or based upon a misapprehension of the evidence such that there is a palpable and overriding error. [74] In the present case, the motion judge had been more than generous in the opportunities he granted the Lotey Defendants to cure their disclosure failures. An order to strike out their pleading could well have been made much earlier in the life of this action. Mr. Lotey should pay the price for the production failures of the corporate Lotey Defendants [75] Finally, Mr. Lotey submits that the motion judge erred in striking out his statement of defence “as he failed to recognize that any findings as pertaining to [GN Trim] and/or 256, ought not to be considered or attributed to Lotey as a defendant in his personal capacity.” [76] This submission ignores the facts contained in the record, which show that Mr. Lotey controlled the disclosure and production of documents by GN Trim and 256: · He was the sole directing mind of both companies; · In August 2016, Mr. Lotey affirmed two affidavits of documents: one as an individual defendant and the other as the principal of GN Trim; · Mr. Lotey attended the short October 7, 2016 examination for discovery both in his personal capacity and as the representative of GN Trim; · Mr. Lotey was the named affiant in a May 2018 updated affidavit of documents for GN Trim; · In January 2019, the Lotey Defendants sent an unsworn joint affidavit of documents to Falcon Lumber in which Mr. Lotey was shown as the intended affiant; and · A joint affidavit of documents of the Lotey Defendants was affirmed by Mr. Lotey in June 2019. [77] Falcon Lumber has asserted both statutory and common law causes of action against the Lotey Defendants in its effort to impose personal liability on Mr. Lotey for the unpaid debt of GN Trim. One of the causes of action sounds in fraud and seeks to pierce the corporate veil: Yaiguaje v. Chevron Corporation , 2018 ONCA 472, 141 O.R. (3d) 1, at paras. 64-83. Whether Falcon Lumber can meet the statutory and common law tests to impose liability on Mr. Lotey personally for the debt is a matter for the default judgment proceeding. [78] The issue before the motion judge was quite different: Which of the Lotey Defendants directed their litigation conduct? There is only one answer on the record: Mr. Lotey. The Lotey Defendants advanced a joint defence. Mr. Lotey controlled the disclosure of documents by each of the three Lotey Defendants and he was the party who filed the affidavits that sought to explain and justify the disclosure and production failures of the Lotey Defendants. In those circumstances, it was open to the motion judge to sanction the disclosure misconduct of the corporate Lotey Defendants by striking out the joint statement of defence because Mr. Lotey clearly directed that disclosure misconduct. C. Conclusion [79] For the reasons set out above, I conclude that the motion judge did not err in striking out the statement of defence of Mr. Lotey. I would dismiss Mr. Lotey’s appeal. IV.     SECOND ISSUE: AWARDING COSTS AGAINST COUNSEL [80] The KSD Firm appeals the order of the motion judge requiring it to pay Falcon Lumber’s costs of the motion fixed in the amount of $6,246.54. The order also prevented the KSD Firm from seeking recovery of the costs from its client. [81] I accept Falcon Lumber’s submission that the KSD Firm requires leave to appeal the cost order. Section 133(b) of the Courts of Justice Act , R.S.O. 1990, c. C.43 (“ CJA”) states that no appeal lies without leave of the court to which the appeal is to be taken “where the appeal is only as to costs that are in the discretion of the court that made the order for costs”. Where a party seeks to join an appeal under s. 133(b) of the Courts of Justice Act with an appeal as of right, that party must seek leave to appeal: Rules of Civil Procedure , r. 61.03(17)(b). The only aspect of the order that the KSD Firm may appeal is the cost order. Leave to appeal therefore is required. [82] While the joint Amended Amended Notice of Appeal of Mr. Lotey and the KSD Firm does not expressly seek leave to appeal, the section of the notice dealing with the jurisdiction of this court to hear the appeal does refer to s. 133(b) of the CJA “if required”. I will proceed on the basis that the KSD Firm is seeking leave to appeal costs. [83] Awarding costs is a discretionary exercise that is afforded significant deference. Leave to appeal a costs order is granted sparingly and only where there are strong grounds to believe that the lower court erred: Feinstein v. Freedman , 2014 ONCA 205, 119 O.R. (3d) 385, at para. 52. [84] I would not grant leave to appeal. I do not see strong grounds to believe that the motion judge erred. [85] The motion judge dealt with the cost claim against the KSD Firm in a procedurally fair way. Prior to the May 17, 2019 motion return date, Falcon Lumber had put the KSD Firm on notice that it would seek costs against it. On the return of the motion, counsel from the KSD Firm sought an adjournment “to retain counsel for claim of costs personally,” as recorded by the motion judge in his endorsement. The motion judge granted the adjournment. When the motion was returned on July 4, 2019, the KSD Firm had not retained counsel. The motion proceeded and counsel made submissions in respect of the cost request. Accordingly, the motion judge satisfied the requirement of giving the lawyer a reasonable opportunity to make representations to the court: Rules of Civil Procedure , r. 57.07(2). [86] The motion judge properly instructed himself on the law concerning awards of costs against counsel personally. He understood that such awards are rare and he accurately summarized the guiding factors as discussed in Galganov v. Russell (Township) , 2012 ONCA 410, 294 O.A.C. 13. [87] As well, at para. 98 of his reasons, the motion judge gave a detailed explanation for his decision to order costs against the KSD Firm: · Counsel had continually attempted to force on the examinations knowing that the Affidavit of Documents was not complete, despite non-compliance with court orders, producing new documents on the day of the examination, and suggesting that missing documents could simply be asked for during the examination; · The Lotey Defendants failed to produce Affidavits of Documents by the various dates represented by counsel to the court; · Counsel did not advise the court after the GN Trim receivership that he had a new client, the receiver, and deal with the receiver’s obligation to produce relevant documentation; · Counsel’s request on May 17, 2019 for an adjournment to retain its own counsel but the subsequent appearance without counsel “simply appeared to be yet another delay tactic”; and · At the July 4, 2019 hearing, the “Lotey Defendants’ counsel was aware there had not been compliance with the court orders, yet, said nothing until directly pressed on the issue by this court. Lotey Defendants' counsel facilitated an expensive delay in this proceeding.” [88] Although the motion judge assumed that the KSD Firm simply followed its clients’ instructions, the motion judge noted at para. 99: The difficulty is that counsel must never forget they are also officers of the court and have duties to the court in connection with this responsibility. There comes a point when following instructions, makes counsel complicit in the flagrant disregard of the Rules and court orders. That happened here. [89] The KSD Firm submits that those findings are tainted by three palpable and overriding errors. [90] First, they submit that there was no evidence that the firm knew about the November 2017 receivership of GN Trim before they disclosed that information to the motion judge at the June 28, 2018 case conference. I read the motion judge’s reasons as stating the KSD Firm should have disclosed the fact of the receivership at the parties’ earlier attendance before him on May 16, 2018. [91] I take the KSD Firm’s point on this issue. The record shows that on June 13, 2018 the firm sent Falcon Lumber’s counsel the November 2017 notice of the receiver’s appointment. Whether the firm knew about the receivership before that time cannot be ascertained from the record. In any event, I do not think it makes a material difference because Mr. Blackadder of Falcon Lumber acknowledged that he knew about the receivership back in November 2017. Given that Falcon Lumber knew about the receivership before the May 16, 2018 attendance before the motion judge, it could have informed the motion judge about the receivership and made submissions about its impact on outstanding disclosure issues. The motion judge’s May 16, 2018 endorsement does not record any such discussion. Accordingly, it is difficult to see how any failure by the KSD Firm to make such disclosure at that time “caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default”: Rules of Civil Procedure , r. 57.07(1). [92] If that was the only reason why the motion judge awarded costs against the KSD Firm, I might question the soundness of his order. But it was not. The other reasons enumerated by the motion judge provide more than ample support for the cost order. [93] The KSD Firm submits that the motion judge erred in characterizing the firm’s request for an adjournment to retain counsel and then not showing up with counsel on the next return date as a delay tactic. I do not agree. By that point, the motion judge had been managing the case for almost one year and was in a good position to assess the litigation conduct of the Lotey Defendants and their counsel. Against that background, it was open to him to characterize the adjournment request as a delay tactic. [94] It was also open to the motion judge to treat as another example of a delay tactic the conduct of the lawyer from the KSD Firm regarding the documents ordered produced in the May 17, 2019 endorsement. In that endorsement, the motion judge had specifically directed that copies of the new Affidavit of Documents and productions be brought to court on the return date. The motion judge obviously wanted to see what the Lotey Defendants had produced. It was clear that he was giving them one last chance to remedy their disclosure failures. [95] Nevertheless, when counsel from the KSD Firm appeared in court on July 4, 2019, he provided the court with redacted copies of documents over which no claim for privilege was asserted in the updated June 27, 2019 Affidavit of Documents. A lawyer from the KSD Firm signed the certificate in that affidavit. It is no surprise that the motion judge concluded that the “ Lotey Defendants' counsel facilitated an expensive delay in this proceeding.” [96] Remarkably, in its submissions on this appeal, the KSD Firm contends that “[t]he issue of the appropriateness of the redactions is one that should either be established during examinations, and if still outstanding thereafter, on a refusals motion.” That is an extraordinary submission for the KSD Firm to make in light of the history of this litigation. It reinforces the correctness of the motion judge’s conclusion that the KSD Firm was “complicit in the flagrant disregard of the Rules and court orders” and should be required to pay costs of the motion to Falcon Lumber, without recourse to their client. [97] For these reasons, I would deny the KSD Firm leave to appeal the cost order made against it. [98] Falcon Lumber raises an additional issue in respect of the cost appeal. It submits that the KSD Firm put itself in a conflict of interest position by appealing the cost order which was made “without recovery from their clients”. Although it was open to the KSD Firm to appeal an order that imposed on it a financial obligation, it is very troubling that the KSD Firm would seek leave to appeal the cost order while, at the same time, acting for Mr. Lotey on his appeal. [99] Such a course of action gives rise to an appearance of a conflict of interest. If the KSD Firm succeeded in its cost appeal but Mr. Lotey failed in his appeal, the most likely outcome would be an order against Mr. Lotey to pay Falcon Lumber its costs of the motion below. [100] A law firm is under a duty to avoid conflicting interests, including its own personal interest: R. v. Neil , 2002 SCC 70, [2002] 3 S.C.R. 631, at para. 19. The Law Society of Ontario’s Rules of Professional Conduct state that “[a] lawyer shall not represent a client in a matter when there is a conflict of interest unless there is consent, which must be fully informed and voluntary after disclosure, from all affected clients and the lawyer reasonably believes that he or she is able to represent each client without having a material adverse effect upon the representation of or loyalty to the other client”: r. 3.4-2. Notwithstanding r. 3.4-2, r. 3.4-3 states that “a lawyer shall not represent opposing parties in a dispute.” As the Commentary to the rule explains: “ A lawyer representing a client who is a party in a dispute with another party or parties must competently and diligently develop and argue the position of the client. In a dispute, the parties' immediate legal interests are clearly adverse.” [101] In the present case, the immediate legal interests of Mr. Lotey and the KSD Firm – the other “party” affected by the order – are clearly adverse on the issue of who should pay the costs of the motion below in the event Mr. Lotey’s appeal was dismissed. Accordingly, it is very troubling that the KSD Firm acted for Mr. Lotey on the appeal when the firm was bringing its own appeal against the motion judge’s award of costs against it. V.      DISPOSITION [102] For the reasons set out above, I would dismiss Mr. Lotey’s appeal from the order striking out his statement of defence. I would deny the KSD Firm leave to appeal the motion judge’s award of costs against it in the amount of $6,246.54. [103] I would award Falcon Lumber its costs of the appeal fixed in the amount of $14,000, inclusive of disbursements and taxes, which I would allocate $7,000 as payable by Mr. Lotey and $7,000 payable by the KSD Firm, with both amounts to be paid within 30 days of the date of the release of these reasons. Released: “EEG” MAY 25 2020 “David Brown J.A.” “I agree. E.E. Gillese J.A.” “I agree. Grant Huscroft J.A.” [1] The motion judge appears to have confused the continued cross-examination of Mr. Lotey for the summary motion, which did proceed, with the continued examination for discovery of the Lotey Defendants, which did not. This confusion is of no consequence. [2] Other rules authorize a court to dismiss an action or strike out a statement of defence where a party defaults on a procedural obligation. For example, a pleading may be struck out where: (i) a person sought to be examined fails to attend the examination, take an oath or affirmation at the examination, to answer any proper question at the examination, or produce a document he or she is required to produce (r. 34.15(1)(b)); or, where a party fails to comply with an interlocutory order (r. 60.12(b)). [3] Koohestani , at para. 58.

COURT OF APPEAL FOR ONTARIO CITATION: Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee, 2020 ONCA 282 DATE: 20200505 DOCKET: C66494 Pepall, Tulloch and Benotto JJ.A. BETWEEN Friends of Toronto Public Cemeteries Inc. and Kristyn Wong-Tam Applicants (Respondents/ Appellants by way of cross-appeal) and Public Guardian and Trustee and Mount Pleasant Group of Cemeteries Respondents ( Appellant / Respondent / Respondents by way of cross-appeal) Ronald G. Slaght, Q.C. and Margaret Robbins, for the appellant/respondent by way of cross-appeal, Mount Pleasant Group of Cemeteries Michael S.F. Watson, Rodney Northey and Michael Finley, for the respondents/appellants by way of cross-appeal, Friends of Toronto Public Cemeteries Inc. and Kristyn Wong-Tam Dana De Sante, for the respondent/respondent by way of cross-appeal, Public Guardian and Trustee Heard: November 13, 2019 On appeal from the order of Justice Sean F. Dunphy of the Superior Court of Justice, dated December 31, 2018, with reasons reported at 2018 ONSC 7711, 144 O.R. (3d) 521. Pepall J.A.: INTRODUCTION [1] This appeal involves the interpretation of archaic statutes, and the operation of modern cemeteries by the appellant, Mount Pleasant Group of Cemeteries (“MPGC”), a not-for-profit, non-share capital corporation created by a special Act of the Legislature of Upper Canada in the 1800s. The development of a crematorium and visitation centre at one of MPGC’s cemeteries was the catalyst that resulted in proceedings brought by the respondents, Friends of Toronto Public Cemeteries Inc., a company incorporated to pursue this application, which consists of members of a local neighbourhood ratepayers’ association, and Kristyn Wong-Tam, a Toronto resident [1] (collectively referred to as “FTPC”). FTPC challenges MPGC’s governance and status. The Public Guardian and Trustee (the “PGT”) was named as a respondent to the proceedings. [2] There are four broad issues on this appeal. [3] The first involves the application judge’s conclusion that statutes from 1826 and 1849 continue to govern the election and appointment of MPGC’s trustees or directors. MPGC argues that a statute from 1871 fundamentally changed the election and governance model provided for in the 1826 and 1849 statutes. [4] The second issue involves the application judge’s conclusion that MPGC’s visitation centre and funeral home businesses exceed MPGC’s objects. (Based on the evidence before him, the application judge was unable to decide whether the current crematoria operations exceed MPGC’s objects.) MPGC argues that none of these business activities are outside of MPGC’s objects, and in any event, the relief granted was not requested by the respondents. [5] The third issue concerns the application judge’s finding that MPGC was a charitable trust subject to the provisions of the Charities Accounting Act , R.S.O. 1990, c. C.10 (the “ CAA ”). MPGC argues that it does not have a charitable purpose. [6] Finally, the fourth issue, which is the basis of the cross-appeal, involves the application judge’s decision not to order the PGT to conduct an investigation of MPGC under the CAA . The application judge concluded that the public interest would not be served by ordering such an investigation. [7] MPGC appeals the application judge’s conclusion on the first three issues. FTPC cross-appeals from the refusal of the application judge to order an investigation. The PGT supports FTPC’s position on the main appeal, but opposes FTPC’s cross-appeal seeking an investigation. [8] For the reasons that follow, I would allow the appeal and dismiss the cross-appeal. FACTS [9] The War of 1812 brought a surge in the population of the Town of York in Upper Canada. Up to 1825, York’s only two burial grounds were an Anglican cemetery and a Catholic cemetery. With the increase in population, there was a need for a non-denominational cemetery. This heralded the birth in 1826 of a six-acre cemetery at Potters Field located at the northwest corner of what is now the intersection of Bloor and Yonge streets. This was followed by the acquisition of the Toronto Necropolis in the 1850s and the acquisition of a 205-acre plot that opened as Mount Pleasant Cemetery in 1876. [10] Over time, those cemetery operations have expanded. MPGC now has close to 450 employees and operates ten cemeteries on 1,222 acres of land containing the resting place of roughly 600,000 people. Its facilities are in Toronto, Vaughan, Pickering, Richmond Hill, Brampton, and Oshawa, and include four crematoria, 14 mausoleums and five visitation centres. Other than the original $300 raised in 1826 to acquire Potters Field, there has been no recourse to government funding or public fundraising in the course of MPGC’s extensive expansion. [11] A more detailed history of MPGC is revealed in numerous statutes. (1) 1826 Act [12] In 1826, certain inhabitants of the Town of York petitioned the Legislative Council of Upper Canada. The petition resulted in An act to authorize certain persons therein named, and their successors, to hold certain lands for the purpose therein mentioned , 1826, Act of U.C. 7 G. 4, c. 21 (the “ 1826 Act ”). [13] The 1826 Act stated that the inhabitants of the Town of York had held meetings to fix a plan to obtain land “for the purpose of a general burying ground, as well for strangers as for inhabitants of the town, of whatever sect or denomination they may be”. It also stated that arrangements had been made to purchase six acres of land for this purpose by means of a private subscription. The petitioners asked the Legislative Council to authorize five named individuals, who had been nominated by the subscribers as trustees, as well as their successors, to hold the six acres of land in a corporate capacity. They also requested that power be given to make such rules and regulations as may be necessary. [14] The 1826 Act declared that it was lawful for the five named trustees and their successors to buy and hold the six acres of land for the aforesaid purpose of a general burying ground, and that it was lawful for the trustees, and their successors, “to be appointed as hereinafter mentioned, to have and to hold the same, to and for the use and purpose aforesaid, in perpetuity forever”. [15] Section II of the 1826 Act expressly provided a mechanism to avoid a failure of succession. If more than two of the trustees died, became resident abroad, or became otherwise incapable of acting, inhabitant householders of the Town of York could be elected as trustees (to complete the number of five trustees) by a vote of the majority of the inhabitant householders of the Town of York on the first Monday of January, upon 30 days’ notice in the government Gazette. The six acres to be purchased would immediately vest in the new trustees upon their election. [16] Section III of the 1826 Act provided that “for the time being”, the trustees would have the power to make rules and regulations “for the due management of the said land for the purpose aforesaid”. [17] In the result, although the petitioners had sought the right to hold the land in a corporate capacity, this element of the petition was not enacted. The land vested in five trustees for the purpose of a general burying ground whose successors would be elected by inhabitant householders of the Town of York. (2) 1849 Act [18] Next came the 1849 statute: An Act to amend an Act therein mentioned, and to vest the Toronto General Burying Ground in certain Trustees, and their Successors , 1849, S.C. 12 Vic., c. 104 (the “ 1849 Act ”). [19] Perpetual succession was of evident concern. Two of the trustees had died and one was no longer willing to act. The preamble of the 1849 Act noted that the provision in the 1826 Act “for perpetuating the Trust thereby created is inconvenient and ineffectual, and it is therefore expedient to name new Trustees for the purposes of the said Act, and to make better provision for perpetuating the succession of such Trustees”. It repealed Section II of the 1826 Act (dealing with the election of trustees) and that part of the first section limiting the number of trustees to five, declared certain individuals to be trustees under the 1849 Act (along with the two remaining and willing trustees from the 1826 Act ) , and vested the land in them and their successors. The number of trustees under the 1849 Act was fixed at seven. [20] The 1849 Act also introduced a new method of electing trustees. If a trustee died or resigned, it was the duty of each of the remaining trustees to call a meeting of the remaining trustees and elect a replacement from among the “inhabitant householders of the City of Toronto” [2] . The election would not be valid unless and until a notice of the election had been placed in the Canada Gazette. However, if within one month from the notice, the majority of the inhabitant householders of the City of Toronto present at a public meeting (announced twice in two or more newspapers) agreed to elect any inhabitant householder of the City other than the one elected by the trustees, that person would supersede the one chosen by the trustees. Thus, public elections were maintained in the 1849 Act but now only served to overturn the trustees’ selection of a successor. [21] It is this procedure that the respondents urged upon the application judge and which he accepted as governing MPGC today. Put differently, the respondents argued, and the application judge agreed, that the 1849 pioneer procedure for appointing trustees should apply to MPGC nearly two centuries later. [22] The 1849 Act also provided that the parcel of land held by the trustees would now be called “The Toronto General Burying Ground”. The 1849 Act therefore made two major changes: it changed the governance by the trustees in whom the land was vested and assigned a name to the land. (3) 1851 and 1855 Acts [23] The scheme enacted required repeated legislative attention. Under the 1851 statute, An Act to authorize the Trustees of the Toronto General Burying Ground, to acquire an additional lot of land , 1851, S.C. 14&15 Vic., c. 167 (the “ 1851 Act ”), the trustees asked for and were granted the right to lease land and to buy more land. (No land was in fact acquired under the 1851 Act .) The 1851 Act also permitted an aggrieved party to sue the trustees for fouling the water, empowered the trustees to make regulations for burials, prohibited certain interments, and imposed certain enclosure requirements. [24] In 1855, the trustees were authorized to close the existing burial ground at Potters Field and to purchase a site in the Township of York, provided it was not used for any purpose other than a cemetery. The land acquired under the 1855 statute, An Act to enable the Trustees of the Toronto General Burying Ground, to close the same, to sell a portion thereof, and to acquire other ground for the purposes of the Trust , 1855, S.C. 14&15 Vic., c. 146 (the “ 1855 Act ”), was the Toronto Necropolis, located in the north-east of Toronto. [25] The year 1867 brought Confederation and the Province of Ontario assumed jurisdiction over the cemetery from the former Province of Canada. (4) 1871 Act [26] In 1871, the Legislature of the young new province enacted the statute that is in issue in these proceedings: An Act to Incorporate the Trustees of the Toronto General Burying Ground, to confirm certain purchases made by them, to authorize them to acquire additional lands for the purposes of the said trust, and to amend the Acts relating to the said trust , 1871, S.O. 34 Vic., c. 95 (the “ 1871 Act ”). Unlike the 1826 and 1849 Acts , no reference was made to “successors” in the title. [27] The preamble of the 1871 Act reveals that the trustees again made a petition. They reported that they had contracted to buy land from the Toronto Necropolis and that it was expedient to buy more. The preamble continued: it is desirable that resident householders of the village of Yorkville and of the township of York may be eligible for selection to fill vacancies as trustees, and that the choice should not be limited to resident householders of the city of Toronto; and that it is expedient that the said trustees and their successors should be constituted a body corporate by the name of “The Trustees of the Toronto General Burying Grounds;” and that it is expedient that the provisions hereinafter contained should be enacted for the better management of the said trust, and whereas it is prayed by the said petition that the said trustees shall be incorporated and the said deeds confirmed, and the said corporation empowered to hold said lands and acquire additional lands for the purposes of the said trust, and that the provisions hereinafter contained should be enacted for the better management of the said trust…[Emphasis added.] [28] The Legislature then proceeded to enact the following provisions, among others. [29] Section 1 of the 1871 Act expressly stated that the seven named individuals and their successors are: hereby constituted and declared a body, corporate and politic, by the name of “The Trustees of the Toronto General Burying Grounds,” and by that name shall have perpetual succession and a common seal, and by that name shall sue and be sued, plead and be impleaded in all courts whatsoever, and shall have all the powers vested in corporations generally by the Interpretation Act . [30] Section 2 went on to provide: All the estate, real and personal, now vested in or owned or held by the Trustees of the Toronto General Burying Ground is hereby vested in and transferred to the said corporation hereby constituted, and all the powers and privileges granted to the said trustees by any former Act or Acts of the Province of Upper Canada or of Canada are hereby granted to said corporation, subject nevertheless, to all the conditions and duties imposed on said trustees not inconsistent with the provisions of this Act; and the said corporation shall be liable for all the debts, obligations and liabilities of the said trustees of the Toronto General Burying Ground. [31] Section 3 of the Act vested the lands in the corporation and empowered the corporation to hold the purchased land for the purposes of the trust. [32] Section 4 then stated that “Resident householders of the village of Yorkville, or of the township of York, shall be eligible for selection to fill vacancies as trustees of the said corporation.” [3] [33] The corporation was also given power to acquire additional lands in s. 5. Section 6 provided that the lands acquired by the corporation were to be “used exclusively as a cemetery or cemeteries or places for the burial of the dead”. The corporation could also sell lots to “any person or persons on such terms and conditions and subject to such by laws of the corporation, and at such prices as shall be agreed on, to be used and appropriated exclusively for the burial of the dead”. [34] Section 7 stated that the corporation “may enclose, lay out, improve and embellish such land in such manner, and may erect such buildings thereon, as the nature of the establishment may require, and may also further take and hold such personal property as may be necessary and proper for attaining the objects and carrying into effect the purposes of the said corporation.” Section 8 went on to state that the lands were not to be encumbered by the corporation. Moreover, the cemeteries or burying grounds were exempt from all public taxes, rates or assessments under s. 13. [35] Section 14 is of particular importance. It stated: That the said corporation shall appoint a secretary and treasurer to the same, with power to dismiss and re-appoint or appoint another at pleasure; and are hereby authorized to make by-laws and to repeal or alter the same, such by-laws not being inconsistent with any existing law, for the management of its property and for the suitable remuneration of the trustees, secretary, treasurer and other officers and servants of said corporation and the regulation of its affairs. [36] The 1871 Act therefore introduced a corporation and perpetual succession into the structure. The parameters of that corporate structure lie at the core of the first ground of appeal. (5) Interpretation Act [37] As mentioned, s. 1 of the 1871 Act declared the seven individuals a body corporate and politic, which would have all the powers generally vested in corporations by the “ Interpretation Act” . The relevant Act then in force was An Act Respecting the Statutes , S.O. 1867-1869, c. 1 (the “ 1867 Interpretation Act ”) . Subsection 7(28) stated: Words making any association or number of persons a corporation or body politic and corporate, shall vest in such corporation, power to sue and be sued, contract and be contracted with, by their corporate name, to have a common seal, and to alter or change the same at their pleasure, and to have perpetual succession, and power to acquire and hold personal property or moveables for the purposes for which the corporation is constituted, and to alienate the same at pleasure; and shall also vest in any majority of the members of the Corporation, the power to bind the others by their acts; and shall exempt the individual members of the Corporation from personal liability for its debts or obligations or acts, provided they do not contravene the provisions of the Act incorporating them [38] Subsection 7(32) provided that every Act was to be construed so as to reserve to the Legislature “the power of repealing or amending it, and of revoking, restricting or modifying any power, privilege or advantage” thereby vested or granted. [39] Lastly, s. 7(39) stated that the preamble of an Act “shall be deemed a part thereof intended to assist in explaining the purport and object of the Act.” Furthermore, every enactment was to be deemed remedial and was to receive “such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act, and of such provision or enactment, according to their true intent, meaning and spirit.” [40] The current Legislation Act, 2006 , S.O. 2006, c. 21, Sched. F, mirrors ss. 7(28), 7(32) and 7(39) of the 1867 statute in ss. 7, 64(1), 69 and 92(1). (6) Subsequent Acts Dedicated to MPGC [41] The years 1876, 1888, 1910, 1925, 1968 and 1977 saw other Acts which authorized further sales and purchases by the corporation. Proceeds of disposition were to be used for the proper purposes of the trust. The preamble of the 1876 Act ( An Act to authorize the sale of certain lands by the Trustees of the Toronto General Burying Grounds to the City of Toronto , 1876, S.O. 39 Vic., c. 66) spoke of the burial of the dead being the sole purpose for which the lands were held and reiterated that the lands were held subject to and for the carrying out of certain trusts. [42] The 1910 Act ( An Act respecting the Trustees of the Toronto General Burying Grounds , S.O. 1910, c. 160) again addressed the sale of land. The preamble contemplated the amendment of s. 4 of the 1851 Act dealing with enclosure of cemetery lands, but s. 3 of the 1910 Act in fact repealed s. 4 of the 1851 Act entirely and substituted it with a different provision. The remaining relevant 20 th century statutes authorized the corporation to acquire lands in other locations including the Regional Municipalities of Durham, Halton, and Peel. (7) The Corporations Act, 1953 [43] The year 1953 saw the introduction of the Corporations Act, 1953 , S.O. 1953, c. 19, concerning corporations with or without share capital. Part III of the statute, respecting “corporations without share capital”, applied to every corporation incorporated by or under a general or special Act of the Legislature “except where it is otherwise expressly provided”. Part III therefore applied to MPGC unless the respondents are correct in their assertion that the 1849 Act expressly provided otherwise. Subsection 112(1) of the Corporations Act, 1953 stated that “[t]he directors of a corporation may pass by-laws not contrary to this Act…to regulate,…(g) the time for and the manner of election of directors…and (j) the conduct in all other particulars of the affairs of the corporation.” (8) Cemetery Legislation [44] In 1913, the Legislature passed An Act respecting Cemeteries and the Interment of the Dead , S.O. 1913, c. 56, which defined “cemetery” to “mean and include any land which is set apart or used as a place for the interment of the dead, or in which human bodies have been buried”. This Act was amended in the years that followed. In 1980, for example, the Legislature passed the Cemeteries Act , R.S.O. 1980, c. 59, and then revised it in 1989 with An Act to revise the Cemeteries Act , S.O. 1989, c. 50. The 1989 Cemeteries Act had a broader definition of cemetery as “land set aside to be used for the interment of human remains and includes a mausoleum, columbarium or other structure intended for the interment of human remains”. Cemetery services received a broad definition and included “in respect of a cemetery, such other services as are provided by the owner of the cemetery at the cemetery”. [45] This Act was repealed in 2012 and replaced by provisions of the Funeral, Burial and Cremation Services Act, 2002 , S.O. 2002, c. 33 (the “ FBCSA ”), which permits appropriately-licensed entities to operate funeral homes and crematoria. (9) Trustees’ Conduct [46] The respondents rely on the MPGC trustees’ conduct to support their position that the election procedure described in the 1849 Act continues to govern MPGC today. Most notably, notices were placed in the Ontario Gazette following the election of a new trustee until 1987, when this practice stopped. There is no record that any resident householder of the City of Toronto ever sought to hold a public meeting to select a different trustee from that chosen by the existing trustees and no public meeting was ever held. [47] In 1891, the corporation published a pamphlet stating that “[t]he property to be acquired was declared to be, and is to-day, that of the citizens of Toronto, to be administered by a Board of seven Trustees, to be elected in the manner set out in the said Acts.” References to “Acts” was “to the various Acts passed since 1826 down to the present time [being 1891]”. [48] By 1975, the trustees started to describe themselves as “directors”, [4] and, as mentioned, by 1987, the corporation stopped placing notices in the Ontario Gazette. As the application judge noted, s. 283 of the Corporations Act , R.S.O. 1990, c. C.38, currently provides that the corporation’s affairs shall be managed by a board of directors “howsoever designated”, but does not require they be designated as “directors”. [49] The application judge found that the by-laws of MPGC around 1989 provided for ten directors, each of whom had a maximum of three four-year terms. [5] [50] Directors are members of MPGC. Directors receive an honorarium, but MPGC does not pay dividends or make other distributions to its members. The maximum received for a director’s honorarium and meeting attendances is in the $25,000 to $35,000 range annually. [51] Cremation and other alternative services became increasingly popular in the 1980s and MPGC grew concerned that these alternatives would cut into its revenues and impact its ability to meet its obligations, including its perpetual care obligations. As the appellant’s President, Glenn McClary, stated, the tradition of interring human remains in a cemetery was also being reassessed. Now cremated remains are frequently scattered in nature or kept at home in a decorative urn. To secure new sources of revenue, MPGC decided to offer funeral services as part of its product and service offerings. Due to regulations, however, this required a separate corporation. [52] In 1989, the directors of MPGC incorporated a new funeral services corporation named “Canadian Memorial Services” (“CMS”), a not-for-profit, non-share capital company with a board of directors that more or less mirrored MPGC’s. MPGC appoints four of CMS’ directors. CMS has three funeral homes, four crematoria, and five visitation centres that are located in MPGC cemeteries. CMS pays licensing fees to MPGC, who provides loans to, and receives interest from, CMS. As a funeral service provider, CMS also refers potential cemetery clients to MPGC. As the application judge found, CMS is effectively a wholly-owned subsidiary of MPGC “in all but name”. CMS’ long-term objectives are to meet a public need for funeral services and to contribute to ensuring the long-term financial viability of MPGC. [53] In January 1991, the corporation changed its name from “The Trustees of the Toronto General Burying Ground” to “Commemorative Services of Ontario” and then to “Mount Pleasant Group of Cemeteries” in 1997. No dispute is taken as to the authority to affect these name changes. For ease of reference, the company has been referred to as “MPGC” throughout these reasons. (10) Dispute with the PGT [54] On July 19, 1991, the PGT requested copies of MPGC’s financial statements, taking the position that MPGC was a charity and relying on the provisions of the CAA . MPGC’s solicitors, Weir & Foulds, responded, denying that MPGC was a charity subject to the CAA , and referred the PGT to Revenue Canada’s written advice that MPGC was not a charity. Among other things, MPGC’s solicitor observed that pursuant to s. 132(5) of the Corporations Act , on dissolution, the net assets of MPGC were to be distributed to the members of the company. [6] [55] The PGT did not pursue the matter. MPGC had not taken issue with the fact that it was regulated by the Cemeteries’ Regulation Unit and moreover, there were no allegations of any financial impropriety. The application judge noted that there was never any serious question of the directors of MPGC liquidating the corporation for their own profit. The letter sent by MPGC’s solicitors referenced the “net assets” of the corporation and, in any event, all or substantially all of the assets of the company were held subject to a statutory trust. [56] In 1997, as mentioned, the name of the company was changed to its current name, “Mount Pleasant Group of Cemeteries”. That year there was a corporate reorganization and another company was established to provide funeral services. That company was later renamed “Mount Pleasant Memorial Services”. (11) 21 st Century Developments [57] In 2006, MPGC wished to create a “visitation centre” at the Mount Pleasant Cemetery. The visitation centre proposed to replicate much of what might be found in a traditional funeral home, including a chapel for memorial services or funerals, a clergy room, and a number of visitation rooms for paying last respects to the remains of the deceased. This development became a focus of the neighbourhood dispute, and the “pleasant” descriptor of MPGC’s peaceful history became less apt. [58] In 2006, a group of local ratepayers (referred to in the record as the “Moore Park Residents’ Association” or the “Moore Park Ratepayers’ Association”) complained to the PGT about the proposed visitation centre and MPGC’s assertion that it was a privately-owned commercial cemetery. [59] Subsequently, the PGT reiterated that MPGC was a charity. An exchange of letters ensued, but the PGT took no further steps. [60] Around this time, Humphrey Funeral Home and the Moore Park Ratepayers’ Association applied to court and challenged the establishment of a visitation centre on the grounds that it was not an “associated use” to the main use of the cemetery within the meaning of the relevant City of Toronto by-law. In March of 2007, the application was rejected in reasons given by Harvison Young J. (as she then was). No express reference was made to any of the special statutes that had governed MPGC: Humphrey Funeral Home v. Toronto (City) (2007) , 32 M.P.L.R. (4th) 124 (Ont. S.C.). The Court of Appeal for Ontario released its reasons upholding the decision and dismissed Humphrey Funeral Home’s application in November 2007: Humphrey Funeral Home – A.W. Miles Chapel v. Toronto (City) , 2007 ONCA 828, 40 M.P.L.R. (4th) 126. This court agreed with Harvison Young J. that “the cemetery is as much about the living survivors as it is about the disposition of human remains”: at para. 7. The visitation centre fell within a use that was associated with a cemetery. [61] Construction of the visitation centre began shortly afterwards and was completed in or about 2009. It has been in operation since that time. [62] In the meantime, in 2008, the appellant brought and then withdrew an application to be continued under the Corporations Act . [63] In 2010, in response to correspondence sent by counsel for the Moore Park Ratepayers’ Association to the Premier of Ontario, the Deputy Minister of Research and Innovation and Consumer Services responded and stated that given the local nature of the dispute, and the fact that there was appropriate government oversight of the cemeteries operated by MPGC, the government was not considering making any legislative amendments to address the issue of the validity of the board of directors. [64] As mentioned, in 2012, the FBCSA was enacted. In his affidavit, MPGC’s President explained that the FBCSA allowed MPGC to simplify its corporate structure as cemeteries were now able to own funeral homes and funeral homes were able to operate crematoria. Accordingly, there was an ensuing reorganization in which Mount Pleasant Memorial Services surrendered its charter and transferred its assets to MPGC. [65] In 2013, the respondent FTPC was incorporated by some members of the Moore Park Ratepayers’ Association that had been involved in the prior interventions, augmented by others who joined as members. That same year, the respondent Ms. Wong-Tam brought a proceeding before the Environmental Review Tribunal seeking leave to appeal a decision of the Director of the Ministry of the Environment that had permitted an expanded crematorium operation at the Mount Pleasant Cemetery. On July 8, 2013, the Environmental Review Tribunal rejected her application. [66] MPGC is self-sufficient. As of 2014, when Mr. McClary’s affidavit was sworn, in addition to ownership of its lands and buildings, MPGC maintained numerous separate funds, as described by Mr. McClary: Care and Maintenance (“C&M”) Trust Fund When MPGC sells an interment right, be it a grave, a crypt in a mausoleum or a niche in a columbarium, provincial legislation requires that a certain portion of the revenue be deposited in a C&M Trust Fund…The C&M Trust Fund must be managed by a corporation registered under the Loan and Trust Corporations Act or by a Credit Union…HSBC Trust Company (Canada) (“HSBC”) is the trustee for the C&M Trust Fund…Our C&M Trust Fund was valued at $349 million as of March 31, 2014. Prepaid Trust Fund When money is received from the sale of a product or service that is not being delivered until a date in the future, provincial legislation requires that the money be deposited into a Prepaid Trust Fund. This trust fund must be managed by a corporation registered under the Loan and Trust Corporations Act or by a Credit Union. HSBC is the trustee for our Prepaid Trust Fund…As of March 31, 2014, our cemetery Prepaid Trust Fund was valued at $113.5 million. Endowment Fund When families wish to make a provision for ongoing special care of their interment right, at a level not provided by the regular cemetery maintenance program, they can invest a specific amount in our Endowment Fund. This amount will be invested in interest bearing securities. The capital can be refunded at any time, and the interest earned each year will go to providing the desired special care (for example wreath placement, monument cleaning, or special gardening or flower requirements)… As of March 31, 2014, our Endowment Fund was valued at $3.9 million. General Fund After operating expenses and care and maintenance contributions are deducted from revenues, any balance is placed in MPGC’s General Fund. This fund is used to create products and services that meet the changing needs of Toronto families; to develop new facilities and enhance existing ones; and to secure new lands to meet the needs of the Greater Toronto Area’s rapidly-growing population. As of March 31, 2014, our General fund was valued at $63.4 million. [67] MPGC has consistently taken the position that it is not a charity. It says it does not act for a charitable purpose and charges market and above market rates. In 1977, Revenue Canada confirmed that MPGC was not a charity for the purposes of the Income Tax Act in force at the time. (12) Government Oversight [68] MPGC and CMS are subject to considerable government oversight. MPGC and CMS are currently regulated by the Bereavement Authority of Ontario as well as by the PGT under the FBCSA . A brief summary of this oversight, and of the information MPGC and CMS provide to the supervising organizations, was also described by MPGC’s President. (A) Cemetery Registrar [69] A registrar is appointed under s. 3 of the FBCSA to administer certain of its provisions. The FBCSA requires that any information requested by the registrar be provided “within the time that the registrar specifies, with the information that the registrar requests, including at the registrar’s request, verification, by affidavit or otherwise, of any of the information requested”: s. 111. MPGC’s President stated that MPGC files annual reports with the registrar within 90 days of its fiscal year end in respect of: (a) Cemetery Activity; (b) the Care and Maintenance Fund; (c) the Prepaid Trust Fund; and (d) Audited Financial Statements (when available after completion of the audit). [70] FBCSA cemetery oversight also extends to: (a) directors, management and sales staff changes; (b) licensing and education of cemetery operators, crematorium operators and sales representatives; (c) selling and display of caskets; (d) pricing and contracts; (e) trust funds; (f) record keeping; (g) construction of interment rights; (h) cemetery by-laws; (i) customer complaints; (j) site inspections; and (k) information to be available to the public. [71] Over the 2010-2011 period, all MPGC cemetery sites except Pine Hills in Scarborough were inspected. The MPGC site at Meadowvale in Mississauga was inspected twice. Financial records at MPGC’s head office were also inspected twice. (B) Board Funeral Services [72] CMS is also heavily regulated under the FBCSA . Sections 8 and 9 require operators to hold a valid licence. In addition, MPGC’s President explained that funeral oversight also extends to: (a) directors, management and licensed staff changes; (b) licensing and education of funeral directors and preplanning sales representatives; (c) premises and vehicles; (d) selling and display of caskets; (e) pricing and contracts; (f) trust funds; (g) record keeping; (h) customer complaints; (i) site inspections and investigations; and (j) discipline. [73] Prior to 2013, CMS had three licensed funeral homes, operating under the name “The Simple Alternative”. In 2013, the five MPGC visitation centres were licensed to CMS and inspections were conducted prior to the issuance of licences. Regular inspections were also conducted. (C) Powers of the PGT [74] The PGT may require any licensee or trustee to provide: (a) audited financial statements for any trust account or trust fund; and (b) any information related to trust accounts or trust funds: FBCSA , s. 58. [75] MPGC’s financial records are regularly inspected. At the time the application was heard by the application judge, MPGC cemeteries and visitation centres were described as having been inspected from 2010 to 2013, which included the inspection of financial records on two occasions. As the application judge observed, there were no allegations that funds had gone missing or had been misappropriated, nor any basis to conclude that the directors had acted in bad faith: at para. 14. [76] I will return to the oversight provisions in the FBCSA when discussing the third issue relating to a charitable purpose trust. (13) Court Proceedings [77] On April 29, 2013 (and then as amended on May 30, 2014), FTPC applied for a number of declarations and orders. FTPC sought a declaration that MPGC continues to be governed by the 1826 Act , as amended by the 1849 Act , including the provisions in the 1849 Act relating to the public election of trustees. Accordingly, they sought a declaration that the current directors of MPGC were not validly appointed. FTPC also sought a declaration that MPGC was incorporated pursuant to the 1871 Act for the sole purpose of acting as trustee for the statutory trust created in 1826 (what it called the “Burying Grounds Trust”) and for the benefit of the public. In addition, FTPC asked that the Burying Grounds Trust be declared a charitable purpose trust within the meaning of the CAA , and that MPGC be declared a charitable corporation within the meaning of the CAA . Finally, FTPC sought an order pursuant to s. 10 of the CAA that the PGT investigate: whether MPGC had conducted its affairs consistent with its legal obligations as a trustee; whether MPGC had elected or appointed its directors in a manner consistent with the requirements of the 1826 and 1849 Acts ; and whether MPGC had ensured that the Burying Grounds Trust was appropriately compensated. [78] The application was stated to have been brought because MPGC was now denying: (1) that it was a trustee; (2) that its lands and assets were subject to a trust; (3) that it was subject to the Special Act incorporating it; (4) and that it had any accountability to the public or the province. The PGT was named as a respondent to the application. Ms. Wong-Tam was added as an applicant in May 2014. REASONS OF THE APPLICATION JUDGE [79] The application judge granted the application with the exception of the request for an investigation. He determined that the incorporation of MPGC in 1871 neither repealed prior Acts nor made any direct provision for the appointment of directors. The provisions for the appointment of trustees contained in the 1849 Act remained the same. As such, directors were required to be appointed in accordance with the terms of the 1849 Act . As there had been noncompliance since 1987, the application judge held that all of the current directors had been invalidly appointed. Relying on s. 288(4) of the Corporations Act , he appointed MPGC’s seven most senior directors as trustees and ordered the parties to negotiate a protocol (to be approved by him) to govern the meeting for the election. The trustees were to place a notice of the meeting in the Ontario Gazette. It would then be open to FPTC to call a public meeting in accordance with the provisions of the 1849 Act at which one or more inhabitant householders of the City of Toronto could be elected in replacement of one or more of the seven trustees named by the application judge. [80] The application judge also declared that MPGC was a trustee subject to the provisions of the CAA , and that the trust administered by it was a charitable trust because the operation of a non-profit, non-denominational public cemetery qualified as a charitable purpose. He further declared that the funding and operation of visitation centres and the CMS funeral home business went beyond the scope of the statutory trust. As the evidence before him was inconclusive on the current scale of operation of crematoria, he was unable to make a determination in that regard. Nothing was said on how MPGC was to manage in the interim with all these now illegal lines of business. [81] The application judge was not satisfied that the public interest would be served by ordering an investigation. To use his terminology, MPGC was not a runaway train. He stated, at para. 14, that “[t]here is no basis to conclude that its trustees – even if invalidly appointed – have acted in bad faith even if I have concluded that they have acted in error. They have not gone rogue.” [82] The application judge’s reasons were released on December 31, 2018. MPGC appealed from that decision. The respondent FTPC cross-appealed from the application judge’s refusal to order an investigation under the CAA . [83] On March 14, 2019, on consent, this court granted an order staying the following declarations granted by the application judge: (1) that MPGC is required to be governed by a board of not more than seven trustees each of whom is required to be appointed in accordance with the provisions of the 1826 Act as amended by the 1849 Act ; (2) that none of the ten current directors of MPGC has been validly appointed as a trustee of MPGC and none has the authority to appoint a new or replacement trustee; and (3) that the funding and operation of visitation centres and the CMS funeral home business is beyond the scope of the existing statutory trust administered by MPGC. GROUNDS OF APPEAL [84] The appellant relies on three alleged errors of the application judge in support of its appeal. It states that the application judge (1) erred in his statutory interpretation of the 1800s legislation, and in particular, the 1871 Act ; (2) erred in declaring that the operation of the visitation centres and funeral homes was outside MPGC’s legislative objects, which was relief the respondents did not request; and (3) erred in concluding that MPGC was a charitable trust (referred to throughout these reasons as a charitable purpose trust). The parties agree that a standard of correctness applies to each of these grounds. ISSUE 1: DID THE APPLICATION JUDGE ERR IN HIS INTERPRETATION OF THE 1871 ACT ? (1) Positions of the Parties [85] The appellant submits that the application judge erred by disregarding the fundamental shift to the corporate legal framework governing MPGC that was introduced by the Legislature in 1871. The appellant argues that the application judge failed to recognize that with incorporation, perpetual succession was no longer a concern and that MPGC’s governing body was given the power to pass by-laws to regulate its affairs, which necessarily included governance. The expansion of trustee eligibility requirements in the absence of a corresponding change to the voting requirement is consistent with this. Moreover, the change to the legislation reflected a legislative intent to prioritize efficiency of governance over public oversight. [86] The appellant also argues that the scope of the by-law making power found in s. 14 of the 1871 Act gave MPGC full authority to elect its directors, an authority that is consistent with general corporate statutes in effect around the time of the 1871 Act , the interpretation mandated by the Interpretation Act , and the statutory principles of harmony and consistency, as well as common sense. It submits that the application judge’s errors in statutory interpretation led to an outcome that is inconsistent with the purpose of the 1871 legislation and results in an absurdity. [87] The respondent FTPC and the PGT dispute that the 1871 Act reflected a fundamental shift in the legal framework governing MPGC. Their position is that the 1849 Act established both the number of MPGC’s trustees (seven) and the “manner” in which they were to be selected, not the 1871 Act or any subsequent statutes. The 1849 Act was not repealed either expressly or impliedly; incorporation did not alter the method of selection of the trustees; and the creation of a body corporate did not constitute a repeal of the prior statutes. The respondent FTPC and the PGT contend that the 1871 Act provided for the trust to be continued and be bound by “all the conditions and duties” imposed by the prior legislation. Moreover, they submit that MPGC’s subsequent conduct and publications support this interpretation. [88] Before embarking on an analysis of the legal effect of the 1871 Act , it should be emphasized that, consistent with the application judge’s finding, all parties before this court concede that a statutory trust was established by the Legislature and no appeal is taken in that regard. Accordingly, I do not propose to address that issue. [7] [89] The parties also agree on nomenclature. Under the 1826 and 1849 Acts , the men identified in the statutes were trustees who held the land in trust as dictated by the statutes. With the introduction of the 1871 Act , the corporation was the trustee and the individual trustees no longer held that position in a legal sense. The 1871 Act continues to speak of trustees rather than directors, but this is an issue of nomenclature rather than legal significance, a fact acknowledged by the application judge and by counsel. (2) Analysis [90] The starting point with statutory interpretation is Elmer Driedger’s description of the modern principle: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: Elmer A. Driedger, The Construction of Statutes (Toronto: Butterworths, 1974), at p. 67. [91] Both under s. 7(39) of the 1867 Interpretation Act and s. 64(1) of the current Legislation Act , 2006 , every enactment shall be deemed to be remedial and receive such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act. [92] The modern principle was adopted by the Supreme Court in Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27, at para. 21. Justice Iacobucci observed that “statutory interpretation cannot be founded on the wording of the legislation alone”: at para. 21. Among other things, he considered the purpose of the Act, along with its consequences or effects, and also noted that the legislature does not intend to produce absurd consequences: at para. 27. See also Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. That decision reiterated the presumption of harmony, coherence, and consistency between statutes dealing with the same subject matter: Bell ExpressVu , at para. 27. [93] It is fair to say that the historical Acts in issue in this appeal are not models of legislative clarity; rather, they are products of their times, times devoid of computers, photocopiers, and ubiquity of publication. As historical statutes, they present real interpretative challenges. [94] Changes to legislation may be effected by amendment or express or implied repeal: Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed. (Markham: LexisNexis Canada Inc., 2014) (QL), at para. 24.30. [95] The appellant took the position in oral argument that it was not relying on implied repeal and argued that changes to MPGC’s governance were effected by amendment, as reflected in the title of the 1871 Act . In oral submissions, counsel relied on Sullivan’s commentary on amending legislation (found in a chapter of her book entitled “Temporal Operation”) in support of his position. She writes, at paras. 24.70–24.72, that in analyzing the temporal operation of amendments, the courts look to substance rather than form and that the part of the amendment that introduces new law is treated as new legislation. Sullivan goes on to state that “the part of existing law that is not substantively reproduced in the new text is treated as a repeal. It ceases to be law and ceases to be in force from the moment the amendment operates”: Sullivan, at para. 24.71. [96] While I accept that the governance of MPGC was altered by the 1871 Act , in this passage, Sullivan is addressing the temporal operation of amendments rather than providing a stand-alone interpretative principle. Accordingly, I would not place weight, as the appellant does, on this passage. [97] The appellant also relies on Montreal v. ILGWU Center Inc. (1971), 1974 S.C.R. 59, in support of its position. In that case, the relevant amending Act expressly stated that it was replacing the prior Act. From a timing perspective, the part of the prior Act that was replaced (i.e., that was not substantively reproduced in the new Act) was treated as a repeal. The decision does not stand for the proposition that a substantive change requires that all continuing provisions be reproduced, failing which, those provisions that are not reproduced are considered to be repealed. [98] As FTPC argued, the appellant’s submission is more properly characterized as being based on implied repeal. As a standard of correctness applies to statutory interpretation, the appellant’s mischaracterization is not determinative; it is for this court to determine points of law: Orphan Well Association v. Grant Thornton Ltd. , 2019 SCC 5, [2019] 1 S.C.R. 50, at para. 125. I see no unfairness as FTPC addressed implied repeal in its factum and, in any event, the substance of the appellant’s argument was based on implied repeal and was simply mischaracterized. [99] In R. v. Mercure , [1988] 1 S.C.R. 234, a case relied upon by FTPC, La Forest J. addressed implied repeal at p. 265: [S]tringent tests…have been established to warrant a holding that a statute has been impliedly repealed. As the court put it in The India (1865), 12 L.T.N.S. 316, at p. 316, a prior statute is repealed by implication only “if the entire subject-matter has been so dealt with in subsequent statutes that, according to all ordinary reasoning, the particular provisions in the prior statute could not have been intended to subsist”. [100] In Conseil scolaire francophone de la Colombie-Britannique v. British Columbia , 2013 SCC 42, [2013] 2 S.C.R. 774, also relied upon by the FTPC, Wagner J. (as he then was) commented on the holding in Mercure , stating at para. 44: [A]n implied repeal has occurred if subsequent legislation has occupied the field to such an extent that the court can infer that the legislature intended to repeal the earlier statutes. There was no mention in Mercure of a requirement to prove conflict. Both the test for implied repeal and the test for implied modification are based on the occupation of the field by subsequent legislation. [101] A modern statute designed to repeal a prior statute is likely to so do explicitly. And, as Sullivan observes at para. 24.39, under current Canadian practice, repeal is usually carried out through the enactment of stylized provisions. [102] Although repeal was clearly a known concept in 1849, as mentioned, there was no express repeal here of any parts of the 1849 Act . Moreover, there is a general presumption against implied repeal. That said, “the strength of that presumption against implied repeal varies according to the context. In modern times, when standards of legislative drafting are high, the presumption against implied repeal is stronger”: Diggory Bailey & Luke Norbury, Bennion on Statutory Interpretation , 7th ed (UK: Lexis Nexis, 2019), at p. 207. [8] In a similar vein, Lord Roskill observed in Government of United States of America v. Jennings and Another (1982), 75 Cr. App. R. 367 (H.L.), that earlier cases on implied repeal had to be approached and applied with caution, since “until comparatively late in the last century statutes were not drafted with the same skill as today”: p. 376. [9] . [103] Reading the words of the 1871 Act in their entire context, and in their grammatical and ordinary sense harmoniously with the scheme and object of the Act, I conclude that the Legislature intended to change the governance of MPGC to a corporation with perpetual succession being achieved through the enactment of by-laws rather than through the vehicle of an election. The 1871 Act occupied the field. Furthermore, a contrary conclusion produces absurd results. As such, the 1849 trustee selection process was no longer applicable. I reach this conclusion for the following reasons. (A) Preamble of 1871 Act [104] Originally, the petitioners petitioned the government to hold the six acres of land in a “corporate capacity”. As noted, this was not granted by the Legislative Council in the 1826 Act . The five named individuals were to hold the land in trust. They were also given the power, “for the time being”, to make rules and regulations for the purposes described in the Act and for the due management of the land. In addition, the trustee selection process would “prevent the failure of such estate in succession”. [105] In the immediately succeeding statutes dealing with the cemetery, the Legislative Council worked with different formulations. By 1871, the Legislature had now resolved, as the name of the statute suggests, to “Incorporate the Trustees of the Toronto General Burying Ground” and, among other things, “to amend the Acts relating to the said trust”. The individual trustees were relieved of responsibilities that were then vested in the corporation. [106] At the time, s. 7(39) of the 1867 Interpretation Act directed the reader to the preamble of an Act to assist in explaining its purport and object. The 1871 Act ’s preamble identified the following objects: · it was expedient that the trustees and their successors should be constituted a body corporate; · the provisions of the Act were enacted for the better management of the trust (repeated twice in the preamble); · it was expedient that the trustees have the power to acquire additional lands; and · it was desirable for the residents of the village of Yorkville and the Township of York to be eligible for selection to fill vacancies as trustees, and the choice should not be limited to residents of the City of Toronto. [107] The application judge did not focus on all elements of the preamble (and particularly the better management and body corporate objects)—which assisted in explaining the purpose of the 1871 Act — and hence failed to give effect to the Act’s purpose. The public election component of the 1849 Act was subsumed and replaced by the vehicle of incorporation which provided for perpetual succession, the factor to which I will now turn. (B) Perpetual Succession as an Object [108] In addition to the direction given by the preamble, the language of the 1871 Act reflects a legislative intent to establish a corporation, with the individuals in whom the lands had previously been vested now being constituted and declared a body, corporate and politic. Thus, s. 1 of the Act recognized that “perpetual succession” was achieved and s. 2 stated that all property previously vested in the trustees was vested and transferred to the corporation.  Incorporation now ensured perpetual succession, and this object of the 1849 Act, described in that Act’s preamble, was therefore rendered unnecessary. Contrary to the application judge’s assumption, there was nothing in the legislation that suggested any public oversight concerns: see para. 105 of the application judge’s reasons. Rather, the 1849 Act suggested a concern with perpetual succession, a concern that was eliminated with incorporation in 1871. (C) Better Management as an Object [109] Recall too that the preamble of the 1871 Act repeatedly stated that “the provisions hereinafter contained” were enacted “for the better management of the said trust”. These provisions would necessarily include s. 14 on governance, a subject I will now address. [110] Importantly, the 1871 Act substituted a new corporate regime for the prior regime. Incorporation represented a fundamental shift in the trust’s capacity, persona and operations. This new regime included replacement provisions for corporate governance, specifically in s. 14, where the corporation was granted authority to pass by-laws for “the management of its property” and for the “regulation of its affairs”. In Ontario Teachers’ Federation v. Ontario Secondary School Teachers’ Federation et al. , 2002 CanLII 41933 (Ont. C.A.), leave to appeal refused, 2003 CarswellOnt 1279 (S.C.C.), this court interpreted the term “affairs of a corporation” expansively and determined that it encompassed the governance of a corporation: at para. 31. [111] In the case before us, by giving the corporation this authority, the Legislature intended “The Trustees of the Toronto General Burying Grounds” to address its own governance. [112] The evolution of the statutory scheme reflects the Legislative Council’s emphasis on efficiency, convenience, and enhanced management of the trust. The fledging colony’s 1826 Act provided for direct democracy—all inhabitant householders of the Town of York could vote to replace a trustee who had died, became resident abroad, or was incapable of acting. In 1849, it was recognized that this method to ensure perpetual succession was “inconvenient and ineffectual” and Trustees were given the power of selection subject to notice and further potential for a public election. With a growing population, 1871 demanded further change and a need to ensure the “better management” of the trust. Hence the introduction of the efficiency of incorporation and the demise of a system of direct democracy for the governance of Toronto’s non-denominational cemetery. The directors/trustees would be elected not at public municipal elections but pursuant to the by-law powers anchored in the 1871 Act . (D) Context and Other Comparable Statutes [113] In addition to the aforementioned context, other statutes of the era provided for governance by directors acting under the authority of by-laws: F.W. Wegenast , The Law of Canadian Companies (Toronto: Burroughs and Company [Eastern] Limited, 1931), at p. 22. [114] I would also observe that the Corporations Act, 1953 continued the corporate model featured in the 1871 Act . In that statute, Part III applied to every corporation without share capital incorporated by or under a general or special Act of the Legislature except where it was otherwise expressly provided. Upon incorporation, each applicant became a member and the members would elect the directors. Section 112 of the Corporations Act , 1953 provided that the directors of a corporation could pass by-laws not contrary to the Act for, among other things, the time for and the manner of election of directors and the conduct in all other particulars of the affairs of the corporation: ss. 112(g) and (j). [115] The application judge determined that the provisions of the Corporations Act, 1953 did not render the specific provisions of the 1849 Act inoperative. However, given that the 1849 election provisions had been spent by the 1871 Act , there was no such need. Rather, the Corporations Act , 1953 , served to reiterate and provide more detail and clearer particulars on the role of directors within the construct of a corporation. This is in keeping with the presumption of coherence in enactments of the same legislature: Pierre-André Côté, Interpretation of Legislation in Canada , 4th ed. (Toronto: Carswell, 2011), at p. 365. [116] The respondents place weight on the notices placed in the Ontario Gazette and publications in the years following the 1871 Act . However, while I accept that subsequent conduct may provide some insight, it should not determine the interpretation of a statute. Indeed, the respondents concede the non-determinative nature of subsequent documents and conduct. (E) Language of the 1871 Act [117] The 1871 Act also confirmed that the corporation would have all the powers vested in corporations generally by the 1867 Interpretation Act .  This latter statute provided for perpetual succession in a corporation, thereby eliminating the need for the municipal elections described in the 1826 and 1849 statutes. [118] This interpretation does not ignore s. 2 of the 1871 Act , as asserted by the respondents. That section stated that all the powers and privileges granted to the trustees by any former Act of the Province of Upper Canada or Canada were granted to the corporation subject to all the conditions and duties imposed on the trustees not inconsistent with the 1871 Act . Section 1 gave the new corporation all the powers vested in corporations generally by the 1867 Interpretation Act . The public election process was inconsistent with the corporate governance model, a model instituted to achieve better management of the trust, and governance being an obvious recurring issue for the Legislature. The “conditions or duties of concern” related not to governance but to the trust and the nature of the trust property being cemeteries and burial grounds. The 1871 Act ’s reference in s. 14 to the by-laws not being inconsistent with any existing law is similarly not fatal to the appellant’s position as the public election process was eliminated due to incorporation. Furthermore, with both subsections, the Legislature could have readily referred to the specific statutory provisions it wished to retain rather than using the generic language it did, language which, if interpreted as proposed by the respondents, would defeat the better management purpose of the 1871 Act . (F) Consequences and Effects 1. Eligible Voters [119] There is also s. 4 of the 1871 Act . It rendered resident householders of the village of Yorkville or of the Township of York eligible for selection to fill vacancies as trustees of the corporation. However, nowhere are these resident householders accorded a power to vote in any election. It would be anomalous if the 1849 Act continued to govern appointment of trustees as submitted by the respondents. This would mean that householders from the village of Yorkville and Township of York would be eligible for selection as trustees but, unlike householders of the City of Toronto, would have no ability to participate in any vote. The power to vote would be confined to resident householders of the City of Toronto as prescribed by the 1849 Act . The emphasis in the 1871 Act on eligibility for selection undermines the submission that the eligibility to vote provisions of the 1849 Act survived. The anomalous outcome associated with the public elections model advanced by the respondents supports the conclusion that the structure intended by the 1871 Act was a governance model based on corporate status rather than public elections. 2. Absurd Procedure and Results [120] Interpreting the statutes as proposed by the respondents and as accepted by the application judge would require the following steps to elect a replacement trustee: · notice in the Ontario Gazette; · two announcements of a public meeting in two newspapers; · a public meeting held within one month of the notice in the Ontario Gazette if requested;    and · an election by the majority of the inhabitant householders of the City of Toronto present at the meeting. [121] In my view, the consequences of the interpretation advocated by the respondents would be impractical and absurd. The application judge found that there have been no validly appointed trustees since the corporation ceased posting notices in the Canada Gazette over thirty years ago. The public elections model would demand an election apparatus far removed from any in the contemplation of the legislators of 1849. Moreover, the public elections model would result in City of Toronto inhabitant householders being the only eligible electors for cemeteries extending to the Regional Municipalities of Durham, Halton and Peel, among others. There is also a real issue as to who would be encompassed by the term “inhabitant householders” and as to the territorial limitations of the “City of Toronto” descriptor. The corporate structure erased this cumbersome (and no doubt costly) process. Moreover, the procedure eludes implementation. Even if one were to accept that voters from the village of Yorkville and the Township of York were precluded from voting, the definitional questions raised on the meaning to be ascribed to those former community entities and “inhabitant householders” are unanswerable. [122] The public election model was uncovered by legal sleuthing close to two centuries after the statutes in issue had been enacted. It did not emerge as a result of any societal imperative or injustice. And, the Ontario Government advised counsel for the Moore Park Ratepayers’ Association that the Government saw no need to amend the legislation. [123] The Legislature is presumed to have intended its statutes to apply in a way that is not contrary to reason and justice. This presumption has been expressed in a variety of ways. In Berardinelli v. Ontario Housing Corp. (1978) , [1979] 1 S.C.R. 275, Estey J. explained at p. 284: When one interpretation can be placed upon a statutory provision which would bring about a more workable and practical result, such an interpretation should be preferred if the words invoked by the Legislature can reasonably bear it. [124] In Rizzo , at para. 27, the Supreme Court addressed absurdity in interpretation. Iacobucci J. explained that: an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment [citation omitted]. Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile [citation omitted]. [125] In my view, the purpose, scheme and legislative intention all support the conclusion that the 1871 Act heralded a new corporate regime. In maintaining adherence to the 1849 electoral governance structure, the application judge did not give effect to the change in the legal status of the trustees and their evolution into a corporation, a change that reflected a new governance model. The application judge expressly identified those sections of the Act he considered to be relevant but did not consider all the detail of the 1871 Act ’s preamble, and in particular, the better management object. Based on the provisions of the 1867 Interpretation Act , the preamble formed part of the statute. He did not wrestle with the changed legal status of the trustees and the change of purpose that was incorporated into the Act’s title. Moreover, the object of “better management” had to be referable to the preceding statute—put differently, the 1871 management model was expressly designed to be better than that contained in the 1849 Act , an Act dedicated to an election model. [126] Moreover, the 1871 Act should be interpreted in a dynamic manner applied to present circumstances and not in a manner that is inconsistent with the legislative intent or that produces impractical, unworkable, anomalous and absurd results. Absurd interpretations are presumed not to be intended. (See also: Paul v. The Queen , [1982] 1 S.C.R. 621, at pp. 662-664; Re Vabalis , 2 D.L.R. (4th) 382 (Ont. C.A.)). I conclude that with the enactment of the 1871 Act , the Legislature intended to displace the public election model, and that the application judge erred in concluding otherwise. [127] I would allow this ground of appeal. The 1871 Act permits an interpretation that both reflects the legislative intent at the time and permits a governance model untethered from pioneer electoral practices. ISSUE TWO: ARE THE VISITATION CENTRE AND FUNERAL HOME OPERATIONS OUTSIDE OF MPGC’S LEGISLATIVE OBJECTS? [128] To recap, the 1826 Act provided that the land was for a general burying ground. The 1871 Act stated that the lands were to be used “exclusively as a cemetery or cemeteries or places for the burial of the dead”. [129] The application judge found that the terms of the trust prohibited the use of MPGC’s lands for anything other than the operation of a public cemetery for the burial of the dead. He granted a declaration that “[t]he funding and operation of visitation centres and the CMS funeral home business is beyond the scope of the existing statutory trust administered by MPGC”: at para. 164. He reasoned that in the 19 th century, there would have been a clearly understood difference between burial of the dead and preparation of the dead for burial, the former being the responsibility of cemeteries and the latter of undertakers, funeral homes, or families. On the other hand, he observed that statutes are considered to be always speaking. Using “burial of the dead” as the defining requirement, he concluded that visitation centres and the funeral home business did not qualify. He declined to make any finding or declaration on crematoria because he did not have sufficient evidence on the history of cremation in Ontario and its regulation: at paras. 156-157. (1) Positions of the Parties [130] The appellant begins by arguing that none of the respondents claimed the relief granted, namely a declaration that the use of cemetery funds to acquire and capitalize CMS and the operation of visitation centres and funeral homes on the cemetery lands is beyond the objects of the trust. It also submits that the application judge did not advert to the correct test and applied an unduly restrictive interpretation of MPGC’s objects. These objects should have been construed purposively. He disregarded the evidence on the rational and close relationship between the cemetery business and the visitation centre and funeral home operations, and ought to have deferred to the board of directors whose decisions are entitled to deference under the business judgment rule. [131] The PGT respondent submits that the issue of the operation of these other businesses had been raised in the context of the investigation requested by FTPC. It emphasizes that the issue of whether MPGC was authorized to carry on the funeral home business was raised in the PGT’s factum before the application judge. The PGT also submits that the application judge applied the correct test. MPGC only has the powers expressly or impliedly granted by statute, and the 1871 Act provided that it was to use the lands “exclusively as a cemetery or cemeteries or places for the burial of the dead”. [132] The FTPC respondent states that there was no legal basis for the trustees to disregard the express terms of a statutory trust. The object of the trust was to provide a place for people to be buried, not to prepare people for burial. The 1871 Act expressly requires that trust land be used “exclusively as a cemetery or cemeteries or places for the burial of the dead”. Subsequent Acts were consistent with that purpose. Moreover, FTPC notes that until repealed in 2012, the former Cemeteries Act did not include funeral home services in the definition of “cemetery services”. Lastly, it submits that the appellant’s reliance on the business judgment rule is a new argument, and that nevertheless, the business judgment rule does not shield directors from improper conduct and potential breaches of duty. (2) Analysis (A) Did the Respondents Claim the Declaratory Relief Granted? [133] I start by examining the respondent FTPC’s Amended Notice of Application to ascertain whether there is any basis for the appellant’s first argument. It is the case that there is no mention in FTPC’s Amended Notice of Application of the declaratory relief the application judge granted with respect to the funeral homes and visitation centres. Nor are they the focus of the 11 pages of enumerated grounds for the application. [134] The PGT did not issue a separate Notice of Application so reliance must be placed on the relief sought by FTPC. [135] In Rodaro v. Royal Bank of Canada , 2002 CanLII 41834 (Ont. C.A.), at paras. 60-61, Doherty J.A. explained that quite apart from fairness concerns associated with a new theory of liability advanced at trial, courts rely on the adversarial process to get at the truth. It is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings. As Labrosse J.A. said in 60635 Ontario Limited v. 1002953 Ontario Inc. , 1999 CanLII 789 (Ont. C.A.), at para. 9: [T]he parties to a legal suit are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings. A finding of liability and resulting damages against a defendant on a basis that was not pleaded in the statement of claim cannot stand.   It deprives the defendant of the opportunity to address that issue in the evidence at trial. [136] The issue of the operation of the visitation centres and funeral home businesses arose in the context of FTPC’s request for an investigation by the PGT as to whether the appellant had complied with its legal obligations as a trustee. As the appellant stated at para. 64 of its factum filed before the application judge, “FTPC asserts that MPGC’s use of its lands and funds with respect to visitation centres and [CMS] is ‘inconsistent with the purpose of the [1826 Trust]’”. FTPC offered eight grounds in support of its request for an investigation, three of which related to the objects of the trust and whether they were being honoured. One of these was that MPGC’s use of its lands and funds with respect to visitation centres and CMS was inconsistent with the purpose of the 1826 Act . While not expressly pleaded as requested declaratory relief, certainly the appellant could not be said to have been caught totally by surprise. The issue of the operation of the funeral businesses, the visitation centres, and crematoria arose out of the request for an investigation as to whether the appellant had complied with its legal obligations as a trustee. [137] However, there is a material difference between the issue being raised in the context of a request for an order for an investigation by the PGT and a request for a declaration that the operation of the visitation centres and the CMS funeral home business are beyond the scope of the trust. [138] The language of s. 10 of the CAA is flexible. Subsection 10(3) states: Where the court is of the opinion that the public interest can be served by an investigation of the matter alleged in the application, the court may make an order directing the PGT to make such investigation as the PGT considers proper in the circumstances and report in writing thereon to the court and the Attorney General. [139] Thus an investigation must first examine the allegation of illegality. In contrast, a declaration pronounces on the illegality of these operations. [140] It is also noteworthy that the application judge acknowledged that he had an inadequate evidentiary foundation to render a decision on the issue of crematoria. Had declaratory relief been sought on the legality of the three impugned business lines of the appellant, presumably the evidentiary record would have been more extensive. This is particularly so given that at least some of the business lines, including the visitation centre at Mount Pleasant Cemetery, are fully operational. [141] I would allow the appeal on the second issue on this ground alone. That said, I also am of the view that this ground of appeal should succeed on its merits. (B) MPGC’s Objects [142] Section 63 of the Legislation Act , 2006 provides that the law is always speaking, as did its predecessor, the 1867 Interpretation Act , in s. 6(1). Citing this provision in the 1970 version of the Ontario Interpretation Act , Estey J.A. (as he then was) in Cash v. George Dundas Realty Ltd. , 40 D.L.R. (3d) 31 (Ont. C.A.), aff’d [1976] 2 S.C.R. 796, succinctly captured this point: “[w]e are now concerned only with applying the statute according to its plain meaning in the light of the current practices and standards of the community”: at p. 38. More recently, as Sharpe J.A., writing for this court in Hilson v. 1336365 Alberta Ltd. , 2019 ONCA 1000, 148 O.R. (3d) 609, stated at para. 28: Fourth, we do not accept the submission that the appellants’ contention is supported by the principles of statutory interpretation. The argument that when interpreting the word “instrument” we should rigidly adhere to the specific problem that motivated its enactment would be contrary to the Interpretation Act , R.S.O. 1990, c. I.11, s. 4: “The law shall be considered as always speaking and, where a matter or thing is expressed in the present tense, it is to be applied to the circumstances as they arise, so that effect may be given to each Act and every part of it according to its true intent and meaning.” This direction should be read together with s. 10 that all statutes “shall be deemed to be remedial ... and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”. See also Ruth Sullivan, Statutory Interpretation , 3rd ed. (Toronto: Irwin Law, 2016), at pp. 120-1. Unless the language of an enactment compels us to do so, we should avoid interpreting legislation in a way that produces impractical and unjust results. [143] This issue was also canvassed by this court in Ackland v. Yonge-Esplanade Enterprises Ltd. (1992), 10 O.R. (3d) 97 (C.A.). There the court asked whether the correct presumptive approach to statutory interpretation is an historical one or an updating or ambulatory one. Put differently, the court considered whether an Act should be interpreted as a fixed-time Act or an on-going Act. In that case, Morden A.C.J.O. quoted the following excerpt from Sir Rupert Cross, Statutory Interpretation , 2nd ed. (London: Butterworths, 1987), at p. 50: But the proposition that an Act is always speaking is often taken to mean that a statutory provision has to be considered first and foremost as a norm of the current legal system, whence it takes its force, rather than just as a product of an historically defined Parliamentary assembly. It has a legal existence independently of the historical contingencies of its promulgation, and accordingly should be interpreted in the light of its place within the system of legal norms currently in force. Such an approach takes account of the viewpoint of the ordinary legal interpreter of today, who expects to apply ordinary current meaning to legal texts, rather than to embark on research into linguistic, cultural and political history, unless he is specifically put on notice that the latter approach is required. [144] Similarly, Côté states at p. 226: But merely because the meaning of legislation at the time of its enactment must be respected in no way suggests that the statute’s effect is confined to material or social facts or events then existing. It is necessary to distinguish the meaning of a term from the things that may be included in its ambit. An enactment dated January 15, 1980 dealing with ‘automobiles’ will obviously apply to cars built in 1981: the law ‘is ever commanding’; ‘and whatever be the sense of the verb or verbs contained in a provision, such provision shall be deemed to be in force at all times and under all circumstances to which it may apply’. The guideline favouring the common meaning at the time of adoption does not mean ‘…that all terms in all statutes must always be confined to their original meanings. Broad statutory categories are often held to include things unknown when the statute was enacted.’ [145] Although the parties focused on the elasticity of MPGC’s corporate objects, the real question is whether the objects of the trust permit the operation of the two of three additional lines of business that the application judge ruled upon and which are in issue. Certainly the power to operate a funeral home or visitation centre was not expressly conferred on MPGC. However, in my view, that power is included within the ambit of cemeteries or places for the burial of the dead. In this regard I make three observations: [146] First, the 1826 Act spoke of the trust object being “a general burying ground”. The 1871 Act stated that lands acquired were to be used exclusively as “a cemetery or cemeteries or places for the burial of the dead”. The evidence before the application judge was that in the late 1980s, cremation began to emerge as an increasingly popular alternative to traditional burial services. This placed financial pressure on MPGC’s ability to meet its perpetual care obligations. Put differently, MPGC had to ensure that its obligations to those who were dead and buried in the ground could be met. The crematoria, visitation centres, and funeral homes, which provide ancillary services, were operated both in furtherance of the better management of the trust but also in keeping with the statutory trust objects. [147] Secondly, this changed environment is reflected in the Legislature’s enactment of legislation that expressly permitted cemeteries to operate crematoria and funeral homes. Permitting the ancillary operations is in keeping with the principle of statutory coherence and a remedial interpretation. [148] Thirdly, treating these ancillary operations as incidental to the cemetery aligns with this court’s decision in Humphrey Funeral Home . Although admittedly dealing with the application of a by-law, this court’s holding from that case is apposite here. The operation of visitation centres and funeral homes are associated uses of operating the cemetery. [149] For these reasons, I would allow this ground of appeal on both bases advanced by the appellant. ISSUE 3: IS MPGC A CHARITABLE PURPOSE TRUST? [150] The third issue is whether the MPGC trust is a charitable purpose trust subject to the provisions of the CAA (for ease of discussion, I will refer to “MPGC” for the remainder of this section rather than “the MPGC trust”). The significance of this designation is at a minimum twofold. First, s. 10(1) of the CAA provides: Where any two or more persons allege a breach of a trust created for a charitable purpose or seek the direction of the court for the administration of a trust for a charitable purpose , they may apply to the Superior Court of Justice and the court may hear the application and make such order as it considers just for the carrying out of the trust under the law. [Emphasis added.] [151] Second, as indicated, s. 10(3) of the CAA provides that the court, if of the opinion that the public interest would be served by an investigation of the matter alleged in an application, may make an order directing the PGT to conduct an investigation as the PGT considers proper in the circumstances. As mentioned, the PGT resisted and continues to resist any investigation of MPGC. [10] [152] The application judge held that MPGC is a charitable purpose trust. He noted that s. 1(2) of the CAA provided that a corporation incorporated for a religious, educational, charitable or public purpose shall be deemed to be a trustee within the meaning of the Act. He also noted the broad agreement of the parties that the activities of MPGC are intended to benefit the public. Turning to the case law, the application judge observed that the limited jurisprudence supported the conclusion that a cemetery pursues a charitable purpose. Applying Re Oldfield Estate (No. 2) , [1949] 2 D.L.R. 175 (Man. K.B.) and Scottish Burial Reform and Cremation Society v. Glasgow Corp. , [1967] 3 W.L.R. 1132 (H.L. Scotland), he found that the operation of a non-profit, non-denominational public cemetery qualified as a charitable purpose. [153] For the reasons that follow, I disagree with the application judge’s conclusion. In my view, MPGC is not a charitable purpose trust and is therefore not subject to the CAA . (1) Positions of the Parties [154] The appellant submits that the application judge erred in assuming that MPGC’s activities were charitable because MPGC provided a benefit to the public. It argues that MPGC is not a charitable trust for three principal reasons: (i) this was the conclusion of the CRA; (ii) MPGC charges market or above market rates in keeping with rates charged by for-profit cemeteries; and (iii) 70 per cent of non-denominational cemeteries in Ontario are not considered to be charities. The appellant submits that the application judge erroneously interpreted and relied on Scottish Burial and Re Oldfield . The evidence did not support the application judge’s conclusion and, in any event, MPGC is already highly regulated. [155] The respondent FTPC submits that the only available case law, which includes Scottish Burial and Re Oldfield , supports the application judge’s conclusion that operating a non-denominational cemetery may constitute a charitable purpose. The respondent FTPC also notes that the Supreme Court has held that “a charitable organization may operate a commercial enterprise, so long as the enterprise serves as a means of accomplishing the purposes of the organization, rather than an end in itself”: Vancouver Society of Immigrants & Visible Minority Women v. Minister of National Revenue , [1999] 1 S.C.R. 10, at para. 60 (per Gonthier J.’s dissenting reasons). [156] The PGT states that the application judge did recognize that the mere existence of a public benefit is not enough to qualify an activity as charitable. The PGT highlights that MPGC has had a charitable character and purpose from inception, and the factors relied upon by the appellant are not persuasive: CRA’s position is not determinative; charges for commercial services do not preclude charitable status; and other non-denominational cemeteries may not have applied for charitable registration under the Income Tax Act , R.S.C. 1985, c. 1 (5th supp.) (the “ITA”). This does not mean that they would not qualify as charities at common law. The PGT also argues that Scottish Burial is not so narrow in scope as to hold that only burial reform and cremations are charitable. (2) Analysis [157] The origin of the contest in this case has little to do with the traditional lens through which a request for a charitable designation often arises. Typically, the contextual framework for such a request is income tax based. In Vancouver Society , Gonthier J., in dissent, described the considerable privileges that attach to charitable status. Organizations seek the ability to generate donations that produce charitable receipts, which in turn justify a deduction from income so as to achieve a reduced tax exposure. In that same decision, Iacobucci J, writing for the majority, also commented on the tremendous tax advantages and the consequent loss of revenue to the public treasury that arises from a charitable status designation. In A.Y.S.A. Amateur Youth Soccer Assn. v. Canada Revenue Agency , 2007 SCC 42, [2007] 3 S.C.R. 217, Rothstein J. observed, at para. 6, that associations that qualify as non-profit organizations under the ITA , but not as registered charities, pay no tax on income but cannot issue tax receipts to donors. [158] As with the CAA , the ITA relies on the common law definition of charity, which is subject to incremental change as the common law adapts to societal change: A.Y.S.A. , at para. 8. Rothstein J. explained that “[u]nless legislation provides otherwise, it will be for the courts, through the jurisprudence, to determine what is or is not a charity for legal purposes”: at para. 8. [159] In this case, the issue of charitable status has already been canvassed with the Minister of National Revenue, and in 1977, Revenue Canada communicated its advice that MPGC was not a charity for tax purposes. MPGC does not solicit funds and is entirely self-sufficient. The income tax context is totally absent from this case. Furthermore, the 1871 Act itself provided that “the said cemeteries or burying grounds shall be, and are hereby declared exempt from all public taxes, rates or assessments”. [11] [160] Here, the charitable status designation is sought so that the respondent FTPC can avail itself of the provisions of the CAA and obtain an order that MPGC be investigated by the PGT. However, as already discussed, MPGC is heavily regulated under the Bereavement Authority of Ontario, the FBCSA , and its regulations. So, by way of example, the PGT may require a funeral operator such as MPGC to provide audited financial statements on any trust account or trust fund that is required to be established under the FBCSA . Upon receiving a written direction from the PGT, a person who is required under the FBCSA to establish a trust fund or hold money in trust shall apply to the Superior Court of Justice to pass accounts. MPGC must also have appropriate licences for its operations , maintain certain trust accounts, provide certain audited financial statements, maintain certain records, and report certain changes to the Registrar under the FBCSA . The FBCSA also provides for a separate complaint and inspection procedure. No charitable designation is required for any of this. [161] All this is to say that the framework within which the issue of charitable status arises in this case presents a very different context. (A) Statutory Trust [162] As conceded by counsel for the appellant, and, in any event, as found by the application judge, the appellant is the trustee of a statutory trust. The parties’ submissions on this third ground of appeal focused on the definition of “charitable purpose” under the common law. However, all parties concede that MPGC is a statutory trust and there is no appeal of that issue. [163] A statutory trust, as the name implies, is a creature of statute: The Guarantee Company of North America v. Royal Bank of Canada , 2019 ONCA 9, 144 O.R. (3d) 225, at para. 18. Being a creature of statute, a statutory trust does not have to fulfill the requirements of the common law of trusts: British Columbia v. Henfrey Samson Belair Ltd. , [1989] 2 S.C.R. 24; Guarantee , at paras. 36, 47. Indeed, the authors of Oosterhoff on Trusts suggest that statutory trusts are generally imposed in the absence of at least one of the three certainties of trust law (certainty of intention, subject matter, and object): A.H. Oosterhoff, Robert Chambers & Mitchell McInnes, Oosterhoff on Trusts: Text, Commentary and Materials , 8th ed. (Toronto: Carswell, 2014), at p. 29. As noted by the Supreme Court, the provincial governments “may define “trust” as they choose for matters within their own legislative competence…”: Henfrey , at p. 35. [164] These authorities indicate that a statutory trust is a flexible device. In XMCO Canada Ltd., Re , 1991 CarswellOnt 161 (C.J.), for example, Killeen J. described it as “expansive” and having a “special form”: at paras. 18, 20. (See also: Guarantee , at paras. 50, 79; Henfrey , at pp. 34-35.) As such, and being a creature of statute, a statutory trust may be altered by the Legislature. [165] Statutory trusts are a difficult fit with charitable purpose trusts. A statutory trust is a creature of statute and clear statutory language reflecting a legislative intention to create a charitable purpose trust would be expected. I see no such language in any of the relevant Acts. In this regard, it is telling that the Legislature did not use the word “charitable” or “charity”, even though the modern concept of charities dates back to the 17 th century Statute of Elizabeth . One feature of a statutory trust is that, as a creature of statute, it can be changed by the Legislature. No party in this case contends that the Legislature could not change further the legislation affecting MPGC. [166] Statutes are to be read as being coherent: Sullivan, at para. 11.2. The CAA supplements the court’s inherent jurisdiction to supervise the activities of charitable organizations: Asian Outreach Canada v. Hutchinson , 1999 CarswellOnt 1794 (S.C.), at para. 26. As noted by van Rensburg J. (as she then was) in Friends of Camp Aneesh v. Girl Guides of Canada , 2012 ONSC 6855, at para. 25, “the CAA creates machinery and provides procedures and does not significantly extend the jurisdiction of the Court over the matters to which it refers”. In Re Centenary Hospital Association (1989), 59 D.L.R. (4th) 449 (Ont. S.C.), after reviewing the legislative history of the CAA and other Acts governing public hospitals, the court found that the activities of public hospitals were not covered by the CAA because: the [ Public Hospitals Act , R.S.O. 1980, c. 410] was intended to provide an exclusive statutory scheme for the supervision and regulation of public hospitals and it was not contemplated that the Charities Accounting Act should apply nor that the Public Trustee should have a role… Had [the Charities Accounting Act ]  been intended to give the Public Trustee, for the first time, power to supervise the financial affairs of public hospitals, quite independently of and possibly in a manner that would conflict with the powers of the Lieutenant Governor in Council and the Minister under the Public Hospitals Act , it would have been plainly so stated in the legislation: at pp. 463-464. [167] As discussed, MPGC is already heavily regulated under the Bereavement Authority of Ontario, the FBCSA , and its regulations, and before these enactments, by a different comprehensive regulatory regime. The Legislature could not have intended that the CAA also apply to MPGC. [168] MPGC is a statutory trust. If the Legislature had wished to make MPGC a charitable purpose trust, it could have done so. Indeed, presumably it still could. Moreover, when invited to change the legislation, albeit for a different purpose, in 2010, the Ontario Government declined to take any action.  And, when the issue of charitable status was taken up with the PGT in 1991 and then again in later years, the PGT took no further action in the face of MPGC’s stated rejection of such a characterization. [169] For these reasons, I conclude that it was not open to the application judge to treat the statutory trust as a charitable purpose trust under the CAA . [170] Having said that, in light of the other arguments made by the parties, I will also address why I would not consider this to be a charitable purpose trust in any event. (B) Charitable Purpose Trust [171] Although in the context of the ITA rather than the CAA , in A.Y.S.A. , Rothstein J. traced the evolution of the law on charitable purpose trusts and noted, at para. 25, that the cases often start by citing the preamble to the Charitable Uses Act , 1601 (Eng.), 43 Eliz. 1, c.4 (commonly referred to as the Statute of Elizabeth or the Statute of Charitable Uses ), which provided a list of examples of charitable purposes. (I would observe in passing that a cemetery is not one of them.) The list was then refined into four categories in Commissioners for Special Purposes of the Income Tax v. Pemsel , [1891] A.C. 531 (H.L.). The Pemsel approach was subsequently adopted by the Supreme Court of Canada in three tax cases: Dames du Bon Pasteur v. R. , [1952] 2 S.C.R. 76; Towle Estate v. Minister of National Revenue (1966), [1967] S.C.R. 133; and Vancouver Society . [172] The CAA incorporated the same scheme to determine a charitable purpose. Section 7 of the CAA provides that charitable purpose means: (a) the relief of poverty, (b) education, (c) the advancement of religion, and (d) any purpose beneficial to the community, not falling under clause (a), (b) or (c). [173] Only category (d), the basket clause, is relevant to the analysis in this case. In A.Y.S.A. , Rothstein J. explained, at para. 27: In Vancouver Society , the majority held that under the fourth head, the purposes of the organization must be of (a) “public benefit” or “beneficial to the community” and (b) “in a way the law regards as charitable” (para. 176).  Recognizing that this reasoning was circular and that the law was not clear, Iacobucci J., at para. 177, adopted the following test from D’Aguiar v. Guyana Commissioner of Inland Revenue , [1970] T.R. 31, at p. 33: [The Court] must first consider the trend of those decisions which have established certain objects as charitable under this heading, and ask whether, by reasonable extension or analogy, the instant case may be considered to be in line with these. Secondly, it must examine certain accepted anomalies to see whether they fairly cover the objects under consideration. Thirdly — and this is really a cross‑check upon the others — it must ask whether, consistently with the objects declared, the income and property in question can be applied for purposes clearly falling outside the scope of charity; if so, the argument for charity must fail. Iacobucci J. then added to the test: To this I would add the general requirement…that the purpose must also be “for the benefit of the community or of an appreciably important class of the community” rather than for private advantage. [174] In A.Y.S.A. , Rothstein J. then highlighted that “[i]n a case involving the meaning of charity for purposes of the ITA , we are not applying the common law in a vacuum. It will be necessary to consider not only the common law, but the common law in relation to the scheme of the ITA : A.Y.S.A. , at para. 30.  Rothstein J. summarized the proper approach, at para. 31: To summarize, in determining if an organization is charitable under the fourth head of Pemsel for purposes of registration under the [ Income Tax Act ], it will be necessary to consider the trend of cases to decide if the purposes are for a public benefit which the law regards as charitable. It will also be necessary to consider the scheme of the [ Income Tax Act ]. Finally, it is necessary to determine whether what is sought is an incremental change or a reform best left to Parliament. [175] As in A.Y.S.A. , “we are not applying the common law in a vacuum”, but in relation to the scheme of the CAA . Based on A.Y.S.A. , to determine whether an organization is charitable under the fourth category of Pemsel , for the purposes of the CAA , it is necessary to first examine the trend of cases to decide if the purposes are for a public benefit which the law regards as charitable. [12] Second, it is necessary to consider the scheme of the statute in question (in A.Y.S.A. , the ITA , and in this case, the CAA ). Finally, it is necessary to consider whether the proposed charitable designation is in the nature of a reform demanding legislative action. [176] Before applying this test, I must also emphasize that the law of charity is a moving subject that should evolve as new social needs arise or as old needs become obsolete or satisfied: Vancouver Society , at paras. 146, 150; A.Y.S.A. , at para. 28. To quote from Iacobucci J. in Vancouver Society , at para. 146: [T]he court has always had the jurisdiction to decide what is charitable and was never bound by the preamble. Nonetheless, the preamble proved to be a rich source of examples and the law of charities has proceeded by way of analogy to the purposes enumerated in the preamble. Indeed, as Lord Wilberforce observed in Scottish Burial Reform and Cremation Society v. Glasgow Corporation , [1968] A.C. 138 (H.L.), at p. 154: it is now accepted that what must be regarded is not the wording of the preamble itself, but the effect of decisions given by the courts as to its scope, decisions which have endeavoured to keep the law as to charities moving as new social needs arise or old ones become obsolete or satisfied. 1. No Compelling Jurisprudential Trend [177] Dealing firstly with the issue of whether there is a jurisprudential trend, disposal of the dead used to be regarded as a religious activity in the advancement of religion (the third charitable purpose category) because burials traditionally took place in a churchyard. However, as the application judge noted, some cases support the proposition that non-denominational cemeteries may also have a charitable purpose. None of the cases cited by the application judge post-date 1949 in Canada and 1968 in the United Kingdom. [178] The 1949 decision of the Manitoba Court of King’s Bench in Re Oldfield involved a gift for the maintenance of a communal cemetery unconnected with any church or religious denomination. The court decided that the bequest had a charitable purpose. Similarly, in Re Quinn’s Wills Trusts (1953), 88, I.L.T.R. 161 (H. C.), the High Court in Ireland found that a gift for the annual improvement of a non-denominational cemetery was a charitable bequest within the fourth category. The PGT also referred this court to the 1976 decision in Re Robinson (1976), 75 D.L.R. (3d) 532 (Ont. S.C.), which found that a bequest of $5,000 for the general upkeep of a cemetery was charitable in nature: at p. 533. Importantly, these cases involved bequests, a very different factual context than a statutory trust established by the Legislature. [179] Scottish Burial involved a limited company that had been incorporated to promote inexpensive and sanitary methods of burial in Scotland, particularly through cremation, and to publish information in that regard. The company charged fees, but these fees were not intended to yield a profit. As its name implies, the focus of the company was burial reform and cremation. The House of Lords accepted that this was a charity under the basket clause. Arguably, Scottish Burial simply stands for the proposition that the promotion of reform in methods of disposal of the dead may constitute a charitable purpose. [180] Even if these cases could be given a broader interpretation, it is fair to conclude that the jurisprudence on the charitable nature of cemeteries is extremely limited. It certainly cannot be characterized as a trend as described in A.Y.S.A. In the circumstances of such limited jurisprudence, this court was not referred to any separate anomalous cases: Vancouver Society , at para. 177. Moreover, as mentioned, MPGC is a statutory trust. I do not view the above cases as authority for the proposition that a statutory trust created for the operation of a non-denominational cemetery has a charitable purpose under the common law. This is a circumstance where, “[consistent] with the objects declared, the income and property in question can be applied for purposes clearly falling outside the scope of charity”: Vancouver Society , at para. 177. [181] In addition to having a purpose that the law regards as charitable, under the basket clause, the charitable purpose of an organization must also be for the benefit of the community or an appreciably important class of the community: Vancouver Society , at paras. 175-177; A.Y.S.A. , at para. 27. As Iacobucci J. explained in Vancouver Society , charitable activity is not concerned with the conferment of private advantage: at para. 147. [182] The application judge noted that MPGC did not dispute that its activities are intended to benefit the public: at para. 139. MPGC nevertheless emphasizes to this court that, even if its activities are beneficial to the public, providing a public benefit is not MPGC’s primary purpose. As I have found that MPGC does not have a charitable purpose for other reasons, it is unnecessary to further consider this part of the test. I would note, however, that as MPGC is a statutory trust, one would expect there to be a public benefit. 2. Scheme of Statute [183] In examining the scheme of the statute, I have already addressed this issue. However, I would also observe that the circumstances surrounding MPGC’s establishment had a business component. The Legislature’s initial focus was to create a vehicle for multiple individuals to hold land together for a non-denominational cemetery. And, as mandated in s. 6 of the 1871 Act , “the said corporation may sell, convey or otherwise dispose of the said lots to any person or persons on such terms and conditions and subject to such by laws of the corporation, and at such prices as shall be agreed on…”. Consistent with such a mandate, MPGC provides services and receives payment for doing so. It charges market and above market rates, and is not limited to cost recovery. Although fees do not preclude charitable status, this is another factor suggesting that MPGC’s purpose is not charitable. [184] Even if one were to accept that MPGC’s purpose was charitable in nature, that purpose has become obsolete today. The law of charities is a moving subject: Vancouver Society , at para. 146. As the record amply illustrates, there are numerous cemeteries, denominational and non-denominational alike, some charitable and some not. Any charitable purpose that potentially could have animated MPGC is spent. [185] MPGC operates as a non-profit organization and has done so for decades, if not centuries. I see no basis to alter this characterization. [186] Lastly, I recognize that the ITA differs from the CAA and that Revenue Canada’s determination that MPGC is not a charity is not determinative. Nonetheless, it is not unfortunate that MPGC’s characterization remains stable and consistent with Revenue Canada’s position on the issue. [187] In conclusion, I am unable to conclude that MPGC falls within the scheme and parameters of s. 7 of the CAA . 3. Nature of Proposed Change [188] Finally, the last consideration identified in A.Y.S.A. is readily addressed.  Justice Rothstein stated that it is necessary to determine whether what is sought is an incremental change or a reform best left to Parliament, or in this case, the Legislature. This factor is subsumed by the analysis on statutory trusts and clearly favours the appellant’s position. [189] I would allow the appellant’s third ground of appeal. In these circumstances, it is unnecessary to address the arguments relating to exclusivity. ISSUE 4: CROSS-APPEAL [190] As I have determined that the application judge was incorrect in concluding that MPGC is a charitable trust, the cross-appeal is moot. That said, I would not have allowed the cross-appeal in any event. The PGT is and was opposed to any such investigation. The application judge saw no basis on which to order an investigation. I see no reason to interfere with the exercise of his discretion. DISPOSITION [191] For these reasons, I would allow the appeal and dismiss the cross-appeal. If the parties are unable to agree on costs, they may make brief written submissions to this court within 30 days of receiving these reasons. Released: May 5, 2020 (“S.E.P.”) “S.E. Pepall J.A.” “I agree. M. Tulloch J.A.” “I agree. M.L. Benotto J.A.” [1] Ms. Wong-Tam is a Toronto City Councilor, but her participation in these proceedings is in her personal capacity and not as a representative of the City of Toronto or City Council. [2] The City of Toronto was incorporated in 1834 and replaced the Town of York. [3] In 1853, Yorkville was incorporated as a village. In 1871, the City of Toronto, the Township of York and the village of Yorkville were all separate, distinct entities. [4] See Affidavit of Glenn McClary (MPGC’s President), at para. 38. [5] The record does not disclose when MPGC’s by-laws were first enacted. [6] The solicitors also noted that under the Cemeteries Act , R.S.O., 1980 c. 59, all incorporated cemeteries had to provide graves for strangers and indigents free of charge and that, under the proposed new Cemeteries Act , if space to do so, with the exception of cemeteries run by a religious denomination, all cemeteries and crematoria had to provide for welfare funerals upon payment of the prescribed amount. [7] The respondents assert that MPGC’s directors began to deny that MPGC was a statutory trust in 1991 and persisted in this position until April 2018 when MPGC filed its responding factum on the application. This issue is now fully resolved.  That said, the appellant’s previous position may have an impact on any costs award. [8] The rule of implied repeal also has been held to have no application to constitutional statutes: Bennion , at p. 207. [9] In “Intertemporal Statutory Interpretation and the Evolution of Legislative Drafting” (2014) 11:4 Col. L. Rev. 807, Jarrod Shobe advocates an interpretative methodology in the U.S. based on the evolving quality of the drafting process and the resulting need to interpret older statutes differently from modern ones. [10] Its argument was that the public interest did not favour an investigation because: (i) the provision of funeral services by MPGC was made in the best interest of MPGC; (ii) changes to legislation in 2012 now permitted cemeteries to own and operate funeral homes; (iii) an investigation would not deal with the updating of MPGC’s corporate governance and objects; (iv) MPGC’s visitation centres are connected to the provision of its cemetery services; (v) the funeral services generated revenue to cover expenses of the cemetery operations; (vi) there was no evidence that the trustees of MPGC had personally benefitted from the improper expenditures; and (vii) it would be unrealistic and impracticable to require the removal of the visitation centres from MPGC’s lands. [11] Income tax was not introduced into Canada until 1917.  This provision would apply to any provincial taxes and assessments. [12] At paras. 37-38, Rothstein J. briefly drew attention, in obiter, to the 1984 decision of the Ontario Divisional Court in Re Laidlaw Foundation (1984), 13 D.L.R. (4th) 491 (Ont. Div. Ct.). Re Laidlaw suggested that the definition of charity under the CAA might be broader than under the common law because the basket clause did not include the limitation that the purpose must be recognized by the common law as charitable. The test for the basket clause clearly cannot be limited to “public benefit” only as the ambit for inclusion would be almost limitless. Justice Rothstein described the decision as anomalous and inconsistent with the Supreme Court’s decision in Vancouver Society that public benefit is not enough. In adopting the Pemsel categories, the CAA presumably also adopted the tests for the Pemsel categories. In any event, neither the FTPC nor the PGT relied on Re Laidlaw .

COURT OF APPEAL FOR ONTARIO CITATION: Geliedan v. Rawdah, 2020 ONCA 339 DATE: 20200529 DOCKET: C67443 Lauwers, Paciocco and Fairburn JJ.A. BETWEEN Mazen Geliedan Applicant (Respondent) and Abir Rawdah Respondent (Appellant) Kristy Maurina, Michael J. Stangarone and Edward C. Conway, for the appellant Matthew Gourlay, Farrah Hudani and Jessica Luscombe, for the respondent Heard: In writing REASONS FOR DECISION [1] This is an application brought by the Applicant/Respondent in Appeal (“father”) to re-open an appeal that has already been decided: 2020 ONCA 254. The application is based upon new evidence placed before the court, consisting of text messages sent by the Respondent/Appellant in Appeal (“mother”) to the father after the appeal was heard, in the time period immediately prior to the release of the judgment. [2] The child at the centre of this litigation was born in the United Kingdom. The U.K. is the only place the family lived together prior to separation. After the parents separated, the father eventually went to live in Dubai. The mother and child later joined the father in Dubai. Well over a year after arriving in Dubai, the mother and child came to Ontario, where they have lived since. They had been in Ontario for only a short time before the father sought to have the child returned to Dubai. As recounted in the judgment, the parties have dramatically different narratives as to why the mother and child travelled to Dubai, were in Dubai as long as they were, and why the mother and child later came to Ontario. [3] The father obtained an order pursuant to s. 40 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“ CLRA ”) to have the child returned to Dubai. The mother appealed from that order. We do not intend to repeat the analysis set out in the judgment. This court determined that the application judge erred in deciding the s. 40 application without regard to a binding, valid Consent Custody Order in the U.K., one that specifically governs the circumstances under which the child could be removed from the U.K. [4] Among other things, this court stayed the father’s s. 40 CLRA application on the condition that he promptly commence a similar proceeding in the court that issued the Consent Custody Order. In the event that the U.K. court declines to take jurisdiction, this court ordered that the father could apply to the Ontario Superior Court of Justice to lift the stay and seek a rehearing of his s. 40 application. In that event, the mother could also bring her own application(s). [5] The father has filed a motion to have this court reconsider its appeal decision on the basis of new evidence arising from text messages sent by the mother to the father, suggesting that she now wishes to have the child returned to Dubai and to live with the father’s family. [6] The father submits that these text messages belie the mother’s narrative, as reviewed in this court’s judgment, that she and the child were involuntarily trapped in Dubai for well over a year, the father having taken their passports. The father has always challenged that narrative, a challenge that is also reviewed in the reasons for judgment. The father argues that the new evidence highlights that the mother has not been telling the truth about what occurred in Dubai. [7] The mother argues that the text messages represent nothing more than her panic over financial strain, particularly during COVID-19, her desire to have the father provide some money to support the child, and her concern that she may lose the appeal. She says that he is in breach of a prior support order. (He denies this suggestion.) She contends that the messages should not, therefore, be taken at face value. She was simply saying the things reflected in the new evidence in an effort to have the father provide much-needed financial aid and to better position herself in the event that she lost on appeal. [8] In rare situations, this court may re-open an appeal, particularly where an order has not yet been taken out: First Elgin Mills Developments Inc. v. Romandale Farms Limited , 2015 ONCA 54, 381 D.L.R. (4th) 114, at para. 7. This rare event will only occur where “a very serious injustice” will result absent reconsideration of the matter: Doman Forest Products Ltd. v. GMAC Commercial Credit Corp. - Canada , 2005 BCCA 111, 209 B.C.A.C. 197, at para. 6; First Elgin Mills , at para. 8. This is not one of those rare cases. [9] The parties have been locked in a serious factual dispute from the outset of these proceedings. There seems to be little, if anything, they factually agree upon. While the new evidence may well be relevant to credibility determinations that will no doubt inform where the child should live, this court did not make credibility findings on the appeal. It was unnecessary to do so. Rather, this court’s judgment focussed upon which court should decide these issues. [10] As this court noted at para. 76 of its reasons: In all of the circumstances, the application judge should have given substantial weight to the Consent Custody Order when arriving at an appropriate disposition. Given the highly disparate accounts of the parties, and the clear need to resolve those accounts before ordering the child’s return to Dubai, the matter should have been returned to the Central Family Court in London, U.K. for determination. [11] Accordingly, while the new evidence may be relevant to determining the father’s application to have the child returned to Dubai, it is irrelevant to this court’s decision that the U.K. Consent Custody Order must be respected and the father must first pursue the matter there. There is no basis upon which to reopen the appeal. [12] As for costs, the mother asks for her costs on this motion. We grant $2,500 in costs. [13] The parties were invited to make costs submissions following the appeal. We have reviewed those submissions. [14] The mother asks for the costs award from the application court to be set aside. We grant that order. [15] She also asks for $41,000 for the application, $7,461.39 for a motion to stay the judgment, $4,640.57 for a fresh evidence application, and $25,422.29 for the appeal. With disbursements and expert fees added, the mother asks for a total costs order in the amount of $86,719. [16] The father says there should be no costs awarded for a number of reasons: · the litigation is not over; · the mother did not get the relief she asked for on appeal; · the mother behaved badly in the application court; · she behaved badly after the appeal; · she unnecessarily complicated the litigation by advancing issues that did not need to be decided by this court; · she brought a constitutional challenge for the first time on appeal; and · the judgment sets out new law that could not be anticipated. [17] Based on all of these factors, the father asks that any costs award be reserved until the question of jurisdiction is finally determined. [18] Given the detailed history of this matter and in light of the court’s order that the father next pursue this litigation in the U.K., it is not appropriate to reserve the question of costs arising from litigation here to a court there. Accordingly, we make the following costs order against the father: 1) $2,500 for the application to reopen. 2) $10,000 for the appeal. While the mother was successful on appeal, the appeal involved a nuanced point of law. We also accept the father’s submission that the mother unnecessarily complicated the appeal with all manner of issues that did not need to be decided. This is most obvious in relation to the constitutional issue that was raised for the first time on appeal. We consider the fresh evidence application as part of the appeal. 3) $5,000 for the application to stay the judgment pending appeal. 4) $20,000 for the original application. [19] In total, the father shall pay costs in the amount of $37,500 to the mother in addition to disbursements and H.S.T. “P. Lauwers J.A.” “David M. Paciocco J.A.” “Fairburn J.A.”