text
stringlengths 395
483k
|
|---|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Xue, 2021 ONCA 308
DATE: 20210507
DOCKET: C68175
Hoy, Hourigan and Zarnett JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Qin Xue
Appellant
Erin Dann, appearing as duty counsel
Avene Derwa, for the respondent
Heard: May 6 2021 by video conference
On appeal from the conviction entered on
January 22, 2020 by Justice Laura Bird of the Superior Court of Justice.
APPEAL BOOK ENDORSEMENT
[1]
The Crown has filed an affidavit attesting to the fact that Mr. Xue is
deceased, and asks that this appeal be dismissed as abated. This appeal is
dismissed as abated.
|
WARNING
This appeal is subject to a mandatory publication ban
under s. 278.95. This section of the
Criminal
Code
provides:
278.95 (1)
A person shall not publish in any document, or broadcast or
transmit in any way, any of the following:
(a) the contents of
an application made under subsection 278.93;
(b) any evidence
taken, the information given and the representations made at an application
under section 278.93 or at a hearing under section 278.94;
(c) the decision of
a judge or justice under subsection 278.93(4), unless the judge or justice,
after taking into account the complainants right of privacy and the interests
of justice, orders that the decision may be published, broadcast or
transmitted; and
(d) the determination made
and the reasons provided under subsection 278.94(4), unless
(i) that
determination is that evidence is admissible, or
(ii) the judge or
justice, after taking into account the complainants right of privacy and the
interests of justice, orders that the determination and reasons may be
published, broadcast or transmitted.
(2) Every person who
contravenes subsection (1) is guilty of an offence punishable on summary
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information that could identify the victim or a witness shall not be published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 complainants 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. Walsh, 2021 ONCA 43
DATE: 20210122
DOCKET: C66018 and C66552
Feldman, Gillese and Miller
JJ.A.
DOCKET:
C66018
BETWEEN
Her Majesty the Queen
Appellant
and
Patrick Walsh
Respondent
DOCKET: C66552
AND BETWEEN
Her Majesty the Queen
Respondent
and
Patrick Walsh
Appellant
Rebecca De Filippis, for the
appellant/respondent Her Majesty the Queen
Philip Campbell, for the
respondent/appellant Patrick Walsh
Heard by videoconference: October 6, 2020
On appeal from the acquittal entered on
September 21, 2018, by Justice Kelly P. Byrne of the Superior Court of Justice,
sitting with a jury.
On appeal from the conviction entered on
September 28, 2018, by Justice Kelly P. Byrne of the Superior Court of Justice,
sitting with a jury.
Gillese J.A.:
I.
OVERVIEW
[1]
The accused was charged with sexual assault
arising from an incident that took place on May 12 - 13, 2016.
[2]
He was also charged, under s. 162.1 of the
Criminal Code
, R.S.C., 1985, c. C-46,
with transmitting an intimate image without consent by making FaceTime calls
to his friends in which he allegedly showed them the complainant while she was
naked and vomiting in his bathroom. Under s. 162.1(2), intimate image means a visual
recording of a person made by any means.
[3]
Sections 162.1(1) and (2) read as follows:
Publication, etc., of an
intimate image without consent
162.1 (1) Everyone who
knowingly publishes, distributes, transmits, sells, makes available or advertises
an intimate image of a person knowing that the person depicted in the image did
not give their consent to that conduct, or being reckless as to whether or not
that person gave their consent to that conduct, is guilty
(a) of an indictable offence
and liable to imprisonment for a term of not more than five years; or
(b) of an offence punishable
on summary conviction.
Definition of intimate
image
(2) In this section,
intimate
image
means a visual recording of a person made by any means
including a photographic, film or video recording,
(a) in which the person is
nude, is exposing his or her genital organs or anal region or her breasts or is
engaged in explicit sexual activity;
(b) in respect of which, at
the time of the recording, there were circumstances that gave rise to a
reasonable expectation of privacy; and
(c) in respect of which the
person depicted retains a reasonable expectation of privacy at the time the
offence is committed.
[4]
The accused was tried by judge and jury.
[5]
At the close of the Crown case, the trial judge
directed a verdict of acquittal on the s. 162.1 count. She concluded that a
FaceTime video call is not a visual recording for the purposes of s. 162.1(2)
because the images captured during the FaceTime call do not have the capability
for reproduction. She stated that a FaceTime call might possess features that
would amount to a recording but that evidence was not before her.
[6]
The jury returned a verdict of guilty on the sexual
assault count.
[7]
The Crown appeals against the acquittal. The accused
appeals against conviction. To avoid confusion, I refer to the parties
throughout as the Crown and the accused.
[8]
For the reasons that follow, I would allow the
appeal against acquittal and dismiss the appeal against conviction.
II.
BACKGROUND
[9]
The sexual assault count encompassed two alleged
acts of sexual activity that took place on the night of May 12 - 13, 2016. At
the time, the complainant was a student at a university in Toronto and the accused
was a student at a university in Detroit but was living in Toronto for the
summer.
[10]
The accused and the complainant met briefly
about a year before the incident giving rise to these appeals, when the
complainant went to a party the accused was hosting at his condominium. They
did not see each other again until the night in question.
[11]
On the evening of May 12, 2016, the complainant
and the accused ran into each other at a bar in Toronto where the complainant
was celebrating her birthday. The accused approached the complainant and said
that he recognized her. They started talking and he invited the complainant to
his mothers nearby condominium (a different condominium than where they first
met). They walked there together, were kissing, and quickly moved to the
bedroom where the complainant undressed, with the help of the accused.
[12]
The complainant testified that the accused pushed
her head to his groin, forcing her to perform oral sex on him, after which he began
to penetrate her vagina, to which she repeatedly said no.
[13]
The accused testified that the complainant
initiated the oral sex. He denied forcing her head and said that the oral sex
was consensual. He said he then asked her if she wanted him to get a condom, she
did not reply, and they continued kissing. The accused maintains that no
intercourse occurred.
[14]
Both agree that the accused was on top of the
complainant when she told him she was going to be sick. He allowed her to get
up and go to the bathroom where she began throwing up into the toilet.
[15]
The complainant testified that while she was naked
and had her head pretty much buried in the toilet, she heard a chiming sound
that she knew signalled a FaceTime call. She had owned an iPhone for several
years and knew what FaceTime was and what the FaceTime chime sounds like. She looked
up and saw the accused pointing his cellphone at her and heard someone talking
on the other end of the call. She heard the accused say something to the effect
of look at this and understood, from the conversation between the accused and
the others on the call, that they were making fun of her. She also heard laughing
on both ends of the call. She felt scared by what had just happened and even
more scared because others could see her in the bathroom, naked and vomiting, and
she knew they could take a screenshot or record what was happening. She said, with
the internet nowadays, like anyone could see that.
[16]
The complainant heard the accused walk away and
then she heard another FaceTime chime. The accused returned to the bathroom and
had another FaceTime call while pointing his cellphone at her.
[17]
The accuseds cell phone records were entered as
exhibits at trial. Those records showed that three FaceTime calls were made on his
cell phone between 12:54 a.m. and 1:01 a.m. on May 13, 2016. All three calls
were made to friends of the accused. The first call lasted 1 minute and 36
seconds; the second call lasted 0 seconds; and the third call lasted 5 minutes
and 17 seconds. The accused testified that he called three of his friends in
the United States to get their advice.
[18]
Detective Constable Angus from the Tech Crimes
Unit of the Toronto Police Service, one of the investigating officers,
testified at trial. He explained that he was familiar with iPhones, has had an
iPhone since they were first released, and was familiar with the FaceTime
application. He was not qualified as an expert before giving his evidence.
[19]
DC Angus had examined the accuseds cell phone
and extracted some data from it. He first explained how an extraction report
sorts FaceTime calls. He then explained the FaceTime application itself. He
described FaceTime as a video-calling platform or video messaging, and that those
engaged in the FaceTime call see one another. He said, so, much like a phone
call, its like a video phone call.
[20]
DC Angus also explained how the cameras on the
phones are used in a FaceTime application.
So every iPhone has front and back cameras. So
when you are in the FaceTime application, you can choose which camera video
feed youre sending to the other person. So you can pick the selfie camera [
]
so the person on the other end can see you and you can see them on the screen.
Or you can choose the back camera, so they can see whatever you are pointing your
phone at and you can still see the person you are communicating with.
III.
TRIAL RULINGS
[21]
Three of the trial judges rulings are challenged
in these appeals: her direction that a verdict of acquittal be entered on the
s. 162.1 charge; her ruling on the defence s. 276 application
[1]
; and her disposition of
defence objections to the Crown closing. Each of the rulings is discussed
below.
A. The Directed Verdict of Acquittal on the
s. 162.1 Charge
1.
The Parties Positions at Trial
[22]
After the Crown closed its case, defence counsel
brought an application for a directed verdict on the s. 162.1 count. He asserted
that for the Crown to obtain a conviction under s. 162.1, the Crown had to show
that the accused (1) knowingly disseminated (2) an intimate image of a person (3)
while knowing or being reckless as to whether that person gave their consent to
the dissemination. He argued that the Crown could not meet its burden on the
second point the existence of an intimate image. He contended that a
successful prosecution required proof that the image was a recording and that
the common meaning of recording is something that has been committed to a form
where it can be reviewed, referred to or reproduced at a later time, something
with a degree of permanence.
[23]
The Crown argued that recording must be read
in the context of the harm that s. 162.1 was enacted to address: sexual exploitation
committed through technology, including cyberbullying and revenge porn. It
maintained that this harm occurs when an image of an intimate moment is shared
without the complainants consent and that the recipients inability to further
share or preserve the moment does not negate the harm or diminish the senders
culpability. Moreover, the Crown argued, there was sufficient evidence that
FaceTime calls were capable of reproduction because the complainant testified
that recipients of the FaceTime call could have taken a screenshot of the call.
2.
The Trial Judges Ruling
[24]
The trial judge gave the following reasons for
allowing the application and directing a verdict of acquittal on the s. 162.1
count.
[25]
The issue on the application was whether a FaceTime
call amounts to a visual recording as set out in s. 162.1(2). The trial judge
said that the ordinary common-sense definition of visual recording is any
image captured on any device, electronic or otherwise, that has the capability
for reproduction. While there was no dispute that a FaceTime call is visual,
the trial judge stated that she had difficulty with the absence of evidence regarding
the recording component. She listed the three sources of evidence on that
matter: that of the complainant; the accuseds cell phone records which showed that
he made three FaceTime calls on his cellphone at a time closely connected to
the allegations; and, the evidence of DC Angus.
[26]
The trial judge described the complainants
testimony as follows: she saw the accused pointing a cellphone at her while she
was naked and vomiting into the toilet in his bathroom; she heard laughing and
someone other than the accused speaking; and she heard a chiming sound that she
associated with a FaceTime call.
[27]
The trial judge summarized DC Anguss evidence
as: FaceTime is a video-calling platform; each persons phone has a camera; and
the sender and recipient can see each other on video. She noted his description
of FaceTime as a video phone call and his view that using FaceTime is as easy
as making a traditional phone call.
[28]
The judge then stated:
The only evidence I have available to me is
that a FaceTime call is identical to a phone call with the added component of
an image. A phone call is a live real-time auditory transmission to another
person. It is not a recording. A FaceTime call is also a live real-time
transmission to another person, with both an auditory and a visual component.
[29]
The trial judge added that it may be that a
FaceTime call possesses additional features in its transmission or in the
capturing of images that would amount to a recording, but that evidence was not
before her. She stated that she was not prepared to take judicial notice of the
technical workings and application of a FaceTime call. She concluded that the deficiency
in the evidence was a fatal flaw and that a directed verdict had to follow.
B. Ruling on the s. 276 Application
In light
of the mandatory ban on publication contained in s. 278.95 of the Criminal
Code, paragraphs 30 to 35 have been redacted from the public version of this
decision.
C. Defence Objections to the Crown Closing
1.
Background
[36]
In her statement to the police, the complainant
said that the accused had sex with her without her consent. She did not tell
the police that she was forced to perform oral sex. She mentioned the oral sex
for the first time during cross-examination at the preliminary inquiry. During that
cross-examination, the complainant said that other things happened that
night. When asked if she was referring to other sexual acts, she responded
just sex then. Yeah, penetration. A short time later, defence counsel asked
again about her statement that other things had happened. In the series of
questions that followed, the complainant said that she was forced to go down
on the accused like my head kind of being grabbed and pushed and thats
where I was kind of like and yeah, but I didnt say no at that point.
[37]
At trial, defence counsel cross-examined the
complainant on her failure to mention the oral sex in her police interview. In his
cross-examination, he put parts of the preliminary inquiry transcripts to her.
She explained that she had not mentioned the oral sex earlier because she was
uncomfortable talking about sexual acts in a courtroom and it was hard for her
to think about what happened. She also said she thought she should focus on the
acts to which she explicitly said no and testified that only later did she
realise that she did not have to say no out loud for an act to constitute
sexual assault.
[38]
Both defence counsel and the trial Crown
referred to the complainants evidence at the preliminary inquiry in their
closing submissions.
[39]
In his closing submissions, defence counsel
reviewed the parts of the preliminary inquiry transcript that he had put to the
complainant in cross-examination and argued that her answers and her late
disclosure of the oral sex demonstrated that she could not be trusted. He described
her answers as profoundly dishonest and her explanation for the inconsistency
as self-serving. He argued that the complainants late disclosure of the oral
sex was a sign that her evidence at trial could not be trusted.
[40]
The trial Crown objected to the defence
counsels emphasis on the preliminary inquiry transcripts in his closing
submissions. She stated that the preliminary inquiry transcripts were not
evidence and said that they had not been read in chronological order. She also said
that defence counsel had added tone and emphasis to which the transcript could
not speak. She asked the trial judge for an instruction on the tone and
intonation that defence counsel had added to his reading of the preliminary
inquiry transcripts. The trial judge replied that the Crown could make that
argument before the jury. Defence counsel did not object.
[41]
In her closing submissions, the trial Crown
urged the jury not to place undue weight on the complainants evidence at the
preliminary inquiry. She acknowledged that the complainant had failed to
mention the oral sex until her cross-examination at the preliminary inquiry but
argued that the circumstances of the complainants disclosure were
understandable and did not undermine her credibility.
[42]
The trial Crown then said the following.
Now, I want to go to the inconsistency that my
friend raises about oral sex in the prelim transcripts. You have to be very
careful about that material.
First of all, [the complainant] testified in
front of you, and you could look at her demeanour, she testified that that was
one answer at the preliminary inquiry that was taken out of context. She had
already alluded to the other sexual act earlier in her testimony. She explained
she was alluding to it when she stated No, no, never mind. It was just
penetration. Again, while that might not have been the most eloquent account
or her account might not have flowed seamlessly thats not a signifier of
deceit. Instead, as she explained to you, its a reflection of the reality of
recounting a highly personal sexual trauma in a courtroom setting.
Plus, my
friend has read you the parts of the transcript, not in chronological order,
and that testimony is not evidence before you.
It is incomplete. He
adds his own tone. We all add tone to things. That gives it character. Hes
adding that to the transcript.
You cannot tell this is why we dont rely on
transcript on prelim transcripts as evidence. You cannot tell her demeanour
when she is giving that evidence. You dont know if shes crying when shes
saying that. You dont know if shes breaking down when shes saying that. You
dont know if shes completely disassociated because you didnt see her testify
at the prelim. You did not see her testify for the first time. So, nuanced
pauses, crying, is lost when my friend reads in prelim transcripts with his own
tone. [Emphasis added.]
[43]
Defence counsel objected to two aspects of the
trial Crown closing.
2.
Defence
Counsels First Objection
[44]
Defence counsels first objection was to that
part of trial Crowns closing submission in which she said that, in his closing
submission, he had read parts of the transcript not in chronological order
(the First Impugned Comment). He said that the First Impugned Comment left
the jury with the impression that he had not gone through the preliminary
inquiry transcripts in chronological order when he had. He argued that this gave
the jury the impression that he was somehow deceiving them.
[45]
The trial judge said that, on her reading of the
preliminary inquiry transcript, there was an issue with the chronology and that,
while he was entitled to use the transcript in asking the complainant
questions, she did not think she could say his use of it was absolutely in
chronological order. She said she thought defence counsel used it topically
in chronological order but that was not necessarily how the preliminary inquiry
transcript read. Defence counsel agreed that in cross-examination he jumped back
and forth in questioning and it was not chronological. (In fact, he was
mistaken on this point because he did put the preliminary inquiry transcripts
to the complainant in chronological order.) But, he argued, when he went
through the preliminary inquiry transcript in his closing submissions, he did
so in chronological order.
[46]
The trial judge concluded that it would be
unfair to tell the jury that defence counsel read excerpts from the preliminary
inquiry transcript in chronological order without also telling the jury that
the excerpts had not been put to the complainant in chronological order. She described
the First Impugned Comment as an incredibly minor point. She also stated that:
diving into [the First Impugned Comment] would only serve to distract the
jury; she did not find that the First Impugned Comment negatively reflected on
defence counsel; and she wasnt sure that it required a correction. If a
correction was needed, the trial judge said that it had to be balanced, with a
focus on the evidence.
[47]
The trial judge ruled on the First Impugned
Comment, saying:
I have thought about your request to add an
instruction to the jury to correct what you believe was an inappropriate
comment by the Crown when she suggested to the jury that the prelim evidence
was not in chronological order. I'm of the view that if I instruct the jury in
that way, that it would also necessitate then a comment on your
cross-examination of the complainant and indicate to them, that that was not in
chronological order, despite the fact that what was read to them, which is not
evidence, was in chronological order. But my understanding is you don't want
that charge put to them.
[48]
Defence counsel answered, Thats correct.
3.
Defence
Counsels Second Objection
[49]
Defence counsels second objection related to
the Crowns comments about the complainants emotional state when testifying at
the preliminary inquiry (the Second Impugned Comment). He acknowledged that
the Crown was on good footing when she said that a witness demeanour is lost
when you look at the preliminary inquiry transcripts but said she went too far
when she said the crying was lost because there was no evidence that the
complainant had been crying.
[50]
The trial judge dismissed the second objection,
saying;
I think you take it out of context, because what
I recall of the Crown's closing was that that was in a context of you don't
know what the demeanour was. You don't know if there was crying. You don't know
if there were pauses, you don't know. So I don't think it was just, look, she
was crying and you didn't hear it. That's not the takeaway that I took. [
] I
think if you cherry pick it out of the totality of her submissions, yes, but I
think you can't do that. I think you have to look at the context in which it
was given, and it was given in this whole section of here's what you don't
know, and just - you got to know what you don't know. [
] that's the way I
heard it. [
] I don't think that the jury's going to misunderstand that.
IV.
THE GROUNDS OF APPEAL
A. The
Appeal against Acquittal
[51]
The Crown appeal against acquittal rests on a
single ground: did the trial judge err in her interpretation of recording in
s. 162.1(2)?
B. The
Appeal against Conviction
[52]
The accused raises three grounds of appeal
against conviction. He submits that the trial judge:
1. erred in failing to address the defence objections to the
Crowns closing submissions;
2. erred in instructing the
jury that
Consent is the voluntary agreement of [the
complainant] to take part in the sexual activity that she said happened. In
other words, [the complainant]
wanted
[the accused] to do what he
did. [Emphasis added]; and
3. improperly ruled on the s.
276 application.
V.
THE APPEAL AGAINST ACQUITTAL
[53]
For ease of reference, I set out ss. 162.1(1)
and (2) again below.
Publication, etc., of an
intimate image without consent
162.1 (1) Everyone who
knowingly publishes, distributes, transmits, sells, makes available or
advertises an intimate image of a person knowing that the person depicted in
the image did not give their consent to that conduct, or being reckless as to
whether or not that person gave their consent to that conduct, is guilty
(a) of an indictable offence
and liable to imprisonment for a term of not more than five years; or
(b) of an offence punishable
on summary conviction.
Definition of intimate
image
(2) In this section, intimate
image means a visual recording of a person made by any means including a
photographic, film or video recording,
(a) in which the person is
nude, is exposing his or her genital organs or anal region or her breasts or is
engaged in explicit sexual activity;
(b) in respect of which, at
the time of the recording, there were circumstances that gave rise to a
reasonable expectation of privacy; and
(c) in respect of which the
person depicted retains a reasonable expectation of privacy at the time the
offence is committed.
A. The Parties Positions
1.
The Crowns Position
[54]
The Crown makes two overriding submissions on
this issue.
[55]
First, the Crown says that the trial judge erred
in law by interpreting recording in s. 162.1(2) as requiring proof that the
image captured by the device is capable of reproduction. Based on the text of
s. 162.1, it argues that recording should be interpreted as any visual
display created by any means. It says that s. 162.1 was enacted to modernize
the
Criminal Code
and criminalize sexual exploitation committed
through technology. Further, it says that Parliament carefully circumscribed
the parameters of the offence in s. 162.1(2)(a)-(c) based on that purpose: to
make it criminal to share, by any means, an image without the subjects
consent, if that image is sexually explicit and engages the subjects
reasonable expectation of privacy. It contends that it is the content of the
image that matters, not the medium used to share the image.
[56]
Second, the Crown submits that the trial judge
erred in finding that there was no evidence on how an iPhone works. It says
that, contrary to the trial judges view, the evidence of the complainant and
DC Angus was sufficient and there was no need for the Crown to call expert
evidence about how iPhones or FaceTime work, or to prove that the FaceTime images
were capable of reproduction.
2.
The Accuseds Position
[57]
The accused submits that the plain meaning of
recording implies the creation of an image that can be stored, viewed later, and
reproduced. This, he contends, excludes evanescent images that are
transmitted and viewed a single time and are thereafter unavailable. He
contends that to record something is to capture an event that happens at a
point in time and to preserve it in a more lasting form. He argues that the
Crowns interpretation of recording sidesteps its essential meaning which is
that an event is preserved and available for later viewing. He points to the
trial judges comparison of a FaceTime call with a phone call to illustrate this,
and says that no one thinks of a phone call as a recording.
B.
Analysis
[58]
In my view, the trial judge erred in her interpretation
of recording in s. 162.1(2) and in her approach to the sufficiency of the evidence.
1.
The meaning of recording in s. 162.1(2)
[59]
It is trite law that the modern approach to
statutory interpretation requires that the words of an
Act
must 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:
Bell ExpressVu Ltd. Partnership v. Rex
,
2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.
[60]
The starting point is to determine the ordinary
meaning of the text:
R. v. Wookey
, 2016 ONCA 611, 531 O.A.C. 13, at
para. 24. At para. 25 of
Wookey,
quoting from
Ruth Sullivan,
Sullivan on the Construction of Statutes
,
6th ed.
(Markham,
Ont.: LexisNexis Canada, 2014)
,
Pharmascience
Inc. v. Binet
, 2006 SCC 48, [2006] 2 S.C.R. 513, at para.
30, and
Canadian Pacific Air Lines Ltd. v. Canadian Air Line
Pilots Assn.
, [1993] 3 S.C.R. 724, at p. 735,
this
court states that ordinary meaning refers to the readers first impression
meaning, the understanding that spontaneously comes to mind when words are read
in their immediate context and is the natural meaning which appears when the
provision is simply read through. In other words, the plain or ordinary
meaning of a word is not dictated by its dictionary meaning nor is it frozen in
time.
[61]
What, then, is the ordinary meaning of the text
of ss. 162.1(1) and (2)? Section 162.1(1) makes it an offence for a person to knowingly
disseminate an intimate image of a person without their consent. Section
162.1(2) provides that intimate image means a visual recording of a person
made by any means including a photographic, film or video recording.
[62]
On a plain reading of ss. 162.1(1) and (2), it
appears to me that the non-consensual visual sharing of an intimate image is
prohibited regardless of whether the intimate image being shared has the capability
of reproduction. Further, the natural or ordinary meaning of visual recording
includes a FaceTime call.
[63]
My plain reading of these provisions begins with
the observation that with traditional technology, such as a camera, the capture
and display of the visual image are separate acts. But, with a livestream
application such as FaceTime, the two are simultaneous. Livestream transmissions
enable a caller to capture visuals (i.e. record intimate images) and share them
simultaneously. Thus, a FaceTime call in which the callers iPhone is pointed
at a person is a visual recording of that person, within the meaning of s.
162.1(2), because that persons image is captured on the callers phone and transmitted
to the recipients screen where it is displayed. How could the recipient
observe the person if that persons image had not been recorded and transmitted
to them? It matters not whether the recipient reproduces the persons image or
could reproduce it; the recipient has seen the persons image because the caller
recorded it and sent it to them. Thus, the FaceTime call is the visual recording
of the person.
[64]
In times gone by, the word recording may have
been confined to visuals that could be reproduced and viewed at a later time or
place. Photographs and videotapes are examples of that. However, five
considerations militate against such a restrictive interpretation of
recording in s. 162.1(2).
[65]
First, the language of s. 162.1 is intentionally
broad. Section 162.1(1) prohibits a wide range of conduct, both overt acts of
dissemination (i.e. publishes, distributes, transmits, sells) and the
facilitation of acts of dissemination (makes available or advertises). And, s.
162.1(2) provides that a visual recording of a person can be made by any means.
[66]
Second, FaceTime calls are directly caught by
the language of s. 162.1(2), in which intimate image is defined to mean a
visual
recording
including
a
video recording
(emphasis added). As I
have just explained, in a FaceTime call where the caller focuses the camera in
their iPhone on a person, the caller is transmitting a video recording of that
person to the recipient of the call.
[67]
Third, there is nothing in s. 162.1 to suggest
that the intimate image being shared must be capable of reproduction. The harm
is in the non-consensual sharing of an intimate image regardless of whether
the recipient of the recording (call) reproduces it or can reproduce it. Even
if there are no copies and no opportunity to make them, as the sentencing court
observed in
R. v. J.B.
, 2018 ONSC
4726, at para. 44, the act of
sharing the images in the first place is an attack on the victims privacy,
basic human dignity, and sense of self-worth.
[68]
Fourth, restricting the meaning of recording to
outdated technology by requiring that it be capable of reproduction would
fail to respond to the ways in which modern technology permits sexual
exploitation through the non-consensual sharing of intimate images. In so doing,
it would undermine the objects of s. 162.1 and the intention of Parliament in
enacting it.
[69]
Section 162.1 is a relatively new offence. It came
into effect as part of Bill c-13,
Protecting
Canadians from Online Crime
, enacted in 2014 and proclaimed
into force on March 9, 2015. The bill part of the federal governments
initiative against cyber-bullying was introduced when two young women tragically
took their lives after intimate images of them had been shared online without
their consent. These cases and others highlighted the growing trend to use
technology as a tool of harassment and sexual exploitation, and the justice
systems inability to respond because no offence existed at that time which addressed
that type of conduct.
[2]
[70]
Sexual offences are enacted to protect personal
autonomy and sexual integrity of the person:
R. v.
Jarvis
, 2019 SCC 10, at para. 122. Giving visual
recording a
broad and inclusive
interpretation best accords with the objects of s. 162.1 and Parliaments
intention in enacting it.
[71]
Finally, I accept the Crowns submission that
the trial judges interpretation of s. 162.1 would base culpability on the medium
used to share the intimate image, rather than on whether the conduct breached
the victims sexual integrity and privacy. This, it submits, would lead to
arbitrary and unreasonable distinctions. I agree. The following example
demonstrates this.
A person who takes a picture of a
naked woman in a changeroom and gives the photo to one friend would be guilty
of an offence under s. 162.1. However, if that person livestreamed the image of
the woman on a website where it can be viewed an indefinite number of times by
an indefinite number of people but never saved, on the trial judges
interpretation, the person would not be guilty of an offence under s. 162.1.
[72]
In conclusion, applying the modern principles of
statutory interpretation, ss. 162.1(1) and (2) make it an offence to knowingly
publish, distribute, transmit, sell, make available or advertise an intimate
image of a person, without the persons consent. Intimate image means a visual
recording of a person made by any means. Interpreting visual recording broadly
and in a common-sense and purposive manner, prohibits the non-consensual visual
sharing of an image, if the image is sexually explicit and engages the
subjects reasonable expectation of privacy. The ordinary meaning of visual recording
does not require proof that the intimate image that was shared is capable of
reproduction. Thus, a FaceTime call is captured by s. 162.1.
[73]
In reaching this conclusion, I reject my
colleagues analysis based on the voyeurism offence in s. 162 of the
Criminal Code
. He suggests that the
accused could have been held answerable under that provision. I disagree.
Section 162 applies when one person surreptitiously observes or makes a
visual recording of another, in certain circumstances. There is nothing surreptitious
about the accuseds alleged act of livestreaming images of the complainant as
she vomited into a toilet, while naked. She was fully aware that the accused
was pointing his iPhone at her and making a FaceTime call. She was simply too
ill at the time to be able to leave the toilet.
[74]
I respond also to my colleagues suggestion that
we are to infer, based on the wording of s. 162, that Parliament used the word
recording in s. 162.1(2) with the deliberate intention of excluding
livestreaming. There is no basis for such an inference. First, Parliament would
have no discernible purpose for excluding livestreaming from the offence.
Second, this suggestion fails to consider the word recording within the
context of each of the two provisions. In s. 162, the offence is the
surreptitious observation or visual recording of a person in certain
circumstances. In s. 162.1, the offence is the non-consensual sharing of an
intimate image, where intimate image means a visual recording of a person made
by any means. It is a false dichotomy to suggest that because Parliament
provides two methods of committing the offence in s. 162, it could not have
intended that the digital recording of an intimate image through a FaceTime
transmission was a visual recording for the purposes of s. 162.1. As I explain
above, a FaceTime call falls within the meaning of visual recording in s.
162.1(2).
2.
Sufficiency of the Evidence
[75]
The trial judge said that there was an absence
of evidence before her about how a FaceTime call captures images that would
amount to a recording within the meaning of s. 162.1(2). She also stated that
despite the ubiquitous nature of iPhones she was not prepared to take
judicial notice about the technical workings and application of a FaceTime call.
I do not agree with either statement.
[76]
There was evidence before the trial judge about
how a FaceTime call works. Both the complainant and DC Angus gave evidence on
this. They indicated that a FaceTime call allows a person to film their
surroundings and transmit those images, instantaneously, to the recipients of
the FaceTime call, who are then able to view the images. I would add that DC
Angus did not testify, as the trial judge indicated, that a FaceTime call is
identical to a telephone call except that it has a visual component, as well
as an auditory one. He did make the comment that a FaceTime call is like a
phone call with a video component. However, he made that comment in the
context of explaining the ease with which FaceTime calls can be made. In his
testimony, DC Angus was very clear that, in a FaceTime call, the caller can
choose to show the recipient whatever the caller points their back camera at.
Self-evidently, the ability to show others what is going on around you makes a
FaceTime call significantly different than a telephone call.
[77]
There was no need for additional evidence and
certainly not that of experts. In saying this, I rely on
R. v. Mohan
, [1994] 2 S.C.R. 9, at pp.
23-24, in which the Supreme Court explains the necessity pre-condition for the
admission of expert evidence. The Court said that expert evidence is necessary
when it provides information likely to be outside the experience and knowledge
of a judge or jury and that information is needed to enable the trier of fact
to appreciate the matters in issue due to their technical nature. In short, as
the Court stated, expert evidence is necessary on matters ordinary people are
unlikely to form a correct judgment about, if unassisted by persons with
specialized knowledge.
[78]
The general functioning of iPhones today is not
the stuff of experts. iPhone users can explain what applications are and what
use they make of them. And the triers of fact do not need the assistance of persons
with specialized knowledge in order to form correct judgments on matters
relating to video messaging applications such as FaceTime. The fact that
FaceTime sends and receives video images is uncontroversial. So, too, is the capability
of the recipient of a FaceTime call to take and print out a screen shot: see,
for example,
Sylvestre v. Sylvestre
, 2018 SKQB 105, at para. 16.
[79]
The only question in this case was whether there
was sufficient evidence for the jury to conclude that the accused, in one or more
of the FaceTime calls, made available to the recipient of the call or calls,
the image of the complainant while she was naked and vomiting in the toilet. In
my view, there was and the matter should have gone to the jury.
[80]
Accordingly, I would allow the appeal against
acquittal, set aside the order for a directed acquittal, and order a new trial
on the count of dissemination of intimate images contrary to s. 162.1 of the
Criminal Code
.
VI.
THE APPEAL AGAINST CONVICTION
Issue #1 No
error in the trial judges treatment of defence objections to Crowns closing submissions
A. The Parties
Positions
1.
The Accuseds Position
[81]
It will be recalled that, at trial, the defence
objected to two comments in the trial Crowns closing submissions. The First Impugned
Comment was the trial Crowns comment that, in his closing submissions, defence
counsel read parts of the preliminary inquiry transcript not in chronological order.
The Second Impugned Comment was that the jurors were not in a position to
assess the nuances of the complainants state when testifying at the
preliminary inquiry, including whether she was crying, breaking down, or
completely disassociated. The trial judge did not give a correcting
instruction on either impugned comment.
[82]
Before this court, the accused seeks a new trial
on the basis that the trial judge erred in law in failing to give a corrective
instruction for those comments.
[83]
In respect of the First Impugned Comment, the accused
submits that the trial judges ruling was unfair to him because it left
uncorrected the Crowns implicit denigration of defence counsels fairness to
the complainant. And, he says, the First Impugned Comment was factually
incorrect because defence counsel had, in fact, questioned the complainant in
the sequence in which her story had emerged at the preliminary inquiry.
[84]
The accused submits that the trial judges
ruling on the Second Impugned Comment was incorrect because, without an
evidentiary foundation for such a claim, the Crown had no right to claim that
the complainant could have been crying, breaking down or completely
disassociated when she gave her evidence at the preliminary inquiry.
2.
The Crowns Position
[85]
In respect of the First Impugned Comment, the Crown
submits that it did not, expressly or by implication, suggest that defence
counsel had been unfair or misleading. At most, the Crown says, the First Impugned
Comment contained one factual inaccuracy, namely, that defence counsel read
parts of the preliminary inquiry transcript out of chronological order. The
Crown says this minor misstatement which was not inflammatory or demeaning
did not require a corrective instruction and did not cause any prejudice to the
accused.
[86]
In relation to the Second Impugned Comment, the
Crown submits that it did not invite the jury to speculate on the complainants
emotional state. She says that the comment was made as part of the trial
Crowns direction to the jury to afford the complainants preliminary inquiry testimony
minimal weight and, further, that it was a fair response to the accuseds arguments
that the complainant should be disbelieved because of her testimony at the
preliminary inquiry.
B. Analysis
[87]
I would reject this ground of appeal. In my
view, the trial judge made no error in her treatment of the impugned comments.
Neither of those comments deprived the accused of a fair trial.
1.
The
Governing Legal Principles
[88]
The following points provide the necessary
structure for assessing this ground of appeal.
[89]
First, in
R. v.
Manasseri
,
2016
ONCA 703, 132 O.R. (3d) 401, leave to appeal to S.C.C. refused, 37322 (April
13, 2017), at paras. 103-106, this court said the following about Crown
counsels closing submissions in a jury trial:
1.
the Crown is entitled to advance its case
forcefully but, in doing so, must eschew inflammatory rhetoric, demeaning
commentary, sarcasm, and legally impermissible submissions that undermine trial
fairness;
2.
the Crown must limit its means of
persuasion to facts found in the evidence adduced before the jury; and
3.
the Crown is expected to be rigorous but
fair, persuasive, and responsible.
[90]
Second, when complaints are made that the
Crowns closing submissions exceeded permissible limits, the critical issue is
whether what was said deprived the accused of a fair trial. To determine this
issue, an appellate court must consider the impugned comments in the milieu in
which they were said and the context of the entire trial, as well as any
judicial response to them:
Manasseri
, at para. 106.
[91]
Third, the trial judge does not have an
inflexible obligation to correct every misstatement of the evidence by counsel:
R. v. Jones
, 2011 ONCA
584, 277 C.C.C. (3d) 143, at para. 38.
2.
The
First Impugned Comment
[92]
Before placing the First Impugned Comment in
context, I note that any inaccuracy in it was entirely inadvertent on the part
of the Crown. This can be seen by considering the exchange between the trial
judge and defence counsel after he objected to the First Impugned Comment.
[93]
In the to and fro following defence counsels
objection, the trial judge said that defence counsel had put the preliminary
inquiry transcripts to the complainant out of order (as he was entitled to).
Defence counsel agreed, saying he had jumped back and forth in his
cross-examination. As it turned out, defence counsel had put the transcripts to
the complainant in chronological order and he also read the parts of the preliminary
inquiry transcript in chronological order in his closing submissions. However,
when the trial judge made her ruling on the First Impugned Comment, it was on
the mistaken understanding shared by defence counsel that, during
cross-examination, he put the preliminary inquiry transcript to the complainant
out of order.
[94]
With that shared misunderstanding in mind, the
trial judge ruled that if she were to give a corrective instruction to the jury
and tell them that defence counsel had read from the preliminary inquiry
transcript in chronological order, she would also tell the jury that those
transcripts had not been put to the complainant in chronological order. As the trial
judge explained, she felt such an instruction was necessary for it to be
balanced and to keep the jury focussed on the evidence. Defence counsel
resisted that qualification in the proposed corrective instruction. Consequently,
the trial judge did not give the correcting instruction.
[95]
It is important to also consider the First Impugned
Comment in context. Both defence counsel and the trial Crown referred to the
complainants evidence at the preliminary inquiry in their closing submissions.
Defence counsel reviewed the parts of the preliminary inquiry transcript that
had been put to the complainant in cross-examination and described her answers
as profoundly dishonest and her explanation for the inconsistency as self-serving.
He argued that the complainants late disclosure of the oral sex was a sign
that her evidence at trial could not be trusted.
[96]
In her closing submissions, the trial Crown
urged the jury not to place undue weight on the complainants evidence at the
preliminary inquiry. She acknowledged that the complainant had failed to
mention the oral sex until her cross-examination at the preliminary inquiry but
argued the circumstances of the complainants disclosure were understandable
and did not undermine her credibility.
[97]
It is within this context that the trial judge found
the First Impugned Comment to be an incredibly minor point. In her view, diving
into it would only serve to distract the jury. Further, she stated, the First
Impugned Comment did not negatively reflect on defence counsel and did not
warrant a correcting instruction. I agree with the trial judge on all these
points.
[98]
The First Impugned Comment was not inflammatory
or demeaning, and caused no prejudice to the accused. It was a minor factual
inaccuracy made within the context of a valid point: that excerpts from a
transcript do not tell a complete story and that what mattered was the
complainants explanation of the inconsistency at trial.
3.
The
Second Impugned Comment
[99]
The trial judge dismissed the defence objection
to the Second Impugned Comment on the basis that defence counsel had cherry
picked it from the Crowns closing. The trial judge, having heard both defence
counsels closing and that of the trial Crown, understood the Second Impugned Comment
to simply be part of the Crowns reminder to the jury that it had heard and
seen the complainant give her testimony at trial but not at the preliminary
inquiry and that the jury did not know what the complainants emotional state
had been at the preliminary inquiry.
[100]
I accept the trial judges determination of this matter. As the
Supreme Court stated in
R. v. Rose
, [1998] 3 S.C.R. 262, at para. 126
,
the trial judge is in
the best position to assess the significance of the remarks of counsel, to
determine if they need to be corrected and, if necessary, to correct
inaccuracies and remedy any unfairness that may arise from the addresses of
counsel. The trial judge did not see the trial Crowns reference to the fact
that the complainant might have been crying or breaking down at the preliminary
inquiry as an invitation to the jury to speculate about the complainants
demeanour. Rather, she viewed it as part of explaining the inability of a
transcript to convey the complainants emotional state when testifying at the
preliminary inquiry.
[101]
There was nothing wrong with the Crown reminding the jury that nuances
and emotion are lost when considering transcripts. With transcripts, the trier
of fact is unable to assess the witnesss demeanour when testifying and is
therefore left without the potentially important insights that the ability to
observe the witness when testifying can afford to a fact finder in the
assessment of that witnesss credibility:
R. v.
Rowe
,
2011 ONCA
753, 281 C.C.C. (3d) 42, at para. 43.
[102]
This is not a case like
R. v. Iyeke
, 2016 ONCA 349, where the misstatement was the centerpiece of the
Crowns closing address. In
Iyeke
, the accused was charged with possession of a firearm. The Crown
told the jury in its closing submissions that a confidential informant had told
police that the accused had a gun. The statement was wrong. In allowing the
appeal, this court noted that the confidential tip was the centerpiece of the
Crowns closing address and repeatedly emphasized by the Crown as a powerful
piece of incriminating evidence. In the present case, the Second Impugned Comment
was nothing close to being the centerpiece of the Crowns closing submission:
Crown counsel mentioned it only once and then only briefly.
[103]
I would add that a contextual consideration of the Second Impugned Comment
must include that, after the defence closing, Crown counsel asked the trial
judge for a corrective instruction on the tone that defence counsel had added
when reading the extracts from the preliminary inquiry transcripts. The trial
judge replied that the Crown could make that argument before the jury and,
significantly, defence counsel did not object.
[104]
I would dismiss this ground of appeal. To the extent that the Second
Impugned Comment may have veered into impropriety through its reference to
crying and breaking down, in the context of the whole address, it did not
deprive the accused of a fair trial.
Issue #2 No error in the trial judges
instruction on consent
[105]
For ease of reference, I set out again the impugned instruction on
consent:
Consent is the voluntary agreement of [the
complainant] to take part in the sexual activity that she said happened. In
other words, [the complainant]
wanted
[the accused]
to do what he did. [Emphasis added]
A. The Parties Positions
1. The
Accuseds Position
[106]
The defence made no objection to the trial judges instruction on
consent at trial. Before this court, however, the accused submits that consent
and wanting are not synonymous and, while jury instructions equating the two
concepts are common, the use of the word wanted in the impugned instruction
misled the jury into understanding that subjective desire was a necessary
component of consent. He observes that a person might voluntarily agree to do
acts that they do not want to perform, for a variety of motivations. For
example, a partner might voluntarily agree to a sexual act she does not want
out of affection or in the expectation of reciprocal pleasure.
[107]
As a result of the impugned instruction, the accused submits that
the jury might have convicted on the basis that the complainant was strongly
attracted to him and, voluntarily though unhappily, performed oral sex despite
not wanting to. In support of his submission, the accused points to case law
where courts have distinguished the two concepts. For example, the accused quotes
from Dawe J. in
R. v. S.M.
, 2019 ONSC 7073, at para. 91:
Although G.C. testified that he never wanted
to have sex with S.M., the subjective mental state of consent under Ewanchuk
is not synonymous with "subjective desire". People
can consent to do something they would rather not do if they decide, on
balance, that the reward they will get for doing the thing outweighs their
subjective preference not to do it
. [Emphasis added.]
[108]
And, in
R. v. Shimizu
, 2010 CarswellOnt 10397
, at paras. 33-34, Croll J. found that although the complainant did
not want to engage in sexual activity, the Crown had failed to prove lack of
consent beyond a reasonable doubt because the complainant may have engaged in
the sexual activity for the purpose of career advancement.
2. The
Crowns Position
[109]
The Crown acknowledges that consent was a live issue in relation to
the oral sex allegation. It points to the trial judges lengthy instruction on
the meaning of consent, in which she clearly explained that the jury had to be
satisfied that the Crown had proven beyond a reasonable doubt that the
complainant had not consented and that the accused knew she did not consent.
[110]
The Crown contends that, in this case, there was no need for the
trial judge to distinguish between the closely related concepts of voluntary
agreement and subjective desire. The complainant said she did not want to
perform oral sex and did not consent. The accused said the complainant wanted
to perform oral sex and consented. In other words, there was no interpretation
of the evidence that would have allowed the jury to conclude that the Crown had
proven the complainant did not want sexual contact but failed to prove that
there was not voluntary agreement to sexual contact.
B.
Analysis
[111]
I would reject this ground of appeal. While in some cases a trial
judge may be required to differentiate between voluntary agreement and
subjective desire (i.e. wanting), this was not such a case. In the circumstances
of this case, the trial judge did not err in using the word wanted in the
impugned instruction.
[112]
In assessing whether the jury might have been misled by the impugned
instruction, I begin by considering it in the context of the overall instruction
on consent. The only time that the trial judge used the word wanted was in
the impugned instruction. Apart from that one instance, the trial judge
repeatedly instructed the jury that they had to be satisfied that the
complainant voluntarily agreed to engage in the sexual activity in question. In
so doing, the trial judge used the statutory definition of consent in s.
273.1(1) of the
Criminal Code
. For example, the trial judge instructed the jury on the meaning of
consent as follows:
It involves knowledge of what is going to
happen, and voluntary
agreement
to do it or let it be done. A
voluntary
agreement
to engage in sexual activity is not valid if
what [the complainant] said or did indicated to [the accused] that she did not
agree
to participate in that activity. A voluntary
agreement
to
engage in sexual activity is also not valid, if [the complainant] had
originally
agreed
to participate in sexual activity but changed
her mind and expressed in words or conduct, or both, that she did not
agree
to continue to participate in the same or different sexual activity. [Emphasis
added]
[113]
Next, as the accused acknowledges, a jury instruction equating
consent with wanting is common. In this regard, two things are worthy of
note. First, in the seminal case of
R. v. Ewanchuk
, [1999] 1 S.C.R. 330, at paras. 23 and 48, the Court described the
actus reus
of the offence of sexual assault as unwanted sexual touching and
said that, for the purposes of the
actus reus
,
consent means that the complainant in
her mind wanted the sexual touching to take place. Second, the charge in this
case tracked the language in
Watts Manual of
Criminal Jury Instruction
, 2
nd
ed
(Toronto: Thomson Reuters Canada, 2015, Final 271), at p. 599.
[114]
With these considerations in mind, I ask whether the impugned
instruction might have prejudiced the accused. In my view, it could not have: there
was nothing in the evidence upon which the jury could conclude that the
complainant did not want to perform oral sex but she nonetheless voluntarily
agreed to do so nor did defence counsel ever suggest that the complainant
engaged in the sexual activity for any purpose other than subjective desire. The
accuseds version of events was that the complainant initiated oral sex and
that intercourse never took place.
[115]
The evidence only permitted the jury to make one of two findings:
that the complainant did not want to perform oral sex and did not agree to do
so or that she agreed to perform oral sex and wanted to do so. Accordingly, the
jury could not have concluded that the Crown had proven the complainant did not
want sexual contact but had not proven that there was no voluntary agreement to
sexual contact.
[116]
The cases of
S.M.
and
Shimizu
, relied on by the accused, are readily distinguishable from the
present case. In both those cases, the trial judge found that there was a
possibility that the complainant agreed to the sexual activity for a reason
other than pleasure or affection. In
S.M.
, the reason was money and in
Shimizu
,
it was career advancement. In this
case, there was no evidence that the complainant consented to engage in sexual
activity for a reason other than a subjective desire nor was there a theory of
the case presented to the jury that she consented for any reason other than
subjective desire.
[117]
While the absence of defence objection is not determinative, the
failure to object may be indicative of the seriousness of what is later said to
be an error:
R. v. R.D.
, 2020 ONCA 23, [2020] O.J. No. 112, at para. 15. In my view, it is
indicative in this case.
[118]
Accordingly, in my view, the jury charge was clear and proper on the
issue of consent and I would dismiss this ground of appeal.
Issue #3 No error in the trial judges ruling
on the s. 276 application
In light
of the mandatory ban on publication contained in s. 278.95 of the Criminal
Code, paragraphs 119 to 127 have been redacted from the public version of this
decision.
[128]
Accordingly, this ground of appeal fails.
DISPOSITION
[129]
For these reasons, I would allow the appeal against acquittal, set
aside the order for a directed acquittal, and order a new trial on the count of
dissemination of intimate images contrary to s. 162.1 of the
Criminal Code
. And, I would dismiss the
appeal against conviction.
E.E.
Gillese J.A.
I
agree. K. Feldman J.A.
B.W. Miller J.A. (dissenting):
[130]
I agree with my
colleagues reasons and disposition on the conviction appeal. I would, however,
dismiss the Crown appeal of the acquittal on the charge of disseminating an
intimate image.
[131]
The centrepiece of this
Crown appeal is the claim that a person who receives a FaceTime video call a
live event is in fact viewing a recording. This is obviously wrong on any
conventional understanding of the meaning of a recording. No one would ever
speak in such a way. The Crown nevertheless advances an argument that s. 162.1
of the
Criminal Code
should be interpreted such that any visual display
including any display of unrecorded, live-streamed images is a visual
recording. The statutory interpretation argument fails, not simply because of
the stipulation of a novel and untenable definition of recording. More
fundamentally, as explained below, the argument contradicts basic principles of
statutory interpretation.
[132]
In short, although the
accuseds alleged actions would have grossly violated the complainants dignity
and he arguably would have been answerable to charges under s. 162 of the
Criminal Code
the elements of s. 162.1 were not made out, the Crown is not free to
reimagine the elements of the offence as though it were a common law offence,
and the trial judge made no error in returning a directed verdict of acquittal
on those charges.
I.
STATUTORY INTERPRETATION METHODOLOGY
[133]
I begin with this
observation: legislating is reasoned activity. Legislating results in a
legislative text intended to communicate the content of a lawmaking decision to
the intended audience: Stéphane Beaulac,
Handbook
on Statutory Interpretation: General Methodology, Canadian Charter and
International Law
(Markham, ON: LexisNexis, 2008), at pp. 8-10; Cameron Hutchison,
The Fundamentals of Statutory Interpretation
(Toronto: LexisNexis, 2018), at p. 48.
Legislation establishes and specifies legal rights and obligations. It is
intended to guide behaviour, and in order to guide behaviour it must be
intelligible to the intended audience.
[134]
The judicial role in
interpreting legislation is obviously different in kind from the role of the
legislature in enacting legislation. Statutory interpretation is a matter of
ascertaining the change in the law the legislature intended to communicate
through the legislative text. The task of interpretation neither contemplates
nor permits judicial reordering of priorities or substituting other, perhaps
better means to achieving Parliaments purpose. Judges are not to be co-authors
with the legislature, nor are they to second-guess the means that Parliament
has chosen to achieve its aims, no matter how beneficial the judicial
amendments may appear to be:
Williams v. Canada
(Minister of Public Safety and Emergency Preparedness)
, 2017 FCA 252, 417 D.L.R. (4th) 173, at
paras. 41-52,
per
Stratas J.A.;
Canada v.
Cheema
,
2018 FCA
45, 420 D.L.R. (4th) 534, at paras. 73-75,
per
Stratas J.A, leave to
appeal refused, [2018] S.C.C.A. No. 137. See also Elmer A. Driedger,
Construction of Statutes
, 2nd ed. (Toronto: Butterworths, 1983),
at pp.
28-34.
A.
The Modern or Orthodox Principle
[135]
Although the practice
of statutory interpretation can be difficult, the objective is not. Statutory
interpretation is concerned with determining the intention of Parliament. As
Driedger put it in
Construction of Statutes
, at pp. 105-06:
In the end, therefore, as Chief Justice Tindal
said in the
Sussex Peerage Case
the only rule for the construction of
Acts of Parliament is, that they should be construed according to the intent of
the Parliament which passed the Act.
The construction of statutes means
finding that intention
. [Emphasis added.]
[136]
More recently,
Professor Richard Ekins reiterated that [o]rthodox principles of statutory
interpretation centre on recognising the intended meaning of the enacting
Parliament: Richard Ekins, Sentences, Statements, Statutes (2016) Analisi e
Diritto 321, at p. 322. See also Hutchison, at p. 48; Beaulac, at p. 8; and
Ruth Sullivan,
Sullivan on the Construction of
Statutes
, 6th ed.
(Toronto: LexisNexis, 2014), at §2.5-2.6.
[137]
The practical
methodology for ascertaining intended meaning was long established in the
practice of Canadian courts before Driedger summarized it and gave it the label
of modern, or orthodox, principle: Beaulac, at p. 30; see also Michael Plaxton,
Sovereignty, Restraint, and Guidance: Canadian
Criminal Law in the 21st Century
(Toronto: Irwin Law, 2019), at pp. 95-97. The Supreme Court has
expressly adopted Driedgers formulation of the modern principle in hundreds
of cases. In
R. v. Jarvis
, 2002 SCC 73, [2002] 3 S.C.R. 757, at
para. 77, Iacobucci and Major JJ. distilled Driedgers modern principle as
follows:
The approach to statutory interpretation can
be easily stated: one is to seek the intent of Parliament by reading the words
of the provision in context and according to their grammatical and ordinary
sense, harmoniously with the scheme and the object of the statute (
Interpretation
Act
, R.S.C. 1985, c. I-21, s. 12;
Bell ExpressVu Limited
Partnership v. Rex
, [2002] 2 S.C.R. 559, 2002 SCC 42;
Rizzo
& Rizzo Shoes Ltd. (Re)
, 1998 CanLII 837 (SCC), [1998] 1
S.C.R. 27;
R. v. Gladue
, 1999 CanLII 679 (SCC), [1999]
1 S.C.R. 688; E. A. Driedger,
Construction of Statutes
(2nd
ed. 1983), at p. 87).
[138]
At the Federal Court of
Appeal, Stratas J.A. further distilled the modern principle to its bare
essentials, providing the useful shorthand of text, context, and purpose:
Williams
,
at para. 41;
Cheema
, at para. 73
.
B.
Text, Context, and
Purpose
[139]
There is no sequential
ordering of the modern principle factors, beyond beginning with the text of the
statute to be interpreted. The factors are closely related and need not be
addressed separately in every case:
Bell ExpressVu
Limited Partnership v. Rex
,
2002 SCC 42, [2002] 2 S.C.R. 559, at para. 31. Their unity is in serving the
same inquiry: what can the interpreter ascertain about Parliaments intention?
What changes to the rights and obligations of persons did Parliament intend
through the legislation enacted?
[140]
As Driedger explains,
at pp. 2 and 105, the first step in discerning what Parliament intended is to
consider the words it used in the context it used them, giving those words
their grammatical and ordinary meaning: see also Sullivan, at §3.7; Hutchison,
at pp. 46-47. Absent an ambiguity, which requires the interpreter to
distinguish among multiple senses of the same word, the text will normally
dominate interpretation, although it may not always be sufficient:
Canada Trustco Mortgage Co. v. Canada
,
2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10. Reading the words of a statute
in the context of the legislative scheme as a whole can help with understanding
Parliamentary intent, as can considering what it is that Parliament intended to
achieve through the statute:
Rizzo v. Rizzo Shoes
Ltd. (Re)
, [1998] 1
S.C.R. 27
.
C.
A Note About
Ordinary Meaning
[141]
Just as with every
other type of communication, in the context of legislation the same word can be
used to convey vastly different meanings. Although attention to context will
usually narrow the potential senses in which a word is used, there may remain
more than one possibility. Even within the same sense or definition, a word can
have broader and narrower meanings. When it comes to interpreting the words of a
statute used in context, an interpreter is to presume that Parliament used the
ordinary meaning
of words, rather than some technical, arcane, or exotic sense, unless
the context suggests that a non-ordinary meaning was intended. The reason for
the presumption is obvious enough: because legislation is an act of
communication, communication is most likely to succeed where there is a shared
understanding of the meaning of the words used. As Professor Michael Plaxton
explained in his text,
Sovereignty, Restraint, and
Guidance: Canadian Criminal Law in the 21st Century
, at p. 97:
Confronted with a statutory provision for the
first time, we proceed on the basis that Parliament chose the text it did, not
with a view to confusing or eluding its readers but intending to be understood
by its audience. With that in mind, we generally assume that Parliament
intended a term or phrase to be given its ordinary meaning and not some
obscure, technical, bizarre, or idiosyncratic meaning.
[142]
Ordinary meaning is
often expressed in terms of the natural or first impression that arises
spontaneously when words are read in context: see
e.g.
Pharmascience
Inc. v. Binet
, 2006 SCC
48, [2006] 2 S.C.R. 513, at para. 30. As a matter of first impression, the
context in which a word is used will prompt a reader to quickly and
subconsciously discard many inapposite senses of a word. But
Pharmascience
should not be taken as suggesting that the ordinary meaning of a word is a
function of its readers subjective reaction, as though a statute were a type
of Rorschach test.
Reading is a matter of
impression, but it is the impression that ought to be formed in the mind of a
competent speaker of the language by a particular text that uses the
conventions of language shared between the legislature and the intended
audience: Pierre-André Côté, Stéphane Beaulac & Mathieu Devinat,
The Interpretation of Legislation in Canada
, 4th ed. (Toronto: Carswell, 2011), at pp. 277-78.
A reader is directed to consider the first
impression because an accurate first impression should result from effective
communication.
[143]
However, as Hutchison
notes, at p. 45, ascertaining the ordinary meaning of a provision is not
effortless: The phrase ordinary meaning is deceptive in the sense that
uncovering the meaning of words in a statute is not a simple or routine task.
Indeed, it is often a difficult and probative exercise. Even where language is
straightforward, the context may carry a more nuanced meaning than might be
expected: Hutchison, at pp. 45-47.
[144]
Statutory interpretation
is an exacting scholarly discipline. It requires a comprehensive understanding
of canons of interpretation and other presumptions that help the reader
understand what it is that Parliament intended. There is a rich body of law and
scholarship to guide interpretation, even in easy cases. Accordingly, before
turning to the legislative provision in question in this appeal, and the trial
judges treatment of it, I will address three complications to assessing
ordinary meaning that are potentially relevant.
[145]
First, dictionaries or
other resources such as other works of lexicographers and others who study
language use can be useful in ascertaining ordinary meaning. They provide
some objective evidence of the shared conventions of language through which Parliament
communicates. But dictionary definitions must be approached with caution. Among
other reasons, this is because dictionaries aim to provide a comprehensive
catalogue of all of a words possible uses. The legislature, however, will not
have intended all of these possible uses, and the multiplicity of potential
meanings can generate ambiguity and confusion. Even where no ambiguity results,
simply applying a dictionary definition to a word taken out of context will
result in an erroneously broad interpretation: Sullivan, at §3.31-3.32;
Hutchinson, at pp. 45-46. Additionally, dictionaries can sometimes lag behind
contemporary language use. It is important to avoid, on the one hand,
anachronistic definitions unlikely to have been used by the legislature, and,
on the other, new meanings that post-date the legislation. Dictionaries also
vary widely in their quality and precision, and it is important to prefer those
that are substantial works of scholarship: see Appendix A: A Note on the Use
of Dictionaries in Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts
(St. Paul, MN: Thompson/West, 2012), at
pp. 415-24. However, the point of the oft-repeated caution about dictionaries
is to use them with care, not to neglect them in favour of untutored instinct.
[146]
Second, the meaning of
the words used will be the meaning that Parliament intended at the time of
enactment. The original meaning is fixed and does not change with any
subsequent linguistic drift that might occur: Driedger, at p. 163; Sullivan, at
§6.10-6.11 This is a requirement of the rule of law: that law be knowable in
advance such that persons can make choices and organize their lives in ways
that do not to run afoul of it. Criminal liability cannot depend on social
facts like changing linguistic conventions that are outside the control of
the legislature or unknowable to an accused at the time of the supposed
offence:
R. v. D.L.W.
,
2016 SCC 22, [2016] 1 S.C.R. 402, at paras. 20-21, 57-61. Accordingly, when
assessing the meaning of a statutory provision, an authoritative interpreter
such as a court must be concerned with the intended meaning
at the time of
enactment
. As Dickson J. noted in
R. v. Perka
, [1984] 2 S.C.R. 232, at pp. 264-65:
The words of a statute
must be construed as they would have been
the day after the statute was passed
Sharpe v. Wakefield
(1888), 22
Q.B.D. 239, at p. 242 (
per
Lord Esher, M.R.). See also
Driedger,
Construction of Statutes
(2nd ed. 1983) at
p. 163: Since a statute must be considered in the light of all
circumstances existing at the time of its enactment it follows logically that
words must be given the meanings they had at the time of enactment, and the
courts have so held;
Maxwell on the Interpretation of Statutes
,
supra
,
at p. 85: The words of an Act will
generally be understood in the sense which they bore when it was passed.
[147]
Third, words vary in
their level of generality, and the generality of the words chosen by a
legislature impacts the breadth of the discretion a legislature intends courts
to have in interpreting the legislation. Generality is a key tool that
legislatures use in ensuring that legislation is able to address unforeseen or
changed circumstances.
[148]
In this regard, the
discussion in
R. v. Perka
is instructive. In that case, Parliament
had made it an offence to prohibit the possession of
Cannabis sativa
L
. At the time the legislation was passed,
the scientific consensus was that there was only a single species of cannabis,
and the intention of Parliament in proscribing the possession of
Cannabis sativa
L.
was to proscribe the possession of all
species of cannabis. Subsequent developments in botany suggested that what was
previously thought to have been a sub-strain of
Cannabis
sativa
L.
was actually a different strain. Dickson J. held that Parliament had
used
Cannabis sativa
L
. in
the
Narcotic Control Act
, R.S.C. 1970, c. N-1,
to denote a
category
encompassing
all strains of cannabis. Parliaments use of the term to denote
all
strains of
cannabis was not impacted by a subsequent change in botanical knowledge and
terminology: at pp. 265-66.
[149]
Conversely, broad or
open-textured language can sometimes be used to establish a category the
membership in which is not fixed at the time of enactment and may come to later
include things unknown at the time the statute was enacted. In
R. v. Perka
,
at p. 265, Dickson J. gives the example of the
Engraving
Copyright Act
of 1735,
which prohibited unauthorized engraving or in any other manner copying prints
and engravings. In
Gambert v. Ball
(1863), 32 L.J.C.P. 166, it was held that
copying prints in any other manner applied to photographic reproduction of
prints, even though that process was invented more than a hundred years after
the statute was enacted. The key in
Gambert
was to discern what the legislature
intended by the words it used.
D.
What Comes Next
[150]
Ascertaining the
ordinary meaning is not the whole of statutory interpretation, but it is a
necessary beginning. Although Parliament is presumed to use the ordinary
meaning of words, this presumption can be displaced if there is good reason
supplied by the context or the purpose of the legislation to believe that
Parliament intended some other meaning. But it must be stressed that this is
not a free-standing authority to substitute some
better
meaning for the one that Parliament
intended, even if, to the judicial mind, substitution would better accomplish
Parliaments purpose. Throughout, the judicial responsibility is to identify
what Parliament intended the words to mean, not what it ought to have said but
did not.
I.
THE TRIAL DECISION
A.
The Legislation
[151]
The accused was charged
with disseminating an intimate image of another person, contrary to s. 162.1 of
the
Criminal Code
. Section 162.1(1) provides:
162.1
(1)
Everyone who knowingly
publishes, distributes, transmits, sells, makes available or advertises an
intimate image of a person knowing that the person depicted in the image did
not give their consent to that conduct, or being reckless as to whether or not
that person gave their consent to that conduct, is guilty
(a)
of an indictable offence and liable to imprisonment for a term
of not more than five years; or
(b)
of an offence punishable on summary conviction.
[152]
A definition of
intimate image is provided in s. 162.1(2):
(2)
In
this section,
intimate image
means a visual recording of a
person made by any means including a photographic, film or video recording,
(a)
in which the person is nude, is exposing his or her genital
organs or anal region or her breasts or is engaged in explicit sexual activity;
(b)
in respect of which, at the time of the recording, there were
circumstances that gave rise to a reasonable expectation of privacy; and
(c)
in respect of which the person depicted retains a reasonable
expectation of privacy at the time the offence is committed.
B.
The Trial Judges
Reasoning
[153]
The accused brought a
motion for a directed verdict of acquittal on the basis that the Crown had
failed to meet its burden of establishing that the image that was alleged to
have been transmitted was an intimate image as defined in s. 162.1(2): a
visual recording of a person made by any means. The trial judge allowed the
motion on the basis that, as a matter of statutory interpretation, visual
recording means any image captured on any device, electronic or otherwise,
that has the capability for reproduction. She concluded that a FaceTime call,
as a live real-time transmission to another person, with both an auditory and
a video component is not a visual recording. It is identical to a phone call
with the added component of an image. The trial judge was open to the
possibility that despite the evidence before her, it was possible that FaceTime
operated by recording images. But she was unwilling to take judicial notice of
this technical aspect of the operation of FaceTime, and required evidence on this
point.
II.
Analysis
[154]
Having surveyed the
appropriate methodology and reviewed the impugned legislation, I turn to
considering how the Crowns arguments accord with the text, context, and
purpose of s. 162.1.
A.
Text
[155]
The Crown argues that
the trial judge misinterpreted s. 162.1(2) in understanding a visual
recording
as
an image of some permanence that is capable of reproduction. The Crown argues
that a visual recording should be interpreted as any visual display created by
any means.
[156]
The Crown faults the
trial judge for simply asserting an ordinary or common sense meaning of visual
recording without providing any source or explaining how she arrived at that
conclusion.
[157]
If this was how the
trial judge reasoned, it would have been a methodological error. Where there is
a genuine dispute as to the meaning of a key term, a judge may not resolve the
dispute by simply stipulating a definition.
[158]
But although the Crown
makes much of the fact that the trial judge did not provide a source for her
definition of visual recording in her oral reasons, there is no real mystery
here. The transcript of the oral submissions makes matters abundantly clear.
Counsel for the accused had put definitions before the trial judge from two
dictionaries, both of which defined recording in terms of a degree of
permanence and capacity for reproduction. One could also consider a more
authoritative source, such as the
Oxford English
Dictionary
, which
provides (among other definitions): a series of sounds (esp. a musical
performance) or video images
stored in permanent
form for later reproduction
(emphasis added).
[159]
Ironically, it is the
Crown that makes the methodological error it attributes to the trial judge: it
simply asserts a definition a visual display created by any means for
which there is no lexicographic support. No support is offered from
any dictionary, or the work of any lexicographer, or
anyone else who studies contemporary language use. The term does not appear to
have ever been used in such a way by any identifiable person or group. Yet the
Crown offers this invented meaning as the basis for a criminal conviction.
[160]
This is remarkable.
[161]
The submission would be all the
more remarkable had the Crown followed the argument to its terminus and
concluded that this newly minted ordinary meaning one never before used by
any person is the meaning that Parliament intended when the statute was
enacted in 2015.
[162]
The Crown is not unaware of the
difficulties of arguing for an ordinary meaning that does not correspond to
actual language use. But as explained below, the argument it mounted to blunt
the objection does not succeed. From the Crowns factum:
However, the plain or ordinary meaning of
a word is not necessarily synonymous with its dictionary definition. A words
ordinary meaning is the readers first impression meaning, the understanding
that spontaneously comes to mind when words are read in their immediate
context. This meaning is not frozen. Rather, a words ordinary meaning will
change with time and context. The word technology, for example, means
something very different today than it did 100 years ago. [Citing
Wookey
,
at para. 25.]
The definition of recording has changed over
time. Recordings were historically confined to visuals that were recorded and
could be viewed at a later time or place, such as photographs and videotapes.
However, live transmissions, such as FaceTime [
sic
], permit visuals to
be captured by a device and broadcast simultaneously. It is now commonly
understood that visual recordings can be broadcast from one location and viewed
in another simultaneously. The ordinary meaning of recording must encompass
these new forms of technology.
[163]
The problem of relying on an
impressionistic reading that contradicts established linguistic conventions
has been explained above. The argument from the capacity of semantic meaning to
change over time also fails, but this requires greater explanation as the
Crowns argument equivocates between two propositions: one inherently unsound
and one sound but misapplied.
1. The Unsound
Proposition
[164]
The unsound proposition is that
because the meaning of words can change, the meaning of a statute necessarily
changes with them. Out of the gate, this argument stumbles over first
principles: as explained in para. 146 above, statutory interpretation is a matter
of ascertaining what Parliament intended to communicate through the statutory
text at the time of enactment. Accordingly, any subsequent change in the
meaning of the words that Parliament used has no effect on the intended
meaning.
[165]
It would be arguable, were there
any evidence of such usage, that although the semantic meaning of recording
entailed preservation, the meaning changed
prior
to the enactment of s. 162.1 such that it would be
reasonable to conclude that Parliament was cognizant of such a meaning and
intended to use the word in this way. But there is no evidence of such usage
and the proposition that the definition of recording has, as a matter of
semantic meaning, changed to include a any visual display created by any
means is untenable.
2. The Sound Proposition
[166]
But much depends on the meaning of
change. The sound proposition within the Crowns submission is that where
Parliament uses broad classes and concepts to denote its meaning, it
necessarily assigns to subsequent interpreters the task of determining whether
some instance comes within the enumerated class or concept: Hutchison, at pp.
45, 50-52; see also Sullivan, at §6.10. With such drafting, Parliament intends
to accommodate changed
circumstances
that it did not, and perhaps could not, foresee. As
Driedger explained, at p. 163, words must be given the meanings they had at
the time of enactment, however, the ordinary original meaning of words may be
held to embrace things unknown when the words were used.
[167]
Thus, when the Crown asserts that
[t]he definition of recording has changed over time, it can perhaps be
understood as advancing a proposition about technological change rather than
linguistic change.
Accordingly,
in the circumstances of this appeal, the question is whether a FaceTime
transmission is a technology that comes within the broad category of
recording, as that term was used in the context of s. 162.1(2).
[168]
The short answer is no.
[169]
FaceTime is not a
technology that postdates the enactment of s. 162.1(2). It was ubiquitous
technology well before the enactment of the subsection in 2015. More
significantly, the concept of live video transmission was well known and well
established long before that time, though not on handheld devices. Given that
the distinction between the transmission of a live event and the transmission
of a recording was well known, s. 162.1(2)s specific focus on the transmission
of a recording is significant and cannot be dismissed with the argument that
the concept of recording or archiving, though once a necessary precondition to
transmission, is now obsolete.
[170]
Indeed, the surrounding
context in the
Criminal Code
makes it obvious that Parliament was well
aware of the distinction between live-stream transmissions and transmissions of
recordings, particularly when one considers the nuanced vocabulary Parliament
used. For example, the offence for voyeurism under s. 162 explicitly
distinguishes between the action of
observing
(
i.e.
observes) using electronic means, and
making a
visual recording
, both of which are proscribed. As with s.
162.1, Parliament specifically defines a visual recording as including a
photographic, film or video recording made by any means. The context, listing
video recording with photographic and film recordings, confirms the archival
nature of video recording, and thereby visual recording. In contrast, under
s. 163.1, Parliament uses the broad category of video or other visual
representation
(emphasis added), rather than the narrower category of visual recording.
Between ss. 162 and 163.1, which flank either end of s. 162.1, electronically
observing
a
person,
making
an
electronic
representation
, and
making a recording
are all distinguished as separate actions.
These provisions demonstrate Parliament was alive to the distinction between
transmitting video data (e.g. observing through electronic means or creating a
video representation) and making a recording.
[171]
Consequently, there has
been no relevant technological change that bears on the meaning of s. 162.1. What
the Crown is left with is the proposition that a reauthoring of the provision
would better achieve s. 162.1s purpose, being to protect human dignity and
privacy by prohibiting the transmission of intimate visual images. But where
Parliament chooses specific means to achieve its ends, the court is not
permitted to choose different means any more than it would be permitted to
choose different ends. The interpretive question is not what best promotes the
sections purpose, such that courts can modify the text to best bring about
that result, but rather
how
Parliament chose to promote its purpose.
Courts are required to respect chosen
means
as well as ends. Had Parliament only
enacted s. 162.1(1), leaving intimate image undefined, the Crowns case would
be plausible. But by specifying that an intimate image is a recording, courts
must give effect to that choice.
[172]
To sum up, the argument
that the ordinary meaning of a visual recording includes as a matter of
contemporary linguistic use any visual display created by any means must be
rejected. There is no evidence in the record before this court that visual
recording has ever been used in this way. Often, debates over statutory
interpretation revolve around which of several possible meanings is apt. In
this case, there is no contest between rival meanings. What the Crown has
proffered as the ordinary meaning of a visual recording is not only not the
ordinary meaning, it is an invented meaning. Although the Crowns argument is
framed in terms of ascertaining the conventional, ordinary meaning of language,
it is actually an argument about what meaning
ought
to be imposed on s. 162.1, so as to best
achieve the purpose of the section.
B.
Context
[173]
Ascertaining ordinary
meaning does not exhaust the task of statutory interpretation, although it
greatly structures and to some extent confines it. There remain additional
inquiries. First, is there reason to believe that Parliament intended some
other meaning? This is resolved by further resort to firstly, context, and
secondarily, purpose. Second, are there exceptional, unforeseen circumstances
that would allow a court to conclude that there is some gap between
Parliaments purpose and the intended meaning of the statute? That is, are
there unforeseen circumstances where the intended meaning of the statute and
the reasoned choice behind the legislation have been pulled apart? Such
exceptional, unforeseen circumstances could authorize a corrective exception or
extension, as the case may be: see Richard Ekins,
The
Nature of Legislative Intent
(Oxford: Oxford University Press, 2012), at
pp. 275ff (Ekins,
Legislative
Intent
).
[174]
One can quickly dispose
of the suggestion that Parliament did not intend to use recording in the
phrase visual recording in the ordinary sense with its archival denotation.
The context provides no reason to attribute some other meaning, nor does anything
in the context suggest that the invented meaning of any visual display is
what was intended. Instead, as I already discussed above, at paras. 170-71, the
context surrounding s. 162.1 supports understanding recording in its ordinary
sense with an archival denotation.
[175]
The Crown glosses over
the interpretive significance of s. 162 of the
Code
. That section establishes the offence of
voyeurism and is helpful to understanding s. 162.1. It provides:
162 (1)
Every one commits an offence who, surreptitiously, observes
including by mechanical or electronic means or makes a visual recording of a
person who is in circumstances that give rise to a reasonable expectation of
privacy, if
(a)
the person is in a place in which a person can reasonably be
expected to be nude, to expose his or her genital organs or anal region or her
breasts, or to be engaged in explicit sexual activity;
(b)
the person is nude, is exposing his or her genital organs or anal
region or her breasts, or is engaged in explicit sexual activity, and the
observation or recording is done for the purpose of observing or recording a
person in such a state or engaged in such an activity; or
(c)
the observation or recording is done for a sexual purpose.
Definition
of
visual recording
(2)
In this section,
visual recording
includes a photographic, film or video recording made by any means. [Emphasis
in original.]
[176]
The voyeurism provision
uses much of the same language as s. 162.1. Crucially, the section distinguishes
between visually observing a person through electronic means and making a
visual recording. It is an offence under s. 162(1) to do either. But the
distinction suggests that using an electronic device to observe a person
(whether the observation is, for example, done by the person placing a FaceTime
video call or the person receiving it) is not the same thing as making a visual
recording. Visual observation by electronic means that is, observation of a
visual display does not entail the making of a visual recording. It would be
both counter-intuitive for Parliament to have used visual recording in two
different senses in adjacent sections of the
Criminal
Code
and contrary to the presumption of
consistent usage:
Thomson v. Canada (Deputy Minister
of Agriculture)
, [1992] 1
S.C.R. 385, at pp. 400-01.
C.
Purpose
[177]
Finally, how does the
purpose of s. 162.1 assist in its interpretation? This inquiry is often
referred to as a purposive interpretation or analysis, and it serves to ensure
that in construing the meaning of words, the interpreter takes legislative
purpose into account: Plaxton, at pp. 102-03; Sullivan, at §9.3.
[178]
While engaging in
purposive interpretation, one must be careful not to conflate purpose and
meaning. The consideration of purpose as an interpretive guide is in helping
resolve what Parliament intended by the statute it enacted. It is not a
question of whether a differently worded statute would in the mind of the
interpreter better achieve the purpose. We must not take the ends for which
the legislature acts to license the substitution of alternative means: Ekins,
Legislative Intent
, at pp. 251, 254-55. The danger in purposive interpretation is that it
can easily be misused by taking an abstract statement of statutory purpose say,
the protection of privacy or human dignity and then concluding that the
statute enacts whatever propositions would best achieve this aim. This would
subordinate the legislatures actual reasoning and the actual plan chosen to
achieve its aim: Ekins,
Legislative Intent
,
at pp. 249-55; Plaxton, at pp.
106-07; and Sullivan, at §10.25, 15.5.
[179]
It is common ground
that in enacting s. 162.1, Parliament intended to protect human dignity and
privacy by prohibiting the transmission of intimate visual images. It was
responding specifically to instances of great personal harm caused by persons
who had uploaded or distributed intimate images of women and girls. Although it
was already an offence under s. 162(4) to distribute voyeuristic recordings, s.
162.1 created an additional offence of distributing intimate visual recordings
that had been made non-voyeuristically. The type of visual recordings caught by
this provision was intended to be extremely broad: visual recording of a
person made by any means. Thus, s. 162.1 captures not only means of recording
that existed at the time of enactment, or those that were specifically
enumerated, but all means of recording, present and future.
[180]
It cannot be concluded
that because Parliament intended to capture all means of making a recording and
a very broad class of means of distribution, it therefore also intended to
define intimate image as broadly as the Crown contends. The text and context
both suggest otherwise. Parliament did not need to define intimate image in terms
of a visual recording. Had intimate image been left undefined by s. 161.1(2),
it would arguably have been broad enough to include live-streamed images.
However, Parliament chose to specify the meaning as visual recording rather
than visual display, visual depiction, or visual representation, as in s.
163.1(1)(a). All of these options were open to Parliament, and it instead chose
the more restrictive category of visual recording.
[181]
I reiterate that the
existence of FaceTime video calling is not an unforeseen circumstance. FaceTime
existed before 2015, and live video transmission generally existed long before
FaceTime. Parliament was aware of both the existence of this technology and the
language used to describe it. A recording is not a necessary precondition for
the transmission of every type of image. But even if the Crown was correct on
this point, it would not follow that the transmission of non-recorded,
live-streamed images and the transmission of recorded images, would therefore
now both be known as the transmission of recordings. There is no basis upon
which to find that any change in technology or circumstance warrants
reinventing the meaning of recording.
[182]
After considering the
text, context, and purpose of s. 162.1, it can only be concluded that the
section does not apply to live-streamed images. But for the prescribed
definition, there would be an ambiguity in the meaning of image, in which
case it could have indicated something that can be seen (e.g. a visual display)
or recorded (and, typically, capable of repeated viewing). But the definition
resolves the ambiguity in favour of the latter. This is a reasoned choice by
Parliament, and this court is required to respect chosen means as well as ends.
D.
Absurd Consequences
[183]
Notwithstanding my
conclusion about the intended meaning of s. 162.1, is there good reason to
conclude that Parliaments purpose in enacting the legislation and the intended
meaning of s. 162.1(2) have diverged in the application to FaceTime video
calls? That is, does the above interpretation result in absurd consequences?
[184]
I do not think so. The
harm Parliament had before it was the damage to persons whose privacy and
dignity would be terribly abused by the unauthorized sharing of intimate
images. Parliament enacted legislation to protect against this particularly
serious violation of human dignity. But it did not intend s. 162.1 to stand as
a complete code. It is supplemental to the voyeurism offences in s. 162.
Section 162.1 does not capture, and was not intended to capture, every act by
which one person injures others by exposing them to the view of third parties.
It did not, for example, criminalize acts such as the accused opening the
bathroom door and exposing the complainant to the view of the friends he
invited into his apartment. Each of these friends was in the same position to
record the complainant as any of his other friends who received a FaceTime
call. Had they done so, each would have faced the same potential jeopardy under
s. 162.
[185]
There would be nothing
irrational or unreasonable about Parliament choosing to criminalize the
transmitting of live, unrecorded images through s. 162.1. But it did not do so,
and there is no good reason to conclude that this decision was unintended or
that it undermines Parliaments purpose in enacting the legislation it did. The
proper interpretation of s. 162.1 does not impair its functioning in
prohibiting the dissemination of recordings.
[186]
The conduct complained
of in this case is reprehensible. But exposing a person to the view of others
is different than placing a recording that is capable of publication in the
hands of third parties. A recording can be viewed an infinite number of times,
by an unlimited number of people. A live-stream transmission cannot. It is not
irrational or arbitrary for the criminal law to differentiate between them. Of
course, a live-stream transmission is
capable
of being recorded, requiring only the
simultaneous decision of the recipient of a FaceTime video call to record it.
But such a recording would likely violate s. 162, and any sharing of that
recording would violate s. 162.1.
[187]
The accused is not a
sympathetic figure. On the facts alleged, he not only grossly violated the
dignity of the complainant, he facilitated others in doing the same. He should
have known what he was doing was seriously wrong. Although he was not charged
under s. 162, the reason why is not immediately obvious.
[3]
However, even if
there was no criminal prohibition corresponding to the accuseds conduct, it
would not be a reason to distort the meaning of s. 162.1. As Stratas J.A.
reminded in
Williams
, at para. 47, moral evaluation of the accuseds
conduct cannot be allowed to displace the interpretation of the statute.
Criminal offences have elements, and where those elements are not made out,
judges are not authorized to substitute new ones.
[188]
To sum up, there is a
methodology intended to structure and guide judicial interpretation of
statutes. It directs judges to a body of law that places primacy on
understanding the intended meaning of Parliament in enacting the statutory text
that it did. The application of the modern principle in this case leads to the
conclusion reached by the trial judge: s. 162.1 prohibits the transmission of a
recording. It does not prohibit the transmission of images that are not
recordings. A FaceTime video call operates by transmitting images that have not
first been recorded and are never recorded in the course of transmission,
although they are capable of being recorded by a recipient. The trial judge
made no erroring in allowing the application for a directed verdict of
acquittal.
III.
SUFFICIENCY OF THE EVIDENCE
[189]
One final point. The trial judge
understood as well as the next person how an iPhone works. She did not require
expert evidence to explain its user-level functioning. But by this point in her
reasons, the trial judge had rejected the Crowns invitation to redefine a
recording as a live-stream transmission, preferring the definition used by
everyone else. The Crown thus faced an evidential hurdle. In order to defeat
the directed verdict application, the Crown needed to establish that a FaceTime
video call transmitted a recording as that word is ordinarily understood:
a depiction that outlasts the event it
depicts for however long allowing the event to be viewed at some later
time, whether once or multiple times.
[190]
But FaceTime, as far as the trial
judge could tell, does not work in this way. (Note that this is not the
question of whether a recipient of a FaceTime video call can make a recording
of it. The fact that a transmission of a live-stream image can be recorded by
its recipient does not mean it was a transmission of a recording rather than a
previously unrecorded, live event.) For the Crown to succeed, it would need to
provide evidence that FaceTime functioned in a way
contrary
to what is commonly understood. The trial judge
insisted that the Crown prove the elements of the offence. If the Crowns case
rested on the technical and highly doubtful claim that FaceTime operated by
recording or saving images somewhere and then transmitting them, then the Crown
needed to produce some evidence of this. It did not. The trial judge made no
error in requiring evidence on this point.
IV.
DISPOSITION
[191]
I would dismiss both
the appeal against conviction and the Crowns appeal of the directed verdict of
acquittal.
Released: January 22, 2021 (K.F.)
B.W.
Miller J.A.
[1]
The trial judge heard and decided this application in September
2018. Section 276(2) was amended effective December 13, 2018: S.C. 2018, c. 29,
s. 21.
When the trial judge decided the application, s. 276(2) read:
(2)
In proceedings
in respect of an offence referred to in subsection (1), no evidence shall be
adduced by or on behalf of the accused that the complainant has engaged in
sexual activity other than the sexual activity that forms the subject-matter of
the charge, whether with the accused or with any other person, unless the
judge, provincial court judge or justice determines, in accordance with the
procedures set out in sections 276.1 and 276.2, that the evidence
(a)
is
of specific instances of sexual activity;
(b)
is relevant to an issue at trial; and
(c)
has significant probative value that is
not substantially outweighed by the danger of prejudice to the proper
administration of justice.
[2]
Canada, Department of Justice,
Report to the
Federal/Provincial/Territorial Ministers Responsible for Justice and Public
Safety: Cyberbullying and the Non-Consensual Distribution of Intimate Images
(June
2013), at pp. 14-15.
[3]
In commenting on this observation at para. 73 of her reasons, m
y
colleague argues that s. 162 could not apply in the circumstances of the
present case because the accused was not acting surreptitiously. It should be
noted, again, that because there was no charge brought under s. 162, there were
no submissions on this point and no adjudication. This court has not yet
pronounced on the meaning of surreptitious in the context of s. 162. The
interpretation of that section, when it is provided, must be determined using
the methodology required by the modern principle. But although an authoritative
statement about the meaning of surreptitious in the context of s. 162
therefore cannot be given in these reasons, I reiterate that it is not obvious
that a man who opens a bathroom door and livestreams someone in the position of
the complainant while her attentions are concentrated elsewhere, is not acting
surreptitiously. This remains the case even if the person who is being observed
electronically soon becomes aware of it but is powerless to stop it.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Windebank, 2021 ONCA 118
DATE: 20210202
DOCKET: M52172 (C68874)
Fairburn A.C.J.O.
BETWEEN
Her Majesty the Queen
Appellant
and
Jason Windebank
Respondent
Stacey D. Young and Jennifer Stanton,
for the appellant
Anil K. Kapoor and Dana C. Achtemichuk,
for the respondent
James Foy and Michelle Psutka, for the
proposed intervener, the Criminal Lawyers Association of Ontario
Heard: February 1, 2021 via videoconference
REASONS FOR DECISION
[1]
The Crown appeal in
R. v. Windebank
(C68874)
is scheduled to be heard on February 22, 2021. The respondents factum is due
on February 10, 2021.
[2]
This appeal raises an issue of statutory
interpretation. Section 535 of the
Criminal Code
, R.S.C., 1985, c. C-46,
sets out
when an accused is entitled to a preliminary inquiry. Section 535 reads:
If an accused who is
charged
with an indictable offence that is punishable by 14 years or more of
imprisonment
is before a justice and a request has been made for a
preliminary inquiry under subsection 536(4) or 536.1(3), the justice
shall
, in accordance with this Part, inquire into the
charge and any other indictable offence, in respect of the same transaction
.
[Emphasis added.]
[3]
The issue on appeal is whether s. 535 of the
Criminal
Code
should be interpreted so as to entitle an accused to a preliminary
inquiry in those circumstances where he or she is informed by the Crown, ahead
of his or her election, that the Crown may pursue a dangerous offender finding
in the face of a conviction. Owing to the potential indeterminate nature of the
custodial term that could flow upon a dangerous offender finding, despite the
fact that he is not charged with an offence that is punishable by 14 years of
imprisonment or more, Mr. Windebank argues that he is entitled to a preliminary
inquiry under s. 535 of the
Criminal Code
.
[4]
This case rests on a narrow factual foundation.
Mr. Windebank stands charged with one count of assault causing bodily harm
contrary to s. 267(b) and one count of assault by choking contrary to s. 267(c)
of the
Criminal Code
. When tried by indictment, these crimes are
punishable by not more than ten years imprisonment. This brings squarely into
focus whether an informal prosecutorial notice that a dangerous offender
designation may be sought upon conviction, should entitle Mr. Windebank to a
preliminary inquiry.
[5]
Mr. Windebank has taken the position that s. 535
should be interpreted broadly, permitting him resort to a preliminary inquiry
because of the potential jeopardy that he now knows he faces. He has found
favour with that argument at two levels of court, first in the Ontario Court of
Justice and then in response to the Crowns attempt to seek relief by way of
prerogative writs: 2020 ONCJ 567, [2020] O.J. No. 5284; 2020 ONSC 8107, [2020]
O.J. No. 5771.
[6]
The Criminal Lawyers Association of Ontario
(CLA) seeks leave to intervene in this appeal that is only three weeks away.
In the normal course, it is expected that intervener applications will be
brought in a reasonable amount of time prior to the hearing of the appeal so
that there is no disruption to the court or the parties. Indeed, the timing of
any such application is a factor to be taken into account in determining
whether a potential intervener should be granted that status.
[7]
In this case, the scheduling of the appeal has
been substantially accelerated in light of its subject matter. Therefore, I do
not take the timing of this application into account in determining its proper
disposition.
[8]
The CLA wishes to make three arguments on
appeal:
(a) If
an accused faces a
potential total
sentence of 14
years or more, he or she should be entitled to a preliminary inquiry.
(b) Section
718.3(8) of the
Criminal Code
allows
for the imposition of a term of imprisonment that is more than the maximum term
of imprisonment provided for the offence in circumstances involving repeat
intimate partner violence. In specific, s. 718.3(8)(c) allows for a maximum
term of 10 years imprisonment to be increased to 14 years imprisonment in
circumstances involving repetitive conduct as defined in that provision. The
CLA argues that
any accused who is given
informal notice of the Crowns intention to invoke s. 718.3(8)(c) at the
sentencing stage of the proceedings, should a conviction flow, should also be
entitled to a preliminary inquiry
.
(c) Except
where impracticable,
the Crown should be required to
provide the accused with pre-election notice
as to whether a dangerous
offender proceeding upon conviction will be pursued or an increased penalty
will be requested pursuant to s. 718.3(8)(c) of the
Criminal Code
.
[9]
The respondent on appeal consents to the CLAs
intervention on all proposed issues.
[10]
The Crown consents to the CLAs intervention on
the first proposed argument: whether s. 535 of the Criminal Code extends to
those situations where the accused faces a
potential
total sentence
of 14 years or more. The Crown opposes the intervention
on the other proposed arguments.
[11]
In my view, the CLAs first proposed position
serves to add a useful and different perspective to the appeal, one that will
not cause an injustice to the parties. The CLAs first position is somewhat different
from Mr. Windebanks, in the sense that the CLA will argue that when
determining whether the accused is charged with an offence that is punishable
by 14 years or more, that calculation must be approached from the perspective
of totality. To use Mr. Windebanks situation as an example, the CLAs position
is that, because he is charged with two offences that are each punishable by up
to 10 years, he is theoretically susceptible to a total sentence of 20 years
imprisonment. Therefore, based upon the plain meaning of the provision, and
consistent with its spirit, the CLA will argue that s. 535 of the
Criminal
Code
affords a preliminary inquiry
upon request in circumstances such as the one that Mr. Windebank finds himself
in
.
[12]
The CLAs second position is more problematic.
The CLA has focussed in on s. 718.3(8)(c) of the
Criminal Code
. That
provision reads as follows:
718.3(8) If an accused is convicted of an
indictable offence in the commission of which violence was used, threatened or
attempted against an intimate partner and the accused has been previously
convicted of an offence in the commission of which violence was used,
threatened or attempted against an intimate partner, the court may impose a
term of imprisonment that is more than the maximum term of imprisonment
provided for that offence, but not more than
(c) 14 years, if the maximum term of imprisonment for the offence
is 10 years or more but less than 14 years
.
[13]
In their written materials, the CLA has argued
that, because an accused may face a sentence higher than the statutory maximum
after conviction for the offence for which they are charged in circumstances
of consecutive convictions for intimate partner related crimes, the accused
should also be entitled to a preliminary inquiry.
[14]
To the extent that the CLA is asking this court
to rule that the potential applicability of s. 718.3(8)(c) of the
Criminal
Code
, at a potential sentencing stage of a proceedings,
entitles an
accused to a preliminary inquiry, the CLA is raising a new issue that has not
been decided in the courts of first and second instance. This statutory
provision was not even addressed in either of the decisions that form the
backdrop for this appeal. To allow an intervener at this stage to request this
court to make a definitive statement about the operation of s. 718.3(8)(c),
such that it entitles an accused to a preliminary inquiry, is entirely outside
the scope of this appeal.
[15]
This case is about the interpretation of s. 535
of the
Criminal Code
in the face of an informal notice about
potential dangerous offender proceedings that may occur following a potential
conviction. While there is nothing to preclude the CLA from pointing to s.
718.3(8)(c) as an interpretative aid in advancing their argument as to the
scope of s. 535, it would well exceed the bounds of this appeal to request this
court to embark upon an exercise in determining whether the potential
applicability of s. 718.3(8)(c) is a definitive gateway to a preliminary
inquiry. In my view, to permit the CLA to advance this argument, would introduce
a completely new issue into the appeal.
[16]
This is equally true when it comes to the final proposed
argument made by the CLA: the timing of Crown notice. The CLA contends that,
except in exceptional cases, the Crown should be required to provide notice,
prior to the accuseds election, of its intention to pursue a dangerous
offender application or the application of s. 718.3(8)(c) of the
Criminal
Code
.
Again, to permit the CLA to raise this argument on appeal
would inject a significant new and previously untested issue into the appeal.
[17]
Prior to his election, Mr. Windebank was given informal
notice of the Crowns intention to seek a s. 752.1 remand for an assessment
should he be convicted. That assessment acts as a precursor to bringing a
dangerous or long-term offender application. The Crown was under no statutory
obligation to provide that notice in this case. Indeed, Part XXIV of the
Criminal
Code
only requires seven days notice before an application is
brought: s. 754(1)(b). Of course, proceedings under Part XXIV of the
Code
typically occur post-conviction, a long time following the election having
been made.
[18]
The CLA advances a similar argument with respect
to s. 718.3(8)(c) of the
Criminal Code
. The CLA wishes to advance the
argument that there should be a near-mandatory pre-election notice obligation
placed on the Crown in those circumstances where, in the event that the accused
is convicted, the Crown intends to resort to s. 718.3(8)(c) of the
Criminal
Code
at the sentencing proceeding.
[19]
To allow the CLA to advance this position would
inject a significant issue into the appeal. In my view, not only would it
result in prejudice to the parties at this late stage, but it could result in
prejudice to the administration of justice.
[20]
As before, s. 754(1)(b) of the
Criminal Code
does not require pre-election notice. If this argument were permitted, not only
would it raise a new issue, but it would serve to contradict the statutory
notice provision in the context of dangerous offender proceedings. The argument
raised by the CLA raises serious questions about the constitutionality of that
notice provision, ones that could only be properly explored in the court of
first instance, permitting the parties an opportunity to develop an evidentiary
record addressing the issue. This court is without the benefit of that record
or the considered views of the jurists from whom this appeal is taken.
[21]
This case is about the interpretation of s. 535
of the
Criminal Code
. The record reflects litigation rooted in a
discretionary notice having been given. To allow an intervener at this stage to
argue that this court should create a requirement that notice be given in all
but exceptional cases, would not only serve as an implicit attack on the
statutory provision(s) involving post-election notice,
0F
[1]
but would also risk deciding a critical issue without a proper
factual record, including reference to the broad implications that could result
form any such approach.
[22]
Respectfully, the latter two proposed arguments
advanced by the CLA are not a simple matter of bringing a unique perspective to
bear on the appeal. The CLA has historically provided this court with important
assistance, including in matters involving the new legislation relating to
preliminary inquiries, Bill C-75,
An Act to amend the
Criminal Code
,
the
Youth Criminal Justice Act
and other Acts and to make consequential
amendments to other acts
, 1st Sess., 42nd Parl., 2019, c. 25:
R. v.
R.S.
, 2019 ONCA 906, [2019] O.J. No. 5773. The CLAs intervention in this
appeal is equally welcome. That intervention cannot, though, become a platform
to add issues which have potentially far-reaching implications, upon which
there has been no decision, and that are without a factual record to allow for
a proper adjudication:
Bedford v. Canada (Attorney General)
, 2011 ONCA
209, [2011] O.J. No. 1111, at paras. 9-10.
[23]
Accordingly, the CLAs intervention is granted
on the following terms:
(a)
The CLA is granted leave to intervene
on the basis set out in these reasons;
(b) The CLAs submissions will not repeat the submissions of the
respondent, Mr. Windebank;
(c) The CLA will file a factum no later than February 10, 2021 of
no more than 10 pages in length;
(d) The CLA will be granted 15 minutes to make oral argument at
the hearing of the appeal; and
(e) In response to the CLAs factum, the parties may each file a
factum of no more than 5 pages in length, to be served and filed no later than
February 17, 2021.
Fairburn
A.C.J.O.
[1]
See also: s. 727(1) of the
Criminal Code
.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Zamora, 2021 ONCA 354
DATE: 20210526
DOCKET: C68052 & C68065
Hoy, Hourigan and Zarnett JJ.A.
BETWEEN
C68052
Her Majesty the Queen
Respondent
and
Sebastian Zamora
Appellant
AND BETWEEN
C68065
Her Majesty the Queen
Respondent
and
Nicholas Poku
Appellant
Chantelle M. LaFitte and Jacob D. Roth,
for the appellant, Sebastian Zamora
Nicholas Poku, acting in person
Amanda Webb, for the respondent
Heard: May 4, 2021 by video conference
On appeal from the order of Justice Gisele
M. Miller of the Superior Court of Justice, dated January 28, 2020, granting the
application for
certiorari
and
mandamus
to set aside the
order of Justice Hafeez S. Amarshi of the Ontario Court of Justice, dated August
7, 2019, discharging the appellants.
Hoy J.A.:
Overview
[1]
The appellants, Mr. Poku and Mr. Zamora, were
charged with possession of heroin for the purpose of trafficking, contrary to
s. 5(2) of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19
(the CDSA). Mr.
Zamora was also charged with importing heroin, contrary to s. 6(1) of the CDSA.
[2]
The preliminary inquiry judge discharged the
appellants at their preliminary inquiry. The Crown applied for, and the
reviewing judge granted, an order in
certiorari
quashing the
preliminary inquiry judges decision and
mandamus
ordering that both
appellants be committed for trial on the charges against them.
[3]
The appellants argue that the reviewing judge
erred in doing so. Mr. Zamora also argues that the preliminary inquiry judge
and the reviewing judge erred in concluding that the
actus reus
of the
offence of importing was not complete before Mr. Zamora took possession of the
package containing the heroin. Mr. Zamora urges this court to clarify the law
as to when the
actus reus
of the offence of importing is complete.
[4]
For the following reasons, I would affirm the
order of the reviewing judge.
[5]
Below, I briefly outline the relevant principles
as to roles of a preliminary inquiry judge and a judge faced with an
application to quash the decision of a preliminary inquiry judge and the
evidence at the preliminary inquiry. Then I review the reasons of the
preliminary inquiry judge and the reviewing judge and explain why I conclude
that the reviewing judge did not err in quashing the preliminary inquiry
judges decision. Finally, I explain why I decline to address the issue of when
the
actus reus
of the offence of importing is complete on this appeal.
The roles of the preliminary inquiry judge
and a reviewing judge
[6]
The law as to the jurisdiction of a preliminary
inquiry judge and the role of a reviewing judge is not at issue. Both the
preliminary inquiry judge and the reviewing judge adverted to the key legal
authorities as to the jurisdiction of a preliminary inquiry judge and the
reviewing judge directed herself as to the limited role of a reviewing judge.
The appellants take no issue with their articulation of the relevant
principles. This appeal concerns the application of those principles. However,
a brief outline of the relevant principles, drawing heavily on the reasons of
the reviewing judge, provides context for the issues on appeal.
[7]
As the reviewing judge noted, a preliminary
inquiry judges jurisdiction is derived from s. 548(1) of the
Criminal Code
, R.S.C., 1985, c. C-46
. When a
preliminary inquiry judge acts outside of s. 548(1), he or she commits
jurisdictional error.
[8]
Section 548(1) provides as follows:
548 (1) When all the evidence has
been taken by the justice, he shall
(a) if in his opinion there is
sufficient evidence to put the accused on trial for the offence charged or any
other indictable offence in respect of the same transaction, order the accused
to stand trial; or
(b) discharge the accused, if in his
opinion on the whole of the evidence no sufficient case is made out to put the
accused on trial for the offence charged or any other indictable offence in
respect of the same transaction.
[9]
In
R. v. Arcuri
, 2001 SCC 54, [2001] 2
S.C.R. 828, McLachlin C.J., writing for the court, reaffirmed what s. 548(1)
requires a preliminary inquiry judge to do and when a preliminary judge acts
outside of s. 548(1). A preliminary inquiry judge must determine whether there
is sufficient evidence to permit a properly instructed jury, acting reasonably,
to convict. This does not require the judge to assess credibility or draw
inferences from the facts. That is the role of the jury. Where, as in this
case, the evidence is circumstantial, the preliminary inquiry judge must engage
in a limited weighing of the whole of the evidence to determine whether the
evidence, if believed, could reasonably support an inference of guilt:
Arcuri,
at paras. 23, 29. In doing so, the preliminary inquiry judge does not draw
inferences from facts:
Arcuri
, at para. 30. If the evidence could
result in a conviction, the accused must be committed:
Arcuri
, at
para. 33.
[10]
If a preliminary inquiry judge weighs the
evidence beyond the limits established in
Arcuri
, he or she commits
jurisdictional error:
M.M. v. United States of America
, 2015 SCC 62,
[2015] 3 S.C.R. 973, at para. 47;
R. v. Kamermans
, 2016 ONCA 117, 346
O.A.C. 31, at para. 15.
[11]
At paras. 13-15 of her reasons, the reviewing
judge summarized other relevant principles:
A preliminary inquiry judge may not weigh the
evidence for competing inferences in determining whether there is sufficient
evidence for committal. That role is reserved for the trier of fact.
R. v.
Deschamplain
, [2004] 3 SCR 601 at paragraph 15.
If more than one inference may be drawn from
the evidence, then only the inference(s) that favour committal are to be
considered.
Sazant
at paragraph 18.
Where there are competing inferences, and one
of those inferences supports committal, then that inference must be favoured at
a preliminary inquiry.
R. v. Magno
, [2006] O.J. No. 2590 (C.A.), at
paragraphs 21-23.
[12]
In reviewing the decision of a preliminary
inquiry judge, the reviewing judges role is limited to whether the preliminary
inquiry judge exceeded or declined to exercise his or her jurisdiction in
arriving at that decision. The reviewing judge does not simply redo the limited
weighing of the evidence in which the preliminary inquiry judge was permitted
to engage, nor attempt to determine the correctness of the preliminary inquiry
judges decision.
R. v. Manasseri
, 2010 ONCA 396, 276 C.C.C. (3d) 406,
at para. 28.
The evidence at the preliminary inquiry
[13]
The preliminary inquiry judge noted that for the
most part the facts were not contentious.
[14]
On February 21, 2018, a Canadian Border Services
Agent discovered 1.347 kg of heroin concealed in the lining of computer
bags shipped from Pakistan. The RCMP removed the heroin and replaced it with a
controlled sample. The shipment was then returned to the Air Cargo
International (ACI) warehouse on airport property in Mississauga.
[15]
Through the customs broker who called to inquire
about the status of the bags, the RCMP determined that the account with the
customs broker associated with the bags was in fact that of Chukwuemeka
Madumelu, who had been using a pseudonym in his dealings with the customs
broker. Mr. Madumelu was known to the RCMP because he had previously been
charged with importing a Schedule I substance.
[16]
When he called, the customs broker advised Mr.
Madumelu that all funds needed to be paid before the shipment would be
released. That day February 27, 2018 the required fee was paid.
[17]
On February 28, 2018, a controlled delivery of
the package was unsuccessful: the person who answered the door at the residential
address that Mr. Madumelu had provided to the customs agent refused delivery.
[18]
On March 1, 2018, Mr. Madumelu advised the
broker that he or Sebastian, whom he told the customs broker was his cousin, would
pick up the package at ACI. Later that day, Mr. Zamora attended at ACI to
collect the package. He identified himself as Sebastian. Mr. Poku, who came
with him, waited in Mr. Zamoras car. Mr. Zamora asked if the package was
heavy. When asked if he needed assistance carrying the package, Mr. Zamora declined,
stating that there was nothing fragile inside. In the process of the
delivery, a waybill was handed to Mr. Zamora. The waybill indicated that the
package contained empty bags.
[19]
Mr. Zamora carried the package to his car and
placed it in the backseat. Then he and Mr. Poku drove directly to a restaurant.
They left the package in open view in the backseat of the car and entered the
restaurant. They exited the restaurant approximately 20 minutes later with Mr.
Madumelu. Mr. Zamora and Mr. Poku left in their car, and Mr. Madumelu left
in his. The cars left the restaurant in opposite directions. They reconvened at
a nearby apartment building.
[20]
Mr. Madumelu and Mr. Poku removed the package
from the backseat of the car driven by Mr. Zamora and entered the apartment
building, where they were arrested. Mr. Zamora was arrested while waiting in
the car.
[21]
Upon his arrest, Mr. Madumelu was found with a
slip of paper upon which were written, among other things, the waybill number
and Mr. Zamoras phone number with the name Seb a short form for Mr.
Zamoras first name, Sebastian noted beside it.
The preliminary inquiry judges reasons
[22]
The preliminary inquiry judge rejected Mr. Zamoras
argument that the offence of importing heroin had been completed before he took
possession of the package at the ACI warehouse on March 1, 2018. However, he
was not persuaded that the evidence supported a reasonable inference that Mr.
Zamora or Mr. Poku had the requisite knowledge of the drugs in their
possession.
[23]
The preliminary inquiry judge concluded that the
trusted agent argument advanced by the Crown namely that such a valuable
quantity of drugs would not be entrusted to anyone who did not know the nature
of the contents of the package did not support a reasonable inference of
knowledge. The fact that Mr. Madumelu, who had clearly organized the retrieval
of the package, had to scribble down Mr. Zamoras name and number on a slip
suggested a superficial relationship between the parties as opposed to fellow
drug conspirators. Also, the fact that the appellants left the package
unattended for 20 minutes in the restaurant parking lot undermines the Crown
argument that the package would only be left with trusted insiders.
[24]
The preliminary inquiry judge found that Mr.
Zamoras utterance that the contents were not fragile did not support a
reasonable inference that he was aware of the contents. Standing alone, it did
little. And the value of the inference was diminished by the fact that the
waybill handed to Mr. Zamora during his pickup indicates empty bags as the
contents. A cursory review of the waybill would have grounded his belief that
the shipment was not fragile. Also, Mr. Zamoras first question to the
undercover officer who was acting as an ACI agent was whether the package was
heavy, undermining the Crowns suggestion that Mr. Zamora knew what the contents
were.
[25]
Further, while the fact that all three met at
the restaurant before proceeding to the apartment building is somewhat
suspicious, absent additional evidence, it does not rise past the level of
speculation that they are connected to a drug conspiracy.
The reviewing judges reasons
[26]
The reviewing judge reviewed the evidence and
the parties positions on the application before her. The Crown argued that the
preliminary inquiry judge engaged in a prohibited weighing of competing
inferences, making two arguments.
[27]
First, the Crown submitted that Mr. Zamoras
utterance that there was nothing fragile in the package clearly gave rise to an
inference that he had knowledge of the packages contents. The Crown argued the
preliminary inquiry judge balanced this inference with another, namely that Mr.
Zamora could have learned from the waybill that the contents of the packages
were empty bags, and did so in the absence of any evidence from the defence
that Mr. Zamora had looked at the waybill.
[28]
Second, in rejecting the Crowns trusted agent
argument, the preliminary inquiry judge failed to consider that Mr. Zamora and
Mr. Poku left the package in the car to meet Mr. Madumelu, the undisputed
organizer of the importation scheme; that the meeting was brief; and that
during this meeting period, Mr. Madumelu also left the package unattended.
[29]
In response, the appellants argued that the
inferences that the Crown asked the preliminary inquiry judge to draw were no
more than speculative.
[30]
The reviewing judge concluded that the
preliminary inquiry judge went beyond the limited weighing of the evidence
permitted by
Arcuri
and instead engaged in a weighing of competing
inferences prohibited by it.
Analysis
[31]
On appeal, the appellants argue that the
reviewing judge exceeded the proper role of a reviewing judge and impermissibly
substituted her own assessment of the evidence and decision with respect to the
reasonableness of the Crown-sought inferences for that of the preliminary
inquiry judge.
[32]
They renew the argument they made to the
reviewing judge, namely that the preliminary inquiry judge did not weigh
competing inferences. Rather, they argue, the inferences favourable to the
appellants were the only inferences available to the preliminary inquiry judge
after he rejected the Crowns inferences as unreasonable and nothing more than
speculation.
[33]
I reject this argument. I agree with the
reviewing judge that the preliminary inquiry judge committed jurisdictional
error: he drew inferences from facts, effectively chose from among competing
inferences, and failed to give effect to inferences that favoured the Crown.
The reviewing judge did not exceed her role.
[34]
Turning first to Mr. Zamoras utterance that there
was nothing fragile in the package, it is reasonable to infer that a person who
volunteers information about the contents of a package knows what is contained
in the package. Contrary to the appellants assertion, the preliminary inquiry
judge did not reject this inference as unreasonable. Rather, the preliminary
inquiry judge effectively acknowledged that the inference was available but
concluded that, on its own, it did little. He then diminished the
significance of this inference favouring the Crown by weighing it against the
inference he impermissibly drew from the fact that the waybill had been given
to Mr. Zamora, namely that Mr. Zamora would have learned the contents of the
package from a cursory review of the waybill. There was no evidence that Mr. Zamora
reviewed the waybill.
[35]
As to the preliminary inquiry judges rejection
of the Crowns trusted agent argument, this court has held that where an
accused is alleged to be in possession of a controlled substance of significant
value, it may be open to a jury to infer that such a valuable quantity of drugs
would not be entrusted to anyone who did not know the nature of the contents of
the package:
R. v. Pannu
, 2015 ONCA 677, 127 O.R. (3d) 545, leave to
appeal refused, [2015] S.C.C.A. No. 498, at paras. 157, 173.
[36]
Apart from the significant value of the drugs, a
constellation of facts supported the availability of an inference that Mr.
Madumelu entrusted the collection of the package to persons who were part of
the scheme and knew that they were collecting drugs, including that: directly
after the appellants collected the drugs, they went to meet with Mr. Madumelu,
the undisputed organizer of the importation; and after meeting Mr. Madumelu,
the appellants continued in possession of the valuable drugs until they again
met up with Mr. Madumelu at the apartment complex, having taken different
routes to get there.
[37]
The preliminary inquiry judge impermissibly drew
a competing inference, namely that the appellants were not drug conspirators,
from the fact that Mr. Madumelu had written Mr. Zamoras phone number on a
slip of paper and weighed that inference against the available competing
inference favouring the Crown. The drawing of inferences is the role of the
jury. It might draw a different inference from the fact that Mr. Madumelu had a
slip of paper with Mr. Zamoras phone number on it. A person need not be a
long-standing conspirator to be a conspirator. And Mr. Zamora might simply have
been using a newly acquired phone number.
[38]
Similarly, the preliminary inquiry judge
effectively impermissibly inferred that the appellants did not know the package
contained drugs because they left the package in the car for approximately 20
minutes, while they met Mr. Madumelu at the restaurant. But, as the Crown
argued before the reviewing judge, Mr. Madumelu knew the package contained
valuable drugs and presumably knew that the appellants had left it in Mr.
Zamoras car. Leaving the drugs in the car does not necessarily mean the
appellants did not have knowledge of the contents of the package. Again, the
inference to be drawn from this evidence is a matter for the jury.
[39]
I agree with the reviewing judge that there is
sufficient evidence to permit a properly instructed jury, acting reasonably, to
convict the appellants of the offences with which they are charged. I would
affirm the order of the reviewing judge.
The completion of the
actus reus
of
the offence of importing
[40]
Relying on
R. v. Bell
, [1983] 2 S.C.R.
471, and
R. v. Okojie
, 2019 ONSC 1526, Mr. Zamora argued before the
preliminary inquiry judge and the reviewing judge that the
actus reus
of the offence of importing was complete on February 27, 2018. At that point,
the requisite fees had been paid and the shipment of heroin had cleared
customs. And, since on the evidence before the preliminary inquiry judge Mr.
Zamora was not involved until March 1, 2018, Mr. Zamora argues that there was
no evidence that he committed the offence of importing.
[41]
The Crown, relying on
R. v. Onyedinefu
,
2018 ONCA 795 and
R. v. Foster
, 2018 ONCA 53, 360 C.C.C. (3d) 213,
leave to appeal refused, [2018] S.C.C.A. No. 127, (and also on
R. v.
Buttazzoni
,
2019 ONCA 645,
when before the reviewing judge), argued that the offence of importing was only
completed on March 1, 2018, when Mr. Zamora took possession at the ACI
warehouse of the package containing the heroin.
[42]
The preliminary inquiry judge was persuaded by
this courts decisions that the offence of importing heroin was complete in law
when it entered Canada, but only factually completed when Mr. Zamora took
possession of the package at the ACI warehouse on March 1, 2018. The reviewing
judge came to the same conclusion.
[43]
Mr. Zamora argues that this courts decisions as
to when the offence of importation is completed are inconsistent with
Bell
,
and, moreover, that recent decisions of this court broaden the definition of
the
actus reus
of importation established in earlier decisions of this
court. He urges this panel to provide guidance on when the
actus reus
of the offence of importing is complete, and to conclude that, in this case,
the importing offence was complete before he became involved and there was
therefore no evidence to support his committal on the importing charge. Further,
he says that
Sazant
is authority that this court can do so on appeal
from an order for
certiorari
.
[44]
I decline to do so.
[45]
This case is different from
Sazant
, where
Major J., writing for a majority of the Supreme Court, found that one of the
three ways the preliminary inquiry judge exceeded his jurisdiction was that the
exercise of weighing the evidence proceeded on an
entirely
erroneous basis in law:
Sazant
, at para. 25 (emphasis added). In
contrast, decisions of this court support the conclusions of the preliminary
inquiry judge and the reviewing judge that the importation of the heroin had
not been completed before Mr. Zamora took possession of it. An appeal from
certiorari
heard by a three-judge panel is not the forum to reconcile what Mr. Zamora
characterizes as the inconsistency between this courts jurisprudence and
Bell
and the broadening of the definition of the
actus reus
of
importation by recent decisions of this court. An error of law, possibly short
of the type of jurisdictional error identified in
Sazant
at para. 25,
is not reviewable on
certiorari
:
R. v. Deschamplain
, 2004 SCC
76, [2004] 3 S.C.R. 601, at para. 17;
R. v. Russell
, 2001 SCC 53,
[2001] 2 S.C.R. 804, at paras. 19-20. As the Supreme Court stated in
R. v.
Awashish
, 2018 SCC 45, [2018] 3 S.C.R. 87, at para. 10,
certiorari
is tightly limited by the
Criminal Code
and the common law so as to
ensure that it is not used to do an end-run around the rule against
interlocutory appeals. Moreover, a five-judge panel of this court currently
has decisions under reserve on two appeals which raise the issue of when the
actus
reus
of the offence of importing is complete.
Disposition
[46]
For these reasons, I would dismiss the appeal.
Released: May 26, 2021 A. H.
Alexandra
Hoy J.A.
I
agree. C.W. Hourigan 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 complainants 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. Z.W.C., 2021 ONCA 116
DATE: 20210225
DOCKET: C65451
Strathy C.J.O., Watt and Zarnett
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Z.W.C.
Appellant
Mark C. Halfyard, for the appellant
Tanya M. Kranjc, for the respondent
Heard: November 12, 2020 by video conference
On appeal from the convictions entered
by Justice Suhail A.Q. Akhtar of the Superior Court of Justice, sitting with a
jury, on March 8, 2018.
Strathy C.J.O.:
A.
overview
[1]
The appellant was convicted by a jury on three
counts of sexual assault against his wife, C.Q., and one count each of sexual
assault and sexual interference against his daughter, C.L. The offences were
alleged to have occurred in the City of Toronto between December 29, 2009 and
December 19, 2014.
[2]
The appellant appeals his convictions on the
ground that the trial judge erred in admitting evidence of the appellants
alleged prior sexual and physical abuse of the complainants. The appellant
submits that the volume and extent of this evidence had significant prejudicial
effect on the jury, particularly, but not exclusively, by way of reasoning
prejudice. He asserts that the trial judge failed to properly weigh the
prejudicial effect of the evidence against its probative value. Had that
balancing occurred, he argues that the trial judge would not have admitted the
evidence, or would have curtailed the evidence and given the jury a more
appropriate instruction about its permitted and prohibited uses.
[3]
For the reasons that follow, I would allow the
appeal.
B.
background
[4]
The appellant and his wife, C.Q., were married
in China in 1995. They have two daughters: C.L., born in July 1995, and L.L.,
born in October 2001.
[5]
C.Q. came to Canada in March 2006 to work as a
live-in nanny. She later sponsored the appellant and their daughters, who
emigrated from China in December 2009.
[6]
Both C.Q. and C.L. claim that the appellant
abused them, physically and sexually, before and after the family moved to
Canada. Some of their allegations of sexual abuse in Canada formed the basis of
the indictment. However, most of the evidence of uncharged prior discreditable
conduct related to events that occurred in China. I will describe the acts
referred to in the indictment before I turn to (1) the Crowns application to
admit the evidence of uncharged prior discreditable conduct, and (2) the
evidence that was eventually admitted pursuant to the trial judges ruling.
(1)
Allegations of C.Q.
[7]
C.Q. alleged that the appellant regularly forced
intercourse upon her during their marriage. Most of these acts occurred when
C.Q. was menstruating and had made it known to the appellant that she did not
wish to have intercourse. Allegations relating to such acts in Canada after
2009 formed count three, a global count of sexual assault.
[8]
The other two counts of sexual assault in
relation to C.Q. concerned discrete incidents. The first was the subject of
count four and occurred in the spring of 2011. C.Q. alleged that she was two
months pregnant and asleep in bed when the appellant initiated intercourse. She
asked him to stop because she was in pain. The appellant was not deterred and
concluded the act some minutes later. The next morning, C.Q. felt pain in her
abdomen and noticed that she was bleeding. She called an ambulance and was
taken to Toronto East General Hospital, where doctors told her that she had
suffered a miscarriage.
[9]
The second incident was the subject of count
five and occurred in early 2014. C.Q. was in bed when the appellant lay on top
of her and initiated intercourse. C.Q. was menstruating and asked the appellant
to stop because she was in pain. The appellant ignored her pleas. As C.Q.
continued to resist, the appellant held her hands above her head. The appellant
eventually finished and fell asleep. The following morning, C.Q. found blood in
her urine. She experienced abdominal pain for one month afterwards.
[10]
C.Q. did not report these assaults to police.
However, in December 2014, when she was visiting C.L. at the Centre for
Addiction and Mental Health (CAMH) in Toronto, she read a leaflet about sexual
assault and learned that non-consensual sex is illegal in Canada. This
convinced her to report the abuse to police.
(2)
Allegations of C.L.
[11]
C.L. alleged that the appellant regularly
sexually assaulted her after the family moved to Toronto in December 2009. This
conduct was the subject of counts one and two.
[12]
According to C.L., at nighttime, the appellant
frequently came into the bedroom she shared with her sister. He read to L.L.
until she fell asleep, and then moved to C.L.s bed and lay on top of her. The
appellant kissed C.L. vigorously as he rubbed his body up and down hers.
Although there was a blanket separating them, C.L. said that she could feel his
penis between her thighs. C.L. sometimes called for her mother, but the
appellant got off her before her mother arrived.
[13]
In 2010, C.L. called 911 to report the
appellants abusive behaviour. She recanted her allegations when the police
arrived because her mother had expressed fear that the family would be
deported.
[14]
The assaults ended when C.L. was approximately
16 or 17 years old. C.L. asked the appellant what a future husband would think
about his abuse of her. The appellant warned C.L. that if she told anyone about
his conduct, she would suffer devastating consequences.
[15]
In December 2014, C.L. disclosed the sexual
abuse to a psychiatrist after she was admitted to CAMH. She subsequently
reported it to police. On March 31, 2017, the appellant was charged with the
offences at issue.
C.
THE UNCHARGED PRIOR DISCREDITABLE CONDUCT EVIDENCE
[16]
The Crown brought an application at the opening
of the trial seeking to admit evidence of the appellants uncharged prior
discreditable conduct. The Crowns application record, if there was one, was
not made an exhibit at trial. We were, however, provided with a copy of the Crowns
factum on the application. The appellant does not appear to have filed any
materials in response to the Crowns application.
[17]
The parties did not adduce
viva voce
or
other evidence on the
voir dire
. The evidence that the Crown proposed
to admit was set out in its factum on the application as a short point-form
summary. This evidence related primarily to instances of physical and sexual
abuse in China, but included some events in Canada.
(1)
The uncharged prior discreditable conduct in relation to C.Q.
[18]
The Crown proposed to introduce the following
evidence of the appellants conduct towards C.Q., all of which occurred in
China before 2006:
·
In 1998, the appellant placed a butcher knife
under his pillow and told C.Q. that she belonged to him;
·
Between 1998 and 2006, the appellant regularly
sexually assaulted C.Q. when she was menstruating;
·
In 2001, the appellant sexually assaulted C.Q.
within ten days of her giving birth to L.L.; and
·
Shortly after L.L.s birth, the appellant
slapped C.Q. on the ear.
[19]
In March 2006, C.Q. moved to Canada on a
two-year work permit. In July 2008, she visited China and stayed at the family
home. The Crown proposed to introduce the following evidence of the appellants
conduct towards C.Q. and C.L. during her visit to China between 2008 and 2009:
·
C.Q. witnessed the appellant grab C.L.s hair,
push her to the ground, and step on her head. When C.Q. asked the appellant why
he was doing this, he shoved her; and
·
The appellant resumed sexually assaulting C.Q.
when she was menstruating.
[20]
The Crown also proposed to introduce the
following evidence of the appellants conduct towards C.Q. in Canada between
2009 and 2014:
·
In 2010, after C.L.s 911 call, C.Q. learned
about C.L.s abuse and confronted the appellant, who not only denied the
allegations but threatened to assault C.L. if she ever called police again; and
·
In 2014, C.Q. saw the appellant cut himself on
the edge of a table in their family home, and he responded by chopping off the
edge of the table using a cleaver.
(2)
The uncharged prior discreditable conduct in relation to C.L.
[21]
The Crown proposed to adduce the following
evidence of the appellants conduct towards C.L. in China between 2006 and
2009:
·
In 2006 or 2007, the appellant asked C.L. to
sleep in the bed he shared with L.L. He subsequently climbed on top of C.L.,
positioned his penis between her legs, and moved around;
·
On one occasion, the appellant got into the
shower with C.L. and embraced her from behind, such that she felt his penis
against her;
·
When C.L. threated to tell her friends and
teachers about the appellants inappropriate touching, he told her that they
would think she was a dirty whore; and
·
In July 2008, when C.Q. returned to China for a
visit, the appellant grabbed C.L.s hair, pushed her into a wall, and hit her
face.
[22]
The Crown also proposed to adduce the following
evidence of the appellants conduct towards C.L. in Canada between 2009 and
2014:
·
In 2010, C.L. called 911 after the appellant
overheard a conversation that she was having with her sister. C.L. had told L.L.
that the appellant was not the kind of person L.L. imagined him to be. The
appellant interrupted C.L., pinched her arm, and hit her shoulder. C.L.
ultimately recanted her allegations at C.Q.s insistence, but informed her
mother about the appellants abusive conduct; and
·
Following the 911 call, the appellant repeatedly
entered C.L.s bed at night and, after L.L. fell asleep, climbed on top of C.L.
and rubbed his penis against her thighs. Two of these instances were the
subject of counts one and two on the indictment.
D.
THE TRIAL JUDGES RULING TO ADMIT THE EVIDENCE
[23]
The Crowns application to admit the evidence of
uncharged prior discreditable conduct hinged on three grounds. First, the Crown
argued the evidence was necessary to establish
animus
, specifically
a pattern of control [and] a pattern of possessiveness
to do the very acts
that [the appellant] is alleged to have done. Second, the Crown argued that
the evidence would help contextualize the reason why C.Q. stayed in a
relationship with the appellant. Finally, the Crown asserted that the evidence
would explain why the complainants did not report the abuse to police. The
Crown stated that the point of the evidence was to avoid an antiseptic record
that left the jury without a real sense of the parties relationship.
[24]
Defence counsel objected to the application,
claiming that the Crown had not given formal notice of its intention to adduce
this evidence. He also argued that the evidence was highly prejudicial to the
appellant and that he had no opportunity to properly challenge the
complainants allegations. Defence counsel asserted that the appellant denied
both the counts in the indictment and the evidence of prior discreditable
conduct.
[25]
In brief oral reasons, the trial judge granted
the Crowns application. The trial judge found that defence counsel had been
aware of the Crowns intention to adduce the evidence since the pre-trial
conference. With respect to the actual content of the evidence, he observed
that there was an overwhelming body of case law permitting the introduction
of such evidence to flesh out the narrative, to show
animus
, and,
depending on how the evidence unfolded, to explain why the complainant spouse
may have stayed in the marriage and delayed her reporting the abuse. The trial
judge mentioned that, depending on the issues raised by the defence, he might
be required to instruct the jury about the limited use of some aspects of the
evidence.
[26]
The trial judge subsequently gave written
reasons for his ruling on the application and for his ruling on the Crowns
application to admit cross-count similar fact evidence:
R. v. C.W.Z.
,
2018 ONSC 4080.
[27]
He began by reviewing the complainants
allegations in relation to both the uncharged prior discreditable conduct and
the counts on the indictment. He noted that the Crown sought admission of the
former to explain: (a) the nature of the relationship, and the appellants
animus
in relation to the complainants; (b) the complainants fear of the appellant,
specifically to explain why they had not previously reported their allegations;
and (c) the reason why C.Q. had remained in the marital relationship.
[28]
The trial judge referred to
R. v. Handy
,
2002 SCC 56, [2002] 2 S.C.R. 908, as the leading case on the admission of
similar act evidence. He recognized that the Crown bore the onus of
establishing, on the balance of probabilities, that the probative value of the
evidence outweighed its prejudicial effect. In particular, the evidence must
show more than a general propensity to commit the offence and must be of
significance to a live issue in the charges before the court.
[29]
After identifying some of the factors to be
considered when assessing the probative value of the evidence, the trial judge
observed, at para. 51:
These factors must be evaluated through the
lens of prejudice. A court must consider whether the issue to be proven by the
evidence can be established by evidence of a lesser prejudicial nature. In
addition, the court must be mindful of the risk that the evidence becomes a
distraction drawing focus away from the actual offence and consuming a
disproportionate amount of time ("reasoning prejudice").
[30]
The trial judge appreciated that this was not a
case in which the similar act evidence was tendered to establish the identity
of the offender. The question for the jury was whether the appellant had
committed the
actus reus
of the offence. In a case such as this, the
Supreme Court pointed out that the drivers of cogency in relation to the
desired inferences will not be the same as they are in a case where the
identity of the accused is in issue:
Handy
, at para. 78. The trial
judge also referred to the observations of Watt J.A. in
R. v. J.M.
,
2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 91:
Where the evidence of similar acts is summoned
in support of proof of the
actus reus
, it is not an invariable
requirement that there be a strong peculiarity or unusual distinctiveness
underlying the events being compared:
Handy
, at para. 81. The cogency
of evidence of similar acts may arise from the repetitive and predictable
nature of an accuseds conduct in closely defined circumstances.
[31]
The trial judge then reviewed several of this
courts decisions in domestic violence cases, stating that the admission of
uncharged prior discreditable conduct has long been seen as a valuable tool in
assessing the nature of the relationship between an accused and the complainant
as well as providing a clearer picture of the context in which the allegations
took place. It is on this basis that it often derives strong probative value:
see
R. v. Batte
(2000), 49 O.R. (3d) 321 (C.A.);
R. v. F. (D.S.)
(1999), 43 O.R. (3d) 609 (C.A.);
R. v. R. (B.S.)
(2006), 81 O.R. (3d)
641 (C.A.). The trial judge cited this courts decision in
R. (B.S.)
,
at para. 38, to explain that:
The evidence was admissible to explain the
nature and dynamic of the relationship between the appellant and [the
complainant], to demonstrate the appellant's animus toward [the complainant],
to assist in explaining [the complainant]s delay in fully disclosing the
assaultive acts of her husband, and to rebut the appellant's claim of
fabrication by [the complainant]. Moreover, unlike the facts in
Handy
,
the evidence in this case was provided by [the complainant] herself, and not by
a third party.
[32]
The trial judge concluded that the evidence the
Crown sought to adduce was an essential part of the narrative of events, and
that without the evidence, the jury would be left with an incomplete and
misleading account of the relationship between the appellant and the
complainants. The jury might speculate on why the abuse only began in Canada.
The trial judge noted the observation of Hill J. in
R. v. S.B.
, [1996]
O.J. No. 1187 (Gen. Div.), at para. 31, that denying the jury this evidence
runs the risk of presenting an entirely sterile and antiseptic record devoid
of the realities of the individual circumstances of the participants. The
evidence was highly relevant, and while it was undoubtedly prejudicial, the
prejudice was significantly outweighed by the probative value. The trial judge
said that he would give a limiting instruction to the jury, informing them of
the proper use of the evidence.
E.
THE TRIAL
[33]
To fully appreciate the appellants submissions
concerning the prejudicial effect of the evidence at issue, it is necessary to
examine the dynamics of the trial and the way in which the evidence unfolded.
[34]
Jury selection took place on February 20, 2018,
after the appellant had been arraigned before the jury panel. The next day was
taken up with the Crowns application to admit the evidence. The evidentiary
portion of the trial began on February 22, a Thursday. There were only four
days of evidence, three of which were largely occupied by the complainants
evidence. Two police officers testified on the third day about their response
to C.L.s 911 call. The appellant testified on the fourth day.
(1)
The trial judges preliminary instructions
[35]
The trial began with the trial judges instructions
to the jury, which were brief and generic. The trial judge did not inform the
jury that they might be hearing evidence that was to be considered for a
specific purpose in deciding the case and that they would be given an
instruction about how to use the evidence in deciding the case at the time the
evidence was introduced.
(2)
The Crowns opening
[36]
The Crowns
[1]
opening was brief, but dramatic. It began as follows:
Get off. Thats painful. Stop. It hurts. These
are words [C.Q.] will tell you she said to her husband too many times to count.
Her husband is the accused. And this case is about how he controlled his wife
and their daughter [C.L.] through sexual and physical violence and threats of
further violence in the privacy of their family home.
[37]
The Crown proceeded to describe some of the
evidence that the jury would hear. She identified the following evidence in
relation to the complainants in China:
·
the evidence of the appellant placing a knife
under his pillow and threatening C.Q.;
·
the sexual assaults of C.Q. while she was
menstruating;
·
the sexual assault of C.Q. after the birth of
L.L.; and
·
the brutal assault of C.L. in front of her
mother.
[38]
The Crown asked rhetorically, why not call
police?, and indicated that C.Q. would explain her own understanding of how
police dealt with domestic matters in China.
[39]
The Crown said that after C.Q. came to Canada,
[the appellant] no longer had his wife at his disposal, and he began to
sexually assault C.L. When C.L. was around 11 or 12 years old, the appellant
gave her an allowance, but only after he had touched her inappropriately.
[40]
The Crown informed the jury that after the
appellant and the children were reunited with C.Q. in Canada, the appellant
continued to assault C.Q. when she was menstruating. The Crown also referred to
a sexual assault in May 2011, when C.Q. was pregnant and the appellant
assaulted her sexually so forcefully that the following morning the pain and
vaginal bleeding drove her to call for an ambulance. The Crown then described
a particularly violent sexual assault while C.Q. was menstruating in February
2014, which required medical attention.
[41]
The Crown informed the jury that the sexual
assaults of C.L. also continued in Canada. The Crown noted that the appellant
told [C.L.] that she was dirty so often she began to believe it was true.
The Crown described C.L. having called 911 after her father hit her
particularly hard on one occasion, but said that C.L. recanted after her mother
told her they might be deported.
[42]
The Crowns opening did not explain that some of
the acts described were the subject of the charges against the appellant, and
that some of the acts were only proffered to provide context or background.
She did not specify which acts were the subject of the particular counts.
[43]
Defence counsel raised no objection to the
Crowns opening at the time. However, when the trial continued the following
Monday, and C.Q. was still being examined-in-chief, defence counsel expressed
some lingering concern about the Crowns opening, describing it as
sensational. He argued that the Crown had not flagged for the jury that her
opening remarks were not evidence, and he expressed concern that the opening
was not presented in a dispassionate and neutral way.
[44]
The trial judge did not give effect to this
objection. He observed that while there was some rhetoric in the Crowns
opening, it did not cross the line into argument. He pointed out that he had
already instructed the jury that anything said by counsel was not evidence.
(3)
The evidence
[45]
As the Crowns case went in at trial, the jury
heard a significant body of evidence from the complainants concerning the
appellants uncharged prior discreditable conduct. Some of that evidence was
anticipated by the trial judges ruling on the Crowns application, but much
was not. It is necessary to review that evidence in order to appreciate its
potential impact on the jury, and the risk of both moral prejudice and
reasoning prejudice.
The Testimony of C.Q.
[46]
After the trial judges preliminary instructions
to the jury and the Crowns opening, C.Q. was the first Crown witness. Her
evidence-in-chief began on the morning of Thursday, February 22. It was not
completed that day, and the trial was adjourned to Monday, February 26.
[47]
In response to a series of open-ended questions
from the Crown, C.Q. described the following conduct of the appellant:
·
The appellant had been lying all through until
the day I registered our marriage;
·
The appellant had lied about his age, saying he
was three years older than her when he was actually younger;
·
The appellant told C.Q. that his mother was a
doctor when he was really from a farming family;
·
C.Q. did not confront the appellant about these
lies because she was already two months pregnant;
·
During her 20-year marriage to the appellant,
she had all kinds of gynecological diseases;
·
Between the time C.Q. gave birth to L.L. in 2001
and when she came to Canada in 2006, her relationship with the appellant was
not good. The appellant smashed things at home, he cursed people at him
[sic], and hit people; and
·
When C.Q. was staying at the hospital after
L.L.s birth, the appellant did not bring any food to her, despite the fact
that he was off work, and hospitals in China do not feed their patients. C.Q.
was discharged one or two days later. The appellant apparently came home at
midnight, drunk: I didnt know whether he was really drunk. He was sleeping on
the floor. He was crying and screaming. He was swearing. He was smashing
things. And then my baby [L.L.] was crying. I was worried that the baby would
be scared, so I was holding my baby standing.
[T]he next morning I felt that I
had a lot of pain in both my knees and elbows. I didnt know what happened, and
I went to see a doctor. The doctor said that I had rheumatic arthritis after
giving birth.
[48]
Interspersed with this evidence, which was
unrelated to the charges and had not been contemplated by the trial judges
ruling, C.Q. testified about several matters that had been envisaged by the
ruling, namely:
·
The relationship was not good. C.Q. described
the appellant bringing a knife to their bed, and said that if I wanted to
divorce, he would kill me, that I could only belong to him. And he also
threatened that he would kill my family; and
·
The appellant forced intercourse on C.Q. when
she was menstruating, and she got sick for almost a year.
[49]
At some point, the Crown asked the following
question:
Q. And [C.Q.], is there any particular
incident that stands out in your mind that causes you to describe the
relationship at that time as not good?
[50]
In response to this question, C.Q. referred to
another incident that had not been contemplated, either by the Crowns
application or by the trial judges ruling:
A.
I remember very well one day he was off from work. [C.L.] was six
years old at the time, and she wanted to go out and play. She said to me,
because I have to take care of little [L.L.], I told her to go look for her
dad. He went to bed the night before and slept until two or three in the
afternoon the next day. [C.L.] went to wake him. I dont know how he hit
my
daughter
I remember this incident during a psychological therapy. So, I
remember this all of a sudden during a session. [C.L.s] face was covered with
blood. I was standing there dumbfounded looking at her.
[51]
Before the Crown could continue with C.Q.s
examination-in-chief, the trial judge called the morning break. Once the jury
had left the court room, the trial judge expressed concern to the Crown about
the manner in which the evidence had come out, because the whole point of
allowing this evidence in is to show the relationship between the two of them.
And Im concerned about this idea that well be hearing evidence that hes
brutally beating his daughter, shes covered in blood. He reminded the Crown
that the purpose of the evidence was to show the parties relationship, not to
have [the appellants] acts somehow in front of the jury. He said to the
Crown, [y]ou painted this danger of showing that hes this brutal assaulter,
which I dont think is, was the purpose of my ruling.
[52]
The Crown agreed, saying that the incident
described by the complainant was sadly unanticipated on her part.
[53]
The trial judge responded:
Just keep it general. Thats, I mean, the
point of, just
keep it general
because its not,
this is not something that, again, thats not the point of this evidence.
The point of the evidence is to show that they had a rocky
marriage
.
Its being adduced just
to show the
state of the relationship, not to make him out to be a bad man
. So,
thats why I cut you off, cut the sentence off when I did because I dont think
its, its certainly not what it was meant to be admissible for.
So, just control your witness a little bit
. [Emphasis
added.]
[54]
After a break of about 40 minutes, the jury
returned, and the trial judge gave them a brief mid-trial instruction. He
pointed out that the evidence heard to that stage of the trial related to
events that had occurred before the counts on the indictment. He told them that
the object of the evidence was to show them the nature of the relationship
between the appellant and C.Q., and the state of their marriage prior to
December 2009. He instructed that,
[W]hat youre not supposed to do and what you
cannot do is take the evidence youve just heard and use it to say Well,
because he did that he must be the type of person that committed the offences,
the sexual assault contained in the indictment.
What you can use it for is
to see what the state of the relationship was like prior to the sexual assault.
[55]
The Crown continued to lead the evidence of C.Q.
Crown counsel asked whether there were any other incidents between the birth of
C.Q.s two children that stood out in her mind. C.Q. proceeded to describe the
incident contemplated by the trial judges ruling when the appellant had struck
her on the ear:
When [C.L.] was around two or three years old,
I took my daughter to go out to take milk, to pick up milk. When I came in, I
didnt know why, he hit me all of a sudden on my face, slapped my face and my
right ear. I lost hearing in the right ear for about a week. He used his left
hand.
[56]
For the remainder of the morning, most of the
evidence that the jury heard was related to the appellants uncharged prior
discreditable conduct. Some of this was contemplated by the trial judges
ruling, but some was not:
·
The appellant forced intercourse on C.Q. in
China, only 10 days after the birth of their second child, L.L.: I was still
bleeding. But he wouldnt listen, I said get off.
He grabbed my hands with,
both my hands and forced my hands to the back. And he was stronger than me. He
was on top of me. He was moving really fast I remember. I wasnt free until he
was done with himself;
·
While C.Q. was in Canada working as a nanny, and
the appellant was living in China with her children, the appellant forced
C.Q.s mother to leave their house because she could not look after their
children: He kicked my mother out. He wouldnt allow my mother coming to visit
the children. In 2008 when I went back to China to visit my family, I saw that
my home was very messy and dirty;
·
When C.Q. visited China in 2008, she recalled an
assault of her daughter, C.L.: I remember one day I was staying home with my
two daughters. He came back. The three of us didnt say anything. He just
grabbed [C.L.s] hair, my older daughters hair, and smashed her on the floor.
And he was wearing leather shoes and he was stepping on my child, not only
stepping on my daughters body but also on her head. I wanted to go protect my
child. He pushed me away. I didnt know how he pushed me, but my spinal cord,
my vertebrae was broken;
·
After the appellant came to Canada, he didnt
have a job and stayed at home playing computer games: [H]e cursed me at home.
He asked me to go look for a job for him. He smashed things at home; and
·
In or around 2013, the appellant scraped his
thigh on the familys living room table. The appellant respondent by retrieving
a kitchen knife and chopping off the corner of the table: I felt he was a
crazy man.
Because when we were in China, he told me that he punched a man and
broke the mans nose.
[57]
Eventually, C.Q.s evidence turned to the events
that had occurred in Canada and were the subject of the indictment. The Crown
asked C.Q. to listen carefully to her question and to only answer what was
asked. The Crown observed that C.Q. had identified an incident in China when
the appellant forced intercourse upon her while she was menstruating, and asked
whether something similar had happened in Canada. C.Q. replied affirmatively, and
the Crown asked her to describe the assault in further detail. C.Q. proceeded
to give an unresponsive answer that related to count four. C.Q. described an
event in 2011, when she was two months pregnant, and the appellant forced
intercourse on her. She told him it hurt and asked him to stop, but he was
undeterred. The next day, C.Q. felt a pain in her abdomen and noticed that she
was bleeding a little. She called an ambulance and was taken to the hospital
where she was told by doctors that she had suffered a miscarriage.
[58]
The Crown returned to the question that prompted
this response and asked C.Q. whether the appellant had ever forced intercourse
on her in Canada while she was menstruating. C.Q. replied by stating that the
appellant had told her that if he did not have sex regularly, he would feel
hurt and have [a] prostate infection or something like that. He was really
intimidating. C.Q. recounted that the appellant would assault her when she was
menstruating, every month.
[59]
After the lunch recess, the Crown asked C.Q.
about an assault by the appellant in early 2014 (apparently, count five). C.Q.
recalled that the appellant had been watching something on his computer,
something weird maybe, when she went to bed. At some point, in the middle of
the night, the appellant got on top of her. C.Q. asked the appellant to get off
and informed him that she was having her period. The appellant did not stop.
The next day, C.Q. had blood in her urine, not period blood, and abdominal
pain.
[60]
The Crown subsequently directed C.Q. to the
incident of the 911 call in 2010. C.Q. recounted that C.L. called her to say
that the appellant had assaulted her, and that C.L. had called police. C.Q.
immediately spoke to a friend who told her not to engage with the police because
they were new immigrants, and her family could be sent back to China.
[61]
C.Q. testified that she relayed her friends
information to C.L. After the police left the family home, C.Q. remembered that
C.L. disclosed the appellants abuse to her. When C.Q. confronted the
appellant, he became angry, smashed his computer mouse, and told C.Q. to take
[C.L.] to the hospital to check if she is still a virgin.
[62]
C.Q. admitted that she had observed the
appellant lying in the bed with C.L. on one occasion. C.Q. had heard C.L.
yelling about the appellant being in her bed and went to see what was happening
in her daughters bedroom. C.Q told the appellant to leave the bedroom and said
that because the children were growing up, he had to be careful with his
behaviour. C.Q. testified that the appellant threw a temper tantrum. He
responded that he would beat [C.L.] until she is handicapped
until she is
mentally retarded.
[63]
C.Q.s examination-in-chief ended with an
explanation of how she came to speak to police about her allegations against
the appellant. According to C.Q., the appellant was ordered by the Childrens
Aid Society to leave the family home in December 2014. Around the same time,
C.Q. learned that her daughter, C.L., had become a patient at CAMH. C.Q.
visited C.L. at the CAMH facility in Toronto and read a leaflet that explained
that non-consensual sex was illegal in Canada. C.Q. testified that she
ultimately reported her abuse to police in January 2015.
[64]
The cross-examination of C.Q. by defence counsel
was relatively brief. C.Q. was a difficult witness, and she was not directly
challenged in relation to her evidence concerning the appellants uncharged
prior discreditable conduct or the counts contained in the indictment. Defence
counsel suggested that C.Q. and C.L. had conspired to convict the appellant so
that he would be put in jail and would not be able to access the proceeds of a
house sale in China. He also suggested that C.Q. would not have left the
children with the appellant if the appellant was really the abusive and violent
person she had described. Defence counsel put to C.Q. that she had relatives in
China who were police officers, presumably to imply that she could have
reported the appellants conduct to police if it had actually occurred. In
addition, defence counsel drew the jurys attention to C.Q.s pre-existing
medical conditions to provide an explanation for her symptoms and doctors
visits after the alleged assaults.
The Testimony of C.L.
[65]
The trial judge did not give the jury an additional
mid-trial instruction before they heard the evidence of C.L.
[66]
It was apparent from the outset of C.L.s
evidence that she bore considerable hostility towards the appellant. After
eliciting some general background information, the Crown asked, [P]rior to you
being around 10 years old and your mom coming to Canada what was your
relationship like with your dad? The complainant replied:
[I]ts been a disgusting memory from an
experience and, like, the relationship, its, like, retarded. Hes retarded.
Um, I, I dont know. How do you want to me to describe it?
[67]
The Crown then asked an open-ended question:
Prior to your mother coming to Canada are there any incidents involving you
and [the appellant] that stand out in your mind?
[68]
In response, C.L. described an incident, not
referred to in the Crowns application or the trial judges ruling, saying that
the appellant punished her when she got low marks at school. C.L. recalled that
on one occasion, the appellant had woken her up during the night and made her
sit on her knees until morning.
[69]
The Crown prompted C.L. to speak about her
relationship with the appellant after her mother had left for Canada. C.L. said
that when she reached puberty around the age of 12, she learned nasty things
from him that I wish I could have not. C.L. described a particular incident in
China that she remember[ed] really well. The appellant had asked her to sleep
in the bed that he shared with her sister, L.L. After L.L. fell asleep, the
appellant moved on top of C.L. claiming to look at the clock on the wall. C.L.
said that she could feel his penis between her thighs.
[70]
During her testimony, C.L. revealed that similar
assaults had occurred on multiple occasions. She said that one night, she
panicked and threatened to tell her teacher about what the appellant was doing.
The appellant replied that her teachers would not believe her and would think
she was dirty. C.L. stated that in the Chinese culture its, like, the victims
are always blamed.
[71]
C.L. also described two discrete incidents that
took place in China while her mother was in Canada. The first occurred in the
kitchen of their family home. The appellant kissed C.L. on the mouth and
touched her all over the place, and she suddenly realized that her underpants
were halfway down her thighs. The defence objected at this point to the
evidence on the basis that it was detailed rather than general. The trial
judge did not give effect to the objection, stating that the evidence simply
showed how the assaults started happening before the family immigrated to
Canada, and, as a result, was admissible pursuant to his ruling.
[72]
C.L. then described the second discrete incident
in China. According to C.L., the appellant came into the bathroom when she was
taking a shower and began to wash her back. He proceeded to hug her from
behind, and she saw his penis coming out from his briefs.
[73]
C.L. explained that she did not tell anyone
about the abuse in China because she was afraid how she would be perceived. In
addition, C.L. started to receive an allowance after the appellant touched her
inappropriately, and she was unsure whether everybody goes through [it] or is
it just me? C.L. recalled that she wanted to protect her sister and simply did
not have the mental energy to fight with the appellant.
[74]
The Crown subsequently directed C.L. to 2008,
when C.Q. visited her family in China. C.L. confirmed an incident when the
appellant became angry at her for siding with her mother, and started pulling
her hair and hitting her head on the bed or the wall.
[75]
As the Crown began to turn to the events in
Canada, the trial judge interrupted, excused the jury, and noted that there is
a lot of editorial comments now coming out. The trial judge instructed C.L. to
listen to the questions that are being asked
and [to] just answer them
directly.
[76]
Upon the jurys return, C.L. described the 911
incident in Canada. C.L. recounted that the appellant had overheard her
conversation with L.L. The appellant came into the bathroom where the sisters
were, and pinched C.L.s arm, squeezing all of the blood out of my vein. C.L.
called 911, but she recanted her allegations because C.Q. was afraid that they
would get deported.
[77]
C.L. testified that, in Canada, the appellant
continued to enter the bedroom she shared with her sister and get into her bed.
When L.L. was asleep, the appellant would lie on top of her, kiss her, and move
up and down on her body so that she could feel his penis. C.L. said that this
occurred approximately once a week.
[78]
C.L. believed that the assaults stopped when she
was approximately 16 or 17 years old, when she asked the appellant what her
future husband would think about his behaviour. Although the appellant warned
her not to tell anyone what had happened, he did not abuse her again.
[79]
C.L. confirmed C.Q.s allegation that the
appellant chopped off the corner of their living room table one night. She also
confirmed that she was staying at CAMH in December 2014 when she was encouraged
by a psychiatrist to report the abuse to police.
[80]
C.L. proved to be a combative witness in
cross-examination. At one point, the trial judge interrupted defence counsel
because his exchange with C.L. was getting heated.
[81]
C.L. rejected defence counsels suggestions that
she had fabricated her allegations to make herself feel like she belonged in
her family and to justify her bad grades in university. She also rejected
defence counsels suggestion that she had lied in her 911 call about the
appellants abuse of her.
The Testimony of the Appellant
[82]
The appellant testified. He denied having abused
his wife and daughter. He stated that he was fearful of his wife, C.Q., because
she came from a powerful family in China. He also claimed that his daughter
hated him because he was strict, would not permit her to date, and disciplined
her to make sure she did well at school. He mentioned that he was not entirely
certain about why C.Q. and C.L. had made up the allegations against him, but he
insisted that they were lying.
(4)
Closing submissions
[83]
In closing, defence counsel suggested to the
jury that the complainants allegations, both the uncharged prior discreditable
conduct and the substantive offences, never happened. C.L. had fabricated a
story to explain her bad grades, to hurt her father, and to establish her worth
in the family. Defence counsel posited that C.Q. had made up her own stories of
abuse to make C.L.s evidence more believable. C.Q. wanted to have the
appellant put in jail so that she could have sole access to the proceeds of the
sale of a house that the couple owned in China.
[84]
The Crowns closing recapped the evidence in
order to demonstrate that the complainants testimonies were credible and
reliable. The Crown urged the jury to find that the appellant had sexually
assaulted the complainants in the manner they had described.
(5)
Jury instructions
[85]
In his charge to the jury, the trial judge gave
an additional instruction regarding the limited use of the evidence of
uncharged prior discreditable conduct. He explained that the evidence of events
before the appellants move to Canada in 2009 had been adduced for a limited
purpose:
The purpose is: (1) to allow you to understand
the nature of and the state of the family relationship prior to the sexual
assault allegations and the sexual interference allegations contained in the
indictment; (2) to demonstrate [the appellants] animus or dislike of [C.Q.]
and [C.L.]; and (3) to explain why their allegations were not reported earlier.
[86]
The trial judge cautioned the jury that these
were the only uses they could make of this evidence. He also explained the uses
they could not make of the evidence:
[Y]ou cannot use the evidence of that conduct
to conclude or help you conclude that the offences with which [the appellant]
is actually charged, likely took place because [the appellant] is simply a person
of bad character or disposition, who likely committed the offences charged
because of that character or disposition. In other words, you cannot rely on
that evidence as proof that [the appellant] is the sort of person who would
commit the offences charged. And on that basis, infer that [the appellant] is
guilty.
[87]
As I will discuss below, in the circumstances of
this case, the trial judges instruction ought to have included a caution
against reasoning prejudice.
F.
THE JURYS VERDICT AND SENTENCE
[88]
The appellant was convicted on all five counts.
He was sentenced to six years imprisonment, three years consecutive in
relation to each complainant.
G.
THE PARTIES SUBMISSIONS ON APPEAL
(1)
The Appellant
[89]
The appellant concedes that the evidence in
question had probative value in relation to three issues: (1)
animus
;
(2) the complainants failure to report their allegations; and (3) C.Q.s
decision to remain in the marital relationship. He submits, however, that the
trial judge erred in law by focusing almost exclusively on the probative value
of the evidence of uncharged prior discreditable conduct, failing to consider
the potential for prejudice, particularly reasoning prejudice, and failing to
balance that prejudice against the probative value of the evidence.
[90]
The appellant contends that in assessing the
prejudicial effect of the evidence, the trial judge should have considered the
volume and extent of the evidence and its impact on the jury. The evidence
consumed approximately one-third to one-half of both complainants
evidence-in-chief. In addition, the allegations were unproven and spanned an
eight-year period in China. The nature and the volume of the evidence, taken
together with the unstructured manner in which it was presented at trial, could
have distracted the jurys attention from the offences with which the appellant
was charged. The evidence could have also inflamed their passions, with the
result that the appellant was tried, not on the counts in the indictment, but
on his uncharged prior discreditable conduct. The appellant asserts that the
trial judges limiting instruction was insufficient to deal with reasoning
prejudice. He argues that his right to a fair trial was impaired, and a new
trial is now required.
(2)
The Respondent
[91]
The Crown submits that the trial judge made no
error in his analysis of the probative value and the prejudicial effect of the
evidence. According to the Crown, the trial judge articulated the correct test
and turned his mind to the possibility that both types of prejudice might arise.
He ultimately determined that the probative value of the evidence outweighed
its prejudicial effect. The Crown reminds us that the trial judges decision is
owed substantial deference.
[92]
The Crown maintains that the manner in which the
evidence was adduced at trial did not distract the jury. The trial was
relatively brief, the evidence came from the complainants rather than from a
third party, and the uncharged conduct was no more heinous than the offences
with which the appellant was charged. The Crown points out that the trial judge
intervened in the examinations of witnesses as needed and provided two limiting
instructions to the jury, one mid-trial and the other in his final
instructions. In the Crowns submission, the trial judge took all the necessary
steps to ensure that the appellants rights were not infringed. The Crown
requests that the appeal be dismissed.
H.
ANALYSIS
(1)
The governing principles
[93]
A judge at a criminal jury trial acts as a
gatekeeper to ensure that only relevant, material, and admissible evidence is
put before the jury. Evidence is relevant if it tends to prove what it is
offered to prove. It is material if what it tends to prove is something with
which the law is concerned. And it is admissible if it meets the other two
requirements, its reception does not offend an exclusionary rule of evidence,
and its probative value exceeds its prejudicial effect
: R. v. J.H.
,
2020 ONCA 165, at para. 52, citing
R. v. Calnen
, 2019 SCC 6, [2019] 1
S.C.R. 301, at paras. 107-9;
R. v. J.A.T.
, 2012 ONCA 177, 288 C.C.C.
(3d) 1, at para. 49.
[94]
One of the greatest challenges faced by a trial
judge is a request by the Crown to introduce evidence of an accuseds uncharged
prior discreditable conduct sometimes called extrinsic discreditable
conduct evidence, because it is extrinsic to the conduct on which the
indictment is based. In a judge-alone trial, experience and training enables
the judge to appreciate the purposes for which such evidence is proffered, and
to self-instruct on its limited use(s). A jury obviously does not have the
benefit of that training and experience to assist them in discriminating
between permitted and prohibited logical thought processes when judging the
conduct of an accused. The jury can all too readily use the evidence for an
improper purpose. For example, the jury may conclude that the accused is a bad
person who did bad things and ought to be punished, whether or not they
committed the offences with which they are charged. And, as will be described
below, there is a risk that evidence of uncharged allegations will confuse the
jury and cause them to lose track of what the trial is all about whether the
prosecution has proven each of the counts on the indictment beyond a reasonable
doubt.
[95]
For these reasons, a trial judge must take great
care to ensure that such evidence goes before the jury only after a
determination that its probative value outweighs its prejudicial effect. If the
evidence is admitted, the jury must be instructed, in an appropriate and timely
way, about the proper and improper use(s) of the evidence. In order to make
that distinction, the jury must be clearly informed of the purpose for which
specific pieces of evidence may be used.
[96]
The starting point, however, is that evidence of
the accuseds uncharged prior discreditable conduct is
presumptively
inadmissible
. This is due to the exclusionary rule against evidence of
general propensity, disposition, or bad character:
Handy
, at para. 36.
See also
Morris v. The Queen
, [1983] 2 S.C.R. 190, at pp. 201-2,
per
Lamer J. (dissenting, but not on this point);
R. v. Morin
, [1988] 2
S.C.R. 345, at pp. 367-68;
R. v. B. (C.R.)
, [1990] 1 S.C.R. 717, at
pp. 734-35; and
R. v. Arp
, [1998] 3 S.C.R. 339, at para. 40. Evidence
of general propensity, disposition, or bad character is
inadmissible
if it only goes to establishing that the accused is the type of person likely
to have committed the offence(s) in question:
Handy
, at para. 53,
citing
Arp
, at para. 41. See also
J.A.T.
, at para. 51;
R.
v. R.O.
, 2015 ONCA 814, 333 C.C.C. (3d) 367, at para. 15. Such evidence is
also generally inadmissible when it is tendered to establish character, as
circumstantial proof of the accuseds conduct:
Handy
, at para. 31;
R.
v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 221.
[97]
This rule of exclusion does, however, yield on
exceptional occasions:
Handy
, at paras. 60, 64. Evidence of
uncharged prior discreditable conduct may be admitted if it is relevant,
material, and the Crown establishes, on the balance of probabilities, that its
probative value outweighs its prejudicial effect:
J.H.
, at para. 54,
citing
Handy
, at para. 55;
Luciano
, at para. 222; and
J.A.T.
,
at para. 51. In
J.H.
, at paras. 56-60, Watt J.A. described the
procedure to determine the admissibility of such evidence on a Crown application.
[98]
The assessment of the probative value of the
evidence requires the trial judge to consider: (a) the strength of the evidence
that the extrinsic acts in question occurred; (b) the connection between the
accused and the similar acts, and the extent to which the proposed evidence
supports the inferences the Crown seeks to make (sometimes referred to as the
connectedness between the similar act evidence and the questions in issue);
and (c) the materiality of the evidence that is, the extent to which the
matters the evidence tends to prove are live issues in the proceeding: see
David Paciocco, Palma Paciocco & Lee Stuesser,
The Law of Evidence
,
8th ed. (Toronto: Irwin Law, 2020), at pp. 74-75.
[99]
The second and third factors must not be glossed
over. The Crown must be prepared to establish exactly what inferences it will
be asking the jury to draw from the evidence, and the extent to which the
evidence tends to permit those inferences.
[100]
Defence counsel should also be prepared to
identify, to the extent possible, the issues that will actually be in play at
trial. This may serve to eliminate the Crowns need to adduce the evidence, or
to limit the evidence required.
[101]
Having assessed the probative value of the
evidence, and the issues to which it is relevant, the trial judge must examine
the prejudicial effect of the proffered evidence and balance it against its
probative value. It is well-established that prejudice in this context comes
in two forms: so-called moral prejudice and reasoning prejudice.
[102]
Moral prejudice refers to the risk that the jury
may convict the accused on the basis of bad personhood:
R. v. McDonald
,
2017 ONCA 568, 351 C.C.C. (3d) 486, at para. 83, citing
Handy
, at
paras. 31, 71, 100, and 139. That is, not on the basis of the evidence, but on
the basis that the accused is a bad person who is likely to have committed the
offences with which they are charged. There is a related concern that the jury
may punish the accused for their prior bad acts as revealed in the evidence
of the uncharged prior discreditable conduct:
R. v. D.(L.E.)
, [1989] 2
S.C.R. 111, at pp. 127-28.
[103]
Reasoning prejudice, in contrast, diverts the
jury from its task, and describes the risk that the jury will give the evidence
more weight than is logically justified: see
R. v. Bent
, 2016 ONCA
651, 342 C.C.C. (3d) 343, at para. 46;
R. v. Lo
, 2020 ONCA 622, at
para. 111;
Handy
, at para. 31. Reasoning prejudice may include the
following:
·
The jury becomes confused by evidence extrinsic
to the charges on the indictment. Specifically, the jury may become confused
by the multiplicity of incidents, and become distracted by the cumulative force
of so many allegations from their task of deciding carefully each charge one by
one:
R. v. Shearing
, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 68;
·
The jury is distracted from the actual charges,
and confused about which evidence relates to the crime charged and which
evidence relates to the similar fact incidents:
Handy
, at para. 100;
·
The evidence awakens in the jury sentiments of
revulsion and condemnation that deflect them from the rational, dispassionate
analysis upon which the criminal process should rest:
Calnen
, at
paras. 176, 180,
per
Martin J. (dissenting in part, but not on this
point);
·
The accused cannot properly respond to the
extrinsic evidence due to the passage of time, surprise, and/or the collateral
nature of the inquiry: Paciocco, at p. 70; and
·
Trial time is consumed by unduly focusing on
whether the similar acts occurred:
Handy
, at paras. 83, 144. See also
R.
v. Grant
, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 39.
[104]
In assessing the prejudicial effect of the
evidence, the trial judge may consider a variety of factors, including: (a) how
discreditable the conduct is the more inflammatory and egregious the conduct,
the greater the likelihood of moral prejudice:
Lo
, at para. 114,
citing
Handy
, at paras. 83, 100, and 140; (b) the extent to which the
evidence may support an inference of guilt based solely on bad character; (c)
the extent to which the evidence may confuse the jury; and (d) the ability of
the accused to respond to the evidence:
Luciano
, at para. 233, citing
R.
v. B. (L.)
(1997), 35 O.R. (3d) 35 (C.A.), leave to appeal refused, [1997]
S.C.C.A. No. 254.
[105]
After considering the prejudicial effect of the
evidence, the trial judge is required to engage in the familiar task of
balancing the prejudicial effect against the probative value.
(2)
Uncharged prior discreditable conduct evidence in intimate partner
violence cases
[106]
As the trial judge accurately observed, evidence
of uncharged prior discreditable conduct has frequently been admitted in
domestic violence cases to describe the nature of the parties relationship,
sometimes referred to as context or background. It is on this basis that
the evidence is said to have probative value.
[107]
Evidence of uncharged prior discreditable
conduct has also been used to establish
animus
, which may be
relevant to both the
actus reus
and the
mens rea
of the
offence(s). As described by the authors in the
Law of Evidence
, at p.
90:
Where such evidence demonstrates a strong
disposition to act violently or sexually towards the victim, it is not being
used to prove the bad character of the accused but, as
R. v. Batte
explained, to support the specific inferences that the accused is disposed to
act violently (or sexually)
towards the victim
and that the accused
had that disposition on the occasion in question.
[108]
In
J.H.
, at paras. 54-55, Watt J.A.
observed that the exercise of whether or not to admit the uncharged prior
discreditable conduct evidence in domestic assault trials is inherently
case-specific. He described this as follows:
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.
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 also
F. (D.S.)
, at pp.
616-17;
R. (B.S.)
, at para. 38.
[109]
If evidence of uncharged prior discreditable
conduct has probative value, for one of the reasons described above, and is
admitted, the trial judge is
required
to instruct
the jury on its use. That instruction should identify the evidence in question,
and explain the permitted and prohibited uses of the evidence:
R. v. Largie
,
2010 ONCA 548, 101 O.R. (3d) 561, at para. 107, leave to appeal refused, [2010]
S.C.C.A. No. 460, [2011] S.C.C.A. No. 119.
[110]
Ultimately, the trial judges balancing of the
probative value and the prejudicial effect of the evidence is entitled to
significant deference, absent an error in law or principle, a misapprehension
of material evidence, or a decision that is plainly unreasonable:
Lo
,
at para. 116, citing
R. v. Araya
, 2015 SCC 11, [2015] 1 S.C.R. 581, at
paras. 31, 38;
Shearing
, at para. 73. See also
R. v. James
(2006), 84 O.R. (3d) 227 (C.A.), at para. 33, leave to appeal refused, [2007]
S.C.C.A. No. 234.
[111]
There may be situations where, having assessed
the prejudicial effect of the proposed evidence, the trial judge determines
that the evidence is so prejudicial that it must be excluded in its entirety.
If, however, the trial judge determines that the probative value of the
evidence outweighs its prejudicial effect, then the trial judge is required to
take measures to minimize the prejudicial effect of the evidence and to prevent
its misuse. In addition to a limiting instruction, there are several options.
[112]
The trial judge does not have to admit
all
the evidence tendered by the Crown. As the trial
judge here noted, one must consider whether the issue to be proven by the
evidence can be established by evidence of a lesser prejudicial nature: see
Handy
,
at para. 83. The trial judge may thus limit the volume and extent of evidence
that the Crown is permitted to adduce.
[113]
In addition, or alternatively, the trial judge
may admit the evidence, but only on the condition that it is edited, or it is
adduced in a more restricted form, such as a statement or through excerpts of
evidence at the preliminary hearing: see Paciocco, at p. 95, referring to
Shearing
,
at para. 142;
R. v. McLean
(2002), 170 CCC (3d) 330 (Ont. C.A.), at
para. 20.
(3)
Application of the Principles
[114]
While evidence of uncharged prior discreditable
conduct has been routinely and properly admitted in cases of intimate partner
violence, this is not by way of a categorical exception to the presumptive
inadmissibility of such evidence: see
J.H.
, at para. 55. Its
well-known dangers must be kept front and centre in a case-specific analysis,
balancing the probative value and the prejudicial effect of the evidence. This
analysis requires a close look at the evidence the Crown proposes to admit, the
issues to which it will be directed, and the manner in which it will be
presented.
[115]
Although the trial judge acknowledged the
need
to assess both moral prejudice and reasoning
prejudice, and found that the evidence was undoubtedly prejudicial, he did not
actually consider the nature and extent of the reasoning prejudice that could
arise, or balance that prejudice against the probative value of the evidence.
Returning to the factors identified earlier in the assessment of the
prejudicial effect of the evidence of uncharged prior discreditable conduct, we
see that: (a) the evidence was highly discreditable, and included the alleged
sexual assault of C.Q. when she was recovering from childbirth, a physical
assault of C.L. as a young child, and multiple sexual assaults of both C.Q. and
C.L. in China; (b) the evidence gave rise to significant moral prejudice, and a
risk that the jury would infer the appellants guilt based on bad character;
(c) the evidence introduced the real risk of reasoning prejudice by confusing
the jury about which acts the appellant was being tried for; and (d) the
evidence limited the appellants ability to respond, because the events
occurred many years earlier in China, and any attempt to challenge the
complainants allegations would likely have simply emphasized them in the
jurys eyes.
[116]
A proper consideration of the evidence and its
potential prejudicial effect should have led the trial judge to consider
whether there were ways in which to mitigate its impact while preserving its
probative value. It might have persuaded him to give a more timely and
effective mid-trial instruction that prepared the jury for the reception of the
evidence, explained how the evidence should be used, and cautioned them against
its misuse.
[117]
As the trial progressed, however, the prejudice
was amplified by the manner in which the Crown presented the evidence priming
the jury with a dramatic opening statement, and front-end loading the trial
with C.Q.s lengthy and graphic recitation of various sexual and physical
assaults allegedly perpetrated by the appellant in China, distinct in time from
the offences with which the appellant was charged.
[118]
I agree with the submission of appellants
counsel that the volume and extent of this evidence was significant. Much of it
went well beyond the parameters contemplated by the Crowns application and the
trial judges ruling. Moreover, the mid-trial instruction (which occurred after
some of the most prejudicial evidence had been admitted) did not provide the
jury with an adequate framework in which to understand the permitted use of
this evidence, and to protect against its improper use. Neither the mid-trial
instruction nor the trial judges final instruction identified the serious risk
of reasoning prejudice in this case, or explained to the jury how it could be
avoided.
[119]
I conclude that the trial judges failure to
assess and balance the prejudicial effect of this evidence was an error of law.
It allowed the probative value to overwhelm his analysis, and led to a body of
highly prejudicial evidence being admitted at trial, unfiltered and
uncontrolled. The prejudice was significant, in part due to the Crowns failure
to lay an appropriate foundation for the jurys reception of the evidence, and
in part due to the manner in which the evidence unfolded at trial. There is a
real risk that the jury convicted the appellant for his uncharged prior
discreditable conduct, and not for the offences with which he was charged.
[120]
The risk was not attenuated by the jury
instruction, which was focused on moral prejudice rather than reasoning
prejudice. In the result, a new trial is required.
I.
ADDITIONAL OBSERVATIONS
[121]
Experience shows that trials all too often go
off the rails due to the admission of unnecessary or excessive evidence of an
accuseds prior discreditable conduct. As this appeal demonstrates, such
evidence can prolong the trial, confuse the jury, and result in unfairness to
the accused. The benefit of hindsight permits me to suggest how some of the
challenges in this trial might have been addressed.
(1)
The responsibility of the Crown
[122]
In considering whether to proffer evidence of
prior discreditable conduct, the Crown must start from the principle that such
evidence is presumptively inadmissible, and its introduction is exceptional. It
must be confined to cases in which the evidence is necessary, and where its
probative value exceeds its prejudicial effect, having regard to both moral
prejudice and reasoning prejudice. Vague terms, such as narrative, context,
and background, cannot be permitted to serve as a substitute for a careful
assessment of how the evidence will assist the jury in understanding other
admissible evidence, what inferences the jury may properly draw from the
evidence, and how impermissible reasoning can be prevented.
[123]
The Crown must also provide a specific
foundation for the admission of the evidence, to enable the trial judge to
appreciate the nature and scope of the evidence it proposes to adduce, and to
assess whether the probative value of the evidence exceeds its prejudicial
effect.
[124]
In this case, the trial judge may not have had
the benefit of a full evidentiary record on the Crowns application to admit
evidence of the appellants uncharged prior discreditable conduct. There is no
reference to a record in the Crowns factum in the court below, no reference to
it in the parties submissions on the
voir dire
, and no reference to
it in the trial judges reasons. An appropriate record could have included
extracts from the complainants evidence at the preliminary hearing or possibly
other prior statements. This might have prompted the trial judge to press the
Crown on whether the volume and extent of evidence could have been reduced, or
whether the evidence could have been adduced in a more controlled manner.
[125]
If the evidence is admitted, the Crown must take
care to control the flow of the evidence so that it comports with the trial
judges ruling and minimizes the risk of prejudice. It is apparent from the
trial record in this case that the evidence of both complainants went well
beyond the scope of the trial judges ruling.
(2)
Eliminating or minimizing prejudicial effect
[126]
Both the Crown and defence must turn their minds
to whether the necessity for the evidence can be eliminated, or its prejudicial
effects reduced, by appropriate admissions or undertakings. The trial judge
should press them to explore alternatives to the admission of the evidence, or
to reduce its impact.
[127]
In this case, the trial judge found that the
evidence was admissible for three reasons: (a) to prove
animus
and the
nature of the relationship; (b) to explain why the complainants had not
reported their allegations; and (c) to explain why C.Q. had remained in the
marital relationship. In response to the Crowns application, defence counsel
stated that he was not intending to cross-examine the complainants on why they
had not reported the abuse earlier or why C.Q. had remained in the marital
relationship. This commitment, had it been pursued, might have undermined a
substantial part of the prosecutions rationale for the admission of the
evidence.
[128]
Moreover, as the evidence unfolded at trial,
both complainants explanations came up naturally and did not require reference
to the prior abuse. C.Q. only discovered that non-consensual marital sex was
illegal in Canada when she read a brochure at CAMH, which led to her reporting
the abuse. And C.L. did not disclose the abuse because she was afraid that
others would believe she was dirty and because of her mothers fear they
would be deported. An appropriate focus on eliminating or reducing prejudice
might have foreseen this line of questioning and obviated the need for much of
the contentious evidence.
(3)
Jury instructions
[129]
If defence counsels concessions and the
complainants carefully tailored evidence were insufficient to address the
three reasons for which the Crown sought to adduce evidence of the appellants
prior discreditable conduct, then jury instructions could have served as an
appropriate caution against inappropriate reasoning. For example, the trial
judge could have instructed the jury that (a) they were not allowed to draw an
adverse inference from the complainants delay in reporting: see
R. v. D.D.
,
2000 SCC 43, [2000] 2 S.C.R. 275; and (b) they could not rely on the
discredited myth that complainants always leave their abusive relationships.
[130]
The same applies to the trial judges concern
that without the evidence of prior abuse, the jury might speculate about why
the abuse only began in Canada. If impermissible and speculative reasoning was
a concern, then the better course of action was to explain that such reasoning
was inappropriate, that the jury was not to speculate, and that they were to
decide the case solely on the evidence.
[131]
The trial judge might have invited the Crown to
consider at what point in the trial the evidence was to be introduced, how it
was to be introduced, and whether a contemporaneous mid-trial instruction would
have been advisable, either
before
or
immediately
after the jury heard the evidence. Such an
instruction might have, for example: (a) identified specifically, by date and
with a brief synopsis, the uncharged prior discreditable conduct; (b)
identified the jurys permitted use of the evidence; and (c) identified the
prohibited use of the evidence. In connection with the prohibited use of the
evidence, the trial judge might have instructed the jury that they could not
convict the appellant on the basis of bad personhood (i.e. moral
prejudice), but also that they could not convict the appellant because they
wanted to punish him for his uncharged prior discreditable conduct (i.e.
reasoning prejudice). He might have instructed them that their task was to
keep their eye firmly on the ball namely, to determine whether the
appellant was guilty, beyond a reasonable doubt, of the counts in the
indictment, and not whether he was guilty of the uncharged prior discreditable
conduct.
[132]
Finally, great care must be taken in crafting
final instructions to explain to the jury how they are to use, and how they are
not to use, the evidence. It is not clear to me what the jury was expected to
take from the instruction that the purpose of the evidence was to allow them to
understand the nature and state of the family relationship prior to the
allegations at issue, and to demonstrate the appellants
animus
or
dislike of the complainants. If the evidence is being introduced as
narrative that is, as evidence that was not relevant and material in its
own right, but to assist the jury in understanding admissible evidence then
it is incumbent on the trial judge to clearly instruct the jury on exactly how
the evidence is to be used.
J.
DISPOSITION
[133]
For these reasons, I would allow the appeal and
order a new trial.
Released: February 25, 2021 G.R.S.
George
R. Strathy C.J.O.
I
agree. David Watt J.A.
I
agree. B. Zarnett J.A.
[1]
Ms. Kranjc was not the trial Crown, and Mr. Halfyard was not
defence counsel at trial.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Rooplal v. Fodor, 2021 ONCA 357
DATE: 20210528
DOCKET: C68481
Rouleau, Benotto and Thorburn JJ.A.
BETWEEN
Bibi Saffora Rooplal
Plaintiff (Respondent)
and
Leslie
Patrick Fodor
,
Toronto Transit Commission
, John Doe
Driver, John Doe Owner and
Novex Insurance Company
Defendants (
Appellants
/
Respondent
)
J. Thomas Curry, Adam H. Kanji, and Chad Townsend, for
the appellants, Leslie Patrick Fodor, Toronto Transit Commission, and Toronto
Transit Commission Insurance
Robert R. Patterson and Naresh C. Misir, for the
respondent, Bibi Saffora Rooplal
Maseeh M. Sidky, for the respondent, Novex Insurance
Company
Heard: February 3, 2021 by video conference
On appeal from the order of the Divisional Court (Justices
Harriet E. Sachs, Todd Ducharme, and William M. LeMay), dated December 11,
2019, with reasons reported at 2019 ONSC 7211, 59 M.V.R. (7th) 40, affirming
the order of Justice Victoria R. Chiappetta of the Superior Court of Justice, dated
August 20, 2018, with reasons reported at 2018 ONSC 4985, 143 O.R. (3d) 149.
Thorburn J.A.:
OVERVIEW
[1]
The respondent, Bibi Saffora Rooplal, was injured while riding a Toronto
Transit Commission (TTC) bus. She was told by the bus driver that the
accident was caused by an unidentified motorist.
[2]
Ms. Rooplal brought a claim against the unidentified motorist, the TTC,
and the bus driver, Leslie Fodor, for damages resulting from the accident. In
the same action she brought a claim against her insurer, Novex Insurance
Company (Novex), for declaratory relief and to indemnify her for damages
caused by the unidentified motorist.
[3]
She later sought to add the appellant Toronto Transit Commission
Insurance (TTC Insurance) as a party defendant, seeking declaratory relief
and indemnification for damages caused by the unidentified motorist pursuant to
s. 265 of the
Insurance Act
, R.S.O. 1990, c. I.8 and
Uninsured
Automobile Coverage
, R.R.O. 1990, Reg. 676 (Regulation 676). TTC
Insurance took the position that this should not be permitted as the claim against
TTC Insurance was statute-barred by s. 4 of the
Limitations Act, 2002
,
S.O. 2002, c. 24, Sch. B (the
Limitations Act
).
[4]
The motion judge permitted the claim against TTC Insurance to proceed on
the basis that the two-year limitation period for commencing a claim set out in
s. 4 of the
Limitations Act
had not expired as, under the criteria set
out in s. 5, Ms. Rooplal had not yet discovered her claim against the
insurer.
[5]
The motion judge held that the limitation period for the indemnification
claim against TTC Insurance does not begin to run until the day after [Ms.
Rooplal] made an indemnification claim which [TTC Insurance] failed to satisfy.
Since [Ms. Rooplal] made her motion to add [TTC Insurance] as a defendant
before making a claim that [TTC Insurance] failed to satisfy, the limitation
period has not expired. That decision was upheld by the Divisional Court, adopting
the reasons of the motion judge.
[6]
Leslie Fodor, the TTC, and TTC Insurance appeal the decision of the
Divisional Court.
[7]
The issue on this appeal is when the limitation period begins to run on
the claim for indemnification against TTC Insurance.
[8]
TTC Insurance submits that the limitation period begins to run when Ms. Rooplal
knew or ought to have known the unidentified motorist was at fault. TTC says
this was when she received the police report.
[9]
Ms. Rooplal claims the two-year limitation period does not begin to run
until the insurer denies her claim for indemnification under the contract of
insurance. In the alternative, she claims that even if the limitation period
began to run when she knew or ought to have known there was a tort claim
against the unidentified motorist, she did not have evidence of how the
accident happened until the TTC bus driver was examined for discovery. Ms.
Rooplal served her motion to add TTC Insurance less than two years thereafter. Novex
makes no submissions on the appeal.
[10]
For
the reasons that follow, I find that the limitation period for bringing a claim
against TTC Insurance for declaratory relief and indemnification for damages
caused by the unidentified motorist has not expired.
[11]
Before
conducting the legal analysis, I will briefly outline the underlying accident,
the pleadings, the terms of insurance, and the relevant provisions of the
Limitations
Act
.
BACKGROUND
(1)
The Accident
[12]
On
May 4, 2012, Ms. Rooplal was a passenger in a TTC bus driven by Leslie Fodor.
The bus braked sharply, causing Ms. Rooplal to be propelled forward and strike
her head on an interior bar pole. She was told by the TTC that the bus stopped
suddenly as another car cut it off.
[13]
On
February 24, 2014, Ms. Rooplals counsel received the accident report from the
Toronto Police Service. The report cites the information provided by the TTC
driver and provides that the accident occurred when an unidentified vehicle
caused the TTC bus to brake suddenly to avoid a collision.
[14]
At
the time of the accident, Ms. Rooplal had a valid motor vehicle insurance
policy with Novex, which included a family protection coverage endorsement
under Ontario Policy Change Form 44R (OPCF-44R). TTC was self-insured by TTC
Insurance.
(2)
The Pleadings
[15]
On
March 26, 2014, Ms. Rooplal filed her Statement of Claim against the unidentified
motorist, the unidentified owner, the TTC, and the TTC bus driver for damages
caused by the accident. She also sought a declaration and indemnification from
her insurer, Novex,
up to the full policy limits, including but not
limited to OPCF-44R family protection coverage, for any and all
damages,
injuries and losses resulting from the motor vehicle accident
.
Ms. Rooplal claims she suffered permanent
and serious injuries as a result of the accident and seeks damages in the
amount of $800,000.
[16]
Ms.
Rooplal claimed that her Family Protection Coverage endorsement with Novex,
under the OPCF-44R, provides coverage to persons insured under the contract
for loss and injuries sustained as a result of the actions of an unknown
operator of an unidentified motor vehicle pursuant to section 265(1) of the
Insurance
Act
, R.S.O. 1990, c. 1.8. She also pleads that the incident was caused
or contributed to by the negligence of the owner and/or operator of the
[unidentified] Doe Vehicle.
[17]
On
September 11, 2014, Novex served its Statement of Defence and Crossclaim against
the TTC and its driver denying Ms. Rooplals claim for unidentified motorist
insurance. At para. 5 of the Statement of Defence (para. 7, in the amended
pleading) Novex pleads that Ms. Rooplal has no cause of action as against it,
until she obtains judgment as against any of the co-defendants, a determination
is made that any of the co-defendants are uninsured and the plaintiff is unable
to satisfy the said judgment as against the assets of any of the other co‑defendants.
[18]
On
May 7, 2015, examinations for discovery were completed. On December 10, 2015,
counsel for Novex wrote to Ms. Rooplals counsel, copying TTCs counsel, and
stated that it was my understanding that plaintiffs counsel would be amending
his clients claim to include the TTC insurer to the action. Can you please
confirm that this is the case?
[19]
On
March 16, 2017, Novex amended its Statement of Defence and Crossclaim to plead
that:
5. This defendant specifically denies that it is the insurer
for the purposes of coverage for incidents or accidents caused by or
contributed to by the negligence of the owner and/or operator of an
unidentified and/or uninsured motor vehicle.
6. Further, this defendant states that the plaintiff was a
passenger/occupant in the co-defendant TTC vehicle and any claims pursuant to
unidentified and uninsured provisions and/or section 265 of the
Insurance
Act
, R.S.O. 1990, c. I.8 ought to be against the co-defendant TTC
vehicle's policy and not this defendant. [Emphasis omitted.]
[20]
Shortly
thereafter, Ms. Rooplal brought a motion to amend her Statement of Claim to add
TTC Insurance as a party defendant. TTC Insurance opposed the motion on the
grounds that the limitation period had expired.
[21]
The
proposed claim against TTC Insurance is for a declaration that, at the time of
the accident, Ms. Rooplal was an occupant of a vehicle insured by TTC Insurance
and an insured pursuant to that policy, and that TTC Insurance must indemnify
her for all damages caused by the unidentified motorist up to the policy
limits.
(3)
The Terms of Insurance
[22]
Where
an unidentified motorist is at fault, there may be no means of securing
compensation for an injury from the unidentified motorist, as the motorist and
the motorists insurer may never be identified. In Ontario, there are two means
of addressing this gap in coverage: (i) mandatory uninsured/unidentified motorist
coverage, under s. 265 of the
Insurance Act
; and (ii) optional OPCF-44R
family protection coverage.
Section 265 unidentified
automobile insurance
[23]
The
Insurance Act
requires that all automobile insurance policies provide
coverage for accidents involving an unidentified motorist. Section 265(1) of
the
Insurance Act
provides that:
Every contract evidenced by a motor vehicle liability policy
shall provide for
payment of all sums that
,
(a)
a person insured under the contract
is legally entitled to recover
from the owner or driver of an uninsured
automobile or
unidentified automobile as damages for bodily injuries
resulting from an accident involving an automobile;
subject to the terms, conditions, provisions, exclusions and
limits as are prescribed by the regulations
. [Emphasis added.]
[24]
Section
265(2) of the
Insurance Act
defines person insured under the
contract for the purpose of a claim for bodily injuries as, among other
things, any person while an occupant of the insured automobile.
Regulation 676 of the
Insurance Act
[25]
Regulation
676 sets out additional obligations on insureds seeking to pursue a claim for
indemnification pursuant to s. 265
Insurance Act
in the attached Schedule
Uninsured Automobile Coverage (the Schedule): R.R.O. 1990, Reg. 676.
[26]
Section
1 of Regulation 676 provides that:
The terms, conditions, provisions, exclusions and limits set
out in the following Schedule apply to payments under a motor vehicle liability
policy under subsection 265 (1) of the Act and shall be attached to or included
in every motor vehicle liability policy, as a Schedule in or to the policy.
[27]
The
Schedule referred to in s. 1 of Regulation 676 provides, at s. 8 (Limitations),
that [n]o person is entitled to bring an action to recover an amount provided
for under the contract, as required by subsection 265 (1) of the Act, unless
the requirements of this Schedule with respect to the claim have been complied
with. The requirements include the following:
·
Section 2(1)(c): The s. 265 insurer is not liable to pay the
claim if the insured is entitled to recover money under the third-party
liability section of a motor vehicle liability policy. This is known as the
1% rule as, if another insured is found to be even 1% liable for the accident,
the s. 265 insurer is exempt from liability. In other words, the s. 265 insurer
is only liable in the last resort.
·
Section 3: The person injured in an unidentified motorist
accident must report the accident to police in a timely manner and notify the
s. 265 issuer within 30 days of the accident or as soon as is practicable and
provide certain details to the s. 265 insurer.
·
Section 4(1)(c): The determination of whether the insured is
entitled to damages and, if so, the amount, may be determined by the courts.
Unless a liability determination has already been made by another court, the
insurer may defend both liability and damages.
·
Section 5(1): Where an insured commences a tort action for
damages against a person involved in the accident,
a copy of the writ of summons or other proceeding shall be
delivered or sent by registered mail immediately to the insurer
.
·
Section 5(2): If the claimant obtains a judgment against the other
person but is unable to recover or fully recover the amount of that judgment, subject
to the 1% rule discussed above, the s. 265 insurer must make the claimant
whole. This section also permits the s. 265 insurer to require the assignment
of the judgment prior to paying the claimant.
·
Section 6: A person making a claim shall do so by (i) giving
written notice to the insurer within 30 days of the accident or as soon as is
practicable after that date; (ii) giving the insurer proof of the accident, the
resulting loss, and the claim within 90 days of the accident or as soon as is
practicable; (iii) providing the insurer with a certificate stating the cause
of injury or death and the nature of the injury, and the expected duration of
any disability; and (iv) providing the details of any other insurance policy,
other than life insurance, to which the claimant may have recourse.
[28]
Any
claim brought pursuant to s. 265 of the
Insurance Act
must comply with
the notification requirements set out in the Schedule contained in Regulation
676.
OPCF-44R Family Protection
Coverage
[29]
In addition to the mandatory statutory unidentified motorist
insurance, an insured may elect to purchase OPCF-44R insurance coverage, which
may be purchased as an endorsement to the standard Ontario motor vehicle
insurance Owners Policy.
[30]
The OPCF-44R endorsement provides additional coverage for the
named insured and their family, including for unidentified motorist claims. As
the occupant of any other vehicle in an accident caused by an unidentified
motorist, an insured may seek indemnification under an OPCF-44R policy for the
injuries sustained in an accident caused by an unidentified motorist.
[31]
However, and importantly for the purpose of the underlying action,
s. 7 of the OPCF-44R provides that coverage under this policy is excess to any
amount received elsewhere and to other amounts available from uninsured
automobile coverage under any other valid motor vehicle policy.
(4)
The
Limitations Act
[32]
Section
4 of the
Limitations Act, 2002
provides that a proceeding shall not
be commenced in respect of a claim after the second anniversary of the day on
which the claim was discovered, unless the Act provides otherwise.
[33]
Section
5(1) of the Act provides that:
A claim is discovered on the earlier of
(a) The day on which the person with the claim first knew,
(i) that the injury, loss or damage
had occurred,
(ii) that the injury, loss or damage
was caused by or contributed to by an act or omission,
(iii) that the act or omission was
that of the person against whom the claim is made, and
(iv) that, having regard to the
nature of the injury, loss or damage, a proceeding would be an appropriate
remedy to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and
in the circumstances of the person with the claim first ought to have known of
the matters referred to in clause (a).
[34]
The
requirements under s. 5(1)(a) are conjunctive, and all must be met for a claim
to be discovered:
Longo v. MacLaren Art Centre Inc.
, 2014 ONCA 526, 323
O.A.C. 246, at para. 41;
Apotex Inc. v. Nordion (Canada) Inc.
, 2019
ONCA 23, 431 D.L.R. (4th) 262, at para. 78.
THE ISSUE
[35]
The
issue for this court is a narrow one: Is Ms. Rooplals claim against TTC
Insurance for unidentified motorist coverage, statute-barred by ss. 4 and 5 of
the
Limitations Act
? Resolving this question requires this court to
determine when Ms. Rooplal discovered, or ought to have discovered, her
claim against the purported s. 265 insurer, TTC Insurance. In other words, what
is the act or omission of TTC Insurance that caused the plaintiffs loss?
THE DECISION BELOW
[36]
The
motion judge considered this courts pre-
Limitations Act
jurisprudence
and then outlined the changes occasioned by the
Limitations Act
.
[37]
The
motion judge referred to
July v. Neal
(1986), 32 D.L.R. (4th) 463 (Ont.
C.A.), a case heard before the changes to the
Limitations Act
. July
was a passenger in a three-party collision including an unidentified motorist. MacKinnon
A.C.J.O, for the majority, held that the limitation period began when the cause
of action against the insurer arose meaning when the material facts on which
the claim is based have been discovered or ought to have been discovered by the
plaintiff by the exercise of reasonable diligence: p. 469.
[38]
The
motion judge in this case noted that the test changed with the 2002 enactment
of the
Limitations Act
.
[39]
She
referred to
Markel Insurance Company of Canada v. ING Insurance Company of
Canada
, 2012 ONCA 218, 109 O.R. (3d) 652, the leading case interpreting
the limitation period under s. 4 of the
Limitations Act
in the context
of the
Insurance Act
.
Markel
was a loss-transfer claim
between two insurers, for indemnification for statutory accident benefits paid
to an insured. In that case, the limitation period did not begin until the
first insurers request for indemnification was received by the second insurer.
[40]
She
also referred to the decision of this court in
Schmitz v. Lombard General
Insurance Company of Canada
,
2014 ONCA 88
,
118 O.R. (3d) 694
,
leave to appeal refused, [2014] S.C.C.A. No. 143, a case involving an insureds
claim against their own insurer under the OPCF-44R endorsement. The court in
Schmitz
held that the reasoning in
Markel
was dispositive of the limitations
issue s
uch that claim for indemnity
under the OPCF-44R did not start to run until there is a demand for indemnity
and default of the obligation to indemnify the insured.
[41]
After
reviewing the changes in the law, the motion judge observed, at para. 29, that:
The
Limitations Act
discoverability provisions are
based upon the common law principles of discoverability. However, the statute
provides a discoverability definition that is much more nuanced and complex.
The detailed discoverability definition was not before the Court of Appeal nor
contemplated by it in
July
. While the general discoverability doctrine
set out in
July
remains unchanged by the
Limitations Act
pronouncement,
the discoverability definition in the test enunciated by MacKinnon
J. must now be interpreted in accordance with the
Limitations Act
's
definition of "discovered"
. In this regard, the Court of Appeal's
analysis in
Markel
and
Schmitz
cannot be ignored. It is binding
on this court. [Emphasis added.]
[42]
The
motion judge held that, although this is not a loss-transfer case or a claim
against the OPCF-44R insurer, the analysis in
Markel
and
Schmitz
applies. In her view, Ms. Rooplal could not be said to know that there is a
loss caused by an omission of the unidentified motorist insurer, i.e. TTC Insurance,
until she asserted a claim for indemnification against TCC Insurance: see
Limitations
Act
, ss. 5(1)(a)(i)-(iii). The motion judge concluded that the limitation
period begins to run
on the first day of default after the demand for
indemnification is made. Accordingly, Ms. Rooplals claim against TTC
Insurance was not statute-barred.
[43]
The
appeal to the Divisional Court was dismissed for the reasons of the motion
judge.
ANALYSIS
(1)
The Standard of Review
[44]
Whether
Ms. Rooplals claim against TTC Insurance is statute-barred requires this court
to interpret both the
Limitations Act
and the
Insurance Act
s
unidentified motorist provisions. All parties agree that this is a question of
law, subject to correctness review:
Housen v. Nikolaisen,
2002 SCC 33,
[2002] 2 S.C.R. 235, at paras. 8-9.
(2)
The Parties Positions
[45]
The
appellant TTC Insurances position is that the motion judge and the Divisional
Court erred in finding that this courts pre-
Limitations Act
jurisprudence no longer governs a claim brought against a s. 265 insurer for
unidentified motorist coverage. TTC Insurance submits that the framework
developed in
Markel
and
Schmitz
was not meant to apply to such
claims and both cases are readily distinguishable. Moreover, in TTC Insurances
view, [t]o hold that the limitation period does not commence until the
Plaintiff has made an indemnification demand to the TTC Insurance would produce
an absurd result, namely that the plaintiff could potentially lie in wait
indefinitely before bringing a claim against the s. 265 insurer.
[46]
Several
other lower court decisions applied the same reasoning as the motion judge and
TTC submits these decisions are wrongly decided: see e.g.
Chahine and
Al-Dahak v. Grybas
, 2014 ONSC 4698, 38 C.C.L.I. (5th) 282;
Platero v.
Pollock
, 2015 ONSC 2922, 49 C.C.L.I. (5th) 212;
Sukhu v. Bascombe
,
2018 ONSC 2878.
[47]
The
respondent, Ms. Rooplal, submits that the analysis in
Markel
and
Schmitz
applies
and no absurdity arises from the motion judges decision.
First, this is not a stale claim as TTC Insurance and the TCC are effectively
indistinguishable, sharing the same premises and counsel. Furthermore, s. 6 of
the Schedule contained in Regulation 676 sets out notice requirements for any
claim brought against a s. 265 insurer.
(3)
The pre-
Limitations Act
Jurisprudence
[48]
Before
the
Limitations Act
, the courts applied a limitation period contained
in the then-current regulations to the
Insurance Act
. Section 8(2) of
the relevant schedule held that the limitation period for claims for damages
caused by an unidentified motorist was two years from the date on which the
cause of action against the insurer arose.
[1]
This court found that the plaintiff discovered that the cause of action arose
when the material facts on which an action is based were discovered or ought to
have been discovered by the plaintiffs exercise of reasonable diligence: see
July;
Johnson v. Wunderlich
(1986), 34 D.L.R. (4th) 120 (Ont. C.A.);
Hier v.
Allstate Insurance Co. of Canada
(1988), 51 D.L.R. (4th) 1 (Ont. C.A.);
and
Chambo v. Musseau
(1993), 106 D.L.R. (4th) 757 (Ont. C.A.).
[49]
In
July v. Neal
, the plaintiff
was a passenger in a vehicle
owned and operated by a family member named Neal. Neals vehicle was in an
accident involving two other vehicles. The driver of one of those other
vehicles was unidentified. The accident report stated that an unidentified
vehicle was involved in the accident. After the examinations for discovery, counsel
for the plaintiff wrote the plaintiffs insurer to advise that the plaintiff
would be looking to it for the loss that may be found to be caused by the hit
and run driver.
[50]
The
plaintiff brought a claim against Neal within two years of the accident but
waited more than two years to bring a claim for unidentified motorist coverage
against the insurer. MacKinnon, A.C.J.O. observed at pp. 466-7 that in cases
where both an unidentified driver and a third-party identified driver may be at
fault:
I have had great difficulty in interpreting the intended effect
of the relevant legislation and regulation. It seems to me that the drafters of
the legislation were considering the usual case of an insured motorist involved
in an accident with a hit-and-run driver. There is no difficulty in such cases
in requiring the motorist to commence his action within the two-year-time-limit
from the date of the accident. The complicating factor in the instant case
is
the existence of an identified motorist, Neal, who was involved in the accident
and who is a defendant.
[51]
He
concluded that the limitation period begins to run, when the material facts on
which the claim is based have been discovered or ought to have been discovered
and held that it would be up to the trial judge, after hearing the evidence, to
determine when the material facts, including the potential liability of an
unidentified motorist or its insurer, ought to have been discovered. Under the
1% rule, if
any
liability rested with another defendant, the s.
265 insurer would not be required to indemnify the plaintiff.
[52]
Later
that year, in
Johnson v. Wunderlich
(1986), this court applied a
similar analysis to an uninsured motorist accident. The plaintiffs, Lionel and
David Johnson, were involved in an accident with a vehicle owned by Linda
Wunderlich and operated by Michael Wunderlich. Both Johnsons and Mr. Wunderlich
were killed in the accident and no appearance was entered by the defendants.
The defendants motor vehicle was uninsured. The plaintiffs moved to add their
insurer as a party more than two years after the accident. The insurer sought a
declaration that the claim was time-barred.
[53]
Morden
J.A. (as he then was) rejected the plaintiffs argument that the plaintiffs
were simply enforcing the judgment against the tortfeasor in seeking indemnity
from the insurer, such that the limitation period did not begin to run until
all of the conditions precedent for a claim against the insurer had been
satisfied, namely: submission of the notice and proof of claim; determination
of legal liability and the amount of damages; a finding that the plaintiffs
were entitled to damages from the owner or driver of the uninsured automobile; the
judgment remained unsatisfied; and a request for payment from the insurer had
been made and refused. Instead, at pp. 128-129, he held that this was a direct
action against the insurer, and that:
[T]he elements of this cause of action are (1) a person insured
(2) who is legally entitled to recover damages from the owner or driver of (3)
an uninsured or unidentified automobile. (Implicit in this is that the damages
have resulted from an accident involving the automobile.) The cause of action
accrues when the plaintiff (the person insured) has discovered these material
facts or ought to have discovered them by the exercise of reasonable diligence.
See
July v. Neal
(1986), 57 O.R. (2d) 218, 44 M.V.R. 1, 19 C.C.L.I. 230,
12 C.P.C. (2d) 303, (Ont. C.A.).
[T]he appellants did not
submit that the cause of action does not arise until the insurer has denied
liability on the contract. Notwithstanding that the form of the insurers
obligation is contractual (legislatively imposed) I do not read the relevant
provisions as making a denial of liability a constituent element of the direct
claim. In other words, an action commenced before denial of liability would not
be premature from a cause-of-action perspective.
[54]
Morden
J.A. concluded, however, that it cannot be determined that an action for
recovery is barred by the terms of s. 8(2) of the Schedule, because it was
unclear whether the plaintiffs action was for declaratory relief or for
recovery against the insurer, and actions for declaratory relief were not
subject to the two-year limitation period in s. 8(2) of the Schedule at that
time. Accordingly, he dismissed the insurers argument on the limitation
period.
[55]
Finlayson
J.A. agreed in the result but would have found that the limitation period had
not expired. At p. 137, he explained:
While the matter is not free from doubt, it is my opinion that an
action against the insurer is an action for breach of contract and the cause of
action arises from the date of the breach. This breach occurs when the insurer
denies liability or the insured knows or ought to know that his claim will not
be honoured.
[56]
The
case of
Hier
v. Allstate Insurance Co. of Canada
(1988), involved
a two‑party hit-and-run accident. There was no question that the insured
knew on the day of the accident that his vehicle was hit and was entitled to
damages from the unidentified motorist. Goodman J.A. held, at p. 12, that:
In the case at bar the respondent (plaintiff) was insured by
Allstate's policy, he was according to the trial judge, legally entitled to
recover damages from the unidentified automobile, and he was aware on the date
of the accident that the other motor vehicle involved, its owner and operator
were all unidentified.
On those facts, it is my opinion, that the limitation
period commenced to run from the date of the accident and the respondents
action was barred under s. 8(2)
. [Emphasis added.]
All of the necessary elements to establish a cause of
action were established and as such, the action against the insurer, brought
more than two years after the accident, was time-barred.
[57]
Finally,
in
Chambo v. Musseau
(1993), the plaintiff was injured in an accident
she claimed was caused by another driver who was uninsured. Her claim against
the insurer was brought more than two years after the accident. In that case, Osborne
J.A. allowed the plaintiffs appeal and order that the action proceed to trial.
In so doing, he distinguished an action against the uninsured motorist from an
action for coverage brought against the insurer. At p. 765, he explained:
[I]t makes no difference whether the insurer and the tortfeasor
are sued in the same action, or whether the insurer alone is named as a
defendant (as happened here). Nor does it matter if, as occurred in
Johnson
v. Wunderlich
, the insurer is added as a defendant after the commencement
of the action against the tortfeasor.
If the uninsured owner/driver and the
insurer are both sued, the cause of action asserted against the tortfeasor is
different from the cause of action asserted against the insurer. The former is
in negligence; the latter is for payment under a contract, albeit one imposed
by statute. Different limitation periods apply
.
The s. 8(2) limitation
period [for a claim against the insurer] is
two years from the
date on which the insured person knew, or with the exercise of reasonable
diligence could have established, that the tortfeasors motor vehicle was
uninsured.
[Emphasis added; see also p. 766.]
[58]
In
sum, prior to the
Limitations Act, 2002,
the two-year limitation
period for a claim for indemnification was triggered when the person knew or
ought to have known the material facts giving rise to the cause of action,
namely: (1) the plaintiff was injured and (2) was legally entitled to recover
damages from the owner or driver of (3) an uninsured or unidentified
automobile. It was recognized that determining when the cause of action arose on
a claim for indemnification was more difficult where there were multiple
possible tortfeasors one of whom was unidentified or uninsured. The claim
against the insurer is a claim founded in the insurance contract imposed by
statute, not a tort action, and dependant on the plaintiff knowing or with
reasonable diligence being able to establish that no other tortfeasor is even
1% liable. As such, (except in
Hier
, where the insured knew on the day
of the accident that he was entitled to damages only from the unidentified
motorist and therefore a claim could be brought against the insurer), the appellate
cases from this court found that the commencement of the limitation period was a
factual matter to be resolved by the trial judge.
(4)
The
Limitations Act
and Related Jurisprudence
[59]
The
Limitations Act, 2002
supersedes the limitation period set out in s.
8(2) of the Schedule contained in Regulation 676: see
Limitations Act
,
s. 19(1). The two-year limitation period set out in s. 4 of the
Limitations
Act
does not refer to when the cause of action arises. Rather, the
wording is when the claim [is] discovered.
[60]
Section
5 of
Act
determines when a claim is discovered. It provides that a
claim is discovered when the plaintiff knows or ought to have known (i) that
they have suffered injury or loss (ii) by an act or omission that is (iii)
that of the person against whom the claim is made and (iv) it is appropriate
to commence a legal proceeding.
[61]
Of
particular note is the requirement of s. 5(1)(a)(iii): the claim discovered only
when a plaintiff learns that their injury was caused by the acts or omissions
of
the person against whom the claim is made
. In other contexts, this court
has held it is an error to overlook this particular requirement imposed by s.
5(a)(iii): see
Morrison v. Barzo
, 2018 ONCA 979, 144 O.R. (3d) 600, at
paras. 35, 47.
[62]
The
consequences of this requirement are illustrated by
Markel Insurance
Company of Canada v. ING Insurance Company of Canada
(2012) and
Schmitz
v. Lombard General Insurance Company of Canada
(2014).
Those cases stand for the proposition that
the plaintiff suffers a loss when the insurer fails to satisfy its legal
obligation under the policy.
[63]
Markel
concerned two collisions, both of which involved an automobile and a
tractor-trailer. In both cases, the insureds right to insurance benefits was
not in issue. The dispute was which insurer was responsible for payment of the
benefits to the insured under s. 275 of the
Insurance Act
.
[2]
The plaintiff drivers insurers asked the tractor-trailers insurers to
indemnify them for some of the payments made to the insured. The tractor-trailer
insurers did not make the payments requested. Both tractor-trailer insurers
claimed that the limitation period for the loss-transfer claims had passed.
[64]
Sharpe
J.A. reviewed the discoverability requirements of the
Limitations Act
.
He noted that the new limitations regime required him to focus his analysis on
the four elements of s. 5(1)(a). At para. 24, he observed:
Items (ii) and (iii) require that the second party insurer must
have done or omitted to do something that can be said to have caused a loss.
The second party insurer cannot be said to have omitted to indemnify if there
was no request for indemnification. It follows that items (ii) and (iii) cannot
be satisfied until the first party insurer has asserted the loss transfer claim
against the second party insurer to trigger a legally enforceable claim or
obligation.
[65]
With
this in mind, he reasoned that, once the request for indemnification has been
sent, [a]ll the facts are present to trigger the legal obligation of the part
of the second party insurer to indemnify the first party insurer for the loss.
The situation has crystallized into a complete and valid legal claim that is
immediately enforceable against the second party insurer. According, he held,
at para. 27, that the first-party insurer discovers the loss caused by the
second-party insurer the moment the second party insurer can be said to have
failed to satisfy its legal obligation to satisfy the loss transfer claim
[which
is] the day after the Request for Indemnification is made.
[66]
In
other words, the party demanding indemnification did not know it had a loss
resulting from the second insurers wrongdoing and that it was appropriate to
commence a proceeding until a demand for indemnification was made that was not
satisfied by the insurer. Until then, the claim was not discovered within the
meaning of the
Limitations Act
.
[67]
Schmitz
involved a claim for indemnity for underinsured motorist coverage pursuant to
an optional OPCF-44R endorsement. The plaintiff brought a claim against the
underinsured tortfeasor in a timely manner but did not bring a claim against
the OPCF-44R insurer for excess damages until nearly four years after the
accident. On appeal, the OPCF-44R insurer argued that two-year limitation
period under s. 4 of the
Limitations Act
began to run at the time the
plaintiff knew or ought to know that their claim against the uninsured
tortfeasor exceeded the limitations of the tortfeasors coverage.
[68]
The
court rejected the insurers argument, holding that this courts recent
decision in
Markel
is dispositive of the issue of when the s. 5
limitation period begins to run in respect of a claim under the OPCF 44R. The
court did not accept that this would result in prejudice to the insurer,
observing that [t]here are a number of ways in which underinsurers can protect
their interests including
a provision requiring the insured to provide timely
notice to the insurer when he knew or ought to have known he was underinsured.
(5)
Analysis and Application of the Law
[69]
TTC
Insurance asks this court to distinguish
Markel
and
Schmitz.
Notwithstanding
the language in s. 5 of the
Limitations Act
, they argue that Ms. Rooplal
discovered her claim against TTC Insurance when she learned of the involvement
of an unidentified driver who was potentially liable for her injuries.
[70]
TCC
Insurance urges that
Markel
and
Schmitz
are appropriate for
their own unique contextual circumstances but inapt for claims against s. 265
insurers. TTC Insurance points out that this case is different from
Markel
as there the only issue to be determined was which of two insurers was
responsible for the payment. Similarly,
Schmitz
concerned a
contractual dispute between insured and insurer, not the statutory provisions
in s. 265, so the contract-based framework articulated in
Markel
was
arguably more appropriately adopted there than in this case.
[71]
In
July
and this case, by contrast, tort liability had not been
determined among the defendants and the s. 265 insurers liability depended on
a finding that no other party was even 1% liable. In
July
, this court
held that discovery of the cause of action could only be decided by the trial
judge after hearing evidence.
[72]
Section
5 of the
Limitations Act, 2002
was enacted to bring greater clarity
and certainty to the determination of when a limitation period commences, as
described in the recommendations of
Limitations
Act Consultation Group
: see
Recommendations for a New Limitations
Act
(Toronto: Ministry of the Attorney General of Ontario, 1991). Unless
the
Limitations Act
provides otherwise, a
proceeding must be commenced within two years of when a
claim is discovered, that is,
when the plaintiff knows, or ought to
have known they have suffered loss, injury or damage caused by or contributed
to by the acts or omissions of the person
against whom the claim is made
(emphasis added) and that it is appropriate to commence a proceeding: ss. 4 and
5(1).
[73]
The
importance of isolating the wrongful act of each particular defendant has been
emphasized by this court. It is not enough that the plaintiff has suffered some
loss from some act or omission. As Strathy C.J.O. explained in
Apotex
,
at para. 86, discovery requires that the person with the claim know that the injury,
loss or damage had
occurred
(s. 5(1)(a)(i)), that it was
caused or
contributed
to by the act or omission (the breach of contract) (s.
5(i)(a)(ii)), and that the act or omission was
that of the defendant
(s.
5(1)(a)(iii)) (emphasis in original).
Has Ms. Rooplal discovered her claim under s. 5 of the
Limitations Act?
[74]
Ms.
Rooplals proposed Amended Statement of Claim asserts a claim in negligence
against the unidentified motorist, the TTC, and the TTC driver; and a claim for
declaratory relief and indemnity in contract against TTC Insurance for damages
resulting from the actions of the unidentified motorist up to the s. 265 policy
limit.
[75]
There
is a distinction to be drawn between knowledge of the act or omission of the
unidentified motorist, for which (but for practical impediments) damages in
tort may be sought, and the act or omission of the insurer for which
indemnification pursuant to the insurance policy is sought. TTC Insurance
suggests that this court should ignore this distinction as, in effect, the
insurer stands in the shoes of the uninsured or unidentified tortfeasor in a
claim brought under s. 265 of the
Insurance Act
: quoting
Kosanovic
v. Wawanesa Mutual Insurance Co.
(2004), 237 D.L.R. (4th) 441 (Ont. C.A.),
at para. 7. TTC Insurance also directs this courts attention to several other post-
Limitations
Act, 2002
decisions from the lower courts, which have applied the
July
discovery rules to unidentified motorist cases: see
Galego v. Pereira
(2005), 207 O.A.C. 384 (Div. Ct.);
Bhatt v. Doe
, 2018 ONSC 950;
Wilkinson
v. Braithwaite
, 2011 ONSC 2356.
[76]
I
disagree.
[77]
Section
5(1)(a)(iii) of the
Limitations Act
makes clear that Ms. Rooplal only discovers
her claim against TTC Insurance when she knows or ought to know that
TTC
Insurance
did or omitted to do something that caused her loss or damage. Only
then is her claim discovered such that the two-year limitation period under
s. 4 of the
Limitations Act
begins to run. The requirements of s.
5(1)(a) are conjunctive:
Longo
at para. 41. In this case, there is no
evidence Ms. Rooplal has made any demand for indemnification.
[78]
I
note that
Kosanovic
does not assist TTC Insurance as that case did not
concern limitation periods and the quoted language was only a shorthand summary
of the s. 265 scheme. Nor does
Galego
address the
Limitations Act
.
Bhatt
and
Wilkinson
do not address the s. 5 criteria for
discovery of a claim.
Does public policy warrant the maintenance of the
July
framework?
[79]
In
resisting this conclusion, TTC Insurance invites this court to depart from the wording
of the
Limitations Act
and suggests that [p]ublic policy surrounding
the use of limitation period favours using the tortfeasors act or omission
as the relevant benchmark for the discover of a claim under s. 265.
[80]
I
do not accept this submission.
[81]
The
modern principle of statutory interpretation provides that the words of an Act
are to be read in their entire context and in their grammatical and ordinary
sense harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament:
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998] 1
S.C.R. 27, at para. 21, quoting Elmer A. Driedger,
Construction of Statutes
,
2nd ed. (Toronto: Butterworths, 1983), at p. 87.
[82]
The
ordinary sense of s. 5(1) of the
Limitations Act
is clear. A claim is
discovered when plaintiff knows, or ought to have known, that the act or
omission causing the plaintiffs loss was that of the person
against whom
the claim is made
(emphasis added). Ms. Rooplals claim is not against the
unidentified tortfeasor, it is against TTC Insurance.
[83]
The
Limitations Act
was intended to provide a comprehensive limitations
scheme that applies to all court proceedings [u]nless this Act provides
otherwise: s. 4. There is no evidence that the legislature intended to permit
exceptions to the s. 5 discovery rules other than those identified by the Act. Indeed,
some provisions in the
Insurance Act
are specifically excluded from
the
Limitations Act
s ambit: see
Limitations Act
, s. 19(1)
and schedule. There is no such exclusion for claims under the contractual
provisions mandated by s. 265.
[84]
This
court is not free to depart from the
Limitations Act
simply because it
may reflect poor policy. There is however a presumption against absurdity.
[85]
TTC
Insurance claims the requirements of s. 5 of the
Limitations Act
may,
at first glance, appear to create a seemingly undesirable outcome: The
plaintiff could control the limitation period by delaying her demand to
indemnify. Further, as noted above, the insurer need only indemnify the
plaintiff if no other party is even 1% liable. TTC Insurance asserts that, if
the limitation period on the plaintiffs claim against the s. 265 insurer does
not begin to run until the plaintiff demands indemnification, the plaintiff can
delay bringing the claim against the insurer until after the tort action
against other potentially liable parties has been determined. This could result
in a multiplicity of proceedings, as TTC Insurance is permitted to defend
liability on the request for indemnification under Regulation 676: Schedule, s.
4(1)(c).
[86]
However,
the consequences of the limitation analysis must be considered harmoniously
with the scheme of the
Insurance Act
as a whole. In this case, the requirements
set out in s. 8(1) of the Schedule contained in Regulation 676 provide that:
No person is entitled to bring an action to recover an amount
provided for under the contract, as required by subsection 265 (1) of the [
Insurance
Act
] unless the requirements of this Schedule with respect to the claim
have been complied with.
[87]
Whether
or not a party chooses to commence a claim against the insurer, insurers must
be provided with knowledge of the underlying accident, as Regulation 676 and
the Schedule are terms and conditions of the contract of insurance. Among other
things, the Schedule requires a potential claimant for unidentified motorist
coverage to provide the purported s. 265 insurer with: (a) a statement setting
out the details of the accident including whether it was caused by an
unidentified motorist and what damages were suffered within 30 days or as soon
as practicable (s. 3); (b) written notice of the claim against the insurer and
the circumstances thereof within 30 days or as soon as practicable (s. 6).
[88]
Read
as a whole, therefore, the statutory scheme provides some safeguards against
the threats identified by TTC Insurance. As Hoegg J.A. for the Newfoundland and
Labrador Court of Appeal observed in
Tucker v. Unknown Person
, 2015
NLCA 21, 365 Nfld. & P.E.I.R. 307, leave to appeal refused, [2015] S.C.C.A.
No. 250, at paras. 22-23, an insurer faced with a potential unidentified
motorist claim may begin the limitation period by refusing to indemnify a s.
265 claimant after receipt of timely notice, as required by the regulation. In
this manner, the insurer retains control of the limitation period.
[89]
Ms.
Rooplal served her motion to add TTC Insurance as a defendant to the action on
May 4, 2017, five years after the accident and three years after she commenced
her claim against the TTC, the TTC driver, and her own insurer.
[90]
Although
the two-year limitation period for her claim against TTC Insurance has not
expired, it is not clear from the record whether Ms. Rooplal fulfilled the
notice obligations set out in the Schedule contained in Regulation 676 and Ms. Rooplals
compliance with those requirements is not before this court.
SUMMARY AND DISPOSITION
[91]
Ms.
Rooplal pleads that she is an insured under the TTC Insurance policy for
unidentified motorist coverage pursuant to s. 265 of the
Insurance Act
.
[92]
Section
5 of the
Limitations Act
determines when a claim is discovered. It
provides that a claim is discovered when the plaintiff knows or ought to know:
(a)
she has suffered a loss or injury,
(b)
by an act or omission that is,
(c)
that of the person against
whom the claim is made, and
(d)
it is appropriate to commence a
legal proceeding.
[93]
In
her tort claim against the unidentified motorist John Doe, the unidentified
owner John Doe, the TTC, and the TTC driver, Ms. Rooplal pleaded that the
incident was caused or contributed to by the negligence of the owner and/or operator
of the [unidentified] Doe vehicle.
[94]
If
either the TTC or the TTC bus driver is in any way contributorily negligent for
even 1% of her losses, Ms. Rooplal has no right to declaratory relief or
indemnification from TTC Insurance.
[95]
Ms.
Rooplal discovers her claim against TTC Insurance when she knows or ought to
know that
TTC Insurance
did or omitted to do something that caused her
loss or damage. The act or omission is the failure to indemnify her for the
damage caused by the unidentified driver as required by the policy of insurance.
[96]
The
public policy concerns expressed by TTC Insurance are addressed in the Schedule
contained in Regulation 676 which requires an insured who commences a legal
action for damages against any person owning or operating an automobile
involved in the accident provide a copy of the writ of summons to the insurer
and written notice of the claim within thirty days after the accident or as
soon as is practicable after that date: Regulation 676, Schedule, ss. 5 and 6. The
insurer is therefore apprised of the claim against unidentified motorist and
can take appropriate steps to protect its interests in the proceeding.
[97]
For
the above reasons, the limitation period has not expired and, as a result, I
would dismiss the appeal.
[98]
In
accordance with the agreement between the parties to this appeal, costs to the
respondent Ms. Rooplal in the amount of $15,000 for the appeal on the merits in
addition to $800 for the leave to appeal.
Released: May 28, 2021 P.R.
J.A. Thorburn J.A.
I agree. Paul Rouleau
J.A.
I agree. M.L. Benotto
J.A.
CORRECTED DECISION
Corrections made June 4, 2021: The title of
proceedings was amended to include Novex Insurance Company as a respondent.
Paragraph 9 was amended to indicate that Novex made no submissions on the
appeal and para. 98 was amended to clarify that costs are payable only to the
respondent Bibi Saffora Rooplal.
Correction made July 5, 2021: Paragraph 98 was
corrected to award costs of $800 to the respondent Ms. Rooplal for the leave to
appeal, in accordance with the agreement between the parties.
Correction made October 28, 2021: Paragraph 56 was
amended to move the following sentence from the quotation to the paragraph: All
of the necessary elements to establish a cause of action were established and
as such, the action against the insurer, brought more than two years after the
accident, was time-barred.
[1]
Prior to the enactment of Regulation 676 in 1990, the relevant regulation was R.R.O.
1980, Reg. 535.
[2]
Section 275 and the regulations permit the payor insurer to recover from the
insurer of the other vehicle involved in the collision where that other vehicle
is a heavy commercial vehicle at fault.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Ross v. Canada Trust Company, 2021
ONCA 161
DATE: 20210316
DOCKET: C67677
van Rensburg, Hourigan and Brown
JJ.A.
BETWEEN
John Gordon Ross
Responding
Party
(Appellant/Respondent by cross-appeal)
and
The Canada Trust Company,
Executor and Trustee of the Estate of Sarah McMahon Grafton, deceased,
Stewart Graeme Ross, James Grafton Ross and James Henry Ross
Responding Parties
(Respondents/
Appellants
by cross-appeal
)
Lisa S. Toner, for the appellant/respondent
by cross-appeal
Mark A. Radulescu, for the
respondents/appellants by cross-appeal
Jeramie Gallichan, for the respondent,
The Canada Trust Company, Executor and Trustee of the Estate of Sarah McMahon
Grafton, deceased
Heard: November 18, 2020 by video conference
On appeal from the judgment of Justice David
A. Broad of the Superior Court of Justice, dated October 10, 2019.
BROWN
J.A.:
I. OVERVIEW
[1]
The issue on this appeal and cross-appeal is the
interpretation of the provisions in the May 14, 1968 will of the late Sarah
McMahon Grafton (the Will) regarding the disposition of her cottage property
(the Cottage Property), which the estate trustee, The Canada Trust Company
(Canada Trust), has sold. Sarahs four surviving grandchildren, the ultimate
beneficiaries under her Will of the proceeds of the Cottage Propertys
disposition, disagree over how the Will directs the distribution of the
proceeds. Canada Trust moved before the court for an interpretation of the Will.
[2]
The motion judge interpreted the Will as
directing the proceeds be distributed equally amongst the four grandchildren of
Sarah McMahon Grafton (Sarah) alive at the end of the life interests in the
Cottage Property created by the Will: namely, the appellant, John Gordon Ross
(Gordon), and his brothers, the respondents Stewart Graeme Ross (Graeme),
James Grafton Ross (Grafton), and James Henry Ross (James).
[3]
Gordon appeals, submitting that the motion judge
erred in his interpretation of the Will. Gordon argues that the proper
interpretation of the Will requires the net proceeds from the Cottage Property be
divided into five equal shares, with distribution of two of the five shares to
him. As a result, Gordon would receive 40% of the net sale proceeds, instead of
the 25% which would result from the motion judges decision, subject to the
result in other litigation between Gordon and his brothers.
[1]
[4]
The Respondents cross-appeal. While they agree
with the motion judges judgment, they disagree with how he reasoned to his
conclusion.
[5]
For the reasons set out below, I would dismiss
the appeal and the cross-appeal.
II. THE FACTS
[6]
The material facts are not in dispute.
The family
[7]
Sarah was an astute and successful businesswoman
who first ran a chain of mens apparel stores and then a real estate business.
[8]
Sarah had two daughters: Sarah Margaret Ross (Margaret)
and Mary Elizabeth Grafton (Mary).
[9]
Margaret married and had 5 children: Sarah Mary
Jane Ross (Jane); Gordon; Graeme; Grafton; and James.
[10]
Mary never married and had no children.
[11]
Sarah died in 1971. At the time of her death,
all of Sarahs grandchildren were alive.
[12]
In 1992, Jane unexpectedly died, intestate and
without a spouse or issue. As a result, Janes mother, Margaret, and her father
were the beneficiaries of Janes estate. Margarets husband died in 1997. Under
Margarets will, her entire estate, including any residue in Janes estate,
passed to Gordon. However, the Respondents are challenging the validity of that
will.
The Cottage Property
[13]
Sarahs Cottage Property on Lake Rosseau was the
familys central gathering place. It was a focal point of Sarahs life and she
strove to make it a family compound. All of her grandchildren spent their
summer vacations at the Cottage Property.
[14]
Sarah died in 1971. Under her Will,
[2]
her two daughters, Mary and Margaret, were given life interests in
the Cottage Property.
[15]
Mary died in 2002, unmarried and without issue.
[16]
Margaret continued to use the Cottage Property
following her sisters death. Margaret was unable to meet her responsibility to
pay the Cottage Propertys expenses. On April 19, 2013, Canada Trust, as estate
trustee, obtained an order permitting the sale of the Cottage Property. The
Cottage Property was sold in August 2013. Net proceeds of approximately $1.66
million were realized, from which Canada Trust paid certain Cottage Property
expenses. The balance was held by Canada Trust in a Cottage Trust account.
[17]
Margaret died on December 15, 2015, and her life
interest in the Cottage Property ended. As of the date of Margarets death,
approximately $1.138 million remained in the Cottage Trust for distribution.
[18]
Canada Trust proposed to distribute the net sale
proceeds equally to the four grandchildren of Sarah then alive. Gordon
objected. In 2016, Canada Trust made interim distributions to the four
surviving grandchildren of $200,000 each.
[19]
At the time Canada Trust moved before the court
for an interpretation of the Will and directions, roughly $340,000 remained in
the Cottage Trust.
The Will
[20]
Clause 3(C) of the Will deals with Sarahs
Cottage Property. It is a lengthy clause. For ease of reference, I have taken
the liberty of dividing the relevant parts of clause 3(C) into separate
paragraphs, followed by the Wills general residue provision, clause 3(I)(iii):
Clause 3(C):
To hold my [Cottage Property] [ ... ] during
the lifetime of my daughter, MARY ELIZABETH GRAFTON, and to permit my said daughter,
MARY ELIZABETH GRAFTON, to use and enjoy the cottage [ ... ] and further
providing that my said daughter, SARAH MARGARET ROSS, may use and enjoy the
cottage [ ... ]
Upon the death of the
survivor of my said daughters
, MARY ELIZABETH GRAFTON
and SARAH MARGARET ROSS,
t
o
convey and transfer the said property
to my grandchildren as joint tenants
and not as tenants in common
provided
however
failing unanimous agreement
among my grandchildren to accept transfer of the property in their
names as joint tenants and not as tenants in common
my Trustees are directed to sell the property
, but not to any of my grandchildren but
to strangers
and to
hold the residue of the
sale of the said property in trust for my
said grandchildren
in equal
shares
to be distributed
to them
in accordance
with the provision of the residue to which my said grandchildren are entitled
under Clause 3(I)(iii) of this Will.
I
further empower my Trustees
should
they in their absolute discretion deem advisable in the light of future events
or circumstances not at this time determinable
to sell such real property and to invest the proceeds
and the income derived therefrom is to be paid equally to my
daughters, MARY ELIZABETH GRAFTON and SARAH MARGARET ROSS, during their lifetime
or all to the survivor
and on the
death of the survivor of my said daughters to hold the residue of the sale of
such property in trust for my
said
grandchildren
in
equal shares to be distributed to them in accordance with the provision of the
residue to which my said grandchildren are entitled under Clause 3(i)(iii) of
this my Will
. [Emphasis added.]
Clause 3(I):
To divide the rest and residue of my Estate
into six equal parts to be dealt with as follows:
(i) To pay or transfer three of such
equal parts to my daughter, the said MARY ELIZABETH GRAFTON
(ii) To pay two of such equal parts to my
daughter, the said SARAH MARGARET ROSS
(iii) To divide one of such equal parts among
the issue of my daughter, the said SARAH MARGARET ROSS, living at my death, in
equal shares per stirpes
[21]
No evidence was led on the motion from the file
of the solicitor who drafted the Will.
III. THE REASONS OF THE MOTION JUDGE
[22]
Before the motion judge, the Respondents argued
that the Will required the net proceeds of the sale of the Cottage Property to
be divided amongst those grandchildren alive at the time of the sale of the
Cottage Property. Since Jane had died prior to that event, the proceeds should
be divided equally amongst the four surviving grandchildren.
[23]
In opposing his brothers position, Gordon
argued that the proceeds should be distributed in accordance with clause
3(I)(iii) of the Will, which requires the residue of Sarahs estate to be
divided in a way that would include the issue of Margaret living at Sarahs
death per stirpes. That would include Jane and the beneficiaries of her
estate, arguably Gordon. As a result, the net proceeds should be divided into
five equal shares and then distributed, with two of the shares going to Gordon
as the beneficiary of Margarets estate, which would include any interest of
Jane in her grandmothers estate.
[24]
The motion judge held that the Will, interpreted
with the assistance of the armchair rule, disclosed that Sarah intended the
net sale proceeds of the Cottage Property to benefit only those grandchildren
alive at the end of the life interests of Sarahs daughters, Mary and Margaret.
[25]
I propose to summarize the motion judges
reasons in some detail as I intend to refer back to the summary when examining
the grounds of appeal. In reaching his conclusion, the motion judge reasoned as
follows:
(i)
Clause 3(C) of the Will provided that upon the
death of the survivor of Sarahs daughters, the Trustees were to convey the
Cottage Property to Sarahs grandchildren as joint tenants and not as tenants
in common. Such a conveyance would only occur if the grandchildren unanimously
agreed to accept the transfer in their names. The motion judge reasoned that
this arrangement evidenced an intention that only Sarahs grandchildren alive
at the end of the daughters life interests could be the recipients of the
conveyance. Consequently, the estate of a grandchild who had died prior to the
end of the life interests could not hold an interest in the Cottage Property as
a joint tenant: at para. 29;
(ii)
Clause 3(C) stipulated that if the grandchildren
did not agree to accept transfer of the Cottage Property as joint tenants, the
Cottage Property was to be sold to strangers, with the residue of the sale
of the said property to be held in trust for my said grandchildren in equal
shares. The said grandchildren were those alive at the end of the life
interests: at para. 33;
(iii)
Clause 3(C) also empowered the Trustees in their
absolute discretion to sell the Cottage Property in circumstances other than
the death of the survivor of Mary and Margaret. In that case, the Trustees were
to invest the proceeds in trust for her daughters during their lifetimes and,
upon the death of the survivor of them, hold the residue of the sale of such
property on the same trust as the residue resulting from a sale to a stranger
after a failure of the grandchildren to agree to take title as joint tenants,
namely for my said grandchildren. In the motion judges view, the use of the
word said in reference to my grandchildren must be taken to refer to an
earlier mention of my grandchildren. The use of the words my grandchildren
immediately preceding the use of the phrase my said grandchildren was in
reference to the prohibition of any conveyance to any of my grandchildren in
the event that there was no unanimous agreement among my grandchildren to
accept a transfer in their names as joint tenants. Accordingly, this referred
only to those grandchildren alive at the end of the life interests: paras. 32
and 33;
(iv)
Most of the language in clause 3(C) evidenced
that Sarah intended the beneficiaries of the trust of the residue of the sale
of the Cottage Property following either a sale to a stranger or a sale by the
Trustees in their discretion to be the grandchildren who survived the end of
the life interests, which would not include Jane: at para. 34;
(v)
However, the motion judge found that the two
references in clause 3(C) to clause 3(I)(iii) created an interpretative
difficulty. One reference was located at the end of that part of clause 3(C)
dealing with a sale to a stranger in the event the grandchildren refused to
take as joint tenants;
[3]
similar language appeared at the end of clause 3(C) that dealt with a sale
prior to the death of the last daughter;
[4]
(vi)
Since clause 3(I)(iii) directed a division
among the issue of Margaret living at my [Sarahs] death, this would
include Jane, who was alive when Sarah died but passed away prior to the end of
the life interests: at paras. 35 and 36;
(vii)
A conflict therefore arose between the directions in clauses 3(C)
and 3(I)(iii) in a situation where one of Sarahs grandchildren had died after
her but before the last to die of the life tenants. Consequently, the motion
judge was unable to ascertain Sarahs intention solely from the plain meaning
of the language used in the Will: at paras. 28 and 37.
[26]
At this point, the motion judge applied the armchair
rule, which calls on the court to put itself in the position of the testator
when she made her Will, armed with the same knowledge that she had, based upon
the evidence available: at para. 40.
[27]
As formulated by the motion judge, the proper
question to ask was whether at the time Sarah made her Will, she intended to
permit the beneficiaries of one or more deceased grandchildren, whoever they
might be, including a spouse, to take an interest in the Cottage Property or
its sale proceeds: at para. 42. Based on his review of the circumstances
surrounding the creation of the Will, he concluded Sarah had not: at para. 46.
[28]
The motion judge directed that Canada Trust
distribute the residue of the Cottage Trust amongst the four surviving grandchildren
the appellant and the Respondents in equal shares: at para. 47.
IV. THE ISSUES
[29]
The appeal and cross-appeal raise two issues:
(i)
Did the motion judge err in resorting to the armchair rule in
interpreting clauses 3(C) and 3(I)(iii) of the Will?
(ii)
Did the motion judge err by failing to apply the presumption of
early vesting to the grandchildrens interests in the Cottage Property?
V. STANDARD OF REVIEW
[30]
Relying on the 2004 decision of this court in
Noik
v. Noik
(2004), 186 O.A.C. 104 (C.A.), Gordon submits that correctness is
the proper standard of review for the interpretation of the language in a will.
In
Noik
, this court stated at para. 5:
I begin with several points of agreement
between the parties. First they both say that the proper standard of review in
this court is that of correctness. I agree since the central issue is the
interpretation of the wording of the contested provision in the will.
[31]
The Respondents submit that the errors Gordon
alleges the motion judge made involve questions of mixed fact and law, subject
to review for palpable and overriding error.
[32]
In
Alberta Giftwares Ltd. v. R
., [1974]
S.C.R. 584, the Supreme Court stated that the legal effect to be given to the
language employed in a will is a question of law. However, the court did so in
the context of a more general statement that in construing a will, deed,
contract, prospectus or other commercial document, the legal effect to be given
to the language employed, is a question of law
: at p. 588. In
Sattva
Capital Corp. v. Creston Moly Corp.,
2014 SCC 53, [2014] 2 S.C.R. 633, the
Supreme Court changed the standard of review for written contracts, adopting a deferential
standard for the interpretation of the language in a written contract: at
paras. 50-53.
[33]
Sattva
was
decided a decade after
Noik.
Sattva
s deferential standard of
review has been applied to the interpretation of a will by this court in
Trezzi
v. Trezzi
, 2019 ONCA 978, 150 O.R. (3d) 663, at para. 15, the Court of
Appeal of Manitoba in
Zindler v. The Salvation Army et al.
, 2015 MBCA
33, 319 Man. R. (2d) 16, at para. 10, and the Court of Appeal of Alberta in
Hicklin
Estate v. Hicklin
, 2019 ABCA 136, 85 Alta. L.R. (6th) 1, at paras. 10 and
94-95. As this court stated in
Trezzi
, at para. 15:
Just as the interpretation of a contract in
light of its surrounding circumstances is now subject to review (absent an
extricable error of law) only for palpable and overriding error, in my view,
the same is true for the interpretation of a will in light of its surrounding
circumstances.
[34]
Accordingly, the decision of this court in
Trezzi
has superseded that in
Noik
, in light of the decision of the Supreme
Court in
Sattva
.
VI. FIRST ISSUE: THE APPLICATION OF THE
ARMCHAIR RULE
The issue stated
[35]
Both Gordon and the Respondents submit that the
motion judge erred in finding that the directions in clauses 3(C) and 3(I)(iii)
of the Will were irreconcilable and there was a need to resort to the armchair
rule. In their view, Sarahs intention can be discerned from her Wills plain
language, although they advance diametrically opposed interpretations of that
language.
The governing principles
[36]
When interpreting a will, a courts task can be
stated simply: it is to
determine the testators actual
or subjective intention as to how she intended to dispose of her property
:
Trezzi
,
at para. 13.
[37]
The basic approach to the construction of a will
was described by this court in
Burke (Re),
[1960] O.R. 26 (C.A.), at
p. 30:
Each Judge must endeavour to place himself in
the position of the testator at the time when the last will and testament was
made. He should concentrate his thoughts on the circumstances which then
existed and which might reasonably be expected to influence the testator in the
disposition of his property. He must give due weight to those circumstances in
so far as they bear on the intention of the testator. He should then study the
whole contents of the will and, after full consideration of all the provisions
and language used therein, try to find what intention was in the mind of the
testator. When an opinion has been formed as to that intention, the Court
should strive to give effect to it and should do so unless there is some rule
or principle of law that prohibits it from doing so.
[38]
While a key element of
Burke
s
approach to will interpretation is, of
course, studying the documents contents not only the provisions in dispute
but the entire will its approach also includes the use of what is known as
the armchair rule. Ian Hull and Suzana Popovic-Montag,
Feeneys Canadian
Law of Wills
, 4th ed. (Toronto: LexisNexis, 2020) at §§10.45 and 10.46,
describes the armchair rule as follows:
In the first instance, the court may not be
convinced that the testators intention can be discerned from the will itself.
In such a situation, since the testator must be taken to have used the language
of the will in view of the surrounding circumstances known to him or her when
he or she made his or her will, evidence of such circumstances is necessarily
admissible, at least insofar as it corresponds to the facts and circumstances
referred to in the will. It seems obvious that a court might conclude that
admissible evidence of surrounding circumstances is not helpful in determining
meaning.
The court puts itself in the position of the
testator at the point when he or she made his or her will, and, from that
vantage point, reads the will, and construes it, in the light of the
surrounding facts and circumstances. This approach is commonly referred to as
the armchair rule.
[39]
Sitting in the place of the testator, the court
assumes the same knowledge the testator had, at the time of making the will, in
regard to the nature and extent of her assets, the makeup of her family, and
her relationship to its members:
Stuart v. Stuart
, 2019 ONSC 4328, 49
E.T.R. (4th) 306, at para.
9;
Dobson Estate v.
Dobson
(2000)
, 32 E.T.R.
(2d) 62 (Ont. S.C.), at para.
8;
Shamas (Re)
,
[1967] 2 O.R. 275 (C.A.), at p. 279, citing
Perrin v. Morgan
, [1943]
A.C. 399 (U.K. H.L.), at pp. 420-21.
[40]
In the past, courts usually have resorted to the
armchair rule where the testators intention cannot be ascertained from the
plain meaning of the wills language:
Dice v. Dice Estate
, 2012 ONCA
468, 111 O.R. (3d) 407, at para. 37.
[41]
More recently, courts are treating the armchair
rule as an over-arching framework within which a judge applies the various
tools for will construction at his or her disposal. As put by the Court of
Appeal of Manitoba in
Zindler
, at para. 14:
Feeneys
[
Canadian
Law of Wills
] concludes that the most recent trend in Canadian cases
seems to indicate that evidence of surrounding circumstances should be taken
into account in all cases before a court reaches any final determination of the
meaning of words (at para. 10.54). This is true even if the words,
themselves, do not appear to be ambiguous or unclear
Analysis
[42]
Both parties submit that the motion judge erred
by resorting to the armchair rule, although they propose conflicting ways to
rectify that error. I am not persuaded by their submissions.
[43]
First, the interpretative methodology applied by
the motion judge was sound. He tried to discern Sarahs intention from the
plain meaning of the Wills language. Finding himself unable to do so, he then
took a step back to consider the bigger picture of the surrounding
circumstances, applying the armchair rule. That methodology tracked the
approach described by this court in
Dice
, at paras. 36-38.
[44]
Second, I am not persuaded by either partys submission
that the motion judge erred in perceiving an inconsistency, or
irreconcilability, between clauses 3(C) and 3(I)(iii).
[45]
Gordon submits that no inconsistency exists
because clause 3(C) contemplates two different scenarios. In the first, the
Cottage Property remains unsold until Sarahs surviving daughter dies; in the
second, the trustees sell the Cottage Property before the surviving daughter
dies. In the first scenario, the testators use of the words said
grandchildren refers to grandchildren alive at the end of the daughters life
interests; in the second, it refers to any grandchildren alive at the
testators death.
[46]
For their part, the Respondents argue that
Sarahs specific direction to convey the Cottage Property to her grandchildren
as joint tenants precludes the possibility that one of her grandchildrens
estates could hold an interest in the Cottage Property under either scenario
advanced by Gordon.
[47]
I do not agree with either submission on the
plain meaning of clause 3(C)s language. As to Gordons submission, I agree
with the motion judges reasoning, summarized above in paras. 25(i)-(iv), that
apart from the two references in clause 3(C) to the general residue clause
3(I)(iii), the language used in the rest of the clause shows that Sarah
intended the beneficiaries of the trust of the Cottage Propertys sale proceeds
to be her grandchildren alive at the end of her daughters life interests. The
testators first reference to my grandchildren in clause 3(C) is found in the
direction to transfer the Cottage Property to my grandchildren as joint
tenants. That direction is premised on a conveyance only to the grandchildren
alive at the end of the daughters life interests, a point the motion judge
noted that Gordon conceded: at para. 30. If those grandchildren will not all
take as joint tenants, then the trustees are to sell the Cottage Property to a
stranger, not to any of my grandchildren, which means those alive to take a
conveyance as joint tenants.
[48]
The four subsequent references to grandchildren
in clause 3(C) are to my said grandchildren: two are used in the scenario
where the trustees must deal with the proceeds of a sale to a stranger
following the death of the last daughter; the other two are used in the
scenario where the trustees sell the Cottage Property before the death of the
last daughter. All four of the references to my said grandchildren plainly refer
back to the initial reference to my grandchildren as joint tenants, namely those
alive at the end of the daughters life interests.
[49]
As to the Respondents submission, it fails to
deal with the Wills references in clause 3(C) to the distribution directions contained
in clause 3(I)(iii), the general residue clause. Although Sarah gave discrete
directions to her trustees in clause 3(C) about how to deal with the Cottage
Property, as distinct from the rest of her estate, she resorted to her Wills
general residue clause to deal with the proceeds from any sale of the Cottage
Property. The general residue clause directed the distribution of part of the
residue among the issue of my daughter, the said SARAH MARGARET ROSS, living
at my death. I agree with the motion judge that incorporating the distribution
directions contained in the general residue clause, clause 3(I)(iii), within
the specific provisions of clause 3(C) dealing with the Cottage Property, created
a patent inconsistency.
[50]
Given that inconsistency, the motion judge
resorted to the armchair rule, stating at paras. 43-46:
The affidavit evidence filed by Gordon
indicated that it was the Testator's wish that the Cottage Property stay in the
family and she was emphatic that her grandchildren, and not their spouses,
maintain control of it.
It is evident from a review of para. 3(C) of
the Will that the Testator, by directing that her grandchildren ultimately
receive the Cottage Property as joint tenants and not as tenants in common,
sought to ensure, to the extent possible, that it remain in her immediate family.
The Testators desire to keep the Cottage
Property in the family would be potentially frustrated if the estate of a
deceased grandchild could receive an interest in it.
There is nothing in the available evidence, and
nothing to be discerned from the Will as drafted, that would support a finding
that the Testator intended the estate of a deceased grandchild to receive an
interest in the Cottage Property or in its proceeds of sale. To the contrary, I
find from the available evidence and a review of the Will as drafted, that the
Testator intended to so benefit only those grandchildren alive at the end of
the life interests.
[51]
I see nothing in that reasoning that would
justify appellate intervention. The motion judges conclusion does not reveal
any palpable and overriding error and is well supported by the evidence.
[52]
Finally, the Respondents have advanced by way of
a cross-appeal their complaint that the motion judge failed to rely solely on
the plain meaning of the will. They do not cross-appeal the Judgment; they
agree with it. Instead, they purport to cross-appeal from the motion judges
reasons, contending that he erred in ruling that Sarahs intent could not be
determined having regard to the plain and ordinary meaning of the words in the
Will. They seek a judgment that the Cottage Trust proceeds be divided into four
equal shares based on the Testators intent as determined from the plain and
ordinary meaning of the words in the Will.
[53]
The Respondents cross-appeal reflects a
misunderstanding of the nature of an appeal. As s. 6(1)(b) of the
Courts of
Justice Act
, R.S.O. 1990, c. C.43, states, an appeal lies to this court
from a final order of a judge of the Superior Court of Justice, save for orders
from which appeals lie to the Divisional Court. The authorities are clear: an
appeal lies from the order or judgment, not the reasons for them:
R. v.
Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 4. This important
distinction is explained succinctly in John Sopinka, Mark Gelowitz & W.
David Rankin,
Sopinka and Gelowitz on the Conduct of an Appeal
,
4th ed. (Toronto: LexisNexis, 2018), at
§
1.11:
It is a fundamental premise in the law of
appellate review that an appeal is taken against the formal judgment or order,
as issued and entered in the court appealed from, and not against the reasons
expressed by the court for granting the judgment or order. Although the
appellate court will frequently discover in the reasons for judgment errors of
law that ultimately ground the reversal of the judgment or order, it is the
correctness of the judgment or order that is in issue in the appeal, and not
the correctness of the reasons.
[54]
Accordingly, the Respondents cross-appeal is
misconceived and without merit. It was open to the Respondents to take issue
with the reasoning of the motion judge in their factum, while making the point
that the alleged error in reasoning did not taint the motion judges ultimate
conclusion.
[55]
For these reasons, I would not accede to this
ground of appeal.
VII. SECOND ISSUE: THE PRESUMPTION OF
EARLY VESTING
The issue stated
[56]
In his factum, Gordon raises an issue not set
out in his notice of appeal. He contends that the motion judge failed to apply
the presumption of early vesting to determine when the grandchildrens
interests in the cottage vested. According to Gordon, had he done so, the
motion judge should have concluded that the Cottage Property vested in the
grandchildren alive at Sarahs death because when a gift made in a will is
deferred due to a life interest given to another person, vesting takes place at
the death of the testator.
Analysis
[57]
The law presumes that a testator intends for
interests to vest at his or her death or at the earliest moment thereafter as
is consonant with the terms of the will: Albert H. Oosterhoff et al.,
Oosterhoff
on Wills,
8th ed.
(Toronto:
Thomson Reuters, 2016), at §17.3.2. An instance of the application of this
presumption, upon which Gordon relies, is where there is a direction to pay the
income of a fund to one person during his lifetime and to divide the capital
among certain other named and ascertained persons on his death, even though there
are no direct words of gift either of the life interest or of the capital. In
those circumstances the rule is that vesting of the capital takes place in the
remaindermen at the time of the testators death
: Browne v. Moody
,
[1936] O.R. 422 (U.K. P.C.), at p. 427.
[58]
However, the presumption of early vesting is
just that a presumption. Like any presumption, it may be displaced by a
finding regarding the actual intention of the testator as reflected in her
will. As put in
Feeneys Canadian Law of Wills
, at §§17.7 and 17.8:
The courts are inclined to hold a gift as
vested rather than contingent wherever the particular words used, and the will
as a whole, admit of a construction that will result, as is said, in early
vesting. That inclination has always been said to be particularly strong where
the property is land. It is accurate to refer to the tendency of courts to call
gifts vested as a presumption to that effect, so it can be said that gifts
are to be held to be vested unless there is a clear condition precedent.
Accordingly, a gift, whether a devise or a legacy, that makes no reference to
the time of vesting should always be held to take effect at the testators
death, unless that date of vesting would disturb provisions already made in the
will, or unless the will, as a whole, evinces a clear intention that the gift
operate contingently and at a later date.
The recent trend of jurisprudence has been to
strive to establish and implement the actual intentions of the will-maker.
Consequently, the presumption in favour of early vesting as well as any other
rules of construction may be applied only if the courts have some doubt about
the will-makers intention.
[59]
The reasons of the motion judge disclose that he
understood Gordon was arguing that Sarahs gift of the Cottage Property vested
in all her grandchildren, including Jane, who were alive at Sarahs death,
whereas the Respondents were contending that the words used by Sarah in her
Will indicated an intent to postpone the vesting of the grandchildrens
interest until the death of the last life tenant: at paras. 19 and 26. In the
result, after applying the armchair rule, the motion judge found that Sarah
did not intend the estate of any grandchild who died after her and prior to the
end of the daughters life interests to receive an interest in the Cottage
Property or the proceeds of its sale. Central to that conclusion was the motion
judges finding that Sarah desired to keep the Cottage Property in the family,
a desire that potentially would be frustrated if the estate of a deceased
grandchild could receive an interest in it: at para. 45. That finding rested
heavily on the language of clause 3(C) that the grandchildren receive the
Cottage Property as joint tenants, not tenants in common: at para. 44. Given
the motion judges certainty about Sarahs intention, there was no need for the
motion judge to resort to the presumption of early vesting.
[60]
For these reasons, I am not persuaded by this
ground of appeal.
VIII. DISPOSITION
[61]
For the reasons set out above, I would dismiss
the appeal and cross-appeal.
[62]
In accordance with the
agreement of the parties, Gordon shall pay the Respondents their costs of the
appeal fixed in the amount of $15,000, inclusive of disbursements and
applicable taxes.
Released: March 16, 2021 K.M.v.R.
David Brown J.A.
I agree. K. van Rensburg J.A.
I agree. C.W. Hourigan J.A.
[1]
Gordon and his brothers are engaged in litigation regarding their
mothers will.
[2]
Sarah made three codicils to the Will: June 21, 1968; February 24,
1970; and September 14, 1970. Their provisions do not play a role in this case.
[3]
[T]o
hold the residue of the sale of the said property in trust for my said
grandchildren in equal shares to be distributed to them in accordance with the
provision of the residue to which my said grandchildren are entitled under
Clause 3(I)(iii) of this Will.
[4]
[T]o
hold the residue of the sale of such property in trust for my said grandchildren
in equal shares to be distributed to them in accordance with the provision of
the residue to which my said grandchildren are entitled under Clause 3(i)(iii)
of this my Will.
|
COURT OF APPEAL
FOR ONTARIO
CITATION: Royal Bank of
Canada v. 1643937 Ontario Inc., 2021 ONCA 98
DATE: 20210219
DOCKET: C67540
Doherty, Roberts
and Harvison Young JJ.A.
BETWEEN
Royal Bank of Canada
Plaintiff (Respondent)
and
1643937 Ontario Inc.
,
Lorraine
MacDonald
,
Shawn McHale,
Patrick McHale
,
and
Beverly McHale
Defendants (
Appellants
)
Jonathan C. Lisus and
Zain Naqi, for the appellants
J. Ross Macfarlane,
for the respondent
Heard: November
25, 2020 by video conference
On appeal from the judgment of Justice Heather J. Williams of
the Superior Court of Justice, dated September 16, 2019, with reasons reported
at 2019 ONSC 5145, and from the costs order, dated January 2, 2020, with
reasons reported at 2020 ONSC 44.
Roberts J.A.:
A.
OVERVIEW
[1]
The appellants, Lorraine MacDonald, Patrick McHale,
and Beverly McHale, appeal from the judgment for the payment of monies owing
under the personal guarantees they provided to the respondent, the Royal Bank
of Canada, following their competing motions for summary judgment.
[2]
At the commencement of oral submissions, the
appellants abandoned their appeal from the motion judges dismissal of their counterclaims
and further narrowed the issues on appeal.
[3]
The issue put forward by the appellants on this
appeal was: did the motion judge err in granting the respondents motion for summary
judgment because there was no genuine issue requiring a trial about the scope
of the appellants liability to the respondent under their personal guarantees?
The appellants submit that there was a genuine issue requiring a trial, as the
respondent misrepresented to them that their liability under their personal guarantees
was joint and several with a collective exposure limited to $600,000.
[4]
For the reasons that follow, I agree that the
motion judge erred and would remit for trial the narrow issue of determining the
amount that each appellant owes to the respondent under their respective personal
guarantees.
B.
Background
(1)
Facts
[5]
The appellants provided personal guarantees as
security for several million dollars in loan advances made by the respondent to
Ottawa Valley Glass Enterprises Ltd., later named OVG Inc. (OVG), a family
business in which the appellants had been directors and shareholders. Ms.
MacDonald (whose husband, Jack MacDonald, founded and then sold his shares in and
retired from the business), Shawn and Patrick McHale are siblings. Patrick and
Beverly McHale are spouses. Ms. MacDonald resigned as a director of OVG in 2006
and sold her shares to her siblings, Patrick and Shawn, in 2006 and 2011, respectively.
Although they held 51 percent of the shares in OVG, Patrick and Beverly McHale had
relatively little involvement with OVG. Shawn McHale actually operated the business.
[6]
The appellants personal guarantees came about after
Shawn McHale approached the respondent with a request for new financing. On September
28, 2007, the respondent offered a credit facility in the amount of $1,000,000.
As security for the loan, the respondent required a general security agreement
over OVGs assets, together with a personal guarantee and postponement of claim
in the amount of $300,000, signed by Ms. MacDonald on October 10, 2007, as well
as a postponement and assignment of claims in favour of the respondent from each
of Shawn, Patrick, and Beverly McHale, which they executed around the same
time.
[7]
In the fall of 2008, Shawn McHale requested and
obtained a further increase to OVGs operating line of credit from $1,000,000
to $1,500,000. The respondent and OVG entered into a new credit facilities
letter, dated December 9, 2008. At the request of the respondent, Shawn McHale
executed a personal guarantee in the amount of $600,000 on December 11, 2008,
and Patrick and Beverly McHale executed personal guarantees in the amount of
$600,000 on December 15, 2008. Ms. MacDonald did not sign a new personal
guarantee.
[8]
OVG struggled financially and began to default
on its loan obligations to the respondent in the fall of 2012. In January 2013,
the respondent proposed a forbearance agreement with stringent conditions that was
rejected by OVG and the appellants. On February 12, 2013, the respondent demanded
payment from OVG under its various loan agreements and from the appellants under
their personal guarantees.
[9]
As a result of the respondents demand, on
February 22, 2013, OVG filed a notice of intention to make a proposal under the
Bankruptcy and Insolvency Act
, R.S.C. 1985, c. B-3. In an attempt to
restructure OVG, between February and December 2013, Patrick McHale indicated
that he and his wife, Beverly, invested $1,958,498 of their own money into OVG.
The restructuring did not succeed. On December 12, 2013, OVG made an assignment
into bankruptcy.
(2)
Court Proceedings
[10]
The respondent brought an action to recover over
$3 million owing under the guarantees of OVGs indebtedness. Patrick and Beverly
McHale counterclaimed, alleging the respondent improvidently realized on OVGs
assets, thereby triggering the bankruptcy of OVG. Shawn McHale made an assignment
into bankruptcy, and the respondents action was stayed against him.
Examinations for discovery were held. The parties brought competing motions for
summary judgment. In support of its motion, the respondent filed the affidavit
of its manager in the department of Special Loans and Advisory Services, Peter
Gordon. Ms. MacDonald, Patrick, and Shawn McHale filed affidavits. No cross-examinations
on the affidavits were held, but the parties relied on the transcripts from the
various discovery examinations.
[11]
On her examination for discovery, dated December
15, 2015, Ms. MacDonald deposed that she believed she signed her personal guarantee
in the presence of Kevin Bossy, an account manager with the respondent. Although
she could not remember during her examination the conversations she had with Mr.
Bossy, she said it had always been her understanding that the personal guarantee
she signed in 2007 was joint and several and thereby limited to $300,000 with
Shawn, Patrick, and Beverly McHale, and that she did not sign an increased
guarantee to $600,000 in 2008 because, by then, she had left OVG and disposed
of the majority of her shares.
[12]
Shawn McHales examination for discovery
occurred on December 14, 2015. His understanding was that the personal guarantees
were for a total of $600,000, although he could not recall the bank representative
telling him whether they were joint and several or individual guarantees. He deposed
that he was told that the guarantees could be signed in counterpart and would
still be binding, which informed his assumption that the guarantees were joint
and several. He also relied on the language in the guarantee that the undersigned
and each of them (if more than one) hereby jointly and severally agree(s) with
the bank as follows. He believed the guarantees were joint and several among him,
Patrick, and Beverly McHale because of the language of the guarantee that said
the guarantees were joint and several and could be signed in counterparts. In
his affidavit, sworn on November 5, 2017, Shawn McHale stated the following, at
para. 13:
Again, based on discussions I had with Mr. Bossy
of the [respondents] Renfrew branch, I understood that the total liability under
the Replacement Guarantees [was] limited to $600,000 joint and severally
between Pat, Bev, and I. Lorraine [MacDonald] never signed the document. This
understanding is reflected in OVGs financial statements for year-end March 31,
2009 and all subsequent year-ends.
[13]
On his examination for discovery, dated December
14, 2015, Patrick McHale testified that he signed his guarantee in a Tim Hortons
restaurant where he met the respondents representative. He said he understood the
guarantee was for a total indebtedness of $600,000 as between him and his wife,
Beverly, and that the respondents representative told them it was for $600,000.
They were never told anything different than that, and if they had been told otherwise,
they would not have signed the guarantees. In his affidavit, sworn on November 3,
2016, Patrick McHale stated the following, at para. 11:
Based on information provided and representations
made by Mr. Kevin Bossy of the [respondent], it was my understanding and belief
that my personal liability under the Replacement Guarantee was joint and
several with my wife Bev, Shawn and Lorraine. I understood and believed that the
collective maximum personal exposure against all of us was $600,000 and not
$600,000 each, as the [respondent] is claiming.
[14]
Beverly McHale deposed during her examination
for discovery, held on December 14, 2015, that she and Patrick met with Mr.
Bossy or his successor, Milton, at a Tim Hortons restaurant to sign the guarantee.
She understood that the $600,000 guarantee was a total amount shared by Patrick,
Shawn, and her, and that it was never explained to them that it would be
$600,000 for each of them. Unlike Patrick and Shawn McHale, and Ms. MacDonald, Beverly
McHale did not file an affidavit on the motions for summary judgment.
[15]
The respondent filed no affidavit from Mr. Bossy
in response to the appellants evidence concerning their understanding of the scope
of liability under their personal guarantees and their discussions with the respondents
representatives. The respondent did not cross-examine Ms. MacDonald, Patrick,
or Shawn McHale on their affidavits.
(3)
The Motion Judges Reasons
[16]
The motion judge held that there was no genuine
issue requiring a trial in respect of the validity and enforceability of the personal
guarantees and that they were valid and enforceable. She rejected the
appellants allegations that the respondent, through its employee, Mr. Bossy, who
was the account manager for their bank accounts, had misrepresented the scope of
the liability under their personal guarantees, which they maintained was joint
and several with a collective exposure limited to $600,000.
[17]
At paras. 55-56 of her reasons, the motion judge
explained why she rejected the appellants allegations of misrepresentation:
There is no evidence to suggest that any of these
circumstances [of
non est factum
, unconscionability, fraud, misrepresentation,
or undue influence] existed in this case. Although [Patrick] said in his
affidavit that Mr. Bossy of [the respondent] had made representations that left
[Patrick] with the understanding and belief that his $600,000.00 liability
under the guarantee was shared with his wife and his brother, I cannot accept that
Mr. Bossy made any misrepresentations to this effect to [Patrick]. [Patrick] provided
no particulars of what Mr. Bossy said to him. [Patrick] did not give evidence
at his examination for discovery that he had relied on any representations made
by Mr. Bossy and there was no evidence that [Patrick] had ever corrected his examination
for discovery evidence.
[Patricks] evidence about
Mr. Bossy was not corroborated by [Beverly], who signed her guarantee at the
same time and who had an opportunity to file an affidavit in response to [the
respondents] motion and in support of her own but did not do so.
[18]
The motion judge went on to determine that even
if she had accepted the appellants allegations of misrepresentation, the entire
agreement clause contained in para. 13 of the guarantees precluded the
appellants from relying on any representations that were not set out in the
guarantees themselves.
[19]
Further, having rejected the allegations of
misrepresentation, the motion judge did not accept the appellants argument
that their liability was shared, given that each of the appellants signed a separate
guarantee that made no reference to a guarantee or guarantees signed by anyone
else, and that para. 9 of the guarantees provided that each guarantee was in addition
to and not in substitution for any other guarantee, by whomsoever given.
[20]
The motion judge allowed the respondents motion
for summary judgment and granted judgment to the respondent against Ms.
MacDonald in the amount of $300,000, Patrick McHale in the amount of $600,000, and
Beverly McHale in the amount of $600,000, plus prejudgment and postjudgment interest.
[1]
The
motion judge found that Patrick and Beverly McHales counterclaims of improvident
realization of OVGs assets was an alleged wrong to OVG that they had no capacity
to assert. She therefore dismissed the counterclaims. She ordered that the
appellants jointly and severally pay costs to the respondent on a substantial indemnity
basis in the all-inclusive amount of $84,490.38.
C.
The parties positions
[21]
The appellants submit that the motion judge erred
in granting summary judgment against the appellants in the total amount of
$1,500,000, plus interest. They do not challenge that the loan advances were
made, and they concede some indebtedness to the respondent under their personal
guarantees. However, they say that the motion judge erred in failing to find that
there was a genuine issue requiring a trial as to whether the respondent misrepresented
the scope of the appellants liability under their personal guarantees. The appellants
maintain that their total joint and several liability under the guarantees is limited
to $600,000. They argue that the motion judges reasons are insufficient, as
she did not direct herself to key pieces of evidence. Further, they argue that she
failed to recognize that summary judgment was not appropriate for this issue,
as the record before her contained real credibility issues that required careful
study. As such, some form of oral hearing was required to determine this issue
and make the required credibility findings.
[22]
The respondent argues that the motion judge made
no error, as she based her decision on the clear wording of the personal
guarantees signed by the appellants. According to the respondent, the appellants
failed to put their best evidentiary foot forward. As such, their evidence about
misrepresentations made by the respondent to the appellants was simply insufficient
and not accepted by the motion judge. The appeal should therefore be dismissed.
D.
Analysis
(1)
The Framework
for Summary Judgment
[23]
At the heart of this appeal is the motion judges
approach to summary judgment and, specifically, her treatment of the evidence
and record before her. Absent an error of law, a misdirection, or the creation
of an injustice through a decision that is clearly wrong, a motion judges
determination of these questions is generally entitled to considerable
deference on appeal:
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87,
at paras. 81-84. However, here, appellate intervention is required, as the
motion judge fell into error and misdirected herself because she failed to determine
whether summary judgment was appropriate, having regard to the entire evidentiary
record and the
Hryniak
analytical framework.
[24]
This determination required the motion judge to
follow the analytical approach set out in
Hryniak
, at para. 66, which
is summarized as follows:
1.
First, the motion judge should have determined
if there was a genuine issue requiring a trial based only on the evidence before
her, without using the enhanced fact-finding powers under r. 20.04(2.1) of the
Rules
of Civil Procedure
, R.R.O. 1990, Reg. 194.
2.
Second, if there appeared to be a genuine issue
requiring a trial, the motion judge should have determined if the need for a
trial could be avoided by using the enhanced powers under r. 20.04(2.1) which
allowed her to weigh evidence, evaluate the credibility of a deponent, and draw
any reasonable inference from the evidence and under r. 20.04(2.2) to order
that oral evidence be presented by one or more parties.
[25]
While summary judgment is an important tool for enhancing
access to justice and achieving proportionate, timely, and cost-effective adjudication,
there is no imperative on the court to use it in every case:
Trotter Estate
,
2014 ONCA 841, 122 O.R. (3d) 625, at para. 49;
Lesenko v. Guerette
,
2017 ONCA 522, 416 D.L.R. (4th) 349, at para. 30. As affirmed by the Supreme
Court in
Hryniak
, at para. 28, the overarching goal remains to have a
fair process that results in a just adjudication of disputes.
[26]
Indeed, notwithstanding the parties agreement
that the action and counterclaims could be determined by summary judgment, it is
still incumbent on the motion judge to decide whether it is appropriate to
grant summary judgment:
Rules of Civil Procedure
,
r. 20.04(2)(b).
[27]
In determining whether summary judgment is appropriate,
motion judges are required to engage with the
Hryniak
analytical framework
process, as described above, look at the evidentiary record, determine whether
there is a genuine issue requiring a trial, and assess, in their discretion,
whether resort should be taken to the enhanced powers under rr. 20.04(2.1) and
(2.2) of the
Rules of Civil Procedure
. To do otherwise runs the risk
that, in an effort to dispose of a case in a summary fashion, motion judges
will not properly analyze the evidence:
Trotter
, at para. 49. Unfortunately,
that is what occurred here.
(2)
The Motion Judges Approach
[28]
The motion judges sole brief self-direction
about the applicable analytical framework appears at para. 5 of her reasons:
Rule 20.04(2) of the
Rules of Civil Procedure
provides that the court shall grant summary judgment if it is satisfied that
there is no genuine issue requiring a trial with respect to a claim or defence.
A trial is not required if a summary judgment motion can achieve a fair and
just adjudication, if the process allows the judge to make the necessary findings
of fact and apply the law to those facts and if the motion is a proportionate,
more expeditious and less expensive means to achieve a just result.
[29]
It was, of course, unnecessary for the motion
judge to recite
verbatim
the applicable principles from
Hryniak
,
so long as she applied them throughout her decision. However, her reasons do not
demonstrate that she did. The motion judge did not set out an adequate analysis
leading to her conclusion at para. 100(1) that there is no genuine issue
requiring a trial in respect to the validity and enforceability of the
guarantees.
[30]
In order to come to this conclusion, the motion
judge was required to analyze the entirety of the evidentiary record before her
and determine whether there was a genuine issue requiring a trial with respect
to the appellants allegations of misrepresentation and, if so, whether the
need for a trial could be avoided by using the enhanced powers under rr.
20.04(2.1) and (2.2) of the
Rules of Civil Procedure
. Unfortunately,
she failed to do so.
[31]
Specifically, the motion judges reasons do not
adequately explain why she rejected the appellants unchallenged evidence that,
if accepted, would support their allegation of misrepresentation, particularly in
the absence of any evidence to the contrary by the respondent. The appellants
and Shawn McHales unequivocal and unchallenged evidence was that they gave
their guarantees on the understanding that their total obligation was $600,000,
joint and several, and that this understanding came from the guarantees
themselves and discussions with the respondents representatives. Further,
according to Shawn McHales affidavit, at para. 13, the understanding of the
appellants was recorded in the year-end financial statements of OVG. While Mr.
Gordon gave evidence regarding his interpretation of the guarantees in an
examination for discovery, dated September 21, 2015, he was unable to indicate
whether the liability was properly explained to the appellants, as he said the
account manager would possess that information.
[32]
The motion judge failed to reference Shawn
McHales evidence, and her apparent rejection of the evidence given by Patrick
and Beverly McHale was conclusory and in part appears to be based on a misapprehension
of their evidence. Other than the guarantee documents and the evidence of Mr.
Gordon, the respondent filed no other evidence challenging the appellants and
Shawn McHales understanding of the scope of the guarantees, nor were Patrick and
Shawn McHale, or Ms. MacDonald cross-examined on their affidavits. The motion judge
failed to address this absence of evidence.
[33]
With respect to Patrick McHales evidence, while
the motion judge was entitled to reject it, she erred by failing to provide
adequate reasons for doing so. Notably, she failed to explain why she labelled
Patrick McHales evidence as lacking particularity and why her observation that
certain particulars from his affidavit were not mentioned on his examination for
discovery apparently led her to reject his unchallenged evidence.
The
motion judges concerns about Patrick McHales evidence that she did identify,
as noted above at para. 17 of these reasons, were not sufficient to reject his
evidence out of hand, especially given he had not been cross-examined on his
affidavit and there was evidence that, if accepted, could corroborate his
evidence. Moreover, his evidence was not speculative and provided some
particulars of his dealings with the respondent that were corroborated by his
brother and wife.
[34]
However, even if the motion judge did not err in
rejecting Patrick McHales evidence, she was required to go beyond it and
assess it together with the other evidence in the record that, if accepted,
would support the appellants version of events and corroborate Patrick McHales
evidence. She failed to do so.
[35]
Notably, Shawn McHales evidence was that the respondent
had misrepresented the nature of the guarantees and indicated the guarantees could
be signed in counterparts, and that the appellants understanding was reflected
in OVGs year-end financial statements. Similarly, while Beverly McHale did not
file an affidavit on the motions, the parties relied on her discovery
transcript in which she provided some corroboration of her husbands evidence
concerning the place of the meeting with the respondents representative and
the appellants understanding of the scope of their liability under their
guarantees as a result of discussions with the respondents representative. The
motion judges reasons are silent with respect to Shawn McHales evidence and
do not explain why she determined that Beverly McHales evidence did not corroborate
her husbands evidence.
[36]
Simply put, if the motion judge rejected Shawn
McHales evidence, she was required to give her reasons. Given that Beverly McHales
examination for discovery did corroborate her husbands evidence in some
particulars, the motion judge erred by stating that it did not, without explaining
why it did not. It was not necessary for Beverly McHale to repeat her evidence
in an affidavit, as the motion judge appears to suggest.
[37]
While each piece of evidence by itself may not
have been sufficient to establish the appellants allegations of misrepresentation,
the motion judge was required to consider the evidence as a whole to determine
whether, in all of the circumstances of the case, based on the entire record before
her, she was able to determine the material issues in dispute without requiring
a trial. She failed to do so.
[38]
As
part of this balancing exercise that she was required to undertake, the motion
judge further erred in failing to address the absence of evidence by the
respondent to challenge the appellants affidavits and transcripts. Rather, in
evaluating Patrick McHales evidence, she simply stated that she could not
accept that Mr. Bossy had made the misrepresentations to Patrick. This was an
error. In this case, the respondents choice not to cross-examine Patrick or
Shawn McHale or Ms. MacDonald on their respective affidavits, and not to tender
evidence in response to the appellants evidence of misrepresentation, ought to
have been taken into consideration by the motion judge before she rejected the
appellants evidence and accepted the respondents position on the key disputed
factual issues:
2212886 Ontario Inc. v. Obsidian Group
Inc.
, 2018 ONCA 670, 83 B.L.R. (5th) 186, at para. 49, leave to
appeal refused, [2018] S.C.C.A. No. 391.
[39]
Since the evidence adduced by the appellants was
capable of supporting an allegation of misrepresentation and was unchallenged
by the respondent in cross-examination, it was incumbent upon the motion judge
to explain why she rejected the evidence:
Neuberger v. York
,
2016 ONCA 191, 129 O.R. (3d) 721, at para. 124, leave to appeal refused, [2016]
S.C.C.A. No. 207;
Trotter
, at para. 54;
Lesenko
, at para. 19.
Her conclusory
statements were insufficient. While she recited the evidence, she did not weigh
it, evaluate it, or make findings of credibility as she was required to do in
this case. She could not simply prefer one position over another without providing
an explanation that is sufficient for appellate review:
Gordashevskiy v.
Aharon,
2019 ONCA 297, at para. 6.
[40]
Rather, s
he was required to undertake a credibility
analysis pursuant to the expanded judicial powers under r. 20.04(2.1) of the
Rules
of Civil Procedure
to weigh the evidence, evaluate the credibility of the
appellants deponents, and draw reasonable inferences:
Trotter
, at
para. 54. Further, if the motion judge determined she could not assess credibility
solely on the written record, she should have considered whether oral evidence
or a trial were required:
Trotter
, at para. 55.
[41]
While
summary judgment may have been appropriate had the motion judge carried out the
requisite analysis under r. 20.04(2.1) of the
Rules of
Civil Procedure
and exercised her powers to
hear oral evidence pursuant to r. 20.04(2.2), she did not seek to do so.
[42]
I agree that fairness requires a trial of the
narrow issue framed by the appellants before another judge of the Superior Court
of Justice.
[43]
While not pressed in argument by the parties, for
the purposes of the trial of the narrow issue, it is important to address the motion
judges related alternative conclusion. As earlier noted, the motion judge
concluded that even if she had found that the respondent had made the alleged misrepresentations
to the appellants, the effect of the entire agreement clause in the personal guarantees
precluded the appellants from relying on any such representations that were not
set out in the guarantees themselves. In my view, this conclusion was
erroneous. It is well-established that the defence of misrepresentation is not
precluded or diminished by reason only of the existence of an entire agreement
clause:
Bank of Nova Scotia v. Zackheim
(1983), 3 D.L.R. (4th) 760
(Ont. C.A.), at pp. 761-62;
Beer v. Townsgate I Ltd.
(1997), 152
D.L.R. (4th) 671 (Ont. C.A.), at paras. 25-32, leave to appeal refused, [1997]
S.C.C.A. No. 666. I would not uphold the motion judges finding on this issue.
E.
Disposition
[44]
I would allow the appeal and set aside paras. 1,
3 and 4 of the motion judges judgment, dated September 16, 2019, and the costs
order, dated January 2, 2020. However, for greater certainty, I would not disturb
the motion judges conclusions at paras. 100 1. and 2. of her reasons that there
is no genuine issue requiring a trial in respect of the validity and enforceability
of the appellants personal guarantees and that the guarantees are valid and enforceable.
[45]
The narrow issue requiring a trial is the scope of
the appellants liability under their personal guarantees, having regard to the
appellants allegations of misrepresentations that they say were made by the
respondent.
[46]
As agreed in oral submissions, I would allow the
appellants their partial indemnity costs of the appeal in the amount of $15,000,
which is inclusive of disbursements and applicable taxes.
[47]
I would also direct that if the parties cannot
agree on the disposition of the costs before the motion judge, they should forward
brief written submissions of no more than two pages, plus a costs outline, within
seven days of the release of these reasons.
Released: February 19, 2021 (D.D.)
L.B.
Roberts J.A.
I
agree. Doherty J.A.
I
agree. Harvison Young J.A.
[1]
Judgment
was also granted against
1643937
Ontario Inc., however,
it did not appeal the judgment or take any position on the appeal.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Royal Bank of Canada v. 1643937
Ontario Inc., 2021 ONCA 178
DATE: 20210322
DOCKET: C67540
Doherty, Roberts
and Harvison Young JJ.A.
BETWEEN
Royal Bank of Canada
Plaintiff (Respondent)
and
1643937 Ontario Inc.
,
Lorraine
MacDonald
,
Shawn McHale,
Patrick McHale
,
and
Beverly McHale
Defendants (
Appellants
)
Jonathan C. Lisus and
Zain Naqi, for the appellants
J. Ross Macfarlane,
for the respondent
Heard: in
writing
On appeal from the judgment of Justice Heather J. Williams of
the Superior Court of Justice, dated September 16, 2019, with reasons reported
at 2019 ONSC 5145, and from the costs order, dated January 2, 2020, with
reasons reported at 2020 ONSC 44.
COSTS ENDORSEMENT
[1]
On February 19, 2021, we allowed the appeal in
part from the dismissal of the appellants action with costs to the appellants
of $15,000 as agreed by the parties. With respect to the appellants, we set
aside the $84,490.38 costs award that was granted by the motion judge to the respondent
jointly and severally against the appellants and 1643937 Ontario Inc. We remitted
for trial the narrow issue of the scope of the appellants liability under
their personal guarantees, having regard to the appellants allegations of
misrepresentations that they say were made by the respondent. We otherwise
dismissed the appeal.
[2]
The parties have not reached an agreement on the
disposition of the costs from their respective motions for summary judgment. We
invited the parties to provide brief written submissions, plus costs outlines,
which they have delivered, and we have reviewed.
[3]
The appellants seek partial indemnity costs on
the motions in the amount of $30,000. The respondent submits that it is
entitled to its costs on the motions in the amount of $37,500, less the $15,000
appeal costs award granted to the appellants. The respondent says that the
balance of the costs of the action to‑date should be reserved to the
trial judge.
[4]
The disposition of the costs on the motions and
the action to-date should be reserved to the trial judge. While the appellants
prevailed on the narrow issue remitted for trial, the motions below also
concerned several other issues, including the appellants counterclaims, that
were not pursued on appeal. The trial judge will be best placed to assess these
costs in the context of the final disposition of the action.
[5]
Accordingly, we order that the costs on the
parties respective motions for summary judgment and the action to-date are
reserved to the trial judge.
[6]
In response to the respondents inquiry, we clarify
that the motion judges $84,490.38 costs order was set aside in relation to the
appellants only but still stands as against
1643937 Ontario Inc.
[7]
The respondent has invited us to revisit
paragraph 44 of our reasons. We see no basis to do so.
Doherty
J.A.
L.B.
Roberts J.A.
A.
Harvison Young J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Royal Bank of Canada v. Azkia, 2021 ONCA 89
DATE: 20210212
DOCKET: C67753
Rouleau, Benotto and Thorburn JJ.A.
BETWEEN
Royal Bank of Canada
Plaintiff/Defendant to Counterclaim
(Respondent)
and
Baharak Azkia, Diana Nekonam and Nader
Zanddizari also known as Nader Zand
Defendants/Plaintiffs by Counterclaim
(Appellants)
Hossein Niroomand,
for the
appellants
Jeffrey Kukla, for the respondent
Heard: February 3, 2021 by videoconference
On appeal from the order of Justice Markus Koehnen of the
Superior Court of Justice, dated November 11, 2019, with reasons reported at
2019 ONSC 5894.
REASONS FOR DECISION
The order sought
[1]
This is an appeal of the order:
a)
granting summary
judgment in favour of the respondent, Royal Bank of Canada (RBC) in three
separate actions, and ordering payment of the sums owing by the plaintiffs to
RBC;
b)
dismissing the appellants counterclaim in one action;
c)
granting RBC possession of the premises; and,
d)
vacating the certificates of pending litigation (CPLs) on the two
properties at 56 Hawksbury Drive and 326 St. Clements Avenue (the two
properties).
[2]
The appellants seek to overturn the dismissal of their counterclaim and
stay the judgments pending the trial of the appellants counterclaim. They also
seek leave to adduce new evidence on this appeal.
The basis for the claims
[3]
RBC lent money to the appellants by way of mortgages, demand loans, lines
of credit, overdrafts and credit cards. The total principal and interest owing
as of October 5, 2018 was approximately $4,852,286.02.
[4]
RBC commenced three separate actions on the various debts. The actions
relate primarily to mortgages made in favour of RBC secured by the two
properties, and a demand loan which the bank claimed was secured by a second
mortgage on one of those properties.
[5]
The appellants filed a counterclaim in the third action seeking damages
in the amount of $3,650,000 in connection with RBCs registration of cautions
and two certificates of pending litigation on the two properties (the CPLs).
The motions for summary judgment
[6]
RBC brought a motion for summary judgment in each of the three actions.
[7]
The appellants did not dispute the debt, but opposed the request for summary
judgment on the basis that there was a sufficiently close connection among the
three actions that it would be inequitable to allow RBC to obtain summary
judgment in respect of the three claims without first deciding the counterclaim
and permitting the appellants to set off any award in the counterclaim against
amounts owing in the other actions.
[8]
The appellants also took the position that the CPLs were improperly
granted resulting in damage to the appellants which damage should be assessed
prior to the granting of any order for summary judgment.
[9]
The motion judge summarized the appellants position at para. 46 of his
decision as follows:
The gist of the defence is that the defendants were renovating
326 St. Clements in order to sell it. They had a buyer, but the sale did not
close because the certificate of pending litigation prevented the [appellants]
from obtaining a small amount of additional financing from a third party which
would have enabled them to complete the renovations.
[10]
On
November 11, 2019, the motion judge granted summary judgment in favour of RBC
in all three actions. Although he vacated the CPLs because of RBCs failure to
make proper disclosure in the course of obtaining the CPLs on an
ex parte
motion, he dismissed the appellants counterclaim.
[11]
He
held that the appellants had not demonstrated that there is any issue that
requires a trial, as the counterclaim for damages was implausible and the
defendants have not provided any evidence at all about their damages, let alone
sufficient evidence to demonstrate that a trial is required on damages.
[12]
His
reasons for so finding, at paras. 49-56, are set out below:
If it is true that [the appellant] Mr. Zanddizari needed only
$100,000 to complete the renovation of 326 St. Clements, one might have expected
Mr. Zanddizari to explain that to RBC and try to arrange additional financing.
RBC had a material interest in completing the sale of 326 St. Clements because
that would free up money to repay the demand loan. There is no evidence of any
efforts by Mr. Zanddizari to enter into arrangements like this with RBC and no
explanation for his failure to do so.
If Mr. Zanddizari had two other lenders whose loans would fund
the renovation and bring the demand loan into good standing, one might expect
him to advise RBC of that fact and try to enter into an arrangement whereby the
additional loan to complete construction of 326 St. Clements would have
priority over the certificate of pending litigation. Once again there is no
evidence to suggest that Mr. Zanddizari tried to make such an arrangement and
no explanation for his failure to do so.
Mr. Zanddizari provides no information about these other
lenders. He does not disclose the lenders' names, the loan documentation or the
terms of the loans.
Mr. Zanddizari does not describe what work was left to be
completed on 326 St. Clements Avenue beyond describing it a small amount of
work and appliances. He has not produced any photographs that would allow me
to compare the renovations that had already been completed with the work that
remained.
While he was discussing bringing the demand loan back into good
standing between September 2017 and January 2018, Mr. Zanddizari sent the bank
a screenshot of an account he had at CIBC showing a balance of $137,016.05. Mr.
Zanddizari told RBC that when this deposit cleared within a few days, he would
transfer the money into his RBC account to cover his overdue loan balance of
$70,000. He never did so.
If Mr. Zanddizari was being honest in his statements to RBC, he
in fact had funds that exceeded the approximately $100,000 he needed to finish
off the renovations on 326 St. Clements Avenue. Mr. Zanddizari provided no
explanation for why the funds in his CIBC account could not be used to complete
the renovations on St. Clements.
Mr. Zanddizari also made no efforts to set aside the
certificate of pending litigation. If this were truly a case of losing a sale
of St. Clements Avenue, Mr. Zanddizari had ample time to set aside the
certificate of pending litigation. According to Mr. Zanddizari, the purchaser
extended the closing to February 28, 2019. This gave Mr. Zanddizari just short
of 12 months to set the certificate of pending litigation aside, obtain
additional funds and sell the property. He took no steps to set aside the certificate
of pending litigation until the end of January 2019. Even then he did so only
in response to RBC's motion for summary judgment.
Similarly, Mr. Zanddizari has provided no explanation for his
damage claim of $3,500,000. On the record before me, it is simply a number that
has been inserted into a counterclaim.
[13]
However,
the motion judge dismissed RBCs request for an order for a legal or equitable mortgage
in respect of the demand loan over the two properties. RBC had not established
on a balance of probabilities that there was a mutual intention by the parties
to grant a mortgage on those properties as security for the demand loan.
The issues on this appeal
[14]
The
issues on this appeal are (1) whether the motion judge erred in finding that
there was no genuine issue requiring a trial in respect of the appellants
counterclaim and refusing to order a stay of execution on the judgments, and
(2) whether the appellants should be permitted to adduce new evidence on appeal.
Analysis and conclusion
[15]
As
explained in
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, at
para. 49:
There will be no genuine issue requiring a trial when the judge
is able to reach a fair and just determination on the merits on a summary
judgment motion. This will be the case when the process (1) allows the judge to
make necessary findings of fact, (2) allows the judge to apply the law to the
facts, and (3) is a proportionate, more expeditious and less expensive means to
achieve a just result.
[16]
The
appellants take issue with the motion judges finding that there is no genuine
issue for trial.
[17]
Although
parties are required to present the best version of their case on a motion for
summary judgment, the appellants adduced no evidence from lenders that they
would have advanced funds even if the CPLs had not been placed on title. It was
therefore open to the motion judge to reject the appellants evidence regarding
damages. His findings are owed deference.
[18]
The
motion judge accepted the appellants submission that the CPLs should not have
been placed on the properties and ordered that the CPLs be vacated. However, he
held that the appellants had not suffered damages as a result of the CPLs, as
pleaded in the appellants counterclaim.
[19]
On
this appeal, the appellants seek leave to introduce an exhibit of documents most
of which were not before the motion judge. The exhibits are not appended to an
affidavit and consist of letters and other documentation regarding refinancing.
In oral submissions, counsel for the appellants claimed that two letters, one
to a possible lender and the other to RBC, were provided in support of the
appellants cost submissions and should therefore be allowed to be introduced
on appeal.
[20]
This
evidence does not meet the test for the introduction of new evidence on appeal:
see
Palmer v. R.
, [1980] 1 S.C.R. 759, at p. 775;
Sengmueller v.
Sengmueller
, 111 D.L.R. (4th) 19 (Ont. C.A.), at p. 23.
[21]
The
appellants were represented at trial and this evidence should and could have
been obtained prior to the motion, through the exercise of reasonable
diligence. Moreover, it was not attached to a sworn affidavit and there has
been no opportunity for the respondent to examine or cross-examine on this
evidence. In any event, this new evidence, like the evidence proffered to the
motion judge,
does not demonstrate any
quantifiable damages suffered by the appellants
and
thus, could not reasonably have affected the result
.
[22]
As
set out above, the motion judge gave ample reasons for his finding that the
appellants:
a)
did not satisfy him that they were unable to sell the property;
b)
did not take appropriate steps to address the CPLs with RBC; and,
c)
did not
adduce evidence to outline the steps taken to complete the renovations required
to sell the property.
[23]
We
see no error in these findings, nor do we accept that the motion judge erred by
failing to consider the defence of equitable set-off.
[24]
As
such, the appeal seeking to set aside the order dismissing the counterclaim
and, if such an order is granted, requesting that the execution of the judgment
in favour of RBC be stayed, pending resolution of the counterclaim is
dismissed.
[25]
We
order costs payable to the RBC in the amount of $15,000, all inclusive.
Paul
Rouleau J.A.
M.L. Benotto J.A.
J.A. Thorburn J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Rusinek & Associates Inc. v.
Arachchilage, 2021 ONCA 112
DATE: 20210223
DOCKET: C68306
Strathy
C.J.O., Rouleau and Coroza JJ.A.
In
the Matter of the Bankruptcy of Roshan Singho Dasanayaka Arachchilage, of the
City of Toronto, in the Province of Ontario
BETWEEN
Rusinek & Associates Inc.,
Licensed Insolvency Trustee for the Estate of Roshan Singho Dasanayaka Arachchilage
Applicant (Appellant)
and
Roshan Singho Dasanayaka
Arachchilage and
Jayalukxhmi Baliah
Respondents (
Respondent
)
Sharon Sam and Mark Ross, for the
appellant
David A. Schatzker and Richard D.
Howell, for the respondent Jayalukxhmi Baliah
Heard: November 26, 2020 by video conference
On appeal from the judgment of Justice Cory
A. Gilmore of the Superior Court of Justice, dated February 19, 2020, with
reasons reported at 2020 ONSC 1090.
Rouleau J.A.:
A.
OVERVIEW
[1]
The question raised in the present appeal is
whether a trustee in bankruptcy can initiate an equalization claim under the
Family
Law Act
, R.S.O. 1990, c. F.3
(
FLA
). The answer to
this question lies in the proper interpretation of ss. 5 and 7 of the
FLA
.
[2]
Section 5 of the
FLA
provides for the equalization
of net family properties. This entitlement is, however, described as personal
as between the spouses by s. 7(2) of the
FLA
. What this latter
expression means and what limits, if any, it places on the entitlement provided
in s. 5 is central to this appeal.
[3]
As I will explain, I conclude that the
entitlement provided in s. 5 of the
FLA
, once it has crystalized,
falls within the broad definition of property as found in s. 2 of the
Bankruptcy
and Insolvency Act
, R.S.C. 1985, c.
B-3
(
BIA
),
without regard to whether an application has been initiated. However, with the
limited exception provided in s. 7(2)(b) that has no application to trustees in
bankruptcy, the limitation placed on this entitlement in s. 7(2) to the effect
that it is personal as between the spouses operates to prevent anyone other
than a spouse from starting an application for the equalization of net family
properties. As a result, while an unexercised equalization entitlement
constitutes property under the
BIA
for vesting purposes, a trustee in
bankruptcy cannot initiate a claim for recovery of that equalization
entitlement.
[4]
Therefore, for the reasons that follow, I would
dismiss the appeal.
B.
FACTS
[5]
On March 15, 2003, Roshan Singho Dasanayaka
Arachchilage (Roshan) and Jayalukxhmi Baliah, the respondent, were married.
During their marriage, the matrimonial home was purchased and placed in the
respondents name. According to the respondent, she paid the down payment and
legal fees, made the mortgage payments, and paid all taxes and expenses related
to the matrimonial home. She maintains that it was never the intention of the
parties that Roshan would acquire an interest in the matrimonial home, as he
never contributed to its acquisition or maintenance. Title to the matrimonial
home is solely in her name.
[6]
In February 2015, the parties separated, and in
October 2015, Roshan left the matrimonial home and has never returned. Their
separation is permanent but neither party has commenced an application for the
equalization of net family properties. The respondent continues to reside in
the matrimonial home with the couples two children.
[7]
On November 30, 2015, Roshan made an assignment
in bankruptcy, and Rusinek & Associates, the appellant, were appointed as
bankruptcy trustee. Roshan remains an undischarged bankrupt. His declared
unsecured liabilities total $282,700.
[8]
The appellant applied to the Superior Court for
a declaration that the right to commence an equalization claim under the
FLA
has vested in it as Roshans trustee in bankruptcy.
[9]
The application judge determined that unless and
until the right to commence an equalization claim is exercised by a spouse, the
equalization claim is inchoate and does not constitute property for the
purposes of the
BIA
. Therefore, the right to commence such a claim is
not assignable and does not vest in the trustee in bankruptcy, as the decision
remains personal as between the spouses.
C.
ISSUES
[10]
The issues raised on this appeal are as follows:
1.
Was this appeal properly brought before this
court pursuant to s. 6(1)(b) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43 (
CJA
)
;
2.
Is the unexercised entitlement to equalization
of net family properties considered property for the purposes of the
BIA
,
and if it is, can an application for
equalization be initiated by a trustee in bankruptcy; and
3.
If s. 7(2) of the
FLA
prevents a trustee
in bankruptcy from initiating an application for equalization, is s. 7(2)
rendered inoperative pursuant to the doctrine of federal paramountcy?
D.
ANALYSIS
(1)
Was this appeal properly brought before this
court pursuant to s. 6(1)(b) of the
CJA
?
[11]
The appellant brought the present appeal
pursuant to s. 6(1)(b) of the
CJA
. The respondent argues that the
appeal ought to have been brought under s. 193 of the
BIA
and only
after leave to appeal had been obtained by a judge of the Court of Appeal.
[12]
Section 6(1)(b) of the
CJA
provides as
follows:
6 (1) An appeal lies to the Court of Appeal from,
(b) a final order of
a judge of the Superior Court of Justice, except an order referred to in clause
19 (1) (a) or an order from which an appeal lies to the Divisional Court under
another Act[.]
[13]
The relevant parts of s. 193 indicate the
following:
193 Unless otherwise expressly provided, an
appeal lies to the Court of Appeal from any order or decision of a judge of the
court in the following cases:
(c) if the property involved in the appeal
exceeds in value ten thousand dollars;
(e) in any other case by leave of a judge of the
Court of Appeal.
[14]
The respondent relies on
Business
Development Bank of Canada v. Astoria Organic Matters Ltd.
, 2019 ONCA 269, 69 C.B.R. (6th) 13, at paras. 66-67, in support of the
proposition that where there is jurisdiction for an appeal under both the
BIA
and
CJA
, the appellant must comply with the more restrictive provisions of the
BIA
. According to the
respondent, where, as here, a matter of procedure is at issue, s. 193(c) does
not apply because the proceeding is not about a sum of money. Therefore, leave to
appeal is required pursuant to s. 193(e) of the
BIA
.
[15]
I would not give effect to this submission. First, the application was brought
by the appellant before the Superior Court pursuant to r. 14.05(3)(d) of the
Rules of Civil Procedure
, R.R.O. 1990,
Reg. 194, wherein the appellant sought to determine whether it had the right to
commence an equalization claim by interpreting the
FLA
and the
BIA
. Furthermore, the final order was not one made in a bankruptcy
proceeding nor was the application judge exercising a power conferred on her by
the
BIA
.
[16]
Second, these proceedings involve the respondent, who is a stranger to
the bankruptcy. When determining the issue of jurisdiction in cases involving a
stranger to the bankruptcy, the court should answer the following question: will
the
[stranger to the bankruptcy]
be a
creditor of the bankrupt estate as a result of losing the application?: see
L.W. Houlden, G.B. Morawetz & Janis Sarra,
Bankruptcy
and Insolvency Law of Canada
, loose-leaf (2009-Rel.
5), 4th ed. (Toronto: Thomson Reuters, 2013), vol. 3, at Part VII, I
§
7, p. 7-19. If the answer is in the negative, the
bankruptcy court does not have jurisdiction to hear the matter. Here, the respondent
is not a creditor of the bankrupt estate. She has not commenced any claim for
equalization. Therefore, this is a matter of property and civil rights that was
properly brought before an ordinary civil court.
[17]
I conclude that this appeal was properly brought before this court
pursuant to s. 6(1)(b) of the
CJA
.
(2)
Is an unexercised entitlement to equalization of net
family properties considered property for the purposes of the
BIA
,
and if it is, can an application for equalization be initiated by a
trustee in bankruptcy?
(a)
The Relevant Legislation
[18]
Net family property is defined in s. 4(1) of the
FLA
as:
[T]he value of all the property, except
property described in subsection (2), that a spouse owns on the valuation date,
after deducting,
(a) the spouses debts and other liabilities,
and
(b) the value of
property, other than a matrimonial home, that the spouse owned on the date of
the marriage, after deducting the spouses debts and other liabilities, other
than debts or liabilities related directly to the acquisition or significant
improvement of a matrimonial home, calculated as of the date of the marriage[.]
[19]
In s. 5 of the
FLA
, the Ontario legislature provided spouses with an entitlement to
equalization of net family properties in certain circumstances. Sections 5(1), (2),
and (3) are as follows:
5 (1) When a divorce is granted or a marriage is
declared a nullity, or when the spouses are separated and there is no
reasonable prospect that they will resume cohabitation, the spouse whose net
family property is the lesser of the two net family properties is entitled to
one-half the difference between them.
(2)
When a spouse dies, if the net family property of the deceased spouse
exceeds the net family property of the surviving spouse, the surviving spouse
is entitled to one-half the difference between them.
(3)
When spouses are cohabiting, if there is a
serious danger that one spouse may improvidently deplete his or her net family
property, the other spouse may on an application under section 7 have the
difference between the net family properties divided as if the spouses were
separated and there were no reasonable prospect that they would resume
cohabitation.
[20]
Section 7(1) of the
FLA
provides for the commencement of an
application for equalization. Section 7(2) of the
FLA
indicates that the entitlements created in ss. 5(1),
(2), and (3) are personal as between the spouses. This section also provides
the estate of the deceased spouse with certain rights to initiate or continue
an application for the equalization of net family properties. Those sections
read as follows:
7
(1)
The court may, on the application of a spouse, former spouse or deceased
spouses personal representative, determine any matter respecting the spouses
entitlement under section 5.
(2) Entitlement under subsections 5 (1), (2)
and (3) is personal as between the spouses but,
(a) an application based on subsection 5 (1)
or (3) and commenced before a spouses death may be continued by or against the
deceased spouses estate; and
(b) an application
based on subsection 5 (2) may be made by or against a deceased spouses
estate.
[21]
The
BIA
provides
that, with limited exceptions, all of a bankrupts property passes to and vests
in the trustee in bankruptcy. The relevant provisions of the
BIA
are as follows:
2
In this Act,
property
means
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[.]
40
(1)
Any property of a bankrupt that is
listed in the statement of affairs referred to in paragraph 158(d) or otherwise
disclosed to the trustee before the bankrupts discharge and that is found
incapable of realization must be returned to the bankrupt before the trustees
application for discharge, but if inspectors have been appointed, the trustee
may do so only with their permission.
67
(1)
The property of a bankrupt divisible
among his creditors shall not comprise
(a)
property held by
the bankrupt in trust for any other person;
(b)
any property
that as against the bankrupt is exempt from execution or seizure under any laws
applicable in the province within which the property is situated and within
which the bankrupt resides;
but it shall comprise
(d) such powers in or over or in respect of the
property as might have been exercised by the bankrupt for his own benefit.
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.
72
(1)
The
provisions of this Act shall not be deemed to abrogate or supersede the
substantive provisions of any other law or statute relating to property and
civil rights that are not in conflict with this Act,
and the trustee is entitled to avail
himself of all rights and remedies provided by that law or statute as
supplementary to and in addition to the rights and remedies provided by this
Act
.
(b)
The Positions of the Parties
[22]
The appellant argues that the right to payment of an equalization claim
vests in both spouses as soon as the right under s. 5(1) of the
FLA
, in this case permanent separation,
has crystalized. The unexercised equalization claim then constitutes property
in the hands of a spouse. No further steps are required on the part of a spouse
to vest the equalization claim.
[23]
Because the unexercised equalization claim is property in the hands of
a spouse on separation, it should, in the appellants view, also be property in
the hands of the trustee in bankruptcy.
[24]
Notably, the definition of property in s. 2 of the
BIA
is broad and includes present or
future, vested or contingent interests, whether in, arising out of, or incident
to property. It also includes things in action, otherwise known as choses in
action:
Meisels v. Lawyers Professional Indemnity
Company
, 2015 ONCA 406, 126 O.R. (3d) 448, at para. 12.
The trustee in bankruptcy is therefore not limited to the choses in action that
have been initiated by the bankrupt prior to bankruptcy.
[25]
In the appellants submission, it is well established that a trustee in
bankruptcy has the right to commence any proceeding otherwise belonging to the
bankrupt, except for claims that are personal in nature such as claims for
mental distress, pain and suffering, or reputational damage:
Wallace v. United Grain Growers Ltd.
,
[1997] 3 S.C.R. 701, at para. 38;
Meisels
, at paras. 11-13.
[26]
In addition, the appellant maintains that there is no support in the
jurisprudence for the application judges conclusion that an equalization claim
is inchoate and does not constitute property for the purposes of the
BIA
until the claim is initiated, when it
then takes on a new form as property. In the appellants submission, the
procedural step of commencing an application pursuant to s. 7 of the
FLA
does not render the equalization claim
inchoate beyond the realm of contingent actions or choses in action that constitute
property under the
BIA
.
An equalization claim is no different than any other cause of action requiring
the issuance of a statement of claim.
[27]
Lastly, the appellant argues that the stipulation in s. 7(2) of the
FLA
that the equalization
entitlement is personal as between the spouses does not have the significance
developed by the application judge and the respondent. Rather, the appellant
submits that the use of the word personal simply distinguishes these claims
from proprietary entitlements. Therefore, the expression personal as between the
spouses is in no way intended to prevent the trustee in bankruptcy from commencing
a claim to recover the property of the bankrupt.
[28]
For her part, the respondent supports the application judges determination
that an equalization claim does not constitute property for the purposes of the
BIA
until an application
has been commenced by a spouse. This, the respondent argues, flows from the
Ontario legislature having qualified the entitlement to equalization of net
family properties as one that is personal as between the spouses.
[29]
The respondent maintains that describing the entitlement to an equalization
claim as personal as between the spouses means more than explaining that it
is a non-proprietary claim. This language provides that the entitlement to an equalization
claim is personal, in the sense that it can only be exercised by the spouses
themselves, subject to the specific exceptions for estates set out in ss.
7(2)(a) and (b) of the
FLA
.
[30]
In this regard, the respondent references Robert A. Klotz, Who Gets
the Matrimonial Property Claim And Then What? in Professor Jill Corraini
& The Honourable D. Blair Nixon, eds.,
Annual
Review of Insolvency Law 2019
(Toronto: Thomson
Reuters, 2020) 471, at pp. 476-77
,
wherein Klotz explained the following:
The term personal or personal right is in
common use in debtor-creditor law, having two related but distinct meanings. In
a priority dispute involving third parties, a personal right is one that gives
to the holder of the right, the ability to seek a court order declaring and
enforcing that right; but until the order is made, gives no enforceable
property right or priority over any given asset. In that sense, a personal
right requires a triggering event, in the second sense above, to become a
property right, a real right, a right
in specie
, or a claim having priority over another.
The other meaning of
personal, as in personal cause of action, describes a right that has no
existence independent of its holder, such that it cannot be bought or sold,
cannot be exercised by anyone else, is non-assignable and cannot be stripped
from its holder under debtor-creditor or bankruptcy law. For example, a drivers
licence affords its holder the right to drive on public roads. It is personal
in the sense that it cannot be sold or assigned; it cannot be seized by a
creditor; it is useless to anyone else.
[31]
The respondent argues that the interpretation advanced by the appellant
would state the obvious, as spouses do not have a claim to a proprietary
interest in any particular property as a result of s. 5(1) of the
FLA
. In addition, such an interpretation
is illogical and incoherent, as it would give no meaning to the phrase personal
as between the spouses. According to the respondent, the only reasonable
interpretation, therefore, is the one adopted by the application judge.
(c)
The Entitlement to an Equalization Claim is
Property that Vests in the Trustee in Bankruptcy
[32]
It is well established in the case law that once a spouse has brought an
application for the equalization of net family properties, that claim will vest
in the trustee in bankruptcy upon that spouses assignment in bankruptcy: see
Blowes v. Blowes
(1993)
, 16 O.R. (3d) 318 (C.A.);
Green v. Green
, 2015 ONCA 541, 338 O.A.C.
279, at para. 40. Once initiated by a spouse, an equalization claim constitutes
property under the
BIA
and the trustee in bankruptcy has control over the claim and the proceeds. There
is no limiting provision in the
BIA
or at the common law, nor does s. 7(2) of the
FLA
prevent the trustee
in bankruptcy from pursuing the claim once a spouse has commenced an
application.
[33]
It is apparent, therefore, that an entitlement to equalization is not,
as suggested by the respondent, a personal cause of action, in the sense of
a right that has no existence independent of its holder, as described by
Klotz, at p. 477 of his chapter. Personal causes of action do not vest in the
trustee in bankruptcy and the bankrupt remains free to pursue such an action in
his or her own right: see
Wallace
, at para. 38;
Meisels
,
at para. 13. If the entitlement to equalization were such a personal
cause of action, it could not be stripped from the bankrupt spouse upon
assignment in bankruptcy and passed to the trustee in bankruptcy. Unlike true
personal causes of action, a trustee in bankruptcy is entitled to the proceeds
of an exercised equalization claim: see
Blowes
.
[34]
I do not, however, accept the appellants interpretation of what personal
as between the spouses means. Interpreting these words as the Ontario legislature
simply noting that a claim for equalization is non-proprietary would give
little or no meaning to s. 7(2) of the
FLA
. A provision in legislation should not be given an interpretation that
defeats the purpose of the statute or renders a provision pointless or futile:
Rizzo & Rizzo Shoes Ltd. (Re)
,
[1998] 1 S.C.R. 27, at para. 27;
Jackson v.
Stephen Durbin and Associates
, 2018 ONCA 424, 142
O.R. (3d) 379, at para. 26.
Nor should an interpretation
render the provision illogical, incoherent, or incompatible with other
provisions or the object of the enactment: see
R.
v. Stipo
, 2019 ONCA 3, 370 C.C.C. (3d) 311, at para.
177. I say that the appellants interpretation gives little or no meaning to s.
7(2) of the
FLA
for three
reasons.
[35]
First, the legislature would simply be stating the obvious. The fact
that the claim is non-proprietary is clear from the wording of s. 5(1) of the
FLA
, where the entitlement itself is
granted, and the definition of net family property in s. 4(1) of the
FLA
that speaks only of value and not of
interests in any particular property. Indeed, s. 10(1) of the
FLA
establishes that a person may apply to
the court to determine a question as to the ownership interest in any
particular property other than a question arising out of an equalization of
net family properties under section 5. In addition, case law establishes that
such interests in property must be established before undertaking the equalization
of net family properties. As the Supreme Court of Canada articulated in
Rawluk v. Rawluk
, [1990] 1 S.C.R. 70, at
p. 90,
Sections 4 and 5 of
the
Family Law Act, 1986
create a two-step property division process that emphasizes the distinction
between the determination of legal and equitable ownership and the equalization
of net family property. These sections require a court
first
to determine individual ownership piles and
then
to equalize
the spouses assets by ordering the spouse with the larger ownership pile to
pay money
to the
spouse with the smaller pile. [Emphasis added.]
[36]
Second, such an interpretation would be incompatible with the balance
of the section. If it were a non-proprietary claim like any other, there would
be no need for ss. 7(2)(a) and (b) to specify the persons who can exercise the
right. Those clauses have nothing to do with the entitlement to equalization being
proprietary or not.
[37]
Third, the words personal as between the spouses did not originate
with the introduction of the
FLA
.
Subsection 7(2) is a modified version of s.
4(3) of the
Family Law Reform Act
, R.S.O. 1980, c. 152, which was
subsequently repealed in 1986 to make way for the
FLA
. Because those
words existed in a property division legislative scheme, they must do more than
simply inform that the claims spouses have against one
another are personal claims instead of proprietary claims.
[38]
How, then, are the words personal as between the spouses in s. 7(2)
of the
FLA
to be
interpreted where, as here, a spouses equalization claim has crystalized but
an application to court has not been made by either spouse?
[39]
As noted earlier, the respondent argues that the application judge
correctly found that the words personal as between the spouses in s. 7(2) of
the
FLA
operate to make
an unexercised but crystalized equalization claim an inchoate right that does
not constitute property for the purposes of the
BIA
until it is
exercised by one of the spouses
.
[40]
I disagree with the respondents submission.
[41]
In my view, such an interpretation is inconsistent with the intention
and purpose of the
BIA
and with the established jurisprudence. Property, as it is defined in s. 2 of
the
BIA
,
has been given a broad
interpretation. As explained by Binnie J. in
Saulnier
v. Royal Bank of Canada
, 2008 SCC 58,
[2008] 3 S.C.R. 166,
at para. 44:
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.
[42]
Nothing in the
BIA
suggests that property is restricted to choses in action that have
been commenced. As noted earlier, the definition of property includes choses
in action, even where the claim has not yet been initiated by the bankrupt
prior to bankruptcy. There is simply no precedent for the respondents
suggestion that until the spouses equalization claim is commenced by a spouse,
it is an inchoate right that does not come within the broad definition of
property for the purposes of the
BIA
. No other claim is dealt with this way. Either the claim is property
for the purposes of the
BIA
and vests in the trustee in bankruptcy, or
it is personal in nature and the trustee in bankruptcy can neither advance the
claim nor receive the proceeds from such a claim.
[43]
As explained earlier, if the claim were personal in nature, this would
mean that a bankrupt spouse not only retained the capacity to initiate the
claim during the currency of the bankruptcy but also to retain the proceeds of
such a claim:
Wallace
, at
para. 38;
Meisels
,
at para. 13. However,
this court has already determined that a bankrupt spouse is not entitled to
receive any proceeds from an application for equalization once it has been
commenced, as it constitutes property and is vested in the trustee in
bankruptcy: see
Blowes
.
[44]
I therefore reject the suggestion that the entitlement to an
equalization claim is an inchoate right that does not constitute property until
it is exercised by a spouse. Once a right to equalization has crystalized due to
permanent separation, it has value to that spouse. The fact that a spouse has
not taken the procedural step of commencing an application for the equalization
claim does not take it outside the broad definition of property in the
BIA
. The equalization claim is like any
other chose in action. Therefore, it vests in the trustee in bankruptcy.
[45]
Lastly, in oral submissions, the respondent advanced a somewhat nuanced
position. She acknowledged that the bankrupt could not make an equalization
claim following discharge from bankruptcy, as the claim itself does go to the
trustee to the extent that it can be exercised. This suggests that the unexercised
equalization claim is something different than a personal cause of action, as
described in
Klotzs
chapter, at p. 477. This, in effect, was a
concession that the right to commence the equalization claim had vested in the
trustee in bankruptcy. It follows, therefore, that if the right to make the
claim vested in the trustee in bankruptcy, an unexercised right to claim equalization
falls within the broad definition of property under the
BIA
. I agree with this interpretation.
(d)
The Entitlement to Equalization Cannot be Initiated
by the Trustee in Bankruptcy
[46]
Finding that the entitlement to an equalization claim is property and properly
vests in the trustee in bankruptcy does not, as the appellant suggests, end the
matter. The question remains as to whether, as argued by the respondent, s.
7(2) of the
FLA
operates
to prevent the trustee in bankruptcy from initiating the claim to recover that
property. Put another way, what is the effect of s. 7(2) of the
FLA
on an unexercised equalization claim during
the estate-administration stage of the bankruptcy?
[47]
As explained by Gonthier J. in
Royal Bank
of Canada v. North American Life Assurance Co.
,
[
1996
]
1
S.C.R. 325, at paras. 44-49, the Supreme Court of Canada recognized two
distinct stages in a bankruptcy: the property-vesting stage, or the property-passing
stage; and the estate-administration stage. At the time of the assignment in
bankruptcy, by operation of s. 71 of the
BIA
, the trustee in bankruptcy is
obligated to take possession of the bankrupts assets, and the bankrupts
property passes to and vests in the trustee in bankruptcy. Once the bankrupts
property has passed into the possession of the trustee in bankruptcy, the
BIA
provides the trustee in bankruptcy
with the power to administer the estate. In
Royal Bank of Canada
, at
para. 47, the Supreme Court gave the example of assets that are made exempt
from execution or seizure under provincial laws, specifically citing life
insurance annuities under ss. 2(kk)(vii) and 158(2) of
The Saskatchewan Insurance Act
, R.S.S.
1978, c. S-26, as repealed by
The Insurance Act
, S.S. 2015, c. I-9.11, s. 11-1. Such assets vest in the trustee at the
time of bankruptcy at the property-vesting stage. However, the exemption under s. 67(1)(b)
of the
BIA
then operates
at the estate-administration stage to bar the trustee from distributing exempt
items to the creditors. Section 40(1) of the
BIA
then requires the trustee in bankruptcy to return unrealizable property
to the bankrupt prior to the trustee in bankruptcys application for discharge.
[48]
The issue for this court to determine is, therefore, whether the
qualification the Ontario legislature has imposed on the right granted in s. 7 of
the
FLA
limits the trustee in bankruptcys ability to initiate the equalization
claim during the estate-administration stage of bankruptcy. In my view, this is
precisely the effect of the words personal as between the spouses in s. 7(2) of
the
FLA
. A spouse makes the
decision to initiate a claim for equalization, as it is something that is
personal to the spouses, and that decision cannot be made by a trustee in
bankruptcy or any other assignee.
[49]
In
Rondberg Estate v. Rondberg Estate
(1989)
, 62 D.L.R. (4th) 379 (Ont. C.A.),
Grange J.A. considered the wording in s. 7(2) of the
FLA
, albeit in
that case, it involved an executor of an estate making an election pursuant to
s. 6 of the
FLA
rather than advancing a claim by a trustee in
bankruptcy. The executor in that case sought to elect to make an equalization
claim on behalf of a deceased spouse. In reaching the conclusion that the executor
could not make such an election, Grange J.A., at p. 383, explained that:
I have come to the
conclusion that Reid J. was right and that the Legislature of Ontario must be
presumed to have intended to restrict the election (as opposed to the
application) to a surviving and living spouse. The failure to specify any right
of election in the personal representative under s. 6 coupled with the rights
given them under s. 7 and the statement in the latter section that entitlement
under s. 5 is personal between the spouses lead inevitably to that
conclusion. Reid J. thought the omission was deliberate. As he put it, he
could think of few things more personal than the consideration by a surviving
spouse whether to respect or to override the wishes of the deceased. While the
procedure to enforce the decision could be entrusted to a stranger to the
marriage, the decision itself could not. [Citations omitted.]
[50]
That statement is apposite. There can be no
doubt that the decision to advance an equalization claim is deeply personal. The
respondent argues that, in the present case, if an equalization claim is made
by the trustee in bankruptcy, it may result in the respondent and her children
having to leave the matrimonial home, as it would likely have to be sold to
fund the equalization claim.
[51]
Such a decision may create further conflict
between the spouses by involving them in litigation and causing them to incur
legal fees they may well not be able to afford. Conflict between spouses often
has an impact on the children of the marriage. There is, of course, no
obligation under the
FLA
for a spouse to make an equalization claim,
and parties are encouraged to settle their affairs without resorting to the
courts. As stated in the Preamble of the
FLA
, it is desirable to
encourage and strengthen the role of the family and it is necessary to
provide in law for the orderly and equitable settlement of the affairs of the
spouses. This interpretation of personal as between the spouses is
consistent with these overall purposes of the
FLA
.
[52]
If a spouse has already taken the step of
commencing an application for the equalization of net family properties, the
concerns outlined in the paragraph above are substantially reduced, as the
parties are already in a situation of conflict. In such a case, the trustee in
bankruptcy steps into the shoes of the bankrupt spouse and continues the claim
that has already commenced.
[53]
Lastly, such an interpretation of personal as
between the spouses is consistent with the rights the Ontario legislature has provided
to estate trustees to administer claims for equalization after a spouses
death. The interplay between ss. 5 and 7 of the
FLA
makes it clear
that an estate trustee can continue an equalization claim that has commenced
before the spouses death. However, a claim for equalization by a spouse having
the lesser of the two net family properties cannot be initiated by the estate
trustee after the spouses death.
[54]
In other words, an estate trustee cannot make
the personal decision to exercise a right to recovery from a surviving spouse
of the deceased spouses entitlement to equalization. There is, in my view, no
principled reason why personal as between the spouses should be applied any
differently to trustees in bankruptcy as to estate trustees. While the
unexercised claim vests in the trustee in bankruptcy, absent the personal
decision by a spouse to initiate an application for equalization of net family
properties as provided in s. 7(2) of the
FLA
(the triggering event),
the trustee in bankruptcy is unable to commence that claim for the purpose of
distributing the proceeds of the litigation to creditors.
[55]
However, unlike exempt property, an unexercised
equalization claim does not automatically become unrealizable property that
must be returned to the bankrupt prior to the trustee in bankruptcys
application for discharge, pursuant to s. 40(1) of the
BIA
. As Klotz
points out, at pp. 531-39, a trustee may have other options for realizing value
from that cause of action during the estate-administration stage, for example,
a sale of the claim under s. 30 of the
BIA
. However, because
third parties would similarly be unable to initiate an unexercised
equalization claim,
the practical effect of s. 7(2) of
the
FLA
is to limit the potential buyers market. What steps a trustee
in bankruptcy may or should take in realizing value from an unexercised
equalization claim that has vested in the trustee in bankruptcy is not a
question that is before the court. I leave that issue for another day.
(e)
Conclusions
[56]
In conclusion, I am of the view that the
unexercised but crystalized claim for equalization is a chose in action that,
on bankruptcy, constitutes property at the property-vesting stage of a
bankruptcy. However, s. 7(2) of the
FLA
prevents a trustee in
bankruptcy from initiating the claim for the recovery of the equalization
entitlement during the estate-administration stage of a bankruptcy. This is because
the required triggering event pursuant to s. 7(2) of the
FLA
, the initiation
of the application by a spouse, has not occurred.
(3)
Does the doctrine of federal paramountcy render
s. 7(2) of the
FLA
inoperative
?
[57]
The appellant argues that if s. 7(2) of the
FLA
prevents a trustee in bankruptcy from commencing a claim for equalization, then
the doctrine of federal paramountcy renders it constitutionally inoperative. In
the appellants submission, where, as here, a federal and a provincial statute
are independently valid, but a conflict prevents compliance with both laws,
then the provincial law, the
FLA
, will be read down to not conflict
with the federal statute, the
BIA
: see
Alberta (Attorney General)
v. Moloney
, 2015 SCC 51,
[2015] 3 S.C.R. 327, at
paras. 17-18, 29
.
[58]
The appellant explains that, by interpreting s.
7(2) of the
FLA
as preventing the trustee in bankruptcy from
initiating a claim for equalization, the trustee in bankruptcy is prevented
from realizing on an asset of the estate, the crystalized but unexercised right
to equalization, for the benefit of the bankrupts creditors. This frustrates
the equitable distribution of the bankrupts assets among the bankrupts
creditors, which is one of the purposes of the
BIA
:
Moloney
,
at para. 32.
[59]
Where the
BIA
tells the trustee in
bankruptcy to do something and the
FLA
prevents it, the provision of
the
FLA
is incompatible with the purpose of the
BIA
,
and the provisions are in conflict. The
laws cannot operate concurrently, and, as a result, the appellant submits that s.
7(2) of the
FLA
should be declared constitutionally inoperative by
reason of the doctrine of federal paramountcy.
[60]
I disagree. The right to equalization is a creation
of the provincial legislature. The province that created the right is free to
limit the circumstances in which an application for equalization can be
commenced. As I have explained, by providing that the right to commence an
equalization application is personal as between the spouses, the province has
made this equalization right subject to a triggering event. Only a spouse can
choose to commence that application. In a sense, this is no different than the conditions
imposed in s. 5(1) of the
FLA
, whereby the equalization of net family
properties can only occur if there is a divorce, a declaration of nullity of
marriage, or a separation with no reasonable prospect of resumed cohabitation.
[61]
The trustee in bankruptcy takes the property during
the property-vesting stage of bankruptcy in the form it was given by the
province, which is a property right that is subject to the triggering event. A
statutorily created asset subject to a condition over which the trustee in
bankruptcy has no control does not, in my view, make the section creating the
limitation incompatible with the purpose of the
BIA
,
as suggested by the appellant. Upon
bankruptcy, the trustee in bankruptcy gets no more than what any other
assignee, such as an estate trustee, would receive: that is, a right to pursue
an equalization claim once the decision is made by a spouse, and only a spouse,
to initiate the claim. Such an interpretation does not conflict with the
BIA
.
[62]
As stated earlier, while s. 7(2) of the
FLA
prevents a trustee in bankruptcy from initiating an unexercised equalization
claim, it does not necessarily prevent a trustee in bankruptcy from realizing value
from that cause of action during the estate-administration stage, although its
practical effect is to limit the trustee in bankruptcys options. In this
sense, there is no operational conflict between s. 7(2) of the
FLA
and
the scheme and purpose of the
BIA
.
[63]
I conclude that s. 7(2) of the
FLA
is
not in operational conflict with the
BIA
, nor does it frustrate the
purpose of the
BIA
. Therefore, the doctrine of federal paramountcy is
not applicable in the present appeal.
E.
DISPOSITION
[64]
For these reasons, I would dismiss the appeal. I
would award costs to the respondent in the agreed amount of $10,000, inclusive
of disbursements and applicable taxes.
Released: February 23, 2021 GRS
Paul Rouleau J.A.
I agree G.R. Strathy C.J.O.
I agree S. Coroza J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Scala v. Toronto (Police Services Board), 2021 ONCA
297
DATE: 20210505
DOCKET: C66893
Feldman, Harvison Young and Thorburn JJ.A.
BETWEEN
Felice Scala
and Catarina Scala
Appellant
and
Toronto Police Services
Board, Detective Todd Hall, Police Officer(s) John Doe and Police Officer(s) Jane
Doe
Respondents
Jonathan Shulman, for the
appellant
Douglas O. Smith and Sarah
Sweet, for the respondents
Heard and released: April 16, 2021 by videoconference
On appeal
from the judgment of Justice Andrew A. Sanfilippo of the Superior Court of
Justice, dated July 18, 2019, with reasons reported at 2019 ONSC 2239 and 2019
ONSC 4359.
REASONS
FOR DECISION
Basis for the Appeal
[1]
The appellant, Felice Scala, appeals the judgment in which the trial
judge denied his claim for damages resulting from the alleged excessive use of force
by police and the award of costs.
[2]
The key issue was whether the respondents, Toronto Police Services
Board, Detective Todd Hall, and other unidentified police officers (together the
Police Respondents) acted on reasonable grounds, [and were therefore]
justified in doing what [they are] required or authorized to do and in using as
much force as is necessary for that purpose within the meaning of s. 25(1) of
the
Criminal Code
and, if so, they are protected from
liability.
[3]
The appellant claims the trial judge made numerous errors of fact in
dismissing his claim for damages resulting from alleged excessive police force.
He claims the police respondents ought to have known of his health conditions, were
not justified in using force, and should reasonably have known the grounding
manoeuvre would cause him harm. They further claim that the trial judge erred
in determining that Mr. Scala did not comply with a demand to surrender, and
that police therefore used proper procedures and were justified in using force
to overcome resistance, and that Mr. Scala did not report injuries to police.
The Law of Excessive Use of Force and the Standard of Review
[4]
There is no dispute over the applicable law. In brief, in order to
obtain protection from civil liability, police must establish that the level of
force used to arrest was necessary, meaning that it was objectively reasonable
in the circumstances presented to the police at the time of the arrest:
Wilsdon
v. Durham Regional Police
, 2011
ONSC 3419,
at para 85;
R. v. Nasogaluak
,
[2010] 1 S.C.R. 206
,
at paras. 34-35.
Objectively reasonable has been defined as reasonable given the nature and
quality of the threat, the force used in response to it, and the
characteristics of the parties:
R. v. Power
,
2016 SKCA 29, 335
C.C.C. (3d) 317, at para 35.
[5]
The contested findings that form the basis of the judges conclusion are
all issues of fact for which the standard of review is palpable and overriding
error. In addition, a trial judges credibility assessments are entitled to a
high degree of deference.
The Positions of the Parties
Uncontested Facts
[6]
On July 10, 2008, the appellant Felice Scala and his son, Ralph, were
arrested while walking their pit-bull terrier. At the time, the appellant was
sixty-two years old.
[7]
As noted by the trial judge in his reasons, Mr. Scala was arrested on
charges of breach of recognizance and criminal harassment. He conceded at trial
that the police had probable cause for his arrest, were required or authorized
by law to perform the arrest and acted on reasonable grounds in doing so.
The Appellants Position
[8]
Mr. Scala and his wife, Catarina, commenced an action in 2010 alleging
that police used excessive force during Mr. Scalas arrest, were negligent and
breached their fiduciary duty to him, and that he suffered damages as a result.
[1]
[9]
Mr. Scala claims the police did not tell him he was being arrested;
threw him to the ground; and punched, kicked, and beat him while he was facedown
on the ground for 2-3 minutes. He said he asked the officers to stop and denied
that he resisted arrest or assaulted officers.
[10]
A
witness, who was also a friend of Mr. Scala, testified that he saw police kick
and punch the two men for 2-3 minutes and that Mr. Scala asked the officers to
stop but they did not.
[11]
Mr.
Scala claims that after he was taken to the police station, he asked to be
taken to the hospital, asked repeatedly to use the washroom but was ignored,
had to urinate on the floor of the detention room, was ordered to wipe it clean
with his sweater, and was deprived of his medication. Mr. Scala also alleged
that the police failed to complete required forms and reports.
The Respondents Position
[12]
The
Police Respondents deny that any officers kicked, punched, or kneed Mr. Scala.
The officers testified that they told Mr. Scala he was being arrested and he
was non-compliant. He was therefore taken to the ground in a controlled manner
by taking hold of one arm, thrusting Mr. Scala forward suddenly so he would
lose his balance, and then guiding him to the ground in a controlled fall. His
hands were taken from under his chest so that he could be handcuffed.
[13]
The
Police Respondents said Mr. Scala did not complain of any injuries and was not
refused permission to use the washroom. One officer testified he accompanied
Mr. Scala to the washroom. Another testified that he attended Mr. Scalas
house and obtained his medication from Ms. Scala.
The Trial Judges Decision
[14]
The
trial took place some ten-and-a-half years after Mr. Scalas arrest. In
addition to the testimony of witnesses, the trial judge considered and reviewed
the booking video and the medical records from the days following the arrest.
He found many inconsistencies and inaccuracies in Mr. Scalas evidence and
concluded that Mr. Scalas account of the arrest and detention was neither
credible nor reliable. He found the evidence of the police officers, on the
other hand, to be credible and reliable, and he therefore accepted their
evidence.
[15]
The
trial judge offered reasons for his rejection of Mr. Scalas evidence, which
included the following internal inconsistencies:
(i)
In
examination for discovery, Mr. Scala testified that he was kneed and punched in
the head, whereas at trial he denied that any of the blows were administered to
his head. He testified earlier that he had sustained a head injury, but admitted
at trial that he had not;
(ii)
In discovery,
he stated that he was beaten by two police officers, whereas at trial he
testified that the beating was administered by three police officers. In the
video of his booking, taken within a half-hour of the arrest, Mr. Scala stated:
They six guys and me; and,
(iii)
Mr. Scala
testified at discovery that the police officers kneed him on the top of his
upper body and head and punched him in his shoulders and head. At trial he
stated that he was struck only on his back and legs.
[16]
The
trial judge found that [t]hese inconsistencies are incapable of being
explained as the by-product of the passage of time, or Mr. Scalas qualities as
an historian. They are fundamental and foundational to the veracity of his
explanation of what happened on July 10, 2008, so much so that I had to
question which version of the Plaintiffs account of events I was being asked
to accept.
[17]
The
trial judge further held that there were aspects of Mr. Scalas account of
events that were inherently not plausible, including the following:
(i)
When
the police officers approached him, they did not utter a single word;
(ii)
He
was not told that he was being arrested at any time from his apprehension to
his transportation to the police station;
(iii)
He was not
handcuffed after being apprehended, and when transported to the police station;
and,
(iv)
After being
placed in the police cruiser, he was driven up and down the street, with the
police stating loudly that Scala is in the car.
[18]
The
trial judge found these statements were inconsistent with an operation
conducted in daylight in public view on a residential street.
[19]
The
trial judge also held that there were elements of Mr. Scalas testimony that
were simply shown to be inaccurate, including the following:
(i)
His
testimony that he was bleeding when he was taken to the police station. There was
no evidence of this on the booking video, or in the examination by the medical
caregivers;
(ii)
He
testified that when he was taken to the police station, his pants were torn.
This was not borne out by the booking video;
(iii)
His
evidence that he asked the booking officer to be taken to the hospital to
obtain care for his injuries. The booking video shows that Mr. Scala did not
make any such request to the booking officer. Indeed, when asked directly by that
officer whether he had any injuries, he did not mention any;
(iv)
His statement
that he was forced to clean up a soiled floor in the detention area with his
sweater, when the booking video shows that he did not have a sweater;
(v)
At
trial, Mr. Scala stated that he did not drink any alcoholic beverages on the
day of the arrest and did not have a knife in his possession. The video shows
that, at the time of booking, Mr. Scala stated that he had a glass of wine with
his lunch, and a small knife was found in his possession;
(vi)
Mr. Scala
testified that he did not have any medical issues with his back or leg prior to
the arrest and denied that he had undergone any medical diagnostic assessments
in relation to any such issues. The medical records show that Mr. Scala
complained to his physicians of back pain and left leg pain as much as three
years before the arrest, and had previously undergone a nerve conduction study
to assist in the diagnosis of these issues; and,
(vii)
Mr. Scala testified
that he had never been convicted of a criminal offence. Police records show
that he was convicted, on June 1, 2009, for failing to comply with a peace bond
and, on June 3, 2010, for failing to comply with a recognizance.
[20]
Lastly,
he held that Mr. Scalas evidence was not corroborated by the booking video or
the photographs, neither of which support the extent of injury that he alleges.
[21]
By
contrast, the trial judge found the evidence of the several police officers to
be credible and reliable, corroborated by the testimony of the other police
officers, internally consistent, plausible and consistent with the recorded
evidence.
[22]
The
trial judge therefore found that the officers did not punch, kick, knee, or
beat Mr. Scala; that they told Mr. Scala he was under arrest and why; that Mr. Scala
resisted arrest; and that the officers executed a takedown and controlled fall,
pulled Mr. Scalas hands out to handcuff him, and drove him directly to the
police station. He found that Mr. Scala was not denied access to a washroom, but
rather that he was accompanied to the washroom, he was not ordered to clean up
urine, and he was not deprived of medications. The trial judge accepted that,
in the course of the arrest, Mr. Scala had suffered some trauma that resulted
in bruising on his right thigh and calf, which were the only injuries caused by
the officers during the arrest.
[23]
The
trial judge also held that the takedown would not have been required but for
the lack of compliance, handcuffing Mr. Scala was reasonable, and the amount of
force used was necessary, justified, and not excessive.
[24]
While
not necessary to the determination, the trial judge would have drawn an adverse
inference from Mr. Scalas failure to call his wife and son, who witnessed the
arrest.
[25]
The
trial judge therefore held that, on the evidence before him, Mr. Scalas claims
of excessive use of force should be dismissed. He also rejected Mr. Scalas
submission of breach of fiduciary duty, because it was not pleaded and only
raised in closing submissions. If Mr. Scala had established liability, the
trial judge would have awarded general damages of $15,000 for pain and
suffering.
[26]
The
trial judge also considered all of the arguments made by the parties on the
issue of costs and exercised his discretion in awarding costs of the trial to
the police respondents.
Conclusion
[27]
The
trial judges conclusion to dismiss the claim for excessive force and damages resulting
therefrom was based largely on his findings of fact and credibility which are
reviewed on a standard of palpable and overriding error.
[28]
The
appellant claims that most of the important aspects of the story as recounted
by police should not have been accepted and that the trial judge erred in rejecting
most of his evidence as being neither credible nor reliable.
[29]
We
disagree.
[30]
The
trial judge carefully evaluated the evidence led at trial, made determinations
as to which witnesses he found credible and which witnesses he did not,
properly instructed himself as to the applicable law and then applied that law
to the facts as found by him. In so doing, he committed no reviewable error. His
findings were amply supported by the evidence and there is no basis to overturn
those conclusions.
[31]
As
noted at the outset, the appellant also raised the issue of trial costs in his
notice of appeal and during his oral submissions. He claims this is public interest
litigation and that the quantum of costs ordered by the trial judge is
unreasonable and unfair in these circumstances given Mr. Scalas medical
conditions and the allegation that he did not resist arrest, and that it would
be inconsistent to hold Ms. Scala jointly and severally liable for the
costs while also ordering her alone to pay $5,000 in costs.
[32]
We
note that the trial judge did not in fact hold Ms. Scala jointly and severally
liable.
[33]
The
trial judge ordered Mr. Scala pay costs in the amount of $50,000, inclusive of
HST, and $17,419.40 in disbursements; and Ms. Scala pay costs in the amount of
$5,000, all inclusive.
[34]
We
see no basis to interfere with the exercise of the trial judges discretion in making
this award.
[35]
For
these reasons the appeal is dismissed.
[36]
Partial
indemnity costs are payable to the police respondents by the appellant, Felice
Scala, in the amount of $10,000 inclusive of HST and disbursements.
K. Feldman J.A.
A. Harvison Young
J.A.
J.A. Thorburn J.A.
[1]
Catarina Scala withdrew her claims at trial and did not
participate in the trial.
|
COURT
OF APPEAL FOR ONTARIO
CITATION: Segura Mosquera v. Ottawa Public
Library, 2021 ONCA 275
DATE: 20210428
DOCKET: C67308
Huscroft, Nordheimer and Harvison
Young JJ.A.
BETWEEN
Gladys
M. Segura Mosquera
Appellant
and
Ottawa
Public Library
Respondent
Gladys M. Segura Mosquera, in person
Stuart J. Huxley, for the respondent
Heard: April 26, 2021 by video
conference
REASONS FOR DECISION
[1]
Ms. Segura Mosquera appeals from the order of
Parfett J. of the Superior Court of Justice dated July 2, 2019 that dismissed
her application for directions along with other interlocutory and injunctive
relief. The appellant had brought a Notice of Application seeking directions and
relief respecting a proposed class action that had yet to be commenced.
[2]
A preliminary jurisdiction issue arose. After
hearing submissions from the parties, we quashed the appeal for lack of
jurisdiction, with reasons to follow. We now provide our reasons.
[3]
This court has jurisdiction to hear appeals from
final orders of the Superior Court of Justice, with certain exceptions,
pursuant to s. 6(1)(b) of the
Courts of Justice Act
, R.S.O. 1990, c.
C.43.
[4]
The order in issue here is not a final order. It
did not dispose of a proceeding nor did it finally determine an issue in a
proceeding:
Ball v. Donais
(1993), 13 O.R. (3d) 322 (C.A.). The order
simply dismissed the appellants request for directions and other relief under
r. 37.17 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 in
advance of commencing a proceeding. The appellant submits that this is a mere technicality,
but it is not. It goes to the central issue whether this court has jurisdiction
to hear the matter. We do not.
[5]
Consequently, the appeal is quashed. The
respondent did not seek costs and no costs are ordered.
Grant
Huscroft J.A.
I.V.B.
Nordheimer J.A.
A. Harvison
Young J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Shaver-Kudell Manufacturing Inc. v. Knight
Manufacturing Inc., 2021 ONCA 202
DATE: 20210330
DOCKET: M52214, M52240
van Rensburg J.A.
(Motions Judge)
BETWEEN
Shaver-Kudell
Manufacturing Inc.
Plaintiff
(Respondent/Responding Party on M52214/
Moving Party on M52240)
and
Knight
Manufacturing Inc., Lucy Shaver, Dusko Ballmer and
Alexander
Knecht
Defendants
(
Appellant
/
Moving Party
on M52214/
Responding Party
on M52240)
Ian Klaiman, for the appellant
Charles Hammond, for the respondent
Heard: March 11, 2021 by video conference
REASONS FOR DECISION
I
Introduction
[1]
The appellant, Alexander Knecht, is an
undischarged bankrupt. He moved for an extension of time to file a notice of appeal
from the order of M. Smith J. (the motion judge), dated December 9, 2020.
That order declared that his debts and liabilities in certain proceedings with
the respondent, Shaver-Kudell Manufacturing Inc. (Shaver-Kudell), would
survive his discharge from bankruptcy. It also lifted the stay of proceedings
to permit Shaver-Kudell to continue proceedings against him. Knecht required an
extension of time as a result of an administrative issue that arose when he
tried to file his notice of appeal.
[2]
Shaver-Kudell opposed the motion primarily on
the basis that there is no right to appeal without leave under s. 193 of the
Bankruptcy
and Insolvency Act
, R.S.C. 1985, c. B-3
(the BIA). Shaver-Kudell also argued that the extension should be
refused because the appeal is lacking in merit.
[3]
Knecht asserted that he had the right to appeal
and, in the alternative, sought leave to appeal under s. 193(e) of the BIA. He
argued that he had met the test for an extension of time. At the conclusion of
the oral hearing of the motion I granted the requested extension, with
reasons to follow. These are my reasons.
[4]
These are also my reasons in respect of Shaver-Kudells
cross-motion for security for costs. For the reasons that follow, that motion
is dismissed.
II
Relevant Facts
[5]
The parties were involved in litigation in the
Superior Court (the Action). On August 7, 2018, following a trial on
liability, R. Smith J. concluded, among other things, that Knecht and other
defendants committed a breach of confidence and misappropriated Shaver-Kudells
trade secrets. He awarded costs against the defendants for a prior summary
judgment and costs of the trial (a total of $390,521).
[6]
The Action was scheduled to continue with a
trial on the issue of damages in April 2020. In the interim, on March 2, 2020,
Knecht filed a Notice of Intention to Make a Proposal under s. 50.4(1) of the
BIA. The proposal was refused by his creditors, and he was assigned into
bankruptcy on April 27, 2020. Pursuant to s. 69(1) of the BIA, all
proceedings against Knecht are stayed during the bankruptcy.
[7]
Shaver-Kudell brought a motion for an order
declaring that Knechts discharge from bankruptcy would not release any debts or
liabilities arising from its claims against him in the Action, including any
outstanding or future costs awards. Shaver-Kudell relied on s. 178(1)(e) of the
BIA, which provides that an order of discharge does not release the bankrupt
from any debt or liability resulting from obtaining property or services by
false pretences or fraudulent misrepresentation.... Shaver-Kudell also sought
an order under s. 69.4 of the BIA lifting the stay.
[8]
The motion judge found that R. Smith J.s
findings in the trial on liability pointed to Knechts deceitful and dishonest
conduct which engages section 178(1)(e). Knecht participated in a scheme to
copy Shaver-Kudells trade secrets and make unauthorized use of this property
for his financial gain. In this way, he had obtained property by false
pretences. Accordingly, the motion judge found that Knechts debts arising from
claims in the Actionincluding the outstanding costs awardwould survive his
bankruptcy discharge.
[9]
Having found that Knechts debts and liabilities
in the Action would not be released by his bankruptcy discharge, the motion
judge determined that Shaver-Kudell would be prejudiced if it could not proceed
to judgment against Knecht regarding damages. On this basis, the motion judge also
declared that the stay under s. 69(1) of the BIA would no longer operate with
respect to the Action.
[10]
Knecht served his notice of appeal of the motion
judges order on December 17, 2020. Assuming that the order under appeal was an
order under the BIA, Knechts counsel attempted to file the notice of appeal
with the Registrar of the court appealed from, the Superior Court in Ottawa, in
accordance with the
Bankruptcy and Insolvency General Rules
, C.R.C., c. 368, r. 31(1). The Ottawa court refused to accept the
filing because there was no bankruptcy court file number. While attempting to
sort out this administrative problem, Knechts counsel tried to file the notice
of appeal directly in this court. However, because more than ten days had
passed from the date of service of the notice of appeal, an extension of time
was required.
III
The Extension of Time Motion
[11]
The test for an extension of time is whether it
is in the interests of justice that the extension be granted. Relevant factors
include: whether there was a
bona fide
intention
to appeal during the appeal period; the length of and explanation for the
delay; prejudice to the opposing party; and the merits of the proposed appeal.
The enumerated factors are not exhaustive and may vary in importance depending
on the circumstances. The overriding consideration is whether the justice of
the case requires an extension:
Denomme v. McArthur
, 2013 ONCA 694 (In Chambers), at para. 7.
[12]
As I have indicated, the motion for an extension
was opposed by Shaver-Kudell primarily on the basis that there is no appeal as
of right. I turn to consider this issue first.
Does the appellant have the right to appeal
the motion judges order?
(1)
The governing appeal route
[13]
If the motion judges order was made under the
BIA, the appeal route would be governed by s. 193 of the BIA, which provides for
appeals as of right in some cases and requires leave to appeal in others. Section
193 provides as follows:
193
Unless otherwise expressly provided, an appeal lies to the Court of Appeal from
any order or decision of a judge of the court in the following cases:
(a) If the point at issue
involves future rights;
(b) If the order or decision is
likely to affect other cases of a similar nature in the bankruptcy proceedings;
(c) If the property involved in
the appeal exceeds in value ten thousand dollars;
(d) From the grant of or refusal
to grant a discharge if the aggregate unpaid claims of creditors exceed five
hundred dollars; and
(e) In any other case by leave of
a judge of the Court of Appeal.
[14]
The proper appeal route is under s. 193 where
the order sought to be appealed is granted in reliance on jurisdiction under
the BIA:
Business Development Bank of Canada v. Astoria Organic
Matters Ltd.
, 2019 ONCA 269, 69 C.B.R. (6th) 13, at para.
21. If the motion judges order was not made in reliance on jurisdiction under
the BIA, it would be appealable to this court under s. 6(1) of the
Courts
of Justice Act
, R.S.O. 1990, c. C.43.
[15]
The question of jurisdiction arises in this case
because the motion judges order has two components: the declaration under s.
178(1)(e) of the BIA and the lift-stay order. The lift-stay order could only be
made under s. 69.4 of the BIA. By contrast, declaratory orders under s. 178(1)
do not engage the exercise of a power under the BIA. They are made in the
exercise of the courts general jurisdiction: see e.g.
Water Matrix
Inc. v. Carnevale
, 2018 ONSC 6436, 65 C.B.R. (6th) 109, at
para. 22;
Beneficial Finance Co. v. Durward
(1961)
, 2 C.B.R. (N.S.)
173 (Ont. Co. Ct.), at para. 14; and
Graves v. Hughes
, 2001 NSSC 68, 25
C.B.R.
(4th) 255, at paras. 3-12. As such, orders declaring that a debt or liability
survives a bankruptcy discharge typically are appealed directly to the Court of
Appeal, without leave under the BIA: see e.g.
Gray (Re)
, 2014 ONCA 236, 119 O.R. (3d) 710;
Korea Data Systems
(USA), Inc. v. Aamazing Tehnologies Inc.
, 2015 ONCA 465, 126
O.R. (3d) 81;
H.Y. Louie Co. Limited v. Bowick
,
2015 BCCA 256, 25 C.B.R. (6th) 221; and
Lawyers Professional Indemnity
Company v. Rodriguez
, 2018 ONCA 171, 139 O.R. (3d) 641,
leave to appeal refused, [2018] S.C.C.A. No. 128.
[16]
The determination of whether a debt survives
bankruptcy can also be made in bankruptcy proceedings and not in a separate
civil action, particularly where the moving party also seeks leave to commence
or continue an action against the bankrupt: see
Re McKee
(1997), 47 C.B.R. (3d) 70 (Alta. Bankruptcy Registrar), where such
a declaration was made while bankruptcy proceedings were pending, but prior to
the discharge hearing. See also
Re Mariyanayagam
(1998), 10 C.B.R. (4th) 105 (Ont. Gen. Div.), at para. 4;
Re
Bissonette
, 2006 CarswellOnt 7023 (Bankruptcy Registrar),
at para. 3;
Re Di Paola
(2006), 84 O.R.
(3d) 554 (C.A., In Chambers), at para. 5;
Re Berger
, 2010 ONSC 4376, 70 C.B.R. (5th) 225, (Bankruptcy Registrar), at
para. 2.
[17]
This court has previously considered the question
of jurisdiction where the order under appeal was made only partly in reliance
on jurisdiction under the BIA. In
Dal Bianco v. Deem Management
Services Limited
, 2020 ONCA 585, 82 C.B.R. (6th) 161,
part of the order under appeal (indeed the substantive issue on the appeal)
would have been appealable directly to this court under the
Construction
Act
, R.S.O. 1990, c. C.30, but the order was made in an
application for directions in a receivership. This court held that the
substance of the order was in proceedings authorized by the BIA: it responded
to a motion for the courts directions brought under s. 249 of the [BIA] to
help the receiver distribute the remaining funds in the receivership. Because
the BIA was a source of jurisdiction for the courts order, the appeal route
was under s. 193: at para. 12. See also
Third Eye Capital
Corporation v. Ressources Dianor Inc./Dianor Resources Inc.
, 2019 ONCA 508, 70 C.B.R. (6th) 181, at para. 129 (where jurisdiction
for an appeal from an order approving a receivers sale of assets, of which a
vesting order was a component, was under the BIA).
[18]
Applying these authorities, I conclude that the appeal
route for the motion judges order is under s. 193 of the BIA. The order was
made on a motion during the currency of Knechts bankruptcy, and, as part of
the order the motion judge lifted the stay under s. 69(1) of the BIA to permit the
Action to continue against the bankrupt.
[19]
I turn now to consider whether there is an
appeal as of right of the order or whether leave to appeal is required.
(2)
Does a right to appeal lie under s. 193?
[20]
Knecht submits that he has a right to appeal the
motion judges order under ss. 193(a), (b) and (c). I agree that the order is
appealable under s. 193(c). While it is unnecessary to consider other provisions
of s. 193, I suggest that the order is also appealable under s. 193(a).
[21]
Section 193(c) provides for a right of appeal
if the property involved in the appeal exceeds in value ten thousand dollars.
I recognize that the scope of that provision is a matter of debate among
appellate courts. In
2403177 Ontario Inc. v. Bending Lake Iron Group
Ltd.
, 2016 ONCA 225, 35 C.B.R. (6th) 102 (In Chambers),
Brown J.A. construed s. 193(c) narrowly, and held that it would not provide a
right of appeal from orders that (i) are procedural in nature; (ii) do not
bring into play the value of the debtors property; or (iii) do not result in a
gain or loss (in the sense of involving some element of a final determination
of the economic interests of a claimant in the debtor): at paras. 53, 61. This
approach has been followed by a number of decisions of this court, but has been
called into question in the decisions of some other appellate courts: see e.g.,
MNP Ltd. v. Wilkes
, 2020 SKCA 66, 80 C.B.R.
(6th) 1, interpreting s. 193(c) as applying when, on the evidence, there is at
least $10,000 at stake in the appeal: at para. 63.
[22]
I am satisfied that, irrespective of the
approach taken, the motion judges order falls within s. 193(c). In the circumstances
of this case, I would follow the approach taken by Nordheimer J.A. in
Royal
Bank of Canada v. Bodanis
, 2020 ONCA 185, 78 C.B.R. (6th)
165 (In Chambers). He distinguished cases like
Bending Lake
that involved proposed appeals of orders made in receivership proceedings,
and he determined that an appeal of bankruptcy orders in two proceedings where
the debts relied on exceeded $10,000 fell under s. 193(c). Nordheimer J.A.
explained that s. 193(c) clearly applies
where the appellants entire
property ha[s] been taken out of their control and placed into the hands of a
Trustee in Bankruptcy, who has the right to dispose of that property and
distribute it among the creditors, without further court intervention: at
para. 9.
[23]
Similarly, the debts and liabilities that will
survive Knechts discharge under the motion judges order exceed $10,000. And the
effect of the order under appeal is that Knechts property exceeding $10,000 in
value will be subject to Shaver-Kudells enforcement of its judgment in the
Action, including the costs order already made, following his discharge from
bankruptcy.
[24]
In short, the property involved in the appeal of
the motion judges declaration under s. 178 exceeds in value $10,000. Since the
lift-stay provision is part of the motion judges order and dependent on that
declaration, the entire order is subject to appeal as of right under s. 193(c).
[25]
The conclusion that s. 193(c) applies can also
be reached by applying the approach in
Bending Lake
. The motion judges order is not procedural in nature, it brings
into play the value of Knechts property that will or will not be available to
satisfy Shaver-Kudells claims as his creditor, and it makes a final
determination of Shaver-Kudells economic interests, resulting in a gain to
that party in excess of $10,000.
[26]
I am also of the view that the order under
appeal falls within the scope of s. 193(a) of the BIA. Section 193(a) provides
for a right of appeal if the point at issue involves future rights. Future
rights have been described as rights which could not at the present time be
asserted but which will come into existence at a future time:
Elias
v. Hutchison
, 1981 ABCA 31,
121 D.L.R. (3d) 95, at para. 28, cited with approval in
Ravelston
Corp., Re
(2005), 24 C.B.R. (5th) 256, (Ont. C.A.), at
para. 19. The pertinent question is whether the rights engaged in the appeal
are future rights or presently existing rights that are exercisable in the
future:
Business Development Bank of Canada v. Pine Tree Resorts
Inc.
, 2013 ONCA 282, 115 O.R. (3d) 617 (In Chambers), at
para. 16.
[27]
Shaver-Kudell submits that its rights arose as
soon as R. Smith J. determined the liability issues in the Action. All of the
circumstances were present such that s. 178, by operation of law, would ensure
that the debts and liabilities arising therefrom would survive Knechts
bankruptcy discharge. This is a question of present rights that can be
exercised in the future.
[28]
I disagree. While s. 178 operates as a matter of
law, it is necessary for a creditor to obtain a court declaration that a debt
survives bankruptcy:
Canada (Attorney General) v. Bourassa (Trustee
of)
, 2002 ABCA 205, 312 A.R. 19, at para. 5. Shaver-Kudell
did not obtain the s. 178 declaration until December 2020.
[29]
In my view, the motion judges order involves
the future rights of both parties: Knechts right to be discharged from the
debts and liabilities arising out of the judgments in the Action and Shaver-Kudells
right, as a creditor of the bankrupt, to enforce the judgments following his discharge
from bankruptcy.
[30]
While Shaver-Kudell is able to continue
proceedings against Knecht, it does not have a present right to enforce the
judgment of R. Smith J. against Knecht. This right is suspended by the
bankruptcy and will be eliminated by the discharge, absent the order declaring its
survival. In light of the motion judges order, this right will arise in the
future, upon Knechts discharge. As lower courts have noted, [a] creditors
right of action for a debt not released by the debtors discharge arises upon
the discharge of the debtor:
Lang v. Soyatt
(1988), 68 C.B.R. (N.S.) 201, (Ont. Sup. Ct.), at para. 13;
Re
Wilson
(1930), 11 C.B.R. 425 (Ont. Sup. Ct.). See also
Re
Cameron
, 2002 ABCA 183, 37 C.B.R. (4th) 78 (In Chambers),
at paras. 5-6.
Extension of Time
[31]
Apart from arguing the jurisdiction point, Shaver-Kudell
asserted that the extension of time should be refused because the appeal lacks
merit. Shaver-Kudell did not dispute that Knecht formed a
bona fide
intention to appeal within the relevant timeframe, nor did
it oppose the requested extension on the basis of the length of or explanation
for the delay in filing the notice of appeal.
[32]
Turning to the merits of the appeal, the
question is only whether there is so little merit in the proposed appeal that
the appellant should be denied [his] important right of appeal:
40
Park Lane Circle v. Aiello
, 2019 ONCA 451 (In Chambers),
at para. 8. It is sufficient to say that the appeal has at least an arguable
chance of success.
[33]
Among other things, the appeal raises legitimate
questions about the interpretation of obtaining property by false pretences
within s. 178(1)(e), and whether the test under that provision was properly
applied in the circumstances in this case. In finding that Knechts conduct
fell within s. 178(1)(e), the motion judge declined to adopt the
Criminal
Code
definition of false pretences, which he found would amount to a
requirement of fraudulent misrepresentation.
As Knecht points
out, there are cases that follow the definition of false pretences in the
Criminal
Code
, or at least suggest that there
must be a finding of fraud or an actionable misrepresentation (which were not
present in this case):
see e.g.
H.Y.
Louie Co. v. Bowick
, 2015 BCCA 363, 28 C.B.R. (6th) 1;
Celanese
Canada Inc. v. Murray Demolition Corp.
, [2010] O.J. No.
6347 (S.C.), at para. 22; and
Toronto Dominion Bank v. Cushing
, 2007 BCSC 1581, 37 C.B.R. (5th) 60.
[34]
For these reasons the motion to extend time to
file the notice of appeal was granted.
IV
Motion for Security for Costs
[35]
An order for security for costs may be made
under r. 61.06(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, where (a) there is good reason to believe
that the appeal is frivolous and vexatious and that the appellant has
insufficient assets in Ontario to pay the costs of the appeal; (b) an order for
security for costs could be made against the appellant under r. 56.01; or (c)
for other good reason. Rule 61.06(1) is permissive, not mandatory. In
determining whether an order should be made for security for costs, the
overarching principle to be applied to all the circumstances is the justness
of the order sought:
Yaiguaje v. Chevron Corporation
, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 19.
[36]
Shaver-Kudell moves for security for costs of
the appeal under r. 61.06(1)(c). It argues that security under this provision
is warranted because the appeal has little merit and it will be difficult to
recover costs of the appeal from Knecht, who is bankrupt. Shaver-Kudell points
to the unpaid costs award of almost $400,000, that has been outstanding since
2019, and contends that Knecht should not be able to litigate with impunity
where the reasonable inference is that someone else is paying the costs of his
appeal.
[37]
In response to the motion, Knecht asserts that
his appeal has merit. He has not paid the outstanding costs because he is bankrupt,
and if he is successful in his appeal he will be discharged from
Shaver-Kudells claims. Knecht contends that he is impecunious and unable to
pay security for costs; he has provided copies of the Creditors Package in his
bankruptcy and information about his earnings and expenses. His assets are
vested in the trustee, and although he is working and earning income, any
surplus income he earns will vest in the trustee.
[38]
To grant security for costs under r. 61.06(1)(c),
the other good reason must be compelling. Resort is to this provision when
the respondent has been unable to obtain security under the other two
categories, and security for costs under r. 61.06(1)(c) should not be made
routinely:
Combined Air Mechanical Services Inc. v. Flesch
, 2010 ONCA 633, 268 O.A.C. 172 (In Chambers), at para. 8. Security
for costs has been awarded under this provision where an appeal has a low
prospect of success and the appellant has the ability to pay costs, but it
would be nearly impossible to collect such costs:
Perron v. Perron
, 2011 ONCA 776, 286 O.A.C. 178 (In Chambers), at para. 23;
Henderson
v. Wright
, 2016 ONCA 89, 345 O.A.C. 231 (In Chambers), at
para. 27. Other examples include circumstances where there has been a finding
that the appellant committed fraud, particularly if coupled with a finding that
the appellant took steps to put his assets out of the reach of his creditors:
York
University v. Markicevic
, 2017 ONCA 651 (In Chambers), at
para. 58.
[39]
This is not such a case. I have determined that Knecht
has a right of appeal, and that the appeal is of arguable merit. Furthermore, there
has not been any finding that Knecht committed fraud or tried to put his assets
out of reach of his creditors. His failure to pay the outstanding costs order of
R. Smith J. is not (as in some cases) evidence of intransigence or contempt for
orders of the court. Knecht is bankrupt and but for the order under appeal, his
debts and liabilities in the Action, including the outstanding costs order,
will not survive his discharge from bankruptcy.
[40]
In these circumstances, Shaver-Kudell has not met the test for
security for costs and its motion is dismissed.
V
Disposition
[41]
For
these reasons, Knechts motion for an extension of time was granted and
Shaver-Kudells motion for security for costs is dismissed.
If
the parties are unable to agree on the costs of the motions, they may provide
their written submissions not exceeding three pages each (and filed
electronically at coa.e-file@ontario.ca), within ten days of these reasons.
K. van Rensburg J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Spadacini Kelava v. Kelava, 2021
ONCA 345
DATE: 20210519
DOCKET: M52443 (M52096)
Jamal
J.A. (Motions Judge)
BETWEEN
Joelle
Spadacini Kelava
Responding Party
and
David George
Kelava
Moving Party
Donna Wowk, for the moving party
Martha McCarthy, for the responding
party
Heard: May 17, 2021 by video conference
REASONS
FOR DECISION
[1]
The moving party husband (husband) moves to stay
portions of the order of Kurz J. of the Superior Court of Justice made on
December 17, 2020 (Order) declaring that the responding party wife (wife)
is a 50% joint owner of the matrimonial home and directing it to be listed for
sale by March 1, 2021.
[2]
The husbands materials on the motion for the
stay were unclear as to whether he sought a stay pending only the decision on his
motion for leave to appeal to this court from the Order, or whether, if leave was
granted, he sought a stay pending the decision on any appeal. In oral
submissions, however, counsel for the husband clarified that he seeks a stay pending
only the decision on his motion for leave to appeal.
[3]
The husband tried in mid-February 2021 to obtain
the wifes consent to stay the Order pending a decision on his motion for leave
to appeal, but she did not consent. The husband has thus been in breach of the
Order for about 11 weeks.
[4]
For the reasons that follow, the motion to stay
the Order is dismissed.
Background
[5]
The parties married in 2000. They have two
children of the marriage, aged 12 and 11. Both children have special needs. The
younger child has severe autism, while the older child has Attention Deficit
Hyperactivity Disorder or ADHD.
[6]
In 2006, the parties bought a five-bedroom matrimonial
home in Oakville. The wife contributed $120,000 of her savings towards the purchase
price and was jointly on the mortgage covenant. For a long time, both the
husband and wife believed they jointly owned the matrimonial home.
[7]
In 2014, the wife relocated with the children to
Indianapolis to obtain specialized treatment for their younger childs autism.
The husband stayed in Ontario. About a year later, the parties separated and
the wife began family law proceedings in Ontario.
[8]
The husband and wife arbitrated their family law
dispute before an arbitrator. In their financial statements filed with their
pleadings, both parties listed the matrimonial home as jointly owned. Both
continued to believe this and represented this position in the family law
proceedings until about the end of May 2019. At that time, when refinancing the
matrimonial home, the husband learned that it was registered in his name alone.
The weekend before the arbitration began in July 2019, the husband now claimed
that the matrimonial home was his alone and that only he should benefit from
any post-separation increase in value during the four years since the parties separation.
[9]
The arbitrator rendered an award dated September
10, 2019, addressing both parenting and financial matters. He ordered the
children returned to the Toronto area. He rejected the wifes argument that the
husband should be estopped from claiming that the matrimonial home was his alone
and decided that it should be treated as solely the husbands asset for equalization
purposes.
[10]
Both parties appealed the arbitrators award.
The wifes appeal focussed on the return of the children to Ontario and the
treatment of the matrimonial home as solely the husbands asset.
[11]
The appeal was heard by Kurz J. (appeal judge)
of the Superior Court of Justice. He decided the more pressing parenting issues
in reasons dated September 16, 2020, reported as
Spadacini-Kelava v. Kelava
,
2020 ONSC 5561, upholding the arbitrators order that the children be returned
to Ontario. He then decided the financial issues in reasons dated December 17,
2020, reported as
Spadacini-Kelava v. Kelava
, 2020 ONSC 7907, 52
R.F.L. (8th) 143, finding that the matrimonial home should be treated as
jointly owned. Since the husband had taken the property off the market, the
appeal judge ordered that it be listed for sale by March 1, 2021.
[12]
As ordered by the appeal judge, the wife returned
to Ontario in December 2020. Her unchallenged evidence on this motion is that,
for the past five months, she and the children have been living in her parents
bungalow. One child shares a bed with his grandmother, while the wife and the
other child sleep on a couch in the basement. The wife cares for the children
full-time. Without the balance of the equalization payment owed to her or
access to the equity in the matrimonial home, she cannot afford a down payment
or qualify for a mortgage.
[13]
On January 6, 2021, the husband filed his notice
of motion for leave to appeal to this court from the Order of the appeal judge.
He seeks leave to appeal on various grounds, including alleged procedural
unfairness, errors of law, and errors of mixed fact and law.
[14]
On April 28, 2021, the husband moved to stay the
appeal judges Order requiring that the matrimonial home be listed for sale by
March 1, 2021.
[15]
The husband has no statutory right to appeal to
this court. He has exercised a first right of appeal to the Superior Court, without
leave, as provided under the parties mediation-arbitration agreement:
Arbitration
Act, 1991
, S.O. 1991, c. 17, ss. 45(2), (3) and (6). A second appeal
requires leave of this court:
Arbitration Act, 1991
, s. 49.
The
Test for a Stay
[16]
To obtain a stay of a judgment pending a motion
for leave to appeal, a moving party must meet the three-part test for an
interlocutory injunction: (1) a serious question to be determined on the motion
for leave to appeal; (2) the moving party will suffer irreparable harm if the
stay is denied; and (3) the balance of convenience favours granting the stay:
RJR
MacDonald Inc. v. Canada (Attorney General)
, [1994] 1 S.C.R. 311, at p.
334.
[17]
In applying this test, the court is mindful that
[t]hese three criteria are not watertight compartments. The strength of one
may compensate for the weakness of another. Generally, the court must decide
whether the interests of justice call for a stay:
Circuit World Corp. v.
Lesperance
(1997), 33 O.R. (3d) 674 (C.A.), at p. 677.
Application to This Case
(1)
Serious question to be determined
[18]
The threshold to establish a serious question to
be determined is low. The court must make a preliminary assessment of the
merits of the case and determine whether the issues are neither frivolous nor
vexatious:
RJR MacDonald
, at p. 337;
Circuit World
, at
p. 677.
[19]
The husbands notice of motion for leave to
appeal raises several grounds, including alleged procedural unfairness, errors
of law, and errors of mixed fact and law. He asserts that the appeal judge
erred because the wife did not apply for ownership of the matrimonial home at
the arbitration or plead material facts supporting such an application and that
she made these arguments for the first time on appeal. He also claims that the
appeal judge decided new arguments on appeal relating to issue estoppel,
res
judicata
, and proprietary estoppel, largely on his own initiative.
[20]
During the oral argument, the wifes counsel fairly
conceded that the question of whether the court should grant leave to appeal
from the order declaring the wife the half-owner of the matrimonial home is not
frivolous or vexatious, although she contended other aspects of the leave
motion are baseless.
[21]
I accept and agree with the wifes concession.
Although I have serious doubts about whether the husband can meet the stringent
test for leave to appeal, the motion for leave to appeal is neither frivolous
nor vexatious. The husband thus meets the low threshold to raise a serious
issue.
(2)
Irreparable harm
[22]
Irreparable harm is harm which either cannot be
quantified in monetary terms or which cannot be cured, usually because one
party cannot collect damages from the other:
RJR MacDonald
, at p.
341.
[23]
The husband asserts that he will suffer
irreparable harm in two respects if the stay is denied.
[24]
First, he says that the Order requires that he
list for sale an asset the matrimonial home that he does not want to list for
sale and that he would not have to list for sale if he obtains leave to appeal
and then wins the appeal.
[25]
I do not accept this submission. On the evidence
before me, the husband has not established irreparable harm. There is no
evidence that the matrimonial home is unique or otherwise irreplaceable, and I
am not satisfied on the evidence before the court that the husband could meet
his equalization obligations without selling the house, even if he obtains
leave to appeal and wins the appeal. Because the husband seeks a stay, he bears
the evidentiary burden of establishing that he would not have to sell the
matrimonial home if he succeeds on the motion for leave to appeal and on the appeal.
He has not met this burden. By contrast, the wife adduced compelling evidence
on this motion that her husband has been unable to manage his financial
obligations since they separated. She provided evidence of his conduct in reducing
and then defaulting on his mortgage payments, informing her they were at risk
of losing the matrimonial home, defaulting on payment of property taxes, and
defaulting on his child support obligations until the wife moved to compel payment.
[26]
Based on the record before me, I conclude that the
first category of harm that the husband claims in being required to sell the matrimonial
home is essentially harm that can be quantified in monetary terms. If he obtains
leave to appeal and then wins the appeal, there can be a financial adjustment
if necessary.
[27]
Second, the husband asserts that the matrimonial
home is the only home the children have known and that given their special
needs it would disrupt them to require them to visit him in a new home.
[28]
I do not accept this submission. There is no
cogent and persuasive evidence before the court that the children would be
harmed, far less harmed irreparably, if the matrimonial home is listed for
sale.
The children have lived
in Indiana for the last seven years. They visit their father only a few days a
month and spend most of their time with their mother, living in difficult
conditions in their grandparents bungalow. In these circumstances, as the wife
contends, the children's interests would be far better served by selling the
matrimonial home, as this would allow the wife to access the necessary capital
to buy a home for herself and the children where the children would spend most
of their time.
[29]
The husband has thus not met his burden of
establishing irreparable harm.
(3)
Balance of convenience
[30]
Finally, the balance of convenience involves a
determination of who would suffer the greater harm from granting or refusing
the stay, pending a decision on the merits:
RJR MacDonald
, at p.
342.
[31]
I find that the wife will suffer greater harm if
a stay is granted than the husband will suffer if the stay is refused.
[32]
Without access to the equity in the matrimonial
home to which a court has found she is legally entitled the wife cannot
purchase a home to provide the children with stable and comfortable living
accommodation. The fathers response to this is to assert that at the time of
the arbitration the wife intended to rent. But that was two years ago. The wife
is now back in Ontario, as ordered by the arbitrator, and wishes to buy a home,
as is her right. On the other side of the scale, I see no harm to the husband
beyond the inconvenience of selling the house, which is not his preference. On
these facts, I find the balance of convenience tips decisively in the wifes
favour.
[33]
The wife has complied with the appeal judges
order regarding parenting by returning to Ontario. It is only fair and in the
interests of justice that the husband now immediately comply with the appeal
judges order to list the matrimonial home for sale.
Disposition
[34]
The motion is dismissed.
[35]
If the parties cannot agree on costs, they may file
brief written submissions of no more than 3 pages, with a bill of costs, within
15 days.
M.
Jamal J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Sparr v. Downing, 2021 ONCA 40
DATE: 20210119
DOCKET: C67981
van
Rensburg, Benotto and Thorburn JJ.A.
BETWEEN
Bernard
René Jean Sparr
Applicant (Appellant)
and
Denise
Lee Downing
Respondent (Respondent)
Karen Kernisant, for the appellant
Ian C. Vallance
, for the respondent
Heard: December 3, 2020 by video conference
On
appeal from the orders of Justice Michelle OBonsawin of the Superior Court of
Justice, dated May 24, and June 20, 2019.
COSTS ENDORSEMENT
[1]
The appellant shall pay the respondent costs
fixed in the amount of $20,000 inclusive of HST and disbursements. These costs
may be considered as support payments for purposes of the Family Responsibility
Office.
K.
van Rensburg J.A.
M.L.
Benotto J.A.
J.A.
Thorburn J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Spiridakis v. Li, 2021 ONCA 359
DATE: 20210526
DOCKET: C68570
Juriansz, van Rensburg and
Sossin JJ.A.
BETWEEN
Gus Spiridakis and Carmela
Spiridakis
Plaintiffs (Respondents)
and
Guifang Li
,
Wanchun Jia
, and
Zolo Realty, Brokerage
Defendants (
Appellants
)
Vivian Leung and Cheryl Lau, for the
appellants
Alan Price and Mel Aronoff, for the
respondents
Heard: May 7, 2021 by video
conference
On appeal from the order of Justice R.
Cary Boswell of the Superior Court of Justice, dated April 15, 2020, with
reasons reported at 2020 ONSC 2173.
REASONS FOR DECISION
[1]
At the hearing of the appeal, we dismissed the appeal for reasons to
follow. These are our reasons.
[2]
The appeal arises out of a failed real estate transaction. On June 14,
2017 the parties entered into an agreement of purchase and sale for a house in
Stouffville. The purchase price was $1,162,500 and the closing date was
September 14, 2017.
[3]
There were several missed closing dates and extensions. After having
agreed to an extension to October 26, 2017, the appellants were unable to close
on that date, because the purchasers of their own home were unable to close.
The closing of the Stouffville property purchase was extended to October 30, and
on that date, the appellants advised they could not close. The respondents
counsel advised that this was an anticipatory breach. The appellants counsel
requested a further extension, which the respondents accepted, on proposed
modest terms. The appellants did not respond and did not complete the purchase.
[4]
The respondents relisted the Stouffville property on November 2, 2017.
On March 9, 2018, they entered into an agreement to sell the property for $900,000
with a closing date of June 28, 2018. They had agreed to purchase another
property, and after the appellants default, used bridge financing to complete
that purchase.
[5]
The respondents sued the appellants for damages for breach of the
agreement of purchase and sale. The appellants defended the action and
counterclaimed for the return of their deposit and a declaration that the
purchase and sale agreement had expired as of October 30, 2017. They also
commenced a third party action against their real estate agent and lawyer and
the parties who had agreed and then failed to complete the purchase of their
home.
[6]
The respondents moved for summary judgment on their claim in the main
action and to dismiss the appellants counterclaim. Judgment was granted for
$298,847.67 ($30,000 of which was ordered to be paid by the release of the
deposit to the respondents), together with pre-judgment and post-judgment
interest on the full judgment amount, and costs of $22,340.18. The motion judge
stayed enforcement of the judgment for a period of six months without prejudice
to the appellants bringing a motion to extend the stay prior to its expiry.
[7]
On their appeal, the appellants raise substantially the same arguments
they made in opposition to the summary judgment motion. They assert that the
motion judge erred: (a) in concluding that there was no genuine issue requiring
a trial with respect to their defences based on
non est factum
and the
respondents failure to tender; (b) in granting partial summary judgment in
the face of an outstanding third party claim; and (c) in his assessment of
damages, in particular by concluding that the respondents bridge financing
costs were foreseeable; and in concluding that the respondents took reasonable
steps to mitigate their damages. The appellants also seek to appeal the costs
award.
[8]
The exercise of powers under Rule 20 attracts deference. Whether there
is a genuine issue for trial is a question of mixed fact and law; in the
absence of an extricable error in principle or palpable and overriding error,
this determination should not be disturbed on appeal:
Hryniak v. Mauldin
,
2014 SCC 7, [2014] 1 S.C.R. 87, at para. 81. No such error has been
demonstrated in this case.
[9]
With respect to the
non est factum
argument, contrary to the
appellants argument, the motion judge explained his finding that there was no
genuine issue for trial concerning what the appellants understood about the
purchase and sale transaction. He accepted that each of the appellants had
limited education and facility with the English language, and was relatively
unsophisticated, but he stated, there is no evidence before me that the
defendants were mistaken, as a result of a misrepresentation or otherwise, as
to the nature or character of the agreement to purchase the Stouffville
property. He noted that the only assertion of mistake related to the
consequences
of breach: according to Mr. Jias affidavit, he believed that if he and his
wife failed to close the purchase, they would only risk losing their deposit
and financing fees.
[10]
The
motion judges findings and his rejection of the defence of
non est factum
are entirely supported by the record. As he observed, the appellants who had
purchased two previous properties, understood they were purchasing the
Stouffville property, that there was a financing condition, and that the
agreement of purchase and sale would remain binding after they waived that
condition.
[11]
With
respect to the alleged failure to tender, the motion judge noted that, while
there was a factual dispute about whether the respondents tendered, this was a
case of anticipatory breach. He stated that the law is quite clear that an
innocent party need not go through the meaningless exercise of tendering in
circumstances of anticipatory breach. The parties had agreed that time was of
the essence, meaning that they agreed that the time limit manifested by the
fixed closing date was an essential term, such that breach of it would permit
the innocent party to terminate the agreement. When the appellants lawyer
communicated that they were unable to close on the scheduled date, the
respondents lawyer correctly identified that communication as an anticipatory
breach and the respondents were released thereby from any obligation to tender.
[12]
Contrary
to the appellants argument, the motion judges finding that the appellants
manifested an intention not to complete the transaction on October 30 was fully
supported by the evidence: their lawyer sent a letter advising that they would
be unable to close that day, prompting a response by the respondents lawyer
that this was an anticipatory breach. If, as the appellants contend, they did
not know about some of the lawyers correspondence at the time, that is a
matter for their third party claim, and does not assist in their defence.
[13]
As
for the argument that the motion judge erred in granting summary judgment in
the main action while the third party claim was outstanding, there was no
error.
[14]
This
court has cautioned that a motion for
partial
summary judgment should be
considered to be a rare procedure that is reserved for an issue or issues that
may be bifurcated from those in the main action and that may be dealt with
expeditiously and readily in a cost effective manner:
Butera v. Chown,
Cairns LLP
, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34. Since the
respondents moved for judgment on their entire claim against the appellants,
and dismissal of the counterclaim, their motion was not for partial summary
judgment in the sense described in
Butera.
Although this was not a
motion for
partial
summary judgment, it was nevertheless appropriate for
the motion judge to consider whether the issues in the main action and the
third party action were intertwined, such that there was a potential for
inconsistent findings if judgment were granted in the main action in favour of
the respondents, while the third party action proceeded.
[15]
The
motion judge undertook the appropriate analysis. He concluded that the
respondents claims against the third parties were distinct and severable from
the issues in the main action. Indeed, Mr. Jias affidavit in response to the
summary judgment motion makes it clear that the appellants real concerns are
with various alleged acts of misconduct of their real estate agent and lawyer
and the people who failed to complete the purchase of their home, that, among
other things, led them to believe they would be able to close the purchase of
the Stouffville property and prevented them from doing so. Contrary to the
appellants argument, the defences are not inextricably intertwined with the
claims made in the third party action. There is no risk of an inconsistent
finding on the issues in the third party claim. The third parties, who did not
defend the main action, will be bound by the findings in the main action: r. 29.05(5).
[16]
As
for the question of damages, there is no error in the motion judges conclusion
that there was no genuine issue for trial concerning the amount of the
respondents damages, or the issue of mitigation.
[17]
The
amount included the minimum monthly payments made by the respondents on two
lines of credit they had accessed for bridge financing to complete the purchase
of their home at the end of October 2017 until they managed to sell the
Stouffville property in June 2018. There is no error in the motion judges conclusion
that such costs were objectively foreseeable in the particular circumstances,
where both the appellants and the respondents were purchasing a new home at the
same time that they were selling their respective properties.
[18]
As
for the question of mitigation, it was not sufficient that Mr. Jias affidavit
raised a concern that the respondents had not provided evidence regarding
their efforts to sell the property and to mitigate their loss, including
listing agreements, marketing materials, offers received, etc. The only
evidence the appellants offered on mitigation was a letter of opinion from Mr.
Au, a real estate agent, which spoke to the market value of the Stouffville
property at the end of October 2017, in March 2018 and in June 2018 when it
sold. The motion judge considered the limitations of this evidence, which did
not address the appellants main concern that it took too long to sell the
property in a declining market. He reasonably accepted that the price the
respondents obtained for the Stouffville property (which was 95% of the fair
market value proposed by Mr. Au), considering their ongoing carrying costs for
the home and the cost of bridge financing, was reasonable. The motion judge
properly considered that the appellants had chosen not to cross-examine the
respondents on why the property was listed for so long, when he concluded that
mitigation was not a genuine issue for trial.
[19]
Finally,
no error in principle is alleged or apparent in respect of the motion judges
determination of costs.
[20]
The
motion judges reasons are a model of clarity. He carefully considered all of
the appellants arguments opposing summary judgment, made findings of fact
based on the record and explained with reference to the applicable legal
principles why there was no genuine issue for trial, and why summary judgment
should issue in the main action. He reasonably granted a stay of enforcement of
the judgment, the terms of which are not questioned in this appeal.
[21]
For
these reasons the appeal was dismissed. Costs to the respondents are fixed at $10,000,
inclusive of HST and disbursements.
R.G.
Juriansz J.A.
K.
van Rensburg J.A.
L. Sossin
J.A.
|
COURT
OF APPEAL FOR ONTARIO
CITATION: Stonehouse Group Inc. v. Ontario
(Finance), 2021 ONCA 10
DATE: 20210111
DOCKET: C67441
Lauwers, Miller and Nordheimer
JJ.A.
BETWEEN
Stonehouse
Group Inc.
Appellant/Moving Party
(Appellant)
and
The Minister
of Finance
Respondent/Responding Party
(Respondent)
Justin Kutyan and Thang Trieu, for the
appellant
Arnold H. Bornstein and Jesse
Epp-Fransen, for the respondent
Heard: December 4, 2020 by
video conference
On appeal from the order of Justice Sean
F. Dunphy of the Superior Court of Justice dated August 20, 2019, with reasons
reported at 2019 ONSC 4876, [2020] C.T.C. 21.
Nordheimer J.A.:
[1]
Stonehouse Group Inc. appeals from the order of
the motion judge who answered the following question of law in the negative:
In determining a corporations entitlement to
an enhanced refund interest rate under subsection 82(5) of the
Corporations
Tax Act
, must tax payable take a deduction from a loss carried back into
account?
[2]
The appeal proceeded pursuant to r. 21 of the
Rules
of Civil Procedure
, R.R.O. 1990, Reg. 194, based on an agreed statement of
facts.
[3]
The background facts can be stated briefly.
[4]
On July 22, 2013, and as a result of some
reassessments done by the federal tax authorities, the respondent reassessed the
appellant, with respect to its 2008 taxation year, to disallow a deduction for
a loss carried back under the
Corporations Tax Act
, R.S.O. 1990, c.
C.40 (the
CTA
). This resulted in $560,000 of taxes, plus interest,
owed by the appellant for the 2008 Taxation Year. On October 11, 2013, the
appellant paid the $560,000 of taxes, plus interest, as it was statutorily
required to do regardless of the fact that an objection was outstanding.
[5]
On September 22, 2015, as a result of the
reversal of the federal reassessments, the respondent reassessed the appellant
for the 2008 Taxation Year to allow 100% of the loss carry back. On October 4,
2015, the respondent made a refund payment to the appellant, without any refund
interest.
[1]
[6]
The appellant objects to the respondents
failure to pay refund interest on the tax overpayment of $560,000. The
appellant says that interest ought to be paid calculated at the enhanced rate
that is applicable when taxes have been overpaid as a result of a compelled
payment while an objection is outstanding. It is the respondents failure to pay
that enhanced refund interest that is at the heart of this dispute.
[7]
Two sections of the
CTA
are central to
the question raised. One is s. 82(5) which reads:
Where, by a decision made under section 84 or
92 or by a court, it is finally determined that the tax payable under this Act
by a corporation for a taxation year is less than the amount assessed under
section 80 to which the objection was made or from which the appeal was taken,
and as a result of the decision there is a surplus in the corporations tax
account for a taxation year or in the corporations instalment account for a
taxation year, the interest rate prescribed by the regulations for the purposes
of this subsection, and not the rate prescribed for the purposes of subsection
(4) or 83 (1), as the case may be, shall be used to determine the amount of
interest for the purposes of those subsections, for each day that the surplus
in the account is attributable to the decision.
[8]
The other is s. 79(7) which reads;
For the purposes of calculating interest
payable or allowed under this section or section 82 or 83 in respect of a
particular taxation year, and for the purpose of determining the amount of a
penalty, if any, to be assessed under subsection 76 (1) or (2) and the amount
of tax payable under subsections 78 (4) and (6),
(a) the tax payable by the corporation under
this Act for a taxation year shall be deemed to be the amount that would
otherwise be determined if all amounts deducted by the corporation for that
year under section 111 of the
Income Tax Act
(Canada), as it applies
for the purposes of this Act, in respect of a loss for a taxation year after
the particular year (in this section referred to as the loss year) were not
deducted; and
(b) the amount, if any, by which the tax
payable by the corporation under this Act for the particular taxation year is
reduced as a result of a deduction referred to in clause (a) shall be deemed to
be an amount paid by the corporation on account of its liability under this Act
for the particular year on the day that is the latest of,
(i) the first day of the taxation year after
the loss year,
(ii) the day on which the corporations return
for the loss year is delivered to the Minister, or
(iii) the day on which the Minister receives a
request in writing from the corporation to reassess the particular taxation
year to take into account the deduction referred to in clause (a).
[9]
The appellants position is that it is entitled
to interest calculated at the enhanced rate under s. 82(5) because, after the
reassessment in 2013, it had a surplus in its tax account, namely, the amount
of tax that it had been required to pay because of the respondents refusal to
permit the loss carry back when that tax was not, in fact, properly payable.
[10]
The respondents position is that s. 79(7) is a
special provision relating to loss carry backs that, according to the respondent,
takes this situation out of the effect of s. 82(5). It says that the effect of
s. 79(7) is that the tax payable is deemed to be the same as it was before the
deduction of the loss.
[11]
The motion judge agreed with the respondent. He concluded,
at para. 38:
The consequence of applying the deeming
provision to s. 82(5) of the CTA is that refunds arising from one type of
successful objection (tax losses) do not receive the benefit of the enhanced
rate of interest prescribed by s. 82(5) of the CTA while refunds arising from
other types of successful objections do receive the benefit.
Analysis
[12]
The appeal involves a question of law and thus
the proper standard of review is correctness:
Housen v. Nikolaisen
,
2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.
[13]
It is agreed that there is no longer a special
rule regarding the interpretation of taxing statutes, that is, such statutes
are not to be interpreted strictly against the taxing authority as was once the
case. Rather, taxing statutes are to be interpreted as any other statute would
be, that is, the words of an Act are to be read in their entire context and in
their grammatical and ordinary sense harmoniously with the scheme of the Act,
the object of the Act, and the intention of Parliament:
Placer Dome Canada
Ltd. v. Ontario (Minister of Finance)
,
2006 SCC 20, [2006] 1 S.C.R.
715, at para. 21.
[14]
I begin my analysis by noting that s. 79(7) is
not a model of legislative clarity. If one reads s. 79(7)(a) alone, it would
tend to support the position of the respondent. Indeed, on its face, s. 79(7)(a)
would deem the tax payable by a corporation to be the tax payable without taking
into account any deduction allowed as a result of a loss carry back with the
result that there would not be any surplus in the taxpayers account on which
interest would be payable.
[15]
However, the difficulty with that interpretation
is that it would operate to deny a corporation
any
refund interest, not
just refund interest at the enhanced rate. On the respondents interpretation,
the tax payable is deemed not to take into account the deduction of the loss
carry back and, thus, the tax payable is not reduced from the amount that the
appellant was compelled to pay. There is, consequently, deemed to be no surplus
in the appellants tax account resulting from its payment of the $560,000 in taxes.
[16]
That this becomes the result follows from the
use of the word surplus in s. 82 of the
CTA
. I note that it is s. 82
that directly addresses refunds within the
CTA
. It provides the
general right to interest on a refund in s. 82(4), which reads:
Interest at the rate prescribed by the
regulations shall be calculated and allowed daily to a corporation on the
surplus in the corporations tax account for a taxation year, for each day
there is a surplus in the tax account after the end of the instalment period
for the taxation year
[17]
It is of no consequence how a surplus arises for
the purpose of the general right to interest under s. 82(4) because that
subsection only gives a right to interest at the normal rate, which is set at
below market rates. It is the role of s. 82(5) to provide for the enhanced
interest rate where the surplus results from a successful objection to an
assessment. Thus, in order to restrict the operation of s. 82(5) to only those
cases, it is necessary to refer to the reason why the tax payable under this
Act by a corporation for a taxation year is less than the amount assessed.
[18]
The respondents position is that the appellant
was entitled to normal interest under s. 82(4) but not to the enhanced interest
under s. 82(5). However, that is not the logical result of the interpretation of
these sections that the respondent advances. Rather, as I have said, that
interpretation would deny interest altogether, because s. 79(7)(a) would deem
there to be no surplus in the corporations tax account.
[19]
As was observed in
Placer Dome
, at
para. 22, where the words of a statute give rise to more than one reasonable
interpretation, the ordinary meaning of words will play a lesser role, and
greater recourse to the context and purpose of the Act may be necessary. It is
clear from the argument before us that the words used in these sections,
especially s. 79(7), give rise to more than one reasonable interpretation.
[20]
The context in which the provisions regarding
refund interest are to be considered requires us to go back to the report of The
Ontario Committee on Taxation,
The Provincial Revenue System
, vol. III
(Toronto: Queens Printer, 1967). It was this report that led to the adoption
of the legislation that provided taxpayers with the right to receive interest
on overpayments of tax.
[2]
The report noted, in chapter 25, that under provincial revenue statutes there
was a very uneven balance between the rights of government and the rights of
the taxpayer when it came to the obligation to make payments.
[21]
The Committee concluded that it was
fundamentally unfair for taxpayers not to receive interest on overpayments of
tax. The Committee also concluded that, where the overpayment was the result of
a compelled payment arising from a dispute as between the taxpayer and the
government, the taxpayer should receive interest at an enhanced rate, if the
taxpayer was ultimately successful in disputing the tax. Regarding the payment
of interest, the Committee recommended the following, ch. 25 at para. 21:
Where the taxpayer has overpaid, equity
demands that he receive interest on the amount refunded. If the amount has been
mutually agreed upon by the taxpayer and the government, the rate of interest
should be somewhat below current borrowing rates. This is to avoid a situation
where taxpayers might consider themselves invited to use the government as a
savings deposit institution by making deliberate overpayments. On the other
hand, where overpayment is not determined until after a dispute between the
government and the taxpayer, it is only fair that the taxpayer receive interest
on overpayment and penalties, if any, at a rate comparable to going market
rates.
[22]
Thus, it can be seen that the fundamental
principle put forward by the Committee, and ultimately adopted by the
government through amendments to the
CTA
, is that a taxpayer should
receive interest on overpayments of tax. The only difference, in the level of
interest to be paid, was between overpayments arising from mistake, voluntary
overpayments, or other ordinary events, and overpayments due to a compelled
payment arising from a dispute between the taxpayer and the government.
[23]
I have already noted that the interpretation
advanced by the respondent would, taken literally, preclude any payment of
interest due to a compelled tax overpayment arising from a loss carry back.
While the respondent attempts to restrict its interpretation to only a
difference in the rate of interest, normal versus enhanced, that effort cannot
be logically rationalized with what the respondent asserts is the effect of s.
79(7)(a).
[24]
The respondents position also cannot be
rationalized easily with the presence of s. 79(7)(b). If the respondent is
correct in what it says is the effect of s. 79(7)(a), then there would appear
to be little need for s. 79(7)(b), at least as it relates to loss carry backs. If
the effect of s. 79(7)(a) is that the tax payable is deemed not to be reduced
by the loss carry back deduction, then one wonders why it is necessary to
establish a date by which the tax is deemed to have been paid. If, on the other
hand, s. 79(7) is interpreted as simply a provision, in cases involving loss
carry backs, that postpones the date when the deduction in the tax payable
arises, and thus when interest would begin to accrue, then s. 79(7)(a) and (b) work
together in a harmonious fashion.
[3]
[25]
Yet another problem arises with respect to the
respondents position. The respondent would carve out of the governments obligation
to pay interest at the enhanced rate arising from a taxpayers successful objection,
all situations where the taxpayers success involves the application of a loss
carry back. Indeed, as I have already said, the respondents position would result
in this carve out eliminating any right to interest at all. However, the
respondent is unable to point to any justification offered by anyone anywhere
that explains why this carve out was considered to be necessary. There is no
explanatory note to the legislation. There is no report from a legislative or
other advisory committee. There is no statement by the Minister in the Legislature.
There is no policy statement from the Ministry. There is nothing that explains
why this is a desirable result in this one particular situation a result that
appears to be directly at odds with the recommendation of The Ontario Committee
on Taxation regarding the payment of interest that was otherwise adopted
through amendments to the
CTA
.
[26]
On that point, the respondents reliance on the
principle that governments have the right to legislate illogically is not a
persuasive one.
[4]
It is also not a principle of statutory interpretation to be readily invoked.
[27]
The motion judge relied on
Connaught
Laboratories Ltd. v. Canada
(1994), 94 D.T.C. 6697 (F.C.T.D.), as
supporting his interpretation of s. 79(7). However, it does not. That decision
involved a section of the
Income Tax Act
, R.S.C. 1985, c. 1 (5th
Supp.), not the
CTA
. It was not a section dealing with the payment of
interest on overpaid taxes. In addition, the concerned section mirrored the
language of an earlier version of s. 79(7), not the version that is at issue in
this case. Still further, the decision in
Connaught
addressed the
liability for tax in the period from the original taxation year, not from the
later date when the taxpayer sought to apply other deductions. The appellant
does not seek to take its claim for interest back to that earlier period.
Simply put, the decision in
Connaught
is not helpful here.
[28]
The motion judge concluded, at para. 40:
It is not my role to second-guess the very
specific and unambiguous language the Legislature has chosen to use. There is
neither absurdity nor manifest error that can be pointed to as resulting.
[29]
In fact, as I have already illustrated, there is
a manifest error in the interpretation urged by the respondent, and adopted by
the motion judge, and that is that the appellant would be disentitled to
any
interest payment. That result is not only manifestly unfair, it is directly
contrary to the legislative context in which the interest payment provisions
were adopted more than 60 years ago. And, as I have already mentioned, there is
no explanation offered for why the Legislature would have desired that result
in this particular situation.
[30]
The language in s. 79(7) is not unambiguous when
read in its entire context. While it is not necessary to resort to it in this
case, I would note that there remains a residual presumption in favour of the
taxpayer:
Placer Dome
, at para. 24. Given the history of the
legislative provisions regarding the payment of interest, an interpretation
which favours the underlying policy choice of fairness to the taxpayer is to be
preferred.
Conclusion
[31]
I would allow the appeal, set aside the order
below, and answer the question posed in the affirmative. The parties advised us
that they had agreed on the disposition of the costs of the appeal with the
result that we do not have to address that issue.
Released: January 11, 2021 PL
I.V.B.
Nordheimer J.A.
I agree. P. Lauwers J.A.
I agree. B.W. Miller J.A.
[1]
For the sake of clarity, I would note that there are two interest
rates used for the purpose of paying interest on refunds. One is what I will
refer to as the normal rate of interest and the other is the enhanced rate
of interest. Because of the current state of low interest rates, the
calculation of the normal interest rate results in a zero percent rate.
[2]
At common law, absent a statutory or contractual requirement to do
so, the Crown was not obligated to pay interest on money that it owed:
Whitefish Lake Band of Indians v. Canada (Attorney
General)
, 2007 ONCA 744, 87 O.R. (3d) 321, at para. 86.
[3]
It should be noted that the appellant is only seeking
interest for the period from the time that it was compelled to pay the
additional tax in 2013 and the time when the Government refunded that tax. It
does not seek interest going back to the 2008 taxation year.
[4]
R. v. McIntosh
, [1995]
1 S.C.R. 686, at para. 41.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Sub-Prime Mortgage Corporation v. Kaweesa, 2021 ONCA 215
DATE: 20210406
DOCKET:
M52319 (C69127)
Paciocco
J.A. (Motion Judge)
BETWEEN
Sub-Prime
Mortgage Corporation and Elle Mortgage Corporation
Plaintiffs
(Respondents/Moving
Parties)
and
David Kaweesa
,
Jacqueline Kaweesa
and Jeremy Kaweesa
Defendants
(
Appellants
/
Responding Parties
)
AND BETWEEN
David
Kaweesa and Jacqueline Kaweesa
Plaintiffs
by Counterclaim
(Appellants/Responding
Parties)
and
Sub-Prime
Mortgage Corporation, Elle Mortgage Corporation
and
Terry Walman
Defendants
by Counterclaim
(Respondents/Moving
Parties)
Glenn Cohen, for the moving parties
Sub-Prime Mortgage Corporation and Elle Mortgage Corporation
Ranjan Das, for the moving party Terry
Walman
Matthew Tubie, for the responding
parties
Heard:
March 29, 2021 by video conference
ENDORSEMENT
FACTUAL BACKGROUND
[1]
The moving party mortgagee Elle Mortgage
Corporation (Elle Mortgage) holds a first and fifth mortgage on a residential
property at 68 Cotswold Crescent in the City of Toronto (the Cotswold
Property or the Property). The moving party mortgagee Sub-Prime Mortgage Corporation
(Sub-Prime) holds a second mortgage on the Cotswold Property. I shall refer
to the moving parties Elle Mortgage and Sub-Prime collectively as the
Mortgagees.
[2]
Title to the Cotswold Property is held by the responding
party mortgagor Jacqueline Kaweesa (Jacqueline) and her son Jeremy Kaweesa
(Jeremy). The mortgages held by the Mortgagees secure debts owed by
Jacqueline and her husband, the responding party mortgagor David Kaweesa, who both
currently reside at the Cotswold Property. Jeremy resides elsewhere.
[3]
The Cotswold Property is heavily encumbered,
including by third and fourth mortgages and a priority lien in favour of the
City of Toronto for unpaid taxes and water levies. There is also a certificate
of lien in favour of the Minister of National Revenue against the Property
dating back to April 2015.
[4]
The responding parties fell into arrears on the
mortgages held by the Mortgagees. In a separate proceeding, the Mortgagees obtained
default judgment against Jeremy. The mortgage enforcement action underlying
this motion was discontinued as against Jeremy but proceeded against the responding
parties, who issued a counterclaim against the Mortgagees and the moving party
Terry Walman, the Mortgagees principal. Ranjan Das now represents Mr. Walman.
The Minutes of Settlement
[5]
After several settlement conferences conducted
by Stinson J., the parties executed minutes of settlement dated November 3,
2020, which underwent modest modifications in an addendum dated November 20,
2020 (together, the Minutes of Settlement). I will now summarize the terms of
the Minutes of Settlement which are germane to the motion before me.
[6]
First, the parties agreed that if the responding
parties paid $2.1 million made out to Elle Mortgage on or before January 25,
2021, mortgage discharges would be arranged and the instant action and counterclaim
against Mr. Walman would be dismissed without costs.
[7]
Second, at para. 13 of the Minutes of Settlement,
the responding parties agreed that if they did not make the $2.1 million
payment before January 25, 2021, judgment in favour of the Mortgagees would
immediately issue, requiring the responding parties to:
1)
pay to the Mortgagees the amount of $2.7 million
inclusive of prejudgment interest and costs, plus post-judgment interest at a
rate of 8.5 percent per annum;
2)
dismiss their counterclaim; and
3)
give possession of the Property over to the
Mortgagees, who would have leave to issue a writ of possession.
[8]
Third, pursuant to para. 5, Mr. Das agreed to execute
a letter set out in a schedule to the Minutes of Settlement and undertook to answer
any potential queries from potential lenders by confirming the contents of the
letter.
[9]
Fourth, pursuant to para. 19 (reproduced below at
para. 24), the parties permitted Stinson J. to remain seized of the action for
any purpose in connection with implementing these Minutes of Settlement.
Non-compliance with the Minutes of Settlement
[10]
The responding parties did not pay $2.1 million
to the Mortgagees by the January 25, 2021 deadline. The Mortgagees brought a
motion for judgment in accordance with the Minutes of Settlement. Having been
unable to secure financing, the responding parties resisted the motion and requested
an extension of the payment deadline. They argued the Minutes of Settlement had
been frustrated by the ongoing COVID-19 pandemic and additional lockdown
measures. The financing commitment letter the responding parties relied upon
to support their extension request was unsigned and contained conditions that
the responding parties clearly could not satisfy.
[11]
In reasons on the motion for judgment dated
January 29, 2021, Stinson J. denied the extension. He ruled that, since he was
enforcing the Minutes of Settlement, it was not open to the court to re-write
the agreement by changing the deadline and that, in any event, the responding
parties knew the Property was heavily encumbered and took a knowing risk that
they may not be able to secure requisite financing in time to meet the
deadline. According to Stinson J., all parties had been aware of the COVID-19-related
restrictions when they executed the Minutes of Settlement and those restrictions
were not of a nature that would preclude [the responding parties] from
refinancing.
[12]
Stinson J. further ruled that the Minutes of
Settlement were not frustrated because the pandemic (1) had not altered the
obligations the responding parties had assumed, and (2) did not constitute a
supervening event, as the pandemic was ongoing with no prospect of early
resolution when the Minutes of Settlement were executed.
[13]
Stinson J. therefore granted judgment in favour
of the moving parties on the terms provided for in the Minutes of Settlement;
namely, a money judgment against the responding parties for $2.7 million, the
termination of the counterclaim, and a writ of possession against the Property
(the Judgment).
The Temporary Stay
[14]
However, Stinson J. added a term to the Judgment,
at para. 5, temporarily staying enforcement of the writ of possession: enforcement
of the writ of possession is stayed for 90 days after the termination of the
State of Emergency in Ontario. I shall refer to this term as the Temporary
Stay.
The Stay Condition
[15]
Stinson J. imposed two conditions on the Temporary
Stay. Only one of those conditions, at para. 5(i) of the Judgment, is material
to the motions before me. It stated that the Temporary Stay was conditional on
the [responding parties] complying with the following term:
The [responding parties] shall pay to the City
of Toronto in reduction of realty tax arrears $3,000.00, monthly on the 15
th
day of each month starting February 15, 2021
.
I shall refer to this term as the Stay
Condition.
[16]
The responding parties are in breach of the Stay
Condition; they have not made the $3,000 monthly realty tax payments to date.
Their counsel on this motion, who did not represent them before Stinson J., now
argues that the responding parties are not required to comply with the Stay
Condition because they claim to have an agreement with the City of Toronto relieving
them from the obligation to make tax payments until this action is settled.
RELIEF SOUGHT BY THE MOVING PARTIES
[17]
The responding parties have appealed the
Judgment to this court. In the meantime, the moving parties ask me to grant the
following relief:
1)
An order that the responding parties post security for the moving
parties costs of the appeal;
2)
An order lifting or revoking the Temporary Stay
of the writ of possession contained in the Judgment;
3)
An order that the responding parties post
further security of $11,037 for the costs awarded in the Judgment; and
4)
An order expediting the hearing of this appeal.
ANALYSIS
(1) Security for Costs
[18]
To order a party to post security for costs, I
must be persuaded that the preconditions provided for in the relevant rule are
met and that it is in the interests of justice to exercise my discretion to
make such an order:
Heidari v. Naghshbandi
, 2020 ONCA 757, 153 O.R.
(3d) 756, at para. 6. The moving parties seek an order for security for costs
under rr. 61.06(1)(a) and (c). I need only to consider r. 61.06(1)(a).
[19]
I cannot make an order pursuant to r. 61.06(1)(a)
unless: (i) there is good reason to believe that the appeal is frivolous and
vexatious, and (ii) the responding parties have insufficient assets in Ontario
to pay the costs of their appeal.
(a)
There is good reason to believe the grounds of
appeal are frivolous
[20]
With respect to the first precondition, I am
satisfied there is good reason to believe that the grounds advanced by the
responding parties in their appeal are frivolous, in that there is good
reason to believe that those grounds are devoid of merit, with little prospect
of success:
Heidari
, at para. 10.
The grounds of appeal regarding Mr. Das
[21]
The first two grounds of appeal are challenges
to the conduct of Mr. Das which the responding parties say were raised before
Stinson J. in the proceedings below. Namely, the responding parties allege that
Mr. Das impeded the responding parties efforts to obtain financing by refusing
or failing to answer potential queries from potential lenders confirming the
contents of the executed letter, contrary to his obligations under para. 5 of
the Minutes of Settlement (reproduced above at para. 8).
[22]
In my view, there is good reason to believe that
these two grounds of appeal are devoid of merit and have little prospect of
success on appeal. This is because there is good reason to believe the issues underlying
these grounds of appeal were not raised before Stinson J. The moving parties
point to four considerations which I find support my conclusion:
1)
Jacquelines first affidavit was executed on January 25, 2021 and
filed before Stinson J. It says nothing about Mr. Das compliance with the
Minutes of Settlement. Jacquelines second affidavit, which includes exhibited
documents the responding parties claim to be relevant to Mr. Das compliance,
was executed on March 23, 2021, long after Stinson J.s Judgment was rendered.
2)
Mr. Walmans affidavit, dated March 17, 2021,
asserts that no evidence was presented and no argument made before Stinson J.
relating to Mr. Das. Mr. Walman also attests: I attended the virtual
hearing and I saw and heard [prior counsel for the responding parties]
expressly state that her clients were not making allegations regarding Mr.
Das. This assertion is uncontradicted on the evidence before me.
3)
Mr. Das appeared on this matter before Stinson
J. Had his conduct been a material issue in the case, as alleged by the
responding parties, he would have been in a position of conflict. It is
unlikely that he would have been permitted to continue as counsel.
4)
In his thorough decision, Stinson J. makes no
mention of what the responding parties now claim was a central issue before him.
In my view, it is highly probable that Stinson J. would have addressed this
issue if it had been raised before him.
The ground of appeal related to Stinson J.s
role in the proceedings
[23]
One of the remaining two grounds of appeal is
that Stinson J. erred in presiding over the motion for judgment after having
presided at the settlement conferences. The responding parties contend that
Stinson J. erred by treating the matter before him as a consent judgment, when
in fact it was contested.
[24]
There is good reason to believe that this ground
of appeal is also devoid of merit. Rule 50.10(1) permits pre-trial conference
judges to preside at the trial of an action with the written consent of the
parties. Paragraph 19 of the Minutes of Settlement provide as follows:
The parties agree that the Honourable Justice
D. Stinson will, subject to His Honours discretion, remain seized of this
action and [the action against Jeremy] for any purpose in connection with
implementing these Minutes of Settlement including, if necessary, scheduling
and dealing with next steps if Jeremy Kaweesa does not sign these Minutes of
Settlement and the signing of Judgment on January 26, 2021.
[25]
This provision appears to constitute clear
written consent by the parties to Stinson J. presiding over the motion for judgment.
I am therefore satisfied that there are good grounds to believe that this
ground of appeal is frivolous.
The ground of appeal regarding frustration of
the Minutes of Settlement
[26]
The final ground of appeal is that Stinson J.
erred in failing to find that the Minutes of Settlement were frustrated.
Stinson J. held that the doctrine of frustration did not apply because: (1) the
pandemic was not a supervening event, but was contemplated by the parties at
the time of the settlement; and (2) the pandemic and the ensuing lockdown did
not render the contract substantially different from the one which the parties
had executed. Stinson J. also held that the pandemic had not precluded the
responding parties from obtaining financing. Any one of these considerations
condemns the frustration argument, indicating that this ground of appeal has
little prospect of success. There are therefore grounds to believe this ground
of appeal is also frivolous.
[27]
Accordingly, without declaring that the grounds
of appeal are frivolous, I am satisfied that there are grounds to believe that all
of them are frivolous because I find they are devoid of merit, offering little
prospect of success.
(b)
There is good reason to believe the appeal is
vexatious
[28]
Turning to the second component of the first
precondition to r. 61.06(1)(a), I am also satisfied there is good reason to
believe that the appeal is vexatious. An appeal is vexatious when it is
taken to annoy or embarrass the respondent or conducted in a vexatious
manner:
Heidari
, at para. 10.
[29]
The moving parties have identified good reasons to
believe that the appeal is being conducted in a vexatious manner. The
responding parties have provided nothing to support their claim that
allegations about Mr. Das non-compliance with the Minutes of Settlement were
raised before Stinson J. These allegations jeopardized Mr. Das ability to
continue representing his client and impugn his good faith. The responding
parties have also impugned the integrity and professionalism of Mr. Walman,
which does nothing to advance their appeal on the merits. Like those against
Mr. Das, the responding parties allegations against Mr. Walman are based on
material that does not appear to have been before Stinson J.
[30]
On these bases, I find good reason to believe
that the appeal is vexatious.
(c)
There is good reason to believe there are
insufficient funds to pay the costs of the appeal
[31]
I am also satisfied there is good reason to
believe the second precondition of r. 61.06(1)(a) is met; namely, that the
responding parties have insufficient assets in Ontario to pay the costs of
their appeal.
[32]
This issue was in controversy before me. The
responding parties contend that the Cotswold Property is worth $3.5 million in
the current market, based on a November 2020 appraisal. The moving parties
contest this, relying on a drive-by appraisal of their own, from March 2021,
which values the Property at between $2.7 and $2.8 million.
[33]
The Cotswold Property appears to be the sole
asset claimed by the responding parties. Even if one accepts their valuation of
$3.5 million, the moving parties argue that there is insufficient equity in the
Property to cover the proven encumbrances plus the costs of the appeal.
[34]
I have reviewed the documentary evidence and I
am persuaded that there is good reason to accept the moving parties position
regarding the encumbrances on the Property. The responding parties have not
been making payments on those encumbrances, in some cases for years. The
accumulated interest, which only continues to mount, is staggering.
(d)
Conclusion on security for costs
[35]
The preconditions to making an order for
security for costs pursuant to r. 61.06(1)(a) are therefore met and I
exercise my discretion to order security for costs. Doing so is necessary to
provide the moving parties, the respondents in the appeal, with a measure of
protection for the costs of that appeal. I base the justness of this decision
on the facial weakness of the appeal, the promptness with which the motion for
security for costs was brought, and the serious risk that, without such an
order, the moving parties will be unable to collect a costs award in the likely
event that the appeal is unsuccessful.
[36]
The submissions made by the moving parties on
the estimated costs of the appeal are reasonable. I order the responding
parties to post $30,000 as security for costs in favour of the Mortgagees.
[37]
In addition, I order the responding parties to
post $7,500 as security for costs in favour of Mr. Walman.
(2) Lifting or Revoking the temporary STAY
[38]
I do not accept the responding parties position
that they are not in breach of the Stay Condition. The responding parties have
not proven the agreement with the City of Toronto that they say suspends
their obligation to make the required tax payments. More importantly, even if such
an agreement exists, it would not alter the condition that the Temporary Stay
is premised upon; namely, that the responding parties pay $3,000 monthly to the
City of Toronto. The Stay Condition is not contingent on the City of Toronto
demanding payment; the payments are to be made in reduction of the realty tax
arrears. The responding parties breached the Stay Condition in February 2021
and again in March.
(a)
A conditional writ of possession is not automatically stayed on
appeal
[39]
Nor do I accept the responding parties position
that a term providing for a writ of possession is automatically stayed pursuant
to r. 63.01(1). Rule 63.01(1) provides as follows:
The delivery of a notice of appeal from an
interlocutory or final order 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.
[40]
The provision of the Judgment at issue provides
conditionally for a writ of possession. It is not an order for the payment of
money. In my view, the nature of an order for a writ of possession does not
change because it is conditional on the payment of money to a third party. It
is evident that r. 63.01(1) is intended to automatically stay monetary remedies
secured by the respondent to an appeal, pending that appeal. Manifestly, r. 63.01(1)
is not intended to stay
in rem
remedies, and the order requiring the
responding parties to pay their realty taxes is not a monetary remedy in favour
of the moving parties. Rather, it is a modest condition attaching to an
indulgence granted by Stinson J. to the responding parties on this motion, no
doubt intended to ameliorate the hardship of the
in rem
order for a
writ of possession. If interpreted as suggested by the responding parties, the
purpose of r. 63.01(1) would be exceeded and frustrated.
[41]
Accordingly, the conditional order for a writ of
possession in the Judgment is not automatically stayed pending the responding
parties appeal.
[42]
However, that does not end the matter. The Temporary
Stay is tied to an
in rem
remedy and therefore remains in place
pending appeal unless and until it is set aside, as the moving parties ask me
to do.
(b)
The Temporary Stay should be lifted
[43]
The moving parties submit that, given the responding
parties breach of the Stay Condition, the Temporary Stay should be lifted and
a writ of possession should issue. They argue that since this matter is now
before this court, Stinson J. is
functus
and lacks the jurisdiction to
make such an order. Therefore, they submit that I have authority to grant the order
sought as a single judge of the Court of Appeal, either by necessity or
pursuant to s. 134(2) of the
Courts of Justice Act
, R.S.O. 1990, c.
C.43 (
CJA
), which provides as follows:
On motion, a court to which a motion for leave
to appeal is made or to which an appeal is taken may make any interim order
that is considered just to prevent prejudice to a party pending the appeal.
[44]
I agree with the moving parties that
CJA
s.
134(2) authorizes an appellate court to remove a stay as an interim order
pending an appeal: Paul M. Perell and John W. Morden,
The Law of Civil Procedure
in Ontario
, 4th ed. (Toronto: LexisNexis Canada, 2020), at ¶12.160. As
acknowledged by Laskin J.A. (in Chambers), the jurisdiction conferred by s.
134(2) may be exercised by a single judge of this court pursuant to s. 7(2) of
the
CJA
:
Hakim Optical Laboratory Ltd. v. 1570710
Ontario Ltd.
, 2010 ONCA 627, [2010] O.J. No. 4102, at para. 5.
[45]
The jurisdiction under
CJA
s. 134(2) is
broad, but it is not unlimited. The focus of any remedy provided under s.
134(2) must be on preventing prejudice in the context of the appeal and the
interests of justice:
Waxman v. Waxman
(2003), 168 O.A.C. 217, at
para. 21 (C.A.).
[46]
The test for granting relief under s. 134(2) is
the same as that for granting a stay pending appeal pursuant to r. 63.02(1):
Abuzour
v. Heydary
, 2015 ONCA 249, 126 O.R. (3d) 101, at para. 24. It is based on
the test for an interlocutory injunction set out by the Supreme Court of Canada
in
RJR-MacDonald Inc. v. Canada (Attorney General)
, [1994] 1 S.C.R.
311, at p. 334. Namely, it must be established that it is in the interests of
justice to exercise the judges discretion to lift or remove the stay, given
the relative strengths and weaknesses of the following criteria:
1)
there is a serious question to be adjudicated on appeal;
2)
the moving party would suffer irreparable harm
if the relief were refused; and
3)
the balance of convenience favours the moving
party (i.e., the moving party would suffer greater harm if the relief were not
granted than would the responding party if the relief were granted).
There is a serious question to be determined
on appeal
[47]
Obviously, the relevant concern under the first
RJR-MacDonald
criterion is whether the moving party has identified a serious question to
be adjudicated on appeal that supports the relief sought. Here, the moving
parties contend that the trial judges discretionary Temporary Stay should be
set aside, in part, because the grounds of appeal that are to be adjudicated are
weak and unlikely to succeed. I have already found that there is good reason to
believe that the grounds of appeal are frivolous. The position of the Mortgagees
that will be adjudicated on the appeal that the appeal should be rejected is
therefore a serious one, thereby satisfying the first
RJR-MacDonald
consideration.
Indeed, the weakness of the appeal pushes strongly in favour of the relief
sought.
The moving parties will suffer irreparable
harm if the Stay is not lifted
[48]
I am also satisfied that unless the Temporary
Stay is set aside, the moving parties will suffer irreparable harm, thereby supplying
the prejudice required for relief under s. 134(2). Given the weakness of the
grounds of appeal, there is every reason to believe that this appeal is being
used as a litigation tactic to delay enforcement of the Minutes of Settlement. The
responding parties have a strong incentive to employ such a tactic. They remain
in the residence pending appeal and are not making payments on any of the
mortgages against the Property, nor have they been paying the property taxes
and water charges they are incurring.
[49]
As these expenses accumulate, the equity in the
Cotswold Property is reduced, as is the strength of the Mortgagees security
for the responding parties debt to them and to the City of Toronto, which the Mortgagees
will have to discharge before recovering the funds they are owed. Meanwhile, as
the unpaid interest on the mortgages accumulates, the Mortgagees investment in
the Property is increasing, further reducing the prospect that full collection
will ever be achieved. Moreover, if the Temporary Stay is not lifted and the
status
quo
is maintained, the Mortgagees will be unable to access the capital they
have tied up in the Property until the appeal is finalized.
[50]
These harms will be irreparable if the heavily encumbered
Property proves insufficient as security for the Mortgagees investment, because
it is evident that personal judgments against the responding parties will
almost certainly go unpaid. The responding parties have an established history
of not paying their debts.
The balance of convenience favours the moving
parties
[51]
I am equally persuaded that the balance of
convenience favours the moving parties. As I have already described, if the
Temporary Stay is not lifted, the moving parties will suffer irreparable harm.
[52]
On the other hand, I appreciate that if
possession is given over to the Mortgagees, the responding parties will be
displaced from their residence and much of the benefit of their appeal would be
lost. However, three things must be emphasized.
[53]
First, the responding parties agreed to pay the
mortgage debts secured against the residence they now inhabit. Displacement in
the event of non-payment was a consequence they accepted. There was no
suggestion made before me that the money in question is not owed to the
Mortgagees.
[54]
Second, as I have said, the responding parties are
living in the residence without paying the expenses associated with doing so. In
the circumstances, their moral and legal claim to entitlement to remain in the Property
is diminished.
[55]
Third, the outcome of lifting the Temporary Stay
is simply that the responding parties may lose possession of the Property before
the expiry of the State of Emergency in Ontario, as provided for in the
Judgment. In other words, lifting the Temporary Stay now does not remove a
benefit the responding parties were guaranteed to enjoy until the end of their
appeal.
[56]
In the circumstances, the responding parties
argument that the balance of convenience lies with them is unpersuasive. I am
satisfied that the balance of convenience favours the moving parties.
The interests of justice favour lifting the Temporary
Stay
[57]
Finally, since the order I am being asked to
make is discretionary, I will consider the relative equities at play.
[58]
First, the responding parties have shown an
unwillingness to pay their debts, including to the Mortgagees, yet no
explanation for this conduct has been offered.
[59]
Second, the responding parties freely entered into
Minutes of Settlement with the benefit of legal representation, but then sought
to disavow their agreement. Notwithstanding their attempt to do so, Stinson J.
generously granted them an indulgence to ameliorate the hardship that the writ
of possession would cause, subject to the very modest precondition that they
begin repaying money they owe to the City of Toronto. They breached that
precondition, and then claimed before me that an unproven deal with the City
relieved them from having to do so.
[60]
Third, it appears that the responding parties
have burdened the Mortgagees by complicating the underlying appeal with inappropriate
and legally gratuitous allegations against two lawyers, Mr. Das and the moving
party Mr. Walman.
[61]
In my view, the equities in this case militate
in favour of granting the discretionary relief sought by the moving parties.
[62]
Based on the foregoing, I am satisfied that
it is in the interests of justice to lift the Temporary Stay pursuant to s.
134(2) of the
CJA
.
(3) The Costs of the proceedings below
[63]
I am not prepared to order payment of the costs
below. In the unlikely event that the appeal is successful, that costs order is
apt to be set aside. Although I am empowered to do so, I would not exercise my
discretion to order payment of a costs order that remains a live issue before
this court.
(4) Expediting the Appeal
[64]
In my view, given the orders I am making for
security for costs and to lift the Temporary Stay, there is no need to expedite
the appeal.
DISPOSITION
[65]
For the reasons set out above, I order the
following:
1)
The motions for security for costs are granted. The responding
parties shall post the following amounts within 10 business days of the release
of this decision:
a.
$30,000 to secure the costs of the appeal to the
moving party Mortgagees; and
b.
$7,500 to secure the costs of the appeal to the moving
party Mr. Walman.
2)
The motion for an order lifting the Temporary
Stay of enforcement of the writ of possession is granted. Paragraph 5 of
Stinson J.s Judgment dated January 29, 2021 is hereby set aside.
3)
The motion for payment of the costs in the proceedings
before Stinson J. is dismissed.
4)
The motion expediting the appeal is dismissed.
[66]
Costs in this motion are payable to the moving
party Mortgagees in the combined amount of $2,500, inclusive of disbursements
and HST. Costs on this motion are also payable to the moving party Mr. Walman in
the amount of $1,000, inclusive of disbursements and HST.
David
M. Paciocco J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Subway Franchise Restaurants of
Canada Ltd. v. BMO Life Assurance Company, 2021 ONCA 349
DATE: 20210526
DOCKET: C68087
Juriansz, Huscroft and Jamal
JJ.A.
BETWEEN
Subway Franchise Restaurants of
Canada Ltd.
Applicant (Appellant)
and
BMO Life Assurance Company, Bank
of Montreal, and Yonge Melinda Realty Inc.
Respondents (Respondents)
Christopher J. Cosgriffe and Mark T.
Dzurman, for the appellant
Mitch Koczerginski, for the respondents
Heard: May 10, 2021 by video conference
On appeal from the judgment of Justice Edward
M. Morgan of the Superior Court of Justice, dated January 22, 2020, with
reasons reported at 2020 ONSC 371.
REASONS FOR DECISION
[1]
The appellant, Subway Franchise Restaurants of
Canada Ltd. (Subway), is the tenant in a commercial lease and appeals from
the dismissal of its application for relief from forfeiture after it failed to
exercise an option to renew the lease within the timeframe specified in the
lease.
[2]
The appellant is the franchisor of Subway
restaurants in Canada. The appellant is provided with operational and
administrative services by Franchise World Headquarters, LLC (FWH), a
Connecticut limited liability company. FWH negotiates the leases that the
appellant enters into and then sublets to its franchisees. The respondent, BMO
Life Assurance Co., was not the original landlord but acquired this lease in
October 2008.
[3]
The lease provided that the renewal option had
to be exercised at least 9 months and not more than 12 months prior to the
expiration of the term. However, the lease did not specify the expiration date
it provided the lease would begin following fixturing and terminate 10 years
later. The application judge found there was no contemporaneous documentation that
indicated when the fixturing period ended and the lease began.
[4]
The documentation accompanying acquisition by
BMO included an estoppel certificate executed by the appellant. The estoppel
certificate certified that the lease expired on August 23, 2018. Consequently,
the appellants option to renew had to be delivered between August 24, 2017 and
November 23, 2017. The application judge found that the estoppel certificate
was the one and only document that contain[ed] the termination date for the ten-year
Lease. Both parties were in possession of the estoppel certificate.
[5]
FWHs central database recorded the lease as
expiring on May 31, 2018. The application judge observed that the reason the incorrect
date was entered into the FWH database was unexplained.
[6]
On February 1, 2017, FWH, on behalf of the
appellant, sent a letter to BMO indicating its mistaken understanding of the
term of the lease:
According to our records, the current lease
term for the above-referenced location shall expire on May 31, 2018. Pursuant
thereto, renewal notice is due on or before May 31, 2017. In the event that any
of these dates differ from your records, please contact us in writing
immediately as your silence will be an acknowledgement and authorization of
their accuracy and our reliance.
[7]
The letter indicates the entries in the FWH
database were incorrect in two respects. The termination date was wrong and the
time when notice of renewal could be given was not consistent with the lease.
[8]
FWH had sent BMO similar letters in earlier
years. All went unanswered. The application judge observed these were standard
form letters automatically generated that the appellant sent to all of its
landlords. FWH sent another letter to BMO on May 1, 2017 asking for
confirmation that the lease expired on May 31, 2018 and the right of renewal
had to be exercised before August 31, 2017. The FWH employee who authored the
May 1, 2017 letter was aware of the date in the estoppel certificate and that
the date in the estoppel certificate was different from the date in the FWH
database.
[9]
In accordance with the incorrect date of May 31,
2018 in the FWH database, the appellant purported to exercise the option to
renew by providing notice on May 19, 2017. This attempt to renew was outside of
the notice period.
[10]
The application judge rejected the appellants
argument that BMO had failed to perform the contractual terms of the lease in
good faith by remaining silent when the appellant had asked for confirmation of
the termination date of the lease and the window for the leases renewal. In
rejecting this argument, the application judge cited this courts decision in
CM
Callow Inc. v. Zollinger
, 2018 ONCA 896, 429 D.L.R. (4th) 704. After the
application judges decision, the Supreme Court reversed this courts decision:
C.M. Callow Inc. v. Zollinger
, 2020 SCC 45. In analysing the
appellants submission that the application judge erred in finding BMO did not
breach its duty of good faith, it is necessary to consider the application
judges decision in light of the Supreme Courts decision in
Callow
.
[11]
The Supreme Courts decision in
Callow
does not disturb the application judges reasoning in this case. The
application judge reasoned that the appellant had the estoppel certificate and
did not make diligent efforts to comply with the terms of the lease. He said
that the appellant could have and should have known and complied with the
relevant dates for giving notice. Significantly, the application judge found
that BMO did not intentionally obscure anything from the [appellant]. He
found that BMO was up front and entirely transparent with the appellant, including
disclosing its plans to redevelop the property and offering the appellant various
forms of assistance and compensation for having to relocate.
[12]
The application judge concluded that the
appellant could not cast blame on BMO because it had itself mis-diarized the
termination date and so miscalculated the notice date for renewal of the Lease.
He stated the duty of good faith did not require BMO to make sure that the
appellant fulfilled its own obligations correctly.
[13]
The facts as found by the application judge are
different from those in
Callow
in an important respect. In
Callow
the trial judge had found deception on the part of the defendant that was
directly linked to the contract, and the breach of the duty of good faith was
premised on that deception. Kasirer J. writing for himself and four other
judges said, at para. 38,
In circumstances where a party lies to or
knowingly misleads another
, a lack of a positive obligation of disclosure
does not preclude an obligation to correct the false impression
created
through its own actions
(emphasis added). At para. 104, Kasirer J. spoke
of the duty to correct a misapprehension, but this duty arose because of the
defendants false representations. In the absence of the defendants false
representations, the failure to disclose a material fact, without more, would
not be contrary to the standard: at para. 77.
[14]
Brown J. writing for himself and two other
judges in
Callow
, said, at para. 133, the question is whether
the
defendants active conduct contributed to a misapprehension
that could be
corrected only by disclosing additional information and then stated clearly
that a contracting party is not required to correct a misapprehension to which
it has not contributed (emphasis added).
[15]
The Supreme Courts decision in
Callow
does not support the appellants attempt to invoke the duty of good faith
performance of a contract in the circumstances of this case. Here, there was no
finding, or any basis in the evidence to find, that BMO lied or knowingly
misled Subway, created a false impression through its own actions, or actively
contributed to Subways misapprehension. The application judge applied the
correct legal principles to the facts he found.
[16]
The record amply supported the application
judges determination that the appellant failed to make diligent efforts to
comply with the terms of the lease and his determination that the appellant
failed to properly deliver the renewal notice.
[17]
The appeal is dismissed. Costs of the appeal are
fixed in favour of the respondent in the amount of $25,000 all inclusive.
R.G. Juriansz J.A.
Grant Huscroft J.A.
M. Jamal J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: T.A.W. v. J.C.L., 2021 ONCA 192
DATE: 20210326
DOCKET: C67517
Fairburn A.C.J.O., van Rensburg
and Huscroft JJ.A.
BETWEEN
T.A.W.
Plaintiff/Respondent (Appellant)
and
J.C.L.
Defendant/Moving Party (Respondent)
T.A.W., acting in person
Natai Shelsen, for the respondent
Heard: in writing
On
appeal from the order of Justice Kevin B. Phillips of the Superior Court of
Justice, dated September 6, 2019.
REASONS FOR DECISION
[1]
This is an appeal from a decision arising from a
motion brought under r. 21.01(1)(b) of the
Rules of Civil Procedure
, R.R.O.
1990, Reg. 194, largely striking out the appellants pleadings as disclosing no
reasonable cause of action. In particular, the appellants claims regarding fraudulent
misrepresentation, intentional infliction of mental distress, and negligent
infliction of mental distress were struck from his statement of claim. The
appellants claim respecting unjust enrichment was transferred to the Family
Court.
[2]
In his reasons, the motion judge made a
publication ban, on his own motion, preventing the publication of any
information that may tend to identify the identity of the parties. We are
continuing this publication ban on appeal.
[3]
The appellant argues that the motion judge erred
in concluding that the claims of fraudulent misrepresentation and negligent
infliction of mental distress disclosed no reasonable cause of action. He also
maintains that the motion judge erred by refusing to allow the appellant to
amend his statement of claim and by transferring his unjust enrichment claim to
the Family Court. The appellant also contends that the motion judge erred in
granting costs on a substantial indemnity basis.
[4]
We do not agree with the appellants submissions.
The motion judges reasons are error free. We agree with the respondent that
the motion judge correctly held that the appellant failed to identify a false
statement made by the respondent, one that could constitute a fraudulent
misrepresentation. The motion judge also correctly held that no duty of care
existed between the appellant and respondent that could ground a claim for
negligent infliction of mental distress. Nor do we see any basis upon which the
pleadings could have been amended in a way that would have cured their
deficiencies. The motion judge was also correct to transfer the appellants
unjust enrichment claim to the Family Court, where the issues could be dealt
with expeditiously. Finally, the motion judges costs order is entitled to significant
deference. It cannot be said that the motion judge erred in principle or was
plainly wrong in awarding costs on a substantial indemnity basis: see
Hamilton
v. Open Window Bakery Ltd.
, 2004 SCC 9,
[2004] 1
S.C.R. 303, at para. 27.
Disposition
[5]
For the reasons given by the motion judge, the
appeal is dismissed.
[6]
As this was an appeal heard in writing, we will
receive written submissions on costs. The respondent will submit her written
submissions, of no more than three pages in length, no later than March 31,
2021. The appellant will submit his written submissions, of no more than three
pages in length, no later than April 7, 2021.
Fairburn
A.C.J.O.
K.
van Rensburg J.A.
Grant
Huscroft J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: T.A.W. v. J.C.L., 2021 ONCA 270
DATE: 20210426
DOCKET: C67517
Fairburn A.C.J.O., van Rensburg
and Huscroft JJ.A.
BETWEEN
T.A.W.
Plaintiff/Respondent (Appellant)
and
J.C.L.
Defendant/Moving Party (Respondent)
T.A.W., acting in person
Natai Shelsen, for the respondent
Heard: in writing
On appeal from the order of Justice Kevin
B. Phillips of the Superior Court of Justice, dated September 6, 2019.
COSTS ENDORSEMENT
[1]
This court issued reasons on March 26, 2021, dismissing
the appeal from an order largely striking out the appellants pleadings as
disclosing no reasonable cause of action, pursuant to r. 21.01(1)(b) of the
Rules
of Civil Procedure
, R.R.O. 1990, Reg. 194.
[2]
As this was an appeal heard in writing, we invited
the parties to file written submissions on costs. We have now received and reviewed
those submissions. The respondent seeks costs on a substantial indemnity basis
in the amount of $12,004.16. While the appellant acknowledges that the
respondent was successful on appeal, he submits that costs should be awarded on
a partial indemnity basis in the amount of $8,002.77.
[3]
Given the nature and the circumstances of the
appeal, the respondent is entitled to her requested substantial indemnity
costs.
[4]
Costs on a substantial indemnity basis are
generally awarded only where there has been reprehensible, scandalous or
outrageous conduct on the part of one of the parties:
Young v. Young
,
[1993] 4 S.C.R. 3, at p. 134;
Hamilton v. Open Window Bakery Ltd.
,
2004 SCC 9, [2004] 1 S.C.R. 303, at para. 26. Notably, the motion judge awarded
costs on a substantial indemnity basis, because the appellants statement of
claim was offensive and constituted a misogynistic attack on the respondent.
We agree with that observation.
[5]
The appellant argues that his appeal to this
court did not include any discriminatory reasoning. He also submits that the
mere fact of bringing an appeal does not constitute a continuation of the
conduct below. We do not accept this position.
[6]
Among other things, the appellants continuing
conduct on appeal includes his reference to the respondent as engaging in a repeated
pattern of deceitful, manipulative and predatory behaviour in her relationships
with three other men. Moreover, as the Supreme Court of Canada indicated in
Hamilton
, at para. 26, allegations of
fraud and dishonesty are serious and potentially very damaging to those accused
of deception. Here, the appellant attempted to revitalize his claim of
fraudulent misrepresentation against the respondent, one that constitutes a continuing
unacceptable attack on her integrity and dignity.
[7]
In these circumstances, it is entirely
appropriate to hold the appellant liable for costs on a substantial indemnity
basis:
Hamilton
, at
para. 26.
[8]
For the reasons above, we order that the
appellant shall pay to the respondent the requested substantial indemnity costs
in the amount of $12,004.16.
Fairburn
A.C.J.O.
K.
van Rensburg J.A.
Grant
Huscroft 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 childs parent or foster parent or a member of
the childs 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: T.J.L. v. E.B., 2021 ONCA 75
DATE: 20210204
DOCKET: C68185
Roberts, Zarnett and Sossin JJ.A.
BETWEEN
T.J.L.
Applicant
(Respondent)
and
E.B.
Respondent
(Appellant)
E.B., acting in person
Michelle Dwyer, for the respondent
Heard: January 26, 2021 by
video conference
On appeal from the order of Justice Donald
J. Gordon of the Superior Court of Justice, dated October 25, 2019, with
reasons reported at 2019 ONSC 6096.
REASONS FOR DECISION
[1]
The appellant mother appeals from aspects of the
trial judges final order made in proceedings claiming divorce and orders concerning
the custody, principal residence, and parenting of the parties young child. The
appellant does not appeal from the trial judges divorce order nor the order
for joint custody. She submits that the trial judge erred in giving the
respondent father the final decision-making power for major decisions
concerning their child in the event of disagreement and in ordering that the principal
residence of their child remain with the respondent, as it has been since February
2017. The appellant maintains their childs principal residence should be with
her, the appellant should have final decision-making power for major decisions
concerning their child in the event of disagreement, and the respondent should pay
child support.
[2]
In her factum, the appellant has raised eight
arguments for consideration on appeal. Except for the argument of reasonable
apprehension of bias, which we turn to below, the other seven arguments essentially
challenge the trial judges findings of fact that underpin his decision. In
sum, what the appellant characterizes as the trial judges misapprehension of
the facts and evidence or his failure to assess credibility do not amount to reversible
errors on appeal. Rather, these represent the appellants disagreements with the
trial judges assessment and weighing of the evidence, particularly what she
contends was his failure to reject the respondents evidence.
[3]
Although submitted as errors of law, similarly,
the appellants submissions about the trial judges application of the criteria
under s. 24 of the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12 (
CLRA
),
and
Gordon v. Goertz
, [1996] 2 S.C.R. 27, illustrate her disagreement
with the trial judges consideration of the evidence and his findings but fail
to reveal any error in the trial judges analysis or conclusions. In essence,
the appellant complains about the weight that the trial judge gave or did not
give to the various factors that he considered to determine their childs principal
residence and to allow the respondent to make the final major decisions about
their child in the event of disagreement with the appellant.
[4]
The trial judge extensively reviewed the history
of the parties relationship and the proceedings to provide context for his
findings. He was clear that any past difficulties that the parties experienced
were historical issues and neutral factors in his assessment regarding the best
interests of their child. In the end, the trial judge gave significant weight
to the importance of their childs stability and determined that it was in the
childs best interests to have the principal residence remain with the
respondent. The trial judges determination that the respondent has the final decision-making
power for major decisions involving their child in the event of disagreement flowed
from his determination of the principal residence of their child and,
importantly, is not unlimited. In fact, the trial judges order indicates that
decision-making is the joint responsibility of the parties and requires the parties
to meaningfully consult, co-operate, and communicate with each other.
[5]
In determining the matters before him, the trial
judge was properly guided by the primary consideration of the best interests of
the child, as dictated by s. 24 of the
CLRA
. The trial judges
findings are reasonable and supported by the evidence. It is the trial judges
task, and not this courts role, to assess and weigh the evidence and make
findings of fact and credibility. In child custody cases, the trial judges findings
are subject to considerable deference on appeal, and intervention is only
warranted when there is a material error, a serious misapprehension of the evidence,
or an error in law:
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2
S.C.R. 1014, at paras. 11, 13;
Perron v. Perron
, 2012 ONCA 811, 113
O.R. (3d) 600, at para. 25, leave to appeal refused, [2013] S.C.C.A. No. 26. The
appellant has not pointed to any such error or serious misapprehension of the
evidence that would permit this court to intervene.
[6]
Turning to the appellants allegation of bias
against the trial judge, as the appellant fairly acknowledges, the threshold
for establishing bias is a high one. There is a presumption of fairness,
impartiality, and integrity in the performance of the judicial role. The
grounds and evidentiary support for an apprehension of bias must be
substantial. See:
Miglin v. Miglin
(2001), 53 O.R. (3d) 641 (C.A.), at
paras. 29-30, revd on other grounds 2003 SCC 24, [2003] 1 S.C.R. 303;
Yukon
Francophone School Board, Education Area #23 v. Yukon (Attorney General)
,
2015 SCC 25, [2015] 2 S.C.R. 282, at para. 30.
[7]
We see no basis for the appellants allegation
of bias against the trial judge. In our view, a reasonable and informed person,
viewing the matter realistically and practically, and having thought the matter
through, would conclude that the trial judge decided fairly:
Committee for
Justice and Liberty et al. v. National Energy Board et al.
, [1978] 1 S.C.R.
369, at p. 394,
per
de Grandpré J. (dissenting).
[8]
Again, the trial judges thorough and careful
reasons demonstrate that his overarching consideration in making his order
concerning custody and principal residence of the child was the best interests
of the parties young child. He meticulously and fairly assessed the evidence
and reviewed the parties submissions. The appellants disagreement and disappointment
with the trial judges findings do not establish bias.
[9]
Moreover, the appellants bias argument is significantly
undermined by the trial judges acceptance of her position requesting joint custody.
In changing the sole custody order in favour of the respondent to joint custody
with the appellant, notwithstanding the past conflicts between the parties, the
trial judge recognized that both parties are committed and able to work
together to care for their child. The trial judge also made it clear that this obligation
rests on both parties:
The parties must understand their communication
is essential for the well-being of [their child]. [Their child] needs to know
that both parents are co-operating and deciding matters together. The parties
are given notice, by these reasons, that a record of their future communication
will be of significant interest to the court on any future motion to change.
Disposition
[10]
For these reasons, the appeal is dismissed. As
the trial judges order and the childs principal residence remain unaltered,
there is no need to address the appellants arguments concerning child support.
[11]
The respondent is entitled to partial indemnity
costs in the amount of $7,500, inclusive of disbursements and HST.
L.B.
Roberts J.A.
B. Zarnett
J.A
.
Sossin
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Toronto (City) v. Queen-St.
Patrick Market Inc., 2021 ONCA 276
DATE: 20210427
DOCKET: C67921
Huscroft, Nordheimer and
Harvison Young JJ.A.
BETWEEN
The City of Toronto
Applicant (Respondent)
and
Queen-St. Patrick Market Inc.
Respondent (Appellant)
Jeffrey Larry and Daniel Rosenbluth, for the appellant
Michele Ann Wright and Graham Thomson, for the respondent
Heard: April 26, 2021 by video conference
On appeal from the judgment of Justice Janet
Leiper of the Superior Court of Justice, dated December 12, 2019.
APPEAL BOOK ENDORSEMENT
[1]
The appellant argues that the application judge
erred in finding it was in breach of its lease with the respondents and denying
it relief from forfeiture.
[2]
The appellants submissions essentially invite
us to revisit the application judges findings. That is not our function on
appeal. The application judges interpretation of the lease is entitled to
deference. We see no error, let alone a palpable and overriding error that
would justify this courts intervention. The appellant left the building vacant
for almost two years. The application judges finding that this breached the
use clause is amply supported by the record and we agree with her analysis that
the respondent was entitled to terminate the lease as a result.
[3]
Nor is there any basis for interfering with the
application judges decision denying the appellant relief from forfeiture. The
appellant acknowledges that the application judge stated the relevant legal
principles. She found that the appellants conduct revealed a pattern of
non-compliance with the terms of the lease. Her decision to exercise her
discretion to deny relief from forfeiture in these circumstances reveals no
error of principle and is entitled to deference in the absence of a palpable
and overriding error. We see none.
[4]
The appeal is dismissed. The respondent is
entitled to its costs in the agreed amount of $15,000, inclusive of taxes and
disbursements.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Toronto-Dominion Bank v. 1633092
Ontario Ltd., 2021 ONCA 6
DATE: 20210106
DOCKET: C67799
Pepall, Hourigan and Roberts
JJ.A.
BETWEEN
The Toronto-Dominion Bank
Plaintiff
(Appellant/Respondent by way of cross-appeal)
and
1633092 Ontario Ltd., 2362378
Ontario Inc., Matthew Rooney and Haley Rooney
Defendants
(Respondents/Appellants by way of cross-appeal)
Oren Chaimovitch and Shawna Sosnovich,
for the appellant/respondent in cross-appeal
Andrew D. Ferguson, for the
respondents/appellants in cross-appeal
Heard in writing
On appeal from the judgment of Justice
Michelle OBonsawin of the Superior Court of Justice, dated March 7, 2019, with
reasons reported at 2019 ONSC 1473.
COSTS ENDORSEMENT
[1]
The parties costs submissions were brought to the
attention of the panel on January 4, 2021.
[2]
Having considered them, we are of the view that success
on the appeal and the cross-appeal was divided and that the parties should bear
their own costs. We so order.
S.E. Pepall
J.A.
C.W. Hourigan
J.A.
L.B. Roberts
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Tsai v. Dugal, 2021 ONCA 170
DATE: 20210317
DOCKET: M52234 (C68741)
van
Rensburg J.A. (Motions Judge)
BETWEEN
Wen-Chi
Tsai
Applicant
(Appellant/Responding Party)
and
Lucien Dugal by his Estate Trustees,
Johanne Dugal Roussee and Luc Dugal
Respondent
(Respondent in Appeal/Moving Party)
Alexandra Carr, for the moving party
Michael S. Deverett, for the responding
party
Heard: March 9, 2021 by video conference
REASONS
FOR DECISION
[1]
The appellant is appealing a judgment after trial dismissing her claim for
a constructive trust in a property that was owned by her common law spouse,
Lucien Dugal. The two had lived together at the property for approximately nine
years. The appellant commenced proceedings against Mr. Dugal following their
separation in 2014. Mr. Dugal died in 2017 and the proceedings were continued against
the estate.
[2]
The appellant had registered a certificate of pending litigation (CPL)
against the property. Before the action was tried, the CPL was discharged to
permit the sale of the property in exchange for $500,000 of the net proceeds of
sale being retained in the real estate lawyers trust account. There is a court
order providing for the retention of the funds until further order of the
court or signed written agreement of the parties.
[3]
The respondent estate moves for an order for security for costs of the
appeal and in the court below in the sum of $110,000 and for an order
permitting the release of the funds from the lawyers trust account.
The motion for security for costs
[4]
The motion for security for costs is brought under r. 61.06(1)(a) and
(c) of the
Rules of Civil Procedure
, R.R.O. 1990,
Reg. 194. The test under (a) is conjunctive. The moving party must establish
that the appeal is frivolous and vexatious, and that the appellant has
insufficient assets in Ontario to pay the costs of the appeal. Rule 61.06(1)(c)
provides that an order for security for costs may be ordered for other good
reason. An order for security for costs is discretionary. The court must first
consider the specific provisions of the Rules governing such motions and then
consider the justness of the order sought in all the circumstances of the case:
Yaiguaje v. Chevron Corporation
, 2017 ONCA
827, 138 O.R. (3d) 1, at para. 22.
[5]
Dealing first with r. 61.06(1)(a), the estate contends that the appeal
is frivolous based on the notice of appeal which lists 36 grounds of appeal,
the vast majority of which are alleged errors of fact, and vexatious based on
the appellants pattern of conduct throughout the litigation. The estate also
submits that there is no evidence that the appellant has sufficient equity in
any property in Ontario such that she would be able to pay the costs of the appeal
(estimated at $25,000) and the costs awarded in the court below ($85,000).
[6]
The appellant contends that her appeal is meritorious: the trial judge
failed to consider certain evidence that supported her claim, and erred in
focusing on whether there were direct contributions to the property rather than
on the overall view of the parties relationship and whether there was a joint
family venture.
[7]
On the second branch of the test under r. 61.06(1)(a), the appellant has
provided evidence of her equity in a condominium unit (the York St. Property)
to demonstrate that she has sufficient assets to pay costs of the appeal. The York
St. Property had an assessed value of $646,000 as of January 1, 2016 (prior to
its purchase). The appellant deposes that a similar condominium sold for
$890,000 on July 8, 2020. As of February 24, 2021, the balance outstanding on a
first mortgage to a commercial lender is $339,323.98 with additional credit
available of $27,926.02. There is a second mortgage in favour of the appellants
lawyer in the amount of $226,000, which was registered on August 24, 2020. The
appellant states that, if this court were to award security for costs, she
proposes to sign a direction to her lawyer to use the second mortgage as
security for costs, and that she would be prejudiced if she were forced to sell
the York St. Property in order to pay funds into court as security for costs.
There was no cross-examination on the appellants affidavit.
[8]
Based on this record, the estate does not meet the test for security for
costs under r. 61.06(1)(a).
[9]
The trial judge provided comprehensive reasons for judgment that appear
to have addressed the appellants arguments and evidence. That said, I am
unable to conclude that the appeal is frivolous, that is, that it is obviously
devoid of merit, or that it is vexatious in the sense that it is brought only
to annoy or harass the estate. I would however say that the prospects of
success in the appeal are slim, which is a factor that I will return to when I
consider whether security for costs should be granted under r. 61.06(1)(c).
[10]
As
for the second requirement of r. 61.06(1)(a), I am satisfied that the appellant
has equity of at least $50,000 in the York St. Property, and probably more. The
estate estimates the costs of the appeal to be $25,000. On the evidence before
the court the appellant has sufficient assets in Ontario to pay the costs of
the appeal.
[11]
Accordingly,
the estate is not entitled to security for costs under r. 61.06(1)(a).
[12]
I
turn to r. 61.06(1)(c), whether there is other good reason to award security
for costs. Here I am guided by the words of Laskin J.A. in
Combined Air Mechanical Services Inc. v. Flesch
, 2010
ONCA 633, 268 O.A.C. 172, at para. 8, that, while the list of reasons
justifying security under this rule is open-ended, the other good reason should
be compelling. It must also be related to the purpose of ordering security:
that a respondent is entitled to a measure of protection for costs in the
proceeding under appeal. Security for costs has been awarded under this
provision where an appeal has a low prospect of success and although the appellant
has the ability to pay, it would be nearly impossible to collect costs: see
Perron v. Perron
, 2011 ONCA 776, 286 O.A.C. 178, at
para. 23;
Henderson v. Wright
, 2016 ONCA 89,
345 O.A.C. 231, at para. 27.
[13]
Apart
from again relying on the contention that the appeal is without merit, the estate
points to the fact that the appellant did not respond to repeated requests before
the motion was brought that she provide evidence of her ability to pay costs,
as well as the paucity of financial information that she provided in response
to the motion. Although the estate provided evidence that the appellant sold a
second condominium unit in September 2020, the appellant did not disclose what
happened to the net proceeds. While the appellant was not obliged to provide
disclosure of
all
of her assets and income in response to the motion, the
fact that she provided information about only one asset the York St. Property
and her assertion that she would have to sell that asset if she were required
to post security, suggests that the estate may have considerable difficulty
recovering costs if the appellant loses the appeal. The estate also points to
the appellants pattern of conduct over six years of litigation, including unpaid
costs awards and her pursuit of various unmeritorious claims.
[14]
I
am satisfied that in all the circumstances this is an appropriate case to award
security for costs under r. 61.06(1)(c). In view of the low prospect of success
in the appeal, the appellants pattern of conduct in the litigation, the very
limited information she has provided about her ability to pay costs, the fact
that she has recently encumbered the York St. Property as security for her own
legal costs, and the assertion that she would need to sell the York St.
Property to pay security for costs, there is a very real risk that the estate
would be prevented from collecting its costs of the appeal from the appellant
in the event of an unsuccessful appeal.
[15]
As
for the amount of security for costs, the estate seeks security for the costs
awarded by the trial judge, in addition to security for costs of the appeal.
Such orders are not granted routinely: some justification must be offered by
the moving party when the amount of security sought under r. 61.06 includes
security for the costs awarded in the court below:
Foodinvest
Limited v. Royal Bank of Canada
, 2020 ONCA 387. The estate did not
provide any reasonable basis for requiring the appellant to post security for
costs of the proceedings below. Accordingly, the estate is entitled to security
for costs of the appeal, but not of the trial.
[16]
In
the circumstances, I order that the appellant provide on or before March 31,
2021, security for costs in the sum of $25,000. At the appellants option she
may pay that amount into court, or alternatively provide to the estate trustees
a mortgage of her interest in the York St. Property, with priority over her
lawyers mortgage to be provided by way of a postponement of that mortgage. The
required documents shall be prepared and registered at the appellants expense.
In the event of the appellants non-compliance with this order, the appeal
shall be dismissed.
The motion for the release of funds
[17]
The
estate seeks an order for the release of the sum of $500,000, which has been
held in trust since April 2019 from the net proceeds of sale of the property in
which the appellant claims a constructive trust.
[18]
The
funds were put in trust as a condition of the discharge of the appellants CPL
as a result of a motion brought by the estate. Akbarali J. determined that $500,000
was sufficient to cover the value of the interest in the property the appellant
was then seeking and her costs. Akbarali J.s order of April 4, 2019, states:
the respondents estate trustees shall execute an irrevocable direction to the
estates real estate lawyer directing him or her to hold $500,000 in trust in
order to satisfy the applicants potential claim against the estate and
potential costs awarded to the applicant, until further order of the court or
signed written agreement of the parties.
[19]
The
estate contends that, although there was no request specifically for an order
dealing with the funds in trust, the trial judges conclusion at para. 69 of
her reasons for judgment that the estate trustees are at liberty to distribute
the assets of the Estate in accordance with the provisions of [the deceaseds]
will would permit the distribution of the funds held in trust. After filing
her notice of appeal however, the appellant wrote to the real estate lawyer to
ensure that the funds would not be released pending court order or agreement
between the parties until after she had completed her appeals, including any
appeal to the Supreme Court of Canada.
[20]
According
to the affidavit of Luc Dugal, filed in support of this motion, the concern is
that the funds in trust are earning a very low rate of interest, while the
appellant is pursuing a meritless appeal with impunity. Mr. Dugal deposes that
the estate trustees wish to distribute the estate, including the $500,000 which
remains in trust, to the beneficiaries. He proposes that the estate trustees
keep $110,000 in a joint investment account to be available in the event that
the appellant is successful in her appeal.
[21]
At
the hearing of this motion, however, the estates lawyer indicated that the
estate trustees intend only to invest the funds, and not to distribute them.
[22]
I
am not prepared to make the order requested. The order sought in the estates
notice of motion is inconsistent with the intention of the order of Akbarali J.
that the funds in trust stand in place of the CPL which was registered against
the property to which the appellant asserted a claim. The appellant has an
appeal as of right. The fact that the appeal appears at this stage to be weak
is not sufficient reason to permit the funds to be released to the estate
trustees for distribution at this time. Nor am I persuaded that the alternative
form of order, raised in argument that the estate trustees be permitted to hold
and invest the funds at a higher rate of return is necessary or advisable on
this record.
Disposition
[23]
For
these reasons the estate is entitled to an order for security for costs of the
appeal in the terms indicated. The balance of the motion is dismissed. Costs of
this motion are reserved to the panel hearing the appeal.
K.
van Rensburg J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Tuffnail v. Meekes, 2021 ONCA 24
DATE:
20210114
DOCKET: C66633, C64430 & C64479
Doherty and Hoy JJ.A. and
Marrocco A.C.J.
[1]
(
ad hoc
)
DOCKET:
C66633
BETWEEN
Gregory Alan Tuffnail, Patricia
Diane Tuffnail, David Alan Tuffnail and Michael Alan Tuffnail
Plaintiffs (Appellants/Respondents by way of
cross-appeal)
and
Steven Andrew Meekes,
State Farm Mutual Automobile Insurance Company
and
Sharon
Carlene Drown as Litigation Administrator for the Estate of Thomas Michael
Bolton
Defendants (
Respondent/Respondent
and Appellant by way of cross-appeal
)
and
Steve
Coulthard
Third Party (Respondent)
DOCKET: C64430
AND BETWEEN
Gregory Alan Tuffnail, Patricia
Diane Tuffnail, David Alan Tuffnail and Michael Alan Tuffnail
Plaintiffs (Respondents)
and
Steven Andrew Meekes,
State Farm Mutual Automobile Insurance Company
and
Sharon Carlene Drown as Litigation Administrator for the Estate of Thomas
Michael Bolton
Defendants (
Appellant
)
and
Steve
Coulthard
Third Party (Respondent)
DOCKET: C64479
AND BETWEEN
Gregory Alan Tuffnail, Patricia
Diane Tuffnail, David Alan Tuffnail and Michael Alan Tuffnail
Plaintiffs (Respondents)
and
Steven Andrew Meekes,
State Farm Mutual Automobile Insurance Company
and
Sharon
Carlene Drown as Litigation Administrator for the Estate of Thomas Michael
Bolton
Defendants (
Respondents
)
and
Steve
Coulthard
Third Party (Appellant)
Peter W. Kryworuk and Jacob R.W.
Damstra, for State Farm Mutual Automobile Insurance Company
James D. Virtue and Rasha M. El-Tawil, for
Gregory Alan Tuffnail, Patricia Diane Tuffnail, David Alan Tuffnail, and
Michael Alan Tuffnail
Alan L. Rachlin, for the Litigation
Administrator for the Estate of Thomas Michael Bolton
Brian A. Pickard, James K. Brown and Ayren
J. Brown, for Steve Coulthard
Heard: January 14 and 15, 2020
On appeal from the judgment of Justice Helen
A. Rady of the Superior Court of Justice, dated July 23, 2019, with reasons
reported at 2017 ONSC 4610, 72 C.C.L.I. (5th) 281; 2018 ONSC 4113; 2019 ONSC
525, [2019] I.L.R. I-6127; 2019 ONSC 1334; and 2019 ONSC 2399.
COSTS ENDORSEMENT
[1]
The parties have resolved the costs of the
appeal in C64479. We have received and reviewed the costs submissions of State
Farm Mutual Automobile Insurance Company and Gregory Alan Tuffnail, Patricia
Diane Tuffnail, David Alan Tuffnail and Michael Alan Tuffnail in C64430 and
C66633. Success in these inter-related appeals, which were heard together with
C64479, was mixed. In the circumstances, there shall be no order as to costs of
the appeals in C64430 and C66633.
Doherty
J.A.
Alexandra
Hoy J.A.
"Marrocco
ACJSC
[1]
Marrocco A.C.J.
retired from the Superior Court of Justice on November 10, 2020.
|
COURT OF APPEAL FOR ONTARIO
CITATION: UD Trading Group Holding PTE.
Limited v. TransAsia Private Capital Limited, 2021 ONCA 279
DATE: 20210428
DOCKET: M52370 (C69265)
Paciocco J.A. (Motion Judge)
BETWEEN
UD Trading Group Holding PTE. Limited,
UIL Singapore PTE. Limited, UIL Malaysia Limited, UIL Commodities DMCC, Vadox
Corp. and Prateek Gupta
Plaintiffs/Moving Parties/Responding Parties
by Cross-Motion
(Appellants/Moving Parties)
and
TransAsia Private Capital
Limited
,
TA Private Capital Security Agent Ltd.
,
Rutmet Inc. and Export Development Canada
Defendants/Responding Parties/Moving Parties
by Cross-Motion
(Respondents/
Responding Parties
)
Michael D. Schafler, Kenneth Kraft, Ara
Basmadjian, and Rebecca Curcio, for the moving parties
George J. Pollack and Chenyang Li, for
the responding parties
Heard: April 19, 2021 by video
conference
ENDORSEMENT
OVERVIEW
[1]
On March 17, 2021, C. Gilmore J. dismissed a
motion for an anti-suit injunction brought by the moving party plaintiffs, Prateek
Gupta, UD Trading Group Holding PTE. Limited (UDTG), and several related
companies, including three subsidiaries of UDTG (the UIL Companies).
[2]
In the same endorsement, the motion judge allowed
a cross-motion by the responding party defendants, TransAsia Private Capital
Limited and TA Private Capital Security Agent Ltd. (collectively referred to as
TAP) to permanently stay the underlying action initiated by the moving
parties in Ontario (the Underlying Action) on the basis of
forum non
conveniens
and forum selection clauses. The moving parties have appealed
this aspect of the motion judges order.
[3]
By endorsement dated April 20, 2021, I dismissed
the moving parties request for a stay pending appeal and/or an order
expediting the appeal, for reasons to follow. These are those reasons.
MATERIAL FACTS
[4]
The Underlying Action arises from a series of
complex international commercial transactions involving the moving parties, the
responding parties, and other corporate parties.
The key
players
[5]
Before unfolding the agreements and transactions
that matter to the motion before me, it is helpful to begin with a brief outline
of the key players:
·
Rutmet Inc. (Rutmet) is an Ontario-based metal
trading company operating in Ontario.
·
Export Development Canada (EDC) is a Canadian Crown
corporation and insurance provider operating in Ontario and throughout Canada.
·
TransAsia Private Capital Limited, one of the
TAP companies, is an asset management company incorporated and headquartered in
Hong Kong, with offices in Singapore. It does not carry on business in Ontario
or Canada.
·
TA Private Capital Security Agent Ltd., the
other TAP company, is incorporated and headquartered in the British Virgin
Islands. It operates as an affiliate of TransAsia Private Capital Limited and does
not carry on business in Ontario or Canada.
·
UDTG was incorporated in Singapore, where its
head office is located. Along with its subsidiaries, some of which are set out
below, UDTG carries on business primarily in Asia and the Middle East and has
offices in Dubai, United Arab Emirates (UAE). UDTG provides its customers
with access to metal products and raw materials.
·
Prateek Gupta is a director of UDTG and is
resident in Dubai.
·
The UIL Companies are three subsidiaries of
UDTG, incorporated and headquartered in Singapore, Malaysia, and the UAE,
respectively. The UIL Companies are in the business of metal trading.
·
Vadox Corp. is a subsidiary of UDTGs holding
company, PPrime Limited. Vadox Corp. is incorporated and headquartered in the
British Virgin Islands. It has no active operations. Although it is a moving
party, it is unnecessary to refer to Vadox Corp. to unfold the relevant
narrative.
The relevant agreements and transactions
[6]
Reduced to the simplest of terms, Rutmet owed
money to TAP as the result of a May 24, 2019 loan agreement for US$60 million (the
Rutmet Loan Agreement). In exchange for liquidity, the Rutmet Loan Agreement provided
TAP with security in the form of Rutmets receivables, which TAP was authorized
to collect or bill directly from Rutmets customers, along with fees and
interest. As a condition of the Rutmet Loan Agreement, Rutmet obtained accounts
receivable insurance from EDC, the benefits of which Rutmet assigned to TAP (the
EDC Policy).
[7]
Rutmet had accounts receivable from metal sales
to the UIL Companies. UDTG provided Rutmet with an unlimited corporate
guarantee for the indebtedness of the UIL Companies (the UDTG Guarantee). Mr.
Gupta provided Rutmet with an additional US$30 million guarantee for those same
debts (the Gupta Guarantee).
[8]
By September 2019, Rutmet had defaulted on
payments it owed to TAP under the Rutmet Loan Agreement. On November 22, 2019, Rutmet
and TAP executed a forbearance agreement in which TAP agreed to refrain from
exercising its rights as a creditor against Rutmet until December 13, 2019 (the
Forbearance Agreement). In return, Rutmet granted TAP a power of attorney to
make claims on its behalf to enforce the UDTG and Gupta Guarantees. Rutmet also
executed a power of attorney authorizing TAP to make arrangements to secure the
proceeds of insurance for unpaid receivables under the EDC Policy.
[9]
The forbearance period under the Forbearance
Agreement ended on December 13, 2019, with Rutmet having failed to cure its
defaults before the deadline. TAP then notified Rutmet of TAPs intention to
enforce its security.
The relevant legal proceedings
[10]
On February 13, 2020, TAP commenced a
receivership application in Ontario against Rutmet (the Receivership
Application). That Application led to the compelled disclosure by Rutmet of
information necessary to permit TAP to submit a claim for coverage under the
EDC Policy. The Receivership Application was then abandoned.
[11]
TAP then submitted a claim to EDC under the
Policy, but coverage was denied. On July 22, 2020, TAP brought an application in
Ontario against EDC for declarations relating to EDCs refusal to provide
coverage under the Policy (the EDC Application). The EDC Application remains
outstanding.
[12]
As assignee, TAP also took steps to enforce the UDTG
Guarantee of the debt owed by the UIL Companies to Rutmet. On July 9, 2020, TAP
instituted an action in Singapore to enforce the UDTG Guarantee (the Singapore
Action).
[13]
UDTG secured an order extending the time
required to file a statement of defence in the Singapore Action until August 18,
2020. On that date, instead of filing a statement of defence, UDTG applied for
a stay of the Singapore Action on the basis that Ontario is the most
appropriate forum (the Singapore Stay Application). The Singapore Stay
Application has been adjourned multiple times. At the time I heard this motion,
the Singapore Stay Application was scheduled for April 23, 2021.
[14]
Mr. Gupta resides in Dubai. On August 18, 2020,
to conform with UAE law, TAP (via Rutmet) served Mr. Gupta with a final demand for
payment under the Gupta Guarantee. If Mr. Gupta failed to pay, that notice
permitted TAP to commence an enforcement action in Dubai on August 26, 2020.
[15]
On August 19, 2020, the day after Mr. Gupta was
notified that the Gupta Guarantee would be enforced, the moving parties notified
TAP that they had commenced the Underlying Action in Ontario on August 12, 2020.
The relief sought in the Underlying Action includes declarations that (a) there
are no outstanding receivables from the UIL Companies, and (b) there are no
amounts owing under either of the UDTG or Gupta Guarantees.
[16]
In support of their claims, the moving parties
contend TAP already recouped the funds owed by the UIL Companies to Rutmet (and
assigned to TAP under the Rutmet Loan Agreement). They maintain this was
accomplished when receivables owed to UDTG from metal sales were assigned and
then paid to Triton Metallics Pte. Ltd. (Triton), a company the moving
parties claim is controlled by TAP.
[17]
The moving parties further allege that, despite
having been paid in this way, TAP then improperly enforced additional security
for the Rutmet Loan Agreement. This alleged additional security took the form
of shares in Gympie Eldorado Mining Pty Limited (GEM) and Hangji Global
Limited (the GEM and Hangji Security). The moving parties contend that,
although the relevant agreements indicate that the GEM and Hangji Security relates
to independent loans TAP made to two of the UIL Companies (the UIL Loan
Agreements), in fact, the GEM and Hangji Security was provided to secure the
Rutmet Loan Agreement.
[18]
The moving parties allege the GEM and Hangji
Security was arranged under the UIL Loan Agreements to hide its true nature from
EDC (
i.e
.,
as additional security for the Rutmet Loan Agreement),
so that EDC would not rely on the riskiness of the GEM and Hangji Security to increase
the deductible component on Rutmets accounts receivable insurance. The moving
parties claim that this structure effectively increased the value of the EDC Policy
in favour of TAP by US$30 million.
[19]
The moving parties claim they agreed to this
arrangement at TAPs insistence, on whom they had become financially dependent.
They claim TAP was unjustly enriched by realizing on the GEM and Hangji Security
under the UIL Loan Agreements after already having been made whole through
Triton for the Rutmet Loan Agreement. In the Underlying Action, the moving
parties not only seek to prevent TAP from enforcing the UDTG and Gupta Guarantees,
they also seek damages from TAP for its alleged unjust enrichment.
[20]
On August 26, 2020, having provided the requisite
five business days notice, TAP (via Rutmet) commenced an action in Dubai to
enforce the Gupta Guarantee (the UAE Action). Mr. Gupta has filed a
Statement of Reply, the UAE equivalent of a statement of defence, and the UAE
Action is currently in the pre-trial phase.
[21]
By notice of motion dated September 3, 2020, the
moving parties asked the Ontario Superior Court of Justice for interim and anti-suit
injunctions restraining TAP and Rutmet from continuing the Singapore Action and
the UAE Action, and for an order consolidating the Underlying Action with the Receivership
Application and the EDC Application (the Anti-Suit Motion).
[22]
On September 8, 2020, Conway J. dismissed the
moving parties request for an interim injunction. On September 16, 2020,
Conway J. set a date of November 10, 2020 for a hearing on the merits of the Anti-Suit
Motion. In the meantime, she urged the parties not to take steps in the Singapore
Action or the UAE Action that would render the Anti-Suit Motion moot. The
parties negotiated a stand-still arrangement, including relating to the
Singapore Stay Application.
[23]
By notice of cross-motion, dated September 22,
2020, TAP sought orders from the Superior Court, including a permanent stay of
the Underlying Action on the basis that the Ontario courts lack jurisdiction due
to
forum non conveniens
(the Permanent Stay Motion).
[24]
TAP denies the allegations made in the
Underlying Action, including the claim that they have been paid through Triton,
and contends that the Underlying Action is a pretense intended to delay and
frustrate TAPs legitimate enforcement actions abroad.
The decision under appeal
[25]
The Anti-Suit Motion and the Permanent Stay Motion
were heard together on January 19, 2021 before the motion judge, C. Gilmore J. On
March 17, 2021, the motion judge issued her decision dismissing the moving
parties Anti-Suit Motion and granting the responding parties Permanent Stay
Motion with respect to the Underlying Action.
[26]
On April 6, 2021, the moving parties filed a notice
of appeal of the motion judges decision in this court. Although the moving
parties allege the motion judge made a number of errors in dismissing the
Anti-Suit Motion, they concede it was open to her to deny an anti-suit
injunction because there was evidence before her that there were numerous potential
alternative jurisdictions.
[27]
Therefore, the moving parties appeal only the
motion judges order granting the Permanent Stay Motion. They say she
erroneously concluded that, having denied the anti-suit injunction, a permanent
stay on the basis of
forum non conveniens
should automatically issue
on the same grounds.
THE ISSUES
[28]
The issues on this motion can be stated simply:
(1) Should a stay pending appeal be granted with respect to the motion
judges March 17, 2021 order imposing a permanent stay of the Underlying
Action?
(2) Should
the appeal be expedited?
ANALYSIS
1. The Stay MOtion
[29]
Where a party seeks a stay pending appeal, the
overarching consideration is whether the interests of justice call for a stay:
BTR
Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust
, 2011
ONCA 620, 283 O.A.C. 321, at para. 16;
2257573
Ontario Inc. v. Furney
,
2020 ONCA 742, at para. 20. This determination is informed by the three factors
described in
RJR-MacDonald Inc. v. Canada (Attorney General)
,
[1994]
1 S.C.R. 311, at p. 334:
(a) A preliminary assessment must be made of the merits of the
case to ensure there is a serious question to be determined on the appeal;
(b) It must be determined whether the moving party would suffer
irreparable harm if the stay were refused; and
(c) An assessment must be made as to which of the parties would
suffer greater harm from the granting or refusal of the stay pending a decision
on the merits.
[30]
As Laskin J.A. noted in
Circuit World Corp.
v. Lesperance
(1997), 33 O.R. (3d) 674, at p. 677, these three criteria
are not watertight compartments and the strength of one may compensate for
the weakness of another.
[31]
As I will explain, having undertaken this
assessment, I am not satisfied that it is in the interests of justice to order
a stay pending appeal.
(a) A Serious Issue to be Determined on Appeal
[32]
Jamal J.A. recently described the pertinent
inquiry in
Furney
, at para. 22:
The threshold to establish a serious question
on the appeal is low. The court must make a preliminary assessment of the
merits of the case and determine whether the issue on appeal is neither
frivolous nor vexatious. [Citations omitted.]
[33]
An appeal is frivolous when it is devoid of
merit or with little prospect of success:
Heidari v. Naghshbandi
, 2020
ONCA 757, 153 O.R. (3d) 756, at para. 10. It is vexatious if taken to annoy
or embarrass the respondent or conducted in a vexatious manner, including an
oblique motive for launching the appeal:
Heidari
, at para. 10.
The appeal is neither
frivolous nor vexatious
[34]
In my view, this appeal is not frivolous.
Sopinka J. made clear in
Amchem Products Incorporated v. British Columbia
(Workers Compensation Board)
, [1993] 1 S.C.R. 897, at p. 913, that there
is a fundamental difference between a domestic court issuing an anti-suit injunction,
which in effect determines matters for a foreign court, and a domestic court
staying a proceeding before itself. The former raises issues of international
comity, but the latter does not. The inquiries into the suitability of forum
therefore differ.
[35]
Most notably, in determining whether to grant an
anti-suit injunction, the inquiry is based on the foreign courts perspective.
The domestic judge considering whether to issue an anti-suit injunction is to
ask whether, applying Ontarios principles of
forum non conveniens
, the
court where the action sought to be restrained was commenced could reasonably
have concluded there was no alternative forum that was clearly more
appropriate. If the answer is yes, the decision of the foreign court to assume
jurisdiction should not be interfered with:
Amchem
, at pp. 931-32.
[36]
By contrast, in determining whether a domestic
action should be stayed, the domestic court must determine for itself whether
there is another forum that is clearly more appropriate [than the domestic
court] for disposing of the litigation and thus ensuring fairness to the
parties and a more efficient process for resolving their dispute. A stay is
appropriate only if this is so:
Club Resorts Ltd. v. Van Breda
, 2012
SCC 17, [2012] 1 S.C.R. 572, at paras. 108-109.
[37]
These inquiries can result in an anti-suit
injunction being denied without the parallel domestic action being stayed, unlike
the outcome arrived at by the motion judge. This will occur, for example, if
both the domestic and foreign forums are equally appropriate. In such
circumstances, a foreign court could reasonably conclude there is no
alternative forum that is clearly more appropriate, thereby warranting denial
of an anti-suit injunction. But a domestic court would not necessarily stay the
parallel domestic action since the domestic court would be equally appropriate;
in other words, the foreign forum would not be clearly more appropriate.
[38]
The moving parties have identified features of
the decision under appeal that lend some support to the suggestion that the
motion judge may have erroneously elided the two tests. Therefore, the appeal
is not frivolous.
[39]
Nor am I persuaded that the appeal was launched
to annoy or embarrass the respondents or that it is being conducted in a
vexatious manner. I am not prepared to find on the record before me that this appeal
was brought with an oblique motive, for instance to delay or frustrate the
enforcement of the Guarantees, which would be improper.
The seriousness of the issue in this case does not overcome
weaknesses in the other
RJR-MacDonald
factors
[40]
During oral submissions before me, the moving
parties placed great emphasis on the strength of their appeal. They suggested the
case law appears to reflect the proposition that stays pending appeal tend to
be granted where the strength of the appeal to be determined exceeds the low
threshold of a serious question.
[41]
I do not want to be taken as endorsing this as a
principled basis for resolving stay pending appeal motions. I will say,
however, that where a preliminary assessment of the merits of the appeal shows it
to be strong, this is a proper consideration in deciding whether to grant the
stay, given the repeated recognition in this court that the strength of one
RJR-MacDonald
factor may compensate for the weakness of others.
[42]
Based on their submissions before me, I
understand the moving parties to be emphasizing the strength of their appeal in
support of this stay motion. However, in my view, this is not a case where the
strength of the appeal compensates for the weakness in the other factors that I
identify below.
[43]
First, a key feature of the moving parties
argument on appeal is the claim that the motion judge failed to undertake a
proper
forum non conveniens
analysis as set out in the leading
case of
Van Breda
. However, the Underlying Action that is the subject
of the appeal advances claims which are fundamentally contractual in nature. In
Van Breda
,
Lebel J. repeatedly confined the principles he
developed to the assumption of jurisdiction in tort actions:
Van Breda
,
at paras. 68, 80 and 85.
[44]
Recently, in
Forbes Energy Group Inc. v.
Parsian Energy Rad Gas
, 2019 ONCA 372, 93 B.L.R. (5th) 169, at paras. 7-8,
in resolving a
forum non conveniens
issue in a contract case, this
court applied the factors Laskin J.A. identified in a pre-
Van Breda
contractual
decision called
Young v. Tyco International of Canada Ltd.
, 2008 ONCA
709, 300 D.L.R. (4th) 384, at para. 26.
[45]
I am not suggesting that general guidance cannot
be taken from the
Van Breda
principles in resolving
forum non
conveniens
issues in contract cases. That is commonly done: see
e.g.,
Patterson v. EM Technologies, Inc
, 2013 ONSC 5849, at para. 17;
Wilson
c. Fernand Campeau & Fils Inc.
, 2020 ONCA 384, at paras. 9-12;
Osman
v. Markplan Inc.
, 2018 ABCA 215, [2018] A.W.L.D. 2510, at para. 8. The
point is that the absence of an express reference by the motion judge to the
Van
Breda
decision may not have the stark significance the moving
parties ascribe to it, and an appeal panel may ultimately be persuaded that in
the course of her decision, in substance, the motion judge consulted the
correct considerations.
[46]
Second, forum selection clauses, namely those in
the Guarantees assigned to TAP through the Forbearance Agreement, and in agreements
relating to the GEM and Hangji Security, specifically authorized TAP to
commence actions outside of Ontario. Relying on the decisions in
Douez v.
Facebook, Inc.
, 2017 SCC 33, [2017] 1 S.C.R. 751 and
ECS Educational
Consulting Services Canada Ltd. v. Al Nahyan
(2000), 44 C.P.C.
(4th) 111, the motion judge concluded that the moving parties should be held to
those forum selection clauses. The forum selection clauses stand as a material
impediment to the moving parties claim that the motion judge erred in permanently
staying the Underlying Action.
[47]
I have considered the counterarguments the
moving parties made before me. Nevertheless, on a preliminary examination, I do
not find those arguments sustain the view that the serious issue criterion is
strong enough to overcome any weaknesses there may be in the other
RJR-MacDonald
factors.
(b) Irreparable Harm
[48]
The moving parties urge that the failure to
grant a stay pending appeal will cause them irreparable harm by: (i) creating a
litigation disadvantage; (ii) putting them at risk of insolvency; and (iii)
prejudicing them in the Singapore and UAE Actions by leaving in place the
factual findings made by the motion judge pending appeal.
[49]
As I will explain, I do not accept any of these
arguments.
(i) A
litigation disadvantage has not been established
[50]
The moving parties submit a litigation
disadvantage will occur if a stay pending appeal is not ordered while the
Singapore and UAE Actions proceed. If decisions are rendered by the Asian
courts, the moving parties point out that the Underlying Action will be
rendered moot. They will thereby lose the opportunity to have the merits of the
decision determined in Ontario and they will be forced to litigate in multiple
jurisdictions.
[51]
One problem with this submission is that there
is no legal order in place preventing the responding parties from moving
forward with the Singapore Action or the UAE Action. That will not change,
whether I grant the stay or not. However, based on their submissions, the
parties appear to agree that if I order a stay pending appeal, it may delay the
responding parties foreign enforcement efforts pending the Ontario appeal. I will
therefore proceed on that basis. Even so, I do not accept that the loss of
litigation advantage alleged by the moving parties constitutes irreparable
harm.
[52]
It is important to appreciate that the moving
parties have no right to have the matters in dispute litigated only in Ontario.
Their request for an anti-suit injunction failed; they have not appealed that
decision.
[53]
Nor do the moving parties have any legal or
normative claim of right to have the issues disposed of in Ontario before the
Singapore or UAE Actions are resolved. The Singapore Action preceded the
Underlying Action. The responding parties had already given notice that the UAE
Action would be commenced before they were served with the moving parties
statement of claim in the Underlying Action. The moving parties can have no
reasonable expectation that the Ontario proceedings should take precedence.
[54]
Moreover, even if the moving parties appeal
succeeds in showing the Underlying Action in Ontario should not have been permanently
stayed, the risk remains that matters will be resolved by the Singapore Action and/or
the UAE Action before any decision on the merits in Ontario. As the moving
parties pointed out in argument, citing
Amchem
, at p. 914, where no
one forum is clearly more appropriate than another and parallel litigation occurs,
it is anticipated and acceptable that the first decision rendered will resolve
the matter.
[55]
Nor do I have any basis on which to conclude
that the quality of equity or justice will be compromised if the matters in
issue are determined in the Singapore or UAE Actions, rather than in Ontario.
There is no evidence before me to suggest the moving parties will be unable to raise
their position that TAP has already been paid as a defence in those Actions, or
that the foreign proceedings will otherwise be unfair. It is therefore
difficult to accept that irreparable harm arises from the risk that the Singapore
Action and/or the UAE Action could proceed before this appeal.
[56]
I turn now to the moving parties objection to being
required to litigate in multiple jurisdictions. In my view, there is weight to
the responding parties position and the motion judges observation that the
moving parties have themselves compounded the multiplicity of proceedings by
initiating the Underlying Action in Ontario. The moving parties objection does
not resonate with me given that they are asking this court in their appeal to
re-add the Underlying Action to the ongoing litigation mix.
[57]
Accordingly, I can find no irreparable harm
arising from any litigation disadvantage if the stay pending appeal is refused.
(ii) The
risk of insolvency is not supported by the evidence
[58]
I agree with the responding parties that the
moving parties did not adequately explain how my refusal to stay the motion
judges permanent stay of the Underlying Action pending appeal could threaten
their solvency. There is no evidence to support a finding that the litigation
costs could cripple them if the motion judges stay is not lifted pending appeal,
if that indeed is their concern.
[59]
In his affidavit filed in support of this motion,
Mr. Gupta appears to suggest that the spectre of insolvency arises in part from
the risk that his assets will be exposed to attachment orders in the UAE. That
outcome depends on the responding parties successfully prosecuting the UAE Action
on the merits. On the evidence before me, I cannot find irreparable harm based
on the financial implications of presumptively fair legal determinations made
in other jurisdictions.
[60]
In any event, even if the moving parties had
established a basis on which to conclude that they could be put at risk of
insolvency if a stay pending appeal is not ordered, this consideration would
cut both ways. The responding parties could rely on the moving parties risk of
insolvency to argue that the balance of convenience favours denying the stay,
since any knock-on delay in enforcement in Asia could compromise the responding
parties ability to recover funds from parties in supposedly dire financial
straits.
(iii) The
findings made by the motion judge will not cause irreparable harm
[61]
In addition, the moving parties rely on findings
made by the motion judge which they say amount to summary judgment against them
undermining their position regarding the alleged Triton payments and the GEM
and Hangji Security. They say these findings will irreparably prejudice them in
the Asian proceedings if a stay pending appeal is not granted. I am not
persuaded that these or any other findings made by the motion judge would cause
irreparable harm if her decision is not stayed pending appeal.
[62]
First, I do not read the motion judge as having made
any findings against the moving parties contention that TAP was already paid
for the debts it is attempting to enforce in Singapore and the UAE.
[63]
The impugned passages must be read in context. When
she made those findings, the motion judge was addressing the moving parties submission
that the litigation is presumptively linked to Ontario because TAPs claim
against UDTG arose from the Rutmet Loan Agreement, making Rutmet the material
debtor. In my view, the motion judge was doing no more than rejecting this argument
by noting that the outstanding material issue in the litigation is whether
certain debts have been paid and the collateral validly enforced under the UIL
Loan Agreements. Her point was that the UIL Loan Agreements cannot be conflated
with the Rutmet Loan Agreement for the purpose of identifying the appropriate
forum for the litigation. As the motion judge noted earlier in summarizing the
arguments of the parties, neither the UIL Loan Agreements, nor the alleged
transactions with Triton that led to TAPs alleged repayment under the Rutmet
Loan Agreement, are linked to Ontario. Hence her finding that the moving
parties failed to demonstrate a presumptive connecting factor to Ontario.
[64]
Moreover, even if the motion judges factual
findings do somehow lend support to arguments the responding parties will
advance in the Singapore Action and/or the UAE Action, the moving parties cannot
be heard to complain. They initiated the Anti-Suit Motion and, in doing so, advanced
factual claims to support their position. The findings the motion judge made were
in large measure responsive to those claims. A partys decision to voluntarily
assume litigation risk does not qualify as irreparable harm:
M & M
Homes Inc. v. 2088556 Ontario Inc.
, 2020 ONCA 134, 51 C.P.C. (8th) 253, at
paras. 39-40. Put simply the moving parties created the risk of the outcome
they now seek to identify as irremediable harm.
[65]
Accordingly, I am not persuaded that the moving
parties would suffer irreparable harm if a stay pending appeal is denied.
(c) The Balance
of Convenience
[66]
I have already addressed the potential harm the
moving parties rely upon. I have found none that would be irreparable.
[67]
I accept the moving parties representations
that they took steps to ameliorate potential harm to the responding parties
flowing from a stay, such as agreeing to post security for costs and moving to
expedite the appeal.
[68]
However, these initiatives do not account for
the most material inconvenience a stay would visit on the responding parties. Both
the Singapore Action and the UAE Action have already been delayed for many
months. As noted, granting the stay would likely cause further delay. Delay
works against the responding parties financial interests. As I have indicated,
there is no basis before me on which to apprehend that the respective foreign courts
will proceed unfairly in adjudicating the Singapore and UAE Actions.
[69]
In my view, the balance of convenience favours
the responding parties.
(d) Other Considerations
[70]
The moving parties also argued before me that
the responding parties attorned to the jurisdiction of Ontario by initiating
the Receivership Application and the EDC Application in Ontario, and by serving
a notice of motion for security for costs of this appeal. I am not persuaded
that attornment considerations play any role in this motion for a stay pending
appeal.
[71]
The moving parties did not have standing in the
Receivership Application or the EDC Application, and both proceedings were brought
against parties carrying on business in Ontario. I fail to see how TAPs decision
to institute those proceedings can fairly be interpreted as an attornment to
Ontario in the Underlying Action, which was predicated upon offshore agreements
and transactions involving foreign corporations.
[72]
Nor does the responding parties decision to
bring a security for costs motion in this appeal assist the moving parties. Attornment
occurs where a party takes steps suggesting they have accepted jurisdiction, which
typically are steps to defend the merits of a proceeding: Gerard J. Kennedy,
Jurisdiction Motions and Access to Justice: An Ontario Tale (2018) 55 Osgoode
Hall L.J. 79, at p. 103. Attornment does not occur where a party merely
contests the jurisdiction of the court:
Lilydale Cooperative Ltd. v. Meyn
Canada Inc.
, 2019 ONCA 761, 439 D.L.R. (4th) 385, at para. 52. Nor does it
occur where a party takes procedural steps that deal solely with the procedural
mechanics of the jurisdiction hearing:
Fraser v. 4358376 Canada Inc.
, 2014
ONCA 553, 324 O.A.C. 68, at para. 15.
[73]
In my view, the responding parties motion for
security for costs in this jurisdiction appeal is a procedural step related to
the resolution of the jurisdictional dispute the appeal addresses. It cannot be
taken as an act of attornment.
[74]
The decisions relied upon by the moving parties
do not hold otherwise. In
T Films S.A. v. Cinemavault Releasing
International Inc.
, 2014 ONSC 4138, the motion by the respondents for
security for costs constituted attornment because it related to the costs of the
underlying proceeding.
[75]
Nor is there help to be found in the endorsement
in
1092072 Ontario Inc. (Elfe Juvenile Products) v. GCan Insurance Co.
,
2008 CanLII 51922 (Ont. S.C.). McWatt J.s
obiter dictum
observation,
at para. 15, that a security for costs motion would be an act of attornment concerned
a hypothetical motion related to the substantive underlying action. Indeed,
McWatt J. later held, at para. 18, that a party who disputes jurisdiction without
engaging in the merits of the case will not generally be found to attorn.
(e) Conclusion on the Stay Motion
[76]
It is not in the interests of justice to stay pending
appeal the motion judges order to permanently stay the Underlying Action. I am
not persuaded that the moving parties will be irrevocably harmed if the
requested stay pending appeal is denied, and I am persuaded that the balance of
convenience favours the responding parties. Although the issues to be adjudicated
on the appeal are not frivolous or vexatious, the grounds of appeal are not so
strong as to compensate for the weaknesses I have identified in the other
RJR-MacDonald
factors.
[77]
I would therefore deny the motion for a stay
pending appeal.
2. THe Motion to expedite the appeal
[78]
Appeals of this kind are to be expedited only
where the motion judge is satisfied the urgency of the matter requires an
earlier hearing date: Practice Direction Concerning Civil Appeals at the Court
of Appeal for Ontario, (March 1, 2017), at 12
.
1(4).
[79]
I see no urgency in having this appeal heard. The
moving parties request for an expedited appeal was presented, at least in
part, as a concession to reduce the harm a stay pending appeal would cause to
the responding parties. No stay pending appeal is being ordered, and the responding
parties oppose expedition.
[80]
I would therefore deny the request to expedite
the appeal.
DISPOSTION
[81]
The motion for a stay pending appeal is
dismissed, as is the motion for an expedited appeal.
[82]
As agreed by the parties, costs in this motion are
set at $10,000, inclusive of HST and disbursements, to be allocated by the
panel hearing the appeal.
David
M. Paciocco J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: United Mexican States v. Burr,
2021 ONCA 64
DATE: 20210202
DOCKET: M51771 (C68571)
Lauwers, Miller and Nordheimer JJ.A.
BETWEEN
The
United Mexican States
Applicant
(Appellant/Responding Party)
and
Gordon
G. Burr, Erin J. Burr, John Conley, Neil Ayervais, Deana Anthone, Douglas
Black, Howard Burns, Mark Burr, David Figueiredo, Louis Fohn, Deborah Lombardi,
P. Scott Lowery, Thomas Malley, Ralph Pittman, Daniel Rudden, Marjorie Peg
Rudden, Robert E. Sawdon, Randall Taylor, James H. Watson Jr., B-Mex, LLC,
B-Mex II, LLC, Oaxaca Investments, LLC, Palmas South, LLC, B-Cabo, LLC,
Colorado Cancun, LLC, Sante Fe Mexico Investments, LLC, Caddis Capital, LLC,
Diamond Financial Group, Inc., J. Paul Consulting, LAS KDL, LLC, Mathis Family
Partners, Ltd., Palmas Holdings, Inc., Trude Fund II, LLC, Trude Fund III, LLC,
Victory Fund, LLC
Respondents
(Respondents/Moving Parties)
and
United
States of America and Attorney General of Canada
Interveners
John Terry and Hannah Allen, for the
moving parties
Robert J.C. Deane, Hugh Meighen and
Ashley Thomassen, for the responding party
Heard: November 30, 2020 by video conference
On appeal from the judgment of Justice Bernadette
Dietrich of the Superior Court of Justice, dated July 20, 2020 with reasons
reported at 2020 ONSC 2376.
Lauwers J.A.:
[1]
The application judge dismissed the application
by the United Mexican States (Mexico) to set aside an arbitral tribunals Partial
Award. Mexico appealed. The moving parties, who were the respondents in the
application below, move to quash Mexicos appeal. For the reasons that follow,
I would quash the appeal.
A.
Background
[2]
The North American Free Trade Agreement gives
investors the right to seek damages for the failure of a party
(Canada, Mexico, or the United States of America) to honour a treaty commitment.
The moving parties are thirty-nine USA nationals who brought claims
individually and on behalf of seven Mexican companies totalling some USD$100
million to compensate for losses allegedly caused by Mexicos closure of the
casinos they had been operating in that country.
[3]
The arbitral tribunal was constituted under c.
11 of NAFTA on February 14, 2017. On April 4, 2017 the tribunal bifurcated the
proceedings into a jurisdiction phase and a merits and damages phase. The
jurisdiction phase was heard over five days in May 2018.
[4]
A majority of the tribunal determined that the
tribunal had jurisdiction over all but one of the moving parties claims.
Mexico applied to the Superior Court of Justice to set aside the tribunals
decision under s. 11 of the
International Commercial Arbitration Act
,
2017
,
S.O. 2017, c. 2, Sch. 5 (ICAA) and arts. 16 and 34 of the
UNCITRAL Model
Law on International Commercial Arbitration
, adopted by the United Nations
Commission on International Trade Law on June 21, 1985, as amended on July
7, 2006 (the Model Law). The Model Law has the force of law in Ontario under
s. 5 of the ICAA, subject to any modifications set out in the Act. The
legislation specified that the Ontario Superior Court of Justice is the court
with jurisdiction to review the decision of the arbitral tribunal.
[5]
The application judge dismissed the application,
holding that Mexico had not discharged its burden of proof of establishing
that the Tribunal was incorrect in its conclusion that it had jurisdiction over
all but one of the claims before it.
B.
The Issue
[6]
The issue before this panel is whether the
application judges ruling can be appealed to this court.
[7]
Whether the appeal should be quashed depends
upon whether Mexicos application is governed only by art. 16(3) of the Model
Law, which would prohibit an appeal of the application judges decision, or if
it is also governed by art. 34 of the Model Law, which would permit an appeal.
C.
Analysis
[8]
The focal point of the analysis in this case is
art. 16 of the Model Law. Article 16(1) gives arbitral tribunals the competence
to rule on their own jurisdiction, as the tribunal did in this case. Article
16(2) specifies when a party must raise a plea that the arbitral tribunal does
not have jurisdiction. Article 16(3) specifies how the tribunal may proceed
when its jurisdiction is challenged. It also gives a role to the Ontario
Superior Court of Justice and prohibits certain appeals.
[9]
The text of art. 16(3) makes a clear distinction
between a jurisdictional plea that is pursued as a preliminary question and a
jurisdictional plea that is pursued in an award on the merits. Article 16(3)
provides:
(3) The arbitral tribunal may rule on a plea
referred to in paragraph (2) of this article
either as a
preliminary question or in an award on the merits
.
If
the arbitral tribunal rules as a
preliminary question
that it has jurisdiction, any party
may request, within thirty days after having received notice of that ruling, [the
Ontario Superior Court of Justice] to decide the matter,
which
decision shall be subject to no appeal
; while such a request is pending,
the arbitral tribunal may continue the arbitral proceedings and make an award.
[Emphasis added.]
[10]
The text of art. 16(3) requires this court to
consider whether the tribunals ruling was on a preliminary question of
jurisdiction. If it was, then the application judges ruling cannot be appealed
to this court; in the language of art. 16(3), the application judges ruling is
subject to no appeal.
[11]
By contrast, art. 34 of the Model Law also provides
for a right of [r]ecourse to a court against an
arbitral
award
(emphasis added), but this language arguably contemplates only the
recourses available against an award on the merits rather than on a preliminary
question of jurisdiction. In an application under art. 34, the Model Law places
no limits on the parties ability to appeal from the decision of the Superior
Court.
[12]
In this case, I conclude that the arbitral
tribunals ruling was on a preliminary question of jurisdiction under art. 16(3)
so that a further appeal does not lie to this court. I reach this conclusion
for four reasons.
(1)
The arbitral tribunals view of what it was
doing
[13]
First, the arbitral tribunal saw itself as
addressing jurisdiction as a preliminary question. In its Partial Award, dated
July 19, 2019 the tribunal noted that from 21 May 2018 to 25 May 2018, the
Tribunal held a
hearing on jurisdiction
in
Washington, D.C. (emphasis added): at para. 22. The tribunal specified: In
this
first phase
the Tribunal shall decide
three preliminary issues
(emphasis added): at para. 41.
Based on its interpretation of various provisions of NAFTA, the tribunal dismissed
most of Mexicos objections, decided that it had jurisdiction over certain
claims and, in its final paragraph: directs the Parties to confer regarding a
procedural timetable for
the merits phase
(emphasis added): at para. 273.
(2)
The arbitral tribunal has embarked on the merits
phase
[14]
Second, the arbitral tribunals decision did not
address the substantive merits of the dispute, and the merits phase of the
dispute is now proceeding despite Mexicos effort to appeal the application
judges ruling. As noted, this sequence of proceedings is contemplated and
expressly permitted by art. 16(3): while such a request [to the Superior
Court] is pending, the arbitral tribunal may continue the arbitral proceedings
and make an award.
(3)
The argument before the application judge did
not address art. 34 of the Model Law
[15]
Third, Mexico did not focus on art. 34 in its
application to the Superior Court. Mexico cited art. 34 only in the title of its
notice of application, and in the introductory paragraph of its factum. Its
factum contained only two other references to art. 34:
23. The application to set aside the Partial
Award is governed by Article 34 of the
Model Law
. Article 34(2)(a)
provides that an arbitral award may be set aside if the award deals with a
dispute [
] not falling within the terms of the submission to arbitration or
if the composition of the arbitral tribunal or the arbitral procedure was not
in accordance with the agreement of the parties. (Citing Model Law, Art.
34(2)(a)(iii) and (iv).)
76. The failure to comply with Articles 1119
and 1121 meant that Mexicos consent to arbitration was not engaged, and the
Tribunal was deprived of jurisdiction. The Partial Award holding the contrary
must therefore be set aside, in whole or in part, pursuant to Article 34(2)(a)(iii)
and (iv) of the
Model Law
.
[16]
It is difficult to reconcile these positions
with Mexicos statement at para. 22 of its factum before the application judge
that: The Partial Award,
issued pursuant to Article
16(2) of the Model Law
, is a final decision by the Tribunal in respect
of its jurisdiction (emphasis added). As noted above, a final decision on
jurisdiction may still be dealt with as a preliminary question within the
meaning of art. 16.
[17]
Similarly, Mexicos counsel did not address the
substance of art. 34 in oral argument before the application judge. The context
was set in oral argument before the application judge by counsel for the NAFTA
claimants, who are the moving parties before this court. Counsel focused on s.
11(1) of the ICAA and on art. 16 and steered the application judge away from
art. 34. He said, speaking for himself and counsel for Mexico:
[W]e agree
that there is no appeal from your decision in this
case
. And this thats an unusual circumstance obviously (emphasis
added). Counsel then provided an explanation to the application judge:
[T]here are two ways in which in which a
party under the
International Commercial Arbitration Act
here in
Ontario can bring forward an application to this court to set aside a decision.
One way is the Article 34 route, this is article 34 of the Model Law. And you
can bring forward a decision and
quite often thats done
in a case where the Tribunal has reached a final award
, and youre
seeking to set aside that for exceeding jurisdiction or some other issue.
Sometimes that can be done also if there is a jurisdictional award. Under that
under that it would follow the normal process, youd make your decision and
then there would be, you know, the normal rights of appeal. Under this
particular provision, and Mr. Deane took you to the particular provision
under s. 11 of the
International Commercial Arbitration Act
which
replicates which whats in
Article 16 of the Model Law.
Its designed to be an expedited process where a party can seek recourse to a
judge, the judge makes the determination, and thats the end of it, theres no
appeal
. So, for better or for worse, thats the that is the statutory
framework under which were operating here. [Emphasis added.]
[18]
Mexicos counsel did not object to these statements
before the application judge. For his part, Mexicos counsel made scant
reference to art. 34. At the outset he noted that this was an application under
s. 11(1) of the ICAA, and arts. 16 and 34 of the Model Law. However, most
of his oral submissions focused on s. 11(1) of the ICAA and art. 16 of the
Model Law, not art. 34. The references to art. 34 came only in his reading of lengthy
quotations from this courts decision in
United Mexican States v. Cargill,
Inc.
, 2011 ONCA 622, 107 O.R. (3d) 528, on the standard of review applicable
to a decision of an arbitral tribunal.
[19]
In his submissions to the application judge, Mexicos
counsel also invoked the decision of Penny J. in
The
Russia Federation
v. Luxtona Limited
,
2019 ONSC 7558. That ruling concerned
the admissibility of fresh evidence in an application under art. 16 of the
Model Law. Penny J. cited art. 34 in his discussion of the standard of review
set out in
Cargill
. Although he referred incidentally to both arts. 16
and 34, he did not explain the connection between the two articles or explicate
art. 34.
[20]
Cargill
does
not assist Mexico. In that case, the arbitral tribunal made an award on the
merits of the dispute that gave the claimant
Cargill
damages against
Mexico for protectionist measures it enacted in favour of its sugar industry. During
the proceedings, an objection was raised as to whether the tribunal could award
upstream damages for losses
Cargill
suffered in the United States as
well as downstream losses it suffered in Mexico. Mexico framed this as a
question of the tribunals jurisdiction. In its final award, however, the
tribunal ruled that the damages issue was not a jurisdictional question and
that NAFTA permitted
Cargill
to recover upstream losses. Mexico
applied to the Superior Court to decide the matter and set aside the award.
[21]
The application judge in
Cargill
dismissed the application on the basis that the arbitral tribunals decision
hinged on factual findings to which deference was owed: 2010 ONSC 4656. Because
the tribunals ruling was not on a preliminary question but an award on the
merits, the art. 16(3) prohibition on an appeal from the Superior Courts ruling
did not apply. Mexico appealed the Superior Courts ruling to this court, as it
was entitled to do. This court dismissed the appeal in a decision that largely
focussed on the interpretation of art. 34 and, as noted, set the standard of
review.
(4)
The application judges ruling did not turn on
the substance of art. 34
[22]
Fourth, the application judges ruling,
consistent with the arguments she heard, did not turn on the substance of art.
34. She noted, at para. 37, that Mexico was applying under s. 11(1) of the ICAA
and art. 34 of the Model Law. She then stated, at para. 38, effectively quoting
counsel:
The
ICAA
applies because ICSID chose
the City of Toronto as the seat of the arbitration. Section 11(1) of the
ICAA
provides that where the majority of the arbitration tribunal determines it has
jurisdiction, any party may apply to the Superior Court of Justice to decide
the matter. The decision of the Superior Court of Justice is subject to no
appeal:
Model Law
, Article 16(3).
[23]
The application judge quoted art. 34 at para. 39
and did not refer to it again until para. 155 in her discussion of the standard
of review emerging from
Cargill
. The substance of art. 34 played no
role in her decision, just as it did not in the argument of the parties before
her.
[24]
Perhaps Mexicos occasional references to art.
34 were intended to assist the application judge in understanding her function
under art. 16. Perhaps Mexico was seeking to preserve plausible
arguability under art. 34 in the event that the application did not go
well for it. Regardless, it is clear that there was no substantive argument on
how art. 34 applied on the facts of this case before the application judge. Mexicos
argument that art. 34 of the Model Law applies to this appeal, along with art. 16(3),
does not bear scrutiny.
[25]
There is also no basis for concluding, as Mexico
argues, that the label of Partial Award, which the arbitral tribunal attached
to its ruling, is a sufficient hook with which to snag art. 34(1). I would
reject this argument. This was not an award on the merits, as the tribunal
itself noted.
D.
Additional Observations
[26]
Counsel agreed that there is no right of appeal
from the decision of an application judge under art. 16 and that there is a right
of appeal from the decision of an application judge under art. 34. I would
agree but on a more nuanced basis. The text of art. 16(3) prohibits an appeal
from the ruling of a Superior Court judge on the correctness of an arbitral tribunals
ruling on a jurisdictional plea that is pursued as a preliminary question. The
text of art. 34(1) provides that a party may seek [r]ecourse to a court against
an arbitral award only by an application for setting aside, where the tribunals
ruling on a jurisdictional plea was contained in an award on the merits, in
the words of art. 16(3).
[27]
Counsel for both parties asserted that it is
possible for a party to rely on both art. 16 and art. 34 in challenging the
ruling of an arbitral tribunal, in other words, to ride both horses, which
was the metaphor put to counsel and adopted by them in argument. However, I
would observe that the position that an appeal is prohibited where a ruling is
pursued as a preliminary question under art. 16(3) has the benefits of
clarity, simplicity and expediency for which international commercial
arbitration is touted.
[28]
This question of whether both horses can be
ridden might need to be resolved but it would be unwise for this court to
undertake an interpretation of art. 34 and its interaction with art. 16
beyond what is required to dispose of this motion in the absence of full
argument by parties committed to opposite perspectives in the court below. Mexico
argues that it proceeded under both articles before the application judge but,
as I have explained, it did not.
E.
Disposition
[29]
To summarize, I would quash the appeal to this
court because the argument before the application judge proceeded substantially
under art. 16. While there were several references to art. 34 in the pleadings,
in the material, and in argument, they were scant. Neither the substantive issues
before the application judge nor her decision turned on art. 34. Accordingly, I
would give effect to the language in art. 16(3) of the Model Law that prohibits
an appeal from the ruling of the application judge on the arbitral tribunals
ruling on a preliminary question of jurisdiction.
[30]
The moving parties are entitled to costs in the
all-inclusive amount of $9,000, as agreed.
Released: P.L. February 2, 2021
P.
Lauwers J.A.
I
agree. B.W. Miller J.A.
I
agree. I.V.B. Nordheimer J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Uribe v. Tsandelis, 2021 ONCA 377
DATE: 20210603
DOCKET: C68163
Benotto, Miller and Trotter
JJ.A.
BETWEEN
Maria Angelica E. Uribe, Ricardo
Adolfo Uribe, Elijah Richardo Uribe, a minor, by his litigation guardian, Maria
Angelica E. Uribe
Plaintiffs (Respondents)
and
Grand River Hospital,
Dr. Nickoli Tsandelis,
S. Niyssonen, R. Brzorowski, M. Godwin,
and Jane Doe
Defendant (Appellant)
Darryl Cruz and Christine Wadsworth,
for the appellant
Daniel Fife and Maple Anne Cameron, for
the respondent
Heard: April 23, 2021 by video conference
On appeal from the judgment of Justice James
R.H. Turnbull of the Superior Court of Justice, dated December 6, 2019.
Benotto J.A.:
OVERVIEW
[1]
The appellant
Dr. Nickoli Tsandelis
is an obstetrician who treated Ms. Uribe during her pregnancy and
delivered her baby. A jury concluded that his negligence caused brain damage to
the baby.
[2]
Ms. Uribes pregnancy was uneventful until the babys heart rate decelerated
52 minutes before delivery. The obstetrical nurse applied standard procedures
and the heart rate stabilized. She telephoned the appellant who was in his
office about five minutes away. He told her to let him know if the heart rate
dropped again. He did not immediately return to the hospital.
[3]
About fifteen minutes later, the heart rate decelerated again and soon
thereafter there were additional signs of fetal distress. The appellant was in
his car on the way to the hospital when the nurse called him again advising him
about the second deceleration.
[4]
The baby had to be delivered immediately through a cesarean section.
However, the operating room had already been prepared for an elective
operation. The other patient had to be moved, the room sterilized, and Ms.
Uribe anaesthetized and prepared for surgery. By the time the baby was
delivered, he had endured too long without oxygen and suffered serious brain
damage.
[5]
Ms. Uribe, together with her husband and as litigation guardian for her
child, brought an action against Dr. Tsandelis alleging that he was negligent
by not returning to the hospital or preparing for a caesarean section
immediately after the first phone call from the nurse.
[6]
A jury found that the appellant had breached the standard of care and
that this caused the damage. The jury attributed 32% responsibility to the
appellant and the rest to the hospital and other defendants. (The hospital and
other defendants had previously settled pursuant to a Pierringer Agreement.)
[7]
Dr. Tsandelis appeals on the basis that the jury erred with respect to
causation because they failed to apply the but for test and that there was no
evidence that the baby would have been delivered in time to avoid the brain
damage. He further submits that the trial judge unfairly intervened in the
questioning of witnesses.
[8]
For the reasons that follow, I would dismiss the appeal.
FACTS
[9]
Maria Angelica Uribe was referred to Dr. Tsandelis by her family
physician. Dr. Tsandelis, an experienced obstetrician and gynecologist, had an
office five minutes away from the Grand River Hospital where he had privileges.
[10]
Ms.
Uribes pregnancy was considered low risk. It proceeded uneventfully. She was
admitted to the hospital on April 28, 2010 and given Cervidil to induce labour.
She returned to the hospital early the following morning in labour. She was
admitted to the hospital and assigned a room on the delivery floor. Saara
Nyyssonen took over as her dedicated obstetrical nurse.
[11]
By
9:00 a.m. labour had stopped progressing. The cervix was not dilating further.
Dr. Tsandelis saw her and had no concerns but explained that a caesarian
section would most likely be necessary. He returned to his office. There were
two other obstetricians in the hospital that morning, including one who was
on-call. By 9:30 a.m., labour had not progressed despite Ms. Uribe being given
oxytocin to assist in cervical dilation.
[12]
At
9:57 a.m. the babys heart rate decelerated. The nurse increased the
inter-venous fluid, turned Ms. Uribe and watched the fetal heart rate. It
stabilized at around 10:02 a.m. The nurse telephoned Dr. Tsandelis. He told her
to call him if there was another deceleration. He remained at his office and
saw one or two more patients.
[13]
Between
10:17 a.m. and 10:18 a.m., the fetal heart rate again decelerated. At 10:20 am,
the baby restabilized and the nurse examined Ms. Uribe vaginally and found no
evidence of meconium, which would indicate fetal distress. At 10:25 a.m., there
was a total occlusion of the umbilical cord, cutting off blood and oxygen
supply to the baby. The nurse examined Ms. Uribe again and found meconium. At
10:27 am, the nurse called Dr. Tsandelis, who was in his car and on the way to
the hospital.
[14]
Meanwhile,
another patient had been taken into the operating room at 10:20 a.m. for a
pre-arranged elective caesarian section booked for 10:30 a.m. The one other
operating room had not yet been cleaned from a prior procedure.
[15]
Ms.
Uribe was in the operating room at 10:35 a.m. The appellant arrived at 10:40 a.m.
The other members of the birthing team were not ready to
perform the surgery. The anesthetist only started anesthesia at 10:40 a.m. The
operation began at 10:48 a.m. One minute later, the baby was delivered. He
suffers from severe cerebral palsy and other serious medical conditions.
THE SOGC GUIDELINES
[16]
The
Society of Obstetricians and Gynecologists of Canada (SOGC)
[1]
provide guidelines which address
the response when the fetal heart rate drops to the levels observed here. When
a deceleration occurs of more than 3 and less than 10 minutes, the doctor must
promptly prepare for delivery.
[17]
The
respondents experts testified that the appellant should have returned to the hospital
immediately upon receiving the first call from the nurse. The appellants
experts testified that he did not breach the standard of care by remaining in
his office.
[18]
It
was generally agreed that brain injury would have occurred quickly after the
10:25 occlusion. One expert said the window for delivery was 8 to 12 minutes;
another said 8 to 15 minutes. Either way, the timing was critical. It was
agreed by the experts that if the baby had been delivered within the window, or
before the occlusion, the severe damage would not have occurred.
THE JURY VERDICT
[19]
The
jurys task was to determine whether the appellant had breached the standard of
care, and to determine causation. Because the other defendants had settled, the
jury was to then assess whether the hospital and/or nurses breached the
standard of care and, if so, whether causation with respect to them had been
proved. Finally, the jury was to apportion liability as between Dr. Tsandelis
and the hospital/nurses.
[20]
The
jury considered first the questions related to Dr. Tsandelis, then the hospital
and/or nurses and finally the apportionment of damages.
[21]
With
respect to Dr. Tsandelis, the jury was asked the following questions and gave
the following answers.
Standard of Care
1. (a) Have the plaintiffs proven on a balance of
probabilities that Dr. Tsandelis breached the standard of care of a reasonable
prudent obstetrician on Ontario?
Yes
(b) If your answer to question 1(a) is yes, how did Dr.
Tsandelis breach the standard of care? Please provide clear and specific
answers:
At the time of the first phone call from
Nurse Nyyssanen the Guidelines of SOGC were not followed by Dr. Tsandelis to
prepare for delivery. The SOCG Guidelines state that when there is a single
abnormal intrapartum electronic fetal monitor tracing of (more than 3 less than
10) minutes, health professionals must prepare for delivery (Exhibit 4, pg.
S37/38)
Causation
2. (a) If your answer to 1(a) is yes, you must answer the
following question. Have the plaintiffs proven on the balance of probabilities
that but for the breach(es) of the standard of care by Dr. Tsandelis, [the
baby] would not have suffered brain damage?
Yes
(b) If your answer to question 2(a) is yes, how did Dr.
Tsandelis breach(es) of the standard of care cause [the babys] brain damage?
Please provide specific answers:
The fact that
Dr. Tsandelis didnt follow the SOGC Guideline, prepare for delivery,
contributed to [the babys] eventual brain damage. For example, Dr. Tsandelis
didnt initiate the birthing team &/or the O.R. at the critical time of the
1st deceleration, valuable time elapsed. If Dr. Tsandelis would have secured
the O.R. prior to the elective c-section patient being moved in at 10:20, the
O.R. would have been ready for Maria and [the baby] would have been delivered
sooner avoiding the asphyxia altogether. The c-section could have been
performed right away & there would be no need to wait on necessary support
personnel because at the time of the 1st deceleration it wasnt an urgent
matter yet. The rest of the birthing team that were already booked for the
elective c-section at 10:30 could have been used by any O.B. performing the
c-section of Maria.
[22]
With
respect to the hospital/nurses, the jury found that Dr. Tsandelis had
established both a breach of standard of care (question 3(a)) and causation
(question 4(a)).
[23]
With
respect to allocation of damages, the jury was asked the following question and
gave the following answer:
Allocation
5. If you have answered yes to questions 1(a), 2(a), 3(a)
and 4(a), you must answer the following question. If you find that Dr.
Tsandelis and the Hospital/nurses breached the standard of care and that those
breaches were causative of [the babys] brain damage, please state what
percentage of liability is allocated to each of the defendants below.
The sum of the stated percentages must total 100%.
Dr. Tsandelis 32%
Grand River Hospital/Nurses 68%
Total 100%
MOTION UNDER R. 52.08(1)
[24]
After the jurys verdict, the appellant brought
a motion under r. 52.08(1) of the
Rules of Civil Procedure
, R.R.O.
1990, Reg. 194, requesting that the trial judge not enter the judgment and
either dismiss the action or order a new trial. The trial judge dismissed the
motion and ordered judgment to be entered in accordance with the jury verdict.
[25]
I discuss this in more detail below.
ISSUES ON APPEAL
[26]
Dr. Tsandelis appeals the judgment alleging that
the trial judge erred by (i) failing to dismiss the action or order a new trial
pursuant to r. 52.08(1); and (ii) by improperly questioning witnesses during
the trial.
ANALYSIS
[27]
The appellant frames the issues as an appeal
from the trial judges dismissal of the r. 52.08 motion. However, the two
grounds for the motion are the primary issues in this appeal. Both relate to
causation: (i) that the jury did not apply the but for test for causation;
and (ii) the jury verdict was unreasonable because there was no evidence that
the baby would have been delivered early enough to avoid the damage.
[28]
I therefore address the issues as follows:
1.
Did the jury apply the but for test for
causation?
2.
Was the jury verdict unreasonable?
3.
Did the trial judge err by dismissing the r. 52.08(1)
motion?
4.
Were the trial judges questions improper?
The but for test
[29]
Once it is established that the defendant has
breached the duty of care, the trier of fact moves to consider causation. The but
for test for causation was set out in
Clements v. Clements
, 2012 SCC 32, [2012] 2 S.C.R. 181,
at para.
8:
The test for showing
causation is the but for test. The plaintiff must show on a balance of
probabilities that but for the defendants negligent act, the injury would
not have occurred. Inherent in the phrase but for is the requirement that the
defendants negligence was
necessary
to bring about the injury
― in other words that the injury would not have occurred without the
defendants negligence. This is a factual inquiry. If the plaintiff does not
establish this on a balance of probabilities, having regard to all the
evidence, her action against the defendant fails. [Emphasis in original.]
[30]
The appellant argues that the jury did not apply
this test, but rather applied the material contribution test, which the jury
was not charged on. The parties on appeal agree that the but for test was the
correct test to charge the jury on and that the material contribution test did
not apply to these facts. The appellant points to the jurys answer to question
2(b):
The fact that Dr. Tsandelis didnt
follow the SOGC Guideline, prepare for delivery,
contributed to
[the babys] eventual
brain damage. [Emphasis added.]
[31]
I do not agree that the
jurys words
contributed to mean that the material contribution test was applied. The
words responded to the questions asked and as jurisprudence demonstrates
are consistent with the but for test.
[32]
The jury was asked to determine causation and
then to determine allocation. Note the jury instructions:
[C]ausation is established if the evidence
satisfies you that it is more likely than not that [the baby] would not have
suffered brain damage but for the negligent conduct or breach of the standard
of care by Dr. Tsandelis. In other words, although
you do not have to find that it was the
sole cause
, does the evidence prove that the
negligent conduct...was necessary to bring about [the babys] brain damage. [Emphasis
added.]
And further:
[T]he defendants
conduct need not be the sole cause
. It does not have to be the most important cause. However, it must
have been a necessary
cause of the harm. The plaintiffs
must show on a balance of probabilities that the injury would not have occurred
without the defendants negligence. Depending on your answers to some of the
questions, you will be asked to determine the issue of causation with respect
to Dr. Tsandelis and the nurses and Grand River Hospital. If you find that the
acts or omissions of both Dr. Tsandelis and/or the nurses and/or the Grand
River Hospital caused [the baby]s brain damage, then as I pointed out to you earlier,
youll be required to apportion a degree of responsibility of each party as I
pointed out in reviewing the question. [Emphasis added.]
[33]
It is not surprising that, when there is more than one potential
tortfeasor, language relating to contribution would arise. This is particularly
so when the jury is also required to apportion damages. This was addressed in
Clements
at para. 12:
In some cases, an
injury the loss for which the plaintiff claims compensation may flow from a
number of different negligent acts committed by different actors, each of which
is a necessary or but for cause of the injury. In such cases, the defendants
are said to be jointly and severally liable. The judge or jury then apportions
liability according to the degree of fault of each defendant pursuant to
contributory negligence legislation.
[34]
When the jury is asked to consider contributory negligence, it is
understandable that it would use the language of contributed to. It does not
mean that the instructions with respect to the but for test or causation were
not followed, or that the jury applied the material contribution test. The jury
response continued to state that, if Dr. Tsandelis had met his duty by
preparing for delivery after the first deceleration, the O.R. would have been
ready for Maria & [the baby] would have been delivered sooner avoiding the
asphyxia altogether. This response indicates that the jury concluded that, but
for the appellants failure to meet the standard of care, the brain damage
would not have happened.
[35]
As this court recently said in
Donleavy v.
Ultramar Ltd.
, 2019 ONCA 687, 60 C.C.L.T. (4th) 99, at
para. 72:
Even in the but
for context, there are situations involving multiple defendants where courts
have used contribution language to recognize that a defendants negligence is
a cause of the plaintiffs injury. This is a potential source of confusion.
The phrase caused or contributed is used in the
Negligence Act
,
R.S.O. 1990, c. N.1, s. 1. As Lauwers J.A. observed in
Sacks v. Ross
, 2017
ONCA 773, 417 D.L.R. (4th) 387, leave to appeal refused [2017] S.C.C.A. No.
491, at para. 117, this is the way the causation test has been described in
several cases in the Supreme Court (including as I noted earlier in
Athey
),
and in this court; see also
White v. St. Josephs Hospital (Hamilton)
,
2019 ONCA 312
, at para. 25. Causation is made out under the but for test
if the negligence of a defendant caused the whole of the plaintiffs injury, or
contributed, in some not insubstantial or immaterial way, to the injury that
the plaintiff sustained. Causation requires a substantial connection between
the injury and the defendants conduct:
Resurfice
, at para.
23,
Clements
, at paras. 20-21, 28. As Paciocco J.A. noted
in
Smith v. Safranyos
, 2018 ONCA 760, at para. 128,
McLachlin C.J.C.s reference to a robust and common sense application of the
but for test of causation is a manifestation of this limit. Used in this
way, the conclusion that one or more defendants materially contributed to a
plaintiffs injury or loss simply recognizes that the defendants negligence
was not the only cause.
[36]
Likewise, here. The jurys statement that the
appellants conduct contributed to the damage merely recognizes that there was
more than one cause. Note that in
Donleavy
, this court was considering
the words of a trial judge, not a jury comprised of lay persons.
[37]
When there is more than one tortfeasor, contributory language might
arise. It does not mean the wrong causation test was used. It is clear from the
jury
s answer
that the proper test
was used.
Unreasonable verdict
[38]
The appellant submits that there was no evidence
from which the jury could conclude that the damage would not have occurred if
the appellant had not been negligent. In other words, there is no evidence that
the baby would have been delivered earlier and therefore the verdict is
unreasonable.
[39]
A jury is entitled to draw reasonable inferences
from accepted evidence. In
Stilwell v. World Kitchens
, 2014 ONCA 770,
327 O.A.C. 146, this court said, at paras. 32-34:
[I]t is important to have regard to two
well-developed and long-standing principles of law related to civil jury
trials.
First, the standard of review of civil jury
verdicts is exceptionally high. A civil jurys verdict should be set aside only
where it is so plainly unreasonable and unjust that no jury reviewing the
evidence as a whole and acting judicially could have arrived at the verdict.
Second, a jurys verdict is entitled to a fair
and liberal interpretation in light of the evidence and of the circumstances.
Answers by a jury should be given the fullest possible effect and supported, if
possible, by any reasonable construction. A new trial should be ordered only
where the jury seems to have confused the issues at trial, it is doubtful
whether the jury paid attention to the real point in issue, and the questions
answered or unanswered leave the real issue in doubt and ambiguity. [Citations
omitted.]
[40]
The appellant submits that there was no evidence
from which the jury could come to a conclusion that, had the appellant met the
standard of care, the baby would have been delivered before the damage
occurred. He submits that general statements that the baby could have been
delivered earlier do not satisfy the causation requirement.
[41]
The appellant relies on
Salter
v. Hirst
, 2011 ONCA 609, 341 D.L.R. (4th) 231. In
Salter
, this
court concluded that, while the doctor was negligent in not transferring the
patient to another hospital for further testing, there was no expert evidence
to support the conclusion that the delay caused or contributed to the patients
paraplegia. That is not the case here.
[42]
Here there was direct evidence from which the
jury could conclude that, had the appellant not breached the standard of care,
the caesarian section would have been done before the damage occurred. The jury
found that the appellant breached the standard of care because he did not
prepare for delivery after the first deceleration. Had he done so he would have
secured the operating room. The operating room would have been ready for Ms.
Uribe and the baby would have been delivered before the damage. The jury said
this:
If Dr.
Tsandelis would have secured the O.R. prior to the elective c-section patient
being moved in at 10:20, the O.R. would have been ready for Maria and [the baby]
would have been delivered sooner avoiding the asphyxia altogether.
The rest
of the birthing team that were already booked for the elective c-section at
10:30 could have been used by any O.B. performing the c-section of Maria.
[43]
This was a logical and available conclusion from the evidence
that he should have returned to the hospital.
Dr. Barrett and
Dr. Farine testified that the appellant should have gone to the hospital
immediately after the first call from the nurse to assess the situation
directly. Dr. Farine testified that if the appellant had been present at the
hospital after the first phone call, the delivery would have occurred very
quickly. Dr. Barrett testified:
[T]his is the time
to do a caesarian section and get a good outcome. It is absolutely
indicated here. Again, my point is, even if you dont do it there, you come to
the hospital. You be there if you start the oxytocin. You are not in your
office waiting for the disaster to happen. [Emphasis added.]
Dr. Barrett also said that:
[A]t this time I believe there was an anesthesia,
I believe there was an operating room. The patient they could have easily just
moved her and done a caesarian section.
[44]
Recall the timing. The first phone call was at 10:02. Dr. Tsandelis
was five minutes away and could have been at the hospital by 10:07 at which
point he would have seen the fetal heart rate tracing, examined Ms. Uribe and
called for an immediate caesarian section. At the very least, she would have
been in the operating room by 10:25 when the total occlusion occurred. Even if
he had not returned to the hospital, had he instructed staff to prepare for
delivery, there were two other obstetricians there to conduct the surgery.
[45]
Consequently, the jury had the evidence to
conclude that the caesarian section would have been done in time to avoid the
brain damage. It was open to the jury to accept the evidence of Dr. Barrett and
Dr. Farine and conclude that the caesarian section would have been done within
8-15 minutes of the total occlusion, which would have avoided brain damage. The
conclusion was not unreasonable.
Rule 52.08 motion
[46]
After the jury was discharged, the appellant
moved under r. 52.08 on the basis that the jury failed to apply the but for
test and that there was no evidence of causation. The appellant asked the trial
judge to either dismiss the action or direct that it be retried with another
jury.
[47]
The rule provides:
DISAGREEMENT OF THE JURY
52.08
(1)
Where the jury,
(a) disagrees;
(b) makes no finding on which
judgment can be granted; or
(c)
answers some but not all of the questions directed to it or gives conflicting
answers, so that judgment cannot be granted on its findings,
the
trial judge may direct that the action be retried with another jury at the same
or any subsequent sitting, but where there is no evidence on which a judgment
for the plaintiff could be based or where for any other reason the plaintiff is
not entitled to judgment, the judge shall dismiss the action.
[48]
Here the jury did not disagree. Nor did the jury
fail to answer all of the questions. In my view the jury did not fail to make
findings on which judgment could be granted.
[49]
Nonetheless, the trial judge thoroughly and
correctly addressed the appellants submissions. He examined the evidence in
detail to conclude that there was evidence to support the jury verdict and used
the proper foundation for reaching the verdict.
[50]
For the same reasons that I have set out above,
the trial judge correctly determined that the motion should be dismissed.
Trial judges questions
[51]
The appellant submits that the trial judge
improperly questioned witnesses by introducing a new theory of liability
supporting the respondents case. He submits that the theory on which the jury
found liability was a failure to prepare for delivery after the first phone
call from the nurse.
[52]
The appellant points to sections of the evidence
of Nurse Nyyssonen, Dr. Dan Farine (the respondents expert) and Dr. John Smith
(the appellants expert). In each case, the trial judge posed the questions at
the conclusion of the witnesss evidence and then asked counsel if there were
any questions arising from his. The relevant portions of the transcript are as
follows.
Saara Nyyssonen
THE COURT: I just have one or two questions
for you. At or about 10:20, you indicated you understood the baby was in
distress?
A. Yes.
THE COURT: And you realized that a C-section
was going to have to be performed?
A. Yes.
THE COURT: You realized Dr. Tsandelis had to
be notified right away?
A. Yes, I believe, or was he already notified.
I'm not sure. 10:25 he was.
THE COURT: Right.
A. According to this, yes.
THE COURT: And do you recall if it was you who
contacted Dr. Tsandelis or was it someone else?
A. I believe this, again, I can't say a
hundred percent, but I believe it was me who talked to him, but whether I
initiated whether somebody else initiated the call.
THE COURT: And you'd have expressed to him
the urgency of the situation?
A. Yes.
THE COURT: At any time did he direct you to
have the on-call obstetrician to immediately perform the C-section?
A. No, I don't recall that at all.
THE COURT: And if he had, would you have
noted it?
A. Yes.
THE COURT: And had the on-call...
A. As it was related to me.
THE COURT: Right.
A. That knowledge. If it had been related to
me, I would have charted it.
THE COURT: And as the most responsible
doctor, was it he who would have to give that direction, in your practice?
A. Yes.
Dr. Dan Farine
THE COURT: I just might have a question or
two. Doctor, I, I just have one question. Doctor Tsandelis got the phone call
around 10:25. Whats the, what's the practice, what I guess the question is
could he at that stage have directed that the crash C-section be performed by
the on-call obstetrician?
A. Absolutely.
THE COURT: All right.
A. He, he should have asked, "Is somebody
there that can do it?" And, and he should say, "I'm on my way, I'll
be there as fast as I can, but somebody else can start it."
THE COURT: Okay, thank you. Any questions
from mine?
MR. BENNETT: No, Your Honour.
THE COURT: Mr. Cruz?
MR. CRUZ: Dr. Farine, His Honour's question
was about the phone call at 10:25, you have nothing in your reports about that
issue, right?
A. Right.
MR. CRUZ: Thank you,
Dr. John Smith
COURT: [Referring to exhibit 4] So my question
is, when the document, the ALARM document says prepare for discovery[sic] or
delivery, and the SOGC document says, start making arrangements for delivery,
notify all the services. From your review of the record, is there any reason
why that couldnt have taken place immediately after the phone call?
A. It could have taken place then, yes, but
you mean at about 10:10, or 10:12?
THE COURT: But right. Just....
A. Yes, you could have done that. Again, doing
a caesarean section at that point wouldnt be unreasonable, but also since the
baby looked very well, carrying on and again, recalling that....
THE COURT: I'm more, I'm more interested in
just putting getting the pediatric people, anesthetic people on standby...
A. Yeah, well, they're....
THE COURT: ...and going to the hospital. Is
that....
A. Well she's at the hospital, and those....
THE COURT: No, I'm talking about the doctor.
A. Oh, for Dr. Tsandelis, you wonder if it's
possible?
THE COURT: Getting the process going in case
a C-section is necessary.
A. Yes, that could be done.
THE COURT: All right. Okay. And that would be
within the, the ambit envisaged in both documents?
A. Yes, but again, this is a team document, so
prepare for delivery doesn't mean that the obstetrician has to be there. The,
the delivery can be prepared...
THE COURT: Of course, you can phone....
A. ...for, for like...
THE COURT: At 10:10.
A. ...by the team, right.
THE COURT: Exactly.
A. And they are....
THE COURT: The doctors are out?
A. Well, yes, or
for the doctor that's there.
[53]
These questions were not improper.
[54]
A trial judge is entitled to question witnesses
for clarification by intervening in the testimony of witnesses. In
Chippewas
of Mnjikaning First Nation v. Ontario
, 2010 ONCA 47, 265 O.A.C. 247, at
paras. 231, 238 and 243, leave to appeal refused, [2010] S.C.C.A. No. 91, this
court considered questioning by a trial judge:
An examination of whether a trial judge has
unduly intervened in a trial must begin with the recognition that there are
many proper reasons why a trial judge may intervene by making comments, giving
directions or asking questions during the course of a trial. A trial judge has
an inherent authority to control the court's process and, in exercising that
authority, a trial judge will often be required to intervene in the
proceedings.
On occasion, trial judges may be required to
play a more active role in asking witnesses questions. However, when they do,
it is important that they use care and not create an impression through the
questioning process of having adopted a position on the facts, issues or
credibility.
All of that said,
appellate courts are reluctant to intervene on the basis that a trial judge
"entered the arena" and improperly intervened in a trial. There is a
strong presumption that judges have conducted themselves fairly and
impartially.
In the end, an appellate court should only intervene if
satisfied that the trial judge's interventions, considered in the context of
the entire trial, created a reasonable apprehension that the trial judge was
biased.
[55]
The trial judge here followed the protocol
referred to by this court said in
R. v. Danial
, 2016 ONCA 822, at
para. 5:
A trial judge is
entitled to ask questions for clarification. The trial judge here followed the
long standing protocol articulated in
R. v. Stuckey
, 2009 ONCA 151 at para 64. He waited until the conclusion of the
witness testimony, asked questions for clarification on a narrow issue, and
allowed further re-examination. That some of the questions towards the end of
the series of questions may have been leading would not lead a reasonable
observer being apprised of all the facts to conclude that the trial judge was
not impartial.
[56]
Questions by a trial judge may be problematic when they either
disclose bias or lead to trial unfairness. There is a presumption of
impartiality on the part of a trial judge and the trial judges questions do
not disclose bias.
Apprehension of bias was not alleged by
the appellant.
[57]
Instead, the appellant alleges that the trial judge introduced a new
theory of liability and this was unfair. The new theory alleged is that the
appellant failed to prepare for delivery after the first phone call. I do not
agree that this was a new theory. Nor do I agree that it was introduced by the
trial judge.
[58]
The fact that the appellant did not immediately
prepare for delivery at 10:02 a.m. was squarely at issue throughout the trial.
Exhibit 4 was the SOGC Fetal Health Surveillance Guideline. At pp. S37-38 of
the Guideline, fetal heart rate deceleration is discussed:
Abnormal Intrapartum
Electronic Fetal Monitoring Tracing
In the presence of an abnormal fetal heart rate
pattern, usually operative delivery should be undertaken promptly unless (1)
there is clear indication of normal fetal oxygenation by means of scalp pH
assessment or (2) spontaneous delivery is imminent. Scalp sampling should not
be considered in the case of prolonged deceleration of greater than three
minutes. Usual action in the presence of an abnormal tracing includes preparing
for operative delivery (operative vaginal delivery or Caesarean section) and
notifying pediatric and anaesthetic services.
[59]
This was discussed during the evidence of experts for the respondents
and the appellant. Dr. Barrett, the expert for the respondents, was referred to
the fetal heart-rate tracing and the SOGC guidelines. He testified as follows:
And you can see in the abnormal tracing, we
have a single prolonged deceleration, more than three minutes, but less than 10
minutes places it into the abnormal category.
So usually if you
have an abnormal pattern, you've got to deliver this baby, unless you can be
sure that the baby is fine. And they mention how you can be sure. It's an extra
test that you have to do. The scalp stimulation is an examination of the mom,
and what we do is we stimulate the baby's scalp to get a clear reaction of the
baby. You get an acceleration. That's one way of assessing that the baby is okay,
you can do that, or you actually measure by doing the PH, then it might be
okay. But you've got to be there to do this. You've got to attend the patient.
And, you know, in this case, even, even if you could assume that the baby was fine,
which you can't do until you're there, you've still got to be there to see what
happens again when you restart the Oxytocin. Just to stay at home and to ask
the nurses is, is in my - after this abnormal deceleration, is, in my opinion, against
the guidelines and against the standard of care.
[60]
During the cross-examination of Dr. Bernstein, the appellants expert,
he was asked the following questions and gave the following answers:
Q. And turning to the Exhibit 4, page S37, which
is the chart, the table, we've agreed that when we're plugging in the facts of
our case, it fits squarely in this part of the chart here. The five-minute
prolonged deceleration is longer than three and less than ten minutes. It is a
single prolonged deceleration, right?
A. Correct.
Q. And then if we go down to action required, we
can agree that the standard sets out that the obstetrician is to review overall
clinical situation, obtain scalp pH if appropriate, and
prepare for delivery
. Agreed?
A. That's what it says.
Q. That is the standard?
A. Yes.
Q. And you agree that usually operative delivery
should be undertaken promptly, right: Thats what it says?
A. Thats what it says.
Q. So the only, the only potential exception to
this guideline is if delivery is imminent, and its not, right?
A. Yes.
Q. And, of course, vaginal delivery is not really
an option in this case because of the presentation of the patient?
[2]
A. Correct.
Q. So that means
prepare promptly for C-section
. Do you
agree thats what it says?
A. That's what it says.
Q. It also says not only is the
obstetrician to prepare promptly for caesarian
section, but he's to notify pediatric and anaesthetic services
, right?
A. Correct. [Emphasis
added.]
[61]
This was not a theory introduced by the trial judge. It was clearly in
issue and there is nothing unfair or improper about the questions. (While not
determinative of the issue, I note that experienced trial counsel raised no
concern when the questions were asked.)
CONCLUSION
[62]
I would dismiss the appeal with costs to the
respondents fixed in the agreed upon amount of $20,000 inclusive of
disbursements and HST.
Released: June 3, 2021 M.L.B.
M.L. Benotto J.A.
I agree B.W. Miller J.A.
I agree Gary Trotter J.A.
[1]
Exhibit 4
[2]
It was agreed that vaginal delivery was not possible because
cervical dilation had stopped progressing.
|
AVIS
Il s'agit d'un cas en vertu de
la
Loi de 2017 sur les services à l'enfance, à la jeunesse et à la famille
et
sous réserve des paragraphes 87(8) et 87(9) de la
Loi
. Ces paragraphes
et le paragraphe 142(3) de la
Loi de 2017 sur l'enfance, la jeunesse et les
services
, qui traitent des conséquences de la non-conformité, se lisent
comme suit:
87
(8)
Interdiction : identification dun enfant
Nul ne doit publier, ni
rendre publics des renseignements ayant pour effet didentifier un enfant qui
témoigne, qui participe à une audience ou qui fait lobjet dune instance, ou
un parent ou un parent de famille daccueil de cet enfant ou un membre de la
famille de cet enfant.
(9)
Interdiction : identification dune personne
accusée
Le tribunal peut rendre une ordonnance interdisant la
publication de renseignements ayant pour effet didentifier une personne
accusée dune infraction à la présente partie.
142
(3)
Infraction
: publication
Quiconque
contrevient au paragraphe 87(8) ou 134(11) (publication de renseignements
identificatoires) ou à une ordonnance de non-publication rendue en vertu de
lalinéa 87(7) c) ou du paragraphe 87(9) et ladministrateur, le dirigeant ou
lemployé dune personne morale qui autorise ou permet cette contravention ou y
participe sont coupables dune infraction et passibles, sur déclaration de
culpabilité, dune amende dau plus 10 000 $ et dun emprisonnement dau plus
trois ans, ou dune seule de ces peines.
COUR DAPPEL DE LONTARIO
RÉFÉRENCE: Valoris pour enfants et adultes
de Prescott-Russell c.
K.R., 2021 ONCA 366
DATE: 20210602
DOSSIER: C68862
Les juges Rouleau, Benotto et
Roberts
ENTRE
Valoris pour enfants et adultes
de Prescott-Russell
Requérante (Intimée)
et
K.R.
Intimée (Appelante)
et
A.C.
Intimé (Intimé)
Gabrielle Beaulieu
, pour lappelante K.R.
Sophie Langlois, pour lintimée
Valoris pour enfants et adultes de Prescott-Russell
Emma Dupuis, pour lintimé A.C.
Date
de laudience : le 1 avril 2021 par visioconférence
En appel de
lordonnance de la juge Michelle
OBonsawin
de la cour
Supérieure de justice, en date du
14 octobre 2020
,
dont les motifs figurent au 2020 ONSC 6181.
Le juge Rouleau :
[1]
Lappelante, K.R., fait appel dune ordonnance du
14 octobre 2020 la d
é
clarant en
outrage au tribunal. K.R. demande que lordonnance soit infirmée.
[2]
K.R. et A.C. sont les parents de M.C.R., né en 2016. Ils ont divorcé en 2019. La garde de M.C.R. a été accordée à K.R. avec des droits de visite accordés à A.C
.
[3]
Suite à des plaintes port
é
es contre A.C., Valoris pour enfants et
adultes de Prescott-Russell (Valoris) a appréhendé M.C.R. afin de le placer
sous les soins de sa mère. La police de Gatineau a lancé une enquête criminelle
sur A.C.
[4]
Le 19 décembre 2019, le juge Pelletier a rendu
une ordonnance temporaire en vertu de laquelle M.C.R. demeurerait aux soins et à
la garde de K.R. sous réserve dune surveillance exercée par Valoris. Le para.
2 de lordonnance prévoit :
Une ordonnance
temporaire, sous toutes réserves, accordant des visites surveillées au père
avec lenfant à titre dune fois par semaine pendant la période denquête, à
moins que les conditions criminelles linterdisent. Suite à lenquête
criminelle, la Société aura la discrétion de retirer la surveillance si elle ne
la juge plus nécessaire.
[5]
Les visites surveillées étaient tenues dans les
bureaux de Valoris. Selon laffidavit de K.R., au début de janvier 2020, M.C.R.
aurait informé son
é
ducatrice
de certains faits problématiques au sujet de A.C. L
é
ducatrice a rapporté ceci
à
Valoris.
[6]
Le 22 janvier 2020, Valoris a avisé lavocate de
A.C. que Valoris allait pr
é
sent
er une motion pour suspendre les visites
puisque M.C.R.
avait de fortes réactions
avant et après les visites avec A.C.
[7]
Le 13 février 2020, avec le consentement de
tous, une ordonnance temporaire a été émise selon laquelle les visites de A.C. ont
été suspendues pour trois semaines, soit les 13, 20 et 27 f
é
vrier 2020. Lordonnance en question ne
semble pas avoir été reproduite dans le cahier dappel.
[8]
Le 5 mars 2020, une autre ordonnance temporaire
a suspendu les visites de A.C. pour quatre semaines additionnelles, soit les
semaines du 5, 12, 19 et 26 mars 2020. De nouveau, lordonnance ne semble pas
avoir été incluse dans le cahier dappel.
[9]
D
û
à la pandémie de Covid-19, les visites ont été suspendues au-delà
de la date prévue dans lordonnance du 5 mars 2020. Durant la période de la
suspension, K.R. a noté, et Valoris semble reconnaitre que le comportement de
M.C.R. sest amélioré.
[10]
Le 1 avril 2020, la police de Gatineau a
confirmé que les dossiers daccusations concernant A.C. seront clos sans accusations.
[11]
Le 15 avril 2020, Valoris a avisé K.R. que les
visites surveillées pouvaient reprendre. Elles ont repris le 2 juin 2020 dans
les bureaux de Valoris.
[12]
K.R. a par la suite envoyé un courriel
à
Valoris le 4 juin 2020 posant différentes
questions sur le plan proposé par Valoris et sur les mesures relatives à la Covid-19.
K.R. a soulevé des inquiétudes quant au comportement de M.C.R. avant et après
les visites avec A.C. Il y a eu certains échanges entre K.R. et Valoris. La visite
du 9 juin a été manquée parce que K.R. na pas amené M.C.R. au rendez-vous. Le
16 juin, Valoris a signifié une motion pour que K.R. soit déclarée en outrage
au tribunal. Les visites supervisées reprennent le 16, 23 et 30 juin, et le 7
juillet 2020. La motion est abandonnée.
[13]
Le 8 juillet 2020, Valoris a expliqué
à
K.R. que la société voulait retirer la
supervision de façon graduelle et que les visites surveillées soient tenues au
domicile du père d
è
s la semaine
suivante. Valoris a expliqué que les prochaines visites seraient surveillées,
et cela pour quatre semaines après lesquelles la société revisiterait la
situation. K.R. nétait pas daccord avec le plan propos
é
et en particulier, elle ne voulait pas que
les visites se déroulent chez le père. K.R. signalait à Valoris que M.C.R. vivait
des régressions au niveau de son comportement agressif et de sa propreté. Elle indiquait
qu
à
moins que les visites
continuent à se dérouler au bureau de Valoris, elle nenverrait pas M.C.R.
[14]
La visite du 14 juillet a donc été annulée. Par
contre, les visites ont repris lorsquelles se tiennent aux bureaux de Valoris à
compter du 21 juillet. La visite du 21 juillet ainsi que celles du 28 juillet
et du 4 août se sont bien déroulées. Malgré la reprise des visites, Valoris a entamé
de nouveau des procédures pour déclarer K.R. coupable doutrage au tribunal.
[15]
Le 12 août 2020, les parties ont participé à une
conférence de règlement devant le juge Pelletier. Suite à cette comparution, le
juge Pelletier a inscrit que
«
le tribunal favorise les mesures de règlement que les parties
pourront utiliser y compris la concertation familiale
»
. La motion en outrage au tribunal a été fixée pour le 2 octobre
2020.
[16]
Par la suite, lavis de motion et laffidavit à
lappui de la motion en outrage au tribunal datés du 25 août 2020 ont été signifiés
à K.R. Lallégation dans lavis de motion se lit comme suit :
Vous ne respectez
pas lOrdonnance de lHonorable Juge R. Pelletier datée du 19 décembre 2019.
Cette Ordonnance octroie une (1) visite par semaine à [A.C.] avec son fils. Alors
que Valoris tente dorganiser des visites surveillées pour [A.C.] à son
domicile, vous avez clairement dit que vous namèneriez pas lenfant à ces
visites car vous vous opposez à ce que la surveillance soit retirée. La Société
ne peut donc pas exercer sa discrétion quant aux modalités des visites tel que
stipulé dans lOrdonnance.
[17]
Dans laffidavit de Claudelle Marcheterre,
déposé à lappui de la motion, Valoris fait état dun plan pour cheminer vers
des visites non surveillées. Selon la société, il est important de faire
avancer ce plan graduellement puisque K.R. continue de rapporter certains
comportements agressifs chez M.C.R., dont morsures, violence et défiance. Valoris
note que M.C.R. est un jeune garçon anxieux qui peut avoir de la difficulté
avec les transitions ou les changements. Ainsi, un plan progressif selon lequel
la réaction de M.C.R. peut être évaluée avant de passer à une prochaine étape est
préférable.
[18]
Le plan présenté dans laffidavit de Valoris est
comme suit :
a)
La société va allonger les visites surveillées et les faire au
domicile du père. Ceci se fera au cours de quatre semaines et, si tout va bien,
la société passera à une prochaine étape;
b)
À létape 2 il y aura des visites semi-surveillées. Si celles-ci se déroulent
bien, la société passerait à la prochaine étape;
c)
À l
étape 3, la surveillance sera faite
par voie de « spot checks » pour assurer que les visites sont positives pour M.C.R.
[19]
Ce nest que si cette troisième étape se passe
bien que la société propose de passer
à
des visites hebdomadaires sans surveillance.
[20]
Au para. 18 de laffidavit de Mme Marcheterre,
la société demande
à
la cour quelle
«
précise dans une Ordonnance que la société
a la discrétion quant au lieu des visites, qui peut inclure le domicile du père
»
. La motion est entendue le 2
octobre 2020.
[21]
Dans ses motifs, la juge de motion explique que,
dans son ordonnance, le juge Pelletier
«
a stipulé de façon claire et sans équivoque quà la suite de lenquête
criminelle, Valoris aurait la discrétion de retirer la surveillance, si elle ne
la juge plus nécessaire
»
. La
juge de motion a ensuite déterminé que K.R. a agi de façon délibérée et
volontaire en maintenant que A.C. ne pouvait pas avoir des visites non surveillées
avec M.C.R. et en refusant de supporter le plan de Valoris de passer de façon
graduelle à des visites non surveillées. Ainsi, la juge de motion a conclu que
K.R. a commis un outrage au tribunal en refusant de suivre le para. 2 de
lordonnance du juge Pelletier cité ci-haut. Cest-à-dire, elle a refusé de
permettre des visites non surveillées malgré la décision de Valoris de passer graduellement
à des visites non surveillées.
[22]
La juge de motion a aussi accédé à la demande de
Valoris de remplacer le deuxième paragraphe de lordonnance du juge Pelletier
par un paragraphe rendant plus clair ce que Valoris proposait. Une nouvelle
ordonnance a été donc émise le 14 octobre 2020 dans laquelle la cour a fixé le
lieu et le déroulement des visites jusquau 23 novembre 2020. Ensuite, le 3
novembre 2020, une deuxième nouvelle ordonnance a été émise dans laquelle la
cour a confirmé que les visites commençant la semaine du 23 novembre 2020
auraient lieu au domicile de A.C. avec des « spot checks » et que
« Le but est que les visites seront éventuellement non surveillées ».
Finalement, la cour a accordé à Valoris la discrétion de modifier lhoraire des
visites.
[23]
K.R. a interjeté appel. Après la mise en état de
lappel, les parties ont avis
é
la
cour quelles avaient conclu une entente en vertu de laquelle lordonnance d
é
clarant K.R. en outrage au tribunal serait
infirm
ée
et le tribunal donnerait
un avertissement formel
à
la
mère à leffet quelle doit respecter les ordonnances émises par le tribunal.
[24]
Suite
à
la réception de lentente conclue entre les parties, la cour a avisé
les parties quelle nétait pas en mesure daccorder l
appel
sur consentement. Lappel devait soit être retiré ou entendu, et jugement rendu
sur le fond. Les parties ont ensuite indiqué
à
la cour quelles acceptaient que lappel soit entendu et d
écidé
sur la documentation qui avait déjà été
déposée.
[25]
Pour les motifs qui suivent, jai conclu que
lappel doit être accordé.
Analyse
[26]
Trois critères doivent être réunis pour
conclure à un outrage au tribunal.
Premièrement,
lordonnance qui na pas été respectée doit énoncer clairement et sans
équivoque ce qui doit être fait ou ne doit pas être fait. Deuxièmement, la
partie à qui on reproche davoir violé lordonnance doit être réellement au
courant de son existence. Troisièmement, la partie qui désobéit à lordonnance doit
le faire de façon délibérée et volontaire. Ces trois éléments doivent être
établis hors de tout doute raisonnable :
Carey c. Laiken
,
2015 CSC 17, [2015] 2 R.C.S. 79, au para. 32 :
Services aux enfants et
adultes de Prescott-Russell c. N.G.
(2006), 271 D.L.R. (4
e
) 750
, au para. 27.
[27]
Dans larrêt
Carey
, la
Cour suprême a réitéré que le pouvoir du tribunal en matière doutrage est
discrétionnaire et quil doit être exercé « avec prudence et avec une
grande réserve » : au para.
36, citant
TG Industries v. Williams,
2001 NSCA 105, 196 N.S.R. (2
e
) 35.
Voir aussi
Hefkey v. Hefkey
, 2013 ONCA 44, au para. 3. Dans le contexte dun différend familial,
le tribunal doit aussi tenir compte et exercer sa discrétion en fonction des
meilleurs intérêts de lenfant :
Ruffolo v.
David
, 2019 ONCA 385, au para. 19.
[28]
Selon moi, lordonnance du juge Pelletier nest
pas suffisamment claire pour étayer une conclusion doutrage au tribunal, et la
preuve nétablit pas hors de tout doute raisonnable que K.R. a agi de façon
délibérée et volontaire en violation de lordonnance. De plus, rien dans les
motifs de la juge de motion ne laisse entendre quelle a considéré les
meilleurs intérêts de lenfant en rendant lordonnance.
(1)
Lordonnance du juge Pelletier nest pas claire
et sans équivoque
[29]
Pour quil y ait outrage au tribunal, lordonnance en question doit clairement
prévoir le comportement de l
individu qui doit ou
qui ne doit pas être fait:
Carey
, au para. 33:
Prescott-Russell
, au para. 27. Dans laffaire
Carey
, se fiant sur la décision de la Cour dappel de
Saskatchewan en
Culligan Canada Ltd. v. Fettes
, 2010 SKCA 151, 326 D.L.R. (4
e
) 463, la
Cour suprême a précisé au para. 33 qu« [i]l peut être établi quune
ordonnance nest pas claire si, par exemple, il manque un détail essentiel sur
lendroit, le moment ou lindividu visé par lordonnance, si elle est formulée
en des termes trop larges ou si des circonstances extérieures ont obscurci son
sens ».
Toute ambiguïté dans le texte de lordonnance doit
être résolue en faveur de la personne accusée doutrage :
Telus
Communications Inc. v. Cherubin
, [2005] O.J. No. 5534 (C.S.), au para.
53 ;
884772 Ontario Ltd. (c.o.b. Team Consultants) v. SHL Systemhouse Inc.
(1993),
[1993] O.J. No. 1488, au para. 18.
[30]
Lordonnance en lespèce comprend deux éléments
distincts : elle prévoit des visites surveillées dune fois par semaine,
et elle accorde une discrétion
à
Valoris de retirer la surveillance si elle ne la juge plus
nécessaire. La juge de motion a déterminé que K.R. « a commis un outrage
au tribunal en refusant de suivre le paragraphe 2 de lordonnance du juge
Pelletier ». Son analyse qui a mené à cette conclusion est comme
suit :
a)
Les faits énoncent que la surveillance nétait
plus nécessaire;
b)
K.R. maintenait que A.C. ne pouvait pas avoir de
visites non surveillées;
c)
K.R. refuse de supporter le plan de passer de
façon graduelle à des visites non surveillées.
[31]
Les problèmes avec cette analyse sont que
lordonnance nimpose pas à K.R. lobligation de supporter « un plan de
passer de façon graduelle à des visites non surveillées », et le dossier
ne permet pas de conclure que « la surveillance nétait plus
nécessaire ».
(a)
Ce qui est prévu par lordonnance
[32]
Lordonnance du juge Pelletier prévoit en
premier lieu des visites hebdomadaires surveillées. Il sagit de lobligation de
permettre ou de ne pas empêcher les visites. Elle prévoit ensuite que Valoris a
« la discrétion de retirer la surveillance ». Lordonnance nexige
pas, tel que le suggère la juge de motion, que K.R. doive supporter un
« plan de passer de façon graduelle à des visites non-surveillées ».
[33]
De plus, lallégation faite par Valoris dans
lavis de motion nétait pas que K.R. avait refusé damener M.C.R. à une visite
après que Valoris a exercé sa discrétion pour retirer la surveillance tel que
prévu dans lordonnance. Plutôt, lallégation faite par Valoris dans lavis de
motion est quelle « ne peut
pas exercer sa discrétion quant aux
modalités des visites tel que stipulé dans l'Ordonnance ». Rien dans
lordonnance naccorde clairement à Valoris
«
la discrétion quant aux modalités des visites
» et rien ne stipule où ces visites doivent avoir lieu
. De fait, tel que je lai noté, Mme Marcheterre, dans son affidavit
à lappui de la motion, a demandé et la juge de motion a accepté de
modifier lordonnance afin de mettre en uvre les différentes étapes que
Valoris proposait, y compris que les visites surveillées soient tenues
«
au domicile de A.C.
»
. Si lordonnance du juge Pelletier avait
été si claire, aucune modification naurait été nécessaire.
[34]
Tel quexpliqué par le juge Cullity dans
l'affaire
Jaskhs Enterprises Inc. v. Indus Corp.
, [2004] O.J. No.
4062, au para.
40, citée avec approbation dans
Bell ExpressVu
Limited Partnership v. Torroni
, 2009 ONCA 85, 304 D.L.R. (4
e
)
431, au para. 28: « a failure to comply with an order of the court will
not be contempt if there are genuine, unresolved issues between the parties
with respect to the manner in which it is to be carried into operation ».
Il est clair que K.R. nétait pas prête à passer à des visites non surveillées
lorsque Valoris le proposait. Par contre, le refus par K.R. denvoyer M.C.R.
pour sa visite avec A.C. a suivi la décision de Valoris de changer le lieu o
ù
les visites surveillées auraient lieu.
Jusquau mois de juillet 2020, les visites surveillées se déroulaient aux
bureaux de Valoris à Plantagenet et, selon la proposition de Valoris, celles-ci
seraient dorénavant tenues à la résidence de A.C. à Gatineau.
[35]
En l'absence d'un langage clair permettant à
Valoris d'effectuer un tel changement, je ne vois pas que K.R. aurait clairement
compris qu'elle était dans l'obligation de sy conformer sans discussion. K.R.
demeurait prête à ce que la visite ait lieu aux bureaux de Valoris, comme dans
le passé. De fait, les visites ont repris la semaine suivante aux bureaux de
Valoris en attente que la motion pour outrage soit entendue et que la cour se
prononce sur la demande de Valoris de modifier les modalités de lordonnance. La
décision de retirer la surveillance na pas été prise
[36]
La juge de motion ne semble pas reprocher à K.R.
quelle nait pas amené M.C.R. à la visite du 14 juillet, mais plutôt quelle
refusait daccepter que les visites surveillées nétaient plus nécessaires. Par
contre, et contrairement à ce que la juge a énoncé, Valoris navait pas encore déterminé
que la surveillance nétait plus nécessaire. Valoris proposait un plan à
plusieurs étapes qui pourrait mener à une telle décision. Selon laffidavit de
Mme Marcheterre, Valoris aurait expliqué
à
K.R. que
«
les
visites seraient complètement surveillées pour quatre semaines » et que « [Valoris
revisiterait] la situation par la suite
»
.
[37]
Le fait quaucune décision nait été prise de
retirer la surveillance est confirmé par le plan que Valoris a étalé dans
laffidavit de Mme Marcheterre. Le plan prévoyait quatre étapes successives
avant que Valoris arrive à des visites non surveillées. Valoris passerait dune
étape
à
une autre seulement si
Valoris était de lavis que tout se passait bien. Ainsi, puisque la décision de
retirer la surveillance na pas été prise par Valoris, il est difficile de
conclure que la deuxième partie de lordonnance du juge Pelletier accordant à
Valoris « la discrétion de retirer la surveillance si elle ne la juge plus
nécessaire » na pas été respectée.
(2)
Le comportement de K.R. nétait pas délibéré et
volontaire
[38]
Le troisième critère applicable à une déclaration
doutrage au tribunal exige une preuve que lindividu a violé lordonnance de
façon délibérée et volontaire:
Prescott-Russell
, au para. 27. La
preuve dune intention de désobéir nest pas requise :
Carey,
au
para. 38. Une personne aura l'intention requise lorsquelle refuse de suivre
les prescriptions dune ordonnance dont elle a connaissance.
[39]
Comme cette cour l'a reconnu dans l'affaire
Bell
ExpressVu
, au para. 24, il existe une relation inverse entre la clarté de
l'ordonnance et le seuil requis pour conclure à une désobéissance délibérée. Plus
l'ordonnance est claire, plus le tribunal pourra identifier avec précision la
conduite reprochée et le degré dintentionnalité.
[40]
Tel que discuté, lordonnance en lespèce nest
pas claire. La seule directive donnée aux parties est l'obligation de maintenir
un rythme d'une visite par semaine. Bien que K.R. ait intentionnellement refusé
d'amener M.C.R. à la visite du 14 juillet, son refus était lié au lieu de la
visite, qui, comme je l'ai expliqué, ne relève pas clairement du champ
d'application de l'ordonnance. Une fois que les bureaux de Valoris ont été
rétablis comme le lieu des visites, les visites ont repris.
(3)
Les meilleurs intérêts de lenfant
[41]
En dernier lieu, il est important de souligner
que, dans chaque cas de demande de déclaration doutrage au tribunal impliquant
un enfant, le tribunal doit considérer les meilleurs intérêts de lenfant. Dans
de telles circonstances, lorsquune partie cherche à trouver un parent en
outrage, des options moins sévères devraient être considérées. Loutrage au
tribunal est un remède qui ne devrait être utilisé quen dernier recours. Tel
que cette cour la indiqu
é
dans
Chong v. Donnelly
, 2019 ONCA 799, aux paras. 10-12, le juge doit considérer
dautres options, telles que déclarer quil y a eu non-respect de lordonnance ou
dencourager les parties
à
utiliser la médiation plutôt que de passer directement à une ordonnance
doutrage. Voir aussi
Ruffolo
, aux paras. 18-19.
[42]
Bien qu'il soit inacceptable qu'une partie
contrevienne à une ordonnance claire du tribunal en croyant que ce sera mieux
pour l'enfant, il n'est pas non plus souhaitable que la cour émette une
ordonnance d'outrage en réponse à toute dérogation ou manifestation de
réticence de la part dun parent. Il doit y avoir une place pour le dialogue,
comme la indiqué le juge Pelletier dans son inscription du 12 août 2020 :
« le tribunal favorise les mesures de règlement que les parties pourront
utiliser y compris la concertation familiale ».
[43]
Lorsque Valoris a introduit sa requête pour
déclarer K.R. coupable d'outrage au tribunal, K.R. avait refusé d'amener M.C.R.
à sa visite hebdomadaire quune seule fois, le 14 juillet 2020, et les visites
ont repris une semaine plus tard. De plus,
nous notons que suite aux précisions
à
lordonnance que Valoris a demandées et que la cour a accordées,
K.R. a coopéré avec Valoris. De fait, tel que je lai indiqué, les parties se
sont entendues à leffet que lappel devait être accord
é
.
[44]
Rien dans la décision de la juge de motion ne laisse
entendre que la cour a considéré si des options autres quune déclaration
doutrage au tribunal seraient dans les meilleurs intérêts de lenfant.
Conclusion
[45]
Pour ces motifs, jaccorderais lappel,
jinfirmerais lordonnance de la juge de motion et je rejetterais la motion
pour outrage au tribunal.
Rendu le : 2 juin 2021 « P.R. »
« Paul
Rouleau j.c.a. »
« je
souscris M.L. Benotto j.c.a. »
« je
souscris L.B. Roberts j.c.a. »
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Walcott v. Toronto Transit Commission, 2021 ONCA 358
DATE: 20210528
DOCKET: C68252
Strathy C.J.O., Feldman and van
Rensburg JJ.A.
BETWEEN
Anderson T. Walcott
Plaintiff (Appellant)
and
Toronto Transit Commission
, Bell Canada,
Schwedt Map Art and
CMA/CPA
Defendants (
Respondent
)
Anderson T. Walcott, acting in person
Justin Lim, for the respondent
Heard: May 21, 2021 by videoconference
On
appeal from the judgment of Justice Benjamin T. Glustein of the Superior Court
of Justice, dated February 25, 2020.
REASONS FOR DECISION
[1]
The appellant appeals from the judgment that
dismissed his motion for summary judgment against the respondent, and granted
the respondents motion for summary judgment dismissing his action against it
for copyright infringement.
[2]
As a preliminary matter, the respondent
submitted in its factum that this appeal should have been brought to the
Divisional Court. We reject that submission. The appellants claim was for
$2,000,000 for copyright infringement. The motion judge found no liability and
dismissed the action. However, he did not find that the value of the claim was
under $50,000. A final order that dismisses an action on the basis of no liability
does not have the effect of quantifying the damages at zero dollars. If it did,
then every appeal from the dismissal of an action would be to the Divisional
Court, rather than only those where the value of the damages claimed or
quantified is under $50,000, contrary to s. 6(1)(b) of the
Courts of
Justice Act
, R.S.O. 1990, c. C.43: see
Harte-Eichmanis v. Fernandes
,
2012 ONCA 266, 15 R.F.L. (7th) 1, at paras. 13-14.
[3]
The appellant approached the Toronto Transit Commission
(TTC) in 1994 offering to create a bus and subway route map guide. The TTC
responded that such a guide was already available to its passengers. In 1996,
the appellant raised concerns with the TTC that its route maps appeared in the
Yellow Pages Directory, to which the TTC responded that those route maps had
been internally generated and were not based on the appellants proposed guide.
On August 5, 1996, the appellant obtained a Certificate of Registration for a
Guide from the United States Copyright Office. However, that Guide was
unpublished and was not provided to the motion judge. The appellant provided
only route maps that he proposed to include in the Guide. Those route maps
were not in the form of maps, but were lists of transit stops along bus routes.
There was also one document that was in the form of a map with businesses on
the street identified in handwriting.
[4]
The evidence of the TTC was that it has been
publishing route maps of its transit lines for many years in a number of
formats. The motion judge found that evidence to be uncontested. These maps do
not include information about businesses along the routes, like those prepared and
submitted by the appellant. In his action, the appellant claims copyright in
the publication of all transit routes and schedules in Canada and the U.S.,
based on his U.S. Certificate of Registration.
[5]
The motion judge determined that he could decide
both motions on summary judgment as there was no genuine issue requiring a
trial. He made the following findings:
1)
Because the appellant did not produce a Guide,
there was no evidentiary basis to support a claim for copyright in a Guide.
2)
As there is no copyright in ideas but only in
their form of expression, there was no originality in the route maps the appellant
produced which were taken from public information about TTC transit routes.
3)
Even if there was any original form of
expression in the appellants TTC route maps, there was no evidence that the
TTC used or adopted the appellants maps.
4)
If the appellant had copyright in the expression
of the appellants maps, the scope of any such copyright would not extend to
prevent the TTC from producing its own route maps.
[6]
Based on those findings, the motion judge
dismissed the appellants action for copyright infringement.
[7]
In oral argument, the appellant asserted that
the affidavit evidence filed by the TTC was untrue regarding the history of its
publication of transit route maps. There is no basis on the record for making
such an assertion. The deponent of the TTCs affidavit was not cross-examined,
and his evidence was supported by documentary exhibits.
[8]
We see no error in the findings of the motion
judge with respect to the record and the law of copyright, and in finding no
genuine issue requiring a trial.
[9]
The appellant also sought to keep the respondent
in the action as a conspirator with the federal government in respect of his
claim for assault, slander, defraud and deny rights, benefits and privileges
of freedom of [the appellant]. The motion judge found that there was no
evidence to support the alleged claims against the respondent and therefore
granted summary judgment dismissing the action against it with costs of
$25,000. We see no error in this finding, and no genuine issue requiring a
trial.
[10]
The appeal is therefore dismissed with costs
fixed in the amount of $8,000 inclusive of disbursements and HST.
G.R. Strathy C.J.O.
K. Feldman J.A.
K. van Rensburg J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Wen v. Gu, 2021 ONCA 259
DATE: 20210426
DOCKET: C67743
Benotto, Miller and Trotter JJ.A.
BETWEEN
Hao Wen
Plaintiff (Appellant)
and
Shi Gu
, Robert Choi and Robins Appleby LLP
Defendants (
Respondent
)
Yixin Wang and J. Gardner Hodder, for
the appellant
Jerome H. Stanleigh, for the respondent
Heard: April 20, 2021 by video conference
On
appeal from the judgment of Justice William S. Chalmers of the Superior Court
of Justice, dated November 4, 2019, with reasons reported at 2019 ONSC 7456.
REASONS FOR DECISION
Background
[1]
In August 2016 the appellant, Hao Wen, purchased
a restaurant from the respondent. The purchase price of $425,000 included a
transfer of the lease, licences, and equipment. The closing was supposed to be
October 25. However, the appellant alleged that the respondent had made
misrepresentations entitling her to terminate the agreement. She alleged that
during the negotiations, the respondent represented that the weekday sales
revenues in the busiest month were $3,000 and the weekend revenues were $8,000.
In fact, the revenues averaged to $1,000 and $4,000 respectively.
[2]
The appellant commenced an action alleging
fraudulent misrepresentation and frustration. The respondent counterclaimed for
breach of contract.
[3]
The appellant sought to establish that the
representations as to revenue had been admitted. She filed a Request to Admit
the following fact:
8. During the
meeting of August 29, 2016 [the respondent] told [the appellant] that in the
best month, the daily revenue for the Restaurant business was on average
$3,000.00 on weekdays and approximately $8,000.00 on weekends.
9. In
the context of paragraph 9 [sic] herein, the best month means the months of
either May, June or July.
[4]
In his Reply to Request to Admit, the respondent
neither admitted nor denied paragraph 8 but admitted paragraph 9.
[5]
During the respondents examination in chief at
trial, his counsel referred to the Request to Admit:
Q. During the
meeting of August 29, you told the [appellant] that the best month of daily
revenue for the restaurant business was on average $3,000 on weekdays and
approximately $8,000 on weekends.
A. Yes.
Decision below
[6]
The trial judge found that the respondent did
not make any misrepresentations which induced the appellant into signing the
contract. His statements about the revenue and profits of the restaurant were
accurate. She had been shown sales receipts for May 7 to July 31, 2016 which
showed approximately $1,000 of revenue for weekdays and $4,000 for weekends.
The trial judge added that even if the estimate of revenue had been inaccurate,
[the respondent] provided the actual sales receipts to the appellant who had
them before the agreement and she asked no questions. He added that, if the
appellant relied on the respondents totals when the actual sales records had
been provided, it was not reasonable for her to do so.
[7]
The trial judge found that the appellant breached
the contract and awarded the respondent the difference between the purchase
price of $425,000 and the amount he eventually sold the restaurant for, rent
for the two-month period after the closing date, and the sales commission he
was required to pay for the new sale.
Issues
[8]
The appellant submits that the trial judge erred
by ignoring the factual admissions when he found there were no
misrepresentations. She also argues that he erred in assigning responsibility
to the appellant for not verifying the sales receipts given to her.
[9]
The respondent submits that this is a case of
buyers remorse. The appellant was not misled, and the trial judge made no
palpable and overriding error in concluding that the sales receipts given to
her were accurate.
Analysis
[10]
We have concluded that the trial judge erred in
two ways.
[11]
First, the trial judge failed to refer to the
admitted facts when he concluded that there was no misrepresentation. The
estimates given by the respondent that the average daily revenue in the
restaurants best month was $3,000 on weekdays and $8,000 on weekends could
not be reconciled with the actual sales. These facts were admitted pursuant to
r. 51.03 (Effect of Request to Admit) of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194, and the testimony of the respondent. The trial judge did
not consider the effect of these admissions. Consequently, it is not possible
to reconcile his finding that there was no misrepresentation with the admitted
facts.
[12]
Second, the trial judge erred by assigning
responsibility to the appellant. He should not have relied upon the appellants
lack of due diligence to find that there was no fraudulent misrepresentation:
Performance
Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd.
, 2002 SCC 19,
[2002] 1 S.C.R. 678, at paras. 67-69;
Man Financial Canada Co. v.
Keuroghlian
, 2008 ONCA 592, at para. 45.
[13]
The combined effect of these errors requires a
new trial.
[14]
The appeal is allowed, and a new trial is
ordered.
[15]
The costs ordered by the trial judge are set
aside. In accordance with the parties agreement, costs of the trial below and
the new trial will be determined by the next trial judge.
[16]
Cost of the appeal are to be paid to the
appellant fixed in the agreed upon amount of $20,000.00 all inclusive.
M.L.
Benotto J.A.
B.W.
Miller J.A.
Gary
Trotter J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Wilton v. Northern Bruce Peninsula
(Municipality), 2021 ONCA 12
DATE: 20210107
DOCKET: C66314
Doherty, Paciocco and Coroza
JJ.A.
BETWEEN
Shirley Wilton as an Estate
Trustee of Anneliese Weiss
Appellant
and
Municipality of Northern Bruce
Peninsula
Respondent
Shirley Wilton, acting in person
Nicholas Lovell, for the respondent
Heard: in writing
On appeal from the order of Justice Kofi
N. Barnes of the Superior Court of Justice, dated November 2, 2018.
COSTS ENDORSEMENT
[1]
We have received the respondents costs
submissions. The appellant chose to make no costs submissions.
[2]
Costs to the respondent in the amount of
$7,500, inclusive of disbursements and all relevant taxes.
Doherty J.A.
David M. Paciocco J.A.
S. Coroza J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Wiseau Studio, LLC v. Harper, 2021
ONCA 31
DATE: 20210115
DOCKET: M51953 (C68580)
Thorburn
J.A. (Motions Judge)
BETWEEN
Wiseau
Studio, LLC and Tommy Wiseau d.b.a. Wiseau-Films
Plaintiffs/ Defendants by
Counterclaim
(Appellants/ Responding Parties)
and
Richard Harper, Fernando Forero Mcgrath, Martin
Racicot d.b.a. Rockhaven Pictures, Room Full of Spoons
Inc., Parktown
Studios Inc. and Richard Stewart Towns
Defendants/ Plaintiffs by Counterclaim
(Respondents/ Moving Parties)
Matthew Diskin and Meredith Bacal, for
the moving parties
Daniel Brinza, for the responding
parties
Heard: January 7, 2021 by videoconference
REASONS
FOR DECISION
RELIEF SOUGHT
[1]
This is a motion by the moving parties Ri
chard
Harper, Fernando Forero McGrath, Martin Racicot d.b.a. Rockhaven Pictures, Room
Full of Spoons Inc., Parktown Studios Inc. and Richard Stewart Towns (together
Room Full of Spoons)
for security for the trial judgment, costs of the
judgment and appeal and in the alternative, an order to lift the stay pending
appeal.
[2]
The security amounts are as follows:
1.
Security for the trial judgment in the amount of
$200,000 CDN and Canadian currency sufficient to purchase $575,488.36 at a bank
in Ontario listed in Schedule I to the
Bank Act
(Canada) at the close
of business on the first day on which the bank quotes a Canadian dollar rate
for purchase of the foreign currency before the day payment of the obligation
is received;
2.
Security for costs of trial judgment in the
amount of $481,521.80 CDN; and
3.
Security for costs of the appeal in the amount
of $30,000.
[3]
Room Full of Spoons claims that although
security for judgment has not been awarded by an Ontario court, the unique
circumstances of this case warrant security for the judgment awarded and has
been awarded by courts in other Canadian jurisdictions. Room Full of Spoons
also notes that the British Columbia and Alberta courts have granted security
for judgment in similar circumstances.
BACKGROUND EVIDENCE
[4]
In 2003, Wiseau Studio LLC and Tommy Wiseau,
doing business as Wiseau Films released a feature film called The Room. The
Room and its creator, Tommy Wiseau, acquired cult-like status. Wiseau Studio
and Tommy Wiseau are residents of California.
[5]
Richard Harper, Fernando Forero McGrath, Martin
Racicot and Richard Stewart Towns are Ontario documentary filmmakers. In 2016,
after years of work, they completed a documentary film called
Room Full of
Spoons
about the cult phenomenon surrounding The Room and Mr. Wiseau (the
Documentary). Room Full of Spoons only material asset is the Documentary.
[6]
Room Full of Spoons have not been able to
exploit the Documentary since Wiseau Films brought a claim against them in
2017.
[7]
On June 14, 2017, Wiseau Films obtained an
ex
parte
injunction restraining the release of the Documentary while,
unbeknownst to the court, it was in negotiations with Room Full of Spoons about
the Documentarys release.
[8]
On November 1, 2017, the injunction was
dissolved as the motion judge held that Wiseau Films had failed to make full
and frank disclosure and engaged in litigation misconduct. Room Full of Spoons
was awarded substantial indemnity costs of $97,034.68.
[9]
The cost award was not paid for 11 months and
was paid only after the court advised that Wiseau Films claim would be
dismissed if the cost award was not satisfied.
[10]
Thereafter, the case management judge found that
Wiseau Films engaged in roadblocks to scheduling at almost every attendance
and other improper acts. These include:
(a) The injunction was issued at a
commercially critical time when the parties were on the verge of finalizing a
distribution deal which was prevented by the injunction such that the lawsuit
had the effect of blocking the release of the documentary;
(b) Wiseau stated falsehoods about the
defendants on social media and made misrepresentation to third parties about
the legality of screening the documentary;
(c) Both sides agreed to file affidavits
from their witnesses regarding their anticipated testimony in chief.
Thereafter, Wiseau Films sought an order from the case management judge to
direct the Crown to prosecute the defendants for perjury based on their
affidavits, although he never identified what was allegedly false. The request
was refused;
(d) Seeking to adjourn the trial on the
eve of trial on the grounds that Wiseau Films no longer had counsel. The case
management judge held this was a situation entirely of their own making and
one about which [he had] warned Mr. Wiseau on many occasions. Since February
2019, the case management judge had dealt with three different motions by three
sets of counsel for Wiseau Films asking to be removed from the record; and
(e) On the eve of trial, sending the judge
and opposing counsel a document entitled Total Withdraw purporting to
discontinue his claims. In the document, Wiseau Films attacked the Ontario
justice system and stated that a new action would be brought in another
jurisdiction for the same relief. (The request was refused.)
[11]
Following an eight-day trial in January 2020,
Wiseau Films claim was dismissed and judgment granted in favour of Room Full
of Spoons on the counterclaim. The judgment was thorough and comprehensive.
[12]
Room Full of Spoons was awarded $200,000 in
punitive damages (in large part for litigation misconduct), $550,000 USD in
damages arising from the improper
ex parte
injunction,
$25,488.36 USD in pre-judgment interest, and $481,521.80 CDN in costs.
[13]
Thereafter, Wiseau Films request to vary the
judgment was dismissed with costs to Room Full of Spoons in the amount of
$20,000 CDN. In his reasons, the trial judge refused to allow evidence from
witnesses that testified at trial and that could and should have been adduced
at trial. He also noted that,
Nothing presented on this motion suggests that
my Reasons for Judgment were based on misleading evidence or that there is any
other reason to reconsider my decision or reopen the trial. Rather, this motion
raises the same concerns referred to by Koehnen J. prior to trial, that the
plaintiffs seek to delay justice for the defendants at every turn.
Once again, Wiseau also complains of the
Ontario justice system being unfair to him as an American citizen doing
litigation in a foreign and unfamiliar jurisdiction. This claim, and other
criticisms of the Ontario courts was made by Wiseau in advance of trial and
also at the outset of the trial. However, Wiseau chose to bring this action in
Ontario, and no doubt was quite content with our system of justice when he
obtained his
ex parte
injunction. I am not aware of any way in which
he has been treated differently than if he were a resident of Ontario or a
citizen of Canada.
In my view, this motion has no merit and is
yet another tactical attempt by Wiseau to delay and obstruct the release of
Room
Full of Spoons
.
[14]
Thereafter, Mr. Wiseau failed to attend
examinations in aid of execution, or court Orders compelling his attendance to
provide information about his assets. Counsel for Wiseau Films advised that,
As for the location of the assets which could
be used to satisfy any judgment
the bulk of my clients assets may be located
outside Ontario, namely in the USA. As you are aware, should you wish to
proceed with execution against any US-based assets, the proper procedure for
your side would be to convince a US court of proper jurisdiction to endorse the
judgments and orders issued by the Ontario courts.
[15]
Mr. Wiseau refused to say whether a sizeable
real estate asset called the Pico Property, which was the only known address
for Mr. Wiseau, was still his address and said it was laughable to ask. No
information has been provided about any Wiseau Films assets or their
whereabouts save for the bald assertion that Wiseau Films can satisfy any
judgment award.
[16]
Wiseau Films has now brought a Notice of Appeal
of the trial judgment. Wiseau Films counsel does not dispute that the Amended
Amended Notice of Appeal, which grounds provide only that the court below erred
in dismissing his various claims, is frivolous on its face. He suggested
however that there was still time to further amend the Appeal.
THE POSITIONS OF THE PARTIES
[17]
Room Full of Spoons
claims costs of the judgment and security
for costs of the trial and appeal on the grounds that there is no evidence that
Wiseau Films or any of its assets is in the jurisdiction or that Wiseau Films
would agree to pay any order of this court. Room Full of Spoons also submits
that Wiseau Films improper behaviour in making numerous tactical attempts to
obstruct and delay these proceedings, and its frivolous appeal, justify the
relief sought.
[18]
Room Full of Spoons claims these actions are
clear evidence that, having chosen to commence legal proceedings in Ontario,
Wiseau Films does not intend to comply with an Ontario court order and that
security for judgment and costs is therefore required.
[19]
Wiseau Films disputes the motion for security
for judgment and/or costs as they claim justice does not demand that security
be granted and the losing party should be entitled to avail itself of due
process and any and all protections afforded to a judgment debtor.
[20]
Counsel for Wiseau Films conceded on this motion
that the grounds of appeal set out in the Notice of Appeal are frivolous as
they are entirely conclusory. He stated however, that they are not vexatious as
there is no stated intention to refuse to pay any amounts deemed owing nor is
there evidence Wiseau Films cannot satisfy a judgment and or costs award.
[21]
Lastly, Wiseau Films submits that to enable Room
Full of Spoons to obtain information about its assets would constitute
execution before final judgment. Such an order for security for judgment has
never been granted in Ontario, which suggests it is not appropriate to do so
absent exceptional circumstances which are not present in this case.
ANALYSIS
(1)
The First Issue: Security for Trial Judgment
[22]
Section 134(2) of the
Courts of Justice Act
,
R.S.O. 1990, c. C.43 (CJA) provides that, On motion, a court to which a
motion for leave to appeal is made or to which an appeal is taken may make any
interim order that is considered just to prevent prejudice to a party pending
the appeal.
[23]
Rule 1.05 of the
Rules of Civil Procedure
R.R.O. 1990, Reg. 194, provides that, When making an order under these rules
the court may impose such terms and give such directions as are just.
[24]
Security for judgment is an extraordinary remedy
that should only be granted in exceptional circumstances:
Vaillancourt v.
Cater
,
2017 ABCA 282, at para. 20;
Aetna Financial Services
Ltd. v. Feigelman
, [1985] 1 S.C.R. 2 at p. 10;
C.H. v. M.H.
, 1997
ABCA 263, 53 Alta. L.R. (3d) 80 (
sub nom Hamza v. Hamza
), at para. 24.
[25]
Such an order requires an appellant to post
security for judgment before continuing with the appeal. In this way, security
for judgment functions much like a
Mareva
injunction and
restrains the appellant from disposing of or dissipating assets in order that
they be available to satisfy the judgment should it be upheld and if security
for judgment is ordered and not posted, the appeal is dismissed:
Vaillancourt
,
at. para. 20;
Vaccaro v. Twin Cities Power-Canada U.L.C.
, 2013 ABCA
252, 97 Alta. L.R. (5th) 193, at para. 14.
[26]
Security for judgment has been granted in other
jurisdictions in the following circumstances:
1.
Where there are no assets in the jurisdiction against which to
enforce a judgment and the appeal has little merit (
Vaccaro
at
para. 11;
Creative Salmon Company Ltd. v. Staniford
,
2007 BCCA
285,
at paras. 12 and 14;
Richland Construction Inc. v. Manningwa
Developments Inc.
, 1996 CanLII 3188 (B.C. C.A.) at paras. 12-13);
2.
To preserve assets that would otherwise be
destroyed, disposed of, or dissipated prior to the resolution of the dispute:
Aetna
Financial
at p. 12); and
3.
To encourage respect for the judicial process
and avoid abuse of process (
C.H.
, at para. 23, citing
Mooney v.
Orr
(1994), 100 BCLR (2d) 335 at p. 348 (B.C. S.C.);
Vaccaro
at paras. 12-14; and in respect of Mareva injunctions,
Aetna Financial
at pp. 13-14).
[27]
In
First Majestic Silver Corp. et al. v.
Davila
,
2013 BCCA 312, the court invoked s. 10(2)(b) of the British
Columbia
Court of Appeal Act
,
R.S.B.C. 1996, c. 77,
a
provision with similar wording to that in s. 134 of the
CJA
which
provides that In an appeal or other matter before the court, a justice may
(b) make an interim order to prevent prejudice to any person. The court
ordered that appellants who resided out of the jurisdiction without assets in
the jurisdiction post security for the trial judgment, failing which the
respondents were granted leave to apply to have the appeal dismissed as
abandoned. In so doing, the court set out the principles governing the exercise
of discretion in ordering security for a trial judgment:
1.
The onus is on the applicant to show that it is in the interest of
justice to order posting for security of a trial judgment and/or of trial costs.
2.
The applicant must show prejudice if the order
is not made.
3.
In determining the interests of justice the
chambers judge should consider the merits of the appeal and the effect of such
an order on the ability of the appellant to continue the appeal. (See also
Vaillancourt
,
at para. 24).
[28]
The interests of justice may include a
consideration of the
ex juris
residence of an appellant and
therefore the effective immunity of an appellant from enforcement of the
judgment:
First Majestic Silver Corp. et al.
,
at para.
16;
Paz v. Hardouin
, 1995 CanLII 1808 (B.C. C.A.), at paras.
22. They may also include a consideration of the ability to enforce
the judgment in the appellants
ex juris
jurisdiction
and/or the absence of assets in the jurisdiction in which the judgment was
rendered:
First Majestic Silver Corp. et al.
,
at para. 16;
Cadinha
v. Chemar Corp. Inc.
, 1995 CanLII 1017 (B.C. C.A.), at paras. 5-7.
[29]
The interests of justice may not be relied upon
by a successful plaintiff where the effect of requiring the posting of security
for a trial judgment would be to preclude a party from pursuing the appeal:
Kedia
v. Shandro Dixon Edgson
,
2007 BCCA 316, 243 B.C.A.C. 80, at para.
39, relying on
Chan v. Vancouver Trade Mart Ltd.
, 1997 CanLII 4108
(B.C. C.A.), at para. 10.
[30]
However, in
Creative Salmon
,
Lowry
J.A. held at para. 12 that:
[A]dverse financial circumstances will
generally not defeat an application for security where an appeal is virtually
without any merit. A successful plaintiff should not be required to respond to
an unmeritorious appeal when there is no real prospect of recovery.
[31]
A finding that an appeal has no reasonable
prospect of success may be a factor: see
Richland Construction Inc.
, at
para. 8.
[32]
For the reasons set out below, I find that this
is one of those rare and exceptional circumstances where an order for security
for judgment is warranted.
[33]
First, Wiseau Films is out of the jurisdiction.
Wiseau Films refused to advise if it has any assets in the jurisdiction and the
only reasonable inference therefore is that there is no evidence that Wiseau
Films have any assets in the jurisdiction. Moreover, Wiseau Films concedes
there is no issue that paying security for judgment and or costs would prevent
Wiseau Films from pursuing its appeal. As such, the interest of justice onus is
met.
[34]
Second, there is evidence that Room Full of
Spoons will suffer prejudice if the order is not granted:
1.
On several occasions, both the case management and trial judges have
noted that there were numerous tactical attempt(s) by Wiseau to delay and
obstruct the release of Room Full of Spoons. Those actions are set out at
paragraph 10 above;
2.
Room Full of Spoons spent years producing their
documentary film and it has now been over four years since the completion of
the film during which there has been a cloud on title such that they have been
prevented from airing the documentary;
3.
A significant judgment award may never be
recovered if the order is not granted.
[35]
Although Wiseau decided to commence legal
proceedings in Ontario (and is therefore required to abide by the rules of the
Ontario courts), Wiseau Films has demonstrated no intention to pay an award
ordered by this court. Mr. Wiseau said it was laughable to ask if the
sizeable Pico Property, which was the only known address for Mr. Wiseau, was
still his address and suggests that if his appeal is not successful, Room Full
of Spoons should commence proceedings in the United States to recover the
judgment. It is also telling that, although Wiseau Films did pay the costs
ordered against him for bringing an improper
ex parte
order, he did so
only after the court ordered that if he failed to pay the award, his action
would be dismissed.
[36]
Third, it is agreed that as presently drafted,
the Amended Amended Notice of Appeal is frivolous and does not articulate what
errors were made in the comprehensive reasons provided by the trial judge.
[37]
I am therefore satisfied that although this is a
remedy that should be invoked sparingly, the interests of justice weigh in
favour of granting the order for security for judgment.
[38]
Accordingly, the appellants are ordered to post
security for the trial judgment within 90 days of this order, with liberty to
apply for further directions on the form of the security, if necessary. If the
appellants fail to comply with this order, Room Full of Spoons are granted
leave to apply for an order dismissing the appeal as abandoned.
(2)
The Second Issue: Security for Costs
[39]
This court may order security for costs pursuant
to Rule 56.01 of the
Rules of Civil Procedure
where,
(a) the plaintiff or applicant is
ordinarily resident outside Ontario;
(c) the defendant or respondent has
an order against the plaintiff or applicant for costs in the same or another
proceeding that remain unpaid in whole or in part;
(d) the plaintiff or applicant is a
corporation or a nominal plaintiff or applicant, and there is good reason to
believe that the plaintiff or applicant has insufficient assets in Ontario to
pay the costs of the defendant or respondent; or
(e) there is good reason to believe
that the action or application is frivolous and vexatious and that the
plaintiff or applicant has insufficient assets in Ontario to pay the costs of
the defendant or respondent.
[40]
As noted above, the Wiseau Films parties are
ordinarily resident outside of Ontario and there is good reason to believe
Wiseau Films has insufficient assets in Ontario to satisfy the awards. Wiseau
Films has refused to adduce evidence of any assets in Ontario or any evidence
that, having elected to proceed in Ontario, it would pay any amounts ordered by
Ontario courts unless and until ordered by a United States court. Moreover,
there is evidence that the proceeding is vexatious given the circumstances
surrounding the
ex parte
order, the conduct prior to trial set out
above, and Wiseau Films concession that the appeal is frivolous.
[41]
Taken together, there are ample grounds to
support an order for security for costs of the trial and appeal pursuant to
section 56 of the
Rules of Civil Procedure
.
[42]
Given the above and extension of the delay for
release of the Documentary, Wiseau Films should post funds into court:
Health
Genetic Center Corp. (Health Genetic Center) v. New Scientist Magazine
,
2019 ONCA 576 at paras. 8-11. This Court has the jurisdiction to do so pursuant
to s. 134(2) of the
Courts of Justice Act
and Rule 1.05 of the
Rules
of Civil Procedure
.
CONCLUSION
[43]
For the above reasons, the motion is granted.
[44]
In accordance with the agreement between the
parties, costs are awarded to the moving parties Room Full of Spoons in the
amount of $3,500.
J.A.
Thorburn J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Wiseau Studio, LLC v. Harper, 2021 ONCA 396
DATE: 20210607
DOCKET: M52157 & M52464 (C68580)
Doherty, Pepall and Trotter JJ.A.
BETWEEN
Wiseau Studio, LLC and Tommy Wiseau d.b.a.
Wiseau-Films
Plaintiffs/Defendants by Counterclaim (Appellants)
and
Richard Harper, Fernando Forero McGrath, Martin
Racicot d.b.a. Rockhaven Pictures, Room Full of Spoons Inc., Parktown Studios
Inc. and Richard Stewart Towns
Defendants/Plaintiffs by Counterclaim (Respondents)
Daniel Brinza, for the appellants
Matthew Diskin and Meredith Bacal, for the respondents
Heard: June 2, 2021 by video conference
A motion by the appellants to set aside the order of
Thorburn J.A., dated January 15, 2021, and a motion by the respondents to
dismiss the appeal for non-compliance with the order of Thorburn J.A.
REASONS FOR DECISION
[1]
At the end of oral argument, the court advised the parties the appellants
motion to set aside the order of Thorburn J.A. (the motion judge) was granted
in part and the respondents motion to dismiss the appeal was dismissed as
moot. These are our reasons for those dispositions.
[2]
The appellants did not file any material in response to the respondents
motion for security. Before the motion judge, counsel for the appellants
conceded the appeal as framed in the Notice of Appeal was frivolous. The motion
judge relied on that concession in making her order.
[3]
The appellants have fleshed out their grounds of appeal since the
motion. They have also perfected the appeal and filed a factum.
[4]
We are prepared, in the circumstances, to permit the appellants to
resile from the concession made before the motion judge as to the merits of the
appeal. Absent the concession the appeal was frivolous, we are satisfied the part
of the order requiring the appellants to post security for the amount of the
judgment should be set aside.
[5]
We would not, however, interfere with the order for security for costs,
both with respect to the trial costs and the costs of appeal. In challenging
that part of the motion judges order, the appellants relied on material placed
before this court, which was not before the motion judge. The appellants did
not seek leave to adduce fresh evidence, nor did the appellants offer any justification
for receiving fresh evidence.
[6]
A motion to review proceeds on the record that was before the motion
judge unless the moving party can justify the court receiving fresh evidence.
There is no such justification here and we will not admit any of the new material
filed on this motion for review.
[7]
Based on the record as it was before the motion judge, it was reasonably
open to her in the exercise of her discretion to make an order for the security
of the costs of both the trial and the appeal pursuant to r. 61.06(1).
[8]
At the end of oral argument, the court made the following order.
[9]
The motion to review the order of the motion judge is allowed in part.
The order for security on the amount of the judgment is set aside. The order
for security for costs, both with respect to trial costs and the costs of the appeal,
is affirmed.
[10]
The
appellant shall post the required security by no later than July 7, 2021 at
4:00 p.m., failing which the respondent may move
ex parte
in writing
before this panel for an order dismissing the appeal. Any further application
by any party in relation to the security for costs order shall be made to this
panel and in writing.
[11]
The
motion judge ordered costs against the appellants in the amount of $3,500. In
our view, that order should stand, even though we have varied the terms of the
motion judges order. The motion judge proceeded on the basis of the
appellants concession as to the absence of any apparent merit to the appeal.
In light of the position taken by the appellants before the motion judge, the
appellants should remain obliged to pay the costs of the motion, even though we
have varied the result.
[12]
As
success is divided before this court, we order no costs with respect to the
proceedings before us.
[13]
Given
the result of the appellants motion, the respondents motion to dismiss the
appeal for non-compliance with the order of the motion judge is dismissed as
moot.
Doherty J.A.
S.E. Pepall J.A.
G.T. Trotter J.A.
|
COURT OF APPEAL FOR
ONTARIO
CITATION: Woods (Re),
2021 ONCA 190
DATE: 20210329
DOCKET: C68774 &
C68940
Tulloch, Huscroft and
Thorburn JJ.A.
DOCKET: C68774
IN THE MATTER OF:
Joanne Woods
AN APPEAL UNDER PART
XX.1 OF THE CODE
DOCKET: C68940
AND BETWEEN
Her Majesty the Queen
Appellant
and
Joanne Woods
Respondent
Michael Davies, for the appellant (C68774), Joanne Woods
Dena Bonnet and Emily Marrocco, for the appellant
(C68940) and respondent (C68774), Her Majesty the Queen
Anita Szigeti and Maya Kotob, for the
respondent (C68940), Joanne Woods
Leisha Senko, for the respondent (C68774 & C68940),
Person in Charge of Centre for Addiction and Mental Health
David Humphrey and Michelle Biddulph, for the respondent
(C68940), Ontario Review Board
Amy Ohler and Eric Neubauer, for the intervener
(C68940), Criminal Lawyers Association (Ontario)
Heard: March 12, 2021 by videoconference
On
appeal from the disposition of the Ontario Review Board dated October 8, 2020,
with reasons dated October 15, 2020 (C68774).
On appeal from the judgment of
Justice Patrick J. Monahan of the Superior Court of Justice, dated November 6,
2020, with reasons reported at 2020 ONSC 6899, 152 O.R. (3d) 595, granting
certiorari
to quash the ruling of the Ontario Review Board, dated July 31, 2020, holding
it had jurisdiction to conduct a disposition review hearing under Part XX.1 of
the
Code
by videoconference without the accuseds consent (C68940).
Tulloch J.A.:
A.
INTRODUCTION
[1]
On May 9, 2012, the court found Ms. Woods not criminally
responsible on account of mental disorder (NCRMD or NCR) for charges of
uttering a threat to cause death or bodily harm, and possession of a weapon for
a dangerous purpose. She has been under the jurisdiction of the Ontario Review
Board (the ORB or the Board) ever since.
[2]
In May 2020, the ORB announced that it would hold all of its
hearings remotely, by videoconference, due to the COVID-19 pandemic. Ms. Woods
annual disposition hearing was initially scheduled for May 29, 2020. Ms. Woods did
not consent to proceeding by videoconference and sought to adjourn her hearing
until the Board could convene in person.
[3]
After a two-month adjournment, on July 31, 2020, the Board held
that the hearing could proceed by videoconference, without Ms. Woods consent
and despite her objections. Ms. Woods served and filed an application to quash
the Boards decision in the Ontario Superior Court. Notwithstanding r. 43.03(5)
of the
Criminal Proceedings Rules for the Superior Court of Justice
(Ontario),
SI/2012-7
which suspends the proceedings before the
Board once Ms. Woods had served and filed a Notice of Application to quash,
unless a judge permits the proceedings to go ahead
[1]
the Board held a disposition hearing by videoconference on September 28,
2020. Just over a week later, on October 8, 2020, the Board ordered Ms. Woods
detained at the General Forensic Unit at the Centre for Addiction and Mental
Health (CAMH), subject to conditions.
[4]
Prior to this order, since April 2017, Ms. Woods had been living
in the community under a conditional discharge.
[5]
Monahan J. heard Ms. Woods application to quash on November 6,
2020. On November 23, 2020, Monahan J. issued a writ of
certiorari
and
quashed the Boards July 31, 2020 decision to conduct its proceedings by videoconference,
for want of jurisdiction. He held that Part XX.1 of the
Criminal Code,
R.S.C., 1985, c. C-46
,
which governs the NCR regime, did not
authorize the Board to convene by videoconference without the consent of the
accused. The parties agreed that this decision only affected the Boards
jurisdictional ruling on July 31, 2020, and not the disposition order rendered
on October 8, 2020.
[6]
The Crown appeals Monahan J.s
certiorari
order, while
Ms. Woods appeals the order of the Board setting aside her conditional
discharge and entering a detention order.
[7]
For the reasons that follow, I would dismiss the appeal of the
certiorari
application. The Board did not have jurisdiction to proceed by videoconference
without the consent of the NCR accused. It follows that the Board rendered Ms. Woods
October 8, 2020 disposition order without jurisdiction. The disposition is
therefore null and void for want of jurisdiction.
[8]
Accordingly, it is unnecessary to address the merits of Ms.
Woods appeal of her disposition order in great detail. Suffice to say, even if
I had reached a different conclusion on the merits of the
certiorari
appeal, the disposition order would still be void because the Board conducted
its disposition hearings in violation of r. 43.03(5).
[9]
It is my understanding that Ms. Woods is currently detained at
the hospital. She has had another disposition hearing in the interim, heard on
December 8, 2020 and decided on January 13, 2021. The Board continued
her detention order in that disposition:
Woods (Re),
[2021] O.R.B.D.
No. 104. However, this detention order rests on a faulty foundation given that the
Board entered the original detention order without jurisdiction.
[10]
Thus, the detention order is quashed, and Ms. Woods conditional
discharge is reinstated. I would return the matter to the Board to be heard by
a different panel as soon as practicable.
B.
BACKGROUND AND OVERVIEW
[11]
As noted above, in May 2020, the ORB announced that it would hold
all of its hearings remotely, by videoconference, due to the COVID-19 pandemic.
In this announcement, the Boards Chair also noted that this manner of
proceeding may give rise to arguable inconsistencies with the
Code
,
and individuals with any misgivings could apply to have their matter
adjourned.
[12]
Ms. Woods annual disposition hearing was initially scheduled for
May 29, 2020. Ms. Woods attended the hearing, represented by counsel.
She did not consent to the hearing proceeding by videoconference and sought an
adjournment until the parties could schedule an in-person hearing. The Board
granted the adjournment and scheduled a new hearing date for July 31, 2020.
(a)
The ORBs Ruling on Jurisdiction
[13]
By the time of Ms. Woods adjourned hearing date on July 31,
2020, the ORB was still not convening for in-person hearings. The hearing
proceeded by videoconference.
[14]
Counsel for Ms. Woods filed a notice of application submitting
that the Board lacked jurisdiction to hold the hearing by videoconference
without her consent. She argued that s. 672.5(13)
[2]
of the
Criminal Code
only allows the Board to proceed by videoconference
if the accused so agrees. Additionally, counsel for Ms. Woods pointed
out that s. 672.81(1),
[3]
which imposes a mandatory review of dispositions after twelve months, is not
absolute and that adjournments are a reasonable justification for an extension
of that time period.
[15]
The Crown argued that s. 672.81(1) requires the Board to fulfill
its statutory duty to hold a hearing within twelve months of the last
disposition and that this duty takes priority over any consent required by s.
672.5(13). The Crown also submitted that the current public health emergency
rendered s. 672.5(13) inoperative in the circumstances. Finally, the Crown
argued that the Board is entitled to govern its own process.
[16]
The Board, in an oral ruling, dismissed the application and
denied Ms. Woods request for a further adjournment. It held that the
Board had the authority to proceed by videoconference notwithstanding s.
672.5(13) and Ms. Woods objections.
[17]
In reasons released on August 25, 2020, the Board decided that an
overall review of s. 672.5 and the Boards Rules of Procedure indicates that
the ORB has wide latitude in deciding how its hearing procedures are to be
governed with a fundamental goal of securing
the just determination of the
real matters in dispute. It further held that requests to extend the twelve-month
review by way of adjournment would be assessed on a case-by-case basis.
[18]
In the case at hand, the Board found that another adjournment was
unreasonable because there appeared to be significant live issues concerning
the hospitals ability to manage Ms. Woods illness and substance use, and
these issues needed to be resolved in a timely manner. The Board also observed that
there was no evidence that a denial of an in-person hearing occasioned any
unfairness to Ms. Woods.
[19]
Since an in-person hearing was not possible while COVID-19 continued
to pose a risk, the Board reasoned that Ms. Woods was, in effect, seeking to
postpone her annual disposition hearing indefinitely. The Board noted that it
was tempting to conclude that Ms. Woods refusal to consent was a not so
subtle manoeuvre to delay her hearing so that she can remain on a conditional
discharge and maintain her current privileges without change. The Board
reasoned that an interpretation of s. 672.5(13) that would permit Ms. Woods to
delay the annual disposition hearing indefinitely would lead to an absurd
result, since it would prevent the Board from fulfilling its statutory mandate.
[20]
Based on the foregoing, the Board denied Ms. Woods request for
an adjournment. The hearing was ordered to take place as soon as practicable. The
Board found that it had the authority to proceed in Ms. Woods absence, even if
she did not consent to a hearing by videoconference, under s. 672.5(10)(a).
[4]
(b)
The Continuation of Ms. Woods Hearings
[21]
On August 28, 2020, the Board reconvened. Counsel for Ms. Woods
informed the Board that she had filed and served an application to quash the
Boards July 31, 2020 jurisdictional decision in the Superior Court. She took
the position that r. 43.03(5) of the
Criminal Proceedings Rules
applied and suspended the proceedings. In the alternative, counsel for Ms.
Woods asked the Board to recuse itself on the basis of a reasonable
apprehension of bias. The Board disagreed on both counts and commenced the
hearing. It did not have enough time to hear all the evidence, so the matter
was again adjourned to a later date.
[22]
A differently constituted panel convened by videoconference on
September 28, 2020.
[5]
Ms. Woods did not attend this hearing. Counsel for Ms. Woods did not have
instructions to proceed in Ms. Woods absence and asked for a further
adjournment to either obtain instructions or seek advice from the Law Society
as to whether she could participate as counsel without instructions.
[6]
The Board ordered that the hearing proceed in Ms. Woods absence, citing s. 672.5(10)(a),
notwithstanding that her counsel could not participate without her instructions.
It heard evidence from the hospital and a psychiatrist regarding Ms. Woods
current medical condition, needs and circumstances. Counsel for Ms. Woods did
not, and could not, make submissions or cross-examine any of the witnesses
without instructions from her client.
[23]
On October 8, 2020, the Board issued its disposition. It set
aside Ms. Woods conditional discharge and entered a detention order.
(c)
Ms. Woods
Certiorari
Application
[24]
A month later, on November 6, 2020, Monahan J. heard Ms. Woods
writ of
certiorari
application to quash the Boards July 31, 2020
decision to proceed by videoconference without her consent. In reasons released
on November 23, 2020, Monahan J. allowed the application and quashed the
Boards July 31, 2020 decision, holding that the Board acted without legal
authority.
[25]
At the outset, Monahan J. noted that the Boards jurisdiction is
defined and limited by the
Criminal Code
. The default rule in s.
715.21 of the
Criminal Code
provides that a person who appears at,
participates in, or presides at a proceeding shall do so personally. Monahan
J. found that personally means that criminal proceedings must proceed in the
physical presence of the accused.
[26]
Monahan J. turned his analysis to Part XX.1 of the
Criminal
Code,
which governs the NCRMD regime. He noted that an iteration of the default
rule entitling accused individuals to an in-person hearing is found in s.
672.5(9).
[7]
Subsection 672.5(10) goes on to list specific circumstances where the
accused may be absent from the hearing.
[27]
Monahan J. noted that only s. 672.5(10)(a)
[8]
could apply, which provides that the Board may permit the accused to be absent
during the whole or any part of the hearing on such conditions as the court or
chairperson considers proper. However, Monahan J. found the word permit in
s. 672.5(10)(a) to be premised on the accused having waived the right to an
in-person hearing. In other words, Monahan J. found that the Board could not
rely upon s. 672.5(10)(a) to proceed in the absence of an accused without their
consent; s. 672.5(10)(a) only applies where the accused has waived her right to
be present.
[28]
Lastly, Monahan J. found that Part XX.1 specifically addresses
the Boards ability to proceed by videoconference in s. 672.5(13), and that
provision requires the accuseds consent.
[9]
[29]
After his review of the statutory framework, Monahan J. concluded
that the Boards decision ignored the clear and unambiguous language of ss.
672.5(9) and (13), which provide the NCR accused with a right to an in-person
hearing.
[30]
Monahan J. also pointed out that the Board failed to consider
whether it was, in fact, possible to hold a hearing in person. At the time,
there was no legal rule or public health recommendation that prevented the
Board from convening in person.
[31]
More broadly, Monahan J. reasoned that it is open to Parliament,
and not the Board, to determine whether to amend s. 672.5(13) and grant the
Board authority to conduct a disposition review hearing by videoconference over
the objections of the accused. As I return to below, Parliament did not do so
in its recent amendments to the
Criminal Code
, which expanded the circumstances
under which trials and other criminal proceedings may take place by videoconference.
C.
ANALYSIS
[32]
The central question in the Crowns appeal of Monahan J.s
certiorari
order is the correct interpretation of Part XX.1 of the
Criminal Code.
The
Crown asks this court to find that the Board has jurisdiction to conduct its
proceedings by videoconference without the consent of the NCR accused. This
jurisdiction, according to the Crown, derives from the Boards statutory
regime, its core mandate, and its governing practice directions. The Crown
further submits that the exercise of this jurisdiction is reasonable in light
of the global pandemic. Notably however, the Crown conceded in the hearing that
this jurisdiction is rooted in the Boards legal framework; put another way, the
Crown also argues that the jurisdiction to hold proceedings by videoconference,
without the NCR persons consent, exists regardless of COVID-19.
[33]
For the reasons that follow, I disagree. The Boards conclusion
about the boundaries of its jurisdiction is incorrect. The statutory regime
provides no authority for the Board to conduct its hearing by videoconference
without the consent of the NCR accused. The Boards decision was not justified
when one considers the legal constraints under Part XX.1 of the
Criminal
Code
.
[34]
Again, the Boards proceedings were suspended once counsel for
Ms. Woods filed and served the notice of application to quash in the
Superior Court pursuant to r. 43.03(5). The Board nonetheless proceeded to
convene by videoconference without Ms. Woods consent and without her counsel
participating. It subsequently entered a detention order on October 8, 2020. This
disposition was made without jurisdiction from the
Criminal Code,
and
in direct contravention of the
Criminal Proceedings Rules.
The
detention order would be null and void on both accounts.
[35]
The COVID-19 pandemic cannot justify a clear departure from the
terms of the
Criminal Code.
The Board is a creature of statute and its
powers are strictly circumscribed by the
Criminal Code.
The Board
cannot expand its jurisdiction based on a sense of perceived urgency to act
outside its statutory authority. Given the liberty interests at stake and the
unique vulnerabilities of the NCR accused, the rights provided in the
Criminal
Code
and the principles of natural justice must be zealously guarded in
disposition hearings, even in the face of a global pandemic. Ms. Woods is
entitled to an in-person annual disposition hearing unless and until the
Criminal
Code
says otherwise.
(1)
The Standard of Review
[36]
The parties appeared before Monahan J. on an application for a
writ of
certiorari. Certiorari
is an extraordinary remedy that derives
from the supervisory jurisdiction of the Superior Court over a tribunal of
limited jurisdiction. For parties in criminal or quasi-criminal proceedings,
certiorari
is available to address alleged jurisdictional errors; that is, when a
court or tribunal either (a) fails to observe a mandatory provision of a
statute or (b) acts in breach of the principles of natural justice:
Bessette
v. British Columbia (Attorney General),
2019 SCC 31, [2019] S.C.J. No. 31,
at para. 23. The standard of review is correctness:
Ontario (Attorney
General) v. Taylor,
2010 ONCA 35, 98 O.R. (3d) 576, at para. 16.
(2)
Statutory Interpretation of Part XX.1 of the
Criminal Code
[37]
Whether the Board failed to observe a mandatory provision of the
Criminal
Code
is a question of statutory interpretation. In Canada, it is trite law
that the modern approach to statutory interpretation requires that the words
of an Act are to be read in their entire context and in their grammatical and
ordinary sense harmoniously with the scheme of the Act, the object of the Act,
and the intention of Parliament:
Bell ExpressVu Ltd. Partnership v. Rex
,
2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.
[38]
The starting point is to determine the ordinary meaning of the
text. The ordinary meaning refers to the understanding that spontaneously
comes to mind when words are read in their immediate context and is the
natural meaning which appears when the provision is simply read through:
R.
v. Wookey
, 2016 ONCA 611, 531 O.A.C. 13, at para. 25;
Pharmascience
Inc. v. Binet
, 2006 SCC 48, [2006] 2 S.C.R. 513, at para. 30; and
Canadian
Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn
., [1993] 3 S.C.R.
724, at p. 735.
[39]
After establishing an initial impression, the court must consider
and draw inferences from the Act
as a whole. This includes related
provisions and the overall scheme.
It is presumed that the
legislature is competent and well informed, that it uses language consistently,
and that the provisions in the Act collectively form a coherent scheme:
Ruth
Sullivan,
Sullivan and Dreidger on the Construction of Statutes
, 4th ed.
(Markham: Butterworths, 2002), at pp. 162-63 and 186-87;
Ordon Estate
v
.
Grail
, [1998] 3 S.C.R. 437, at para. 60.
[40]
There is also a presumption against tautology:
R.
v. Gallone,
2019 ONCA 663, 147 O.R. (3d) 225, at
para. 31.
That presumption instructs that the legislature avoids
superfluous or meaningless words, that it does not pointlessly repeat itself or
speak in vain: Ruth Sullivan,
Sullivan on the Construction of Statutes
,
6th ed. (Markham: LexisNexis, 2014), (Sullivan), at p. 211, citing
Attorney
General of Quebec v. Carrières Ste-Thérèse Ltée
, [1985] 1 S.C.R. 831, at
p. 838. Instead, [e]very word in a statute is presumed to make sense and to
have a specific role to play in advancing the legislative purpose:
Sullivan
,
at p. 211.
[41]
Finally, a court must situate its interpretation within the
purpose of the legislation. Insofar as the language of the text permits, courts
should adopt interpretations that are consistent with the legislative purpose
and avoid interpretations that defeat or undermine that purpose. It is presumed
that the legislature does not intend absurd consequences:
Rizzo & Rizzo
Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 27.
[42]
The questions to be answered are whether ss. 672.5(9), (10) and
(13) support the conclusions that: (a) the accused has the right to an
in-person hearing unless they consent to a hearing by videoconference; and (b)
the Board may proceed in the absence of the accused without their consent. Given
the interrelated nature of these questions, I will consider them in a blended
manner.
[43]
Before doing so, I will briefly summarize ss. 672.5(9), (10) and
(13). Subsection 672.5(9) states that [s]ubject to subsection (10), the
accused has the right to be present during the whole of the hearing. Subsection
(10) goes on to list specific circumstances where the accused may be absent
from the hearing. As noted above, only ss. 672.5(10)(a) is applicable and it
reads: The court or the chairperson of the Review Board may (a) permit the
accused to be absent during the whole or any part of the hearing on such
conditions as the court or chairperson considers proper. The statute
specifically addresses videoconferencing in s. 672.5(13), which provides:
[i]f the accused so agrees, the court or the chairperson of the Review Board
may permit the accused to appear by close circuit television or videoconference
for any part of the hearing.
(a)
The Ordinary Meaning
[44]
When read alone, s. 672.5(9) arguably gives rise to some ambiguity
as to whether the term present entitles an accused to be
physically
present. The right to be present could simply mean a right to attend the
hearing. In contemporary times, someone could attend a hearing either
physically or virtually. This would be consistent with the approach of courts
to consider advances in technology that did not exist when Parliament enacted
the provision:
John v. Ballingall
, 2017 ONCA 579, 136 O.R.
(3d) 305, at para. 24, leave to appeal refuse [2017] S.C.C.A. No. 377. Such an
approach ensures that statutory interpretation applies a dynamic approach to
interpreting their enactments, sensitive to evolving social and material
realities:
R. v. 974649 Ontario Inc
., 2001 SCC 81, [2001] 3 S.C.R.
575, at para. 38.
[45]
However, any ambiguity about whether an accuseds right to be present
entitles him or her to an in-person hearing is resolved when one considers s. 672.5(13).
That section explicitly addresses circumstances where an NCRMD accuseds presence
may be virtual, that is, through a videoconference. Parliament was careful to stipulate
that the NCRMD accused must agree to appear by videoconference. This provision
would have no meaning if s. 672.5(9) did not entitle the NCRMD accused to be physically
present at a hearing. As noted above, the presumption of tautology states that
[e]very part of a provision or set of provisions should be given meaning if
possible, and courts should avoid, as much as possible, adopting
interpretations that would render any portion of a statute meaningless or
pointless or redundant:
R. v. Hutchinson
, 2014 SCC 19, [2014] 1 SCR
346, at para. 16;
Sullivan
, at p. 211.
[46]
A plain reading of s. 672.5(10)(a) does not assist this court in
interpreting whether the accused person has a right to be physically present. The
Boards ability in certain circumstances to proceed in the absence of the
accused does not speak to whether the accused is entitled to an in-person
hearing.
[47]
However, a plain reading of s. 672.5(10)(a) does shed light on
whether the Board may proceed in the absence of the accused without their
consent. I am not convinced that the Board may do so. The word permit in s.
672.5(10)(a) implies that the Board may grant the accused permission to be
absent. Stated otherwise, it is premised on an accused waiving her right to an
in-person hearing.
[48]
The word permit also has a specific connotation in the
Criminal
Code
context. Monahan J. pointed to s. 650(2)(b) a virtually identical
provision which courts have interpreted as only applying where an accused has
waived their right to be present at trial:
R. v. Drabinsky,
[2008]
235 C.C.C. (3d) 350 (Ont. S.C.), at paras. 7-11. Mohanan J. also compared
the word permit with the language of s. 715.23(1), which provides: "except
as otherwise provided in this act, the court may order an accused to appear by
audio conference or videoconference, if the court is of the opinion that it
would be appropriate having regard to all the circumstances. Under s.
672.5(13), which carves out an exception to s. 715.23(1), the Board may only
permit (as opposed to order) the accused to appear by videoconference. It
is presumed that the legislature uses words consistently and intentionally. I
agree with Monahan J.s analysis on this point.
[49]
On a plain reading of ss. 672.5(9), (10) and (13), the right to
be present implies a physical presence unless the accused consents to a hearing
by videoconference. Additionally, the Board cannot proceed in the absence of
the accused unless she has waived her right to be present.
(b)
The Act as a Whole
[50]
The next step involves a consideration of the Act
as a
whole. The Crown asks us to interpret ss. 672.5(9), (10) and (13) in light of
ss. 672.81(1), 672.5(2), and 672.53. Subsection 672.81(1) requires the Board to
hold annual hearings to review dispositions made with respect to an NCR
accused.
[10]
Subsection 672.5(2) provides that a review hearing may be conducted as
informally as is appropriate in the circumstances.
[11]
Finally, s. 672.53 provides that any procedural irregularity in relation to a
disposition hearing will not affect the validity of the hearing itself unless
the irregularity causes substantial prejudice to the NCR accused.
[12]
I will
deal with each of these provisions in turn.
[51]
There is no question that the Board must conduct review hearings
on an annual basis and that this responsibility is a core aspect of its
jurisdiction over NCR accused persons. Annual review hearings are of paramount
importance as they allow the Board to ensure that the disposition is
appropriately calibrated in a manner that balances the liberty interests of the
accused with the protection of the public.
[52]
However, those hearings must be fair. An annual review hearing
that proceeds by videoconference, over the objections of the accused, and
without representation for the accused, cannot be considered fair. In the
absence of consent of the NCR accused, only Parliament may require accused persons
to forego the protections currently provided by the
Criminal Code.
[53]
In the present context, the need for fairness is amplified given
the vulnerability of those under the jurisdiction of the Board. For some NCR
accused, the forced use of videoconferencing could contribute to anxiety or
paranoia relating to the use of technology: Community Legal Assistance Society
(CLAS),
Operating in Darkness: BCs Mental Health Act Detention System,
(Vancouver:
CLAS, 2017), at p. 135. Here it is important to keep in mind that the use of
technology in criminal proceedings should be used to enhance access to justice,
not inhibit it. The court and the Board must remain vigilant about the risk
that COVID-19 protocols could erode the fairness of the decision-making
process.
[54]
Presently, there are other ways to accommodate the needs for NCR
accused people who do not consent to attending their annual hearing virtually. Part XX.1
contemplates circumstances where this review period can be extended beyond a
year. Specifically, ss. 672.81(1.1) permits the Board to extend the time for
holding a hearing by a maximum of twenty-four months in certain circumstances.
[13]
As I return to below, if a public safety issue arises, the accused remains
under the hospitals supervision. An accused can still be hospitalized without
their consent pursuant to the
Mental Health Act,
R.S.O. 1990, c. M.7
.
[55]
The Crown also argues that the Boards decision to proceed by video
was an extension of its authority under s. 672.5(2) to conduct the hearing
informally where circumstances permit. I am not convinced that this is what
Parliament had in mind when drafting this provision. In the limited
jurisprudence surrounding s. 672.5(2), this provision has been used to
make reasonable accommodations when it comes to information gathering or
requests on consent of all parties. For example, the Board has invoked s.
672.5(2) to make informal information requests from the hospital on an urgent
basis:
R. v. Conception,
2014 SCC 60, [2014] 3 SCR 82, at para. 122.
It has also been used to permit an NCR accuseds parents to attend an in-person
hearing by video link with the consent of all parties:
Santia (Re),
[2014]
O.R.B.D. No. 1051, at para. 9. Permission to operate informally is meant to
assist the Board in executing its role as an inquisitorial tribunal; it is not
meant to supersede an accused persons codified rights.
[56]
Finally, I am not of the view that proceeding by video is simply
a procedural irregularity. The Crown asks this court to find that remote
hearings do not impact the exercise of the procedural or substantive rights of
the accused as they allow for meaningful participation. This case does not
provide the necessary evidentiary record for this court to weigh-in on the
extent to which a video forum impacts an accuseds substantive and procedural
rights. However, as alluded to above, I am not prepared to treat the difference
between an in-person hearing and a videoconference hearing as insignificant. The
court must be cautious in endorsing such a broad proposition about the rights
of vulnerable people in a time of crisis. Suffice to say, I am persuaded that the
Criminal Code
treats deviations from in-person hearings as more than
mere procedural irregularities.
[57]
Turning to the Act
more broadly, it is important to note
that the Boards jurisdiction is defined and limited by the
Criminal Code
.
The default rule in s. 715.21 of the
Criminal Code
provides that
a person who appears at, participates in, or presides at a proceeding shall do
so personally. When read in the context of other provisions in the
Code,
including
ss. 502.1(1) or 487.01(7), personally in s. 715.21 means that criminal
proceedings must proceed in the physical presence of the accused.
[58]
In 2019, Parliament enacted the default rule in s. 715.21 as part
of a series of amendments to the
Criminal Code
that sought to
modernize criminal procedure and expand the circumstances in which the accused
and other participants in a criminal proceeding may appear virtually:
An
Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts
and to make consequential amendments to other Acts,
(Bill C-75), S.C.
2019, c. 25, ss. 1(2), 188, 216, 225(2), 290 and 292.
[59]
In the new Part XXII.01, entitled Remote Attendance by Certain
Persons, Parliament provided a judge or justice the authority to preside over proceedings
via remote means, and in certain circumstances, to require the accused to
appear by videoconference. Parliament had the opportunity to expand remote
appearances to Part XX.1 of the
Criminal Code
to grant the Board
statutory authority to order an NCR accused to appear by video. Parliament did not
do so. This may well have been a legislative oversight. However, in the absence
of an amendment, neither the Board nor this court has the authority to expand
the Boards jurisdiction beyond the confines of Part XX.1.
(c)
The Purpose of ss. 672.5(9), (10) and (13)
[60]
Turning now to the purpose of the legislation
,
the dual objectives
of Part XX.1 of the
Criminal Code
are the protection of the
public and the fair treatment of the NCR accused:
Mazzei v. British
Columbia (Director of Adult Forensic Psychiatric Services),
[2006] 1
S.C.R. 326, at paras. 26-29. In furtherance of these twin goals, the Board has
wide latitude to make orders and conditions binding on the parties before it.
[61]
As noted above, annual disposition hearings are central to this
legislative scheme. They permit the Board to continuously ensure that the
appropriate balance is struck between the protection of the public and the
degree of restrictions on the liberty of the NCR accused.
[62]
It is up to Parliament to define the outer limits of the Boards
jurisdiction when it comes to the balance between the accuseds procedural
rights and the need for expediency. The statute is clear: there was no
jurisdiction here.
[63]
There are practical implications for this interpretation, but they
do not rise to the level of absurdity. As Monahan J. observed at para. 42, the
Board is entitled to delay its in-person hearings until it is appropriate to convene
in person or it can do so in a safe manner. However, assuming an in-person
hearing was truly impracticable, the proper way forward would have been to
grant adjournments when an accused does not consent to a video hearing. As
noted above, s. 672.81(1.1) of the
Criminal Code
accounts for
irregularities in the timeline of annual dispositions. While this is by no
means a long-term solution, it is up to Parliament to carve out an exception to
the default rule entitling people under the Boards jurisdiction to in-person
hearings.
[64]
If concerns about the protection of the public arise in the
interim, it remains open for the hospital to step in. Patients can be brought
in under the
Mental Health Act
in the event of rapid decompensation. Pursuant
to ss. 672.81(2) and (2.1), the Board is required to hold a review hearing as
soon as practicable where the hospital seeks an early review hearing, or when
the hospital has significantly increased restrictions on the accuseds liberty
for a period exceeding seven days. The hospital may request an early review
hearing when there is reason to believe that the current disposition does not
adequately protect public safety:
Strachan (Re),
2019 ONCA 481,
at paras. 4-9.
[65]
It is certainly foreseeable that an NCR accused might not consent
to a video hearing in these circumstances, and that a delay could lead to an
impractical and potentially dangerous result. But it is the role of the
legislature, and not the Board, nor this court, to address this potential
problem.
(d)
Conclusion on the Interpretation of Part XX.1
[66]
In summary, the task of this court was to interpret the relevant
provisions of Part XX.1 of the
Criminal Code
and determine whether the
Board acted without statutory authority. I am of the view that the Board failed
to remain within the proper bounds of its jurisdiction, as conferred by
statute. I do not see any error in Monahan J.s approach that would
warrant this courts intervention.
D.
Ms. Woods Appeal of her Disposition Order
[67]
The operation of r. 43.03(5) is automatic. Once counsel for Ms.
Woods filed and served a notice of application to quash in the Superior Court, r.
43.03(5) suspended the proceedings before the Board. The Board erred in
proceeding notwithstanding r. 43.03(5), without first seeking the approval of a
judge, as is required by r. 43.03(6). Again, the Board does not have the
authority to unilaterally override clear directions from the
Criminal
Proceedings Rules for the Superior Court of Justice
.
[68]
The Board's decision to proceed without the NCR accused or her
counsel raises procedural fairness concerns that might have afforded an
alternative basis for quashing the decision, but it is unnecessary to decide
this point given that the Board had no authority to proceed with the hearing in
any event.
E.
CONCLUSION AND DISPOSITION
[69]
I would dismiss the appeal of the
certiorari
order and
allow the appeal of the Boards disposition. Further, I would return this
matter to the Board for a new hearing before a differently constituted panel,
to be heard as soon as practicable.
Released: March 29, 2021 M.T.
M. Tulloch J.A.
I agree. Grant
Huscroft J.A.
I agree. Thorburn
J.A.
[1]
Rules 43.03(5) and (6) provide: (5) Subject to subrule (6), service of a notice
of application to quash under subrule (2) upon a provincial court judge,
justice or justices, coroner, or as the case may be, suspends the proceedings
which are the subject of the application. (6) A judge may, upon service of a
notice of application therefore in such manner, if at all, as the judge may
direct, order that the proceedings which are the subject of the application to
quash shall continue upon such terms as appear just.
[2]
Subsection 672.5(13) provides: If the accused so agrees, the court or the
chairperson of the Review Board may permit the accused to appear by
closed-circuit television or videoconference for any part of the hearing.
[3]
Subsection
672.81
(1)
provides: A Review Board shall hold a
hearing not later than twelve months after making a disposition and every
twelve months thereafter for as long as the disposition remains in force, to
review any disposition that it has made in respect of an accused, other than an
absolute discharge under paragraph 672.54(a).
[4]
Subsection 672.5(10)(a) provides: (10) The court or the chairperson of the
Review Board may (a) permit the accused to be absent during the whole or any
part of the hearing on such conditions as the court or chairperson considers
proper
[5]
One of the members of the panel suffered a sudden illness that prevented him
from sitting on the Board. The Board lost quorum and was reconstituted as a new
panel.
[6]
The Law Society later informed counsel that it would not be proper for her to
participate without instructions.
[7]
Subsection 672.5(9) provides:
(9)
Subject to subsection (10), the accused
has the right to be present during the whole of the hearing.
[8]
Subsection 672.5(10)(a) provides:
(10) The court or the
chairperson of the Review Board may (a) permit the accused to be absent during
the whole or any part of the hearing on such conditions as the court or
chairperson considers proper
[9]
Again, s.
672.5 (13) provides: If the accused so
agrees, the court or the chairperson of the Review Board may permit the accused
to appear by close circuit television or videoconference for any part of the
hearing.
[10]
Subsection 672.81 (1) provides: A Review Board shall hold a hearing not later
than twelve months after making a disposition and every twelve months thereafter
for as long as the disposition remains in force, to review any disposition that
it has made in respect of an accused, other than an absolute discharge under
paragraph 672.54(a).
[11]
Subsection 672.5(2) provides: The hearing may be conducted in as informal
a manner as is appropriate in the circumstances.
[12]
Section 672.53 provides: Any procedural irregularity in relation to a
disposition hearing does not affect the validity of the hearing unless it
causes the accused substantial prejudice.
[13]
Subsection 672.81(1.1) provides: Despite subsection (1), the Review Board may
extend the time for holding a hearing to a maximum of twenty-four months after
the making or reviewing of a disposition if the accused is represented by
counsel and the accused and the Attorney General consent to the extension.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Boudreau v. Jakobsen, 2021 ONCA
556
DATE: 20210803
DOCKET: C68278
Brown, Roberts and Zarnett JJ.A.
BETWEEN
Bruce Boudreau
Applicant
(Respondent)
and
Randi Jakobsen
Respondent
(Appellant)
Michael J. Stangarone and Stephen P.
Kirby, for the appellant
Jenna Beaton and Jessica Grys, for the respondent
Heard: in writing
On appeal
from the order of Justice Sharon Shore of the Superior Court of Justice dated February
5, 2020.
COSTS ENDORSEMENT
[1]
The parties have filed written cost
submissions. The respondent, Bruce Boudreau, was entirely successful in
opposing the appeal of Randi Jakobsen. Accordingly, Ms. Jakobsen shall pay Mr.
Boudreau his costs of the appeal fixed in the amount of $14,000, inclusive of
disbursements and applicable taxes.
David
Brown J.A.
L.B.
Roberts J.A.
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 complainants 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. S.S.S., 2021 ONCA 552
DATE: 20210803
DOCKET: C67462
Feldman, Lauwers and Trotter
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
S.S.S.
Appellant
Anil K. Kapoor and Victoria M. Cichalewska,
for the appellant
Vallery Bayly, for the respondent
Heard: February 17, 2021 by video conference
On appeal from the convictions entered
by Justice Sandra Caponecchia of the Ontario Court of Justice on May 13, 2019,
and from the sentence imposed on October 8, 2019.
Feldman J.A.:
A.
INTRODUCTION
[1]
The appellant appeals his convictions for sexual
assault and sexual interference, and seeks leave to appeal his sentence of six
months imprisonment plus two years probation, along with various ancillary
orders, including one under s. 161 of the
Criminal Code
, R.S.C. 1985, c. C-46
.
[2]
The complainant was a young girl, eight or nine
at the time of the alleged offences and eleven at trial. The appellant was a 20-year-old
university student at the time of the alleged offence. The families of the complainant
and the appellant were close. Sometime between February 1 and March 31, 2017,
the complainant had a sleepover at her friend P.s home. P. is the appellants
younger sister. The complainant said that sometime during the sleepover, when P.
was in the shower and she was in a chair in the kitchen, the appellant came in,
kissed her, and touched her breasts and vagina over her clothes. She said she
screamed as the appellants parents returned home from a shopping trip.
[3]
The appellant testified, denying the
complainants claim. He stated that he remembered the weekend the complainant
slept over and that he was never alone with her.
[4]
The appellant raises a number of grounds for the
conviction appeal, most of which allege errors by the trial judge in her
assessment of the credibility and reliability of the complainant and the
appellant. In my view, the trial judge erred in fact and law by finding that
the complainant and her mother had a motive not to fabricate the allegations,
and by using that finding to enhance the credibility of the complainant. I
would accordingly order a new trial.
B.
Background
(1)
Evidence of the complainant
[5]
The complainants evidence was given in two
forms. She gave a videotaped statement to the police, several months after the
incident, once her mother made the decision to report it. In addition, she
testified at the trial. Her mother, her father, and her upstairs neighbour,
whom she referred to as her aunt, also testified, essentially about how they learned
of the incident, how the incident was reported to the police, and what subsequent
interactions the complainant and her mother had with the appellants family.
[6]
The complainant said that the incident took
place while she was staying at the appellants house. The appellants father
had picked her up on a Friday and taken her to their house for a sleepover with
P. According to the complainant, the people at the house were P, the appellant,
the appellants parents, and H., who she referred to as P.s brother. The
complainant testified in cross-examination that she did not see the appellant
before she went to bed that night. She ultimately could not pinpoint the timing
of the incident, but she said it occurred while she was in the kitchen on a
wheelie-chair. At the time, P. was taking a bath, H. was at work, although
she was not sure if he was at home, and the appellants parents were out at a
shop.
[7]
The complainant testified that the appellant
came downstairs. She said the appellant kissed her on the lips, tickled her
on her breasts, and patted her private part over her underwear after he moved
her pants partway down. She said she screamed as the appellants parents returned
home from their shopping trip. She told them what happened, they asked her a
bunch of questions, and then they sent her upstairs and asked the appellant
questions.
[8]
In cross-examination, defence counsel asked the
complainant about what occurred the next morning. She agreed that after she
woke up, she played in the kitchen with P.s mother and ate oranges. This
accorded with the testimony of the appellant. The complainant also agreed that
at some point, her mother arrived, and that the appellant came downstairs, said
hello to her mother, and then went back upstairs. She similarly saw H. come
down for lunch and go back to his room. She acknowledged that she had been guessing
when she testified to H.s whereabouts during the incident.
[9]
The complainant described how she felt close to
P. and how P. had helped her when she was bullied. When the complainants
mother picked her up from the sleepover, she told her she had had a great time
and wanted to visit P. again.
[10]
In both the police statement and
cross-examination, the complainant stated that she liked to scare her mother by
telling her things that were not true. However, in cross-examination, she
denied that she had made up the allegations against the appellant. The
complainant also admitted that she was not sure whether the appellants parents
went to the store the day she arrived or the next day. She acknowledged that
she did not see the appellant before she went to bed, which was on the day she
arrived.
(2)
The evidence of the complainants mother
[11]
The evidence of the complainants mother focused
on the relationship she and her daughter had with the appellants family before
and after the incident. She explained that she had known the appellants father
since the age of two, and that she was close to both him and the appellants
mother. She permitted her daughter to sleep over at their house because the
complainant enjoyed spending time with the appellants sister, P. She recounted
that the sleepover took place sometime in February or March of 2017. Her daughter
told her about the incident two to four days later, after which point she did
not let the complainant have another sleepover at P.s house, and sent the
complainant to stay with her aunt whenever the appellants family visited.
[12]
In cross-examination, the complainants mother was
asked why she had not cut ties with the appellants family after her daughters
disclosure to her. She responded that she had tried to reduce contact and that
she trusted the appellants parents who had been good to her in the past,
having taken her in when she immigrated to Canada and was pregnant with the
complainant. She repeatedly denied the suggestion that she continued to
associate with the appellants family because she did not believe her daughter.
(3)
The evidence of the appellant
[13]
The appellant testified. He recalled the weekend
that he came home from his university for reading week and the complainant was
sleeping over at his house. He stated that he got home late on the Friday
night, after the complainant had gone to bed, and that he did not see her until
the next morning. He denied that he was ever alone with the complainant. He was
only in the kitchen with the complainant when other adults were there as well. He
also denied all of her allegations that he touched her and kissed her.
[14]
The appellant stated that after the sleepover,
he saw the complainant and her family members on more than one occasion. He did
not believe that anyone acted differently towards him.
[15]
None of the appellants family members
testified.
(4)
The trial judges findings
[16]
The trial judge believed the complainant. She
rejected the appellants evidence because she accepted the complainants
evidence beyond a reasonable doubt, applying
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, and
R. v. R.D.
, 2016 ONCA 574, 342 C.C.C. (3d) 236. In addition,
the trial judge did not find the appellants evidence to be compelling in form
or content, for two reasons: (1) the appellants demeanor had changed under
cross-examination; and (2) she found it incredible that he remembered exactly
which weekend his sisters friend slept over, when he came home from university
regularly on the weekends at different hours, and since two years had passed
between the incident and his trial. The trial judge acknowledged, however, that
aside from those frailties, the appellants blanket denial did not have any
flaws. Nevertheless, for the trial judge, it did not raise a reasonable doubt.
C.
Issues
[17]
The appellant raises five issues on the
conviction appeal. Three focus on alleged errors in the credibility assessments,
including the trial judges finding that the complainant had no motive to
fabricate, one submits that the trial judge misapplied the standard of proof,
and one challenges the trial judges ruling on the admission of third-party
records.
[18]
As I would order a new trial based on the error
in the trial judges finding of no motive to fabricate, it is only necessary to
address that issue and the third-party records issue.
D.
ANALYSIS
(1)
Motive to Fabricate
(a)
Overview
[19]
The trial judge found that she was satisfied
beyond a reasonable doubt of the credibility and reliability of the complainant.
One of the factors the trial judge considered in the portion of her analysis
where she reached this conclusion was the complainants lack of motive to
fabricate. She found that not only was there no evidence of motive to fabricate
or animus, but that it was contrary to the interests of the complainant and her
mother to come forward, and the fact that they did demonstrated how the
complainant had no motive to fabricate. The trial judge used that finding as a
make-weight to enhance the complainants credibility.
[20]
The trial judge addressed the issue of motive to
fabricate in the following two paragraphs of her reasons:
[164] I have taken into consideration that
there is no evidence of a motive to fabricate or animus in this case. To the
contrary, by coming forward the complainant stood to jeopardize her friendship
with the defendants sister. The complainants mother risked the close
relationship and support of the defendants parents, both of whom she
considered family.
[165] The existence or absence of a motive to
fabricate is a relevant factor to be considered. I acknowledge that when
dealing with the issue of a complainants motive to fabricate, it is important
to recognize that the absence of any evidence of motive to fabricate is not the
same as absence of motive to fabricate. It is dangerous and impermissible for
me to move from an apparent lack of motive to the conclusion that the
complainant must be telling the truth. People may accuse others of committing a
crime for reasons that may never be known, or for no reason at all. The burden
of production and persuasion is upon the prosecution and an accused need not
prove a motive to fabricate on the part of a principal Crown witness.
[Footnotes omitted.]
[21]
There are three errors in the trial judges
approach. The first is a factual error, while the other two are legal errors.
The errors are as follows: (1) there was no evidence from the complainant that
she believed coming forward would jeopardize her friendship with P.; (2) the
fact that the complainants mother did not want to undermine her relationship
with the appellants parents in no way supports the credibility of the
complainant it is irrelevant to her credibility; and (3) even if the trial
judge only found no evidence of motive to fabricate, treating the lack of
evidence of motive to fabricate as a factor in assessing the credibility of the
complainant in this case amounts to an error of law, because it had the effect
of putting an onus on the appellant to disprove that the complainant had no motive
to fabricate.
(b)
How the issue was raised at trial
[22]
The issue of motive to fabricate was raised in
closing argument by defence counsel at trial (not appeal counsel). Defence counsel
first submitted that there was evidence of motive to fabricate because the
complainant had mentioned in her police statement and cross-examination that
she would tell her mother stories that were not true. After a discussion between
counsel and the trial judge regarding that evidence, the trial judge asked
defence counsel, So, what are you saying is the motive to fabricate here? Defence
counsel responded that the appellant did not have to prove motive to fabricate,
but then clarified his initial submission by saying: Where I meant I guess
the the better word of saying, theres evidence here from the complainant
that shes made up this story. I I guess it[s] better to say it that way as
opposed to motive. The clarification served to withdraw his initial submission
on the motive to fabricate.
[23]
Despite that clarification, Crown counsel at
trial (not appeal counsel) made her own submission that there was no motive to
fabricate and no animus, and that to the contrary, on the totality of the
evidence, there was a motive to tell the truth, i.e., not to fabricate. There
was no plan of revenge, the complainants mother continued to see the
appellants family, she initially did not report the incident to police, she
still respected the appellants parents, and she did not want to destroy her close
relationship with them.
[24]
The effect of these submissions was that while the
defence was not taking the position that the complainant had a motive to
fabricate, the Crown asserted that the complainant was credible, in part,
because she had no motive to fabricate. The trial judge accepted the Crowns
submission.
(c)
Errors in the trial judges reasoning
[25]
Paragraphs 164 and 165, quoted above, are the
trial judges response to counsels submissions. I interpret paragraph 164 as a
finding by the trial judge that there was evidence of no motive to fabricate,
i.e., there was motive on the part of the complainant and her mother not to
come forward. The trial judge took this finding into consideration in concluding
that the complainant must be telling the truth, and determining that she
believed the complainant beyond a reasonable doubt.
[26]
However, the trial judge erred by so doing.
First, there was no evidence to support the trial judges finding regarding the
complainant herself. The complainant was not asked any questions about whether
she was concerned that her disclosure would jeopardize her relationship with
her friend, P. There was no basis for the trial judge to infer such a concern
from her evidence. The inference amounted to transferring the concerns of the
complainants mother onto the complainant, a young child.
[27]
Second, the trial judge relied on the mothers desire
to maintain a good relationship with the appellants family to bolster the
credibility of the complainants account. That was an error of law. The
mothers motive cannot and does not speak to the credibility of the complainants
story.
[28]
In the second paragraph, i.e., 165, the trial
judge discussed the law on motive to fabricate. She began by stating that the
existence or absence of a motive to fabricate is a relevant factor to be
considered. That is an accurate statement where there is a proved presence or
absence of motive to fabricate:
R. v. Bartholomew
,
2019 ONCA 377, 375 C.C.C. (3d) 534,
at para. 21.
[29]
The trial judge then recognized the distinction
between no motive to fabricate and no evidence of motive to fabricate, and that
it is impermissible to move from an apparent lack of motive to fabricate to the
conclusion that the complainant is telling the truth. She also confirmed that an
accused need not prove that a Crown witness had a motive to fabricate. While
these statements of the law are true, it is unclear how they were applied by
the trial judge.
[30]
First, the trial judge did not find a lack of
evidence of motive to fabricate. Rather, she found that there was no motive to
fabricate, which she used as a make-weight for the complainants credibility. Finding
no motive to fabricate amounted to a factual error that was not available on
the evidence. As explained above, the complainant was never asked about motive
to fabricate or any concern that coming forward could jeopardize her friendship
with P. In cross-examination she said she did not disclose her allegation to P.,
but she was not asked about her reason(s) for that decision. The question
appeared to be part of a series of questions intended to suggest that the incident
did not actually occur, as opposed to suggesting that the incident did occur, but
that the complainant did not want to tell P. about it because she was afraid of
ruining their friendship. The trial judge also based her finding that the
complainant had no motive to fabricate on her perception that the complainants
mother believed that she could jeopardize her relationship with the appellants
family if the complainant came forward. This was a significant error because
the mothers motive or lack thereof cannot be attributed to the daughter.
[31]
Second, there was no issue of onus because the
appellant did not rely on motive to fabricate. Although defence counsel
initially labelled his argument about the complainants tendency to tell her
mother untrue stories as motive to fabricate, he withdrew that label. He was
not arguing motive to fabricate. His argument was simply that the complainant
had a history of telling untruths rather than a motive to tell untruths.
Therefore, the question of whether or not the accused had proven motive to
fabricate was not an issue before the trial judge.
(d)
The impact of
Ignacio
[32]
At the oral hearing of the appeal, counsel were
asked to provide written submissions on the effect of this courts recent decision
in
R. v. Ignacio
, 2021 ONCA 69, 70 C.R. (7th) 134, leave to appeal
refused, [2021] S.C.C.A. No. 127, on the motive to fabricate issue here. In
Ignacio
,
the defence took the position at trial that the complainant had a motive to fabricate
because she feared that she had become pregnant from her sexual encounter with
the accused and needed a way to explain the pregnancy to her parents in order to
absolve herself of any responsibility. The trial judge rejected this submission,
found that the complainant did not fear becoming pregnant and had a good
relationship with the appellant, and concluded that she had no motive to
fabricate.
[33]
On appeal, the accused argued that the trial
judge had erred in finding that the complainant had no motive to fabricate, and
that this erroneous finding influenced his decision to accept the evidence of
the complainant and reject the evidence of the accused.
[34]
The court found that in responding to the
defence submission that the complainant had a motive to fabricate, the trial
judge had not made a finding of no motive to fabricate, but had simply
determined that there was no evidence of a motive to fabricate. The court then
found, as a matter of law, that the trial judge was entitled to consider the
absence of evidence of motive to fabricate as a factor in assessing the
credibility of the complainant.
[35]
Ignacio
is
distinguishable from this case on the factual finding. Because
Ignacio
deals with the use that a court can make of a finding of no evidence of a
motive to fabricate, rather than a finding of no motive to fabricate, its
result is not applicable to this case.
[36]
However,
Ignacio
is also
distinguishable because there, the issue of motive to fabricate was raised by
the defence and therefore had to be addressed by the trial judge, whereas in
this case, the issue was not raised by the defence. Consequently, in
Ignacio
,
the court did not have to consider the risk of the onus being reversed in
situations where the issue is not raised by the defence.
[37]
Here, the issue was raised only by the Crown, who
argued no motive to fabricate rather than no evidence of motive to fabricate. The
Crown did not submit that if the court failed to find no motive to fabricate,
but only found no evidence of a motive to fabricate, that it could and should use
the absence of evidence of motive to fabricate to add weight to the
complainants testimony.
[38]
Not only is there no burden on an accused to
prove a motive to fabricate, there is equally no burden on an accused to disprove
that the complainant had no motive to fabricate.
[1]
If the accused does not raise the issue, it is not open to the trial judge to find
that there was no evidence of motive to fabricate and to use that finding, not
disproved by the accused, as a make-weight in support of the complainants credibility.
[39]
The trial judges error in finding no motive to
fabricate and using that to bolster the credibility of the complainant was a
significant one in the context of this case. Her acceptance of the
complainants credibility was the main reason she rejected the appellants evidence
and found that it did not raise a reasonable doubt. As any aspect of the
credibility analysis could have been critical to the finding of proof beyond a
reasonable doubt, the trial judges error requires a new trial.
(2)
Third-Party Records
[40]
After the appellant was charged with the
offences before the court, the Childrens Aid Society (CAS) sent a letter informing
him that an investigation had been conducted into whether the complainant was
in need of protection, and that the file had been subsequently closed. At trial,
the appellant sought production of the CAS record as it related to the
appellant and the complainant.
[41]
The trial judge fully considered the defence
request in the legal context prescribed by the
Criminal Code
and explained
by the case law, beginning with
R. v. Mills
, [1999] 3 S.C.R. 668.
Mills
sets out the two-stage process governing the release of s. 278.1 records. At
the first stage, the court decides whether the accused has established that the
record is likely relevant to an issue at trial or to the competence of a
witness to testify. If so, then the record is produced to the trial judge, who
looks at the record in the absence of the parties, and if necessary, holds a
hearing to determine its likely relevance and whether its production is
necessary in the interests of justice.
[42]
Here, the trial judge concluded that the appellant
had not satisfied the first stage, i.e., that the record was likely relevant.
She therefore did not need to proceed with the next steps of the process.
[43]
At trial, the appellant relied on the reasons
enumerated in ss. 278.3(4)(a), (c), (d), (e) and (k) of the
Criminal
Code
to establish likely relevance, based on the following three statements in the
CAS letter:
1.
CAS investigated a report that the defendant engaged in sexual
activity with a child while in a care giving role.
2.
The concern that the defendant was engaged in abusive sexual
activity with a child while in a care giving role has not been verified.
3.
The society was unable to verify the concerns as it was found that
you were not in a caregiver role of the child at the time of the alleged incident.
[44]
Based on these statements, the appellant argued
that the record was necessary to make full answer and defence because it
established that (1) witnesses were interviewed by the CAS, and their
statements could be used to impeach their credibility; (2) the complainants allegation
was not verified by the CAS; and (3) material representations were made to the
CAS by the complainant or a witness.
[45]
The trial judge found that the defence had not
met its onus for three reasons. First, the letter did not say that the CAS had
found no merit in the complainants allegation, but only that it could not
verify that the appellant was in a caregiving role at the time of the incident.
Second, there was no basis to conclude that the CAS had interviewed the
complainant or other Crown witnesses. Third, even if the CAS record contained statements
from the complainant or other Crown witnesses, the defence had the ability to
obtain the same evidence from other sources. In particular, the appellant had
access to members of his family who were at home with him during the alleged
incident, and to the statements provided by the complainant and the other Crown
witnesses.
[46]
On appeal, the appellant argues that the trial
judge erred in the likely relevance analysis by treating the CAS record as having
the same degree of privacy protection as counselling records.
[47]
In
Mills
, at paras. 136-137, the Supreme
Court held that the nature of the records provides trial judges with the
informational foundation to assess the privacy interest at issue. Counselling
records have been recognized as extremely private because of the trust involved
in the counselling relationship and the subjective nature of the disclosures.
[48]
In contrast, the record at issue here was the
result of a targeted CAS investigation. If the complainant was interviewed, it
was with respect to the very incident that is the subject of the charges
against the appellant. The trial judge considered this same argument by the
defence, regarding the lower level of privacy in CAS records than in counselling
records, in the context of whether production was necessary in the interests of
justice. The trial judge appeared to reject the submission, observing that CAS
records regarding an alleged sexual assault can contain very private
information about a complainant and their family. Nevertheless, the trial judge
concluded that had she found likely relevance, then in the interests of
justice, she would have been inclined to order the production of the CAS record
for inspection by the court given the narrow scope of the request for records
only involving the defendant.
[49]
I would accept the submission of the appellant.
Given that any statement by the complainant to the CAS, if she made one, would
have related to the allegations in this case and would not have been of a
therapeutic nature, the privacy interest in the record is not as high as in counselling
records. If there was any such statement, it was reasonably possible that it
would be logically probative of an issue at trial. In those circumstances, the
trial judge stated that had she found likely relevance, she would have ordered
production for review by the court in the interests of justice. In my view, that
is the correct approach for the new trial.
E.
Conclusion
[50]
For the above reasons, I would allow the appeal,
set aside the convictions, and order a new trial.
Released: August 3, 2021 K.F.
K. Feldman J.A.
I agree. P. Lauwers JJ.A.
I agree. Gary Trotter J.A.
[1]
In
R. v. Bartholomew
, 2019 ONCA 377, 375 C.C.C. (3d) 534, at
para. 25,
Trotter J.A.
observed that the lack of evidence of a motive to
fabricate should be used as a neutral factor for assessing the credibility of
the complainant. Paciocco J.A. reiterated the same point in
R. v. S.H.
,
2020 ONCA 34, at para. 11:
[11]
Moreover, it is inadmissible for a trial Crown,
without proving affirmatively that a complainant did not have motive to
mislead, to argue in substance that the absence of a known motive to mislead
adds to the weight of her testimony:
R. v. Bartholomew
,
2019 ONCA 377
, 375 C.C.C. (3d) 534, at paras.
22-23
. Where this occurs, the trial judge must
direct the jury that this reasoning is not permissible:
R. v. M.B
.
,
2011 ONCA 76
, 267 C.C.C. (3d) 72, at paras.
30-32
. Reasoning in this way undermines the
presumption of innocence by reversing the burden of proof and fails to
recognize that motives to mislead can be hidden:
R. v. L.L.
,
2009 ONCA 413
, 96 O.R. (3d) 312, at paras.
16
, 44.
The
court clarified the reasoning for this principle of law in
R. v. A.S.,
2020 ONCA 229, at paras. 58-60:
[58] Where, as here,
a suggested motive to mislead is disproved, the testimony is preserved from
being impugned by such motive. When that suggested motive is disproved, it is
as though the suggested motive is knocked off of the scales.
[59] However,
affirmative weight cannot properly be added to the scales in favour of the
testimony of a witness unless there is a proved absence of motive on the part
of that witness: see, generally,
R. v. Bartholomew
, 2019 ONCA 377, 375
C.C.C. (3d) 534, at paras. 22-23;
R. v. M.B.
, 2011 ONCA 76, 267 C.C.C.
(3d) 72, at paras. 30-32;
R. v. L.L.
, 2009 ONCA 413, 96 O.R. (3d) 412,
at paras. 16, 44. Disproving a single suggested motive to mislead such as a
desire to win custody and access does not prove the absence of
any and all
motives to mislead.
[60] Accordingly, the
trial judges rejection of the sole motive considered for the complainants
testimony cannot add affirmative weight supporting the complainants claim that
she was not consenting. It is not capable in law of being a makeweight
affirmatively supporting her testimony. [Emphasis in original.]
|
COURT OF APPEAL FOR ONTARIO
CITATION: D.C. v. T.B., 2021 ONCA 562
DATE: 20210804
DOCKET: M52687
van
Rensburg J.A. (Motions Judge)
BETWEEN
D.C.
Moving Party
and
T.B.
Responding Party
Michael J. Stangarone and Aria MacEachern,
for the moving party
Christina Doris and Jessica Luscombe, for the
responding party
Heard and released orally: August 3, 2021 by
videoconference
ENDORSEMENT
[1]
The moving party seeks an extension of time to
appeal the final order of Conlan J. with respect to parenting of the parties
daughter, R., who is almost 12 years old. She also seeks to stay the final
order pending appeal. The motion is opposed by the responding party, who is
R.s father.
[2]
I will deal with each aspect of the motion in
turn.
The Extension of Time to Appeal
[3]
The mother was three days late in serving her
notice of appeal. She sought consent from the father to the late filing of the
notice of appeal, which was refused. Courts can extend time under r. 3.02 of
the
Rules of Civil Procedure
. In general, the following factors are
relevant to a motion to extend time to appeal: (1) whether the appellant formed
an intention to appeal within the relevant period (in this case 30 days after
the final order); (2) the length of, and explanation for, the delay; (3)
prejudice to the respondent; (4) the merits of the appeal; and (5) ultimately,
whether it is in the interests of justice to order the extension of time. In
cases involving children, the justice of the case is reflected in the best interests
of the children:
Denomme v. McArthur
, 2013 ONCA 694, at para. 10.
[4]
The mother states in her affidavit that she
formed the intention to appeal within the requisite time. She explains that the
delay resulted from a combination of the traumatic effect of the final order
and the time that was required to retain appellate counsel. The motion was
brought promptly.
[5]
The father opposes the motion for an extension
of time, asserting that the mother waited until she received his costs
submissions before deciding to appeal. He asserts that he is prejudiced, in
part because the mother has failed to pay her share of the costs of the Family
Bridges program. He asserts that the merits of the appeal are weak.
[6]
I am satisfied that an extension of time is in
the interests of justice.
[7]
The mother had a right to appeal the final order
of the trial judge and the right to seek leave to appeal the award of costs.
The final order reverses custody of R. and prevents the mother from having any
contact with R. for a period of time, and the mother is subject to an award of substantial
indemnity costs. The mother was only three days late in serving her notice of
appeal. Even if she decided to appeal only after she received the fathers
costs submissions, she formed the intention to appeal within 30 days of the
final order. The final order has been implemented to the extent that R. is
residing with her father, and they are participating in the After Care program.
R.s contact with her mother is suspended. Other than the mothers non-payment
of her share of the Family Bridges program required under para. 20 of the final
order (it is a financial provision that would be stayed on appeal), the mother
has complied with the final order. The therapists have indicated that her
involvement in the After Care program is suspended during her appeal.
[8]
I am not prepared to say that there is no
potential merit to this appeal. In view of the very short delay, the strength
of the proposed appeal is not a compelling factor in this case. The mother has
a right to appeal the final order and a three-day delay should not prevent her
from doing so.
Stay Pending Appeal
[9]
Custody and access orders remain in effect
pending an appeal to this court unless the court has ordered otherwise. In
determining whether to stay an order involving the parenting of a child, the
courts must consider: (1) whether, on a preliminary assessment, the appeal
raises a serious question (recognizing that this is a low threshold); whether
the child will suffer irreparable harm if a stay is refused; and (3) the
balance of convenience: namely whether there would be greater harm from the
granting or refusal of a stay pending a decision on the merits of the appeal.
The overriding consideration, again, is the best interests of the child. In
other words, the court must be satisfied that it is in the childs best
interests to grant a stay:
K.K. v. M.M
., 2021 ONCA 407, at para. 17
and
Lefebvre v. Lefebvre
, 167 O.A.C. 85 (C.A.), at para. 6.
[10]
The standard for appellate review of a custody
or parenting decision is exacting:
Bors v. Bors
, 2021 ONCA 513, at
paras. 18-20. The function of this court is not to retry the case on appeal.
Intervention is warranted only if there is a material error, a serious
misapprehension of the evidence, or an error of law. The mother contends that
there are a number of errors in the trial judges decision, and accordingly
that the appeal raises a serious issue. Among other arguments, she asserts that
the trial judge erred in the scope and application of the expert evidence of
the joint participant expert, Dr. Fidler.
[11]
The mothers argument about irreparable harm
essentially focuses on her temporary separation from the child and its effect
on both her and the child.
[12]
The father argues that the mothers appeal lacks
merit, but even if there were some arguable merit to the appeal, that a stay is
not in the best interests of R., who is continuing to benefit from the current
therapeutic program and the opportunity (which will continue throughout the
summer) to rebuild a relationship with her father and his family. The father
also points to the disruption and additional costs that would be incurred in
stopping and restarting the therapeutic program, if a stay were granted and the
mother were to lose her appeal.
[13]
In this case, as in
K.K. V. M.M
., staying
[the final order] would not preserve the
status quo
, but would
disassemble the structure the trial judge put in place and replace it with the
very circumstances [he] found not to be in [the childs] best interests; it
would run the risk of undoing the very benefits that the trial judge fashioned
the Order to achieve: at para. 28.
[14]
I am not persuaded that a stay of the final
order pending appeal is in the best interests of R. The reasons of the trial
judge are comprehensive and reveal no
obvious
error. The grounds of
appeal may be arguable, but they are weak. What the mother is seeking is a
return to the
status quo
before the final order was made. She seeks to
have R. return to live with her, ending the current living arrangements and the
suspension of her contact with R. She seeks to stop the process which started
on the day the final order was made. The letter from the therapists (prepared
at the fathers request) notes that R. is adjusting to the transition and that the
family is receiving appropriate support in the process. No doubt R. misses her
mother. However, she is benefiting from the restoration of her relationship
with her father. There is no question about the level of care she is receiving.
Since there is no evidence of significant harm or risk of harm to R. as a
result of the order, and evidence of benefit to R. in continuing to have the
order in effect, to stay the order under appeal would be highly disruptive to
R. under appeal and would not be in her best interests.
[15]
Finally, before ending these reasons, I note
that the mother was complying with the final order by doing what was required
to participate in the After Care program until the therapists indicated that
they would not continue while an appeal is pending. Her counsel advises that she
continues to be prepared to participate in therapy. Pursuant to para. 19 of the
final order the parties are returning to the trial judge on September 15, 2021.
The parties are agreeable to expediting the appeal. All of this is helpful and
no doubt in R.s best interests.
[16]
For these reasons, the motion to extend time to
appeal is granted, and the stay pending appeal is refused. The appeal shall be
perfected on or before August 20, 2021 and the hearing of the appeal shall be
expedited. On consent of the parties, an order is made to use initials in place
of the names of the parties and the child in these reasons and the order of
this court. As agreed between the parties, and to reflect the divided success,
there will be no costs of this motion.
K. van Rensburg J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Calin v. Calin, 2021 ONCA 558
DATE: 20210805
DOCKET: C67175
Tulloch, Nordheimer and Jamal JJ.A.
BETWEEN
Ilinca Calin and Ana Calin
Plaintiffs (Respondents/
Appellants by way of cross-appeal)
and
Liviu Calin
Defendant (Appellant/
Respondent by way of cross-appeal)
Andréa Baldy, for the appellant/respondent by way of cross-appeal
Alexander C. Gibson and Charles M. Gibson, for the
respondents/appellants by way of cross-appeal
Heard: April 8, 2021 by video conference
On appeal from the judgment of Justice Sally A. Gomery of
the Superior Court of Justice, dated June 7, 2019 with reasons reported at 2019
ONSC 3564 and from the costs order dated July 16, 2019 with reasons reported at
2019 ONSC 4313.
Jamal J.A.:
[1]
After a three-week trial, the appellant, Liviu Calin, was found liable
for assault, battery, negligence, and breach of fiduciary duty for physically
and emotionally abusing his twin daughters, the respondents, Ilinca and Ana Calin.
The respondents claims for intentional infliction of mental distress and
wrongful imprisonment were, however, dismissed. The appellant was ordered to
pay the respondents a total of $85,000 as general damages and $20,000 as
punitive damages.
[2]
The appellant now appeals the findings of liability and the quantum of
damages awarded at trial. The respondents cross-appeal the dismissal of their
claim for intentional infliction of mental distress and the quantum of damages.
[3]
In my view, the parties largely seek to relitigate the trial judges
factual findings, credibility findings, and assessment of the evidence. I see
no basis to do so. For the reasons that follow, I would dismiss the appeal and
cross-appeal.
Background
[4]
The respondents were born in Romania and moved to Ottawa in 1994 with
their father (the appellant) and mother. In 1999, the respondents mother was
diagnosed with cancer. She died about a year later, just as the respondents
were entering high school. In 2002, the appellant began a romantic relationship
and moved in with another woman, leaving the respondents in the family home alone.
In 2004, the respondents graduated from high school and began university. They continued
to live in the family home until March 2005.
[5]
On March 26, 2005, the appellant went to the family home to have Easter
dinner with the respondents. An argument and physical confrontation ensued. The
respondents fled the home and sought refuge with the family of Ilincas
boyfriend. The next day, the respondents filed a police report, alleging that
the appellant had assaulted them, but they decided not to press charges.
[6]
In 2012, the respondents sued the appellant for assault, battery,
negligence, breach of fiduciary duty, intentional infliction of mental
distress, and wrongful imprisonment. They alleged that, on March 26, 2005, the
appellant beat them violently and threatened Ana with a knife. They said that the
March 26, 2005 incident was the culmination of a lifetime of physical and
emotional abuse by the appellant. They claimed he beat them often, called them
degrading names, isolated them from their peers and maternal relatives, and
controlled their activities. They said the abuse caused them to suffer post-traumatic
stress disorder (PTSD), depression, and anxiety, resulting in their inability
to continue their education or obtain employment at the level they otherwise would
have achieved. The appellant denied ever having physically or emotionally
abused the respondents.
The trial decision
[7]
The trial judge found the appellant liable for assault, battery,
negligence, and breach of fiduciary duty, but not liable for intentional
infliction of mental distress and wrongful imprisonment. She awarded general
damages of $50,000 to Ilinca and $35,000 to Ana and punitive damages of $10,000
to each of them.
[8]
In thorough reasons, the trial judge acknowledged that determining what
happened was challenging because most incidents were alleged to have occurred
during the respondents childhood or adolescence, between 14 and 30 years ago, when
they were alone with the appellant or their mother. No medical records documented
the alleged physical injuries. The credibility of the central witnesses the
appellants, the respondents, and their grandmother was thus a critical issue
at trial.
[9]
Based on the totality of the evidence, the trial judge accepted the respondents
accounts about certain incidents prior to March 26, 2005 as credible and
largely accept[ed] their account of what happened that day, which reinforce[d]
the plausibility of their allegations of earlier physical violence. She found that
the appellant was physically violent towards the respondents nine times between
1994 and 2005. She concluded that the appellants acts exceeded the reasonable
discipline that parents may impose on their children. He had slapped them,
punched them, pulled their hair, and beat them with a belt at least once. One
time, he slapped Anas face, dragged her by the hair, punched her in the
stomach, and threatened to hit her with a wooden beam. Another time, he hit Ilinca
with a wooden broom. The trial judge also found that, on March 26, 2005, the
appellant slapped and spanked the respondents and pulled their hair, punched
Ana, held a steak knife to her throat, called her a fucking bitch, and
threatened to kill her.
[10]
Even
so, the trial judge found that the appellant did not socially isolate the
respondents or control all their activities. She also concluded, based on the
expert evidence, that the respondents had not proved the appellants conduct
caused them to suffer from psychiatric disorders. Finally, she concluded that
the respondents had not proved loss of income or competitive advantage because
of the appellants actions.
Issues
[11]
On
the appeal, the appellant asserts that the trial judge made palpable and
overriding errors in her factual findings and credibility assessments and erred
by awarding inordinately high damages.
[12]
On
the cross-appeal, the respondents argue that the trial judge erred in finding that
they did not prove that the appellants actions caused their psychiatric
conditions, awarded inordinately low damages, and should have awarded damages for
the loss of competitive advantage.
Issue #1: Did
the trial judge err in her factual findings or credibility assessments?
[13]
The
appellant argues that the trial judge made palpable and overriding errors in her
factual findings underlying the appellants tort liability.
[14]
First,
the appellant argues that the trial judge misapprehended the evidence by
failing to consider and give sufficient weight to relevant evidence in
assessing the respondents credibility. He highlights inconsistencies between the
witnesses accounts of the incidents and between the respondents trial and
discovery evidence, and the absence of contemporaneous evidence corroborating their
alleged physical or psychological injuries. He asserts that the trial judges
failure to address these inconsistencies was a reversible error.
[15]
I
disagree.
Inconsistencies in a witnesss evidence, even absent
corroborative evidence, do not open the door to appellate review of a trial
judges credibility findings:
F.H. v. McDougall
, 2008 SCC 53, [2008]
3 S.C.R. 41
, at paras. 70, 72, and 75-76. A trial judge may place
less weight on certain evidence and accept other, conflicting evidence
that
they find more convincing. An appellate court cannot intervene
just because it would weigh the evidence differently and arrive at alternative factual
findings:
Salomon v. Matte-Thompson
, 2019 SCC
14, [2019] 1 S.C.R. 729, at para. 33;
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 58.
[16]
Moreover,
a trial judges
credibility findings attract heightened
deference:
R. v. G.F.
, 2021 SCC 20,
71 C.R. (7th) 1, at para. 81;
McDougall
, at para. 72.
A trial judge need not
find a witness not credible or unreliable because of inconsistences in the witnesss
evidence. If the trial judge was alive to the inconsistencies, assessed the
witnesss credibility in
the context of
the evidence
as
a whole,
and concluded that the witness was credible, absent
palpable and overriding error, there is no basis for an appellate court to
interfere:
McDougall
, at paras. 70, 75-76.
[17]
Here, in my view, the trial judge was alive to the inconsistencies
in the respondents evidence. She highlighted those inconsistencies throughout
her reasons, rejecting aspects of their evidence and accepting others, or
finding the evidence insufficient to conclude one way or another. She did not
have to expressly reconcile every inconsistency arising from the respondents
evidence: see
R. v. R.E.M.
, 2008 SCC 51, [2008]
3 S.C.R. 3, at paras. 32, 64;
R. v. A.M.
, 2014
ONCA 769, 123 O.R. (3d) 536, at para. 14.
[18]
For example, because of
the witnesses significantly
divergent accounts of two incidents that occurred between 1994 and 2000, the
trial judge could not determine precisely what had happened. Although she found
that the appellants exact words and actions were in doubt, considering the
overall accounts of the respondents and their grandmother and the appellants
testimony and demeanour at trial, she concluded that the appellant had lashed
out physically and verbally at the respondents on both occasions
.
[19]
Similarly,
the trial judge expressed doubts about certain aspects of the evidence of the
incident on March 26, 2005 that she found concerning, such as the absence of
any mention of the knife in the police report and the embellished account given
by the respondents to Ilincas boyfriends father right after the incident. Having
considered these concerns in the context of all the evidence, the trial judge accepted
that the appellant threatened Ana with a knife but found that the appellants
violence was much less extreme than what the [respondents] described.
[20]
As
these examples illustrate, the trial judge carefully considered the
inconsistencies in the context of the evidence as a whole, with the benefit of
the intangible impact of watching and listening to [the] witnesses and
attempting to reconcile their evidence, and ultimately accepted aspects of the
respondents evidence while rejecting others:
G.F.
, at para. 81;
R.
v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20. I see no
palpable and overriding error in the trial judges approach or conclusions.
[21]
Second,
the appellant asserts that the trial judge erred by failing to address concerns
about the respondents reliability, focusing only on their credibility.
[22]
I
do not accept this submission. A trial judges determination to accept a
witnesss evidence includes an implicit assessment of its accuracy or
reliability. T
he trial judge is presumed to have correctly
applied the law in accepting a witnesss evidence, including the relationship
between credibility and reliability:
G.F.
,
at para. 82. Assessing reliability is within the province of the trial judge
who has the opportunity to hear and observe all of the witnesses:
R. v.
Slatter
, 2019 ONCA 807, 148 O.R. (3d) 81, at para. 118,
per
Pepall
J.A. (dissenting), affd 2020 SCC 36.
If the trial judge was
alive to reliability concerns, considered those concerns, and assessed the
witness's reliability and credibility, the trial judge's assessment attracts deference:
R. v. Sanichar
, 2012 ONCA 117, 280 C.C.C. (3d)
500, at para. 82,
per
Laskin J.A.
(dissenting), affd, 2013 SCC 4, [2013] 1 S.C.R. 54.
[23]
Here,
the trial judge was sensitive to the reliability concerns arising from the
respondents evidence. She raised concerns about their ability to recall
incidents that took place when they were children or teenagers, their coloured
view of the appellant, their tendency to describe emotional memor[ies] reflecting
an amalgamation of events rather than a specific incident, and to repeat
family folklore consisting of reconstructed accounts of events that they did
not recall clearly but had told themselves and others over many years. The trial
judge observed that the respondents may have confused the details of some
incidents because the appellant had been violent with them many times. When these
concerns warranted, the trial judge rejected their evidence as an example of
how [they] may have reconstructed events to impute the [appellant] with more
extreme and consistently abusive conduct than the evidence otherwise indicates.
She cautioned herself that, to find the appellant liable, she must be
persuaded that [the respondents] evidence is based on genuine recollection as
opposed to the memory of a memory, tailored over time to suit a certain
narrative.
[24]
That
the respondents did not remember certain particulars of the incidents or
remembered certain particulars incorrectly did not oblige the trial judge to
disregard their evidence or conclude that they were lying. She found that the
respondents were sincere and were honestly attempting to recall what
happened to them. It was open to her to not accept the respondents evidence
about certain details because of her reliability concerns and to accept their
evidence about other aspects. I see no error in the trial judges treatment of the
reliability concerns arising from the evidence.
[25]
Third,
the appellant argues that the trial judge ignored credibility concerns about
certain aspects of the respondents evidence, which he says undermined their evidence
as a whole.
[26]
I
do not agree with this submission. As with the reliability concerns discussed
above, the trial judges credibility concerns did not oblige her to reject all the
respondents evidence. Even after raising
credibility concerns
about some aspects of their evidence, it was open to her to find them credible
and reliable on other aspects. She
was entitled to accept
some, all, or none of their evidence: see
R.E.M.
, at para. 65;
R. v. N.K.
, 2021
ONCA 13, at para. 11; and
R. v. A.K.
, 2018
ONCA 567, at para. 7.
[27]
The
trial judges reasons show that she considered the credibility concerns arising
from the respondents evidence and rejected evidence that she did not find
credible. She was entitled to assess the respondents credibility in light of all
the evidence, including the appellants admissions of having physically
punished the respondents twice. I see no reviewable error in the trial judges
credibility findings.
[28]
Finally,
the appellant asserts that the trial judge reversed the burden of proof and applied
uneven scrutiny to the evidence.
[29]
I
do not agree. The trial judges reasons show that she understood and applied
the correct law on the burden and standard of proof. She is presumed to have
applied the correct burden and standard, unless the appellant establishes reviewable
error: see
McDougall
, at para. 54. In my view, the appellant has failed
to do so.
Issue #2: Did
the trial judge err in finding that the respondents had not proved that the
appellants acts caused their psychiatric conditions?
[30]
The
respondents argue on cross-appeal that the trial judge made a palpable and
overriding error by failing to draw a common sense inference that their psychiatric
conditions were caused by the appellants abuse and improperly relying on the evidence
of the appellants expert rather than on their experts evidence.
[31]
I
see no reviewable error in the trial judges causation analysis. Whether an
inference of causation is warranted is within the trial judges discretion, to
be determined with reference to all of the evidence:
Benhaim v. St-Germain
,
2016 SCC 48, [2016] 2 S.C.R. 352, at para. 52. Such an inference must be
reasonably available on the evidence and involves a consideration of the
factual issues underlying causation and the relative position of each party to
adduce evidence:
Ediger v. Johnston
, 2013 SCC 18, [2013] 2 S.C.R. 98,
at para. 36;
Goodwin v. Olupona
, 2013 ONCA 259, 305 O.A.C. 245, at
paras. 44-46.
[32]
Here,
both parties led expert evidence on causation. The respondents expert was
equivocal. He testified that it was plausible that the respondents psychiatric
conditions were caused by the appellants abuse. He acknowledged that the circumstances
of the respondents mothers death, of which he had been unaware when he formed
his opinion, could also have triggered PTSD in the respondents. The trial judge
found that this expert had limited experience in diagnosing PTSD and that his
assessment was based on a review of the respondents records and a two-hour
video conference with them. She therefore gave this experts evidence less
weight.
[33]
The
trial judge preferred the evidence of the appellants expert because of her
experience and training as a forensic psychiatrist, which the respondents
expert lacked. The appellants expert testified that it was impossible to
determine whether the respondents conditions were triggered by the appellants
abuse, by their mothers death, or by a biological predisposition.
[34]
The
trial judge, with the benefit of watching and hearing the witnesses, also noted
that she was struck
by how much Ilinca was visibly affected by memories of
her mothers death. In her view, this loss [had] as profound an effect on
[Ilinca] as [the appellants] abuse. She also noted that the respondents had
exaggerated the extent of the appellants physical and emotional abuse in their
interviews with both expert witnesses.
[35]
The
trial judge weighed the evidence of both experts, in view of all the other
evidence before her, and preferred the evidence of the appellants expert. She declined
to infer causation and concluded that the respondents had not proved that their
psychiatric disorders were caused by the appellants actions. The trial judges
weighing of the expert evidence attracts appellate deference: see
Hacopian-Armen
Estate v. Mahmoud
, 2021 ONCA 545, at paras. 66-68. I see no basis for this
court to intervene.
Issue #3: Did the trial judge err in her assessment of
damages?
[36]
The
appellant argues that the damages awarded are inordinately high compared to the
awards in other domestic assault and battery cases.
[37]
By
contrast, the respondents argue that the damages awarded are inordinately low.
They assert that their difficulties in life are attributable to the abuse they
suffered at the hands of the appellant and ask this court to increase the
quantum of general damages awarded to Ana from $35,000 to $100,000 and to Ilinca
from $50,000 to $125,000.
[38]
The
respondents also argue that the trial judge erred in not awarding damages for
their loss of competitive advantage, despite evidence that the abuse hurt their
ability to pursue their chosen vocations and work in competitive environments. The
respondents seek $300,000 each for their loss of competitive advantage.
[39]
An
appellate court can interfere with a damages award only if the trial judge made
an error in principle, misapprehended the evidence, failed to consider relevant
factors, considered irrelevant factors, made an award without any evidentiary
foundation, or made a wholly erroneous assessment of damages:
Armstrong v.
Moore
, 2020 ONCA 49, 15 R.P.R. (6th) 200, at para. 30.
[40]
In
my view, neither the appellant nor the respondents meet the exacting standard
for appellate intervention. The case law and evidence now relied on by the parties
were canvassed and considered by the trial judge in her reasons. The trial
judge considered that the appellants violence did not result in permanent
physical injury to the respondents, while also recognizing the seriousness of
the emotional and psychological scars that the respondents will bear their
entire lives. She acknowledged that the respondents had suffered pain and
fear that a child should never experience, much less at a fathers hands. She also
considered the evidence of the impact of the abuse on the respondents,
including their social, educational, employment, and health history and current
situation. The trial judge considered and weighed all the relevant evidence and
came to her own determination of the appropriate damages. I see no basis for
this court to intervene.
[41]
I
similarly see no basis to reverse the trial judges finding that the
respondents are not entitled to damages for loss of competitive advantage. There
is no dispute that the trial judge correctly articulated the criteria for such an
award. She found, however, that the respondents failed to meet the applicable criteria.
She found that [t]here is no evidence that [the respondents] have been less
able to get or keep a job, or have lost out on employment opportunities, as a
result of the psychological and emotional impact of their experiences with [the
appellant]. Those findings were available to the trial judge on the record
before the court. I again see no basis for this court to intervene.
Disposition
[42]
I
would dismiss the appeal and the cross-appeal. Given the divided success, I
would make no order as to costs.
Released: August 5, 2021 M.T.
M. Jamal J.A.
I agree. M. Tulloch
J.A.
I agree. I.V.B.
Nordheimer J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Dreesen v. Dreesen, 2021 ONCA 557
DATE: 20210805
DOCKET: C68996
Fairburn A.C.J.O., Harvison Young and Jamal JJ.A.
BETWEEN
Tracey Catherine Dreesen
Applicant (Respondent)
and
Stefan Siegfried Dreesen
Respondent (Appellant)
Gary S. Joseph and Julia McArthur, for the appellant
Victoria E. Craig, for the respondent
Heard: June 10, 2021 by video conference
On appeal from the order of
Justice Michael R. Gibson of the Superior Court of Justice, dated December 22,
2020.
Harvison Young J.A.:
[1]
The appellant father appeals from the dismissal of his motion to
decrease the quantum of the child and spousal support payable to the respondent
mother on the basis that the loss of his job in July 2017 had been a material
change and that his subsequent income had dropped significantly. He also
appeals from the motion judges refusal to terminate spousal support.
[2]
The central issues in this appeal are whether the motion judge erred in imputing
the fathers pre-tax corporate income in calculating his income available for
support, and whether he erred in ordering step-down spousal support rather than
terminating spousal support as the father sought.
[3]
The relevant facts may be briefly summarized. The parties were married
in 2000 and separated in 2012. The parties minutes of settlement on child and
spousal support were reflected in the consent order of Miller J. dated August
2, 2017, although the minutes of settlement had been executed earlier in April
2017. The order of Miller J. provided that, among other things:
·
both parties would pay set-off table child support in accordance
with the
Federal Child Support Guidelines
, S.O.R./97-175 (CSG), based
on the fathers income per his notice of assessment of the previous year or
that may otherwise be imputed to him and based on the greater of the mothers actual
income or $48,000;
·
in the event of a material change in circumstances, either party could
seek a variation of the child support arrangements;
·
the parties would adjust child support on a going forward basis every
year based on their respective incomes in the prior year, the living
arrangements of the children, and the CSG;
·
the father would pay the mother compensatory spousal support in
the amount of $4,292 per month based on the mothers imputed income of $48,000
and the fathers annual income of $257,312;
·
spousal support could be changed if there is a material change in
circumstances, even if the change was foreseen or foreseeable; and
·
there would be a review of spousal support in October 2019, which
would be an assessment of the mothers efforts to become self-sufficient.
[4]
When the parties entered their minutes of settlement, the father was
employed by Yellow Pages, but he had also started his own business in 2012,
Volt Media Inc., which acquired another corporation, Smart Workplace Inc., in
2018. He was laid off from Yellow Pages in July 2017. He commenced a motion to
change on June 28, 2019 which was ultimately heard on September 1, 2020 on the
basis of affidavit evidence. In the meantime, he had unilaterally reduced
support to reflect what he claimed his actual income was at that point. In his
motion, he sought to have his child and spousal support reduced retroactively and
going forward and to terminate spousal support.
[5]
The motion judge found that the father had not demonstrated a material
change in circumstances warranting a retroactive or ongoing reduction in child
support. The fathers employment with Yellow Pages ended in July 2017, prior to
the date of Miller J.s order, and it was known at that time. Further, the
father continued to have significant self-employment income available for
support. The motion judge accepted the mothers submission that the fathers
income had actually increased since the date of Miller J.s order. It was
appropriate to add back the pre-tax corporate income and any unreasonably
deducted expenses to the fathers income for child support purposes in this
case, where the father was the sole shareholder and director of two
corporations and had complete control over the income that he was paid. The
motion judge determined that it was also appropriate to average the last three
years of the fathers income from 2017-2019, such that his average income was
$401,534.67. The total amounts of the fathers child support arrears and
spousal support arrears were $81,407 and $52,626, respectively.
[6]
For child support going forward, the motion judge ordered that the
father pay set-off table child support based on incomes of $401,502 imputed to
the father and $48,000 imputed to the mother. The motion judge also found that
the mother had made efforts to become self-sufficient but that she continued to
have need for support. He noted that the mother was agreeable to a step-down
and ultimate termination of spousal support and that step-down support would
best balance her ongoing entitlement to compensatory and needs-based support
with the need for her to transition to full self-sufficiency. He ordered the
full spousal support amount of $4,292 per month for the year following the
October 2019 review date, followed by a three-year step down and termination of
spousal support after a final payment in September 2023.
[7]
The appellant father alleges a number of errors that he says warrant
allowing the appeal and granting the relief he claimed in his motion to change:
1.
The
determination that the fathers change in financial circumstances did not
constitute a material change given the language in Miller J.s order that a
change may be foreseen;
2.
The
imputation of pre-tax corporate income;
3.
The
averaging of the fathers income;
4.
The
failure to terminate spousal support; and
5.
The
determination of the motion on a written record alone.
[8]
I will address them in turn.
(1)
Material change
[9]
First, I do not agree that the motion judge erred in finding that there
was no material change to warrant a variation of child support as requested by
the father. As the Supreme Court made clear in the recent decision of
Colucci
v. Colucci
, 2021 SCC 24, where the payor applies to retroactively decrease
child support, the onus is on the payor to establish a past material change in
circumstances, such as a material decrease in income: at paras. 59-63, 113. Although
the father is correct that the loss of his employment actually took place around
three months after the final minutes of settlement were negotiated in April
2017, despite the fact that the Miller J. order reflecting the agreement was
not issued until August 2 of that year, this is not a material misapprehension
of evidence in light of the other reason given for the motion judges decision:
his income did not, in fact, go down. The father did not meet the threshold
requirement for a retroactive decrease in support.
[10]
Further,
even if the motion judge had erred in finding that there was a material
increase in the fathers income, rather than a decrease, a court would need to
take into account the fathers disclosure to the mother in determining the
appropriate date of retroactivity, given the fathers request for a retroactive
decrease to August 2017:
Colucci
, at paras. 86-90, 95, and 113. The
father had notified the mother of his lay off and 12 weeks of termination
compensation in July 2017. However, in these circumstances where the father had
been building a business, it is difficult to see how this could have
constituted effective notice, given his failure to provide any disclosure of
his corporate income at that point: see
Colucci
, at paras. 87-90, 113.
(2)
Imputation of corporate pre-tax income
[11]
Second,
the father says that the motion judge erred in his application of s. 18 of
the CSG, which provides that where a spouse is a shareholder, director or
officer of a corporation and the court is of the opinion that the spouses
annual line 150 total income does not fairly reflect all the money available to
them for the payment of child support, a court may add all or part of the corporations
pre-tax income to the payors income. He argues that his line 150 income should
have been used instead and that he provided evidence that it was not
appropriate to add Volt Media Inc.s pre-tax corporate income to his income.
[12]
I
do not agree that the motion judges acceptance of the mothers position that
all of the pre-tax corporate income from both corporations, and unreasonably
deducted expenses, should be added was unfair in these circumstances. I see no
error in the motion judges finding that his line 150 income did not accurately
reflect his actual income. The father also did not lead sufficient evidence to
explain why either corporation needed to retain earnings. In the cases to which
he refers, such as
Bravo v. Pohl
(2008), 62 R.F.L. (6th) 209 (Ont.
S.C.) and
Koester v. Koester
(2003), 50 R.F.L. (5th) 78 (Ont. S.C.), the
payors led extensive and expert evidence on the issue.
[13]
Here,
the motion judge had no evidence or documentation other than the limited
disclosure of the father to ground a broader consideration of the nature of the
corporations business and had no evidence of legitimate calls on its
corporate income for the purposes of that business: see
Kowalewich v.
Kowalewich
, 2001 BCCA 450, 92 B.C.L.R. (3d) 38, at para. 58;
Thompson
v. Thompson
, 2013 ONSC 5500, at paras. 91-93. The fathers explanations for
retaining income and business expenses were related to only Volt Media Inc. and
lacked detail or expert evidence.
[14]
He
stated that he had to pay staff and that it would not be wise to pay all the
revenue to himself as dividends or salary. He explained that cumulative
retained earnings from 2012-2018 of around $960,000 were needed for corporate
tax, an asset purchase of newsletters and subscriptions, cash reserve for
payroll, a future company office, and nearly $300,000 in disbursements to his father.
On appeal, he clarified that those dividends to his father were actually paid
to himself. His breakdown of the cumulative retained earnings from 2012-2018 and
his general statement about paying staff lacked supporting evidence and did not
adequately explain why or how much corporate income from 2017 onward needed to
be kept in Volt Media Inc.
[15]
Similarly,
his statement that his business expenses listed were reasonable was bald and
conclusory, and it did not address the specific issues raised in the mothers
affidavit. For example, she submitted that adding back half of the telephone
and internet expenses to the fathers income would be reasonable, given that he
worked from home.
[16]
The
father also argues that the motion judge failed to set out the what, the why,
and the how of his decision to impute pre-tax corporate income. While we agree
that the motion judges reasons are somewhat lean, we are of the view that in
light of the record as a whole, it is clear why and how the motion judge
reached the conclusions that he did: see
R. v. G.F.
, 2021 SCC 20, 71
C.R. (7th) 1, at paras. 69-71. The issues of adding back pre-tax income and certain
other expenses were squarely before the motion judge and he was alive to the
issues, especially given the mothers extensive affidavit evidence and
submissions on the fathers corporate pre-tax income and expenses. It was open
to the motion judge to consider all the evidence of the parties and make a
determination on imputing this income. The observations in
Mason v. Mason
,
2016 ONCA 725, 132 O.R. (3d) 641, at para. 170, are equally applicable here:
Neither party led much evidence,
be it expert or otherwise, concerning the question of what, if any, amount of
pre-tax corporate income should be included in the husbands income. As such, a
court is left to do its best to resolve the issue with the evidence that is
available. This is also consistent with achieving a just, expeditious and least
expensive determination of the parties dispute.
(3)
Averaging income
[17]
Third,
I do not agree that the motion judge erred in averaging the fathers income
over the past three years for the purposes of ongoing child support calculations.
The father argues that his line 150 income from 2018 to 2019 was consistent and
that the most recent year should have been used. The motion judge rejected the fathers
submission that he had suffered a decline in income. He also rejected the use
of the fathers line 150 income alone and added pre-tax corporate income and
unreasonably deducted expenses, which as noted earlier, was not an error. The
use of a three-year average in these circumstances where the payor is, as he
said, growing a business, is fair. The father gave no reasons for expecting a
continuing decline in the success of his businesses. There is no obligation to
use the most current years income in such a situation where there is reason to
think it is anomalous.
(4)
Spousal support
[18]
Fourth,
I do not agree that the motion judge erred in fact or law in his consideration
of the mothers entitlement to spousal support. He considered the evidence
before him and concluded that she had a continued entitlement on both a
compensatory and needs basis and that despite efforts to become
self-sufficient, she continued to need support. In imposing a step-down in
support which will terminate after a final payment in September 2023, he found
that this approach best balances the [mothers] ongoing entitlement to both
compensatory and needs-based support with the need for her to transition to full
self-sufficiency: at para. 29. It was open to the motion judge to make this
finding based on the evidence of the parties.
(5)
Determining the motion on affidavit evidence alone
[19]
Finally,
I do not agree that this motion should not have been determined on the basis of
affidavit evidence and that it required
viva voce
evidence. The father
concedes that there had been no request for questioning and no request that the
motion judge hear
viva voce
evidence on the motion. Further, directing
a trial would have resulted in additional delay and expense for the parties. See
e.g.
Bloom v. Bloom
, 2018 ONSC 5343 (Div. Ct.), at paras. 8-13;
N.L.
v. R.R.M.
, 2016 ONCA 915, 88 R.F.L. (7th) 19, at paras. 27-28.
[20]
The
father argues that there was significant contradictory and conflicting evidence
in the affidavit material. I disagree. The problem here is not that there was
conflicting evidence, but that the father did not lead evidence that might have
grounded his claims on the motion. For example, he did not provide sufficient evidence
of good reasons for the corporations to retain income, or why certain business
expenses were reasonable, in response to the mothers submissions. In light of
this minimal amount of evidence, which he submitted late in the day and only
after great effort on the part of the mother, it was open to the motion judge
to accept the mothers evidence over the fathers evidence.
[21]
He
also did not present conflicting evidence on what the mother had done in terms
of her efforts in seeking employment and becoming self-sufficient. She had already
admitted in her evidence that her businesses had not made strong profits and
that one had not made profits at all. Essentially the fathers position was
that those efforts were insufficient and unsuccessful. It was open to the motion
judge to consider the evidence of the mothers efforts and come to his own
determination about whether she had made efforts to or had become self-sufficient.
(6)
Disposition and costs
[22]
For
all these reasons, I would dismiss the appeal, and order costs to the
respondent of $14,000, inclusive of disbursements and HST.
Released: August 5, 2021 J.M.F.
A. Harvison Young
J.A.
I agree Fairburn
A.C.J.O.
I agree M. Jamal J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: O'Brien v. Chuluunbaatar, 2021 ONCA 555
DATE: 20210805
DOCKET: C68793
Gillese, Tulloch and Roberts JJ.A.
BETWEEN
Jeffrey OBrien
Applicant (Respondent)
[1]
and
Bia Chuluunbaatar
Respondent (Appellant)
Bia Chuluunbaatar, acting in person
Jeffrey OBrien, acting in person
Heard: June 14, 2021 by video conference
On appeal from the order of Justice James F. Diamond of
the Superior Court of Justice, dated October 26, 2020, with reasons reported at
2020 ONSC 6394, and from his costs order, dated November 23, 2020.
Gillese J.A.:
I.
OVERVIEW
[1]
This family law appeal engages new provisions in the
Childrens Law
Reform Act,
R.S.O. 1990, c. C.12 (the
CLRA
)
governing relocation and allocation of parenting time.
[2]
The mother and father have one child. They separated when she was about
nine months old. Based on a consent order, the mother has sole custody of the
child and the father has access on alternate weekends.
[2]
[3]
When the child was five years old, the mother brought a motion seeking permission
to relocate with the child to Mongolia. The mother was born, raised, educated,
and employed in Mongolia before immigrating to Canada. The father opposed the
motion.
[4]
After a three-day trial in the Ontario Court of Justice, the trial judge
issued an order permitting the relocation. The fathers appeal to the Superior
Court of Justice was successful and the relocation order was overturned.
[5]
The mother appeals to this court. Her appeal depends, in part, on
whether the recent amendments to the
CLRA
relating to relocation apply
to a case started before the amendments came into effect on March 1, 2021. In
my view, they do.
[6]
Further, as I explain below, there was no basis to overturn the
relocation order. A trial judges decision on relocation is fact-based and
discretionary. Because of this, it is to be given significant deference on
appeal:
Van de Perre v. Edwards
, 2001 SCC 60,
[2001] 2 S.C.R. 1014, at para. 11. Trial judges are in a better position than
appellate judges to determine a childs best interests:
Reeves v. Brand
,
2018 ONCA 263, 8 R.F.L. (8th) 1, at para. 6. In this case, the trial judge made
unimpeachable factual findings, correctly articulated the relevant legal
principles governing relocation, and applied those principles to the facts as
she found them, before concluding that relocation was in the childs best
interests. There was no basis for the appeal judge to interfere with the trial
judges exercise of discretion.
[7]
Accordingly, I would allow the appeal and restore the trial order, with
the mothers requested variation of the winter access provision.
II.
BACKGROUND
[8]
The appellant (the
mother
) was 43 years old at
the time of trial and is from Mongolia. After graduating from a top school in
Mongolia with a B.A. in Financial Management, she obtained an M.A. in Economics
from Japan. In Mongolia, she worked as an economic analyst, a financial sector
specialist, and a consultant for various international companies. She immigrated
to Canada in January 2010. Unfortunately, despite her efforts and completing various
programs to upgrade her skills, she has not had stable employment in Canada.
She has been sporadically employed in low-level jobs and is currently
unemployed.
[9]
The respondent (the
father
) was also 43 years
old at the time of trial. He was born and raised in Peterborough, Ontario. He has
full-time employment. In 2018, his annual income was $114,876.
[10]
The parties became romantically involved in 2010. In 2013, they began
living together and had a child. They separated in September 2014 when the
child was about nine months old. The mother has been the childs primary caregiver
since her birth.
[11]
When the child was about two years old, a temporary court order
allowed the mother to take her to Mongolia without the fathers permission. Since
then, the child has continued to have a relationship with her maternal
grandparents, keeping in touch with them through Skype. She has also kept in
touch with her cousins in Mongolia, playing with them weekly on Skype. While English
is the childs
first language, she can understand Mongolian in the
household environment.
[12]
A consent order made in August 2016 (the
Consent Order
) gave
the mother sole custody of the child and the father access, as agreed-on,
including on alternate weekends. Although weekend access was specified, overnight
access did not begin until January 2019.
[13]
In July 2018, the mother brought a motion to change the terms of the
Consent Order so that she and the child could relocate to Ulaanbaatar, Mongolia
(the
Motion
). Ulaanbaatar is the capital of Mongolia, a cosmopolitan
city with a population of about 1,000,000. The mothers family lives in Ulaanbaatar.
The mother asked that the fathers access be adjusted and offered to provide
him with extensive access at Christmas and during the school summer vacation, as
well as at other times, both in Toronto and Mongolia. The father opposed the Motion
and sought an order for joint custody.
[14]
The mother wanted to relocate to Mongolia with the child because they
would have a better financial situation and increased family support, and it
would help the mothers mental health. In Canada, she has been unable to obtain
work at a level consistent with her education, ability, and experience. In
Mongolia, she worked as a business consultant, economic analyst, and project
specialist, but her most recent jobs in Canada have been as a door-to-door
water tank salesperson, barista, interpreter, and data entry clerk. The mother expects
to find permanent, full-time work as a mid-level professional with an
international organization or foreign company in Mongolia.
[15]
As a result of her employment situation in Canada, the mother has
been unable to independently support herself and the child. They subsist on
government benefits and child support from the father. In 2018, her total
income was $38,380. The mother and the child live in a small bachelor apartment
in Toronto where the child does not have her own room.
[16]
The
evidence at trial showed that the mothers family has provided her and the
child with love, support, and financial assistance since the childs birth. The
maternal grandmother was the only extended family member at the hospital when
the child was born. No one from the fathers large family in Peterborough attended
at the hospital. The mothers mother and sister helped care for the child for six
months after her birth. After the parties separated, the maternal grandparents deposited
$5,000 in a bank account in Mongolia for the mother and the child. They also gifted
the child their second apartment on her third birthday for her future use. The
mothers evidence is that she also has an apartment, held in trust for her, in
Mongolia.
[17]
If the relocation is permitted, the mothers family will provide childcare
and the child will enjoy a closer relationship with her maternal grandparents
and cousins. In contrast, while the child has participated each year in a
number of large family events with the fathers family, they have otherwise been
largely absent from the lives of the mother and the child since the parties separation.
[18]
The mother has few friends and no family in Canada. She has been
socially
isolated since the childs birth, despite having sought help through mental
health counselling, community supports, and her family doctor. The mothers isolation
has had an impact on her psychological and emotional well-being.
[19]
The
Motion was heard over the course of a three-day trial where the parties were
cross-examined on their affidavit evidence. The mothers evidence included a detailed
plan of how the childs life would be improved in Mongolia (the
Plan of
Care
). It shows how the child will benefit from close connection with her
extended maternal family, the ability to participate in many extra-curricular
activities, and developing a connection to her Mongolian heritage and
tradition. As well, her evidence is that the child will have better living
conditions, including having her own room for the first time. The mother intends
to sell the apartment in Ulaanbaatar that her parents gifted the child. With
the sale proceeds, she will buy a two-bedroom apartment and therefore not have
to pay rent. She plans to enroll the child in a private school with a rigorous
international curriculum where the child will continue with English language
instruction and become more fluent in Mongolian.
[20]
The
t
rial judge found that the relocation was in the childs best
interests, notwithstanding the change in access for the father. By order dated July
5, 2019 (the
Order
), she permitted the mother to relocate, with the
child, to Mongolia; granted the father extensive access; dismissed the fathers
claim for joint custody; required the father to pay child support in accordance
with the
Federal
Child Support Guidelines
,
S.O.R./97-175; and, adjusted child support to reflect the
table amount for the years 2016, 2017, and 2018, based on the fathers income
for each of those years. The Order specified that winter access would take
place in Canada, or another location of the fathers choice.
The
mother was awarded trial costs of $25,000.
[21]
The father appealed to the Superior Court of Justice. In reasons for
decision dated October 26, 2020 (the
First Appeal Decision
), the
appeal judge reversed the trial decision on relocation. He said the trial judge
erred by focusing on the mothers reasons for relocation, rather than on whether
relocation was in the childs best interests. He also said there was not a
proper evidentiary record to show how the move was in the childs best
interests. He further concluded that the trial judge had not given proper
effect to the maximum contact principle.
[22]
By endorsement dated November 23, 2020, the appeal judge ordered the
mother to pay the father costs of the trial and the first appeal fixed at $37,500
(the
First Appeal Costs Award
).
III.
THE TRIAL DECISION
[23]
The
trial judge gave lengthy, thoughtful reasons for decision. On the relocation
issue, she began by setting out the legal principles in
Gordon v. Goertz
,
[1996] 2 S.C.R. 27, as well as additional factors courts have since considered when
applying those principles. She explained that although the Motion was brought under
the
CLRA
, not the
Divorce Act
, R.S.C., 1985, c. 3 (2nd Supp.),
the legal principles in
Gordon
applied nonetheless.
[24]
The
trial judge then canvassed the evidence relevant to the relocation request and applied
the
Gordon
principles and additional factors to her factual findings. Throughout
her reasons, the trial judge repeatedly stressed that the question for
determination was whether relocation was in the childs best interests.
[25]
The
trial judges reasons for concluding that relocation was in the childs best
interests include the following:
-
The mothers family in Mongolia has a long and strong relationship with the
mother and the child; the family members have made them a priority in their
lives, which the fathers family has not. The mothers family will continue to support
them, particularly now when the mother especially needs their help;
-
The mother is struggling in Toronto as a single mother living alone, and
feels isolated and insecure. She would benefit from the support of her family
and friends in Mongolia;
-
The mother and child will have a better life in Mongolia the mothers
employment prospects are better, she will be more financially secure, and she will
have help from her family financially and with childcare for as long as she
needs it;
-
The mother will regain her confidence and her emotional, psychological,
social, and economic well-being, which will benefit the child and is, therefore,
in the childs best interests;
-
The child will benefit from a close connection with the mothers extended
family, being able to participate in numerous extracurricular activities, having
better living arrangements in a more spacious apartment, and developing a
connection to her Mongolian heritage and tradition.
[26]
The
trial judge found that even with the relocation, the mother would facilitate
the relationship between the child and the father, which the mother recognized
as important. On the trial judges findings, the mother has always followed the
court ordered access; been generous with additional access; encouraged telephone
access between the father and the child even when they were in Mongolia; and, allowed
the father to attend her residence for access in a period when the father had mental
health difficulties.
[27]
The
trial judge considered the relationship between the father and the child, and
the disruption that would result from the relocation. She recognized that the
father has a good relationship with the child and noted the mothers evidence
that the child has developed a strong bond with her father and enjoys spending
time with him. She concluded that the advantages for the mother and the child of
moving outweighed the disadvantages of a possible reduction of the fathers
contact with the child. She ordered extensive access for the father including ten
weeks in the
summer, three to four weeks in the
winter, and, in Mongolia any time during a school break, for up to two weeks,
on one months notice.
IV.
THE FIRST APPEAL DECISION
[28]
The appeal judge acknowledged that the trial judge properly
articulated the key principles on relocation from
Gordon
. He also accepted the trial judges findings on the mothers mental
health, isolation, and loneliness. However, the appeal judge concluded that
the trial judge erred by focusing solely upon the
[mothers] reasons for relocating, saying that a parents reasons for moving
cannot be the only reason upon which to ground a relocation request.
[29]
The
appeal judge stated that the court must respect the maximum contact principle
to the extent that such contact is consistent with the childs best interests. He
noted that the trial judge had found the father to be a good parent but had
done little analysis of the negative impact the move to Mongolia would have
on the relationship between the father and the child.
[30]
The appeal judge also said there was an inadequate evidentiary
record for the trial judges conclusion that the proposed move was in the
childs best interests. He described the mothers Plan of Care as speculative,
saying it was made
without any independent,
corroborative evidence from any admissible source. He added that it was
surprising that there was no evidence from any of the mothers family members,
friends, or business colleagues in Mongolia, and that the mother had failed to provide
evidence to substantiate the qualifications of the private school she intended
the child would attend or its admission requirements. He also questioned the
mothers evidence about her financial and job prospects in Mongolia and was
critical of her failure to provide the court with more information about
Mongolia.
V.
THE ISSUES
[31]
The mother submits that the appeal judge erred in:
1.
finding that the trial judge improperly applied the test for relocation;
2.
reweighing the trial judges assessment of the maximum contact principle;
and,
3.
intervening because of an allegedly deficient evidentiary basis for the
move.
[32]
If the appeal is allowed, the mother asks that the winter access provision
be varied. On this matter, she seeks to introduce fresh evidence bearing on the
appropriate location for the fathers winter break access. The fresh evidence
consists of two affidavits: one from her and the other from the childs doctor.
ISSUE #1 THE TRIAL JUDGE MADE NO ERROR IN
HER APPLICATION OF THE TEST FOR RELOCATION
[33]
At
para. 67 of his decision, the appeal judge gave two reasons for concluding that
the trial judge erred in her application of the test for relocation. First, he
said that instead of determining whether relocation was in the childs best
interests, the trial judge permitted it because the mother would have an
improved life in Mongolia. Second, he said that the trial judge erred in
considering the mothers reasons for moving because those reasons should have been
considered only in an exceptional case where they were relevant to her ability
to meet the childs needs. In my view, neither reason is correct. The trial
judge made no error in her application of the test for relocation.
[34]
In
terms of the first reason, it is simply incorrect to say that the trial judge
focussed solely on the mothers reasons for relocation. The trial judges focus
throughout was squarely on whether the relocation was in the childs best
interests. She repeatedly stressed this: see paras. 15-16, 28-29, 32-34, 36,
39, 121, 123, 125, 128-30, 132, 136-37, 139, and 141-46. Further, the trial
judges weighing of the various considerations demonstrates her adherence to
that focus. Three examples are sufficient to demonstrate this.
[35]
At
para. 39 of her reasons, the trial judge wrote:
Requiring a parent to remain in a community isolated from his
or her family and supports and in difficult financial circumstances will adversely
impact a child.
The economic and financial benefits of moving to a community
where the parent will have supports
, financial security and the ability to
complete their education and establish a career
are properly considered
in
assessing whether or not the move is in the childs best interests
.
[Emphasis added.]
[36]
At
para. 137, she wrote:
The court considered all of the following: that the mother feels
isolated and insecure in Canada; that she would benefit from the support of her
family and friends in the other location; that her employment prospects are
better there; that
the child will benefit if the mother is able to become
independent and live in a stable environment
; and that
the child will
suffer if the mother is restricted and remains insecure.
[Emphasis added.]
It follows that an improvement in the mothers social, emotional,
and financial circumstances are in the childs best interests.
[37]
And,
at paras. 141-42 of her reasons, the trial judge wrote:
There is also a psychological, social and emotional component
to [the mothers] desire to move, in order for her to regain the general stability
and control in her life that has been absent since the relationship with the
father ended in September 2014. There is a connection between the quality of a
parents emotional, psychological and social and economic well-being and the
quality of the childs primary care-giving environment.
An improvement in the mothers physical, emotional, and
financial circumstances can only benefit the child and therefore be in the
childs best interests.
[Emphasis added.]
[38]
The
appeal judges second reason for concluding that the trial judge erred in her
application of the test for relocation namely, that the trial judge erred because
she considered the mothers reasons for moving disappears because of recent amendments
to the
CLRA
governing relocation.
[39]
The
CLRA
amendments largely mirror amendments to the
Divorce Act.
Section
16.92(1)(a) of the
Divorce Act
explicitly directs the court, when
deciding whether to authorize a relocation, to take into consideration the reasons
for the relocation. It reads as follows:
16.92(1)
In deciding whether to authorize a
relocation of a child of the marriage, the court shall, in order to determine
what is in the best interests of the child, take into consideration, in
addition to the factors referred to in section 16,
(a) the reasons for the relocation;
[40]
The
Divorce Act
amendments came into force and effect on March 1, 2021.
The transition provision in s. 35.3 of the
Divorce Act
makes it clear
that the new relocation provision in s. 16.92(1)(a) applies, as of that date,
to any ongoing proceeding:
35.3
A proceeding commenced under this Act
before the day on which this section comes into force and not finally disposed
of before that day shall be dealt with and disposed of in accordance with this
Act as it reads as of that day.
[41]
Section
39.4(3) of the
CLRA
also now directs the court to take into account the
reasons for the relocation:
39.4(3)
In determining whether to authorize
the relocation of a child, the court shall take into account the best interests
of the child in accordance with section 24, as well as,
(a) the reasons for the relocation;
[42]
Unlike
the
Divorce Act
, the
CLRA
does not contain an explicit
transition provision governing the amendments. However, in my view, the
CLRA
amendments must also apply to any ongoing proceedings when they came into
force on March 1, 2021. Common sense dictates that the parallel amendments in
the
Divorce Act
, governing parenting orders for children on married
parties, and the
CLRA
, governing parenting orders for children of non-married
parties, operate in the same fashion.
[43]
Accordingly,
on this appeal, the reasons for relocation are a proper consideration and this
supposed error on the part of the trial judge falls away.
[44]
For
these reasons, in my view, the mother succeeds on this ground of appeal.
ISSUE #2 THE TRIAL JUDGE MADE NO ERROR IN
RESPECT OF THE MAXIMUM CONTACT PRINCIPLE
[45]
The
appeal judge found fault with the trial judges application of the maximum
contact principle, saying that the trial judge did little analysis of how the
move would negatively impact the relationship between the father and the child.
I do not agree for two reasons.
[46]
First,
on the law as it stood when the Motion was decided, the trial judge made no
error. She was fully alive to the maximum contact principle and its importance when
assessing whether the relocation was in the childs best interests. Her
relocation decision was an exercise of discretion that involved the weighing of
competing considerations, including those arising from the maximum contact
principle. That decision was entitled to deference. Rather than the trial judge
having erred, it was the appeal judge who fell into error by reweighing the
competing considerations based on his view of the weight to be afforded to the
maximum contact principle.
[47]
At
paras. 84-91 of her reasons, the trial judge addressed the maximum contact
principle under the heading The Desirability of Maximizing Contact between the
Child and Both Parents. She referred to the mothers detailed plan for regular
contact between the father and the child, including a plan for extensive access
and encouraging the child to have regular video chats as often as possible with
the father. At para. 91, the trial judge explicitly found that the mother has
always been supportive of the fathers relationship with the child. Other of
her findings show how the mother has fostered and preserved that relationship. However,
the trial judge found at para. 145 of her reasons, the importance of the
fathers contact with the child could not override the positive effects of the
move for the child: The advantages for the mother and the child in moving
outweigh the disadvantage of the possible reduction of contact with the father.
[48]
The
appeal judge interfered with the trial judges relocation decision because, in
his view, she had given insufficient weight to the maximum contact principle. In
so doing, the appeal judge erred in law. An appeal court is not to reweigh the
relevant considerations. Interference with the trial judges exercise of
discretion would have been justified only if the appeal judge was satisfied
that it was unreasonable:
Reeves
, at para. 23. The appeal judge did
not suggest that the trial judges relocation decision was unreasonable nor, on
the record, could he have.
[49]
Second,
the maximum contact principle has been replaced by s. 24(6) of the
CLRA,
another
new provision.
[3]
As I have explained, because this appeal was heard after March 1, 2021, s.
24(6) applies.
[50]
Section
24(6) highlights the importance of a child having time with each parent while explicitly
providing that the allocation of parenting time must be consistent with the
childs best interests. It provides that:
In allocating parenting time, the court shall give effect to
the principle that a child should have as much time with each parent as is
consistent with the best interests of the child.
[51]
The
trial judges reasons demonstrate that she was alive to the importance of the
child having time with each parent so long as the allocation of parenting time was
consistent with the childs best interests. Accordingly, in my view, the trial
judges relocation decision and access order are fully consonant with s. 24(6).
[52]
For
these reasons, in my view, this ground of appeal also succeeds.
ISSUE #3 THE TRIAL EVIDENCE WAS SUFFICIENT
[53]
The
appeal judge said there was an absence of a proper evidentiary record to
support the trial judges finding that the proposed move to Mongolia was in the
childs best interests. In my view, he erred. The mothers evidence was led
through her affidavits and that evidence was tested before the trial judge through
cross-examination. The trial judge was best positioned to assess the sufficiency
of the evidence. Further, she was entitled to accept the mothers evidence, as
she did.
[54]
In
her affidavit evidence, the mother gave detailed information about the proposed
move and how it would affect the child. For example, at para. 50 of her affidavit
dated April 4, 2019, the mother deposed:
With the move to Mongolia, [the childs] standard of living
will improve because of my property ownership in Mongolia, she will reside in a
middle class type of accommodation where for the first time she will have her
own room and bed. The income that I expect to earn from my consulting job,
support from [the father] and my parents help will cover [the childs] private
school tuition, a cost that I could otherwise have not afforded here in Canada.
I will also be able to enrol her in many extra-curricular activities as
detailed in [the childs] Plan of Care in Mongolia. I expect [the child] and I
to have a similar lifestyle as that of my sisters with her two children
including going away on vacations
[55]
And,
in the mothers Plan of Care, she addressed her plans for the childs education,
schooling, healthcare, and extra-curricular activities; the role the maternal
family would play with respect to the child and as support for the mother; managing
the childs language and emotional transitions; how the father could stay
connected with the child while she is in Mongolia; and, how the child would
become more fluent in Mongolian and learn about her Mongolian heritage, while maintaining
her English.
[56]
The
mothers evidence also included information about her career opportunities, her
connections and professional networks in Mongolia, and sample job postings from
Mongolia, complete with expected or potential salaries.
[57]
The
appeal judge questioned the absence of witness testimony from the mothers family
in Mongolia. The language, financial, and technical barriers to having
witnesses from Mongolia testify, coupled with the mothers limited financial
means, go a long way to explaining why direct witness evidence from Mongolia
was not before the trial court. In any event, however, there was no question about
the veracity of the information that the mother provided about her education
and work experience in Mongolia. The evidence concerning the emotional,
financial, and physical help that the mothers family had already given her and
the child was unchallenged. Nor was there any dispute about the mothers
commitment to the fathers relationship with the child and the many ways she
had fostered it. I will not repeat the evidence on these matters, details of
which can be found above. The point is that this uncontested evidence provided the
context within which the trial judge considered the mothers evidence and came
to the determination that relocation was in the childs best interests. There
is no basis on which to question the trial judges acceptance of that evidence,
much less to interfere with her decision to permit relocation.
[58]
To
say there was an inadequate evidentiary record on which the trial judge based
her decision fails to recognize that the mothers affidavits and her oral
evidence at the trial was evidence that the trial judge was entitled to accept.
That evidence contained detailed information on all aspects of the move and how
it would affect the child.
[59]
The
trial judge saw and heard the parties. As
Van de Perre
makes clear, she
was in the best position to decide whether relocation was in the childs best
interests. She concluded that it was and exercised her discretion accordingly.
There was no basis for interference by the first appeal court.
[60]
In
my view, the mother succeeds on this ground of appeal as well.
VI.
THE FRESH EVIDENCE APPLICATION
[61]
The
trial judge ordered both summer and winter access to be in Canada or another
location of the fathers choice. However, at trial, the mother and father had agreed
that if the move were allowed, winter access should take place in Mongolia
until the child is 12 years old.
[62]
The
mother seeks to introduce fresh evidence to show the difficulties for the child
if winter access were to take place in Canada. That evidence shows, among other
things, that the child would have to fly for over 25 hours across 12 time zones
in a 3-week period at an extraordinary financial cost to the parties. The fresh
evidence also includes an unchallenged letter from the childs doctor that such
a trip would likely lead to health issues for the child, interruptions in her schooling,
and behavioural issues arising from sleep loss and fatigue.
[63]
I
would admit the fresh evidence and make the requested change to winter access. I
commend the parties for placing the childs best interests ahead of their own
as demonstrated by their continuing agreement that winter access should take place
in Mongolia until the child is 12 years old and thereafter rotate, with one
winter access period taking place in Toronto and the following one in Mongolia.
VII.
DISPOSITION
[64]
For
these reasons, I would:
a.
allow the appeal;
b.
set aside the First Appeal Decision and the First Appeal Costs Award;
c.
restore the trial judges Order, with the exception that I would vary
para. 3(b) so that access during the childs winter school break shall take
place in Mongolia up to and including 2026 and, thereafter, shall alternate
between Canada and Mongolia, with the visit in 2027 taking place in Canada;
d.
restore the Trial Costs Award; and,
e.
substitute a costs award of $12,500 all inclusive, in favour of the
mother, in place of the First Appeal Costs Award.
[65]
Because
the parties each said at the oral hearing of this appeal they would not seek
costs of this appeal, I would make no order as to costs of this appeal or the
motion heard by Sossin J.A. on January 19, 2021.
Released: August 5, 2021 E.E.G.
E.E. Gillese J.A.
I agree. M. Tulloch J.A.
I agree. L.B. Roberts J.A.
[1]
The mother requested the use of initials only in the title of
proceedings. Absent legislative or court-ordered prohibition on identification,
this courts general practice in private family law disputes is to retain the
parties names in the title of proceedings while otherwise protecting the
childs privacy to the fullest possible extent.
[2]
Pursuant to amendments to the
CLRA
, which came into
effect on March 1, 2021, the terms parental custody and access have been
replaced by the terms decision-making responsibility and parenting time.
Sections 76(2) and (3) of the
CLRA
provide that references to custody and access in orders
prior to March 1, 2021, shall be read as references to decision-making
responsibility and to parenting time respectively. However, to avoid
confusion, in these reasons I use the original language in the existing orders.
[3]
The
Divorce Act
now also contains a
similar provision in s. 16(6):
In
allocating parenting time, the court shall give effect to the principle that a
child should have as much time with each spouse as is consistent with the best
interests of the child.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Kudrocova v. Kronberger, 2021 ONCA 563
DATE: 20210805
DOCKET: M52528 (C68576)
van Rensburg J.A.
(Motions Judge)
BETWEEN
Claudia Kudrocova
Appellant (Moving Party)
and
Ferdinand Alois Kronberger
Respondent (Responding Party)
Juliet Montes, agent for Tiffani Frederick, for the
moving party
Michael Ruhl and Kayla Gordon, for the responding party
Heard and released orally: August 4, 2021
ENDORSEMENT
[1]
This is a motion to set aside the Registrars dismissal of an appeal for
failure to perfect on time, and awarding costs to the respondent of $750. The
Order is dated December 9, 2020.
[2]
The appeal is of the orders of Justice McLeod made March 26, 2020 and May
14, 2020 and the costs orders of June 30, 2020. The orders are in relation to
the parenting of the parties two children.
[3]
After a Notice of Appeal was served on the respondent personally on
August 15, 2020, the appeal has proceeded in a manner accurately described by
Mr. Ruhl, the respondent fathers counsel, as sluggish.
[4]
There have been a variety of problems which were caused or contributed
to by the appellants initial appeal counsel, which may have resulted, in part,
from her health problems and car accident in December, 2020. These include: not
sorting out a fee waiver or attending to pay the fee for filing documents in this
court; service on the father instead of on his lawyer; not making it clear
whether the mother was representing herself or represented by counsel; and most
recently, failing to serve this motion on the respondent until notified by the
court of the pending motion date. In the interim, counsel for the father was
served with all of the appellants materials for the appeal, and prepared and
served, and attempted to file, the responding materials.
[5]
Mr. Ruhl has fairly acknowledged that, except for the Registrars
dismissal, the appeal has essentially been perfected. The appeal materials were
served on Mr. Ruhl on October 20, 2020, with amended materials served on
November 10, 2020. Mr. Ruhl fairly consented to the late filing of the amended
appeal materials, and on December 18, 2020 he served responding materials, but
he learned of the Registrars dismissal when trying to file his materials.
[6]
The factors to consider on a motion to set aside a Registrars dismissal
are 1) whether the moving party had an intention to appeal within the time for
bringing an appeal; 2) the length of the delay and any explanation for the
delay; 3) any prejudice to the respondent caused by the delay; and 4) the
justice of the case:
Paulsson v. University of Illinois
, 2010 ONCA 21,
at para. 2. The overriding consideration on a motion to set aside a dismissal
order is the justice of the case, which can include consideration of the merits
of the appeal:
Akagi v. Synergy Group (2000) Inc
., 2014 ONCA 731, at
para. 8 (in that case the appeal raised serious issues).
[7]
The moving partys affidavit explains that the delay was the fault of her
first lawyer on the appeal, who did not sort out the question of a fee waiver,
and then led her to believe that everything was rectified, and that her appeal
was proceeding. After receiving the notice dismissing her appeal, the mother
was assured by the lawyer that a motion to set aside the Registrars dismissal
order would be brought. Apparently, the lawyer was in a car accident, and
another lawyer, Ms. Frederick, took over the file in January 2021. This motion
was brought several months later and was argued by Ms. Montes attending as Ms.
Fredericks agent.
[8]
The fathers affidavit sets out a chronology of events. The motion to
set aside the Registrars order is opposed primarily on the basis of the appellants
delay. The father also asserts that the appeal has little merit, and that to
the extent the mother is concerned about what she characterizes as the separation
of the children, there is a mechanism in place for reattendance before the
trial judge. He is also concerned about the effect of the ongoing delay on the
children, who have grown accustomed to the parenting orders that were made. The
father seeks costs of the appeal in excess of the $750 awarded by the Registrar
for the materials that counsel has prepared to respond to the appeal.
[9]
I have concluded that it is in the interests of justice for the
Registrars order to be set aside, and for the appeal to be permitted to
proceed.
[10]
The
circumstances are unusual. First, the appellant reasonably understood that her
appeal was proceeding. The circumstances leading to the Registrars Order, as
well as the delay in bringing the motion, are not of her making. She should not
suffer the consequences of her lawyers oversight or inattention: see
Akagi
,
at para. 6. Second, all of the materials have been prepared, including the
responding materials and the appeal can be perfected without delay. Third, I am
not persuaded in the circumstances that the delay is prejudicial to the
childrens best interests. The current
status quo
will continue while
the appeal is pursued.
[11]
I
do not express any opinion on the merits of the appeal based on the limited
argument before me on this point. I remind the appellant that the function of
this court is not to retry the case on appeal, and that intervention is
warranted only if there is a material error, a serious misapprehension of the
evidence, or an error of law:
Van de Perre v. Edwards
, [2001] 2 S.C.R.
1014, at para. 13. If, as the father submits, the errors that are relied upon
by the mother are simply questions of fact, she will have a very difficult time
with this appeal.
[12]
Accordingly,
an order will go setting aside the Registrars order of dismissal; requiring
the appeal to be perfected by August 20, 2021; and expediting the hearing of
the appeal. By agreement of the parties, there is no order as to costs on this
motion.
K. van Rensburg J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Thompson, 2021 ONCA 559
DATE: 20210805
DOCKET: C66630
Watt, Roberts and Zarnett JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Kebrahas Mark Anthony Thompson
Appellant
Mark C. Halfyard, for the appellant
Scott Wheildon, for the respondent
Heard: April 21, 2021 by videoconference
On appeal from the conviction entered on October 25, 2018
by Justice Gisele M. Miller of the Superior Court of Justice, with reasons
reported at 2018 ONSC 6393.
REASONS FOR DECISION
Introduction
[1]
The appellant appeals his conviction for importing cocaine into Canada
contrary to s. 6(1) of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19
. He submits that the
trial judge erred in using a recklessness or negligence standard, rather than a
subjective standard, to find that he was wilfully blind to the presence of
illegal drugs concealed in his suitcases. He also submits that the trial judge failed
to treat certain aspects of the appellants after-the-fact conduct as circumstantial
evidence of innocence, and that she improperly took judicial notice of certain
facts.
[2]
For the reasons that follow, we dismiss the appeal.
The Factual Context
[3]
Late in the evening on January 13, 2014, the appellant arrived at
Toronto Lester B. Pearson International Airport on a flight from Montego Bay,
Jamaica. He was directed to secondary inspection. Border Service Officers
searched his suitcases, which the appellant confirmed he had packed.
[4]
Eight plastic Betapac brand spice packages were found in the
appellants suitcases five curry and three black pepper. Although the
packages bore no visible irregularities and appeared to contain the labelled spices,
in handling them, one of the Border Service Officers noted that they seemed
less malleable than would be expected, given their apparent contents. An
officer cut open one of the packages and discovered cocaine. The appellant was
arrested. The other packages were examined and also found to contain cocaine.
[5]
At trial, the parties agreed that: approximately 3.7 kilograms of
cocaine had been concealed in the spice packages; the appellants fingerprint
was identified on the exterior of one of them; and, the cocaine had a value in
the Greater Toronto Area that ranged between $170,000 and $407,000, depending
on whether it was sold by the ounce, gram, or kilogram.
[6]
The appellant gave evidence at trial. He testified that he had gone to
Jamaica for a family members funeral. While there, he spent time with Neville
Williams, with whom he was in a relationship and infatuated.
[7]
According to the appellant, Mr. Williams asked him to bring some
Jamaican spices to Toronto for Mr. Williams cousin (whose name the appellant was
not given), for his restaurant Iri Veggie Take-Out. The appellant testified
that Mr. Williams gave him the eight Betapac packages, that Betapac is a
recognized brand of Jamaican spices, and that the packages looked normal and
did not appear to have been tampered with. The appellant said that when he
questioned Mr. Williams about the quantity, Mr. Williams told him that his
cousin wanted a lot for the restaurant. Once in Toronto, the appellant was to
await contact by someone who would pick up the packages.
[8]
The appellant testified that it did not occur to him that the packages
might have drugs in them. On cross-examination, he agreed that it should have
occurred to him that something was suspicious, however, he maintained that
nothing did. The appellant gave evidence about his knowledge of how the drug
trade operates, and that he would never knowingly traffic drugs because he had
previously been acquitted of an importing charge and was always checked at
customs.
The Trial Judgment
[9]
The trial judge set out the principles in
R. v. W.(D.)
, [1991]
1 S.C.R. 742, relevant to whether the charge was proven beyond a reasonable
doubt in light of the appellant having given evidence.
[10]
The
trial judge accepted the appellants evidence about his relationship with Mr. Williams,
and that it might be true that Mr. Williams provided the cocaine for delivery
to someone at the restaurant the appellant identified. She also accepted that
the cocaine was cleverly concealed in packages that appeared from the outside
to be authentic packages of spice.
[11]
However,
the trial judge did not believe the appellants evidence that he did not know,
or even suspect, that the spice packages contained illegal drugs. She found
that his history and knowledge of the drug trade demonstrated a heightened
sensitivity to the fact and the ways in which drugs are imported from Jamaica
into Canada. She found it was inconceivable that it would not have occurred
to him that the spice packets contained some illegal drug.
[12]
The
trial judge went on to find that even if [the appellant] did not have direct
knowledge that there was cocaine in the packets he was bringing into Canada, he
was wilfully blind as to the presence of drugs in the packets, and did not take
sufficient reasonable steps to assure himself that they were not there. She
found that the appellants enquiry of Mr. Williams as to the amount of spice did
not result in an answer sufficient to reasonably allay his suspicions and the
fact that he was not given the name of a person to deliver the packets to and
was to await contact from an unknown person who would arrange pick up should
have raised rather than allayed any suspicions. As the appellant acknowledged
that curry powder and black pepper are readily available in Toronto, the trial judge
observed that there would be no need for the appellant to bring those products
to a restaurant that would likely have its own supplier and need those goods in
greater quantities.
[13]
The
trial judge concluded that she did not believe the appellants evidence that he
did not know the spice packets contained illegal drugs, nor did it leave her
with a reasonable doubt. She concluded that she was satisfied on all of the
evidence that the appellant knew or was wilfully blind to the fact that he
imported cocaine into Canada.
Analysis
(a)
Wilful Blindness
[14]
The
appellant argues that the trial judge did not properly find wilful blindness,
as she focussed on whether the appellant should have been, or should have
remained suspicious, rather than on whether he actually suspected there were
drugs in the packages and deliberately failed to further inquire in order to
avoid knowledge. The appellant argues that in doing so, she used a recklessness
or negligence standard.
[15]
We
reject this ground of appeal for two reasons.
[16]
First,
the trial judges finding of wilful blindness was in the alternative to her primary
finding that the appellant actually knew that the packets contained illegal
drugs. The trial judge did not believe the appellants evidence that he did not
know the packages contained cocaine, stating that it was inconceivable that
he did not know. She concluded that she was satisfied beyond a reasonable doubt
on all the evidence that he had the requisite knowledge. The evidence spoke
powerfully to his knowledge, as it included the undisputed facts that: cocaine
of significant value was concealed in packages; the packages were in suitcases
that the appellant had packed and transported; and, that one of the packages
bore the appellants fingerprint. Even if there was an error in the trial
judges approach to wilful blindness, it would not affect the result.
[17]
Second,
we do not accept the argument that the trial judge used the wrong standard in
her alternative wilful blindness analysis. The trial judge set out the correct definition
of wilful blindness as articulated by this court in
R. v. Lagace
(2003)
, 178 O.A.C. 391, (Ont. C.A.) and
R.
v. Rashidi-Alavije
, 2007 ONCA 712, 229 O.A.C. 365. Accordingly, when she
twice in her reasons stated that the appellant was, in the alternative,
wilfully blind, there is no doubt she was using the term as described in those
cases that the appellant was culpable because he actually suspected drugs but
declined to make inquiries sufficient to allay those suspicions because he
preferred to remain ignorant of the truth: see, for example,
Lagace
,
at para. 28. The trial judge did not proceed on the erroneous basis that all
that was required was that the appellant should have been suspicious.
[18]
The
trial judges findings in support of her conclusion on actual knowledge also
support her alternative conclusion on actual suspicion. The trial judge
considered, but rejected, the appellants evidence that he did not suspect
drugs. The evidence she accepted as to the value of the drugs, the appellants
history and knowledge of the drug trade, the concealment of the cocaine in the
packages in the appellants suitcases, and the fingerprint, speak with equal
power to a conclusion of actual suspicion and a deliberate failure to learn the
truth.
[19]
As
Lagace
makes clear, wilful blindness may be found even where an
accused who held a suspicion made some inquiry. In determining whether an
accused who made some inquiry remained suspicious and deliberately refrained
from further inquiry to avoid the truth, the nature of that inquiry will be an
important consideration
For example, a finding that an accused took all
reasonable steps to determine the truth would be inconsistent with the
conclusion that the accused was wilfully blind: at para. 28.
[20]
The
appellant focusses on the trial judges statements that the appellant did not
take reasonable steps to ensure there were no drugs, that his inquiries were not
sufficient to reasonably allay his suspicions, and that certain matters
should have raised rather than allayed any suspicions. Read in context (and
given her finding that the appellant was wilfully blind as discussed above), these
statements reflect the trial judges consideration of the nature of the appellants
inquiry, that is, of the steps he took to determine the truth. As explained in
Lagace
,
the reasonableness of the steps taken is one factor to be considered; as
earlier noted, if an accused took all reasonable steps, that would be
inconsistent with a finding of wilful blindness. We do not interpret these
statements to be the basis, let alone the sole basis, on which the trial judge
concluded that the appellant was wilfully blind.
[21]
We
therefore reject this ground of appeal.
(b)
After-the Fact
Conduct
[22]
A
little over a month after the appellant was arrested, the appellants lawyer
wrote to the police providing information that the packages had been provided
to the appellant by Mr. Williams, and that they were to be delivered to Iri
Veggie Take-Out.
[23]
The
appellant argues that the trial judge failed to take this evidence into account
as something that reflected positively on his credibility, especially since the
trial judge was critical of the appellants inability or failure to locate or
contact Mr. Williams after his arrest.
[24]
We
reject this ground of appeal. The fact that the trial judge did not
specifically refer to the letter does not mean she did not consider it she
was not obliged to detail all evidence in her reasons. Moreover, the trial
judge accepted, based on the evidence at trial, that Mr. Williams may have
provided the packages and that they may have been intended for delivery to that
restaurant. She nonetheless rejected the appellants evidence that he did not
know or suspect that the packages contained drugs. In other words, those facts did
not exculpate the appellant. We see no basis on which to conclude that the fact
that this information was contained in the appellants lawyers letter gives it
a different effect.
(c)
Improper Judicial
Notice
[25]
In
her analysis, the trial judge noted that a restaurant would require much
greater amounts of the spices than the amount the appellant was to deliver. The
appellant argues that there was no evidence on the appropriate quantity of
spice for a restaurant, and as such, the trial judges comment constituted an
improper resort to judicial notice.
[26]
In
our view, the comment in question was not a finding of fact but was simply a
minor part of the trial judges assessment of the inherent probabilities of the
appellants evidence viewed through the lens of common sense. Moreover, the
trial judge was entitled to disbelieve the appellants evidence, and reach the
ultimate conclusions that she did, without that reference.
[27]
Accordingly,
we do not give effect to this ground of appeal.
Conclusion
[28]
For
these reasons, the appeal is dismissed.
David Watt J.A.
L.B. Roberts J.A.
B. Zarnett J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Henry-Osbourne, 2021 ONCA
561
DATE: 20210806
DOCKET: C66568
Tulloch, Roberts and Trotter JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Lynston Henry-Osbourne
Appellant
Jeffery Couse, for the appellant
David Quayat, for the respondent
Heard: May 14, 2021 by video
conference
On appeal
from the convictions entered by Justice Wailan Low the Superior Court of
Justice on September 26, 2017, and from the ruling on entrapment dated November
7, 2017 with reasons reported at 2017 ONSC 6714.
Roberts
J.A.:
Overview
[1]
The appellant appeals the dismissal of his
application for a stay of his convictions for trafficking heroin to an
undercover police officer on three different occasions in the course of
dial-a-dope operations, and for the possession of the proceeds of crime from
trafficking. The appellant maintains that the trial judge erred in failing to
find that he was entrapped by the police into committing the offences that
formed the basis for his convictions.
[2]
At issue in this appeal is whether the
application of the Supreme Courts analytical framework on the law of
entrapment in
R. v. Ahmad
,
2020
SCC 11, 445 D.L.R. (4th) 1,
to the circumstances of
this case would have led to a stay of the convictions. For the reasons that
follow, I say it would not and would dismiss the appeal.
(i)
Guilty pleas and convictions
[3]
On September 26, 2017, following a re-election
to a trial before a judge alone and pursuant to an agreed statement of fact,
the appellant pled guilty to four counts of an eight-count indictment. The four
remaining counts were withdrawn at the Crowns request.
[4]
The basic factual underpinnings for the convictions
were founded on the following agreed statement of fact:
On May 9, 2015, the [Toronto Drug Squad] entered
into a drug investigation. A now retired officer Tony Canepa negotiated the
purchase of a gram of heroin with an individual referred to as Prince for
$200. Tony Canepa attended the area as directed and met Prince, who was later
identified as Mr. Henry-Osborne. Tony Canepa gave Mr. Henry-Osbourne $200 in
marked police buy money and in return received a quantity of heroin, later
determined to weigh 1.08 grams.
On May 11, 2015 Tony Canepa called Prince
again and entered into another drug related conversation. Prince agreed to
sell a gram of heroin for $200 directing the officer to meet him in the area of
Jane Street and Sheppard Avenue, Toronto. Tony Canepa attended the area as
directed and met Mr. Henry-Osbourne. Tony Canepa gave Mr. Henry-Osborne $200 in
marked police buy money and in return received a quantity of heroin, later
determined to weigh 1.06 grams.
On July 11, 2015
Tony Canepa called Prince again and entered into another drug related
conversation with Prince. Prince agreed to sell 6.5 grams of heroin for
$1000 directing the officer to meet him in the area of Jane Street and Sheppard
Avenue, Toronto. Tony Canepa attended the area as directed and met Mr.
Henry-Osbourne. Tony Canepa gave Mr. Henry-Osborne $1000 in marked police buy
money and in return received a quantity of heroin, later determined to weigh
6.5 grams. Mr. Henry-Osbourne was subsequently arrested. The $1000 of police
buy money and a telephone was found on him during a search incident to arrest.
The police confirmed the phone in his possession was assigned to phone number
416.302.4105 that the police had used to contact Prince previously.
[5]
The trial judge found the appellant guilty on
three counts of trafficking heroin and one count of possession of the proceeds
of crime from trafficking.
(ii)
Application for a stay of the convictions
[6]
On September 26 and 27, 2017 the appellant
brought an application before the trial judge to stay his convictions on the
ground that he was entrapped into the criminal conduct underlying the guilty
pleas.
[7]
The evidence on the application consisted of the
agreed statement of fact and the
viva voce
evidence of the undercover
officer, Tony Canepa, who had retired by the time of the application. Officer
Canepa testified about the information that he had received prior to calling
the appellant, and the conversations and text exchanges that he had with the
appellant and others in the course of the heroin purchases. I examine those
conversations and texts in further detail later in these reasons.
[8]
The trial judge applied the following test for
entrapment under
R. v. Mack
, [1988] 2 S.C.R. 903, at p. 959, which she
identified as the governing jurisprudence at that time:
There is,
therefore, entrapment when: (a) the authorities provide an opportunity to
persons to commit an offence without reasonable suspicion or acting
mala
fides
or, (b) 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.
[9]
The trial judge concluded that there was no
evidence of the undercover officer offering an inducement and that the conduct
of the investigation did not constitute random virtue testing because it was
focused on one individual possessing several articulated physical
characteristics and three specific patterns of conduct: the use of the style
Prince, the use of a specific telephone number, and dealing in heroin. She
also found that there was no evidence that the undercover police officer was
not acting
bona fide
in investigating the tip that led to the
telephone calls.
[10]
The trial judge made no specific finding as to
whether Officer Canepa had a reasonable suspicion to believe the appellant was
involved in drug trafficking before presenting him with an opportunity to
commit a crime because she determined that the reasonable suspicion standard
articulated under the first branch of the
Mack
test was inapplicable
in a dial-a-dope context involving the
bona fide
investigation of a
tip. The trial judge reasoned as follows:
In the context
of
dial-a-dope
operations,
many
undercover investigations will start
with a tip
only,
and
for
that reason,
it will not
be possible to
say that
the
police
start out with a
reasonable
suspicion
. The police nevertheless
have
a
duty to
investigate,
and in the dial-a-dope context,
investi
g
ation requires
a
call
to
the target
number
to de
te
rmine
whether
the
tip can be
confirmed.
[11]
The trial judges reasoning on this point was
tied to her holding that an opportunity to offend existed as soon as police
placed a call using drug-coded language to the targeted phone number. She interpreted
Mack
to mean that:
an opportunity to
offend [i.e. a drug-coded phone call] may properly be extended to the target of
a
bona fide
investigation if it is in the course of and for the
purposes of the investigation whether the information in the possession of the
police at the time of the offer rises to the level of a reasonable suspicion or
is only at a level of a mere suspicion.
[12]
On that basis, the trial judge found that the
appellant had not been entrapped by the police and dismissed the appellants
stay application. On February 9, 2018, the appellant received a global sentence
of 3 years, 2 months and 27 days, which he does not seek to appeal separately
from the convictions.
Issues and the Parties Positions
[13]
The appellants principal submission is that the
trial judge erred in applying the wrong test for entrapment. Specifically, the
appellant submits that the
t
rial judge erred in law by applying a
bona fide
investigation test rather than the reasonable
suspicion test required under the Supreme Courts most recent articulation of
the test for entrapment in
Ahmad
. The appellant maintains that, like in
R. v. Williams
, the
companion case to
Ahmad
, the brief conversations and texts between the appellant
and the undercover officer did not afford a sufficient basis to ground a
reasonable suspicion.
[14]
The Crown submits that while the trial judge did not have the
benefit of the Supreme Courts guidance in
Ahmad
,
the trial judges jurisprudential instinct and factual findings were nevertheless
correct. According to the Crown, the circumstances of the present case are
almost identical to those in
Ahmad
. Applying
Ahmad
to the circumstances of the present case, the Crown
argues, still leads to the trial judges conclusion that there was no
entrapment.
Analysis
(a)
Ahmad
analytical
framework
[15]
As this court very recently acknowledged in
R.
v. Ramelson
, 2021 ONCA 328, appeal as of right filed [2021] S.C.C.A No.
137, at para. 34,
Ahmad
did not fundamentally change the law of
entrapment as it stood under
Mack
and
R. v. Barnes
, [1991] 1
S.C.R. 449. See also:
R. v. Ghotra
, 2020 ONCA 373, at paras. 16 to 19.
However, the majority in
Ahmad
provided important clarifications on how
to apply the law of entrapment in the context of dial-a-dope operations,
particularly with respect to the assessment of reasonable suspicion.
[16]
In the context of a dial-a-dope investigation, police
may provide an opportunity to commit a crime only upon forming a reasonable
suspicion that the person answering the phone is engaged in drug trafficking:
Ahmad
,
at para. 44. The majority in
Ahmad
was careful to emphasize at para.
20 that a
bona fide
investigation is not a separate and freestanding
way to entrap an individual. Rather, an investigation is
bona fide
where the police have reached a threshold of reasonable suspicion and they have
a genuine purpose of investigating crime. Ultimately, the entrapment analysis focuses
on whether the police had formed a reasonable suspicion when they created an
opportunity to commit a crime:
The reasons in
Mack
make clear that a
bona fide
inquiry into a location is premised upon
and tethered to reasonable suspicion. An investigation is
bona fide
where the police have a reasonable suspicion over a location or area, as well
as a genuine purpose of investigating and repressing crime.
A bona fide investigation is not a separate and freestanding
way for police to entrap an individual, but a means of expressing the threshold
of reasonable suspicion in a location. The offer of an opportunity to commit a
crime must always be based upon a reasonable suspicion of particular criminal
activity
, whether by a person, in a place defined with sufficient precision,
or a combination of both. [Emphasis added.]
[17]
The Supreme Court also made clear in
Ahmad
that the police can develop reasonable suspicion either before placing a call
to a suspected drug line or in the course of a conversation with the target:
Ahmad
,
at para. 54. If the police do not have reasonable suspicion before a call is
made, it must be developed during the call but before an opportunity to commit
a crime is presented to the target:
Ahmad
, at para. 69. The Court
explained at para. 66 what is meant by an opportunity to commit a crime:
[P]olice can make
exploratory requests of the target, including asking whether they sell drugs,
without providing an opportunity to traffic in illegal drugs. An opportunity
has been provided only when the terms of the deal have narrowed to the point
that the request is for a specific type of drug and, therefore the target can
commit an offence by simply agreeing to provide what the officer has requested.
[Citations omitted.]
(b)
Trial judges approach
[18]
Viewed through the lens of
Ahmad
, the
trial judges approach was flawed in that she did not make a specific finding
as to whether the police had formed a reasonable suspicion at the moment the
offer to buy drugs was made. As already noted, she made no distinction between
reasonable suspicion and mere suspicion so long as the investigation was
bona
fide
.
[19]
The trial judge relied on investigative
bona
fides
as a separate means by which to justify the undercover officers
offer to purchase drugs. However,
Ahmad
makes clear that investigative
bona fides
will not supplant an absence of a reasonable suspicion at
the moment police make a concrete offer to buy drugs.
[20]
The trial judge should have considered whether,
in the context of a
bona fide
investigation, the officer had a
reasonable suspicion that the appellant was engaged in drug trafficking before
he placed his order to purchase drugs.
(c)
Ahmad
analytical
framework applied
[21]
The primary issue in this appeal is therefore
whether a proper application of the
Ahmad
analytical framework would
have led to a different result. In my view, it would not. For the reasons that
follow, I conclude that the trial judges factual findings were unaffected by
her analytical approach and that her ultimate conclusion that there was no entrapment
was correct.
[22]
The appellant submits that the outcome would
have been different under
Ahmad
because the police did not have a
reasonable suspicion that the appellant was trafficking heroin for the
following three reasons:
a. The appellant was targeted based on a
bald, uncorroborated tip of unknown reliability, credibility and recency.
b. The undercover officer did not
adequately corroborate the tip during his telephone call with the appellant
prior to asking him to traffic heroin.
c. Despite
the appellant declining to commit the offence or partake in drug subculture
language, the undercover officer continued to pursue the investigation.
[23]
I am not persuaded by these submissions.
[24]
Because it is a contextualized, individualized,
and fact-driven inquiry, the determination of reasonable suspicion requires a careful
examination of the evidence and an assessment of the entire constellation of
objectively discernable facts:
Ahmad
, at paras. 46 and 48. As a
result, simply comparing the circumstances of this case to those in
Ahmad
,
where no entrapment was found, or in
Williams
, where it was, is not
dispositive of the issue. The circumstances of the present case differ because
they comprehend not one conversation but a series of telephone conversations
and text exchanges that culminated in the offer and purchase of heroin. It is
therefore necessary to examine all the relevant circumstances to determine if
the appellant was entrapped.
[25]
While the undercover officer may not have had a
reasonable suspicion before first calling the appellant, he formed a reasonable
suspicion during the initial telephone call, which was strengthened by the
subsequent text and telephone exchanges, and prior to offering the appellant
the opportunity to traffic heroin by requesting a specific quantity of a
particular drug.
[26]
Prior to making the initial call, Officer Canepa
had been advised by Detective Brons that an individual named Prince was
trafficking heroin using a specific telephone number. Detective Brons gave a
physical description of Prince. He instructed Officer Canepa to call Prince
at a specific telephone number, 416-302-4105, and to purchase heroin with
police buy money, using the drop name Paul.
[27]
Officer Canepa telephoned the number he had been
given and the following conversation ensued:
Male: Hello.
Officer Canepa: Prince?
Male: Yeah.
Officer Canepa: Can I come see you?
Male: Where did you get my number from?
Officer Canepa: Paul, White guy from St. Claire
[sic] and Dufferin.
Male: I dont know who you are.
Officer Canepa: Its Sal. I got your number
from Paul. Do you know Paul?
Male: Yeah. What are you looking for?
Officer Canepa: A GR of H.
Male: I dont know what
.
[28]
The line disconnected at that point and Officer
Canepa tried twice to reach the appellant without success. Officer Canepa then
received a text message from the same telephone number:
416-302-4105: Who this?
Officer Canepa: Sal. Can I come check you?
416-302-4105: I dont know what youre talking
about.
Officer Canepa: No
problem then sorry.
[29]
Officer Canepa testified that he thought that
the investigation wasnt going anywhere or that the deal was dead at that
point. However, a few minutes later, he received a telephone call from an
unknown number and had the following telephone conversation with a different
male individual:
Officer Canepa: Hello?
Male: Is this Sal?
Officer Canepa: Who is this?
Male: Paul Do I know you?
Officer Canepa: I dont know.
Male: Prince says I gave you this number.
Officer Canepa: I told Prince I got a number from a guy by the
name of Paul from St. Claire and Dufferin.
Male: What does Paul look like?
Officer Canepa: White, chubby.
Male: I dont know who you are.
Officer Canepa: Im sure youre not the only Paul around.
Male: Okay.
[30]
A
few minutes later, Officer Canepa received a text from 416-302-4105, the number
he had initially called to reach Prince, and had the following exchange:
416-302-4105: How you got this number?
416-302-4105: ?
Officer Canepa: Paul at St. Claire and Dufferin.
416-302-4105: Where you from?
Officer Canepa: St. Clair and
Dufferin
[31]
About
four hours later, Officer Canepa received a call from the same number, 416-302-4105,
and had the following conversation:
Officer Canepa: Hello.
Male: Hey, whats going on?
Officer Canepa: Not much.
Male: Listen I have to check you. Are you a friend of Nick?
Officer Canepa: Yeah.
Male: Okay. What do you need?
Officer Canepa: One.
Male: A Full one.
Officer Canepa: How much?
Male: Okay, let me call you back in two minutes and tell you
where to meet me.
Officer Canepa: Okay.
[32]
Following
this last conversation, Officer Canepa purchased heroin from the appellant on
the three occasions that formed the basis for the guilty pleas, and on two
other occasions from individuals whom Prince had sent to complete the
transactions for him.
[33]
In
my view, reasonable suspicion existed before the undercover police officer requested
a specific quantity or type of drug from the appellant during their initial
call. In any event, having regard to the entirety of the communications leading
up to Officer Canepas first heroin purchase from the appellant, it is clear
that reasonable suspicion to believe that the appellant was engaged in drug
trafficking existed before the appellant again offered to sell him drugs and Officer
Canepa placed his order for One.
[34]
Before
asking the appellant for A GR of H in their initial conversation, Officer
Canepa had already obtained confirmation from the appellant that he was
Prince, that he was connected to the number that was given for him, and that
he knew Paul. Officer Canepa also made exploratory requests, engaging in
drug-coded language, asking the appellant if he could come see him, which Officer
Canepa testified meant that he was asking if he could purchase drugs from him. Understanding
Officer Canepas coded request, the appellant then exhibited the kind of
caution that, as Officer Canepa also testified, is typical of drug dealers who
are concerned that they may be communicating with an undercover police officer.
Once he was satisfied that Officer Canepa had obtained his telephone number
from a trusted source, the drop name Paul, the appellant himself used drug-coded
language, asking the undercover officer what he was looking for, namely, what
drugs he wanted to purchase. It was in response to the appellants invitation
that Officer Canepa placed his order for A GR of H.
[35]
After
Officer Canepa dropped the inquiry following the exchange with the male who said
he did not know who he was, the appellant renewed communications with Officer
Canepa for the express purpose of having to check him, again exhibiting the
typical wariness of drug dealers against dealing with undercover police. Having
satisfied himself that the connection was legitimate, the appellant then reiterated
his offer to sell drugs to Officer Canepa, asking What do you need?,
drug-coded language asking what drugs he wished to purchase. It was in response
to this repeated offer to purchase that Officer Canepa asked for One, again,
drug-coded language which the appellant understood because he indicated he
would call Officer Canepa back to tell him where to meet him.
[36]
As
the trial judge correctly found, these circumstances did not constitute prohibited
random virtue-testing, which the law of entrapment seeks to protect against
because it violates the principle that it is wrong for the police to
manufacture crime and prey on the weakness of human nature to entice
individuals into offending:
Ahmad
, at paras.
27-28. In the circumstances of this case, it cannot be said that the appellant
was tempted into committing a crime when he otherwise would not have:
Ahmad
, at para. 28. Rather, after several conversations
and careful probes to satisfy himself of the callers legitimacy as a drug
purchaser, the appellant made an offer to sell drugs to Officer Canepa, which
was accepted. Except for the initial call to Prince, all other communications
were initiated by Prince, or by the other male individual who contacted
Officer Canepa. As Officer Canepa formed a reasonable suspicion about the
appellants trafficking activities before he created opportunities for the
appellant to break the law, his actions fell well within the boundaries set by
the Supreme Court in
Ahmad
.
[37]
The onus rests on the appellant to establish entrapment on a balance
of probabilities:
Ghotra
, at para. 18, citing
Ahmad
, at para.
31. In my view, he has failed to meet this onus.
I see no basis for a
finding of entrapment in this case and would uphold the trial judges ultimate
conclusion that there was none.
Disposition
[38]
For these reasons, I would dismiss the appeal.
Released: August 6, 2021 M.T.
L.B. Roberts
J.A.
I
agree M. Tulloch J.A.
I
agree Gary Trotter J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Teitler v. Dale, 2021 ONCA 577
DATE: 20210819
DOCKET: M52684
van
Rensburg J.A. (Motion Judge)
BETWEEN
Elise
Teitler
Applicant (Responding Party)
and
Lawrence
Dale
Respondent (Moving Party)
Lawrence M. Dale, acting in person
Martha McCarthy, for the responding
party
Heard: August 5, 2021 by videoconference
REASONS
FOR DECISION
[1]
The moving party, Lawrence Dale, seeks an
extension of time to appeal the vexatious litigant order of Diamond J. dated
July 5, 2019.
[2]
The application judges order was made in two
proceedings: FS-15-400682, a family law proceeding commenced by Ms. Teitler in
2015
[1]
, and CV-19-00618979-0000, a proceeding
commenced by Ms. Teitler by application pursuant to s.140 of the
Courts of
Justice Act
, R.S.O. 1990, c. C.43.
[3]
Diamond J.s order found Mr. Dale to be in
contempt of certain provisions of eight orders of the Superior Court in the
family law proceedings, struck out his Answer in those proceedings, and
permitted Ms. Teitler to schedule a date for an uncontested trial. The order,
at paras. 4 and 5, also declared Mr. Dale to be a vexatious litigant and precluded
Mr. Dale from continuing in the family law proceeding and from continuing or instituting
other proceedings without leave of a judge of the Superior Court of Justice,
with the exception of CV-09-374829, which is an action between Mr. Dale and the
Toronto Real Estate Board.
[4]
The uncontested trial in the family law
proceedings took place on September 27, 2020 before Kiteley J., and resulted in
a final order respecting child and spousal support and parenting of the
parties children, and a restraining order, each dated December 17, 2020.
[5]
Until recently, Mr. Dale did not appeal or seek
leave to appeal any part of Diamond J.s order.
[6]
If he is granted an extension of time to appeal,
Mr. Dale seeks a stay. Among other things, he contends that he wants to bring
proceedings involving the children and to appeal the order of Kiteley J.
Extension of Time
[7]
This court can extend time to appeal under r.
3.02 of the
Rules of Civil Procedure
when it considers it just to do
so. The onus is on the moving party to establish the grounds for an extension. While
each case depends on its own circumstances, the following factors are relevant:
(1) whether the moving party formed an intention to appeal within the relevant
period (i.e. 30 days from the date of the order); (2) the length of, and
explanation for, the delay in appealing; (3) prejudice to the responding party;
and (4) the merits of the proposed appeal. The overarching principle is whether
the justice of the case requires the extension of time:
Howard v. Martin
,
2014 ONCA 309, at para. 26. Where, as here, the order affects children, the
justice of the case is reflected in the best interests of the children:
Denomme
v. McArthur
, 2013 ONCA 694, at para. 7.
[8]
Mr. Dale contends that the fact that court staff
would not accept what he attempted to file with this court, which he says was a
mistake, should be determinative of this motion. In the alternative, he asserts
that he has met each element of the test set out above, and that the overall
justice of the case strongly favours an extension of time.
[9]
I have concluded that it is not in the interests
of justice to grant the requested extension of time.
[10]
I begin by observing that Mr. Dale did not put
proper evidence before this court. His affidavits dated July 26, 2021 and
August 3, 2021 are not sworn or affirmed before a commissioner of oaths, which
Mr. Dale explains is because of the COVID situation. There is nothing in the Consolidated
Practice Direction Regarding Proceedings in the Court of Appeal During the
COVID-19 Pandemic or the
Rules of Civil Procedure
that would exempt
Mr. Dale from the requirement of providing a properly sworn or affirmed
affidavit. Although Mr. Dale is self-represented in these proceedings, he was
qualified as a lawyer and he is an experienced litigant. I do not accept his
explanation for failing to provide evidence in the proper form. Although I
could have dismissed his motion on this basis alone, I am dismissing the motion
after considering the relevant factors in light of the record before me,
including the unsworn affidavits.
[11]
The first factor is whether Mr. Dale had a
bona
fide
intention to appeal within the relevant time. The 30 days to appeal
ran from the date of the order (July 5, 2019). Contrary to Mr. Dales
submission, the time did not run from the date the order was issued and entered
(October 1, 2019):
Byers (Litigation Guardian of) v. Pentex Print Master
Industries Inc
.
(2003), 62 O.R. (3d) 647 (C.A.), at para. 31.
[12]
I do not believe Mr. Dales assertion that he
had the intention to appeal the order of Diamond J. within 30 days of the date
the order was made, or even, allowing for some delay in the order coming to his
attention, within 30 days of when he knew about the order (which he says was in
August 2019, although the responding party has provided evidence that the
endorsement of Diamond J. was sent to one of the email addresses he had
provided to the court on July 8, 2019). If he had the intention to appeal at
the time, I would have expected Mr. Dale to have served a notice of appeal or to
have had some other contemporaneous communication with Ms. Teitlers counsel to
advise that he was seeking to appeal the vexatious litigant order. The absence
of this kind of evidence is telling. It is more likely, as I will explain, that
Mr. Dale only formed the intention to appeal the vexatious litigant order after
he attempted to appeal Kiteley J.s order and was informed by the court that he
required leave of a Superior Court judge to do so. This was more than a year
after Mr. Dale had been declared a vexatious litigant.
[13]
I turn to the next factor: the length of and
explanation for Mr. Dales delay in seeking an extension of time.
[14]
This motion was brought some two years after the
order Mr. Dale is seeking to appeal. Mr. Dale claims that he is not responsible
for any of the delay; rather, he blames the Court of Appeal staff for the delay.
Without indicating precisely when, Mr. Dale asserts that he immediately
contacted the Court of Appeal intake office to bring his motion to extend the
time for filing the notice of appeal, but that court staff told him they would
not accept any filing of his notice of motion because he is a vexatious
litigant. He says that court staff maintained this position until recently. Mr.
Dale also states that he was prevented from bringing his motion because only
urgent matters could be brought to this court as a result of the COVID-19
pandemic.
[15]
I do not accept Mr. Dales explanation for the
lengthy delay of more than two years between the order he seeks to appeal and
his motion to extend time to appeal: essentially that court staff and the
pandemic prevented him from proceeding with his motion.
[16]
First, there is nothing to substantiate Mr.
Dales assertion that court staff prevented him from bringing a motion to extend
time to appeal the vexatious litigant order from the time the order was made,
and for the following 20 months. In oral argument Mr. Dale explained the
absence of any emails or other written evidence during this period by asserting
that all of his communications with the court were verbal. I simply do not
believe Mr. Dale on this point.
[17]
Mr. Dale has reproduced portions of an email
exchange with court staff on January 21 and 22, 2021. The emails make it clear
that he had tried to file a notice of appeal from the final order of Kiteley J.,
and was prevented from doing so without an order of a Superior Court judge due
to the vexatious litigant order. He took the position that he was entitled to
appeal the order notwithstanding the vexatious litigant order, which is wrong
at law. While a vexatious litigant is entitled to appeal the order declaring
him vexatious without leave, he is not permitted to appeal any other decision
or order without leave of a Superior Court judge:
Kallaba v. Bylykbashi
(2006),
265 D.L.R. (4th) 320, at paras 29-33, leave to appeal refused, [2006] S.C.C.A.
No. 144. It appears that when the court refused to accept his notice of appeal
for filing, Mr. Dale realized that he would need to successfully appeal the
order of Diamond J., if he were to appeal the order of Kiteley J. without an
order of a Superior Court judge. This occurred in January 2021.
[18]
Mr. Dale relied on an email exchange with court
staff on July 27, 2021. On that occasion a staff member refused his filing
because he was a vexatious litigant. Mr. Dale sorted out the misunderstanding
with the Deputy Registrar, and an hour later he received an email confirming he
could file his motion. As Mr. Dale emphasized in his oral argument, he is a persistent
litigant. If, as he claims, he had been prevented by the court from filing a
motion to extend time to appeal the vexatious litigant order since the fall of
2019, no doubt he would have sorted out the issue, as he quickly did in July of
this year.
[19]
Mr. Dale also relies on the COVID-19 pandemic to
explain his delay in moving for an extension of time. Contrary to Mr. Dales claim
that he was told that he could not bring his motion because the court was
accepting only urgent matters, this court continued to sit on appeals and
motions in 2021, including motions to extend time to appeal. The timelines for
serving and filing documents in this court were extended between March 16, 2020
and July 15, 2020, and regular timelines were reinstated effective July 16,
2020. There is nothing in the courts COVID Practice Directions that would have
prevented Mr. Dale from pursuing a motion to extend time to appeal the vexatious
litigant order.
[20]
Mr. Dale has not provided a reasonable
explanation for his lengthy delay in seeking an extension of time to appeal the
vexatious litigant order.
[21]
I turn to consider the merits of the appeal. Compelling
merits may tip the balance in cases where, as here, other factors militate
against an extension of time: see
Howard
, at para. 36.
[22]
Mr. Dales principal ground of appeal is that he
was denied a fair hearing, due process and natural justice when the vexatious
litigant order was granted in the context of a combined motion and application
hearing. He also asserts that the application judge erred in law and fact because
the underlying facts do not support the vexatious litigant finding. I will
consider each ground in turn.
[23]
With respect to the procedure on a vexatious
litigant application Mr. Dale relies on two cases:
Lukezic v. Royal Bank of
Canada
, 2012 ONCA 350 and
Kallaba
.
In
Lukezic
this court agreed with the dissenting reasons of Lang J.A. in
Kallaba
that a vexatious litigant order shall only be made on application. Mr. Dale
says that, although an application was issued, in substance what was heard was
not an application. Essentially, I understand his argument to be one of
procedural fairness. He points to para. 16 of
Lukezic
where the court
stated:
an application provides the procedure best
suited to the determination of whether a litigant is vexatious. In large
measure this is because of the due process protections which that procedure
accords to the person targeted, such as personal service, adjudication by a
judge, a directed trial of an issue if necessary, and the right of appeal
without the need for leave.
[24]
Mr. Dale was afforded all of the due process
protections referred to in this passage. While a due process argument might
be made in another case on a different record, I cannot see any prospect of it
succeeding in this case. Mr. Dale had notice that a vexatious litigant order
was sought, and it was pursued by application. Although he had arranged the court
attendance and knew its purpose, Mr. Dale did not attend when Akbarali J.
provided directions for the hearing of the application together with Ms. Teitlers
motion for contempt and to strike his Answer. As the case management judge, Akbarali
J. was familiar with the proceedings and the parties and she made an order that
was entirely within her discretion. She set a timetable for the delivery of the
materials and for the hearing by Diamond J., who had been appointed as the
judge to hear motions in the family law proceedings. Mr. Dale complied with the
timetable when he delivered his responding materials on time. He attended court
on the appointed date, however he left the hearing after his request for an
adjournment was denied. As Diamond J. explained, Mr. Dale sought an adjournment
in order to bring a motion that was based on a conspiracy theory and that he
had threatened to bring for months, if not arguably, years.
[25]
Mr. Dales draft notice of appeal also asserts
that Diamond J. erred in law and fact in making the vexatious litigant order. However,
Mr. Dale did not press this argument in the motion before me, except to suggest
that Diamond J. was wrong to rely on previous orders of Faieta J. and Akbarali
J. Mr. Dale in fact made numerous attempts to appeal or set aside various
orders in the family law proceedings, including the orders of Faieta J. as the
previous case management judge:
Dale v. Teitler
, 2018 ONSC 6861 (Div.
Ct.). Diamond J. made it clear that, although he had no reason to doubt the correctness
or appropriateness of Akbarali J.s findings of fact, he had reviewed the
Continuing Record, and had reached the same conclusions. Diamond J. referred to
Mr. Dales avoidance of his court-ordered obligations, his pursuit of
unattainable remedies based on a conspiracy theory that stretch[ed] the boundaries
of reality, his commencement of civil and criminal proceedings against Ms.
Teitler, her lawyers, judges and other professionals, the motions he had
brought and abandoned, his attempts to re-litigate issues that had been decided
against him, and ultimately his total disregard for the Court and its
resources: at paras. 43, 44. Diamond J.s reasons, which are detailed and
comprehensive, reveal no reversible error.
[26]
Since I have concluded that the proposed appeal
has no arguable merit, this factor weighs against granting an extension of
time.
[27]
Finally, I turn to consider prejudice to Ms.
Teitler and the children, which informs my consideration of the justice of the
case. Mr. Dale contends that there will be little prejudice to Ms. Teitler
because he is willing not to deal with property and support issues. His willingness
not to deal with such issues is a hollow offer: Mr. Dale is in default of the
outstanding orders for support and equalization. He has paid very little child
support in the last five years. The child support arrears are significant.
[28]
I accept Ms. Teitlers submission that to permit
Mr. Dale to proceed at this stage with his appeal would severely prejudice her
interests and those of the children. In addition to the outstanding support and
equalization payment obligations, Mr. Dale is in default of numerous costs
awards. If Mr. Dales appeal proceeds, she will have to incur further legal
costs, without hope of recovering such costs from Mr. Dale. As for the
children, although Mr. Dale has not complied with many of the orders in the
family law proceeding, Ms. Teitler describes the current situation as relatively
stable, and not disregulated. And, as Ms. Teitlers counsel pointed out, there
is a path forward that is available to Mr. Dale in relation to the children
he could comply with the provisions of the orders of Faieta J. dated August 31,
2018 and Kiteley J. dated December 17, 2020 respecting the children.
[29]
For these reasons the extension of time is
refused.
Stay Pending Appeal
[30]
Having refused the extension of time for Mr.
Dale to appeal the vexatious litigant order, it is unnecessary to address the
question of a stay. I will briefly explain why I would have dismissed the
motion for a stay if I had granted the extension.
[31]
A stay of proceedings is a discretionary order
made when the court is persuaded that (1) the appeal has arguable merit; (2)
there would be irreparable harm to the moving party if the stay were refused;
and (3) the balance of convenience favours a stay. Again, the overarching
consideration is whether the interests of justice call for a stay:
BTR
Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust
,
2011 ONCA 620, at para. 16.
[32]
I have already determined that the proposed
appeal is without merit. Mr. Dale has put forward no evidence that would
persuade me that there would be irreparable harm if the stay were refused. I
accept the evidence that a stay would be harmful to the children and to Ms.
Teitler. The balance of convenience in any event weighs heavily against a stay.
The record confirms that Mr. Dale has engaged in meritless and vexatious
litigation, while at the same time disregarding the procedures of the court. He
has ignored court orders respecting parenting and support issues, including orders
restricting his contact with the children. To stay the vexatious litigant order
pending appeal would only permit and encourage Mr. Dale to continue such
harmful conduct while an appeal is pursued.
Disposition
[33]
For these reasons the motion is dismissed. Ms.
Teitler is entitled to her costs. She has asked for the opportunity to make
written submissions. The court will receive costs submissions as follows: from
the responding party on or before August 27, 2021, and from the moving party on
or before September 3, 2021, with no right of reply. Costs submissions shall be
limited to three pages per side, exclusive of the moving partys bill of costs.
K. van Rensburg J.A.
[1]
FS-15-400682 is subject to a sealing order in the
Superior
Court made December 17, 2020 by Kiteley J.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Advanced Farm Technologies-JA v. Yung Soon Farm Inc., 2021
ONCA 569
DATE: 20210817
DOCKET: C68506
Feldman, Paciocco and Coroza
JJ.A.
BETWEEN
Advanced Farm Technologies-JA, Limited, carrying on business as
Advanced Farm Technologies, JA. Ltd., and Advanced Farm Technologies, Jamaica Ltd.
Plaintiff
(Respondent)
and
Yung Soon Farm Inc.
, Michael Chung, Walter Chung, and Stephen Chung
Defendants
(
Appellant
)
James Chow, for the appellant
Mahdi M. Hussein, for the respondent
Heard: March 9, 2021 by videoconference
On
appeal from the order of Justice Janet Leiper of the Superior Court of Justice,
dated June 19, 2020, with reasons at 2020 ONSC 3831.
Feldman J.A.:
[1]
The appellant was sued under the simplified procedure
for failing to pay the agreed price of US$48,238.49 for papayas ordered and
delivered. After having default judgment set aside, the appellant defended the
action and instituted a counterclaim for $5,000,000 in damages for breach of
contract and $1,000,000 in punitive damages, taking the action out of the simplified
procedure. After that, the appellant effectively absented itself from the
litigation, with the result that its defence and counterclaim were eventually struck
out by the motion judge without leave to amend. The appellant appeals that
decision.
[2]
The motion judges decision is well-supported by
the record and the law. I would dismiss the appeal.
A.
History of the Action
[3]
The statement of claim was served on all parties
in December 2017, no statement of defence was filed, and default judgment was obtained
in January 2018. In August 2018, the defendants had the default judgment set
aside on the condition that they pay costs and deliver a defence within 30 days.
After the plaintiff discontinued its action against the individual directors, the
appellant delivered its statement of defence along with a counterclaim for $5
million for breach of contract and $1 million punitive damages, which had the
effect of converting the action from the simplified procedure to the ordinary
stream. After the plaintiff moved to strike portions of the appellants
pleading, the appellant delivered an amended statement of defence and
counterclaim in January 2019.
[4]
The plaintiff delivered its affidavit of
documents on June 7, 2019, then made numerous attempts thereafter to move the
litigation forward, with no response from appellants counsel except to cancel
the scheduled examinations for discovery and to consent to the timetable
imposed by Master Short. I am setting out the details, as did the motion judge,
because understanding the full extent of the appellants conduct of the
litigation is necessary to understand and review the decision of the motion
judge to strike the defence and counterclaim. The following are the details:
a.
July 11, 2019:
Plaintiffs
counsel's office wrote to appellants counsel in an attempt to schedule
examinations for discovery. Counsel to the plaintiff advised appellant's
counsel that, "We have tried contacting your office numerous times, and
only reach your voicemail. You have not returned any of our recent
voicemails."
b.
July 24, 2019:
Plaintiffs counsels office set dates for examination for discovery, as he had
not heard from appellant's counsel nor had he received the appellants
affidavit of documents.
c.
August 12, 2019:
Four days before the scheduled examinations for discovery, appellant's counsel
advised that his client was unable to attend and asked the plaintiff to provide
further dates. Appellants counsel did not advise when his client would provide
its affidavit of documents.
d.
August 27, 2019:
Plaintiff's
counsel made a further request for the appellant's affidavit of documents and
provided available dates for examinations between September and October 2019.
Plaintiff's counsel advised that if appellant's counsel did not respond, he
would schedule a motion to compel the appellant's affidavit of documents and
would issue a further notice of examination. Appellant's counsel did not
respond to this correspondence.
e.
September 13, 2019:
Plaintiff's counsel unilaterally set an examination for discovery
of the appellant for October 17, 2019 and sent correspondence to the appellant's
counsel advising of this date. Appellant's counsel did not respond to this
correspondence.
f.
September 23, 2019:
Plaintiff's counsel served a motion record on the appellant's
counsel with a return date of October 2, 2019, seeking the appellant's
affidavit of documents and an order for the appellant to attend the scheduled
examination for discovery. The appellant filed no responding materials for this
motion. Appellant's counsel did not respond to this correspondence.
g.
October 2, 2019:
The court imposed a timetable on consent,
and ordered costs of $1500
payable to the plaintiff in 60 days. The order required the appellant to
deliver its unsworn affidavit of documents by November 1, 2019. The appellant
did not comply with the timetable. The appellant did not pay the costs ordered
within 60 days.
h.
November 4, 2019:
Plaintiff's counsel sought to formalize the October 2, 2019 endorsement. In
that letter, plaintiffs counsel sought the status of the appellant's affidavit
of documents. Plaintiff's counsel also put appellants counsel on notice that he
would move to strike the defence. Appellant's counsel did not respond to this
correspondence.
i.
March 6, 2020:
Plaintiff's
counsel enclosed a notice of examination in aid of execution seeking payment
for the outstanding costs award from the October 2, 2019 motion. Plaintiff's
counsel also sought dates for a motion to strike the appellant's defence for
failing to abide by the terms of the October 2, 2019 endorsement. This letter
asserted that, "It is clear that your client has no interest in litigating
the action." Appellant's counsel did not respond to this correspondence.
j.
March 16, 2020:
Plaintiff's
counsel wrote to inform appellant's counsel that due to the COVID-19 pandemic
the court would not schedule its motion. Plaintiff's counsel sought a virtual
mediation in accordance with Rule 24 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194
. Appellant's
counsel did not respond to this correspondence.
k.
May 12, 2020:
Plaintiffs
counsel informed appellant's counsel via email of the chambers appointment
returnable on May 15, 2020. Appellant's counsel did not respond to this
correspondence.
l.
May 13, 2020:
Plaintiffs counsel provided appellant's counsel with a proposed schedule for
the litigation ahead of the chambers appointment. Appellant's counsel did not
respond to this correspondence.
m.
May 15, 2020:
Myers
J. convened a chambers appointment. Appellant's counsel did not attend. The
motion to strike the defence was scheduled on that date and timelines were set
for delivery of motion materials.
[5]
The order under appeal was made on a motion in
writing dated June 15-19, 2020, which was scheduled by Myers J. at the May 15,
2020 chambers appointment that appellants counsel did not attend. After the
plaintiff had served its motion record and factum, on June 11, 2020, the
appellant sent a cheque for the outstanding costs due to the plaintiff with a
letter apologizing for the delay. Finally, on June 12, 2020, the appellant
delivered its affidavit of documents with a letter that apologized for the
delay, proposed mediation, and asked for the plaintiffs position on posting
security for costs. An affidavit of an officer of the appellant stated that he
believed the appellant had a strong case, and that the appellant intended to
proceed expeditiously and would participate in mediation, but provided no
explanation for any of the delays or for its failure to abide by the order of
Master Short.
B.
The Motion Judges Analysis
[6]
The motion judge referred to Rule 60.12 of the
Rules
of Civil Procedure
, which allows the court to sanction a party for failure
to comply with an interlocutory court order, including by staying the
proceeding, dismissing the proceeding, striking out a defence, or making such
other order as is just.
[7]
The motion judge referred to the 2009 decision in
Dew Point Insulation Systems Incorporated v. JV Mechanical Limited
,
259 O.A.C. 179, where Bellamy J. summarized
the purpose and approach to Rule 60.12 motions: to sanction repeated procedural
breaches while bearing in mind that striking the defence is a last resort
remedy to be used when there has been utter disregard for court orders or where
there is prejudice to the other party. Applying those principles, the motion
judge concluded that the appropriate remedy was to strike the defence and
counterclaim, based on five aspects of the record.
1. The
appellant took no step to move the litigation forward without a court order.
2. The
appellant breached the consent order of Master Short by failing to deliver the
affidavit of documents or the costs on time.
3. The
appellant did not remedy the breaches until after the plaintiff had scheduled a
compliance motion, and delivered a motion record and factum.
4. The
appellant displayed a months long pattern of failing to respond to correspondence.
5. The
appellant asserted that the action was vexatious, yet it took no steps to deal
with the action as such, and instead responded with a $6 million counterclaim
that belied the suggestion that the claim was vexatious.
[8]
The motion judge acknowledged that the plaintiff
was seeking an extreme remedy but concluded that it was warranted in all the
circumstances. By ignoring Master Shorts order, the appellant showed an utter
disregard for court orders in the overall context of this litigation, as outlined
above.
C.
Issues
[9]
The appellants position on appeal is that the
motion judge erred by: 1) failing to give the appellant a last chance to comply
with court orders; 2) failing to acknowledge that by the return of the motion the
appellant was no longer in breach of Master Shorts order; 3) failing to
consider the merits of its defence; 4) failing to consider that the action was at
the early stages and should have been decided on its merits; and 5) failing to
consider that there was no evidence of prejudice to the plaintiff.
D.
Analysis
[10]
This court has recently had the opportunity to
address the issue of when it is appropriate to strike a pleading under Rule
30.08(2) of the
Rules of Civil Procedure
for non-compliance with document
disclosure obligations in
Falcon Lumber Limited v. 2480375 Ontario Inc. (GN
Mouldings and Doors)
, 2020 ONCA 310. In that case, the court summarized
the applicable principles, at para. 57, as follows:
To summarize, several principles guide the
exercise of a courts discretion to strike out a partys 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 partys 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 partys 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 partys
conduct has increased the non-defaulting partys 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 partys 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.
[11]
Because the default in this case involved the
appellants failure to produce an affidavit of documents, the principles
articulated by the court in
Falcon
are clearly relevant and should apply
accordingly. In this case, the appellant also breached a court order, which
adds significantly to the impugned conduct. In addition, counsel, on behalf of
the appellant, failed to respond to normal communications from opposing counsel
with no explanation.
[12]
With respect to the last resort issue raised
by the appellant, there are a number of responses. First, as Brown J.A.
explains in
Falcon
, a court may strike out a pleading if that is the
remedy warranted by all the circumstances, as long as the party has had a
reasonable opportunity to cure any non-compliance. Second, as the plaintiff points
out, had the appellant attended the chambers appointment with Myers J., it
would have had its last chance to comply with Master Shorts order before going
to the motion where the pleading was struck. Third, in this case, the appellant
shunned the many overtures made by plaintiffs counsel to comply and move
forward with the litigation. Instead, the appellant ignored every overture
after the consent order of Master Short.
[13]
With respect to taking into account the
potential merit of the appellants defence, Brown J.A. points out that it plays
only a limited role in the courts analysis because if a party has a strong
position on the merits, one would expect them to produce their documents to
demonstrate that strength.
[14]
In applying the common sense factors set out by
Brown J.A.,
·
the appellants failure to comply with Master
Shorts court order appears to have been deliberate as so many chances were
given to comply and there has been no explanation for its inaction;
·
the appellants failure to comply is clear;
·
although there has now been very late compliance
with Master Shorts order and a statement in its officers affidavit that the
appellant intends to proceed expeditiously with the litigation, without an
explanation for its prior inaction, there is no basis on which to accept its
assurance;
·
the substance of the default was significant;
·
the appellant complied with Master Shorts order
mere days before the motion to strike, meaning that the appellant was in
default when the motion was commenced and even after the chambers appointment
before Myers J.; and
·
the impact of the default was that the litigation
could not proceed.
[15]
Further, there was clearly prejudice to the
plaintiff, through the ongoing cost of chasing the appellant to fulfill its
procedural obligations and to participate in the litigation, as required by the
Rules of Civil Procedure
.
[16]
Ultimately the motion judge concluded that the
extreme remedy of striking the appellants pleadings was warranted, noting that
she did not grant it lightly. She considered the appellants compliance with
the order of Master Short, but noted that it was done on the last possible
day. She also considered the steps taken by the plaintiff and the responses of
the appellant in the overall context and concluded that the remedy requested
by the plaintiff was the appropriate one.
[17]
The motion judge was entitled to conclude that
notwithstanding the appellants eventual, months late delivery of the costs and
affidavit of documents ordered by Master Short, its history of an overall
failure to participate in the litigation process in accordance with the Rules
called for the extreme remedy of striking the appellants statement of defence
and counterclaim. I see no error in the motion judges approach. I would not
interfere with her decision.
E.
Conclusion
[18]
I would therefore dismiss the appeal with costs,
fixed in the agreed amount of $10,000 inclusive of disbursements and HST.
Released: August 17, 2021 K.F.
K. Feldman J.A.
I agree. David M. Paciocco J.A.
I agree. S. Coroza J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: McEwen (Re), 2021 ONCA 566
DATE: 20210812
DOCKET: C67520
Juriansz, Huscroft and Jamal
JJ.A.
In the
Matter of the Bankruptcy of Robert Morris Jr. McEwen and Caroline Elizabeth
McEwen, of the Town of Perth, in the County of Lanark, in the Province of
Ontario
BETWEEN
Barbara
Lynn Carroll by Her Litigation Guardian Shannon Luknowsky, Shannon Luknowsky,
Jeffrey Carroll and Shannon Luknowsky as Executor for the Estate of Lorne
Carroll
Plaintiffs
(Respondents)
and
Robert
McEwen and Caroline McEwen
Respondents
and
Traders General Insurance Company
,
improperly described in Superior Court of Justice Court File Number
CV-17-00073740-0000 as Aviva Canada Inc.
Person Affected by an Order
Obtained
on Motion Without Notice
(
Appellant
)
Harvey Chaiton and Alan Rachlin, for
the appellant
Joseph Y. Obagi, for the respondents
Heard: May 14, 2021
On appeal from the order of Justice Stanley
J. Kershman of the Superior Court of Justice, dated September 26, 2019, with
reasons reported at 2019 ONSC 5593.
Juriansz J.A.
:
A.
INTRODUCTION
[1]
This appeal is brought by the defendant to an
action assigned to the respondents by a trustee in bankruptcy under s. 38 of
the
Bankruptcy and Insolvency Act
, R.S.C. 1985, c. B-3 (BIA). As is
often observed, the BIA is a complete code governing the bankruptcy process.
Parliament enacted the BIA to provide summary and expeditious procedures to
determine the questions that arise in bankruptcy with a minimum of cost. Generally,
the defendant to a s. 38 assigned action lacks standing in the bankruptcy
process to contest the s. 38 order and resulting assignment and thus avoid
defending the assigned action. Where such defendants wish to avoid the risk and
expense of responding to assigned lawsuits that they consider meritless, the
civil rules of practice provide summary procedures to which they can resort.
[2]
In this case, Traders General Insurance Co. (Traders)
appeals, with leave, from the order of Kershman J. dated September 26, 2019, dismissing
its motion to set aside his order dated December 21, 2016, pursuant to s. 38 of
the BIA, made in the bankruptcy of Robert McEwen and Caroline McEwen. The s. 38
order authorized the respondents (the Carrolls) to commence an action against
Traders for alleged bad faith in failing to settle the Carrolls personal
injury claims against the McEwens within the policy limits. After the s. 38 order
was made, the trustee assigned its interest in the action to the Carrolls, as
contemplated by s. 38(2).
[3]
I conclude that Kershman J. correctly found Traders
did not have standing to challenge the s. 38 order, and consequently, I would
dismiss the appeal.
B.
Facts
(1)
The personal injury action
[4]
On March 28, 2009, Barbara Carroll was injured
by a motor vehicle driven by Robert McEwen and owned by Caroline McEwen. The
McEwens were insured by Traders
[1]
for $1 million. On March 25, 2011, the Carrolls commenced an action against the
McEwens and their own insurers, Aviva Canada Inc. and Pilot Insurance Co. Some
months later, on September 15, 2011, the McEwens filed for bankruptcy,
automatically staying the Carrolls personal injury action. The sworn statement
of affairs that the McEwens filed in their bankruptcy listed the Carrolls
personal injury claim as an unsecured claim for $375,000.
[5]
On June 18, 2012, the McEwens received their
automatic absolute discharge from their bankruptcy, and subsequently, the
trustee was discharged.
[6]
On October 12, 2012, the Carrolls obtained an
order lifting the stay of proceedings pursuant to s. 69.4 of the BIA, and granting
leave to the Carrolls to continue to prosecute their claims against the
bankrupts, ROBERT MCEWEN and CAROLINE MCEWEN.
[7]
The Carrolls claim they made an offer to settle
the action within policy limits on the eve of the trial that began in September
2015, and that the offer was not accepted by Traders. The trustee wrote to the
McEwens counsel stating that the insurer, by refusing the offered settlement,
had placed its own financial interests in priority to that of its insureds and
accordingly was acting in bad faith. The trustee gave notice to Traders that
in the event a Judgment is granted against Robert and Caroline McEwen for any
sum greater than the limits of the liability policy, we hold Aviva fully liable
for the excess amount.
[8]
After a six-week trial, the jury assessed Barbara
Carrolls pain and suffering in the amount of $300,000 and her future care
costs in the amount of $3,600,000. The jury also awarded family law damages in
the amount of $43,000. The jury found Barbara Carroll 38 percent contributorily
negligent for the accident. With pre-judgment interest included, the trial
judges formal judgment, dated September 19, 2016, found the McEwens liable to
the Carrolls in the amount of $2,610,744.32 plus costs and post-judgment
interest. The formal judgment also ordered the Pilot Insurance Company to pay
$1 million of the judgment pursuant to the provisions of the OPCF 44R endorsement
in the Carrolls own automobile insurance policy. The trial judge included a
paragraph in the judgment limiting the McEwens personal liability. The
paragraph provided:
THIS COURT ORDERS AND AJUDGES that the
judgment against the Defendants Robert McEwen and Caroline McEwen, personally,
is limited to the limits of their insurance policy with the Aviva Insurance
Company Canada in the amount of $1,000,000.00.
[9]
Finally, the trial judge made a conditional
assignment order of Barbara Carrolls future statutory accident benefits in
favour of the insurer if the insurer paid the trial judgment in full, even
though it exceeded the limits of coverage. The trial judge fixed costs of the
action in the amount of $375,000, a sweeping reduction from the amount claimed
of $795,616.09 because of the behaviour of the Carrolls counsel relating to a
settlement offer made by the insurance companies, the lack of benefit to the Carrolls
in pursuing the trial, and the behaviour of the Carrolls counsel that extended
the trial:
Carroll (Litigation guardian of) v. McEwen
,2016 ONSC 2075,
37 C.B.R. (6th) 70. The Carrolls appeal of the assignment order and the costs
award was unsuccessful:
Carroll v. McEwen
, 2018 ONCA 902, 143 O.R.
(3d) 641.
(2)
Proof of claim and s. 38 order
[10]
On October 11, 2016, the Carrolls filed a proof
of claim in the McEwens estate for the amount of $624,349.01, which was the
amount awarded by the trial judgment in excess of insurance coverage. The
Carrolls also asked the trustee to advance a bad faith claim against Traders
for its refusal to settle the action within the policy limits before trial. The
trustee, after consulting with the Office of the Superintendent of Bankruptcy regarding
the scope of s. 41(10) of the BIA, which provides a discharged trustee may
perform duties as may be incidental to the full administration of the estate,
advised the Carrolls in writing that it would accept the proof of claim as
filed, that it would not take any action against the McEwens insurers, and
that it would consent to a s. 38 BIA order allowing the Carrolls to take the
action in their own name.
(a)
Section 38
[11]
Section 38 of the BIA contemplates that the
trustee may refuse or neglect to take a proceeding. Here, the trustee refused
to take action with respect to any claim against Traders, stating the estate
was without funds. In such situations s. 38 of the BIA allows a creditor to
obtain a court order authorizing it to take the proceeding at its own expense
and risk. Section 38(1) provides:
Where a creditor requests the trustee to take
any proceeding that in his opinion would be for the benefit of the estate of a
bankrupt and the trustee refuses or neglects to take the proceeding, the
creditor may obtain from the court an order authorizing him to take the
proceeding in his own name and at his own expense and risk, on notice being
given the other creditors of the contemplated proceeding, and on such other
terms and conditions as the court may direct.
[12]
Upon such an order being made, s. 38(2) provides
that the trustee shall assign and transfer to the creditor all their right,
title, and interest in the proceeding including any document in support thereof.
Section 38(3) provides that any benefit derived from the proceeding belongs
exclusively to the creditor who instituted the proceeding to the extent of
their claim, and that any surplus belongs to the bankrupt estate.
(b)
The Carrolls motion for a s. 38 order
[13]
The Carrolls applied for a s. 38 order. The
supporting material for their motion included a lawyers affidavit alleging
that Traders had acted in bad faith leading up to the trial by refusing to
settle the personal injury claim within the policy limits. The exhibits to the
affidavit included the Masters order to continue, the Carrolls offer to settle
the personal injury action, the trial judges judgment in the amount of
$2,610,744.32, the Carrolls proof of claim, a letter from the trustee
accepting the proof of claim, and the trustees consent to the s. 38 order.
[14]
The Carrolls served the motion materials on the trustee
and the other creditors of the estate. They did not serve Traders. The motion
came before Kershman J., who granted the s. 38 order on December 21, 2016. The
next day the trustee assigned the bad faith claim to the Carrolls. On August
25, 2017, the Carrolls issued the statement of claim against Aviva Canada, claiming
damages for the breach of a duty of good faith in its dealings with the McEwens
insurance coverage.
[15]
The statement of claim pleads that Aviva Canada provided
the McEwens with liability insurance with policy limits of $1 million and that [t]he
rights, interests and liabilities [of the McEwens]
under their policy of
insurance were transferred to their trustee in bankruptcy. It goes on to plead
that at the same time as Aviva Canada was defending the action against the
McEwens, Aviva Canada (together with Pilot Insurance Company) was also the
insurer of Barbara Carroll under her OPCF 44R Family Protection Endorsement with
limits of $2 million. The theory of the bad faith action asserted in para. 16
of the statement of claim, is that Aviva Canada improperly withheld the policy
limits of the McEwens in an effort to leverage the settlement position and
litigation strategy of Aviva Canada in its capacity as OPCF 44R insurer of
Barbara Carroll.
[16]
In the action, the Carrolls claimed damages of $624,349.01,
which is the amount of the judgment in excess of the McEwens insurance
coverage, and punitive and exemplary damages of $1 million.
(c)
Traders motion to set aside the s. 38 order
[17]
Traders moved to set the s. 38 order aside, indicating
it was improperly described as Aviva Canada Inc. in the Carrolls bad faith
action. Traders motion, brought in the Superior Court of Justice in Bankruptcy
and Insolvency, sought an order:
1)
reversing the decision of the trustee to allow the proof of claim
filed by the Carrolls;
2)
setting aside the s. 38 order granting the Carrolls leave to
commence proceedings against Traders; and
3)
setting aside the trustees assignment of the bad faith claim of
action to the Carrolls.
[18]
The motion relied on ss. 37 and 187(5) of the
BIA. Section 37 allows the bankrupt, any creditor, or an aggrieved person to
apply to the court to confirm, reverse or modify an act or decision of the
trustee. Section 187(5) allows the court to review, rescind or vary any order
made by it under its bankruptcy jurisdiction.
[19]
Traders motion alleged:
1)
the Carrolls proof of claim was improper and filed in violation of
the trial judges reasons and judgment in the personal injury action;
2)
the Trustee erred by accepting the Carrolls proof of claim;
3)
the bad faith claim was not property belonging to the McEwens on the
date of bankruptcy and did not devolve on the McEwens before their discharges
from bankruptcy;
4)
the Trustee had no interest in the bad faith claim and therefore could
not consent to the s. 38 order and could not assign the bad faith claim to the Carrolls;
5)
the trustee could not consent to the s. 38 order and assign the bad
faith claim after it had been discharged;
6)
the Carrolls had acted improperly in obtaining the s. 38 order without
giving notice to Traders; and
7)
that the Carrolls failed to make full disclosure in their s. 38
motion.
[20]
The motion was brought before Kershman J. who
had granted the s. 38 order.
(3)
Kershman J.s decision
(a)
Standing
[21]
The motion judge dismissed Traders motion on
the basis that it lacked standing to attack the trustees acceptance of the
proof of claim and assignment of the bad faith action, and lacked standing to
challenge the s. 38 order.
[22]
Kershman J. held that Traders had failed to put
forward any basis on which it was an aggrieved party under s. 37 of the BIA
for the purpose of reviewing the trustees decisions to accept the proof of
claim and to assign the bad faith claim to the Carrolls. On appeal, Traders
does not seek to rely on s. 37.
[23]
Kershman J. also held that Traders did not have
standing to review the s. 38 order of the court. He recognized that
Traders motion fell within an exception to the general rule that defendants
have no standing to challenge a s. 38 order because Traders had alleged
misrepresentations and non-disclosure by the Carrolls. However, he made
findings of fact rejecting these allegations. Therefore, Traders fell within
the general rule and had no standing to challenge the s. 38 order.
[24]
After he concluded Traders motion failed for
lack of standing, Kershman J. recognized he had no jurisdiction to deal with
Traders arguments but went on to address them anyway in consideration of the
possibility that this Court is found to have otherwise erred in its standing
analysis. He indicated he would have rejected all of Traders arguments and
dismissed its motion, even if it had had standing.
C.
Issues ON APPEAL
[25]
The relief claimed on appeal is narrower than
what was sought before the motion judge. The amended notice of appeal seeks to
appeal only from the dismissal of Traders motion to set aside the s. 38 order
granting leave to the Carrolls to commence the bad faith action against
Traders. The amended notice of appeal does not seek to set aside the trustees
acceptance of the Carrolls proof of claim and his assignment of the bad faith
claim to the Carrolls. Traders factum on appeal is consistent with the amended
notice of appeal. The request for relief in the factum requests only an order
setting aside the s. 38 order.
[26]
On appeal, Traders raises three issues:
1)
Did the motion judge err in holding that Traders had no standing to challenge
the s. 38 order?
2)
Should the s. 38 order be set aside because the Carrolls were not creditors
of the McEwens?
3)
Should the s. 38 order be set aside because the bad faith claim was
not property of the bankrupts and therefore could not be assigned by the
trustee?
D.
Analysis
(1)
Traders had no standing to challenge the s. 38
order
[27]
In order for Traders to advance its second and
third issues, it must establish that the motion judge erred in holding that it
had no standing to challenge the s. 38 order.
(a)
The general rule is that a proposed defendant
has no standing to challenge a s. 38 order
[28]
The established and strict rule, subject to certain
limited exceptions, is that a defendant to an action assigned under s. 38 has
no standing to contest the assignment:
Shaw Estate v. Nicol Island
Development Incorporated
, 2009 ONCA 276, 248 O.A.C. 35, at paras. 44-45. But
for the exceptions, the proposed defendant to an intended action has no right
to notice of the application for a s. 38 order, no right to be heard at the
application, and no right to review or appeal the order if it is made:
Coroban
Plastics Ltd., Re
(1994),
10 B.C.L.R. (3d) 52 (C.A.) (
sub nom Formula
Atlantic Financial Corp. v. Attorney General of Canada
)
, at
para. 8. The motion judge in
Formula Atlantic
, in explaining the defendants lack of
standing, noted that a proposed defendants rights are not adversely affected
by the
transfer from trustee to creditor of whatever
right of action may exist: [t]he order
imposes no liability on the [proposed
defendant] which did not previously exist, and leaves it free to assert in the
action every defence it ever had: at para. 8.
[29]
In
Shaw
, at paras. 43-45, Cronk J.A. reviewed
the jurisprudence that establishes the general rule against standing and the
limited exceptions. Cronk J.A. explained that the reason for the limited
exceptions is to ensure that the administration of justice and the integrity
of the bankruptcy process had not been undermined: at para. 48. Thus, the
defendant will be granted standing to contest a s. 38 order when there are
allegations of abuse of process, non-disclosure, procedural irregularities,
fraud and misrepresentation to the court: at para. 48. As well, where the s.
38 order imposes obligations on the defendant to the assigned action, directs it
to take specific steps in the litigation, or subjects it to costs, it will have
standing to move to vary the order:
Shaw
, at para. 45.
[30]
The appropriate practice for a defendant
claiming standing under the exceptions is to challenge the s. 38 order by
bringing an application for review under s. 187(5) of the Act:
Shaw
,
at para. 46. Section 187(5), however, does not give the defendant standing it
does not otherwise have:
Formula Atlantic
, at para. 11. Unless an
exception applies, the defendant to an action assigned under s. 38 cannot
resort to s. 187(5) to attempt to review and rescind a s. 38 order authorizing
a creditor to proceed with an action against it.
[31]
As noted already, in this court Traders does not
contest the motion judges finding that there was no misrepresentation or lack
of disclosure that would allow Traders standing. In this court Traders submits
that the
Shaw
exceptions are not exhaustive. It submits the New
Brunswick Court of Appeal recognized a different exception in
Isabelle v.
Royal Bank of Canada
, 2008 NBCA 69, 336 N.B.R. (2d) 332. Traders submits that
Isabelle
stands for the proposition that a defendant has
standing to challenge a s. 38 order on the basis of a discrete and genuine
issue of law that if decided in favour of the potential defendant would avoid
the need to defend a lawsuit that never should have been commenced in the first
place:
Isabelle
, at para. 39.
(b)
Isabelle
does not
change the law
[32]
In my view Traders misconstrues what was said in
Isabelle
. On my reading, the New Brunswick Court of Appeal did not
intend to create a new exception to the general rule that a proposed defendant has
no standing to challenge a s. 38 order.
Isabelle
had nothing to do with
standing to challenge a s. 38 order that has been issued.
Isabelle
addressed
standing at the s. 38 motion itself.
Isabelle
established that where
a proposed defendant is also a creditor, and thus has notice of another
creditors s. 38 motion, a motion judge has a narrow discretion to grant that
proposed defendant standing on the s. 38 motion if it raises a discrete and
genuine issue of law that if decided in favour of the potential defendant might
well avoid the need to defend a lawsuit that should never have been commenced
in the first place: at para. 39 The circumstances of this case are different.
[33]
The issue in
Isabelle
was
whether a bank, which was both the proposed defendant to the s. 38 assigned
action
and a creditor
, should have been granted intervener status to
oppose another creditors s. 38 motion. The proposed defendant had received the
notice of motion because it was also a creditor. The court said a proposed defendant
that is also a creditor was entitled to participate in the s. 38 proceedings for
the limited purpose of preserving his or her right to share rateably in the
spoils of the action: at para. 33. The court also recognized that a motion
judge, when hearing a s. 38 motion, retained a narrow discretion to grant a proposed
defendant who is also a creditor standing to raise a determinative discrete and
genuine of law: at paras. 5, 39.
[34]
In my view, it is a mistake to divorce the
court's comments from the context of the case and understand them as generally
applicable. The courts comment in
Isabelle
applies only to a
proposed defendant who happens to be at the s. 38 hearing because it is also a
creditor. The court was not suggesting that a party named as a defendant in a s.
38 order could be granted standing to move to set aside the order
after
it had been made.
[35]
It may well be more efficient to allow a
defendant, who is participating in the s. 38 motion as a creditor, to raise a
decisive discrete and genuine issue of law in opposing the motion, but there is
no economy in allowing a defendant to commence a s. 187(5) process to review
and rescind the s. 38 order after it has been made rather than raising the
alleged decisive issues on a summary judgment motion in the assigned lawsuit
itself.
Isabelle
alluded to the situation in which the proposed
defendant had not been given notice of the s. 38 motion and suggested, then
presumably the potential defendant has the right to raise the issue on a
preliminary motion once the lawsuit is filed: at para. 38.
[36]
In my view,
Isabelle
provides no
support for the contention that a defendant has the right to standing to review
an issued s. 38 order, under s. 187(5), on the basis of a determinative discrete
and genuine issue of law.
[37]
I conclude that Traders, having abandoned its
allegations of misrepresentation and lack of disclosure, does not have standing
to challenge the motion judges grant of the s. 38 order.
E.
Conclusion and Discussion
[38]
The conclusion that Traders has no standing to
challenge the s. 38 order dictates that the appeal be dismissed, and this court
is without jurisdiction to determine the other issues raised. The motion judge
went on to address Traders other arguments in consideration of the
possibility that this Court is found to have otherwise erred in its standing
analysis. I will follow the same approach.
(1)
The s. 38 order should not be set aside on the
basis that the Carrolls were not creditors of the McEwens
[39]
Traders argues that the Carrolls were not
creditors of the bankrupt and therefore a s. 38 order could not be made
authorizing them to proceed with the action. The wording of s. 38 makes clear
that an order can only be made in favour of a creditor.
[40]
To support this argument, Traders submits: 1) the
stay of proceedings against the McEwens had been lifted solely to enable the
Carrolls to access the McEwens' insurance proceeds; 2) the trial judge had
specifically limited the judgment against the McEwens to the limits of their
insurance policy; and 3) the most the Carrolls could realize of the damages
awarded was the amount of their liability and underinsured insurance coverage.
[41]
Traders submissions presume that whether the
Carrolls were creditors was a discrete and genuine issue of law that would be
determinative. That presumption is incorrect. The question whether the Carrolls
were creditors of the bankrupt estate is a question of fact before the s. 38
motion judge. Cronk J.A. in
Shaw
, at para. 60, said, For the purpose of
a s. 38 motion, the court need only be satisfied on a balance of probabilities
that the applicant is a creditor of the bankrupt: at para. 60. See also
DeGroote
v. Canadian Imperial Bank of Commerce
(1996), 45 C.B.R. (3d) 132 (Ont.
Gen. Div.), at para. 7, aff'd (1998), 37 O.R. (3d) 651 (C.A.), leave to appeal
to S.C.C. refused, [1998] S.C.C.A. No. 149;
Alfano v. KPMG Inc
.
(1999), 7 C.B.R. (4th) 47 (Ont. Gen. Div.); and
Polar Products Inc. v.
Hongkong Bank of Canada
(1992), 14 C.B.R. (3d) 225 (B.C.S.C.).
[42]
On appeal, a s. 38 motion judges conclusion
that the applicant is a creditor would be reviewed as a finding of fact. For
example, in
Shaw
, Cronk J.A. was satisfied there was some evidence the
applicant was a creditor: at para. 62. In
Shaw
, there was an affidavit
before the motion judge that the applicant was a creditor, and though the
applicants proof of claim was not part of the affidavit, the bankrupts sworn
statement of creditors and liabilities, in which he acknowledged the
[applicant] as one of his unpaid creditors at the date of bankruptcy, was
attached as an exhibit to the affidavit: at para. 61.
[43]
In this case, there was evidence before the
motion judge that the Carrolls claim had been included on the McEwens sworn statement
of affairs filed on the date of bankruptcy; that the Carrolls had a judgment
against the McEwens in the amount of $2,610,744.32; and that their proof of
claim for the damages in excess of the limits of the insurance policy had been
accepted by the trustee (a determination of the trustee that is not contested
on appeal). Based on this evidence, it is my view the motion judge could have
been satisfied the Carrolls were creditors for the purpose of s. 38.
(2)
The s. 38 order should not be set aside on the
basis that the bad faith claim was not property of the bankrupt
[44]
The second argument Traders makes is that the
bad faith claim is not property of the bankrupts because it did not devolve on
them before they were discharged as required by s. 67(1)(c) of the BIA.
[45]
Traders relies on this courts decision in
Dundas
v. Zürich Canada
, 2012 ONCA 181, 109 O.R. (3d) 521
.
In that case
the court held an action against an insurer for breach of its duty of good
faith was not a claim under the insurance contract; rather, it was an
extra-contractual claim that did not arise until the insurers liability to
indemnify the insured was established. Traders argues that in this case its
liability to indemnify the McEwens was not established until more than three
years after the McEwens were discharged from bankruptcy in June 2012. Traders
liability to indemnify the McEwens was established at the earliest when the
jury rendered its verdict on October 30, 2015, or more likely when the trial
judgment was issued on September 19, 2016. Traders argues that since the bad
faith cause of action did not arise until after discharge it could not be property
that devolved on the McEwens before their discharge. Thus, Traders submits the
bad faith claim did not vest in the trustee and the trustee was unable to
assign it.
[46]
The issue may raise a question of law that could
be determinative, but it is not one that the s. 38 motion judge had to decide. This
court has held, where the trustee consents to the s. 38 order, that the merits
of the action are irrelevant at the s. 38 motion:
Dominion Trustco Corp.,
Re
(1997), 50 C.B.R. (3d) 84 (Ont. C.A.).
[47]
The reasons of the court are admittedly brief, but
the court made clear it approved of the reasoning of the motion judge in that
case. Cameron J. in that case,
Dominion Trustco Corp., Re
(1997), 45
C.B.R. (3d) 25 (Ont. Gen. Div.), said, at paras. 12-13:
The purpose of s. 38 is to enable the creditors to protect
their own interests where the Trustee declines, for economic or other reasons,
or neglects to do so.
The merits of the
action have nothing to do with this purpose
.
If this was not a bankruptcy situation, there is nothing to
prevent the holder of a right of action assigning it to another without regard
to the merits of the right of action.
The
fact that the assignor is a bankrupt should not give the proposed defendant a
right to attack the authorization based on the merits of the cause of action
.
[48]
He opined, at para. 11, that the merit of the
action was an issue for the trial of the action itself:
an issue for the courts of the jurisdiction
hearing the action. If this was a condition, the proposed defendant would, by
way of appeal from a s. 38 order, have two opportunities to attack the proposed
action on the basis that it is without sufficient merit to justify bringing the
action. This makes no sense to me in the context of the BIA. It is better left
for determination under the laws of the jurisdiction in which the proceedings
will be brought.
[49]
Cameron J. did recognize that there may be a
need for a s. 38 motion judge to inquire into the merits when the trustee
opposes the granting of the order:
Jolub Construction Limited, Re
(1993), 21 C.B.R. (3d) 313 (Ont. Gen. Div.).
[50]
In upholding Cameron J.s decision this court stated
that
the registrar who granted the s. 38 order did not
have a duty to be assured that there was substance in a claim which is going
forward by consent of the Trustee:
Dominion
Trustco
, at para. 1.
[51]
The Alberta Court of Appeal is the only other
court of appeal to consider
Dominion Trustco. In Smith v.
Pricewaterhousecoopers Inc
.
, 2013 ABCA 288, the Alberta Court of Appeal
distinguished
Dominion Trustco
on the basis that the motion in
Dominion
Trustco
proceeded with the consent of the trustee: at para. 21. In
Smith
,
the trustee had not consented and the court, citing a long line of authority,
described establishing a
prima facie
case or showing the claim is not
frivolous or vexatious or
obviously
spurious as a requirement for issuing a s. 38 order: at para. 19.
[52]
In
Davidson (Re)
, 2021 ONCA 135, 86 C.B.R. (6th) 1, this court followed
Smith
without
citing
Dominion Trustco
. However, that was a case in which the s. 38 motion was made
without the trustees consent.
[53]
Houlden and Morawetz, citing
Zammit, Re
(1998), 3 C.B.R. (4th) 191
(Ont. Gen. Div.), a decision that followed
Dominion
Trustco
, say, in Ontario, an applicant for a s.
38 order does not have to present a
prima facie
case: Lloyd W. Houlden, Geoffrey B. Morawetz & Dr. Janis P.
Sarra,
Bankruptcy and Insolvency Law of Canada
, 4th ed (Toronto: Thomson Reuters Canada, 2009, loose-leaf) Bankruptcy
and Insolvency Act, at §86 (WL). That is so, at least in a case in which the
trustee consents to the s. 38 order.
[54]
The s. 38 order, in this case, was issued with
the trustee's consent. Thus, even if Traders had general standing
in the bankruptcy process to contest the s. 38 order, its argument that
the trustee had no property interest in the bad faith action would fail as it
relates to the merits of the proposed action.
[55]
Taking the analysis one step further, even if
the assessment of the merits of the proposed action was a prerequisite of the
issuance of a s. 38 order, the bad faith claim, in this case, meets the not spurious
standard. Upon the McEwens bankruptcy, their liability for the motor vehicle
accident was transferred to the trustee and the bankrupt estate became liable
for the damages caused by the accident. The McEwens contract of insurance was also
transferred to the trustee and the bankrupt estate became the insured and
entitled to the proceeds of the insurance to satisfy the estates liability to
the Carrolls:
Mercure v. Marquette & Fils Inc
.
, [1977] 1 S.C.R. 547, at p. 553;
Perron-Malenfant v. Malenfant (Trustee of)
, [1999] 3 S.C.R. 375, at para. 14. An insurer generally has the
duty to deal with an insured with the utmost good faith and the insured has a
right of action for any breach of that duty. As the insured was the bankrupt
estate, the trustee could take action to remedy any breach of the alleged duty
of good faith.
[56]
Any argument that the bad faith claim is not
property of the estate would have to be decided conclusively on a summary
judgment motion in the action itself.
In
Holley v.
Gifford Smith Ltd
, 26 D.L.R. (4th) 230 (Ont. C.A.), this court explained that defendants to
actions assigned under s. 38 should generally pursue their efforts to avoid
defending against the action in the civil trial court rather than in bankruptcy
court. This and other arguments to defeat the action could not constitute a
collateral attack on the s. 38 order as long as they leave the order in place.
[57]
As was pointed out in
Formula Atlantic
, at para. 8, the
effect of a s. 38 order is to transfer from trustee to creditor
whatever
right of action may exist
(Emphasis added). The motion judge, in that case,
went on to observe, "The order in this case imposes no liability on the
appellant which did not previously exist, and leaves it free to assert in the
action every defence it ever had: at para. 8. The Carrolls, as assignees,
stand in the shoes of the trustee:
Shaw
, at para. 72;
Indcondo Building Corp.
v. Sloan
, 2012 ONCA 502, 91 C.B.R. (5th) 324, at
para. 29. If the trustee has no property interest in the bad faith claim, then
neither do the Carrolls and their action would be dismissed on a summary
judgment motion.
F.
DISPOSITION AND Costs
[58]
I would dismiss the appeal and would fix costs in
favour of the respondent in the amount of $22,500 all inclusive as counsel have
agreed. I am not persuaded there is any basis for revisiting the costs awarded
on the appellants applications for leave.
Released: RSJ August 12, 2021
R.G.
Juriansz J.A.
I
agree. Grant Huscroft J.A.
I
agree. M. Jamal J.A.
[1]
The statement of the claim in the assigned action, the s. 38
order, and the trustees assignment and correspondence all refer to the
McEwens insurer as Aviva Canada or Aviva Canada Inc. In the style of its
motion to set aside the s. 38 order, Traders indicates it was improperly
described as Aviva Canada Inc. in the bad faith action. The McEwens insurance
policy was not included in the record. The cause of the confusion, or the
relationship between Aviva Canada and Traders, if any, was not explained at the
appeal.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Dass v. Kay, 2021 ONCA 565
DATE: 20210811
DOCKET: C68041
Strathy C.J.O., Brown and Miller
JJ.A.
BETWEEN
Paul Dass, 1218934 Ontario
Limited and 2169460 Ontario Limited
Plaintiffs (Appellants)
and
Mark Kay & CFO Capital
Defendants (Respondents)
Osborne G. Barnwell, for the appellants
Kim T. Duong, for the respondents
Heard: February 10, 2021 by video conference
On appeal from the judgment of Justice Judy
A. Fowler Byrne of the Superior Court of Justice, dated January 17, 2020.
B.W. Miller J.A.:
A.
Overview
[1]
The appellants appeal from the motion judges dismissal
of their action on a motion for summary judgment. The motion judge concluded
that the appellants claims were statute-barred under the
Limitations Act,
2002
, S.O. 2002, c. 24, Sched. B. The appellants argue that in reaching
that conclusion, the motion judge committed multiple errors of law and palpable
and overriding errors of fact.
[2]
For the reasons that follow, I conclude that the
motion judge did not err and that the appeal should be dismissed.
B.
Background
[3]
The appellant Paul Dass is the principal of the
two corporate appellants, 1218934 Ontario Limited and 2169460 Ontario Limited.
In these reasons, I will refer to Paul Dass as Mr. Dass, and Mr. Dass and the
two corporate appellants as, collectively, the appellants.
[4]
The respondent Mark Kay is a mortgage broker and
the principal of the respondent CFO Capital, which carries on business as a
mortgage brokerage.
[5]
In early 2015, the respondents were asked
by their client Jaswant Dass, brother of Mr. Dass, to secure financing for the $6
million purchase of a commercial property on Drew Road in Toronto. The
respondents submitted the loan application to Roynat Capital (Roynat), an
affiliate of the Bank of Nova Scotia (Scotiabank). The loan application
listed Mr. Dass and his company 1829131 Ontario Inc. (Teletime), which is not
a party to this appeal, as guarantors. The loan application also indicated that
Teletime would be the tenant and included Teletimes financial statements in
support (the Drew Road Application).
[6]
Mr. Dass, however, knew nothing about the Drew
Road Application. He had never agreed to guarantee the loan, was not involved
in any way with the purchase, had no intention of leasing the property, and had
not authorized the disclosure of the financial statements. Jaswant Dass was ultimately
unsuccessful with the Drew Road Application.
[1]
[7]
Mr. Dass first learned about the Drew Road Application
in July 2015, during his own negotiations with Roynat. He was seeking financing
for the purchase of a commercial property on Wolfedale Road, Mississauga (the Wolfedale
Application).
[8]
A financial officer at Roynat, Chad Pitre,
brought the Drew Road Application to Mr. Dasss attention on July 24, 2015. Mr.
Dass responded that he was not involved with the Drew Road Application and he had
never agreed to guarantee the loan. Mr. Pitre provided Mr. Dass with the name
of the brokerage that sent the Drew Road Application to Roynats office - the
respondent CFO Capital.
[9]
Mr. Dass testified that from the time he first
heard from Mr. Pitre about the Drew Road Application on July 24, he was
concerned that it could interfere with the Wolfedale Application. He testified,
however, that he thought he could manage the situation with Roynat.
[10]
Roynat later declined the Wolfedale Application.
Mr. Dass testified that in August, Mr. Pitre told him that the Application was refused
because Roynat no longer wanted to finance his type of business - not because
of his association with the Drew Road Application.
[11]
Nevertheless, on August 21, 2015, after receiving
the news, Mr. Dass sent an email to his lawyer, copying Mr. Pitre, a
representative of CFO Capital, and others. In the email, he complained that the
refusal was the result of improper action by the broker and Jaswant Dass that
harmed his reputation in the eyes of Roynat. He expressed concern that he could
lose millions of dollars in business as a result and asked his lawyers opinion
as to whether he could pursue criminal charges against Jaswant Dass and CFO
Capital. The email, in its entirety, read as follows:
Hi, Osborne
Please see attached fraud application filed to
Roynat the lender by Broker called CFO GROUP, who were hired by Jaswant Dass
for his business loan requisition. And my name is written the loan application
without my authority and broker filed this application without my consent.
I had request filed to Roynat for my business
requirements, this week i got call from Roynat officer that application is
declined.
I had 3 loan requirements in last 3 years and
Roynat full filled without problems.
My request with Roynat was submitted in May
2015, Roynat officer gave me term sheet also gave me term sheet for loan with
few pending items.
Roynat officer told me he spoke to the higher
persons in-charge at Roynat all looks good, every thing changed when
application was submitted by mortgage broker on behalf of Jaswant Dass to
Roynat in July, since then all have changed i started to get calls from Roynat
that the application sent by Jaswants broker might mess up my loan request.
And in my thinking mine and my companies image
got deteriorated in the view of the lender Roynat due to improper action by the
broker and Jaswant Dass.
Jaswant Dass lied to my accountant to take my
financial information.
Due to this stupid action by broker and
Jaswant could end up i lose the property required for my business expansion.
And it will result in MILLIONS OF DOLLARS OF LOSS IN BUSINESS.
PLEASE ALSO ADVISE ME IF I CAN GO TO LOCAL
POLICE STATION, IF POSSIBLE TO FILE FRAUDULENT CASE AGAINST THE BROKER INVOLVED
AND JASWANT DASS
Paul Dass [
sic
]
[12]
Around this time, Mr. Dass was also attempting
to finalize a loan from Scotiabank to refinance another property, located at
Dixie Road, Mississauga (the Dixie Road Application).
[13]
When Roynat denied the Wolfedale Application, Mr.
Dass turned to Scotiabank. Scotiabank ultimately denied both the Wolfedale
Application and the Dixie Road Application.
[14]
Mr. Dass eventually secured financing for the Wolfedale
property through other lenders, although at a higher interest rate than what was
offered by Roynat, and completed the purchase. He also obtained financing for
the Dixie Road property at a higher rate than what was initially offered by
Scotiabank.
[15]
Mr. Dass stated that in January 2018, when it
was time to renew the loan for the Wolfedale property, he approached Roynat and
Scotiabank again. At this time, representatives of each allegedly explained that
he had been blacklisted due to the Drew Road Application submitted by CFO
Capital in 2015.
C.
Procedural history
[16]
The appellants statement of claim was
issued on April 27, 2018. In it, the appellants described their claim as
seeking damages for the reputational and commercial harm suffered by the appellants
and caused by the respondents submission of the Drew Road Application:
The claim seeks damages for the unauthorized
use of personal information by the defendants in a loan application put
forward, seemingly, on behalf of the individual plaintiff and his corporate
interests. The unauthorized loan application was made to the plaintiffs
commercial lenders for financing. That unauthorized application caused the
plaintiffs commercial lender to refuse to do business with them. Implicit in
that refusal is the irreparable reputational injury to the individual
plaintiff.
[17]
The respondents brought a motion for
summary judgment on the basis that the appellants claim was statute-barred, having
been brought outside the two-year limitation period established by s. 4 of the
Limitations
Act, 2002
.
[18]
The motion judge accepted that the claim was
suitable for summary judgment and dismissed the action as statute-barred.
[19]
The motion judge found that the appellants:
·
knew on July 24, 2015 of the unauthorized use of
their information in the Drew Road Application;
·
knew on July 27, 2015 of the respondent CFO
Capitals involvement; and
·
had concluded, by August 21, 2015, that Mr. Dass
would suffer financial loss as a result of the Drew Road Application, as
evidenced by Mr. Dasss email on that date to his counsel.
[20]
Accordingly, the motion judge found that by
August 21, 2015, the appellants were aware of all of the material facts
required to advance their claim. As the statement of claim was not issued until
April 27, 2018, more than two years later, the action was statute-barred.
D.
Issues on appeal
[21]
The appellants raise two grounds of appeal,
alleging: (i) the motion judge erred in law by misinterpreting s. 5 of the
Limitations
Act, 2002
and (ii) the motion judge made palpable and overriding misapprehensions
of fact.
E.
Analysis
(1)
The Law The
Limitations
Act, 2002
[22]
Section 4 of the
Limitations Act, 2002
states:
[u]nless this Act provides otherwise, a proceeding shall not be commenced in
respect of a claim after the second anniversary of the day on which the claim
was discovered.
[23]
The determination of when a claim was discovered
is governed by s. 5:
5 (1) A claim is discovered on the
earlier of,
(a) the day on which the person with
the claim first knew,
(i) that
the injury, loss or damage had occurred,
(ii) that
the injury, loss or damage was caused by or contributed to by an act or
omission,
(iii) that
the act or omission was that of the person against whom the claim is made, and
(iv) that,
having regard to the nature of the injury, loss or damage, a proceeding would
be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable
person with the abilities and in the circumstances of the person with the claim
first ought to have known of the matters referred to in clause (a). 2002,
c. 24, Sched. B, s. 5 (1).
Presumption
(2) A person with a claim shall be
presumed to have known of the matters referred to in clause (1) (a) on the day
the act or omission on which the claim is based took place, unless the contrary
is proved. 2002, c. 24, Sched. B, s. 5 (2).
[24]
Although the
Limitations Act, 2002
essentially codified the existing discoverability principle (
Grant Thornton
LLP v. New Brunswick
, 2021 SCC 31, at para. 35), s. 5(1)(a)(iv) added a
new factor to that analysis the appropriateness of bringing a proceeding. This
factor is central to this appeal.
[25]
This courts jurisprudence interpreting s.
5(1)(a)(iv) was recently distilled into three principles by Hourigan J.A. in
Sosnowski
v. MacEwan Petroleum Inc.
, 2019 ONCA 1005, 441 D.L.R. (4th) 393, at paras.
16-19.
[26]
First, the determination of whether a
proceeding is an appropriate means to seek to remedy an injury, loss, or damage
depends on the factual and statutory context of each case:
Sosnowski
,
at para. 16.
[27]
Second, this court has recognized two
non-exclusive factors that can operate to delay the date on which a claimant
would know that a proceeding would be an appropriate means to remedy a loss: (i)
when the plaintiff relied on the defendants superior knowledge and expertise,
particularly where the defendant has taken steps to ameliorate the plaintiffs
loss; and (ii) where an alternative dispute resolution process offers an
adequate remedy, and it has not been completed:
Sosnowski
, at para.
17.
[28]
Third, appropriate means that it is legally
appropriate to bring a proceeding, rather than practically advantageous. This
third principle excludes from consideration many practical and tactical reasons
a claimant might have for not commencing a proceeding at an earlier time when
it was legally appropriate to do so, such as the belief that the claim might be
difficult to prove. Put differently, [a]ppropriate does not include an
evaluation of whether a civil proceeding will succeed:
Sosnowski
, at
paras. 18-19.
(2)
Standard of Review
[29]
The determination of whether a limitation
period has expired is a question of mixed fact and law and the motion judges
conclusion is entitled to deference in the absence of a palpable and overriding
error in her assessment of the evidence:
Longo v.
MacLaren Art Centre Inc.
,
2014 ONCA 526 at para. 38.
(3)
Issue 1: The Motion Judge Did Not Err in Law in
Her Analysis under s. 5 of the
Limitations
Act, 2002
(i)
The Appellants Argument
[30]
The appellants argue that the motion judge erred
in her interpretation of s. 5 of the
Limitations Act, 2002
. They allege
that she erred in her understanding of what it means for a person to have discovered
that damage has occurred and that, pursuant to s. 5(1)(a)(iv), a proceeding
would be an appropriate means to seek to remedy it, including by: (i) unreasonably
restricting her analysis to whether the appellants had knowledge of the facts
that established the cause of action; (ii) overlooking the additional
requirement in s. 5 that a complainant know that the defendant caused the
complainant damage or loss; and (iii) improperly concluding that Mr. Dass had
assumed he would suffer financial loss.
[31]
In particular, the appellants argue that they did
not know that CFO Capitols actions had resulted in any loss worth pursuing until
2018, when they were advised by Roynat that the appellants had been blacklisted
due to the Drew Road Application.
[32]
The appellants claimed that Mr. Dass knew in
2015 that Jaswant Dass and CFO Capital had submitted a fraudulent loan
application falsely claiming that Mr. Dass and his company agreed to guarantee
the loan. Mr. Dasss evidence was that he believed his reputation was tarnished
by the Drew Road Application and that he would face a significant financial
loss as a result. That loss would be the lost opportunity to expand his
business and the loss resulting from higher financing costs.
[33]
However, Mr. Dass testified that in August 2015,
he had no evidence to prove his suspicion that his inability to obtain financing
was the result of the respondents conduct. He believed it to be the case, but the
lenders denied it. This created an evidential problem. He sought counsel from
his lawyer, who advised him that an action against the respondents would be
unlikely to succeed given the absence of evidence that the respondents had
caused his loss. He was told that an action was therefore inadvisable.
[34]
On Mr. Dass evidence, it was not until 2018,
when he approached Roynat for the renewal of the mortgage for Wolfedale, that
he knew he had suffered any loss. At that time, a representative of Roynat told
him that he had been blacklisted in 2015 because of the Drew Road Application. Armed
with that knowledge, he commenced his action.
(ii)
The Motion Judge Did Not Err
[35]
The motion judge did not err in her articulation
or application of the discoverability principle as codified in s. 5(1). As
recently restated by the Supreme Court, a claim is discovered when the material
facts that are actually or constructively known by a plaintiff enable the
plaintiff to determine that it has
prima facie
grounds to infer
liability on the part of the defendant or, equivalently, enable the plaintiff to
draw a plausible inference of liability on the part of the defendant:
Grant
Thornton
, para. 45. The motion judge found, largely on the strength of the
August 21, 2015 email, that Mr. Dass had the requisite knowledge by that date. The
email speaks for itself, and the motion judge made no error in finding that the
claim was discovered by that date.
[36]
Section 5(1)(a)(iv), as the appellants note,
postpones the start of the limitation period until a claimant knows that a
proceeding would be an appropriate means to seek to remedy an injury, loss, or
damage.
[37]
The appellants argue that the motion judge erred
by rejecting the proposition that an assessment of the appropriateness of
litigation, within the meaning of 5(1)(a)(iv), includes an assessment of the prospect
of the success of litigation, particularly where the party has relied on an
assessment of merits by legal counsel.
[38]
For the reasons given below, I do not agree that
the motion judge erred.
[39]
First, as explained above, the case law
interpreting s. 5(1)(a)(iv) has, to date, recognized two situations delaying
the start of the limitation period: (i) where a plaintiff relied on a
defendants superior knowledge and expertise, especially where the defendant
took steps to ameliorate the loss; and (ii) where the parties have engaged an
alternative dispute resolution process offering an adequate remedy and it has
not been completed. The appellants do not come within either situation.
[40]
Claimants such as the appellants who have relied
on the advice of their legal counsel are not in an analogous position to
claimants who have relied on the assessment of their situation provided by defendants.
The case law recognizes that it would be unreasonable to discourage claimants
from reasonably relying on a defendants good-faith efforts to remedy an issue
and thereby potentially avoiding the need for a lawsuit:
Brown v. Baum
,
2016 ONCA 325, 397 D.L.R. (4th) 161, at paras. 18, 24;
Presidential MSH
Corp. v. Marr, Foster & Co. LLP
, 2017 ONCA 325, 135 O.R. (3d) 321, at
paras. 20, 26. Here, the appellants have been in no way dependent on the
respondents for information, an understanding of their position in relation to
Roynat or any other lender, or efforts to remedy the damage they claim to have
suffered. The appellants accordingly never delayed bringing an action on that
basis.
[41]
Neither have the appellants engaged in an
alternative dispute resolution process with the respondents, such that it would
be unfair not to take that process into account under s. 5(1)(a)(iv):
407
ETR Concession Co. Ltd. v. Day
, 2016 ONCA 709, 133 O.R. (3d) 762, at para.
40, leave to appeal refused, [2016] S.C.C.A. No. 509;
Presidential
,
at paras. 28-29.
[42]
The appellants are not, of course, restricted to
the two categories of cases identified to date that delay the start of the
limitation period. But if they cannot bring themselves within those two
categories they must propose another set of circumstances in which it could be
said, on a principled basis, that a person with a claim could not have known that
an action would be an appropriate means to remedy the injury, loss, or damage.
[43]
What the appellants have proposed is, in effect,
an expansion of the class of matters under s. 5(1)(a)(iv) to include any
situation where plaintiffs know they have been wronged or suffered damage at
the hands of the defendants, but doubt they will be able to marshal the
evidence to prove the claim and are unsure whether the scale of the eventual
commercial loss will make an action remunerative.
[44]
This proposal has been considered and rejected by
courts repeatedly:
Sosnowski
, at para. 19;
Peixeiro v. Haberman
,
[1997] 3 S.C.R. 549, at para. 18. The motion judge made no error in not
accepting it. To give s. 5(1)(a)(iv) the meaning that the appellants propose
would substantially reduce the certainty the
Limitations Act, 2002
is intended
to provide.
[45]
Second, as the respondents argue, the
appellants argument conflates the concepts of damage and damages. The
difference has been explained by the Nova Scotia Court of Appeal in
Smith
v. Union of Icelandic Fish Producers Ltd.
, 2005 NSCA 145, 238 N.S.R. (2d)
145, at para. 119, adopting A.I. Ogus explanation given in
The Law of
Damages
(London, Butterworths, 1973), at p. 2: damages should connote the
sum of money payable by way of compensation
, while the use of
damage is best confined to instances where it refers to the
injury
inflicted
by the tort or breach of contract (emphasis in original). See
also
Hamilton (City) v. Metcalfe & Mansfield Capital Corporation
,
2012 ONCA 156, 347 D.L.R. (4th) 657, at para. 55;
Brozmanova v. Tarshis
,
2018 ONCA 523, at para. 35.
[46]
The limitation period does not commence only
when one can ascertain what damages one would be entitled to as a remedy, such
that one would be better able to assess whether litigation would be an
attractive option.
[47]
Accordingly, I reject the appellants arguments
under this ground of appeal. The motion judge did not err in law in her
interpretation of the
Limitations Act, 2002.
(4)
Issue 2: The Motion Judge Did Not Commit Any
Palpable and Overriding Errors in Her Analysis Under s. 5 of the
Limitations Act, 2002
[48]
The appellants argue that the motion judge made palpable
and overriding errors of fact in her characterization of the loss that the
appellants claim to have suffered.
[49]
The appellants argue that there were two
separate claims: (i) damages for Mr. Dass loss of reputation, quantified at $200,000
and (ii) damages for the higher interest costs payable by the appellant
corporations, quantified at $500,000. The appellants argue that the motion
judge only considered the latter.
[50]
They further argue that the motion judge erred
in finding that the appellants knew they had suffered damage in July 2015, and by
ignoring the fact that Mr. Dass sought legal advice to determine whether he
should commence an action.
[51]
I do not agree that the motion judge made any
error.
[52]
The motion judge made no error in finding that Mr.
Dass knew in July 2015 that his reputation had been damaged by the actions of CFO
Capital and that a proceeding was an appropriate means of seeking a remedy. The
losses incurred by the corporate appellants as a result of having to pay
disadvantageous interest rates were a direct consequence of Mr. Dass loss of
reputation caused by the Drew Road Application. The motion judge found that Mr.
Dass knew this in July 2015. That finding was open to her.
[53]
Similarly, the motion judge did not overlook any
aspect of the appellants claim. She linked Mr. Dass alleged loss of
reputation and the increased cost of borrowing incurred by the corporate
appellants because they were, in fact, linked. The loss of reputation resulted
in the increased carrying costs.
[54]
Finally, the suggestion that the motion
judge overlooked the argument that the appellants relied on the advice of legal
counsel, and that this reliance should have been considered under s. 5(1)(b) as
a matter of when a reasonable person with the abilities and in the
circumstances of the person with the claim first ought to have known, is of no
assistance. On appeal, the issue is not what a reasonable person would have
known, but what Mr. Dass in fact knew. That the appellants relied on the advice
of legal counsel is not relevant to any matter in issue.
F.
DISPOSITION
[55]
I would dismiss the appeal and award the
respondents costs of the appeal in the amount of $18,000, inclusive of HST and
disbursements.
Released: August 11, 2021 G.R.S.
B.W.
Miller J.A.
I
agree. G.R. Strathy C.J.O.
I
agree. David Brown J.A.
[1]
CFO Capital eventually submitted another loan application on behalf
of Jaswant Dass to the Royal Bank of Canada. This application, which did not
name the appellants or Mr. Dass non-party company in any capacity, was
approved and the purchase of the Drew Road property closed on November 4, 2015.
|
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 complainants 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. Primmer, 2021 ONCA 564
DATE: 20210810
DOCKET: C66032
Doherty, Watt and van Rensburg
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Justin Primmer
Appellant
Richard Litkowski and Myles Anevich, for
the appellant
Emily E. Marrocco, for the respondent
Heard: February 22, 2021 by
video conference
On appeal from the conviction entered on
July 9, 2015, and from his designation as a dangerous offender and the sentence
imposed on May 29, 2017, by Justice Alissa K. Mitchell of the Superior Court of
Justice, with reasons reported at 2017 ONSC 2953.
van Rensburg J.A.:
OVERVIEW
[1]
The appellant appeals his convictions for
assault, aggravated assault, assault causing bodily harm and uttering threats
to property. He also appeals the decision declaring him a dangerous offender
and imposing an indeterminate sentence.
[2]
The charges
[1]
arose out of events that occurred during a two-month period in 2013. The
complainant was the appellants intimate partner, who, among other things,
testified about two assaults by the appellant during their brief and volatile
relationship: the beating incident, in which the appellant allegedly injured
the complainants face, and the cutting incident, in which he allegedly cut
her forearms. The central issue at trial was the assessment of the credibility
and reliability of the complainant, who admitted having lied to the police, the
Childrens Aid Society (the CAS), to family members and to her best friend
when asked about the cause of her injuries. The appellant did not testify.
[3]
The appellant raises four issues on his
conviction appeal. He asserts that the trial judge erred: (1) by using the
complainants prior consistent statements and certain other evidence to
corroborate her trial testimony; (2) in explaining away the complainants credibility
problems by suggesting, without expert evidence, that she suffered from
Stockholm Syndrome; (3) in shifting the burden of proof to the appellant when
she concluded that he was the cause of the complainants injuries; and (4) in
relying on the ring of truth as a basis for believing the complainants
evidence about the appellants threat toward her fathers property.
[4]
In appealing the dangerous offender finding and
his indeterminate sentence, the appellant submits that (1) contrary to the
Supreme Courts decision in
R. v. Boutilier
, 2017 SCC 64, [2017] 2
S.C.R. 936, the trial judge failed to consider the factors of treatability and
intractability at the designation phase of her dangerous offender analysis; and
(2) the trial judge misapprehended the evidence of Dr. Philip Klassen, the
assessor appointed under s. 752.1 of the
Criminal Code
, and set too high
a standard for whether there was a reasonable prospect of eventual control of
the appellant in the community.
[5]
For the reasons that follow, I would dismiss the
conviction appeal and the appeal of the dangerous offender designation and
indeterminate sentence.
THE CONVICTION APPEAL
A.
FACTS
[6]
The appellant and the complainant met in
mid-March 2013 and began a volatile romantic relationship that lasted a little
over two months. The complainant was 20 years old at the time and lived with
her young daughter. The appellant regularly stayed overnight at the
complainants apartment, where they would consume large amounts of alcohol and drugs.
[7]
On April 28, 2013, the appellant invited a
friend to the complainants apartment to provide them with cocaine. The
complainant testified that when she refused to have sex with the friend to pay
for the drugs, the appellant struck her on the side of her head. Later that
morning, after they drove the appellants friend home and were alone in the
car, the appellant repeatedly punched the complainant in the head. The
complainant had no further recollection of events until she woke up in her bed in
the afternoon, took pictures of her injured face, and discussed what had happened
with the appellant. She testified that the appellant admitted to continuing the
beating after they returned to her apartment, both on the couch in the living
room, and in the bathroom. The complainant was convinced the appellant told her
the truth about the details of the beating after she found her broken necklace in
the bathroom.
[8]
According to the complainant, the appellant
became more controlling after the beating incident. He insisted that she cancel
her social media accounts and placed spyware on her cellphone to track her
communications. He prohibited her from wearing make-up and seeing friends. She
stopped attending college. She also testified that, sometime after the beating,
the appellant threatened to blow up her fathers car if she told anyone the true
cause of the injuries to her face.
[9]
The complainant testified that the cutting
incident took place at her apartment on May 17 or 18, 2013. She told the
appellant she did not think they should be together anymore. In response, the
appellant followed her into the kitchen, took a knife from the knife block, and
cut each of her forearms. They took photos of the injuries, which were deep and
resulted in scarring.
[10]
The appellant was arrested on May 25, 2013 for an
unrelated assault on another woman.
[2]
[11]
The complainant did not disclose the assaults to
the police until February 5, 2014. She had sent a text to her father, R.E., after
the beating incident, with photos of her face and a message saying that she had
been jumped after getting pizza. She repeated the story to R.E.s common law
partner, S.M., who advised R.E. of the extent of the injuries. R.E. suspected
the complainant was not telling the truth and that the appellant was
responsible for her injuries. He contacted the police, who met with the
complainant at her fathers house. The police in turn alerted the CAS. In repeated
interactions with the police and the CAS, the complainant denied or failed to
disclose that the appellant had assaulted her.
[12]
Following the cutting incident, the complainant
told her friend, A.A., that the injuries to her forearms were caused by a freak
gardening accident. On May 26, 2013, the police interviewed the complainant in
relation to the appellants assault on another woman. The police observed a
wound on the complainants left forearm that had begun to heal. The complainant
repeated that the wound was caused by a gardening accident. On two further
occasions she was questioned by police and she denied the appellant had
assaulted her.
[13]
R.E. testified that he had received by text message
from the complainants cell phone photos of her facial injuries and a message
stating that she had been jumped while getting pizza. S.M. testified that the
complainant had initially told her that she had been jumped, but that several
days after the beating incident, the complainant admitted that she had lied
about the cause of her facial injuries and told her that the appellant had
beaten her. S.M. also testified that the complainant told her sometime in June
2013 that the appellant was responsible for the cuts to her arms. The
complainants mother, H.E., testified that the complainant had initially denied
that the appellant had anything to do with her facial injuries and that she was
unable to contact the complainant to discuss the injuries to her arms until after
the appellants arrest on unrelated charges on May 25, 2013, when the
complainant told her that the appellant had cut her arms.
The Trial Judges Reasons for Conviction
[14]
Certain
aspects of the trial judges reasons are addressed below. It is sufficient at
this point to say that the trial judge convicted the appellant based on her
acceptance of the complainants evidence. She found that the complainant was a
credible and reliable witness. Although the complainant lied to police, family
and friends on several occasions, she had a reasonable explanation for doing
so, namely, that she was afraid of the appellant and what he would do if she
told anyone the truth. Further, the inconsistencies in her evidence were not
material.
[15]
The trial judge concluded that the complainants evidence about
the beating and cutting incidents and the appellants threat to destroy her
fathers car was truthful. The trial judge found that her evidence was
corroborated by photographs of her injuries, the broken necklace, and the
evidence of other witnesses. The trial judge also considered and rejected
alternate explanations for the complainants injuries that could have raised a
reasonable doubt.
B.
Issues AND DISCUSSION
(1)
Did the trial judge err in finding corroboration
for the complainants testimony where there was none?
[16]
This ground of appeal focusses on a passage in
the trial judges reasons which begins: I find that [the complainants]
evidence relating to the beating and the cutting is corroborated by the
photographs, the broken necklace, and also the evidence of the other witnesses
for the following reasons.
[17]
The appellant submits that the trial judge erred
in law in concluding that the photos, the broken necklace, and the evidence of other
witnesses corroborated her evidence. He asserts that the photos of the
complainants injuries, including one of the cuts to her arms with the
appellants shoe in the background, could corroborate only uncontroversial
details, such as the fact that the complainant was injured, and that the broken
necklace could not corroborate her evidence because it did not come from a
source independent of the complainant. With respect to the evidence of S.M. and
H.E., the appellant argues that the complainants prior consistent statements
to these witnesses were used improperly, to bolster her credibility.
[3]
[18]
In the discussion that follows, I will address
the trial judges use of the complainants prior consistent statements to S.M.
and H.E. in her assessment of the complainants evidence. Then, I will turn to her
treatment of the evidence of the photos and the necklace.
The Complainants Statements to S.M. and H.E.
[19]
The complainants injuries to her face and her
arms, and the timing of such injuries were not seriously in dispute. They were
evident in the contemporaneous photos that were introduced in evidence at the
trial, and they were described by various witnesses. There was no question that
the complainant had repeatedly denied that the appellant had caused her injuries,
and that she had offered other explanations to friends and family, the police
and the CAS. She had first told the police that the appellant caused the
injuries in February 2014, many months after the assaults had taken place. The
key issue at trial was the assessment of the credibility of the complainants
testimony, particularly in view of her prior inconsistent explanations for her
injuries and her insistence that she had not been assaulted by the appellant,
and the reliability of her evidence, because of the effect of drugs and alcohol
on her perception and memory.
[20]
While many of the witnesses at trial confirmed
that the complainant denied having been assaulted by the appellant and offered
other explanations, three witnesses, S.M., H.E. and R.E., testified about
conversations with the complainant in which she disclosed that she had been
assaulted by the appellant. The Crown led some of the evidence about these conversations.
Defence counsel cross-examined each witness about the details of the
conversations. In her reasons for conviction, the trial judge only referred to the
consistency between S.M. and H.E.s accounts of what the complainant told them
about the assaults, and the complainants own account.
[4]
Accordingly, the appellants
submissions on appeal focused on whether the trial judge used for an improper
purpose, prior consistent statements of the complainant, adduced through these
witnesses:
·
S.M., the common law partner of the
complainants father R.E., testified in chief that, although the complainant initially
claimed that her facial injuries were caused when she was jumped on the way
home from getting pizza, over time the complainant opened up to her more, and disclosed
that they were caused by the appellant. The complainant also told her the
details of how the appellant had cut her when S.M. saw the bandages on her arms.
S.M. was cross-examined on the details of what she had been told by the complainant
about both incidents.
·
The complainants mother, H.E., testified in
chief that, after the appellant had been arrested on an unrelated matter, the
complainant told her that the appellant cut her arms. Under cross-examination H.E.
confirmed that, after the appellant was arrested on the unrelated matter, the
complainant told her that the appellant caused the injuries to her face, and
she was taken through the details of her conversations with the complainant
about both incidents.
[21]
In closing submissions at trial, Crown counsel
proposed that the evidence of what the complainant told S.M., H.E. and R.E. could
be used for three purposes: first, to provide narrative of what the complainant
told family, friends and police and how her story had changed over time;
second, to neutralize the possibility that the complainants testimony at trial
was the product of a faulty memory or influenced by the consumption of alcohol
or drugs; and third, to respond to the defence argument that the complainants
prior statements revealed inconsistencies that rendered her trial testimony
unreliable. Crown counsel stated: It is the inconsistency of [the
complainants] evidence that will be the focus of [the defences] submissions
to you in your assessment of the reliability or the credibility of [the
complainant]. He submitted that the evidence of the witnesses about what they
were told by the complainant was remarkably consistent with her testimony.
[22]
In his closing submissions, defence counsel
challenged the complainants credibility and reliability. He referred to the
various versions of the complainants accounts of what had caused her injuries
which were inconsistent with her testimony, and he suggested that she was an
unreliable witness because of the influence of drugs and alcohol. He specifically
invited the trial judge to focus on inconsistencies between S.M. and H.E.s versions
of the beating and cutting incidents as relayed to them by the complainant, and
the complainants version of the incidents in her eventual disclosure to police
in February 2014 and in her testimony in court. He argued that, based on such inconsistencies,
the complainant provided a third version of each of the beating and cutting
incidents, that differed from her evidence at trial and what she had told the
police.
[23]
The trial judge said the following about the evidence
of S.M.:
[S.M.] testified to the extent of the facial
injuries she observed on April 30th. She also testified as to the events
leading up to the cutting described to her by [the complainant]. Her evidence
is largely consistent with the evidence of [the complainant] with respect to
these same events. Any inconsistency between her evidence and [the complainants]
evidence does not discredit the evidence of the [complainant], rather it goes
to the reliability of [S.M.s] evidence and its weight.
[24]
The trial judge said the following about the
evidence of H.E.:
[The complainants] mothers evidence is
similarly consistent with [the complainants] evidence with respect to the
beating incident and the cutting incident. Similarly, any inconsistency between
her evidence and [the complainants] evidence, does not discredit the evidence
of [the complainant], rather it goes to the reliability of [H.E.s] evidence
and its weight.
[25]
The appellant asserts that the trial judge erred
in using the complainants prior consistent statements to H.E. and S.M. to
bolster her credibility by comparing the statements for their truth with the
complainants testimony. The appellant says that this is apparent from the
trial judges use of the word corroborate in her introduction to the
discussion of this evidence and her observation that the witnesses evidence
and that of the complainant were consistent.
[26]
I disagree.
[27]
No objection was taken to the introduction of
the evidence of the prior consistent statements; indeed, much of the evidence
about the details of the conversations was elicited during cross-examination.
The evidence was, without question, admissible for certain purposes in the
context of the issues at trial. As Crown counsel submitted, the evidence of the
complainants explanations for her injuries and her disclosures were part of
the narrative: see e.g.
R. v. Vlaski
, 2019 ONCA 927, at para. 25, leave
to appeal refused, [2020] S.C.C.A. No. 78. Moreover, her changing account,
which was focused on by the defence, was central to the assessment of her credibility
and reliability. She had repeatedly denied that she had been assaulted by the
appellant, including to the CAS and the police, and it was only months after
she sustained the injuries that she told the police they were inflicted by the
appellant.
[28]
The fact that the complainant told others on
earlier occasions that she had been assaulted by the appellant was relevant to
her credibility in that it could help the trial judge assess the defence
argument that the complainant should not be believed because of the different
accounts of the relevant events she had given. Defence counsel not only
highlighted the complainants lies about the cause of her injuries, he also
attacked her credibility by arguing that there were material inconsistencies
between what she told S.M., H.E., and R.E., when she disclosed that the
appellant had caused her injuries, and her evidence at trial. The trial judge
was entitled to consider that argument having regard to the entirety of the
statements made to these witnesses. Using the complainants prior statements in
assessing the effectiveness of the defence challenge to her credibility does
not constitute using those statements for their truth or for the prohibited
inference that repetition enhances credibility. In addressing the prior
statements, the trial judge did what she was invited to do: she considered S.M.
and H.E.s accounts of what the complainant told them about the incidents and
the complainants testimony to assess whether the complainants account was
materially inconsistent when looked at as a whole, and to gauge the impact that
any differences in detail should have on the complainants overall credibility
and reliability. This is a permissible use of prior consistent statement
evidence: see e.g.,
R. v. L. (O.)
, 2015 ONCA 394, 324 C.C.C. (3d) 562,
at paras. 34-36.
[29]
Nor does the trial judges reference to the fact
that the evidence of the other witnesses corroborated the complainants
evidence mean that she was relying on the truth of the statements or the fact
of repetition to enhance the complainants credibility.
[30]
In a strict, legal sense, evidence can
corroborate the testimony of a witness only if that evidence is independent of
the witnesss testimony. What the witness said on a prior occasion is not independent
evidence capable of corroborating her evidence:
R. v. A.S.
, 2020 ONCA
229, at para. 52. In this case however I am not persuaded that the trial judge
was using the word corroborate in the strict legal sense.
[31]
In a case relied on by the appellant,
R. v.
Zou
, 2017 ONCA 90, 346 C.C.C. (3d) 490, the question was whether the trial
judge improperly used an email by the complainant as a prior consistent
statement to bolster her credibility. The trial judge had referred to the fact
that the email corroborated the complainants testimony, however the use of
the word corroborate was not determinative. Doherty J.A. explained, at para.
40, that corroboration, as commonly understood, refers to evidence from a
source other than the witness whose evidence is challenged which is capable of
confirming the veracity of the evidence of the challenged witness. He observed
however that, [a] proper contextual reading of the reasons will sometimes
demonstrate that the trial judge used the word corroboration in a more
limited sense than it is typically used: at para. 42.
[5]
[32]
This is what occurred in
R. v. D.A.
,
2018 ONCA 612. Although the trial judge stated that the complainants torn bra
provided some corroboration of the complainants version of events [that she
had been sexually assaulted], this court found that the word corroboration
was not used to suggest that the technical legal standards of corroboration had
been met. Rather, the trial judge was communicating no more than that the torn
bra provides support for the allegation. Because sexual assault did not
require technical corroboration, the trial judge would have had no reason to
invoke the technical legal concept: at para. 17.
[33]
Similarly, in the present case, the trial judge
was not required to find corroboration of the complainants evidence. Rather, at
the point in her reasons where she made the impugned comments, the trial judge was
examining the credibility and reliability of the complainants evidence, in the
context of the various challenges that had been made by defence counsel.
[34]
When her reasons are considered as a whole, together
with the submissions of counsel, it is apparent that the trial judge was not
relying on what the complainant told H.E. and S.M. for the truth of the
statements, and she was not using the statements as corroboration. The fact
that the complainant had disclosed the events to H.E. and S.M. was relevant in
a case where the complainant had repeatedly denied that the appellant caused
her injuries. In remarking on the consistency between what H.E. and S.M. recounted
about what they were told by the complainant and the complainants evidence,
the trial judge was rejecting the defence argument that these were prior
inconsistent statements that undermined her credibility.
The Photos and the Broken Necklace
[35]
Several photos of the complainants injuries
were in evidence. These included photos of her facial injuries that she took immediately
after the beating incident, photos of the facial injuries taken by S.M., photos
the complainant had taken of the injuries to her arms, a photo of injuries to
her arm taken by her friend A.A., and photos of scarring to her forearms taken
by the police in February 2014. In the background of one of the photos the
complainant had taken of her right arm both shoes and slippers were visible. She
testified that the photo depicted her slippers and the appellants shoes. Also
introduced in evidence was a broken necklace.
[36]
The appellants argument is essentially that the
photos and the broken necklace were not corroborative of the complainants
evidence about the cause of her injuries. The photos only confirmed parts of
her evidence that she had been injured, but not the core of her evidence
that the appellant had caused the injuries. And the evidence about the broken
necklace could not corroborate the complainants account because it was not
independent of the complainant. The appellant submits that the trial judge
erred in law in relying on such evidence as corroboration.
[37]
I disagree.
[38]
As I have already observed, in saying that the
evidence of the complainants statements, the necklace and the photos
corroborated the complainants evidence, the trial judge was not using the
term in the strict legal sense. Rather, she was referring to evidence that supported
the complainants evidence.
[39]
The fact that the evidence did not directly confirm
the most contentious point of the complainants evidence is of no moment. The
consideration of evidence which is capable of confirming or supporting certain
aspects of a witnesss testimony is typically part of the assessment of
credibility in making findings of fact. [C]onfirmatory evidence is often
merely other circumstantial evidence that tends to support the Crowns case, or
to dispose of alternative hypotheses put forward by the defence. Such evidence
can be given weight even if it does not directly confirm the key allegations
of sexual assault or directly implicate the accused:
R. v. Demedeiros
,
2018 ABCA 241, 364 C.C.C. (3d) 271, at para. 8, affd 2019 SCC 11, [2019] 1
S.C.R. 568.
[40]
The complainant testified that she could not
recall the continuation of the beating by the appellant, but that he had told
her that he continued to beat her in the bathroom, and that she had believed him
when she found her broken necklace in the bathroom. She produced the broken
necklace. While the broken necklace was not independent of the complainant, it
was consistent with her account. The complainant was unable to provide direct
evidence about the continuation of the beating, but she testified about how she
had come to understand what had happened: that the appellant told her that he
continued the beating in the bathroom, and that, after finding her broken
necklace in the bathroom, she believed him. The broken necklace was simply some
evidence that supported this aspect of her testimony: that the appellant told
her that he beat her in the bathroom.
[41]
As for the photos, the trial judge noted the
injuries that were depicted and their timing. She also noted that one photo
captured a shoe worn on the foot of the appellant and the slippers on the feet
of the complainant.
[42]
The appellant is correct in saying that the
photos corroborated the fact of the complainants injuries, but not who caused
them. However, the production of the photos was confirmatory not only of the
injuries she sustained, but of the complainants evidence that she and others
had taken photos. They were consistent with her account. The photo showing a
pair of slippers and a set of shoes supported her evidence that the appellant was
present when she took the photo of her arms, in the aftermath of the cutting
incident. The trial judge did not overstate the importance of this evidence. It
was open to her to conclude that the photos supported the complainants
evidence relating to the beating and the cutting incidents.
(2)
Did the trial judge err by invoking Stockholm
Syndrome as an explanation for the complainants conduct?
[43]
The complainant testified that she had
repeatedly lied about the cause of her injuries, including to the police,
because she was afraid of the appellant. Yet, after the appellant was arrested
and taken into custody for an unrelated assault on May 25, 2013, the
complainant installed a landline in her apartment to receive his collect calls,
she scheduled a visit with him in June 2013 (though she did not follow through),
and she met and was intimate with him on two occasions following his release.
The defence relied on this evidence to say that the complainant was not really
afraid of the appellant, and to urge the court to reject her explanation for
the accounts she provided to the police and others.
[44]
In the context of addressing the complainants behaviour,
the trial judge stated that she suffered from something akin to Stockholm
Syndrome. The appellant says that it was an error of law for the trial judge
to take judicial notice of this psychiatric diagnosis (as no expert evidence
had been led on this point), and to invoke it to explain away or minimize the
complainants lies and apparently irrational behaviour.
[45]
I agree with the Crowns submission that, in
making a passing reference to Stockholm Syndrome, the trial judge was not employing
a psychiatric diagnosis to explain the complainants behaviour.
[46]
Leading up to her reference to Stockholm
Syndrome, the trial judge was considering the complainants explanation for her
repeated lies to the police. She posed the question, Does [the complainant]s
explanation as to why she repeatedly lied to the police make sense? Is it a
rational or reasonable explanation in all of the circumstances? She then explained
why it was understandable that the complainant would be afraid of the appellant
and why her conduct following the assaults was not inconsistent with such fear:
[The complainant] knew that [the appellant]
was trained as a mixed martial arts fighter. She knew that [the appellant] had
a previous conviction for manslaughter. She was aware that [the appellant] had
been charged with the assault of another woman, which occurred around the time
of the beating, and the cutting, and of which he was later convicted and for
which he was given a jail sentence. He had threatened her and her father if she
told anyone the truth. She had set up a safe word with [A.A.] to use if she was
in danger. He had effectively cut her off from the support network of family
and friends, and controlled her by plying her with drugs and alcohol.
She
was submissive to [the appellant]. She was in essence, his puppet, his
property. Her complete submission to [the appellant] caused her to make
decisions which otherwise defy a rational explanation, such as setting up a
landline to facilitate communication while he was in jail, and being intimate
with [the appellant] following his release.
Her conduct suggests she
suffered from something akin to the Stockholm Syndrome. [Emphasis added.]
[47]
Contrary to the appellants argument, there was
no evidentiary shortcut here, nor did the trial judge invoke a psychiatric
diagnosis to explain the unexplainable. The trial judge accepted that the
complainants otherwise irrational conduct was explained by her complete
submission to the appellant, a conclusion that was amply supported by the
evidence, and which is not challenged on appeal. After reaching this
conclusion, and accordingly accepting the complainants explanation for her
lies, the trial judge used the term Stockholm Syndrome as a descriptive label
and not as the justification for the conclusion she had reached.
(3)
Did the trial judge shift the burden of proof to
the appellant?
[48]
The appellant asserts that the trial judge
shifted the burden of proof when she said, without any evidence to support an
alternate theory, I am left wondering if not [the appellant], then who? These
injuries did not spontaneously appear. Someone caused these injuries to [the complainant].
The trial judge made this statement after observing that the defence called no
evidence to support an alternate theory for the cause of the complainants
injuries and noting that the defendant had no obligation to do so or to
testify. The trial judge then proceeded to consider and reject alternate
theories, including that the complainant was jumped after returning home from
getting pizza, that her injuries were self-inflicted, and that her cuts were
caused by a gardening accident.
[49]
The appellant submits that the trial judges
reasoning reflects a failure to consider whether a reasonable doubt had been
raised by the possibility that someone other than the appellant caused the
complainants injuries. Instead, the trial judge erred by shifting the burden
of proof to the appellant to find another explanation for the complainants
injuries that was supported by the evidence.
[50]
I am not persuaded that, contrary to her clear
articulation of the burden of proof elsewhere in her reasons and her specific acknowledgment
that the defendant has no obligation to testify or to offer up an alternate
theory, the trial judge reasoned that the appellant had the onus of advancing an
explanation for the complainants injuries, and that his failure to do so supported
an inference of guilt.
[51]
There was no question that the complainant had
been injured. It was incumbent on the trial judge to consider whether she had a
reasonable doubt as to how the injuries were caused. In grappling with the
evidence, she considered the alternatives, including those that had been
offered by the complainant herself, in the context of the evidence at trial.
She found that there was no evidence to support these alternatives, and that
they were illogical.
[52]
The conviction did not rest on a reversal of the
burden of proof; rather, it was based on the trial judges considered analysis
and acceptance of the complainants evidence about the cause of her injuries as
credible and reliable, and her rejection of alternative causes as potential
sources of reasonable doubt.
(4)
Did the trial judge err by relying on the ring
of truth to believe a witness with obvious credibility problems?
[53]
The appellant submits that the trial judge erred
in relation to the uttering threat to property charge. He asserts that the trial
judge accepted the complainants uncorroborated evidence that he had uttered a
threat to destroy R.E.s vehicle based on her observation that it had the ring
of truth. The trial judge said it had the ring of truth because she would have
expected something far less theatrical than a threat to blow up the fathers
car, if the threat was contrived.
[54]
The appellant relies on this courts decision in
R. v. G.(G).
(1997), 115 C.C.C. (3d) 1 (Ont. C.A.), where a trial
judge found the complainant to be credible after observing that she gave her
evidence in a straightforward manner and it had the ring of truth. In that
case, the use of the words ring of truth did not constitute reversible error;
rather the court allowed the appeal because there were several material
inconsistencies in the complainants evidence that the trial judge had not
considered.
[55]
In this case, by contrast, by the time the trial
judge described the complainants evidence about the threat to damage R.E.s
car as having the ring of truth she had already conducted a thorough
assessment of the complainants credibility and reliability. She had accepted
the complainants evidence as truthful.
[56]
The term ring of truth is not itself
objectionable; the problem is that it adds nothing to the analysis. Saying that
a witnesss evidence has the ring of truth is never sufficient to justify an
assessment of credibility. It is simply a conclusion that the testimony sounds
truthful. The important question is why this is so which involves an examination
of the various factors specific to the case that bear on the witnesss
credibility and reliability.
[57]
I do not interpret the trial judges observation
that the complainants evidence about the threat had the ring of truth that
it sounded true and not contrived as the sole or even the main justification
for acceptance of this evidence. Having already found the complainant to be
credible, there was no reason for the trial judge to reject the evidence about
the threat. The complainant was the only person to have testified about the
threat and she was not cross-examined on this evidence.
[58]
I would also note that, in using the term ring
of truth, the trial judge echoed and implicitly rejected a defence argument
made in closing submissions. In addressing the complainants evidence about the
threats both the threat of damage to her fathers car and of having received
death threats from the appellant defence counsel submitted that the complainants
ability to recall specific words and details was almost entirely limited to words
and details that would negatively impact the appellant, and as such, does not
have the ring of truth, [but] has the ring of vindictiveness.
THE APPEAL OF THE DANGEROUS OFFENDER
DESIGNATION AND SENTENCE
[59]
At the time of his sentencing the appellant was
33 years old. He had 47 convictions, 10 of which were for violent offences and
21 for failing to comply with parole or probation orders. He had spent close to
14 years of his adult life in prison, with only 7 months in the community
without supervision. There were escalating situations of intimate partner
violence that occurred in a nine month period between April 2013 and January
2014 beginning with the beating and cutting incidents forming the predicate offences,
continuing with a violent assault on another woman, D.G., just hours after
meeting her, and then, while he was on probation for the assault on D.G., an
assault on a third woman, S.S., days after meeting her on a dating website.
[60]
Three experts testified at the sentencing
hearing. In addition to Dr. Klassen, there were two defence experts:
psychiatrist Dr. Gary Chaimowitz and forensic psychologist Dr. Mini Mamak.
As the trial judge noted, there was general agreement between the experts on
the appellants diagnosis (substance use disorder and antisocial personality
disorder with narcissistic traits) and on the risk posed by the appellant to
the community (that the appellant had a moderate to high risk of violent
recidivism, and a high risk of intimate partner violence).
[61]
The trial judge concluded that the criteria for finding that the
appellant was a dangerous offender were satisfied under both ss. 753(1)(a)(i)
and (ii) of the
Criminal Code.
His history of intimate partner
violence and the similarities between the assaults exhibited a pattern of
repetitive behaviour, and he had a high likelihood of committing further
violent offences. He also displayed a pattern of persistent aggressive behaviour
and substantial indifference respecting its foreseeable consequences to other
persons.
[62]
Although the experts suggested that with the
proper controls and supervision, the appellants risk to reoffend could be
managed in the community, the trial judge was of the view that the extent of
monitoring or verification required to ensure compliance with the proposed
conditions of release was not possible. In arriving at her conclusion she
considered the feasibility and likely effectiveness of the conditions for supervision
proposed by the experts in the context of the appellants history of breach of
conditions, his habitual lying to parole and police officers and treatment
providers, and his recent history of intimate partner violence. She concluded:
Only maximum control and 24 hour supervision [would] ensure the safety of the
public and, in particular, potential intimate partners of [the appellant]. That
level of control and supervision cannot be achieved in the community. In
rejecting the option of a fixed sentence with a ten-year long-term supervision
order (LTSO), the trial judge also rejected as speculative the suggestion
that, as the appellant ages, his violent tendencies would significantly decline
to the point at which he no longer poses a risk of danger to the community.
[63]
The appellant appeals his designation as a
dangerous offender and the imposition of an indeterminate sentence. He makes
two main arguments. First, he says that the trial judge erred in failing to
consider the factors of intractability and treatability at the designation
stage of her analysis. Second, he submits that the trial judge erred at the
penalty stage in misapprehending certain aspects of the evidence of Dr. Klassen
(respecting the risk of recidivism, group data and burnout) and in adopting a
standard of absolute control, when she concluded that nothing less than 24-hour
supervision of the appellant in the community would adequately protect the
public against the appellants risk to reoffend.
[64]
The standard of review on a dangerous offender
appeal was articulated by Tulloch J.A. in
R. v. Sawyer
, 2015 ONCA 602,
127 O.R. (3d) 686, at para. 26, as follows:
Appellate review of a dangerous offender designation
is concerned with legal errors and whether the dangerous offender designation
was reasonable:
R. v. Sipos
, 2014 SCC 47, [2014] 2 S.C.R. 423, at
para. 23. While deference is owed to the factual and credibility findings of
the sentencing judge, appellate review of a dangerous offender designation is
more robust than on a regular sentence appeal:
Sipos
, at paras.
25-26;
R. v. Currie,
[1997] 2 S.C.R. 260, [1997] S.C.J. No. 10, at
para. 33.
[65]
Where the error of law has not resulted in a
substantial wrong or miscarriage of justice, an appellate court may dismiss an
appeal against a dangerous offender declaration, relying on s. 686(1)(b)(iii)
of the
Criminal Code
. This power may be exercised only where there is
no reasonable possibility that the verdict would have been any different had
the error of law not been made:
Boutilier
, at para. 82.
[66]
As I will explain, I am not persuaded that there
was any reversible error in the trial judges designation of the appellant as a
dangerous offender and in the imposition of an indeterminate sentence. To the
extent that the trial judge erred in law in saying that treatability and
intractability were not factors to be considered at the initial designation stage,
these factors were considered in her decision, and there is no reasonable
prospect that her decision would have been different but for the error. The
trial judge did not err in her assessment of Dr. Klassens evidence or in
observing that the appellants risk for violent recidivism, especially involving
intimate partners, could not be controlled in the community. The trial judges
assessment of the evidence was thorough, her reasons are comprehensive and her
conclusions with respect to the appellants dangerousness and the need for an
indeterminate sentence are reasonable.
[67]
I will address the appellants arguments in
turn.
Considering Intractability and Treatability
at the Designation Stage
[68]
The appellants first argument is that, not
having the benefit of the Supreme Courts decision in
Boutilier
,
which
was released after she delivered her reasons for sentence, the trial judge did
not consider intractability or treatability at the designation stage of her
dangerous offender analysis. Indeed, she specifically stated that both were
relevant only at the penalty stage. The appellant contends that this was an
error of law that resulted in a substantial wrong or a miscarriage of justice,
necessitating a new dangerous offender hearing.
[69]
The appellant did not address this error in oral
argument, and for good reason. This is a case where the trial judge thoroughly
considered whether the appellants behaviour was intractable (in the sense of
being something the appellant was unable to surmount) and whether he was treatable.
Her findings on both issues fully supported the conclusion that the appellant
met the criteria for designation as a dangerous offender, both under s.
753(1)(a)(i) and (ii).
[70]
First, despite saying that intractability was
not something to consider at the designation phase, the trial judge did in fact
address the fact that the appellants behaviour was intractable when she
assessed his future threat, and found that his conduct posed a high likelihood
of violent recidivism. After considering the expert evidence that the appellant
posed a moderate to high risk of violent reoffending generally and a high risk
of intimate partner violent reoffending, the trial judge stated that common
sense suggests the past is the best predictor of the future. She noted that the
appellant was incapable of controlling his anger and violent impulses, without
exception in an unsupervised environment, and frequently in a controlled
setting. She referred to his history of reoffending, his inability to comply with
court-ordered conditions in place to control the triggers for reoffending (prohibiting
alcohol use, requiring intimate relationship reporting, and prohibiting
criminal associations), as well as the testimony of Dr. Chaimowitz that [t]his
is a man whos going to continue to offend
I cant see it any other way, based
on his history. At the conclusion of her reasons, in imposing an indeterminate
sentence, the trial judge reiterated that, based on the appellants violent
history having repeated itself many times over, there was no reason to believe
that, if given the opportunity in an uncontrolled setting, history would not
repeat itself: at para. 200.
[71]
Second, while the trial judge did not address
the appellants treatability at the designation stage, it was addressed
extensively in the discussion of penalty. The trial judge concluded that,
despite the appellants stated intention to seek treatment, she could not
conclude on the evidence that his risk could be controlled through treatment. The
appellant had participated in various kinds of treatment but there was no
evidence that treatment had been successful in the past or would be durable. Notwithstanding
the treatment and counselling he received during his eight year prison term,
the appellant started using cocaine and alcohol immediately after his warrant
expiry. The trial judge referred to Dr. Klassens evidence that approximately
15 prior treatment interventions had not effected a change in the appellant,
and the opinion of all three experts that treatment could at best be used as a
means to monitor the appellant in the community.
[72]
In the circumstances, although the trial judge
erred in saying that treatability and intractability were not factors to
consider at the designation stage, this error occasioned no substantial wrong
or miscarriage of justice. She considered both factors in the course of her
reasons. There is no reasonable prospect that the trial judge would have come
to a different conclusion about the appellants dangerousness if she had explicitly
considered these factors at the designation phase.
Alleged Errors
in Imposing an Indeterminate Sentence
[73]
I turn now to the essence of the appellants
sentence appeal: his arguments based on the trial judges treatment of the
evidence in determining whether there was a reasonable expectation that a
sentencing option less than an indeterminate sentence would adequately protect
the public:
Criminal Code
, s. 753(4.1).
[74]
The appellant submits that the trial judge misapprehended
and did not give effect to certain aspects of Dr. Klassens evidence respecting
his risk of recidivism, and the use of group data and actuarial studies in
relation to burnout after the age of 50. He also asserts that the trial judge
set too high a standard for the prospect of his eventual control in the
community. By stating that only 24-hour supervision would suffice, she set an
impossible standard of absolute compliance. It was unreasonable for the trial
judge to conclude that nothing but 24-hour supervision would suffice, when no
one suggested this was necessary.
[75]
I will deal with each issue in turn.
(1)
The alleged misapprehension of Dr. Klassens
evidence
[76]
First, the appellant refers to the evidence that
he did not reoffend during the five-year period that he was on parole after
serving an eight year sentence for manslaughter. He contends that this is
evidence that he responds well to supervision in the community, evidence that
the trial judge ignored when she concluded that the appellants risk could not
be controlled through an LTSO.
[77]
I disagree. There was no error in the trial
judges treatment of this evidence. She recognized that, while the appellant
did not violently reoffend while under supervision, he did breach his
conditions of release, including the condition that he report intimate
relationships. The five-year period did not assist in assessing the appellants
risk to violently offend against an intimate partner. The trial judge
recognized that the nature of the appellants violent offending had escalated
to intimate partner violence and his substance abuse escalated from alcohol to
cocaine.
[78]
Dr. Klassen did not suggest that the five-year offence-free
period translated into a lower risk of recidivism for intimate partner
violence. He was circumspect. He noted that the appellant did better in highly
structured settings, such as when he was in federal custody and that when there
was less structure, like on federal parole, there tended to be bigger
problems. As the trial judge noted, at para. 98:
Dr. Klassen noted a shift after 2012 towards
intimate partner violence and expanded addiction issues. Dr. Klassen opined
that these shifts pose a different set of risk factors which could make
management in the community more difficult than was management of [the appellant]
following his manslaughter conviction.
[79]
Accordingly, there was no misapprehension of Dr.
Klassens evidence about the impact of the five-year period when the appellant
did not reoffend while on parole.
[80]
I turn to the appellants argument about the trial
judges treatment of the evidence of Dr. Klassen respecting burnout: that
after age 50 there is a significant decline in violent offending. The appellant
asserts that, in considering the appellants risk of reoffence after the expiry
of the proposed LTSO, the trial judge misunderstood actuarial and group data
and its application to the issue of burnout. The appellant contends that the
trial judge wrongly rejected Dr. Klassens evidence because he declined to provide
a view as to how burnout might apply to the appellant, when, according to Dr.
Klassen, this was the best tool for assessing the appellants future risk.
[81]
This was a central focus of the appellants
submissions on the sentence appeal. As I will explain, the trial judge did not
misapprehend Dr. Klassens evidence. Rather, the appellants argument confuses Dr.
Klassens actuarial approach (using group data) to the assessment of the individual
appellants risk for violent recidivism, with his evidence about the general
trend to burnout based on studies using group data.
[82]
In order to provide an opinion about the
appellants risk of a future serious personal injury offence, Dr. Klassen used
an actuarial approach. In part this was necessitated by the fact that the
appellant, on the advice of counsel, had refused to meet with him. In any event,
Dr. Klassen said that this was the best approach. He stated:
[W]hen it comes to the issue of probability
and percentile, whats this persons ranking compared to their peers in terms
of risk, and what, if anything, can we say about the absolute probability of
similar individual recidivating
you would never use clinical judgment. It
would, I would submit to you it would fall grossly below the standard of
practice in forensic psychiatry.
[83]
Dr. Klassen went on to identify the available risk
assessment tools for evaluating the appellants risk of violent offending,
including tools specifically designed to assess the risk of intimate partner
violence. After explaining why the tools he selected were appropriate, Dr.
Klassen indicated that, based on the appellants individual scores, he was at a
high risk of general violent recidivism and at a very high risk of domestic
violent recidivism.
[84]
Dr. Klassens conclusion, based on his assessment
using various actuarial tools, was consistent with the opinion of defence
experts Dr. Chaimowitz and Dr. Mamak. Dr. Mamak conducted the testing on
which Dr. Chaimowitz relied in providing his clinical assessment of the
appellants risk to reoffend. Some of the risk assessment tools used by Dr.
Mamak differed from those used by Dr. Klassen. The trial judge noted that, because
of the consistency between the parties expert evidence regarding diagnosis and
risk assessment, it was unnecessary to undertake a comprehensive assessment of
the limitations and advantages between and among the various diagnostic tools
used by the experts.
[85]
In utilizing the actuarial tools to assess the
risk of violent recidivism and intimate partner violence, Dr. Klassen referred
to and took into consideration the appellants specific diagnoses, criminal
record and history. The result was to arrive at a conclusion about the
appellants specific risk. This was the context in which Dr. Klassen advocated
the use of actuarial and group data.
[86]
Later in his evidence, Dr. Klassen was asked about
the concept of burnout, or age-related decline in violent recidivism. In
contrast to his opinion using actuarial and group data to assess the
appellants individual risk, at this stage in the evidence, Dr. Klassen was
asked about general trends. He stated that there was lots of data from
different samples showing that as people get older their rates of violent
offending decline significantly, so that one approach was how do we get people
to 50?. Dr. Klassen stated, while I cannot say exactly what will happen to [the
appellant], because group data cannot always predict the behaviour of an
individual
group data suggests that
violence is significantly reduced over
time. However, he specifically declined to apply the general trend or group
data to whether the appellant was likely to recidivate after age 50. This is
apparent in the following exchange:
Q.
I know weve been talking about general
trends, can we say that getting [the appellant] to 50 is gonna be the game
changer?
A. I cant say that it, it, remember, Im just
talkin about group data
Q. Right.
A.
I cant tell you exactly how that might
apply to [the appellant]
because I offer group data, because it might be of
assistance, and its more likely to be accurate than my clinical opinion. But I
cannot tell you exactly what will happen to [the appellant], whether [he] will
actually age,
quote, unquote
, quicker than most, or,
quote,
unquote
, slower than most, in terms of age and violence
I dont know the
answer to that.
[87]
In his evidence on burnout Dr. Klassen was only asked
about general trends based on group data: unlike his assessment of the
appellants risk for violent recidivism and for intimate partner violence
where he was able to score the appellant applying actuarial tools to the
information about the appellant contained in his file, he was not asked for,
nor did he express, an opinion about the likelihood that the
appellant
would reoffend after age 50. Contrary to the appellants submission, Dr.
Klassen did not advocate an approach that would assume that the appellant would
not require supervision after age 50. At its highest Dr. Klassens evidence about
burnout spoke to general trends based on group data, and not to the appellants
individual circumstances.
[88]
The trial judge accurately dealt with this
evidence at paras. 178-182 of her reasons for sentence. She noted that
burnout was a general trend based on group data. She referred to Dr.
Chaimowitzs view that age-related decline did not apply to the appellant, and
the fact that Dr. Klassen declined to provide a view as to how the concept of
burnout might apply to the appellant. She noted Dr. Chaimowitzs
observation that an offender will not be young forever but can be immature
forever, and that there was no evidence that the appellants future maturation
was anything more than a possibility. The trial judge reasonably concluded that
it would be purely speculative to assume that as the appellant ages, his
violent tendencies would significantly decline to the point at which he no
longer poses a risk of danger to the community. Referring to the escalating
aggression and brutality in the appellants most recent offences, she noted that
[t]he theory that the likelihood of [the appellant] reoffending is
significantly reduced from the age of 50 onward has little application to the circumstances
of [the appellant]. Intimate partner violence is perpetrated against vulnerable
persons away from the publics eye: at para. 182.
[89]
There is no misapprehension or error in the
trial judges treatment of Dr. Klassens evidence about the appellants
risk of recidivism based on the fact that he did not reoffend during his five
years of parole following his manslaughter sentence, or Dr. Klassens evidence
about burnout.
(2)
The requirement for 24-hour supervision to
control the appellants risk
[90]
The appellant contends that the trial judge set too
high a standard with respect to whether there was a reasonable prospect of his
eventual control in the community. The three experts agreed that with proper
controls and supervision including prevention plans for substance abuse and
intimate partner violence the appellants risk to the public could be managed
in the community. The appellant submits that the trial judge erred in not
accepting their evidence and instead concluding that only 24-hour supervision
would suffice.
[91]
I disagree. The trial judge was required to
assess, based on the evidence, whether there was a reasonable expectation that
a determinate sentence followed by an LTSO with conditions would adequately
protect the public against the commission of another serious personal injury offence
by the appellant. This entailed an assessment of the proposed conditions in the
context of her findings about the appellants risk and risk factors.
[92]
The trial judge described as [t]he most
compelling evidence to support a lesser sentence, the agreement among the
three experts that the risk to the public could be managed with proper controls
in place. She set out the conditions of release into the community that were
proposed by each of Dr. Klassen and Dr. Chaimowitz (which were quite
similar). Dr. Klassens proposed conditions were as follows:
·
Treatment with respect to values and attitudes
and management of aggressive behaviour only as a monitoring function;
·
Treatment for substance use, again as a
monitoring function;
·
Abstinence from the use of alcohol and
non-prescribed agents and the requirement to submit samples of breach or urine;
·
Maintenance of employment subject to
verification by third parties;
·
Refraining from associating with individuals
known to have a criminal record other than when such association is inevitable;
and
·
Regular disclosure of financial circumstances
and any current or anticipated intimate relationships.
[93]
Dr. Klassen was examined on the proposed conditions
and their purpose and feasibility in the context of the appellants history. He
had testified that the key element was control, since treatment of the
appellant was not an option, and that reoffence would occur if there were a
lack of supervision or external controls. Dr. Klassen testified that the goal
of the specific conditions he proposed was not to change the appellants
behaviour, but to monitor it. He observed that the conditions about abstinence
from drugs and alcohol, maintenance of employment, and refraining from associations
with people with criminal records, were asking for a lifestyle change: these were
empirically risk-reducing factors, although whether they were risk-reducing
in the appellants case was a little harder to say. Dr. Klassen noted that,
if the offender wanted to conceal his criminal associations, the condition
prohibiting such associations would be a lot tougher to monitor without 24-hour
supervision, and he agreed that the appellant had violated such a condition in
the past (when his association with the Hells Angels, which he denied, led to
the suspension of his parole on the manslaughter sentence). Dr. Klassen acknowledged
that when an offender is residing in a community correctional facility or a community
residential facility (halfway house), these kinds of controls are dependent
upon luck, surveillance, or the offender being truthful about what they are
doing, and that offenders are typically not supervised when they are away from
the facility.
[94]
As for the condition requiring disclosure of
intimate relationships, Dr. Klassen stated that this condition was
included because intimate partner violence was the issue of greatest concern in
this case. He acknowledged this was another condition the appellant had
violated while on parole, when he had not disclosed that he was living with his
girlfriend and her parents. He agreed that the condition depended on the
appellant to be truthful, and that the appellant had lied to his probation
officer in January 2014 about whether or not he knew a woman named S.S. (S.S. became
his next victim). When Dr. Klassen was asked whether they would be trusting the
appellant to provide the information about his intimate relationships and to respond
truthfully when asked, he responded, well, one would hope.
[95]
I do not accept the appellants argument that
the trial judge erred in refusing to impose a determinate sentence followed by
an LTSO, based on the conditions proposed by Dr. Klassen. Having heard and
considered the evidence, she reasonably concluded that the extent of the
monitoring and verification required to ensure the appellants compliance with
the various conditions was not possible. This was not, as the appellant
submits, a standard of perfection, or a requirement for absolute compliance
with supervision conditions rather than preventing violent offences. The trial
judge focussed on the most pertinent risk that of intimate partner violence.
She concluded, reasonably, that the requirement to self-report intimate
partners, even assuming that the appellant complied with the condition, would
not have protected D.G., who was assaulted by the appellant mere hours after
they met. Because of the appellants history of non‑compliance with court
orders, lying and intimate partner violence, the safety of the public, and in
particular of potential intimate partners of the appellant, could only be
achieved with maximum control and 24-hour supervision. The trial judge
concluded, at para. 193:
I am not satisfied that intensive supervision
of [the appellant] in the community as proposed by the experts is a realistic
means of protecting the public. There is no evidence of available resources
adequate to ensure the level of supervision and the extent of controls needed
in a long-term supervision order can be achieved. Because [the appellant] is a
habitual liar and cannot be trusted to do as he is court-ordered and furthermore,
his offending has expanded to intimate partner violence, the checks and
balances needed to ensure the protection of the public are not workable. Only
maximum control and 24 hour supervision will ensure the safety of the public
and, in particular, potential intimate partners of [the appellant]. That level
of control and supervision cannot be achieved in the community.
[96]
In
R. v. K.P.
, 2020 ONCA 534, 152 O.R.
(3d) 145, this court dismissed an appeal from a dangerous offender designation
and indeterminate sentence where the sentencing judge concluded that the
conditions for an LTSO proposed by two experts were inadequate to protect the
public. As in this case, K.P.
had limited success with treatment and
had battled substance abuse for decades, including on the night of the
predicate offence. The sentencing judge, like the trial judge in the present
case, was concerned about the feasibility of monitoring intimate relationships
that can form and escalate quickly. She had identified the specific frailties
in the experts proposed plan of supervision, including that monitoring
intimate relationships depends on self-reporting, and she had concluded that, due
to his history of fast attachment and tendency to resort to violence in
intimate relationships no amount of supervision could prevent yet another
victim being attacked by [K.P.] should he be released into the community too
soon: at para. 68. This court upheld the indeterminate sentence, finding
that the sentencing judge properly engaged in an individualized assessment of
all relevant circumstances.
[97]
Similarly, in the present case the trial judge
considered the proposed conditions in the context of an individualized
assessment of the relevant circumstances. There was a troubling history of
non-compliance with conditions of release and extreme violence within hours of
meeting someone. The appellant had no real response to treatment. His
transition into domestic abuse enhanced the risk of uncontrollability. The
trial judges finding that there was no reasonable possibility of eventual
control of the appellants risk to reoffend in the community reveals no error.
The terms of an LTSO were not feasible for the reasons that the trial judge
explained.
DISPOSITION
[98]
For these reasons, I would dismiss the conviction
appeal and the appeal of the decision that the appellant is a dangerous
offender and of his indeterminate sentence.
Released: DD August 10, 2021
K. van Rensburg J.A.
I agree. Doherty J.A.
I agree. David Watt J.A.
[1]
The
appellant was charged with six counts. He was acquitted of charges of uttering
a death threat and attempted procuring.
[2]
The
circumstances of the assault, the appellants guilty plea, and his conviction were
relevant to the dangerous offender application.
[3]
The
appellants factum also asserts that the trial judge erred in saying that the
testimony of the complainants friend, A.A., and C.B., someone the appellant
had previously dated, corroborated certain evidence of the complainant. It is
unnecessary to address this submission, which was not pursued in oral argument.
It is sufficient to note that, in challenging the trial judges reliance on
such evidence as corroborating (or supporting) certain aspects of the
complainants evidence, the appellant simply takes issue with the trial judges
reasonable interpretation of the evidence of A.A. and C.B., without identifying
any reversible error.
[4]
In her
reasons for conviction t
he trial judge did not refer to
R.E.s evidence about what he was told by the complainant about the beating
incident and the cutting incident. Rather, in describing their evidence as
consistent,
the trial judge restricted herself to R.E.
and the complainants respective accounts of the photos and text messages sent
to R.E after the beating incident. She said that both testified that three
photos and a text were sent to [R.E.] on April 28th, 2013. Any inconsistency between
his evidence and her evidence
as to the sequence and timing of the photos
and text being sent and received
is not material (emphasis added). This
responded to defence counsels submissions challenging the complainants
credibility on the basis that there were inconsistencies in the complainants
evidence with respect to the timeline after the beating when she took the
pictures and sent them to her father, and used her cellphone to text her
father.
[5]
Unless
the court intends to use corroboration in its strict legal sense, this term
is best avoided. The use of the term corroboration for evidence that supports
or confirms material aspects of a witnesss evidence - but is not independent
of its source - invites the argument that the trial judge misapprehended the
evidence: David M. Paciocco, Palma Paciocco & Lee Stuesser,
The Law of
Evidence,
8
th
ed. (Toronto: Irwin Law, 2020), at pp. 674-75. See, for example,
R. v. Mackenzie
, 2015 ONCA 93 and
R. v. Flores
, 2020 ONCA 158.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Nemchin v. Green, 2021 ONCA 573
DATE: 20210819
DOCKET: C67869
Roberts, Trotter and Thorburn
JJ.A.
BETWEEN
Tatiana Nemchin
Plaintiff (Appellant)
and
Yvonne Green
Defendant
(Respondent)
Joseph Y. Obagi and Elizabeth A. Quigley,
for the appellant
Stephen G. Ross, Thomas Macmillan and
Meryl Rodrigues, for the respondent
Heard: October 27, 2020 by
video conference
Supplementary
reasons to the judgment in
Nemchin v. Green
, 2021 ONCA 238, released on
April 16, 2021.
ADDENDUM
[1]
In our reasons dated April 16, 2021, reported at
2021 ONCA 238, we allowed the appellants appeal from the order requiring her
to top up the amount of the long-term disability benefits received from her
employers group benefits insurer, Sun Life Assurance Company of Canada (Sun Life),
that she assigned to the respondents insurer, Aviva Insurance Company of
Canada (Aviva), pursuant to s. 267.8(12) of the
Insurance Act
, R.S.O.
1990, c. I.8. Costs were determined in our May 19, 2021 endorsement, reported at
2021 ONCA 342.
[2]
In paragraph 46 of our reasons, we invited the
parties to make brief written submissions if they required further direction
concerning the treatment of any tax refund they may obtain with respect to the
tax remittances that Sun Life has made from the disability payments since the
date of the assignment to Aviva and the wording of the amended formal order of
the trial judge in accordance with this courts reasons. We have received and
reviewed the parties further written submissions on these matters.
[3]
The appellant raises the following issues. First,
she submits that in the event Aviva chooses not to request that Sun Life cease
to deduct taxes from the plan payments, she will be prejudiced because she will
continue to receive a T4A document from Sun Life and will have to pay taxes on
monies she is not receiving and that should not be taxable. In this event, the
appellant submits she should be entitled to independently contest Sun Lifes
tax deduction. Second, in the event that Aviva chooses not to apply for a tax
refund of the Sun Life tax remittances made during the assignment, she is
entitled to apply for any tax refund and Aviva must pay her expenses to do so and
pay for any other expenses related to the assignments operation. Finally, if
she is successful in her independent applications to Sun Life or the Canada
Revenue Agency (CRA), she submits that Aviva cannot then reassert a claim to
any tax differential because it has abandoned its interest.
[4]
The respondent submits that this courts order
does not compel Aviva to contest Sun Lifes tax remittances or seek a tax
refund with respect to those remittances from the CRA. The respondent does not object
to the appellant contesting Sun Lifes tax deductions at source or her seeking a
tax refund from the CRA but she must do so at her own expense. Moreover, in the
event she receives a tax refund of any Sun Life remittances, she must pay any such
tax refund to Aviva in accordance with the assignment of her rights under the plan
to avoid double recovery.
[5]
While it is certainly consistent with the
respondents position on appeal that Aviva should request that Sun Life cease
deducting taxes at source and seek a refund of tax remittances from the CRA, we
agree that our order does not compel it to do so. Neither party raised and accordingly
we did not determine the question of whether, if Aviva does not make these
applications, the appellant should be permitted to do so and at Avivas expense.
[6]
In paragraph 29 of our reasons, we clarified that
by virtue and for the term of the assignment, [Aviva]
has all the appellants rights and is subject to all the provisions under the
plan, including, subject to the [Sun Life] plan, the ability to deal directly
with Sun Life and to contest the deduction of income taxes from the payments
(footnote omitted). In other words, as we also stated at paragraphs 39-42 and 44,
Aviva steps into the appellants shoes during the assignment and is entitled to
receive the benefits, but for the assignment, the appellant would have received
under the plan and make any claim to Sun Life that the appellant would have
been entitled to make in relation to her rights under the plan, with the
appellants cooperation, if required by Sun Life, and at Avivas expense. By
the same token, as a result and for the duration of the assignment, the
appellant is relieved from any further cost in relation to the assignment of her
rights under the plan. Accordingly, if Aviva wishes to contest Sun Lifes
remittances or pursue any tax refund for the period of the assignment, it must pay
the expenses for doing so.
[7]
The practical difficulty with the appellants
request that she be permitted to deal directly with Sun Life concerning the
source deduction issue is that we have not been advised nor do we have any
evidence whether, given the assignment of the appellants rights, Sun Life is
content to deal directly with the appellant concerning the source deduction
issue or whether that request must come from Aviva, as assignee. As a result,
we are not in a position to make an order that may affect a non-party, Sun Life.
However, this is something that the parties should be able to work out on
consent with Sun Life. In the event that Sun Life will deal directly with the
appellant, Aviva has indicated that it has no objection to her doing so. However,
as we noted at paragraph 35 of our April 16 reasons, Sun Life previously took
the position that absent a CRA ruling or court order, it would continue to make
source deductions.
[8]
With respect to the reimbursement of the appellants
expenses, there is no evidence that the appellant has incurred or will incur
any additional expense to respond to the T4A slip received from Sun Life. If
Sun Life has been deducting and remitting the correct amount of taxes, it is
difficult to see why the appellant would have additional taxes to pay; and if
the appellant is submitting an annual tax return in any event, it is unlikely
that including the T4A slip would add to the cost of the returns preparation. That
said, to the extent that the appellant is actually incurring additional expense
to respond to the T4A slip, she is entitled to be reimbursed by Aviva as part
of the expenses related to the assignment that we have already determined are
Avivas responsibility. Again, this is an issue that the parties should be able
to resolve upon the appellant providing to Aviva evidence of her expenses.
[9]
With respect to the issue of the tax refund, given
that Aviva, as assignee of the appellants rights, would be entitled to the
gross payments under the plan if Sun Life made no source deductions, it follows
that it is entitled to receive any tax refund of those source deductions, just
as the appellant would but for the assignment. Aviva has not agreed to forego its
entitlement to any tax refund and there is no basis to order that it should.
[10]
That said, as confirmed by the respondent, if
Aviva does not pursue a tax refund, there is no impediment to the appellant
seeking from the CRA a refund of the Sun Life remittances. Indeed, any such
application to the CRA would likely have to be in the name of the appellant,
the taxpayer. The question is whether Aviva should fund the appellants costs of
such an application as part of the costs of the assignment. We conclude that it
should because Aviva would receive the greater benefit of the tax refunds as
part of the assignment.
[11]
Accordingly, if Aviva does not pursue the
application for a tax refund, then it shall reimburse the appellants
reasonable expenses for bringing such an application.
L.B.
Roberts J.A.
Gary
Trotter J.A.
J.A. Thorburn
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 complainants 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. M.R., 2021 ONCA 572
DATE: 20210823
DOCKET: C64651
Hourigan, Zarnett and Coroza
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
M.R.
Appellant
Eric Neubauer, for the appellant
Nicholas Hay, for the respondent
Heard: May 31, 2021, by videoconference
On appeal from the conviction entered by
Justice R. Cary Boswell of the Superior Court of Justice on October 6, 2017,
with reasons reported at 2017 ONSC 5891.
Hourigan J.A.:
A.
INtroduction
[1]
The appellant invited the complainant, who was
his employee, to his house to discuss the complainants employment. The two had
dinner and drinks, after which they both fell asleep. What happened next is at
the crux of the case. According to the complainant, he awoke to the appellant fondling
his genitals and rubbing his buttocks, and then the appellant inserted
something into his anus. He testified that when he tried to leave, the
appellant grabbed and stopped him. In contrast, the appellant's evidence was
that he never touched the complainant, and when the complainant awoke, he was
panic-stricken and incoherent. Both parties agreed that the complainant ended
up in a bathroom. The complainant stated that while in this bathroom, he called
his sister for assistance.
[2]
The appellant was convicted of sexual assault
and was acquitted of unlawful confinement. He appeals his conviction,
submitting that the trial judge erred in: (1) relying on speculative
conclusions to make his credibility and reliability assessments; (2) failing to
consider comments made by the complainant that suggested his account of the
sexual assault was unreliable; (3) providing insufficient reasons; and (4) employing
different levels of scrutiny in his assessment of the appellants and the
complainants evidence.
[3]
As I will explain, I find these arguments to be
unpersuasive. I am not satisfied that the trial judge relied on speculative
reasoning to bolster his credibility and reliability assessments. The remaining
grounds of appeal all amount to essentially the same submission: the trial
judge should have disbelieved the complainant because he was in a state of
cognitive impairment on the evening in issue. In my view, the trial judges
credibility and reliability assessments were well-grounded in the evidence, and
there is no basis for appellate interference. I would accordingly dismiss the
appeal.
B.
facts
[4]
The complainant worked as a ramp attendant at a
municipal airport. The appellant was a part-owner of the company where the
complainant was employed. In August 2014, the complainant made his third
significant error on the job, and the appellant was called into work to deal
with the situation. According to the complainant, the appellant informed him
that he would be dismissed. He became upset with the news, and went into the
washroom and cried. The appellant denied that he told the complainant that he
would be fired, but he agreed that the complainant went to the bathroom after
speaking with him and that when the complainant returned, it was apparent he
had been crying.
[5]
In any event, it is common ground that when the
complainant came out of the washroom, the appellant said that they could have a
meeting to discuss a second chance. The complainant testified that the
appellant told him that the meeting had to remain a secret. In contrast, the
appellant testified that the meeting was originally supposed to occur in the
hangar and that anyone around could participate.
[6]
The appellant and the complainant ultimately met
in the early evening at the parking lot of a Canadian Tire store. The
complainant then followed the appellant to his house. The two ate dinner
together and began drinking alcohol. The complainant testified that he did not
expect or want to drink, but the appellant demanded that he take a shot during
each commercial break. He did not believe that the appellant drank every time
he did. On the other hand, the appellant testified that the complainant was in
control of how much he drank and that he simply told the complainant to help
himself to alcohol. It was the complainant, he says, who was mixing the drinks
throughout the evening.
[7]
At some point, the complainant became very
emotional when discussing his family. According to the complainant, the appellant
asked him if his parents had hurt him and said his father must have hurt him
really bad. The appellant then put his arm around the back of the
complainants torso and pulled him over his lap. The appellants account of
this conversation was that he simply asked the complainant why he was having
difficulty concentrating at work. At that point, the complainant became very
emotional, began to cry, and hugged the appellant.
[8]
Later that evening, the complainant vomited on
himself. The appellant offered to wash his clothes. The complainant testified
that he asked if he could go and see if he had extra clothes in his car, but
the appellant said no and provided the complainant with his bathrobe. The pair returned
to the couch and eventually fell asleep.
[9]
The complainant testified to waking up with his
underwear around his knees. The appellant was standing beside him with his belt
undone, his pants unbuttoned, and his zipper down. According to the
complainant, the appellant was fondling his penis and rubbing his buttocks. The
complainant said that he tried to push his back up against the couch and pull
up his underwear, but the appellant grabbed his buttocks and penetrated his
anus with something other than his penis. The complainants evidence was that
he then "freaked out," pulled up his underwear, and raised his voice.
The appellant told him to calm down and that he had a nightmare. The
complainant ran out of the basement exit door, but the appellant grabbed him,
pulled him back, and told him he could not go outside because it was not safe.
[10]
The appellant testified that he woke up to the
complainant standing up and having some sort of seizure. He was unsteady,
hyperventilating, and asking, where am I? and whats happening to me? According
to the appellant, he helped steady the complainant and directed him outside to
get some fresh air. The appellant denied ever touching the complainant on the
buttocks or genitals.
[11]
The complainant testified that the appellant
told them they were going to the spare bedroom. The complainant said that he tried
to escape through the front doors, but was stopped by the appellant. He ran
into a bathroom, where he said he called his sister. His sister testified to
receiving a call at approximately 6:00 a.m. The complainant was panic-stricken;
he did not know where he was or how to get home and asked her for help. The
call dropped, and she called back. The complainant continued to talk as if he
did not realize that they had been disconnected. He told her that the devil was
taking over his body. She called 911.
[12]
The 911 operator contacted the complainant, who said
that he had never felt like this before, that he was screwed up," and
that the appellant was "giving him drugs." The appellant also spoke
to the operator and provided his name, date of birth, and address. He told the
operator that the complainant was not injured and that he had gone to bed and
suffered a panic attack. In the background of the call, the complainant could
be heard yelling, "I know everything I did; I know everything that
happened" and "I don't want him to fuck me, please."
[13]
When the police arrived, the complainant was
escorted to an ambulance. The responding officer, P.C. Ledwidge, testified that
the complainant smelled of alcohol and was clearly under its influence, but was
able to provide a coherent account of what happened. The officer noted that the
appellant did not appear intoxicated. The complainant was taken to a hospital
where he saw a sexual assault and domestic violence nurse. Blood samples and
penile and rectal swabs were taken from the complainant. His blood alcohol
content was 100 mg of alcohol per 100 ml of blood. A small quantity of the
appellant's D.N.A. was found on the complainant's penis.
C.
Decision below
[14]
Credibility and reliability were the central
issues at trial. The trial judge explained why he found the complainant
credible and reliable and why he disbelieved much of the appellants testimony.
He rejected the attacks on the complainant's credibility, which centred on the
manner in which he testified and the alleged inconsistencies in his testimony.
Regarding the appellant's evidence, the trial judge rejected critical
components of his testimony, including who was directing the consumption of
alcohol by the parties that evening. The trial judge ultimately concluded that
he was satisfied, beyond a reasonable doubt, that the appellant sexually
assaulted the complainant.
[15]
The appellant was acquitted of unlawful
confinement. The trial judge was not satisfied that, post-sexual assault, the complainants
perception of the events was entirely reliable. This was mainly due to the
complainant's heightened emotional state. The trial judge also had doubts about
whether the appellant would be physically capable of restraining the complainant.
Additionally, he noted that the complainant was not deprived of his mobile
phone, which he ultimately used to call for help.
D.
Analysis
(1)
Speculation in Credibility and Reliability
Assessment
[16]
The appellant's first ground of appeal is that
the trial judge erred by using speculative conclusions in assessing credibility
and reliability. Specifically, he submits that the trial judge erred in: (a)
his consideration of the D.N.A. evidence; (b) assessing the complainant's level
of intoxication by using his blood alcohol content and neglecting his
consumption of marijuana; and (c) his assessment of the appellants level of
intoxication.
(a)
The D.N.A. Evidence
[17]
The first complaint is regarding the trial
judge's use of the D.N.A. evidence. The appellant argues that the trial judge
erred in concluding that it was "significantly more likely that [the
appellant's] DNA found its way onto [the complainants] penis through direct
transfer." This was speculation, he submits, because the D.N.A. expert
called by the Crown testified that theres nothing in this case file that
[would] indicate whether its indirect or direct transfer. According to the
appellant, the trial judge then used his speculative conclusion to bolster the
credibility of the complainant and the reliability of his evidence.
[18]
At trial, the primary defence position was that
the D.N.A. had been indirectly transferred in one of the bathrooms used that
night. The defence theory rested on the appellant's evidence that "[m]ost
times" he spits in the toilet when he urinates. The complainant testified
that he urinated in the downstairs washroom (but could not remember how many
times) and that he defecated once in the upstairs washroom after the assault.
The appellant testified that he used the downstairs washroom three to four
times and the upstairs washroom a couple of times. The defence also suggested,
in its cross-examination of the Crowns D.N.A. expert, that there could be indirect
D.N.A. transfer through the handling of a remote control or as a consequence of
the complainant wearing the appellant's bathrobe.
[19]
The Crown's D.N.A. expert testified that, due to
the small size of the D.N.A. material, he could not opine on whether the
presence of the appellant's D.N.A. on the complainant's penis was the result of
an indirect or direct transfer. His evidence was that his findings were
consistent with the "handling or fondling" of the complainant's
penis. However, he fairly conceded that an indirect transfer by means of a
toilet seat or through the use of the robe or remote was possible in certain
conditions. According to the expert, four factors would have to be considered
in assessing whether an indirect transfer was possible: dryness,
pressure/friction, duration, and amount of source material.
[20]
The evidentiary foundation in support of this indirect
transfer theory was weak. There was no evidence that the appellant had, in
fact, spit on the toilet seat (as opposed to in the toilet) or any other area
that could have come in contact with the complainant's penis. There was also no
testimony about the sequence or the timing of the complainants and the
appellants respective trips to the downstairs bathroom. Nor was there any
evidence and the complainant was never asked about whether his penis had
come into contact with a toilet seat. Further, neither the appellant nor the complainant
testified about the complainant touching the remote. The complainant wore the
appellants robe but kept his underwear on, thus reducing the chance of direct
contact between the complainants penis and the robe.
[21]
Contrary to the assertion that the trial judge
speculated regarding the D.N.A. evidence, he was, in fact, careful to downplay
its significance in his analysis. His treatment of the evidence was as follows:
[120] I should also comment on the DNA
evidence more directly. I have used this evidence only as a piece of
circumstantial evidence that is consistent with [the complainants] version of
events.
[121] I accept that it is consistent with
other, innocent means of transfer and for that reason I have not used it as the
"powerfully corroborative" evidence that the Crown suggested it is.
[122] I think in the circumstances it is
significantly more likely that [the appellants] DNA found its way onto [the
complainants] penis through direct transfer. Indeed, I consider the suggestion
of possible indirect transfer to be little more than speculation.
[123] In the usual course, it is not
necessary for the Crown to establish any given fact to the reasonable doubt
standard. It is usually enough that I be satisfied that the evidence on offer
is sufficiently reliable to conclude that a fact in issue is proven. But if I
were to conclude that the DNA on [the complainants] penis was the result of
direct transfer, the essential element of an intentional touching would be
established on that inference alone. Whether the touching occurred is the
central issue in the case and for that reason, it is my view that I must apply
the reasonable doubt standard to my consideration of the means by which [the
appellants] DNA came to be on [the complainants] penis. Given the limited
amount of DNA and the evidence of [the Crowns expert], I am unable to say that
the evidence meets that high standard.
[22]
Based on the foregoing, it is clear that the
trial judge concluded that it was more likely than not that the D.N.A. was
transferred directly and not indirectly. In other words, if he applied a
balance of probabilities standard, he would have been satisfied that there was a
direct transfer. This was a finding that was open to the trial judge, as he was
not bound by the expert opinion proffered in a factual vacuum:
R. v.
McNeill-Crawford
, 2020 ONCA 504, 392 C.C.C. (3d) 127, at para. 40. The
trial judge properly considered the issue of the D.N.A. evidence, having regard
to all of the evidence adduced at trial as he was required to do:
R. v.
Singh et al
., 2020 MBCA 61, at para. 69.
[23]
In his reasons, the trial judge was at pains to
avoid an inference of guilt based on a finding, on a balance of probabilities
standard, that there was no indirect transfer. Instead, the trial judge held
the Crown to the beyond a reasonable doubt standard. Therefore, rather than
using his finding regarding the D.N.A. to draw the inference that was open to
him, the trial judge limited its use to a piece of circumstantial evidence that
was consistent with the complainant's version of events. This use of the
evidence in assessing the credibility of the parties worked to the appellant's
benefit.
[24]
Further, there was nothing impermissible in the
trial judge using this evidence as a piece of circumstantial evidence
consistent with the complainant's version of events. Evidence does not become
irrelevant simply because it can be interpreted in more than one way or because
multiple inferences can be drawn from it. The trial judge's responsibility is
to decide on the weight to be given the evidence in light of the other
evidence:
R. v. Sutherland
, 2016 ONCA 674, 342 C.C.C. (3d) 309, at
para. 36;
R. v. Carroo
, 2010 ONCA 143, 259 O.A.C. 277, at para. 33.
The trial judge did just that, and there is no basis for appellate
interference.
(b)
The Complainants Intoxication
[25]
The appellant submits the trial judge erred in finding
that the complainants blood alcohol content was not sufficiently high enough
to support a conclusion that he was not capable of distinguishing between a
nightmare and the experience of his boss fondling his penis. He argues that
this is another instance where the trial judge wrongly used speculation to
bolster his credibility findings.
[26]
Specifically, the appellant says there are two
problems with this finding. The trial judge was not entitled to infer the
effects of a blood alcohol content on the complainant without evidence. Second,
he says that the trial judge drew this inference from an incomplete evidentiary
record. The evidence spoke only to the complainants blood alcohol content at
the time of testing, not at the time of the assault. In addition, the trial
judge did not consider that the complainant also had marijuana in his system.
[27]
The Crown submits that the point made by the
trial judge was that there was no evidence adduced about whether alcohol, at
any level, is capable of causing someone to hallucinate or lose the ability to
distinguish between dream and reality. Further, the Crown says that it was open
to the trial judge, in the absence of such evidence, to conclude that he could
not infer any such effects.
[28]
In my view, in this part of his reasons, the
trial judge was turning his mind to the critical issue of whether the
complainant was so intoxicated that it prevented him from accurately perceiving
what was happening to him. His reference to the complainant's blood alcohol
content without mentioning the other evidence on the complainants intoxicated
level was unfortunate. However, leaving aside whether extreme intoxication is
capable of causing someone to lose the ability to distinguish between dream and
reality, there was ample evidence to ground a finding that the complainant was
not so intoxicated that he hallucinated or was in a delusional state.
[29]
For example, P.C. Ledwidge, who spoke with the
complainant shortly after the sexual assault, testified that he was under the
influence of alcohol, but he was coherent enough to have a conversation. The
complainant was able to explain, in detail, to P.C. Ledwidge why he was at the
appellants house and the events of the evening. In addition, there was also
evidence from the appellant that the complainant remained coherent despite the
amount of alcohol he drank. In cross-examination, the appellant was adamant
that, throughout the night, the complainant was not extremely drunk.
[30]
I also agree with the Crown that
the complainants marijuana
use
was a non-issue. The complainant smoked marijuana approximately 21 hours before
the assault. He was clear in his testimony that he was not feeling any effects
from it by the time he met the appellant. In addition, he testified that
marijuana has never caused him to have delusions, and that mixing marijuana and
alcohol had never affected his recall.
[31]
In summary, I am not persuaded that the trial
judge engaged in speculation in his consideration of the complainant's level of
intoxication. The record well supported his finding that there was no basis for
concluding that the complainant was so intoxicated that he could not
distinguish between a nightmare and an actual sexual assault.
(c)
The Appellants Intoxication
[32]
The trial judge found that if the appellant had
been matching the complainant's drinking as he said he was, he would have been
"quite intoxicated" when the responding officer arrived. The
appellant submits that the trial judge had no evidentiary basis for concluding
whether the appellant would have been intoxicated from drinking the same amount
as the complainant.
[33]
I would not give effect to this argument. It
highlights the folly in dissecting a trial judge's reasons and reviewing them
in a piecemeal fashion. The more significant point that the trial judge was
making concerned the vital issue of who was directing the alcohol consumption
that evening. The complainant testified that the appellant told him to drink at
every commercial, but that the appellant had very little to drink himself. In
contrast, the appellant testified that the complainant was leading the drinking
and that they consumed a significant amount together. This discrepancy was a
critical issue in understanding the competing narratives of what occurred that
evening.
[34]
The trial judge rejected the appellants
suggestion that the complainant was in control of the amount of alcohol
consumed. He found that the appellant was dominant and clearly a person of
authority over the complainant. Further, he noted that it was the appellant's
home and alcohol, and that the appellant was the complainant's boss and almost
40 years older than the complainant. In his view, it was unlikely that the
complainant would have chosen to consume excessive amounts of alcohol at his
boss' house while trying to save his job. The trial judge also did not believe
the complainant would be drinking as he was planning on driving home. As such,
the trial judge found that the appellant was likely the one directing the
consumption of alcohol. He noted that none of this was positive evidence of
guilt, but that he was simply rejecting these portions of the appellant's
evidence.
[35]
In this context, the trial judge did not believe
the appellant's assertion that he had drunk as much as the complainant. That
finding was supported by independent evidence. For example, the trial judge determined
that the appellant gave no impression of being intoxicated when he spoke to the
911 operator or P.C. Ledwidge. Further, during an interview by the police two
months after the incident, the appellant said he was sober when P.C. Ledwidge
and the ambulance arrived at his home.
(2)
The Reliability Assessment of the Complainant
[36]
The appellant further argues that the trial
judge failed to consider evidence relevant to the material issue of the
reliability of the complainants testimony, which he says amounts to a
misapprehension of evidence. According to the appellant, that misapprehension
played an essential role in convicting him and thereby undermined trial
fairness.
[37]
The appellant submits that the fact the
complainant believed he was assaulted is not determinative of guilt. The trial
judge's reliability assessment needed to grapple with whether the complainant
had falsely perceived the assault in a state of cognitive impairment. According
to the appellant, the trial judge failed to consider several pieces of evidence
regarding the complainants cognitive impairment at the time of the incident,
including:
·
telling his sister that the devil was taking over his body and being
unresponsive on the phone with her;
·
stating that he did not know where he was;
·
appearing unaware that their conversation ended when she phoned him
back; and
·
telling the 911 operator that he did not "know anything"
and that he thinks he is "screwed up" and that the appellant was
giving him drugs.
[38]
Additionally, the appellant says that the trial
judges reliability assessment also ignored that the complainant expressed
reservations about whether he recalled the assault accurately. Finally, the appellant
submits that the verdict on the count of unlawful confinement itself raised
doubt about whether the complainant was able to perceive events accurately.
[39]
I would not give effect to this ground of
appeal, which amounts to an invitation to redo the trial judges reliability
assessment. The trial judge was alive to the complainants actions and
statements after waking up, and drew an inference that his erratic behaviour
was due to genuine traumatization. That was a finding open to the trial judge.
We are long past the point in our jurisprudence where we impose on sexual
assault victims stereotypical notions of how they are to behave after being
assaulted and then assess their credibility and reliability based on whether
their behaviour was consistent with those stereotypes.
[40]
In my view, the appellant also places undue
emphasis on the complainant's statement about whether he recalled the assault
accurately. It is correct that the complainant explained that he had doubts in
the sense that he did "not [want] to think [the assault] actually happened."
However, he was unshaken in cross-examination that he "know[s] it
happened" and that he "wasn't imagining."
[41]
I also see nothing in the acquittal on the count
of unlawful confinement that is supportive of this ground of appeal. The trial
judge distinguished between the complainant's memory of waking to find his boss
sexually assaulting him from his ability to recall what happened immediately
afterward when he was increasingly in a state of emotional trauma. That was a
sensible and available interpretation of the evidence.
(3)
Insufficient Reasons
[42]
In a submission largely overlapping the grounds
of appeal considered above, the appellant argues that the trial judge provided
insufficient reasons for his decision. According to the appellant, by
speculating and ignoring critical evidence, the reasons insufficiently
articulate how serious reliability concerns were resolved. He says that the
primary concern was whether the complainants perception of the sexual assault
was sufficiently reliable to ground a conviction.
[43]
The thrust of the appellant's submission is that
the trial judge resolved this issue by relying on speculation and without
reference to evidence which suggested that the complainant did not accurately
perceive events. He argues that the central question remains unanswered when
these errors are stripped from the reasons. In particular, sufficient reasons were
needed to explain why the complainant feeling like the devil had taken over his
body, falsely believing that the appellant gave him drugs, feeling screwed up
and not knowing anything, and expressing doubts about what actually occurred,
did not give the trial judge some concern that the complainant could not
accurately perceive reality.
[44]
The most recent guidance from the Supreme Court
regarding insufficient reasons is
R. v. G.F.
, 2021 SCC 20.
Karakatsanis J., writing for the majority, said the following, at paras. 69-70:
[69] This Court has repeatedly and
consistently emphasized the importance of a functional and contextual reading
of a trial judges reasons when those reasons are alleged to be insufficient:
Sheppard
,
at paras. 28-33 and 53;
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R.
621, at para. 19;
Hill v. Hamilton-Wentworth Regional Police Services Board
,
2007 SCC 41, [2007] 3 S.C.R. 129, at para. 101;
R. v. Dinardo
, 2008
SCC 24, [2008] 1 S.C.R. 788, at para. 25;
R. v. R.E.M.
, 2008 SCC 51,
[2008] 3 S.C.R. 3, at para. 15;
R. v. Laboucan
, 2010 SCC 12, [2010] 1
S.C.R. 397, at para. 16;
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R.
639, at paras. 10, 15 and 19;
R. v. Villaroman
, 2016 SCC 33, [2016] 1
S.C.R. 1000, at para. 15;
R. v. Chung
, 2020 SCC 8, at paras. 13 and
33. Appellate courts must not finely parse the trial judges reasons in a
search for error:
Chung
, at paras. 13 and 33. Their task is much
narrower: they must assess whether the reasons, read in context and as a whole,
in light of the live issues at trial, explain what the trial judge decided and
why they decided that way in a manner that permits effective appellate review.
As McLachlin C.J. put it in
R.E.M.
, The foundations of the judges
decision must be discernable, when looked at in the context of the evidence,
the submissions of counsel and the history of how the trial unfolded: para.
17. And as Charron J. stated in
Dinardo
, the inquiry into the
sufficiency of the reasons should be directed at whether the reasons respond to
the cases live issues: para. 31.
[70] This Court has also emphasized the
importance of reviewing the record when assessing the sufficiency of a trial
judges reasons. This is because bad reasons are not an independent ground of
appeal. If the trial reasons do not explain the what and the why, but the
answers to those questions are clear in the record, there will be no error:
R.E.M.
,
at paras. 38-40;
Sheppard
, at paras. 46 and 55.
[45]
Further, Karakatsanis J. observed that
particular deference should be afforded credibility findings, as they are often
difficult to articulate with precision. This is especially the case in sexual
assault cases. Karakatsanis J. stated, at para. 81:
[81] As
Slatter
demonstrates, a trial
judge's findings of credibility deserve particular deference. While the law
requires some articulation of the reasons for those findings, it also
recognizes that in our system of justice the trial judge is the fact finder and
has the benefit of the intangible impact of conducting the trial. Sometimes,
credibility findings are made simpler by, for example, objective, independent
evidence. Corroborative evidence can support the finding of a lack of voluntary
consent, but it is of course not required, nor always available. Frequently,
particularly in a sexual assault case where the crime is often committed in
private, there is little additional evidence, and articulating reasons for
findings of credibility can be more challenging. Mindful of the presumption of
innocence and the Crowns burden to prove guilt beyond a reasonable doubt, a
trial judge strives to explain why a complainant is found to be credible, or
why the accused is found not to be credible, or why the evidence does not raise
a reasonable doubt. But, as this Court stated in
Gagnon
, at para. 20:
Assessing credibility is not a science. It
is very difficult for a trial judge to articulate with precision the complex
intermingling of impressions that emerge after watching and listening to
witnesses and attempting to reconcile the various versions of events.
[46]
With those comments in mind, I consider the
sufficiency of the reasons issued by the trial judge. There is no merit in this
submission, which, to my mind, is a reiteration of his argument that the trial
judges credibility and reliability assessments were flawed. The trial judges
reasons fairly read make plain that he concluded that the complainant was not
hallucinating but was genuinely traumatized. It was this traumatization that
the trial judge concluded was the explanation for the complainants behaviour
post-sexual assault.
[47]
Obviously, the appellant disagrees with this
finding, but this does not amount to insufficient reasons. In my view, the
reasons of the trial judge are clear and do not frustrate appellate review.
Consequently, I would reject this argument.
(4)
Uneven Scrutiny of the Parties Evidence
[48]
The final argument advanced by the appellant is
that the trial judge subjected his evidence and the evidence of the complainant
to different degrees of scrutiny. He says that the trial judge rejected his
evidence because he disbelieved his account of who directed the drinking,
because he disbelieved his amount of alcohol consumption, and because he
described the complainants condition as a seizure. In addition, he submits
that the trial judge's conclusion that the appellant could not have drunk as
much as the complainant was a result of speculation. This, according to the
appellant, is in sharp contrast to the trial judges use of speculation to
boost the complainants credibility and reliability. Finally, he says that the
trial judge ignored critical evidence and dismissed as insignificant many
inconsistencies in the complainants testimony.
[49]
The law regarding the uneven security ground of
appeal continues to develop. The seminal case on the point is
R. v. Howe
,
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.). In that case, Doherty J.A., at para.
59, made clear the limited scope of this argument:
[59] [I]t is not enough to show that a
different trial judge could have reached a different credibility assessment, or
that the trial judge failed to say something that he could have said in
assessing the respective credibility of the complainant and the accused, or
that he failed to expressly set out legal principles relevant to that
credibility assessment. To succeed in this kind of argument, the appellant must
point to something in the reasons of the trial judge or perhaps elsewhere in
the record that make it clear that the trial judge had applied different
standards in assessing the evidence of the appellant and the complainant.
[50]
In
G.F.
, Karakatsanis J. cast doubt on
the utility of uneven scrutiny as an analytical tool to demonstrate error in
credibility findings. However, in the absence of full submissions on the issue,
she declined to determine whether uneven scrutiny is a helpful or independent
ground of appeal.
[51]
In my view, this is yet another argument made by
the appellant that essentially asserts that the trial judge erred in his
credibility and reliability assessments. For the reasons stated above, I see no
error in the trial judge's analysis. I also reject the argument that he
subjected the evidence of the appellant and the complainant to different levels
of scrutiny. The trial judge canvassed the alleged inconsistencies in the
complainant's evidence. He held that these inconsistencies were minor and
explained by the traumatic circumstances. Accordingly, there is no merit in
this submission.
E.
disposition
[52]
For the foregoing reasons, I would dismiss the
appeal. In accordance with the parties agreement, I would also dismiss as
abandoned the appellants sentence appeal and his application to re-open that
appeal.
Released: August 23, 2021 C.W.H.
C.W. Hourigan J.A.
I agree. B. Zarnett J.A.
I agree. S. Coroza 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 complainants 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.S.L., 2021 ONCA 576
DATE: 20210823
DOCKET: C66965
Tulloch, Huscroft and Thorburn
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
R.S.L.
Appellant
R.S.L., acting in person
Paul Alexander, appearing as duty
counsel
Phillipe Cowle, for the respondent
Heard: March 11, 2021 by video
conference
On appeal from the conviction entered on
April 30, 2019 and the sentence imposed on June 26, 2019 by Justice Robbie D.
Gordon of the Superior Court of Justice, sitting without a jury.
REASONS
FOR DECISION
[1]
The appellant, R.S.L., appeals his conviction of
the following offences: sexual assault (x2), receiving material benefits from
sexual services (x2), and advertising sexual services (x2). As a result of
these convictions, the appellant was sentenced to a global sentence of seven
and a half years, less three years pre-trial custody. He also seeks leave to
appeal his sentence, and if leave is granted, he appeals his sentence.
[2]
The appellant appeals his convictions on the
basis that the trial judge committed a number of errors with respect to his
factual findings. The appellant is essentially asking this court to review the
credibility findings of the trial judge. For the following reasons, we are not
satisfied that the trial judge committed any errors in his factual findings to warrant
appellate intervention.
The Background Facts
[3]
The underlying facts can be summarized as
follows.
[4]
The allegations against the appellant involved
three complainants: J.T., J.F., and J.L. The appellant was convicted of all
charges related to J.T. and J.F., and acquitted on all charges in respect of J.L.
All three complainants were in their early twenties at the time when they met
and became involved with the appellant. The appellant was in his late forties.
All the complainants were addicted to various types of illicit drugs, including
cocaine and fentanyl. Because the appellant was acquitted of the charges
pertaining to J.L., we focus our analysis only on the evidence relating to J.T.
and J.F.
[5]
The two complainants, who were the subject of
the convictions, testified that they were both sexually assaulted by the
appellant, and that at various times the appellant used his own computer to
create an escort service advertisement on the online website known as Backpage.com.
Both complainants, J.T. and J.F. testified that the appellant took an active
role in the advertisement for sexual services, the provision of a room rented
by the appellant to meet clients, the amount of fees which each of them charged
their various clients, and the monies that should be paid to the appellant in
return, by each complainant. The appellant also provided each of J.T. and J.F.
with a cellular phone for communications between their clients, and at times,
he supplied both complainants with drugs that were to be paid for through
escorting.
[6]
The appellant did not testify.
[7]
The trial judge found the evidence of both J.T.
and J.F. credible and reliable, and convicted the appellant of all charges
pertaining to these two complainants. He had a reasonable doubt with respect to
the evidence of J.L. and acquitted the appellant with respect to the charges
pertaining to her.
The Grounds of
Appeal
[8]
In oral argument, the appellant, through duty
counsel, advanced three principal grounds of appeal, essentially attacking the
trial judges credibility findings. He says that the trial judge erred:
i.)
By drawing the impermissible inference that both
complainants evidence was more credible because they repeated the same version
of events on several previous occasions;
ii.)
By not considering the risk of collusion by the
various complainants, especially because J.T. and J.F. were friends; and
iii.)
By improperly relying on the lack of
embellishment in both complainants allegations and evidence to support their
credibility.
Discussion
[9]
It must be noted at the
outset that a trial judges findings of credibility are owed heightened
deference and absent a palpable and overriding error will not be interfered
with on appeal:
R. v. G.F
., 2021 SCC 20, 71 C.R. (7th) 1, at para. 81;
R. v. R.E.M.
, 2008 SCC, [2008] S.C.R. 3, at para. 32.
[10]
The appellant argues that the trial judge
committed palpable and overriding errors in his factual findings regarding the
credibility of the complainants.
[11]
First, the appellant argues that the trial judge
drew the impermissible inference that both complainants evidence was more
credible because they repeated the same version of events on several previous
occasions.
[12]
The appellants argument is based on the following
excerpt from the trial judges reasons, where he made certain observations.
With respect to the evidence of J.T., he stated:
I find her evidence to be reliable for several
reasons. To begin with, her version of events seemed to have remained quite consistent.
She gave a lengthy statement to the police. She testified at the preliminary hearing.
She gave evidence at trial. Yet I was directed to very few inconsistencies in
her evidence.
[13]
In reference to the evidence of the complainant,
J.F., the trial judge stated as follows:
She gave a detailed statement to police,
testified in the preliminary hearing, and gave evidence at trial. If there were
significant changes in her story, they were not brought to my attention. In
short, she was believable. Theres not good reason to doubt the reliability of
her evidence and where corroboration might be expected to be found, it was.
[14]
These observations and comments by the trial
judge were made within the context of arguments raised by the defence attacking
the credibility and reliability of both complainants evidence, as they were
both heavy drug users and were addicted to both fentanyl and cocaine.
[15]
In his closing submissions, the defence counsel
at trial made the following statement, which outlined his approach to the
evidence:
Credibility in these cases is extremely
important. We have to look at not only what they said in examination-in-chief,
but what they said in cross-examination, how they presented themselves, what
issues they had concerning drug use, drug consumption and how that affected
their memory, if any, and the type of drug that was used.
Now, Your Honour is well aware this is Were
not just talking about just cocaine here. Were talking about fentanyl. All
three young ladies are talking about fentanyl, and Im going to go about it in
a different fashion than my friend. Im going to start with [J.L.], Your
Honour.
[J.L.] was indicating that she, after leaving
detox in early November, relapsed and started using fentanyl. She hadnt met
Mr. [L.]. yet, and from what we heard, she was already escorting with her
friend named [B.]
In her own words. And shes on fentanyl and cocaine.
So, all of this is memories made by her while under, what I would put a
tremendous amount of drugs that shes getting from She gets patches from
anybody.
And then we recall that she got into fentanyl,
and I think it was [J.], and I stand to be corrected about [fentanyl], Your
Honour. So, all of that affecting memory recall and otherwise.
[16]
It is clear from the above excerpts that the
defence strategy was to attack the credibility and reliability of the
complainants evidence by highlighting and focusing on the impact of their
heavy drug use and addictions on their memory, and their ability to accurately
recall what had occurred in their lives during the time period of the
allegations.
[17]
In his reasons for judgment, before making any
reference to the consistency of the complainants prior statements, the trial
judge specifically referenced the defence argument, which provided the context
for his subsequent comments on the credibility and reliability of the
complainants evidence:
Defence counsel argued that the evidence of J.T.
was neither credible nor reliable. He pointed out that she was, during much of
the period in question, a heavy user of fentanyl and therefore her ability to
recall and relate evidence would necessarily be compromised. He pointed out
that by her own admission, she recruited J.F. to work with her as an escort for
the accused. He questioned why she would have done so if she had been sexually
assaulted by him.
[18]
It was perfectly appropriate for the trial judge
to reference the previous consistent versions of the complainants evidence
within the context of defence counsels attack on the reliability of their
evidence due to faulty memory, which could have been induced by the consumption
of heavy drug use. We do not agree that the trial judge used the prior
consistent versions as corroboration, but rather to provide important context
for assessing the reliability of the evidence of the two complainants:
R. v. L.O.
, 2015
ONCA 394, 324 C.C.C. (3d) 562, at para. 34.
[19]
The judges reasons when read as a whole and in
the context of the submissions of defence counsel at trial do not reveal any
error that warrants appellate intervention. Accordingly, we would not give any
effect to this ground of appeal.
[20]
The second argument raised by the appellant is
that the trial judge erred in not addressing the risk of collusion in the
respective complainants evidence, as the two complainants were close friends
who made very similar allegations against the appellant.
[21]
We do not agree.
[22]
At trial, the Crown filed a similar fact
application which was dismissed by the trial judge. The issue of innocent
collusion was relevant only to the similar fact application. Once this
application was dismissed, it was no longer an issue on the trial proper. On
the trial proper, the defences argument was that the complainants were either
deliberately lying, or that their evidence was unreliable because of their drug
use and addiction. The trial judge made specific findings of fact that the complainants
evidence was both credible and reliable.
[23]
The veracity of their evidence was not affected
by their drug consumption. As a result, there was no merit to the argument that
the complainants were mistaken about the material elements of the offences they
alleged against the appellant.
[24]
Both complainants were clear in their evidence
that they were sexually assaulted by the appellant, and that they participated
in sex work that financially benefitted the appellant.
[25]
We would not give any effect to this ground of
appeal.
[26]
Finally, the appellant argues that the trial
judge erred in his credibility assessment of the complainants evidence by
improperly relying on lack of embellishment to support the complainants
credibility.
[27]
The appellant relies on the following excerpt
from the trial judges reasons to substantiate this position:
I find her to be compelling for many of the
same reasons I found the evidence of J.T. to be compelling. Like J.T., J.F. was
quick to admit her shortcomings, no matter the light they cast her in. She
admitted to a longstanding addiction to drugs. She admitted to voluntarily
working as an escort. She placed blame for her actions nowhere but on herself.
She did not overstate or dramatize her situation. She was very matter of fact
at setting out how her life had played out.
When she spoke of what her addiction had cost
her, of her loss of self-respect, she did not speak angrily of Mr. [L.].
Even when she described being sexually assaulted by him, she did not express
anger or resentment towards him. Rather she described it as a point at which
she realized that all of her self-worth had gone.
[28]
We do not agree with the appellants
characterization of the impugned portion of the trial judges reasons.
[29]
A trial judges reasons must be read as a whole,
and within the context of the evidence adduced at trial. At trial, the
appellant attacked the credibility and reliability of the complainants
evidence. On several occasions in closing submissions, the defence highlighted
the fact that the complainants were heavy drug users. They were both addicted
to fentanyl and cocaine, and were admittedly, escorts. The judges observation
is simply a recognition of the forthrightness and candour of both complainants
evidence, a factor that goes directly to the credibility of each witness, and a
factor that was properly within the purview of the trial judge to consider.
[30]
In the result, we are satisfied that the
findings made by the trial judge were open to him. The specific complaints
advanced do not rise to the level required to warrant our interference.
Disposition
[31]
The appeal from conviction is dismissed.
[32]
In his notice of appeal, the appellant also
appealed his sentence on the basis that the sentence was excessive. The appellant
was sentenced to a total of seven and a half years, less three years pre-trial
custody. The sentence comprised of two consecutive three-year sentences for two
counts of sexual assault on two complainants, and an additional 18-month
consecutive sentence for the prostitution-related offences.
[33]
The sentence imposed was within the appropriate
range, considering the nature of the offences, as well as the aggravating
factors outlined by the trial judge.
[34]
The sentencing decision is entitled to
considerable deference unless this court is satisfied that the sentence imposed
was demonstrably unfit, or that the sentencing judge made an error in principle
that had an impact on the sentence:
R. v. Lacasse
, 2015 SCC 64, [2015]
3 S.C.R. 1089, at paras. 10-11, and 39-41.
[35]
We see no errors in the sentence imposed, nor
was the sentence demonstrably unfit; as such, there is no basis for us to
interfere.
[36]
Leave to appeal sentence is granted; sentence
appeal is dismissed.
M.
Tulloch J.A.
Grant
Huscroft J.A.
J.A.
Thorburn J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Vu v. Canada (Attorney General),
2021 ONCA 574
DATE: 20210823
DOCKET: C68398
Fairburn A.C.J.O., Miller and
Zarnett JJ.A.
BETWEEN
Huan Vu
Plaintiff (Respondent)
and
Attorney General of Canada
Defendant (Appellant)
Kristina Dragaitis and Aleksandra
Lipska, for the appellant
Subodh S. Bharati and W. Cory Wanless, for the
respondent
Heard: March 4, 2021 by video conference
On appeal from the order of Justice Paul
B. Schabas of the Superior Court of Justice, dated April 21, 2020, with reasons
reported at 2020 ONSC 2447.
Fairburn A.C.J.O.:
A.
Overview
[1]
The respondent started a claim for false arrest,
false imprisonment, and breaches of his rights under the
Canadian Charter
of Rights and Freedoms
. The appellant brought a motion for summary
judgment pursuant to r. 20 of the
Rules of Civil Procedure
, R.R.O.
1990, Reg. 194, on the basis that the respondents action is statute-barred
pursuant to ss. 4 and 5 of the
Limitations Act, 2002
, S.O. 2002, c. 24. That
motion was dismissed.
[2]
This appeal is predicated on multiple alleged
errors in the motion judges reasons, all of which are said to have led to the
erroneous conclusion that the respondents action is not statute-barred. For
the reasons that follow, I would dismiss this appeal.
Brief Factual Overview
[3]
In 1999, the respondent, a Vietnamese citizen,
came to Canada as a student. In 2001, his legal status in Canada expired, but he
did not leave the country. In 2007, Citizen and Immigration Canada ordered his
removal from Canada, but he remained in the country. Also in 2007, he was
charged with and convicted of one count of possession of marijuana, for which
he received a 3-month conditional sentence.
[4]
In 2009, the respondent was placed into
immigration detention. He was later released on terms, including that he reside
at the home of his friend and bondsperson, Mr. John Le, and adhere to a nightly
curfew from 2:00 a.m. to 6:00 a.m. Mr. Le also signed a $10,000 performance
bond and a $15,000 cash bond to guarantee the respondents compliance with his
release terms.
[5]
In 2010, the respondent married his current
wife. In 2012, he and his wife had a child. The respondent quickly became the
childs primary caregiver as his wife was the sole income earner. The
respondent maintained that he would spend his days caring for the child in the
home where his wife and child lived, but that he would always return to the
residence of his bondsperson at night in order to comply with the terms of his
release.
[6]
The crux of the allegation leading to the
respondents arrest, lengthy detention, and eventual deportation from Canada
occurred on June 25, 2013 at about 10:00 a.m. On that day, Canada Border
Services Agency (CBSA) officers, including Officer Erin McNamara, conducted a
compliance check at the bondspersons residence. The respondent was not there.
According to Officer McNamaras statutory declaration, used at the immigration
proceeding resulting in the respondents detention and ultimate deportation
from Canada, she spoke to an English speaking resident Ms. Than Luong.
[7]
Officer McNamara said that she showed Ms. Luong a
picture of the respondent and asked if he was home. According to Officer
McNamara, Ms. Luong responded that the respondent used to reside in the
basement with her daughter, but that he had moved out last summer and did
not live there anymore.
[8]
On June 27, 2013, the respondent was arrested
for breach of the terms of his release and placed into detention. The
respondent attended two detention reviews before the Immigration Division
tribunal on July 2, 2013 and July 9, 2013. At the second review, the respondent
filed the sworn affidavit evidence of Ms. Dau Thi Le, the mother of the
bondsperson, Mr. Le.
[9]
In Ms. Les affidavit, she said that she was the
woman who spoke to the CBSA officers on June 25, 2013, not Ms. Luong. Ms. Le said
that she was present in the home that day because, despite her health problems,
her daughter asked her to babysit her grandchildren. Ms. Le said that she does
not speak or understand English well, but [is] fluent in Vietnamese. Even so,
she said that she communicated with the officers in English. She described her interaction
with the CBSA officers as follows:
Around 12 noon on that day, two people, a man
and a woman, came to my daughters home, and when I opened the door, I saw them
in bullet proof vests and they looked like police officers to me. I asked them
in English what happened and they showed me a photograph and asked me in
English if Hoan Vu lived at my daughters house, and I answered that I did not
know.
When my daughter returned home at 3pm on that
day, I told her that those two people came to her home to inquire if Hoan Vu
lived there. My daughter then told me that Hoan Vu did live in her house,
but
only at night.
[10]
Ultimately, the Immigration Division tribunal
accepted Officer McNamaras evidence about what Ms. Luong said in English at
the residence and ordered the respondent detained. The detention stretched over
467 days in what he described as a maximum-security facility.
[11]
On October 7, 2014, well over a year after he
was placed into detention, the respondent was escorted by CBSA officers to
Vietnam, where he was released the next day.
[12]
Because the respondent breached his terms, Mr.
Les bonds were forfeited. Mr. Le contested the forfeiture of the bonds in
Federal Court. In the context of that litigation, CBSA Officer Derek Sliwka
authored a document entitled Notes to File (Notes), dated March 2, 2015. Of
course, this was after the respondent had already been removed from the
country.
[13]
The Notes were disclosed and ultimately made
their way to the respondent. In the Notes, Officer Sliwka wrote that, in
preparation for writing the Notes, he reviewed the electronic systems and the
case file along with the submission from counsel.
[14]
Officer Sliwka summarized Mr. Les counsels
position that Officer McNamara actually encountered Ms. Le at the door of the
bondspersons home on June 25, 2013, and that she does not speak English. Officer
Sliwka explained that Officer McNamara maintains that she spoke to Ms. Luong
during her investigation and that an interpreter was contacted by phone to
translate the specific questions asked by Officer McNamara.
[15]
As a result of those Notes, the CBSA decided to
reverse its position on the bond, settling the litigation with Mr. Le on June
13, 2016, ultimately agreeing to return his previously forfeited funds. In an internal
email disclosed as part of the appellants motion record, it is clear that a
decision had been reached to not forfeit the bonds because it could not be
defended due to the inconsistencies between the [statutory declaration of
Officer McNamara] and the notes to file.
[16]
In affidavit evidence, the respondent explained
the many things he was dealing with during his lengthy period in custody,
including attempting to navigate the complexities involved with being removed
from the country while having a child who would remain in Canada. Ultimately,
though, the respondent explains that it was not until the Notes were released
in the context of the bonds litigation that he came to realize that he had a
claim. As he puts it:
Previously, I had trusted the Canadian
government and had trusted the CBSA. I had put my faith in the adjudicators at
my detention review hearings. I believed that they were doing their job and had
not questioned them. I had thought that at worst the CBSA had made a mistake
and misunderstood what I had done or what was going on. I thought maybe the
Officer didnt realize that Johns mom didnt speak English. I had never
believed that the CBSA would have withheld disclosure from the Immigration
Division indicating that it knew the Statutory Declaration of Officer McNamara
contained errors.
[17]
Accordingly, the respondent commenced his action
on October 7, 2016. The motion judge summarized the respondents claim for
false arrest, detention, and
Charter
breaches as follows: [t]he claim
arises from the actions of the CBSA in arresting and supporting the [respondents]
detention in June and July 2013, and specifically presenting false evidence at
the review hearing on July 9, 2013, regarding the information allegedly
obtained from the woman McNamara spoke to at the bondspersons home.
B.
The Reasons for Dismissing the Motion
[18]
In addition to his claims for false arrest,
false imprisonment, and breaches of
Charter
rights, the respondent
made other claims, including malicious prosecution and breach of a settlement.
Those latter claims were struck by Schreck J. on June 1, 2018 because they
disclosed no reasonable cause of action.
[19]
The appellant then moved for summary judgment,
asking that the balance of the claim be struck on the basis that it was statute-barred
by virtue of s. 5(2) of the
Limitations Act
, because the causes of
action of false arrest, false imprisonment, and breaches of
Charter
rights are said to have been discoverable more than two years prior to the
commencement of the action.
[20]
Before reviewing the motion judges reasons for
dismissing the motion, it is perhaps helpful to provide a chart that summarizes
the key dates informing the limitation period:
Date
Event
June 25, 2013
Officer McNamara visits bondspersons
home and communicates with what she describes as the English speaking
resident
June 27, 2013
Respondent is arrested and detained
July 9, 2013
Immigration Division accepts Officer McNamaras
evidence over the respondents evidence, as captured in the sworn affidavit
of Dau Thi Le, and orders the respondent detained
October 7, 2014
Respondent is escorted by CBSA officers to
Vietnam
October 8, 2014
Respondent is released in Vietnam
June 10, 2015
Notes disclosed in the context of the bonds
litigation state that an interpreter was used to communicate with the person
with whom the CBSA officers spoke on June 25, 2013
June 13, 2016
Decision communicated to the bondsperson that
the $15,000 cash bond and $10,000 performance bond are no longer required
and would be returned to him
October 7, 2016
Action commenced by the respondent
[21]
The motion judge provided lengthy and considered
reasons, commencing with a discussion of the legal principles that apply to
both summary judgment and
Limitations Act
matters.
[22]
The appellant argued that the torts of false
arrest and false imprisonment arise upon arrest. As the alleged breaches of the
respondents
Charter
rights are tied to the allegations involving
false arrest and false imprisonment, they are also said to arise on the date of
arrest. Therefore, according to the appellant, the torts advanced by the
respondent were discoverable on June 27, 2013 the date the respondent was
arrested.
[23]
The motion judge perceived some conflict in the
law relating to when a limitation period commences for purposes of unlawful
arrest and detention. Ultimately, though, he determined that he did not need to
decide that issue because, in his view, even if the limitation periods for the intentional
torts of false arrest and false imprisonment usually start on the date of
arrest and detention, this is nothing more than a presumption. Like all limitation
date matters, that presumption must be considered against the four-part test
set out in s. 5(1)(a) of the
Limitations Act
.
[24]
When considered against the four-part test in s.
5(1)(a), the motion judge was satisfied that the presumption had been displaced
because the respondent did not have sufficient facts on which to base his claim
of arrest and detention until the Notes were disclosed on June 10, 2015. In addition,
the motion judge found that, pursuant to s. 5(1)(a)(iv) of the
Limitations
Act
, even if the respondent had sufficient facts by July 9, 2013 on which
to allege wrongdoing, it would not have been appropriate to bring a claim until
after the disclosure of the Notes.
[25]
The motion judge also rejected as speculative
and unpersuasive the appellants suggestion that, even if the claim was not
discoverable at the time of arrest, this resulted from the respondents failure
to exercise due diligence in discovering his claim within two years of his
arrest.
[26]
Finally, the motion judge determined that,
pursuant to s. 5(1)(b) of the
Limitations Act
, the respondent acted
reasonably in the circumstances in which he found himself and could not
reasonably have been expected to have discovered his claim earlier than June
2015.
[27]
In the end, the motion judge concluded that June
10, 2015 was the pertinent discoverability date. Since the claim was started on
October 7, 2016, the motion judge concluded that the claim was made well within
the two-year limitation period.
C.
ISSUES
(i)
Overview
[28]
The appellant argues that the motion judge made
multiple errors in his decision to dismiss the motion for summary judgment.
[29]
First, leaning on this courts decision in
Kolosov
v. Lowes Companies Inc.
, 2016 ONCA 973, the appellant argues that the limitation
periods for the torts of false arrest and false imprisonment automatically
commence upon arrest. As the alleged breaches of the respondents
Charter
rights are tied to the allegations involving false arrest and false imprisonment,
the limitation periods for those breaches are also said to commence upon the
date of arrest. Therefore, according to the appellant, the motion judge erred
by failing to appreciate that the torts advanced by the respondent were, for
all intents and purposes, automatically discoverable on June 27, 2013, the date
the respondent was arrested, or, at the very latest, July 9, 2013, when the
respondent learned of Officer McNamaras evidence.
[30]
Second, the appellant argues that the motion
judge erred in law by failing to articulate and apply the correct test for
discoverability.
[31]
Third, even if the motion judge articulated the
right test for discoverability, the appellant argues that he erred by making
palpable and overriding errors of fact in arriving at the conclusion that the respondent
had no claim to bring until the Notes were disclosed in June 2015.
[32]
Fourth, the appellant contends that the motion
judge erred by failing to appreciate that the respondent did not act with due
diligence.
[33]
Finally, the motion judge is said to have erred
in concluding that it was appropriate within the meaning of s. 5(1)(a)(iv) and
the circumstances of this case to delay bringing this action until after the
Notes were disclosed.
[34]
The respondent advances an alternative argument
in the event that the appellants position finds favour in this court. In
particular, the respondent argues that because he was transported by the CBSA
to Vietnam, rendering him detained for a period of time outside of Ontario, s.
32 of the
Crown Liability and Proceedings Act
, R.S.C. 1985, c. C-50
governs the limitation period in this case. If he is right on this, then a
six-year (as opposed to two-year) limitation period would apply and the
respondents claim would easily fall within that zone. As will become clear,
there is no need to address this alternative argument
(ii)
The
Application of
Kolosov
[35]
The appellant argues that the motion judge erred
in failing to find that this courts decision in
Kolosov
stands for
the clear proposition that the limitation period for wrongful arrest and
detention commences on the date of arrest.
[36]
The appellant argued before the motion judge
that the
Limitations Act
barred the respondents action because the
causes of action of false arrest, false imprisonment, and breaches of
Charter
rights (as linked to the other causes of action) all crystallized and were
discoverable on the date of the respondents arrest on June 27, 2013 and, at
the latest, at the time of the detention hearing on July 9, 2013. In support of
this proposition, the appellant relies upon this courts decision in
Kolosov
,
at para. 11:
The law in relation to the commencement of the
limitation period for the intentional torts of false arrest and false
imprisonment, and associated
Charter
breaches, is well settled. As
Chiappetta J. noted in
Fournier-McGarry (Litigation guardian of) v. Ontario
, 2013 ONSC 2581
, at para. 16:
A claim for the
common law torts of false arrest, false imprisonment and breach of
Charter
rights arising there-from
crystallizes on the date of arrest (see,
Nicely v. Waterloo Regional Police
Force
, [1991] O.J. No. 460
(Ont. Div. Ct.),
para. 14; [
Ferri
]
v. Root
, [2007] O.J. No. 397
(Ont. C.A.), para.
102).
[37]
The respondent, citing different and earlier
appellate authority that he argued was not overturned by
Kolosov
,
urged
the motion judge to instead conclude that the limitation period commenced not
on the date of arrest, but on the date of his release from detention in
Vietnam:
Mackenzie v. Martin
,
[1952] O.R. 849 (C.A.), at paras.
6-8, affd [1954] S.C.R. 361.
[38]
The motion judge reviewed the issue in some
detail, clearly expressing misgivings about the broad interpretation of
Kolosov
being urged upon him by the appellant. Among other things, the motion judge
looked behind the cases cited in
Kolosov
in an effort to explain
why the appellants position about the reach of
Kolosov
was not
as clear as suggested. The motion judge also expressed some concern that a
false arrest and an unlawful imprisonment may not occur at the same time.
[39]
Despite expressing these misgivings, in the end,
the motion judge concluded that he need not resolve the parties disparate
views as to whether the limitation period commenced on the date of arrest or
release given that, even taking
Kolosov
at its highest, it only
created a rebuttable presumption under s. 5 of the
Limitations Act
and
that the presumption had been rebutted in this case:
While I have concerns with the broad
application of
Kolosov
urged on me by the defendant, I do not
need to resolve the conflict in the cases in this matter.
[S]ince section
5(1)(a) of the
Limitations Act
establishes a four-part test, I regard
Kolosov
as simply setting up a presumption (which was not rebutted in that case) that
the cause of action arose on the date of arrest and detention or, at latest,
the date of the second detention hearing [July 9, 2013], but it does not
address all four parts of the test. This means I must still consider when the
plaintiff had sufficient facts on which to base an allegation of wrongful
arrest and detention
.
[40]
Significantly,
Kolosov
has been cited
by this court in subsequent decisions for the very proposition disputed by the
respondent, that the limitation period presumptively runs from the date of
arrest: see, for example,
Winmill v. Woodstock (Police Services Board)
,
2017 ONCA 962, 138 O.R. (3d) 641, at para. 44,
per
Huscroft J.A. (dissenting),
leave to appeal refused, [2018] S.C.C.A. No. 39;
McHale v. Lewis
,
2018
ONCA 1048, 144 O.R. (3d) 279, at para. 42. Therefore, the appellants argument has
some traction as to when limitation periods commence in cases of this nature.
[41]
At the same time, I understand the appellants
concern to be the motion judges characterization of the appellants reading of
Kolosov
, and his expression of misgiving about it. At the end of the
day, though, the motion judge did not find that
Kolosov
stands for any
principle broader than the presumption that a cause of action arises on the
date of arrest and detention or, at the latest, the date of the second
detention hearing a few weeks later. Indeed, the motion judge was prepared to resolve
the motion on that basis. In the end, he simply resolved that the date of
arrest the
Kolosov
date was the presumptive date for the commencement
of the limitation period, but that the respondent had effectively displaced
that presumption.
[42]
Therefore, despite having expressed misgivings
about the appellants submissions, I do not read the motion judges reasons as unfaithful
to the plain language of
Kolosov
.
Rather, he accepted, however
reluctantly, the appellants position that the limitation period presumptively begins
to run at the date of arrest. This makes sense legally, given that the arrest is
the act on which the claim is based, and is therefore the presumptive date of
discovery of the claim:
Limitations Act
, s. 5(2). It makes sense
practically as well, as the plaintiff will often know at the time of arrest and
detention whether the facts alleged to justify that arrest and detention are
false, as was the case in
Kolosov
: see 2016 ONSC 1661, at para. 119. Accordingly,
despite his expressed concerns, the motion judges reasoning turned on whether
the
Kolosov
presumptive date was rebutted pursuant to ss. 5(1) and (2)
of the
Limitations Act
.
[43]
I see no error in that approach. Section 4 of
the
Limitations Act
requires an action in respect of a claim to be
commenced within two years of the claim being discovered. Sections 5(1) and (2)
of the
Limitations Act
read as follows:
5(1) A claim is discovered on the
earlier of,
(a) the day on which the person with
the claim first knew,
(i) that the injury,
loss or damage had occurred,
(ii) that the
injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act
or omission was that of the person against whom the claim is made, and
(iv) that, having regard
to the nature of the injury, loss or damage, a proceeding would be an
appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with
the abilities and in the circumstances of the person with the claim first ought
to have known of the matters referred to in clause (a).
(2) A person with a claim shall be
presumed to have known of the matters referred to in clause (1)(a) on the day
the act or omission on which the claim is based took place,
unless the contrary is proved
. [Emphasis added.]
[44]
Despite the presumption that
Kolosov
creates
in relation to the running of the limitation period, s. 5(2) permits the
contrary to be proved in accordance with the matters referred to in s. 5(1)(a).
While that presumption was not rebutted in
Kolosov
, it
was rebutted here.
Accordingly, regardless
of the hesitation expressed by the motion judge as to the reach of
Kolosov
,
nothing in this case turns on those observations.
(iii)
The Proper Articulation of the Test for Discoverability Based on
Sufficient Facts
[45]
The appellant next argues that, despite referring
to the correct legal authorities respecting how to determine the date of
discoverability based upon sufficient facts, the motion judge erred in his
articulation and application of that test.
[46]
The appellant notes that the discoverability
principle is satisfied once the party has sufficient information to infer the
material facts underlying the claim, a test that does not turn in any way upon the
viability of the claim. The motion judge is said to have erred in failing to
appreciate that the respondent knew all material facts by, at the latest, the
Immigration Division hearing on July 9, 2013. By extending the discoverability
date to June 10, 2015 the date the Notes were disclosed the motion judge is
said to have erred by focusing on when the claim was more likely to succeed,
rather than when the respondent knew the claim existed.
[47]
Limitation periods are driven by when the
material facts on which [a cause of action] is based have been discovered or
ought to have been discovered by the plaintiff by the exercise of reasonable
diligence:
Central Trust Co. v. Rafuse
, [1986] 2 S.C.R. 147, at p.
224; see also
Grant Thornton LLP v. New Brunswick
, 2021 SCC
31, at paras. 29, 42. As noted by this court in
Zeppa v. Woodbridge Heating
& Air-Conditioning Ltd.
, 2019 ONCA 47, 144 O.R. (3d) 385, at para. 41,
leave to appeal refused, [2019] S.C.C.A. No. 91: discoverability means
knowledge of the facts that may give rise to the claim. The knowledge required
to start the limitation running is more than suspicion and less than perfect
knowledge.
[48]
In my view, the motion judge identified the
correct law relating to limitation periods. Notably, the motion judge cited to this
courts judgment in
Lawless v. Anderson
, 2011 ONCA 102, 276 O.A.C. 75,
at para. 22, which in turn quoted from this courts earlier judgment in
Aguonie v.
Galion Solid Waste Material Inc.
(1998), 38 O.R. (3d) 161
(C.A.), at p. 170:
The principle of discoverability provides that
a cause of action arises for the purposes of a limitation period when the
material facts on which it is based have been discovered, or ought to have been
discovered, by the plaintiff by the exercise of reasonable diligence. This
principle conforms with the generally accepted definition of the term cause of
action the fact or facts which give a person a right to judicial redress or
relief against another:
Aguonie v. Galion Solid Waste Material Inc.
[citation omitted.]
[49]
As emphasized by the motion judge, the real
question is whether the plaintiff knows enough facts with which to bring
forward the claim:
Lawless
, at para. 23. If the plaintiff does know
enough facts, then the claim is discovered and the limitation period begins
to run. Knowing enough facts means knowing the material facts that are
necessary to make the claim:
Lawless
, at para. 28.
[50]
I reject the suggestion that the motion judge did
not appreciate that the principle of discoverability does not turn on whether
the claim has a likelihood of success. As the motion judge put it, the
discovery of a claim is also not dependent upon the plaintiff knowing that his
claim is likely to succeed. The motion judge was right in this regard. As
noted by Hourigan J.A. in
Sosnowski v. MacEwen Petroleum Inc.
,
2019
ONCA 1005, 441 D.L.R. (4th) 393, at para. 19, a determination of when it is
appropriate to proceed with a claim does not include whether a civil
proceeding will succeed. I see nothing in the motion judges reasons that
would suggest he was unfaithful to that statement of law.
[51]
To the contrary, the motion judges reasons demonstrate
that he was alive to the applicable law concerning discoverability. The law
having been correctly stated, the question really becomes whether the motion
judge made palpable and overriding errors of fact. I will now explain why he
did not.
(iv)
No Palpable and Overriding Errors of Fact
[52]
The appellant acknowledged during oral argument that
the real core of this appeal turns on what is said to be a palpable and
overriding error of fact made by the motion judge.
[53]
The appellant claims that the motion judge erred
in concluding that the Notes disclosed in the context of the bonds litigation brought
anything new to the appellants attention. According to the appellant, the only
way that the motion judge could have come to this conclusion would be if he had
completely forgotten about or disregarded the Le affidavit that the appellant
filed at the Immigration Division hearing on July 9, 2013.
[54]
The argument goes like this. At the latest, the respondent
knew by July 9, 2013 (the Immigration Division hearing date) that Officer
McNamara claimed to have spoken to an English speaking resident Ms. Than Luong
at the doorway on June 25, 2013. Also by July 9, 2013, it is clear from the evidence
filed by the respondent at the Immigration Division hearing that he maintained
that it was not Ms. Luong but rather Ms. Le who spoke with the CBSA officers at
the front door of the residence, and that she did not speak English well. The
appellant places importance on the fact that the Le affidavit suggests that she
attempted to communicate with the CBSA officers in English and makes no mention
of an interpreter.
[55]
The appellant argues that the Le affidavit was
fundamental to the resolution of the motion because it demonstrates that there
was no interpreter used. And, even if there was an interpreter used, the
appellant says that, with the McNamara statutory declaration and the Le
affidavit in hand by July 9, 2013, it is clear that the respondent knew he had
a claim if he wished to proceed. Therefore, the motion judges palpable and
overriding error is said to be implicit in the failure to appreciate the importance
of the Le affidavit, thereby leaving the motion judge with a distorted view of
the importance of the new information provided in the Notes.
[56]
Based upon this line of argument, the appellant
contends that the motion judge could not have come to the following conclusion:
In the
particular context of this case, therefore,
I find as a
fact
that Vu did not have sufficient facts on which to allege wrongdoing
by the CBSA for which he could seek damages until June 10, 2015, when he
received the [Notes] disclosing that McNamara had used an interpreter when
conducting her investigation in June 2013. [Emphasis added.]
[57]
In my view, it was open to the motion judge to
arrive at this factual finding.
[58]
Importantly, he based the finding upon the
respondents affidavit evidence explaining that, prior to receiving the Notes
and learning that an interpreter had been used during the interaction at the
doorway of the bondspersons home, he thought that the CBSA had only made a
mistake and misunderstood what had been communicated by the woman who answered
the door. As the respondent put it: I thought maybe the Officer didnt realize
that Johns mom didnt speak English. It was only after receiving the Notes
that the respondent came to realize, as he suggests in his affidavit, that the
CBSA had actively misled the Immigration Division. I see no error in the motion
judge leaning on that evidence to arrive upon his conclusion as reproduced
above.
[59]
As well, the motion judge was not oblivious to
the Le affidavit. To the contrary, he specifically referenced it in his
reasons, albeit in his factual overview of the case:
July 9, 2013 Vu attends his second detention
review before the ID. he submits affidavits that the woman the CBSA spoke to at
[the bondspersons home] on June 25, 2013, Dau Thi Le, his bondspersons
mother, did not speak English well, that she did not live there but rather was
babysitting that day, and that she said she did not know if Vu lived there.
[60]
Clearly, the motion judge was alive to the Le
affidavit.
[61]
In my view, it was open to the motion judge to
come to the conclusion that he did. The Notes make clear reference to the fact
that Officer McNamara indicates that during her investigation, she was talking
with Ms. Than Luong and an interpreter was contacted by phone to translate the
specific questions asked by Officer McNamara. Yet this stood in direct
contrast with Officer McNamaras statutory declaration. While the truth
undoubtedly lies somewhere and, at some point, may see the light of day, it
cannot be said that the motion judge committed a palpable and overriding error
when he concluded that the respondent did not have sufficient facts on which to
allege wrongdoing until he received the Notes. Nor can it be said that there is
anything in the Le affidavit that detracts from that conclusion.
(v)
The Motion Judge Did Not Err on Due Diligence
[62]
The appellant also argues that, even if a later
discoverability date applies, the respondent did not act with due diligence in discovering
his claim within two years of his arrest. The motion judge is said to have
erred in concluding that this argument was, at best, speculative and
unpersuasive. To the contrary, the appellant contends that the respondent
could have discovered additional details if he had proceeded with an
application for leave and judicial review of his detention in Federal Court.
[63]
While a plaintiff is required to act with due
diligence when determining if they have a claim to bring forward, the content
of the duty of due diligence depends on the circumstances of each case:
Longo
v. MacLaren Art Centre Inc.
, 2014 ONCA
526, 323 O.A.C. 246, at para. 42
.
[64]
I see no error in the motion judges conclusion
that the appellants argument on due diligence was speculative and
unpersuasive.
[65]
In light of all of the harsh circumstances involved
in the respondents detention
all 467 days of them, including
being detained outside of Toronto, far from family and his lawyer; enduring strip
searches and frequent lockdowns; and having limited resources to investigate
the lawfulness of his arrest and subsequent detention while incarcerated
it was open to the motion judge to find that the respondent did not fail to
exercise due diligence in discovering his claim.
[66]
Moreover, the respondent explained that he did
not pursue a review of the Immigration Divisions determination because the
CBSA led him to believe that his detention would be brief and removal imminent,
making what he believed to be a lengthy judicial review application pointless. This
context is relevant to understanding what degree of due diligence was required
of the respondent.
[67]
In any event, it was not clear how a review
would have led to the disclosure of the content of the Notes.
[68]
The motion judges finding on this point is owed
deference and I would not interfere with it.
(vi)
The Motion Judges Alternative Finding
[69]
Finally, the appellant argues that the motion
judge erred in arriving at the alternative conclusion that it would not have
been legally appropriate to bring the claim earlier than June of 2015:
Federation
Insurance Co. of Canada v. Markel Insurance Co. of Canada
, 2012 ONCA 218,
109 O.R. (3d) 652, at para. 34.
[70]
In light of the resolution of the former issues,
there is no need to address this one, other than to say that I see no error in
the motion judges alternative reasoning.
D.
Conclusion and Costs
[71]
The appeal is dismissed.
[72]
The appellant raised the issue of costs, arguing
that the $54,000 ordered by the motion judge was too high. I see no error in
how the motion judge arrived at this amount. His decision is owed deference.
Therefore, the appeal as to costs is dismissed.
[73]
Costs for the appeal will be fixed in the amount
of $15,000, all inclusive.
Released: August
23, 2021 JMF
Fairburn A.C.J.O.
I agree B.W. Miller J.A.
I agree B. Zarnett J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Asghar v. Toronto (City), 2021
ONCA 571
DATE: 20210820
DOCKET: M52232 (C68901)
Strathy C.J.O., Feldman and Sossin JJ.A.
BETWEEN
Sajjad Asghar
Plaintiff
(Appellant/Moving
Party)
and
The City of Toronto
Defendant
(Respondent/Responding Party)
and
The Mayor John Tory
Defendant
(Respondent/Responding Party)
and
The Toronto Police Services Board, Members Chair
Jim Hart, Marie Moliner (Vice-Chair), Mayor John Tory, Michael Ford Councillor,
Councillor Frances Nunziata, Ainsworth M. Morgan, Lisa Kostakis
Defendants
(Respondents/Responding
Parties)
and
The Toronto Police Chief (Interim) James Ramer
Defendant
(Respondent/Responding
Party)
and
The Toronto Police Deputy Chief Peter Yuen
Defendant
(Respondent/Responding Party)
Sajjad Asghar, acting in-person
Natalie Salafia, for the responding
parties
Heard: in writing
REASONS
FOR DECISION
[1]
The self-represented moving party, Mr. Asghar,
brings this motion to review the order of the chambers judge, dated January 15,
2021, dismissing Mr. Asghars interim motion for an order: (1) requiring the
responding parties to produce certain 911 call recordings, police video and
audio recordings, transcripts etc.; (2) permitting electronic filing and
service of all appeal materials; and (3) granting an extension of time to
perfect his appeal.
[2]
The motion before the chambers judge was brought
in the context of Mr. Asghars appeals from three orders of Ferguson J., all
dated November 19, 2020, dismissing three separate actions brought by Mr.
Asghar against the City of Toronto, the Mayor of Toronto, the Toronto Police
Services Board, and various other Toronto municipal and police entities and
officials. Ferguson J. found each of those actions to be frivolous, vexatious,
and an abuse of process within the meaning of r. 2.1 of the
Rules of Civil
Procedure
, R.R.O. 1990, Reg. 143.
[3]
Mr. Asghar filed a motion before the chambers
judge seeking interim relief in two of his appeals, which bear court file
numbers C68902 and C68901. The primary relief sought by Mr. Asghar on the
motion in appeal C68901 was the production of 911 call recordings and other video
and audio recordings and transcripts. Mr. Asghar submitted before the chambers
judge that the material requested would be important for his appeal.
[4]
On January 15, 2021, the chambers judge
concluded there was no foundation to make the order requested and dismissed
Mr. Asghars motion.
[5]
On this panel review motion, Mr. Asghar seeks to
set aside the order of the chambers judge and obtain the same relief sought on
the underlying motion. We decline to grant that relief. A panel review of the
motion in the C68902 appeal was dismissed in written reasons dated May 20,
2021.
[6]
As stated in those reasons, a panel review of a
chambers judges decision is not a
de novo
determination. Where the
chambers judge has made a discretionary decision, the decision is entitled to
deference and the reviewing panel will not interfere absent legal error or
misapprehension of material evidence:
Machado v. Ontario Hockey Association
,
2019 ONCA 210, at para. 9. In addition, if the chambers judge committed an
error in principle, the panel may intervene:
Yaiguaje v. Chevron
Corporation
, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21.
[7]
Applying the foregoing, as in appeal C68902, we
see no basis on which to interfere with the decision of the chambers judge.
[8]
Accordingly, Mr. Asghars panel review motion for
production is dismissed.
[9]
Mr. Asghar has also requested an extension of
time of 30 days to perfect appeals C68901 and C68902, whether or not the other
relief is granted. That extension of time to perfect is granted in both cases to
30 days from the date of these reasons. The respondents shall have 30 days to
respond after service of the perfection materials.
[10]
Once the records are complete, these two matters
will be listed to be argued with appeal C68903 which will be adjourned to a
date to be fixed by the Registrar for the argument of all three appeals
together.
G.R. Strathy C.J.O.
K. Feldman J.A.
Sossin J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Herold
Estate v. Canada (Attorney General), 2021 ONCA 579
DATE: 20210824
DOCKET: C68393 & C68467
Fairburn A.C.J.O., Miller and
Zarnett JJ.A.
BETWEEN
DOCKET:
C68393
The Estate of William Albin Herold,
deceased
Applicant (Respondent)
and
Attorney
General of Canada
,
Curve Lake First Nation,
Hiawartha First Nation and
Mississaugas of Scugog Island First Nation
Respondents (
Respondent
/
Appellants
)
AND BETWEEN
DOCKET:
C68467
The Estate of William Albin
Herold, deceased
Applicant (Respondent)
and
Attorney
General of Canada
,
Curve Lake First Nation,
Hiawatha First Nation and
Mississaugas of Scugog Island First Nation
Respondent (
Appellant
/
Respondents
)
Robert Janes, Candice S. Metallic, and
Aubrey Charette, for the appellants (C68393)/respondents (C68467) Curve Lake
First Nation, Hiawatha First Nation and Mississaugas of Scugog Island First
Nation
Daniel E. Luxat, for the appellant (C68467)/respondent
(C68393) Attorney General of Canada
D. Jared Brown, for the respondent
(C68393/C68467) Estate of William Albin Herold
Heard: March 2, 2021 by videoconference
On appeal from the order of Justice C.M.
Smith of the Superior Court of Justice, dated February 28, 2020 with reasons
reported at 2020 ONSC 1202.
Zarnett J.A.:
I.
INTRODUCTION
[1]
This litigation concerns the ownership of three
islands (the Islands) located in Lake Katchewanooka
[1]
, which is part of the
Trent-Severn Waterway. The Islands are in close proximity to each other. The largest
is referred to as Island 27; the two smaller islands were at one time part of
Island 27 but are now separated from it as a consequence of flooding and
erosion.
[2]
[2]
In the decision under appeal, the application
judge held that the respondent, the Estate of William Albin Herold (the
Estate), owns the Islands by virtue of its ownership of Lot 35, Concession
11, in the Township of Smith, County of Peterborough (Lot 35).
[3]
The application judge found that when Lot 35 was
first surveyed in 1818, the land that became the Islands was a headland or
peninsula connected to Lot 35s mainland. In 1868, the Province of Ontario, by Letters
Patent, granted Lot 35 to Alexander Rose, the Estates predecessor in title. Although
he was not satisfied that in 1868 the Islands were still physically part of the
mainland of Lot 35, and the Letters Patent made no reference to any islands, the
application judge declined to determine the intention of the parties to the
Letters Patent. Instead, he concluded that since Island 27 had, by 1855, separated
from the mainland as a result of changes in water levels brought about by dams
erected in the 1830s, it was included as a matter of law in the Letters
Patents conveyance of Lot 35. He further held that ownership of the Islands
was not affected by treaties between the appellant First Nations
[3]
(the First Nations) and the
Crown made in 1818 and 1856. He interpreted the treaties, by which the First
Nations had surrendered their title to a vast tract of land in what is now
Central Ontario, to include a surrender of the property in issue in this
litigation, giving the Crown the right to sell. Accordingly, as the Islands had
been sold as part of Lot 35, when the Estate became the owner of Lot 35, it also
became the owner of the Islands.
[4]
The First Nations and the Attorney General of Canada
(AG Canada) both appeal. For the reasons that follow, I would allow the
appeals.
[5]
In my view, the application judges determination
that the Letters Patent conveyed the Islands as part of the conveyance of Lot
35 is not subject to deference, since he made extricable errors of law. The
application judge failed to follow the fundamental principle of interpretationto
determine the meaning of the Letters Patent in accordance with the intentions
of the parties, objectively ascertained from the language they used in light of
the relevant factual matrix. He also erred in treating a legal principle about
the effect of sudden changes in water levels on boundaries between different
owners as applicable and determinative. Finally, he failed to properly consider
the Crowns obligations to the First Nations in determining what the Crown intended
to convey by the Letters Patent.
[6]
Properly interpreted, the Letters Patent did not
include any conveyance of the Islands. As Mr. Rose did not obtain ownership of
the Islands when he received a conveyance of Lot 35 under the Letters Patent,
the Estate did not obtain ownership of them when it obtained ownership of Lot
35.
II.
Background
A.
Treaty 20
[7]
In 1818, the Crown and the First Nations entered
into the Treaty of Newcastle (Treaty 20). It provided for the surrender to
the Crown of a vast tract of land in what is now Central Ontario. Although the
description in Treaty 20 was general, the application judge found that it included
the property in issue in this litigation.
[8]
Although there was no express exclusion in
Treaty 20 of any islands, the evidence before the application judge, which he
accepted, was that the First Nations had requested that any islands in the
waterways within the surrendered lands be excluded, and the Crowns
representative had assured them that the request would be communicated to the
King who would no doubt accede to it.
B.
The Wilmot Survey
[9]
At about the same time as Treaty 20 came into
effect, the southern part of the Township of Smith was surveyed by Samuel
Wilmot. The 1818 survey he prepared (the Wilmot Survey) showed bodies of
water, concessions, and lots; of particular relevance is its depiction of Lot
35.
[10]
The Wilmot Survey depicts Lot 35 as a mainland lot roughly
triangular in shape. Its northern boundary is the concession line separating
Concessions 11 and 12; its western boundary is the division between Lots 34 and
35; and its southeastern boundary is the waters edge of Lake Katchewanooka. The
Wilmot Survey does not show any distances between the fixed boundaries on the
north and west, and the southeastern waters edge boundary.
[11]
The application judge noted that there was some concern about the precision
of the Wilmot Surveys depiction of the southeastern area of Lot 35, as the surveyor
had noted that the waters are not traversed only sketched. However, according
to evidence that the application judge accepted, at the time of the Wilmot
Survey, what came to be the Islands was a headland or peninsula on part of the
mainland of Lot 35.
C.
Dams in the Waterway
[12]
Dams were constructed in
the Trent Severn waterway in the 1830s, downstream and upstream from Lot 35.
The application judge did not make a finding of the distance
between the dams and Lot 35. Some of the evidence suggests that one of the dams
was about 7.5 kilometres away. The application judge found that these dams
caused a rise in water levels, resulting in a change to the configuration of Lot
35. His precise findings concerning the timing and nature of the rise in water
levels are discussed in more detail in the Analysis section below.
D.
The Haslett Survey
[13]
In 1854, a survey of islands in the Rivers Trent and Otonabee and
their lakes was authorized by the Privy Council and commissioned by the Commissioner
of Crown Lands. The application judge found that the resulting survey (the
Haslett survey), completed in 1855, identified an island in Lake
Katchewanooka in the location of what had been the headland or peninsula depicted
on the Wilmot Survey of Lot 35. The Haslett survey named it Island 27.
[14]
The Estate contended before the application judge that the Haslett
survey was unreliable to the extent it identified Island 27 as separated from
the mainland of Lot 35 in 1855. The Estate maintained that the Islands
continued to be physically connected to the mainland of Lot 35 at the time of
the Letters Patent in 1868, and only became separated due to flooding in the
1870s.
Ultimately, the application judge found against
the Estate, which bore the onus of proof, on these factual points. He noted
that, based on the evidence of the expert witnesses, it is reasonable to
conclude that Island 27 existed as surveyed [by Haslett] in 1856. The
application judge concluded that I cannot be satisfied on a balance of
probabilities that Island 27 was still attached to the main land in 1868 a
reference to the date of the Letters Patent.
E.
Treaty 78
[15]
In 1856, the Crown and the First Nations entered into the Islands of
the Trent Treaty (Treaty 78). The application judge found that Treaty 78
addressed any uncertainty there may have been regarding the status of the
islands in the waters in question flowing from the wording of Treaty 20 in 1818.
Under Treaty 78, the First Nations conditionally surrendered to the Crown, in
trust, to [be] sold or otherwise disposed of to the best advantage for
ourselves and our descendants forever
all islands and mainland
in the
Newcastle and Colborne Districts, including the islands in Rice Lake which have
not heretofore been ceded to the Crown with the principal arising from such
sales to be safely funded and the interest accruing therefrom to be paid annually
to us and our said descendants for all time to come.
[16]
The application judge found that the description of land covered by
Treaty 78 would include the Township of Smith where the subject property is
located.
F.
The Letters Patent
[17]
In 1868, by Letters Patent, the Province of Ontario granted Lot 35 to
Mr. Rose, from whom the Estate ultimately derived its title. The Letters Patent
describe what was conveyed as being composed of Lot Number Thirty five in the
Eleventh Concession of the
Township of Smith. An approximate acreage is
provided but it is unclear if it is 21 or 71 acres. There is no express mention
of any islands. The Letters Patent provided for the consideration to be paid by
Mr. Rose $17.00 and did not allocate it between the mainland and any
islands.
G.
The 1893 Resolution
[18]
In 1893, the federal Crown issued a Resolution (the 1893
Resolution) approving a request by the First Nations that certain islands,
including Island 27, not be sold under Treaty 78, but instead be reserved for
their use.
H.
Conduct After the Letters Patent
[19]
The parties led evidence of conduct and views expressed after the
Letters Patent relating to whether the Islands were part of Lot 35, and whether
they were sold as part of the 1868 Crown grant.
[20]
The after-the-fact evidence included: that between 1894 and 1896,
the federal, Ontario, and Quebec governments participated in arbitration
proceedings regarding amounts owing to the First Nations from the sale of
islands, which did not include anything about Island 27; compensation having
been paid to Jane Rose for flooding damage to Lot 35 that occurred because of
the reconstruction of a dam in 1879; the registration of the 1893 Resolution and
related resolutions on title in 1973; the Islands having been assigned their
own Property Identification Numbers as separate parcels with no owners
specified; correspondence between various government agencies articulating
different positions; and
the Estate having used the
Islands, made improvements, paid property taxes, and posted Private Property
and No Trespassing signs on them.
[21]
The application judge summarized the effect of the after-the-fact evidence
as follows: The title to [Lot 35] has been plagued since 1868 by uncertainty
about whether three islands in the lake, the largest of which is referred to as
Island 27, are properly a part of [Lot 35].
III.
The Application Judges Decision
[22]
The Estate applied for various orders to confirm its ownership of
the Islands.
[23]
The application judge identified three issues for determination:
a)
Did the 1868 Letters Patent convey the Islands
to the Estates predecessor in title, Mr. Rose?
b)
What is the effect of Treaty 20 and Treaty 78 on
the ownership of Island 27?
c)
What is the effect of the Resolution of 1893 on
the ownership of Island 27?
[24]
On the first issue, the application judge declined to consider the
intention of the parties to the Letters Patent on the basis that to do so would
be sheer speculation. He also observed that the
Beds of Navigable Waters
Act
, R.S.O. 1990, C. B-4 (the
Act
), which deemed a Crown grant
not to include the bed of a navigable body of water unless a contrary intention
is expressly stated, could not have been on the minds of either party at the
time of the Letters Patent as it was not yet proclaimed into force.
[25]
The application judge reasoned that the southeastern boundary of Lot
35 was riparian and ambulatory at the time of the Wilmot Survey, but the water
boundary lost its ambulatory status sometime during the 1830s, when the dams
were first constructed. He relied on a legal principle that when water levels
are quickly raised through a process that is not gradual, then the boundary of
the property in question is fixed in location at the time of encroachment. Although
he was not satisfied that the Islands were physically connected to Lot 35 in
1868, the Letters Patent conveyed them because they were within the boundary of
Lot 35 that had been so fixed.
[26]
On the second issue, the application judge found that Treaty 20
provided for the surrender to the Crown of a vast tract of land which included
Lot 35 and, based on his findings, the land that later became the Islands. He
found that Treaty 20 contained no exceptions relating to the property in issue
and imposed no restrictions of any kind regarding subsequent dealings with the
lands by the Crown. He held that Treaty 78 did not detract from the Crowns
full ownership rights, which included a right to sell. He noted that while Treaty
78 imposed a condition that the Crown use the proceeds of any sale for the
benefit of the First Nations, this did not estop the Crown from selling any of
the surrendered lands. The honour of the Crown was not at risk as long as it
used the proceeds in that way.
[27]
On the third issue, the application judge found that Island 27 was
included in the 1893 Resolution by mistake, and that the 1893 Resolution should
not affect title to the islands.
IV.
The Parties Positions
[28]
The First Nations argue that the application judge erred in giving
Treaty 20 and Treaty 78 the effect of extinguishing the title of the First
Nations to the Islands. Treaty 20 was subject to an orally agreed to
reservation concerning islands. Treaty 78 was a conditional surrender in trust,
which imposed obligations if the Crown were to effect a sale of any islands. There
was no evidence of compliance with those obligations in the transaction
contemplated by the Letters Patent. The application judge should have, but
failed to, interpret the Letters Patent with reference to the Crowns intention
as grantor and in a manner that reconciled their meaning with the obligations of
the Crown under Treaty 78. The only way to do so would be to conclude that the Letters
Patent did not include the Islands.
[29]
The First Nations further submit that the application judge erred in
applying legal principles respecting water boundaries and misapprehended the
evidence concerning the nature and timing of any change in water levels.
Finally, they submit that the application judge erred in finding that after the
Letters Patent, the federal Crown had no authority to deal with the Islands and
thus had included them in the 1893 Resolution by mistake.
[30]
The appellant AG Canada argues that the application judge erred by: failing
to properly interpret the Letters Patent in accordance with the intentions of
the parties, objectively ascertained; and, applying a legal principle respecting
water boundaries between different owners to conclude that Island 27 remained
part of Lot 35 at the time of the Letters Patent, when the principle was
factually and legally inapplicable.
[31]
The Estate argues that the application judge properly found as a
fact that, prior to the Letters Patent, flooding had occurred causing the
separation of the Islands from the mainland of Lot 35. They submit that he correctly
concluded, as a matter of law, that the flooding fixed the boundary of Lot 35 such
that what became the Islands were included as part of the Lot 35 Letters Patent
conveyance. The Estate also argues that the application judge properly
interpreted the treaties as giving the Crown the right to sell the Islands and properly
found that the honour of the Crown was not engaged in any way that detracted
from the Estates ownership.
V.
Analysis
[32]
If the application judge erred in finding that the Letters Patent included
a conveyance of the Islands by the Province of Ontario to Mr. Rose, that is
determinative of the appeals. Accordingly, my analysis commences with
identifying the interpretive issue under the Letters Patent, the principles of
interpretation, and the standard of review. I then discuss the errors which, in
my view, the application judge committed in his approach. Finally, I set out the
proper resolution of the interpretive question. The effect of the treaties and
the legal principles concerning water boundaries all play a part in this
analysis.
A.
The Interpretive Issue and The Standard of Review
[33]
The Letters Patent did not include a metes and bounds description of
the property conveyed or any express mention of islands. The property was
described by what the parties agree was a reference to Lot 35 on the 1818 Wilmot
Survey.
[4]
The Wilmot Survey depicted Lot 35 as a mainland lot with a southeastern
boundary formed by the waters edge of Lake Katchewanooka. In this court, all parties
accept the application judges finding that Island 27 was beyond the waters edge
and was not connected to the mainland of Lot 35 at the time of the Letters
Patent in 1868.
[34]
The interpretive question thus raised was whether the Letters Patent
conveyed the land up to the waters edge in 1868, and therefore did not include
the Islands, or whether the Letters Patent also conveyed the Islands, as land that
had previously been connected to the mainland of Lot 35, including at the time
of the Wilmot Survey.
[35]
The parties advance different formulations of the issues and thus
the applicable standard of review. The Estate characterizes the application, to
the facts, of legal principles about the effect of flooding on boundaries and
the resulting determination of what was conveyed as a question of mixed fact
and law, subject to deference on appeal. The First Nations characterize the
failure of the application judge to determine the intentions of the parties to
the Letters Patent as an error of mixed fact and law, with a commensurate standard
of appellate review. The AG Canada submits that the interpretation of the Letters
Patent should be reviewed on a standard of correctness because it deals with
title and the factual matrix is not required to resolve any ambiguity in the
Letters Patent.
[36]
As I discuss in more detail below, the interpretation of the Letters
Patent involves discerning what the parties to them objectively intended. That is
a fact specific exercise; it is a function of the language used, read in light
of the relevant factual matrix or surrounding circumstances, and the legal
principles that arise from those circumstances. It follows that the
interpretation of the Letters Patent is a question of mixed fact and law. Absent
an extricable error of law, or a palpable and overriding error of fact, a
determination of a question of mixed fact and law is subject to deference on
appeal:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 234, at
paras. 26, 36-37;
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC
53, [2014] 2 S.C.R. 633, at paras. 50, 53;
Corner Brook (City) v. Bailey
,
2021 SCC 29, at para. 44.
[37]
In my view, the application judge made three extricable legal errors
in his approach to the question of whether the Islands were included in the
conveyance by the Letters Patent. First, he failed to follow the fundamental
principle of interpretation, which is to determine the meaning of the Letters
Patent based on the parties intentions, objectively derived from the words
they used in light of the factual matrix. Second, he erroneously relied on a
legal principle about a sudden change in water levels fixing boundaries between
different owners; in the circumstances, that principle was neither applicable
nor determinative. Third, he failed to consider how the apparent disconnect
between the obligations of the Crown concerning a sale of an island covered by
Treaty 78, and the terms of the Letters Patent, bore on the question of whether
the Province of Ontario intended to include the Islands in the Letters Patent.
[38]
As a result of these extricable legal errors, the application
judges conclusion about the meaning of the Letters Patent is not entitled to
deference:
Sattva
,
at para. 53.
[39]
Below, I will expand on the application judges three errors. I will
then turn to what I consider to be the proper interpretation of the Letters
Patent.
B.
The Application Judges Errors
(1)
Failure to Consider the Meaning of the Letters
Patent from the Standpoint of the Intention of the Parties Objectively Derived
[40]
Although the meaning of the Letters Patent was a core issue
identified by the application judge, he declined to determine the intentions of
the parties to it. This was an error, as objectively ascertaining the intention
of the parties is the very goal of interpreting a written instrument.
[41]
As the Supreme Court of Canada said in
Sattva
, the overriding
concern in the interpretation of contracts is to:
determine the intent of the parties
and the scope of their understanding. To do so, a decision-maker must
read the contract as a whole
consistent with the surrounding circumstances known
[or that reasonably ought to have been known] to the parties at the time of
formation of the contract. Consideration of the surrounding circumstances
recognizes that
ascertaining contractual intention
can be difficult when
looking at words on their own, because words alone do not have an immutable or
absolute meaning [Emphasis added.] [Citations omitted.]:
Sattva
, at
para. 47.
[42]
In other words, when interpreting a contract, the question is not
the abstract meaning of its words, but what the parties to the contract are
objectively taken to have intended by the words they chose in light of the
circumstances the factual matrix in which they used them. A court objectively
derives the parties intentions by examining the words to determine what the
parties intended, and examining the surrounding circumstances to deepen [its]
understanding of
the mutual and objective intentions of the parties
as
expressed in the words of the contract (emphasis added):
Sattva
, at
para. 48, 57-58, 60;
McLean v. McLean
, 2013 ONCA 788, 118 O.R. (3d)
216, at para. 54, leave to appeal refused, [2014] S.C.C.A. No. 76.
[43]
This approach is consistent with the goals of finality and certainty
in contractual dealings the interpretation that is reached is grounded in the
text of the agreement read as a whole, and the factual matrix is used as an
interpretive aid for determining the meaning of the written words chosen by the
parties, not to overwhelm or deviate from them, or change or overrule their
meaning:
Sattva
, at paras. 57, 59-60.
[44]
These general principles apply equally to the interpretation of an
instrument that creates or conveys an interest in land. I draw that conclusion
for three reasons.
[45]
First, the Supreme Court of Canada has noted that the construction
of an easement clearly an interest in land is a question of mixed fact and
law as it must be interpreted in light of the entire factual matrix:
Owners,
Strata Plan LMS 3905 v. Crystal Square Parking Corp.
, 2020 SCC 29, 450
D.L.R. (4th) 105, at para. 101. In support of that proposition, the Supreme
Court cited both
Robb v. Walker
, 2015 BCCA 117, 383 D.L.R. (4th) 554, at
paras. 30-31 (which held the principles in
Sattva
to be applicable to
the interpretation of an easement) and
Sattva
itself. There is no
apparent reason to distinguish the principles applicable to the interpretation
of an instrument granting or conveying an easement from those applicable to a
different type of interest in land. Determining the objective intentions of the
parties is thus equally the goal of interpreting a conveyance, as that is the
overriding concern of interpretation as identified in
Sattva
.
[46]
Second, the need for certainty and finality in conveyancing is
respected by determining the objective intentions of the parties to the instrument
through examining its words in light of the factual matrix that illuminates their
meaning, in accordance with the principles in
Sattva
.
[47]
Third, this approach is in line with this courts holding in the
leading case concerning the interpretation of conveyances by deed or Crown
grant:
Gibbs v. Grand Bend (Village)
(1995), 129 D.L.R. (4th) 449 (Ont.
C.A.)
. Although expressed in pre-
Sattva
language, the basic principles articulated in
Gibbs
do
not vary, in any respect that is material to this case, from those articulated
in
Sattva
. Those principles equally focus on determining the intention
of the parties to the deed or grant.
[48]
Under
Gibbs
, the primary determinant of the meaning of a
conveyance, whether by deed between private parties or by Crown grant, is its
language:
Gibbs
, at p. 461. This is consistent with the role played by the text
of a written agreement under
Sattva
: at para 57. Extrinsic
evidence cannot be used to contradict the unambiguous terms of a
conveyance made by deed or Crown grant (
Gibbs
, at p. 461), just as it
cannot be used to contradict the meaning of the language of any contract (
Sattva
,
at paras. 59-60). But just as evidence of factual matrix or surrounding circumstances
can be used to ascertain contractual intention when it is difficult to do so by
looking at the words alone (
Sattva
, at para. 47), in the case of a
deed or Crown grant, extrinsic evidence can be
used
to explain the sense
in which words, open to more meanings than one, have been used by the
contracting parties"
,
and thus to give
effect to the grantors intention:
Gibbs
, at p. 461
(citations omitted).
[5]
The purpose of
reviewing such evidence is to permit the court to carry out the intentions of
the parties:
Gibbs
, at p. 463.
[49]
Gibbs
refers to the requirement that a
latent ambiguity must exist in a deed or Crown grant before extrinsic evidence will
be considered: at p. 461.
Sattva
permits the consideration of factual
matrix or surrounding circumstances in any contractual interpretation,
recognizing that it may be difficult to determine intention by the words alone.
In this case, this is a distinction without a difference. The test for a latent
ambiguity, and thus for the admission of extrinsic evidence under
Gibbs
,
is met in cases where the description of the land in the deed or grant, when
applied to the land itself, raises an issue about the location of a boundary. Clearly,
that test is met in this case.
[50]
An example referred to with approval in
Gibbs
was a case in
which a deed described the old shore road as the westerly boundary of a lot
expropriated by the provincial government. However, the old shore road no longer
existed at the time of expropriation, causing difficulty in determining the
dimensions of the land. Extrinsic evidence was admitted to assist in determining
the previous location of the road: at p. 462.
[51]
Similarly, the interpretive issue in this case arises since the
description in the Letters Patent, referring to property depicted on a survey
in 1818 as a mainland lot with a waters edge boundary, when applied to the land
in 1868 after Island 27 was no longer part of the mainland, raises an issue
about the boundary of what was conveyed. Extrinsic evidence of the factual
matrix or surrounding circumstances was thus admissible under both
Gibbs
and
Sattva
.
[52]
The parties introduced, and the application judge admitted, extrinsic
evidence of the circumstances existing up to the time of the Letters Patent. Yet
the application judge did not use this evidence to determine the intentions of
Ontario and Mr. Rose, as revealed by the words of the Letters Patent, in light
of the surrounding circumstances. He held that [a]ny consideration of the intention
of the parties to the 1868 Letters Patent is
sheer speculation.
[53]
If all the application judge meant by this was that he was
jettisoning from the analysis any consideration of the
subjective
thoughts
of the parties, as opposed to what they
objectively
intended, he would
have been correct. Evidence of subjective intentions plays no role in
contractual interpretation:
Sattva
, at para. 59. But the application
judge did not make that distinction.
[54]
He made numerous findings based on extrinsic evidence, including
about the Wilmot Survey, the historical and then current location of the
Islands, the Haslett survey, and Treaties 20 and 78. He did not hold that any
of those matters fell outside of the category of background facts known or that
reasonably ought to have been known to the parties at the time of the Letters
Patent (the description of factual matrix used in
Sattva
) or as
evidence of writings prior to and leading up to the issue of the Letters Patent
that explains the sense in which the parties used language open to more than
one meaning (the description of extrinsic evidence used in
Gibbs
).
[6]
Despite his acceptance of this
evidence, he did not use it to assist in determining the objective intentions
of the parties by examining the words used in the Letters Patent in light of those
circumstances.
[55]
By failing to determine the objective intentions derived from the
language of the Letters Patent in light of the surrounding circumstances, the application
judge failed to consider and apply the correct principle of interpretation.
This was an extricable legal error:
Sattva
, at para. 53.
(2)
Error in the Consideration of Boundaries
Principles
[56]
The application judge identified three legal principles relating to water
boundaries of property. He rejected the application of one of them, held that a
second applied only up to a point in time, and treated one as applicable and
determinative.
[57]
The appellants argue that the application judge erred in rejecting
the applicability of the
Act
on the basis that it could not have been
within the parties contemplation at the time of the 1868 Letters Patent, as it
was not enacted until 1911. I agree that his basis for rejection was erroneous,
but I do not agree that the error was material.
[58]
Section 1 of the
Act
provides that where land that borders
a navigable body of water has been or is granted by the Crown, it shall be
deemed, in the absence of an express grant of it, that the bed of that body of
water was not intended to and did not pass to the grantee. Given the language
of s. 1 (has been
granted), and the nature of the exceptions in s. 2 (for
example, rights determined by a court before March 24, 1911), it is clear that s.
1 has retrospective effect, governing grants made before the first version of
the
Act
came into force in 1911:
Middlesex Centre (Municipality)
v. MacMillan
, 2016 ONCA 475, 132 O.R. (3d) 497, at para. 16.
[59]
The
Act
specifically and retrospectively regulates the meaning
of a grant from the Crown. If the applicability of the
Act
were contingent
on it being in force at the time of the grant, its provisions that give it
retrospective operation would be meaningless.
[60]
Although the basis on which he rejected the applicability of the
Act
was erroneous, in my view the error was not material; as the Estate argues, interpreting
the Letters Patent to exclude the water bed between Lot 35 and the Islands does
not necessarily exclude the Islands themselves, as Island 27 was above the
water.
[61]
A second principle the application judge referred to is that a
riparian or waters edge boundary may be ambulatory, in the sense that it may change
to reflect gradual
[7]
movement of the waters edge (the Ambulatory Principle). A parcel of land with
this type of boundary is subject to accretion the addition of land when the
waters edge gradually moves out and erosion the decrease of land when the
waters edge gradually moves in. Put differently, when this principle applies,
the waters edge, wherever it may gradually move to from time to time, is the
boundary: Natural Resources Canada, Surveyor General Branch,
Water
Boundaries on Canada Lands: That Fuzzy Shadowland,
(Edmonton: Her Majesty
the Queen in Right of Canada, 2016) (the Surveyor General Publication), at p.
31.
[62]
The application judge concluded that in 1818, the southeastern
boundary of Lot 35 as depicted on the Wilmot Survey the waters edge of Lake
Katchewanooka was ambulatory.
[63]
The application judge also referred to a principle (the Flooding Principle)
that when water levels are quickly raised through a process that is not
gradual, then the boundary of the property in question is fixed in location at
the time of encroachment. In other words, where a sudden
[8]
change in water levels occurs,
the boundary of the owners property will be fixed at the point where the land
met the waters edge at the time of the sudden rise of water levels: Surveyor
General Publication, at p. 39;
Neilson v. British Columbia (Attorney
General)
, [1956] S.C.R. 819
,
at p. 840. The application judge
applied this principle to conclude that the boundary of Lot 35 had ceased to be
ambulatory in the 1830s.
[64]
The appellants argue that there are two problems with the
application judges use of the Flooding Principle.
[65]
First, they say that the evidence was insufficient to support a
finding that a non-gradual change in water levels separated the Islands. Indeed,
the First Nations say that the application judge made findings that were
contradictory, in that he referred to the rise in water levels as a lengthy
and gradual process which commenced in the 1830s, but then applied the Flooding
Principle as though the rise was sudden enough to engage it.
[66]
Second, the AG Canada argues that the Flooding Principle applies to
prevent a person from losing land to another due to a sudden rise in water
levels, not to determine where one parcel of unpatented land belonging to the
Crown ends and another begins. Here, on the application judges findings, at
the time that the water levels changed, the Crown owned Lot 35, the adjacent water
bed, and the Islands that were separated from the mainland of Lot 35.
[67]
I address each point below.
a)
The Application Judges Factual Findings Do Not
Support the Application of the Flooding Principle
[68]
The application judge found that the Islands separated from Lot 35
in a lengthy and gradual manner:
I am also satisfied that the configuration of
the subject property was radically altered by the installation of man-made dams
on the river.
This was a lengthy and gradual process
which commenced in
the 1830s with the Herriot dam, continued through the construction of the Trent
Severn Waterway in the middle years of the 19th century, culminating in the
more significant damage caused by the flooding in the 1870s which led to the
damages paid by the Crown to Jane Rose, as evidenced by the release registered
on title of the subject property in 1885 as Instrument Smith 3160.
The Baird
drawings and the Haslett survey are the only evidence available regarding flood
conditions at the subject property in the mid-19th century. Those documents,
particularly the Haslett survey, support the notion that water levels on the
river at the point in question had risen by as much as 2.5 feet by the
mid-1850s
. [Emphasis added.]
[69]
After making these findings, he set out the Flooding Principle by
reference to p. 44 of the Surveyor General Publication, which states that it
applies where water levels rise quickly through a process that is not gradual:
Watercourses regulated for navigation or
reservoir (millpond) purposes have higher levels, which remain somewhat
constant throughout the year (e.g. many lakes in Ontario). Such levels are
upstream of dams and remove impediments to navigation such as rocks and reeds.
This means that discharge varies greatly throughout the year.
If
water
levels are quickly raised (through a process that is not gradual)
, then erosion has not occurred and the boundary is fixed in
location at the time of encroachment. The upland parcel is partially (or
completely) submerged. [Emphasis added.]
[70]
The application judges factual finding of a gradual and lengthy
process by which water levels changed over approximately 25 years was not a
finding of a quick rise in water levels through a process that was not gradual,
as necessary for the application of the Flooding Principle he described.
Nonetheless, without explanation of this discrepancy, the application judge concluded
:
What does persuade me that Island 27 and the
two smaller islands were [what] was conveyed to Alexander Rose in 1868 is the [principle]
set out in the [Surveyor General Publication] to the effect that
when, as
here, water levels are quickly raised through a process that is not gradual
,
then the boundary of the property in question is fixed in location at the time
of encroachment. That principle is set out in an article produced and published
by no less an authority than the Surveyor General Branch of Natural Resources
Canada. That same principle was also applied by this Court in the
Gall v. Rogers
case, also referred to above. In my view, that is the governing law.
That being the case, I find that the applicant has met its onus and has
established on the balance of probabilities that Island 27, as well as the two
smaller islands which formed immediately adjacent to Island 27, were conveyed
by the Crown to Alexander Rose by the Letters Patent of 1868. [Emphasis added.]
[71]
Although the application judge used the words as here, he did not
make any factual findings that the change in water levels was non-gradual. He found
the opposite that the property was altered through a lengthy and gradual
process. This characterization is also in line with what he described as the
only evidence of the change in water levels and alteration of Lot 35, namely,
that approximately 25 years after the dams were erected, Island 27 existed as
depicted by the Haslett Survey, and that the water level had increased by 2.5
feet over the course of those years. There was no evidence of water levels in
1818 or the effect on them in the 1830s when the dams were erected.
[72]
The flooding principle requires a
sudden
alteration or
displacement of land or water:
Neilson
, at p. 826
;
McLeay et al v. City of Kelowna et al.
,
2004 BCSC 325, 27 B.C.L.R. (4th) 344, at para. 20.
[73]
The Estate seeks to support the application judges conclusion by
relying on the cause of the rise in water levels having been artificial the
result of dams. However, the fact that the cause of a rise in water levels was
artificial does not on its own make the Flooding Principle applicable if the
rise was not sudden.
Nor is the
Ambulatory Principle inapplicable if accretion or erosion is the result but not
the intended effect of a lawful artificial structure: Surveyor General Publication,
at p. 29;
Clarke v. Canada (Attorney-General)
, [1930] S.C.R. 137, at p. 144. A change in water levels somewhere
may be the natural result of a dam. But the inference that the dams erected in
the 1830s were intended to cause erosion at, and to take land away from, Lot 35
was not one that the application judge drew. Nor is such an inference properly
available from the fact that water levels were different, and Island 27 had
separated from the mainland, some 25 years after the dams were erected.
[74]
Where the facts found by a trial judge are insufficient to engage a
correctly articulated legal standard, the application of that standard is an
error of law, since it is tantamount to the judge having altered the legal
standard:
Housen
, at para. 27. On the factual findings of the
application judge, the Flooding Principle was not applicable. It was thus an
error of law for him to apply it.
b)
Applying The Flooding Principle to a Time Before
the Crown Grant
[75]
The AG Canada submits that it was an error to apply the Flooding
Principle to unpatented land, that is, to fix the boundary at a location other
than the 1868 waters edge because of changes in water levels before the
Letters Patent.
[76]
Although in light of my finding above it is unnecessary to finally
conclude on this issue, I note that the authority that the application judge
relied on, The Surveyor General Publication, does not seem to support applying
the Flooding Principle in this circumstance. The authors make the following
observation about the relevance of the movement of the waters edge between the
time a lot has been surveyed, and the time of the Crown grant:
What if the watercourse shifts between time of
survey and time of parcel creation (e.g. creating a Reserve,
granting a
Crown patent,
registering a subdivision plan, or raising a new title)?
The significant date is when the parcel is
created.
The location of the watercourse and thus the location of the water
boundary pertains when the parcel is created and not when the
parcel/watercourse is surveyed:
The test is whether the land in fact comes
to the waters edge under the grant and not upon the manner of land description
within the grant. The time of survey pales into insignificance because
riparian rights exist ... at the time of the original Crown grants. at p. 5
(emphasis added).
[77]
Contrary to the submission of counsel for the Estate, the reference
in Becker v. Walgate
,
2020 ONCA 491,
at footnote 4, that
the waters edge at the time of the Crown grant does not necessarily mean the
waters edge on the day of the grant but rather the waters edge in its natural
and calm condition cannot be read in this case to refer to the waters edge
some 30 years prior to the Crown grant.
(3)
Failure to Consider the Implications of the
Treaties on the Interpretation of the Letters Patent
[78]
After finding that, because of the Flooding Principle, the Letters
Patent conveyed the Islands to Mr. Rose, the application judge considered the
effect of Treaties 20 and 78 on ownership of the Islands. As described above,
he found that Treaty 20 effected an absolute surrender of lands that included
Lot 35, and that Treaty 78 resolved any uncertainty about the Islands and did
not detract from the Crowns full ownership rights which included a right to
sell. The condition Treaty 78 imposed that the Crown use the proceeds of sale
for the benefit of the First Nations did not estop the Crown from selling any
of the surrendered lands, and the honour of the Crown was not at risk as long
as the Crown used the proceeds in that way.
[79]
In other words, the application judge, having found without
reference to the Treaties, that the Letters Patent meant that the Islands had
been sold, then concluded that the Treaties did not affect the title that was
conveyed.
[80]
The appellants argue that in approaching the matter this way the
application judge made a number of errors. It is not necessary, in my view, to
address each of those arguments. I accept the argument that in considering what
the Letters Patent conveyed, the application judge erred by failing to consider
the obligations in Treaty 78, and whether they were consistent with reading the
Letters Patent to include Island 27. In other words, he failed to take them
into account as something that
shed
light on the sense in which the words in the Letters Patent were used:
Sattva
, at para.
58;
Gibbs
, at p. 463.
[81]
Treaty 20 recorded an absolute surrender of title by the First
Nations, but the application judge accepted that assurances were given that the
King would accede to the First Nations request to exclude any islands. The
application judge found that those assurances were not given effect until
Treaty 78. However, Treaty 78 resolved those issues by effecting a surrender
that was
in trust
and
on conditions
. It imposed limitations on the
type of sale that could be made to the best advantage for ourselves and our
descendants forever and obligations about any proceeds the principal
arising from such sales to be safely funded and the interest accruing therefrom
to be paid annually to us and our said descendants for all time to come.
[82]
The Crown was under an obligation to ensure the conditions of
surrender, which are construed liberally and through the lens of the honour of
the Crown, were faithfully carried out:
R. v. Badger
, [1996] 1 S.C.R. 771, at para. 41
;
Guerin v. The Queen
, [1984] 2 S.C.R. 335, at pp. 376, 382.
And the Province was bound by those obligations if it carried out the Crown
power to sell:
Grassy Narrows First Nation v. Ontario (Natural Resources)
,
2014 SCC 48, [2014] 2 S.C.R. 447, at para. 50.
[83]
The fact that the Crown had undertaken separate obligations in
connection with islands, and the nature of the obligations, should have shed
light on whether a sale of Island 27 was objectively intended by the Province by
Letters Patent that referred only to Lot 35. The Crown is not presumed to act
in a manner that ignores its duties:
Badger
, at para. 41. The fact
that the Letters Patent neither identified Island 27 separately, although
surrendered to the Crown in trust and on conditions, nor allocated any of the
sale price to Island 27 (a seemingly necessary first step toward investing those
proceeds for the benefit of the First Nations as the terms of Treaty 78
required) were facts that were objectively inconsistent with the inference that
the reference to Lot 35 was intended to include Island 27.
C.
The Interpretation of the Letters Patent
[84]
In light of these errors, the application judges interpretation of
the Letters Patent is not entitled to deference. I turn, therefore, to whether,
applying the proper principles, his interpretation is nevertheless supportable.
In my view, and as presaged by the discussion above, it is not.
[85]
I repeat the interpretive question: whether it was the intention of
the parties, objectively ascertained, that the Letters Patent conveyed the land
up to the waters edge in 1868, which did not physically include the islands,
or whether they conveyed land that in 1868 was beyond the waters edge but
which had been, at a prior point in time, connected to the mainland.
[86]
In my view, the former interpretation is the only one which reflects
the objectively ascertained intentions of the parties, as determined by the
language of the Letters Patent read in light of the factual matrix and the
legal principles that apply:
a)
the language of the Letters Patent refer to Lot 35, which the Wilmot
Survey depicted as a mainland lot having a southeastern boundary constituted by
the waters edge of Lake Katchewanooka, and that did not include any land
beyond the waters edge or any islands;
b)
the waters edge boundary shown on the Wilmot Survey was ambulatory.
Nothing in the language of the Letters Patent incorporating the Wilmot Survey,
or in correctly applied legal principles concerning boundaries, would
reasonably be taken to mean that the reference to Lot 35 was intended to include
any land beyond the waters edge at the time of the Letters Patent even if the
waters edge had moved after the date of the Wilmot Survey;
c)
by the time of the Letters Patent, Island 27 had not only separated
from the mainland of Lot 35, but had also been separately identified on the
Haslett Survey this makes the absence of any reference to Island 27 in the Letters
Patent all the more important; and
d)
by the time of the Letters Patent, the Crown, under Treaty 78, had
undertaken obligations in connection with Island 27 in favour of the First
Nations. Yet the Letters Patent did not reference Island 27 or set out a value
for Island 27, nor is anything else in them consistent with a sale of Island 27
in accordance with those obligations.
[87]
Interpreting the Letters Patent to not include the Islands makes
sense of their language both the reference to Lot 35, a property that as
depicted was a mainland lot that did not extend beyond the waters edge, and
the lack of reference to any islands being included in the conveyance. This
interpretation is consistent with the relevant factual matrix at the time of
the Letters Patent, namely that Island 27 was physically separate from Lot 35,
located beyond the waters edge, had been separately identified, and was the
subject of a separate and fundamental set of Crown obligations in favour of the
First Nations.
[88]
The effect of the application judges interpretation is that the
Letters Patent were meant to convey land with a boundary defined not by the waters
edge at the time of the Letters Patent, but by a point defined by a historical
event. In my view, this would not be a reasonable assessment of the parties
intentions in these circumstances, as it would not be consistent with water
boundary principles and would exclude from consideration all other factors
noted above. Given that Island 27 was physically separate at the time and known
by a designation, it seems highly likely, given the objectives of certainty in
a conveyance, that if the parties had intended to include Island 27 in the
conveyance, they would have simply said so.
VI.
Conclusion
[89]
For these reasons, I would allow the appeals, set aside the orders
of the application judge, and substitute an order dismissing the Estates
application.
[90]
The Estate sought costs of $43,754 if successful. The appellants
indicated they were content with the quantum referred to by the Estate. I would
award costs of the appeals to the First Nations in the sum of $21,500, and to
AG Canada in the sum of $21,500both inclusive of disbursements and applicable
taxes.
Released: August 24, 2021 J.M.F.
B. Zarnett J.A.
I agree. Fairburn A.C.J.O.
I agree. B.W. Miller J.A.
[1]
Also known as the Otonabee River.
[2]
The ownership of Island 27 determines the ownership of the
other Islands no party argued otherwise. I refer in these reasons to the
Islands or to Island 27 as the context requires.
[3]
The appellants Curve Lake First Nation (formerly known as the Mud
Lake Indian Band or Mud Lake Reserve), Hiawatha First Nation (formerly known as
Rice Lake Indian Band or Rice lake Reserve) and Mississaugas of Scugog Island
First Nation (formerly known as The Scugog Band of Indians).
[4]
The application judge did not resolve the acreage reference in the
Letters Patent or use it to assist in determining what was conveyed.
[5]
In this case, it could not be seriously contended that the
interpretive issue could be resolved by the words of the Letters Patent alone.
Extrinsic evidence was led and relied on by all parties.
[6]
Nor was any partys position comprehensible without
reference to these matters. For example, the Estates position turned on the
location of the Islands in relation to the mainland of Lot 35 in 1818, and if
separated, when and why that occurred. The appellants positions required
consideration of the location and identification of the Islands at various
points prior to and at the time of the Letters Patent, as well as the obligations
of the Crown to the First Nations.
[7]
Gradual is usually accompanied by additional modifiers that
reinforce its meaning imperceptible (in the moment, though perceptible over
time), and incremental. The applicability of the principle is also a function of
the cause of the change of water levels either natural forces or the
unintentional effects of an artificial structure.
[8]
The principle is sometimes described as involving a change in water
levels that is sudden and artificial.
|
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 complainants 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.G., 2021 ONCA 578
DATE: 20210824
DOCKET: C66451
Fairburn A.C.J.O., Watt and
Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
W.G.
Appellant
Brian H. Greenspan and Naomi Lutes
, for the appellant
Christine Bartlett-Hughes
, for the respondent
Heard: January 27, 2021 by videoconference
On appeal from the conviction entered by Justice Douglas K. Gray of the
Superior Court of Justice on September 20, 2018, with reasons reported at 2018
ONSC 5404.
Watt J.A.:
[1]
They met first on a dating app where both had an
account. They chatted.
[2]
Then they met at a hotel. This was their first
meeting in person. They had sex.
[3]
The relationship continued for a few weeks.
Virtually and in person. Usually sexual. But at other times, not. Interrupted
by various events.
[4]
After the relationship ended, the appellant was
arrested on charges of sexual interference and sexual assault. A judge of the
Superior Court of Justice found both charges proven beyond a reasonable doubt.
The judge entered a conviction on the count of sexual interference and a
conditional stay on that of sexual assault.
[5]
The appellant appeals his conviction. These
reasons explain why I would dismiss the appeal and affirm the conviction
entered at trial.
The Background Facts
[6]
The issues raised in this court do not require
any detailed reference to the evidence adduced at trial. A brief overview of
the underlying circumstances will provide the background necessary to
understand the claims of error advanced and how I propose to resolve them.
The Principals
[7]
L.S. was born female. Early in high school, L.S.
began to identify as male. At all material times, L.S. was 15 years old.
[8]
The appellant was a married father of two
children. Self-employed, he was 50 years old when the offences alleged were
committed.
The Grindr App
[9]
Grindr is a dating app used by gay men. Its account
holders must be 18 or older, but the service does not verify any information
its account holders provide. Despite the age requirement, an account holder
need not disclose their age.
[10]
L.S. left his age blank on his Grindr profile.
He included a photograph of his eye. An account holder could indicate the type
of gay subculture with which he identified. L.S. did so. He indicated twink,
a younger man with a boyish look.
[11]
The appellant used the name Tom on his Grindr
profile. He listed his age as 48. This was a lie. He was actually 50 years old
and did not go by the name of Tom in his daily activities. The appellant knew
that information provided in Grindr profiles was not verified.
The Grindr Chats
[12]
L.S. and the appellant chatted on Grindr for about
two or three weeks before they actually met. L.S. said he was 18. He had been
born female but was transitioning to male. L.S. claimed he was doing a lap
year at high school. He lived at home with his parents and a sibling.
[13]
During their chats on Grindr, L.S. did not tell
the appellant that he (L.S.) was seeing an older man, Steven.
The First In-Person Meeting
[14]
Early in the month following their virtual
meetings, the appellant and L.S. met in person. The appellant picked up L.S. at
school. They drove in the appellants truck to a nearby hotel. There they
engaged in various forms of sexual activity before the appellant drove L.S.
back to the parking lot of his high school.
[15]
The appellant proposed another meeting the next
day. L.S. demurred because he was seeing another man, Steven.
The Later Meetings
[16]
Over the next several weeks, the appellant and
L.S. continued to chat and to meet. In most of their meetings, they had sex.
[17]
Later in the month of their first in-person
meeting, L.S. told the appellant that he (L.S.) had chlamydia. He advised the
appellant that he should be examined by a doctor. The appellant did so. The
examination confirmed that the appellant also had chlamydia. Both received medical
treatment. Their sexual activity ceased during the period of treatment.
[18]
The appellant believed that Steven was the
source of the chlamydia that he (the appellant) had contracted from L.S. The
appellant told L.S. that their relationship was over if L.S. continued to see
other men.
[19]
The day following this ultimatum, L.S. told the
appellant that he would end his relationship with Steven.
[20]
The relationship between L.S. and the appellant
continued over a few more weeks. They chatted and met. Medical treatment, and
vacations interrupted their sexual activity.
The Confession about Age
[21]
On April 7, 2015, as the appellant and L.S.
returned from sexual activity, the appellant asked L.S. what he proposed to do
after completion of his lap year. L.S. paused as he had when Steven had
asked him the same question. L.S. then told the appellant that he was only 15
not 18, as he had said in their early meeting.
[22]
L.S. and the appellant diverged in their
accounts of what happened after L.S. disclosed his true age 15 to the
appellant.
[23]
L.S. testified that the relationship continued
after his age disclosure. This included sexual activity. He was challenged on
this issue in cross-examination. Among other suggestions put to him was that he
had confused what had happened after he had made a similar disclosure to
Steven with what had occurred with the appellant.
[24]
The appellant gave evidence that once L.S.
disclosed his true age, they agreed that they could no longer see each other.
Their only further contact, about which they were also agreed, was that the
appellant could wish L.S. happy birthday when L.S. turned 16. The appellant
extended his best wishes. L.S. did not reply.
The Appellants State of Mind
[25]
The appellant testified that until L.S. told him
that he was only 15, he (the appellant) believed that L.S. was 18. L.S. had
told him so as their virtual relationship began and, according to the
appellant, had said nothing to the contrary until their relationship ended.
[26]
The appellant recounted several factors that
confirmed his belief that L.S. was 18 during their sexual relationship. L.S.
said he was 18 and used the Grindr app which required account holders to be 18.
L.S. said that he was doing a lap year at high school, meaning Grade 13. L.S.
demonstrated maturity in their conversations and assuredness in his sexual
preferences. L.S.s demeanour and physical appearance, which were consistent
with his photograph, confirmed his stated age.
The Appellants Inquiries
[27]
The appellant was cross-examined about what
steps he had taken to confirm his belief that L.S. was 18. He acknowledged that
he only asked L.S. his age once, when they first met over Grindr. He did not
inquire about why L.S. was doing a lap year at high school. Nor did the
appellant tell anyone about their relationship. After they met in person, the
appellant did not ask L.S. for any identification or whether he had a drivers
licence. The appellant did not inquire about the age of L.S.s brother or ask
to meet L.S.s parents. They never met at L.S.s home. The appellant picked up
L.S. and dropped him off after their meetings some distance away from his home.
The appellant acknowledged that people lie about their age and other things on
Grindr. Indeed, he had lied about his own age in creating his profile on the
Grindr app.
The Positions at Trial
[28]
The trial Crown advanced two alternative bases
upon which the appellants guilt could be proven. First, he submitted that the
appellant could be found guilty on the basis that the appellant continued his
sexual relationship with L.S. after L.S. had disclosed his true age as 15.
[29]
Second, even if the appellant honestly believed
that L.S. was at least 16, the Crown contended that it was proven beyond a reasonable
doubt under s. 150.1(4) of the
Criminal Code,
R.S.C. 1985, c. C-46,
that the appellant
had not taken all reasonable steps to ascertain L.S.s age. The Crown advanced
this as an alternative path to conviction and as the principal basis of liability.
[30]
For the appellant, defence counsel submitted
that the trial judge should have a reasonable doubt that any sexual activity
took place between the parties after L.S. told the appellant that he was 15. In
the alternative, trial counsel argued that, throughout, the appellant honestly
believed that L.S. was 18. Further, Crown counsel had failed to prove beyond a
reasonable doubt, as he was required to do, that the appellant did not take all
reasonable steps to ascertain L.S.s age. It followed, defence counsel urged,
that the appellant should be acquitted.
The Reasons of the Trial Judge
[31]
Considering the first basis of liability
advanced by the Crown, the trial judge was not satisfied beyond a reasonable
doubt that the sexual relationship of the appellant and L.S. continued after
L.S. told the appellant that he was 15.
[32]
Turning to the alternative basis of liability,
the trial judge was satisfied that the appellant had an honest but mistaken
belief throughout the sexual relationship that L.S. was 18, or at least 16.
However, the trial judge was persuaded beyond a reasonable doubt that the
appellant did not take all reasonable steps to ascertain L.S.s age. He
expressed his conclusion in these terms:
In the final analysis,
W.G. simply took L.S.s word that he was 18 years old, and he made assumptions
that were not warranted in the particular circumstances. While concrete steps
are not required in every case, they were clearly required in this case.
The simplest step would have been to ask for identification. That
was not done.
In the final analysis, I am satisfied beyond a
reasonable doubt that W.G. did not take all reasonable steps to ascertain the
age of L.S. before he engaged in sexual activity with him. Thus, as specified
in s. 150.1(4) of the
Code
, it is not a defence to the charges under
s. 151 or s. 271 that W.G. believed that L.S. was 16 years of age or more.
The Grounds of Appeal
[33]
The appellant identifies three errors in the
trial judges analysis which he says warrant entry of an acquittal, or at
worst, an order for a new trial. He says that the trial judge erred:
i.
in finding the fault element in sexual
interference satisfied on the basis of the appellants failure to take all
reasonable steps to ascertain the true age of L.S.;
ii.
in his interpretation of the all reasonable
steps requirement in s. 150.1(4); and
iii.
in misapprehending the evidence about L.S.s online dating profile
on Grindr.
[34]
The first two grounds of appeal are related and
can be combined for the purpose of analysis.
Ground #1: The Fault Element in Sexual Interference
[35]
The argument advanced in support of this ground
of appeal does not require further reference to the evidence adduced at trial
or the reasons of the trial judge. A canvass of the arguments advanced in this
court is sufficient prelude to the discussion that follows.
The Arguments on Appeal
[36]
The appellant begins with the unassailable:
subjective fault is a bedrock principle of the criminal law in Canada. Yet
here, the appellant says, the trial judge failed to give effect to that
principle. This is because the judge, having found that the appellant honestly
believed L.S. was over 16, nonetheless convicted the appellant because he
failed to take all reasonable steps to ascertain L.S.s age.
[37]
The failure to take all reasonable steps
requirement in s. 150.1(4) of the
Criminal Code
, the appellant says,
simply bars an accused from raising a positive defence mistaken belief in age
in answer to a charge of sexual interference. The failure does not provide, and
thus cannot be invoked, as an independent pathway to conviction as occurred
here. Previous authority notwithstanding, no longer can the Crown establish an
accuseds guilt of sexual interference on either of two bases actual
knowledge of the complainants underage status, or the failure to take all reasonable
steps to ascertain the complainants true age. Only actual knowledge of the
complainants underage status will suffice.
[38]
Here, the appellant continues, the trial judge
required him to show not only that he honestly but mistakenly believed that
L.S. was at least 16 years old, but also that he had taken all reasonable steps
to ascertain L.S.s age. But the onus is on the Crown to disprove the defence
for which s. 150.1(4) provides, by proving beyond a reasonable doubt that the
appellant either did not honestly believe L.S. was of age, or that he failed to
take all reasonable steps to ascertain L.S.s true age.
[39]
The trial judges findings, according to the
appellant, require entry of an acquittal or, at the very least, a new trial. To
establish the fault element of sexual interference, the Crown had to prove
beyond a reasonable doubt that the appellant believed, was wilfully blind, or
was reckless as to whether L.S. was under 16. The trial judge found that the
appellant honestly believed that L.S. was 18, thus not under 16 years of age.
On this finding, the appellant was entitled to an acquittal.
[40]
Even if the appellant is not entitled to an
acquittal under the new sexual assault fault regime, a new trial is required. The
trial judge, the appellant contends, failed to consider and decide whether the
Crown had proven beyond a reasonable doubt that the appellant had the state of
mind necessary to establish guilt. The trial judge found that there was an air
of reality to the appellants assertion that he had taken all reasonable steps
to ascertain L.S.s true age. Even if the trial judge was satisfied beyond a
reasonable doubt that the appellant had not taken all reasonable steps as
required by s. 150.1(4), it remained incumbent on the Crown to prove beyond a
reasonable doubt that the appellant believed, was wilfully blind to, or was
reckless as to whether L.S. was under 16. But the trial judge never adverted
to, much less decided whether the Crown had proven the required fault element
beyond a reasonable doubt. Thus, the need for a new trial.
[41]
In addition to the above, the appellant also challenges
the trial judges interpretation and approach to the all reasonable steps
element in s. 150.1(4) of the
Criminal Code
. The trial judge, the
appellant complains, failed to conduct the assessment contextually, in
particular, by failing to take into account the appellants subjective belief
that L.S. was over 16. What constitutes all reasonable steps depends on the
context of each case and requires an assessment of all the circumstances. The
term steps has two modifiers: all and reasonable. The trial judge read
all as every, thus approaching the requirement as a checklist, contrary to
what the authorities teach. Steps that are not reasonably necessary in the
circumstances need not be taken.
[42]
The subjective belief of an accused informs but
is not determinative of the contextual all reasonable steps inquiry under s.
150.1(4). Here, the trial judges failure to consider the appellants belief in
L.S.s age resulted in a disproportionate focus on the positive steps taken,
rather than whether the context required
any
further inquiries. An
honest belief not based on ignorance, but as here, grounded on L.S.s own
representation may obviate the need for further inquiry. Indeed, the appellant
engaged the very inquiry necessitated by the circumstances. His conduct belies
the states of mind required to establish the fault element in sexual
interference.
[43]
The respondent disagrees. The Crown rejects any
suggestion of legal error in the trial judges analysis and conclusion. Admittedly,
the analysis did not conform to what is now required because the trial judge
did not have the teachings of those cases to guide him. But once the trial
judge found that the Crown had proven beyond a reasonable doubt that the
appellant had not taken all reasonable steps required by the circumstances to
ascertain L.S.s true age, the appellant was not entitled to rely on the
mistaken belief in age defence. The appellants conviction, in turn, was
inevitable.
[44]
In several pages of her factum, the respondent
articulated her concern with the reasoning of the majority of the Supreme Court
of Canada in
R. v. Morrison
, 2019 SCC 15, [2019] 2 S.C.R. 3. The
purpose of this critical analysis, she indicated, is to preserve a right of
appeal to the Supreme Court of Canada on this basis. These submissions are best
left to another place, at another time.
[45]
When s. 150.1(4) is properly interpreted, the
respondent contends, the subsection does not overlay a discrete mistaken belief
in age defence on top of a fault element with respect to age for offences
involving sexual activity with children. Instead, the
mens rea
component requires the Crown to prove beyond a reasonable doubt the absence of
a reasonable mistaken belief with respect to the complainants age. However,
even accepting that disproof of a mistaken belief of age is an inquiry distinct
from that involving proof of the elements of an offence, negating mistaken
belief in age to the extent of reasonable doubt is tantamount to proof of the
culpable mental state required for offences such as sexual interference. A
conviction of that offence is inevitable.
[46]
The all reasonable steps requirement in s.
150.1(4) obliges an accused who advances a mistaken belief in age defence to
have exercised the same degree of care in ascertaining a complainants age that
a reasonable person would exercise in equivalent circumstances. This inquiry is
a highly contextual, fact-specific exercise. It includes both objective and
subjective components. When the Crown proves beyond a reasonable doubt that an
accused did not take all reasonable steps to ascertain the complainants age,
the defence of mistaken belief in consent is no longer available for the trier
of fact to consider.
[47]
Although rejection of the mistaken belief
defence in s. 150.1(4) and the nature of the fault element required in respect
of the age-specific sexual offences remain closely associated, the fault
element must be defined in terms of the accuseds state of mind. The fault
element in s. 151 includes actual knowledge or belief and wilful blindness. But
it also extends to recklessness, that is to say, an awareness of some level of
risk and a determination to proceed despite that risk. An accused who decides
to proceed with sexual activity with an underage complainant after adverting to
the possibility that the complainant was underage, is reckless with respect to
the complainants age, even if the risk that the complainant is underage is
low. Where an accused cannot rely on his evidence about mistaken belief in age
because he has not taken reasonable steps to ascertain the complainants age,
no reasonable doubt can arise with respect to proof of the fault element of the
offence.
[48]
In this case, the respondent argues, the
appellant did advert to the question of L.S.s age. If the trial judge
correctly concluded that the appellant failed to take all reasonable steps in
the circumstances as he knew them, then he cannot rely on the defence of
mistaken belief and his claim in that respect is of no legal effect. The trial
judge made no error in his all reasonable steps analysis. The appellant was
properly convicted.
The Governing Principles
[49]
The principles that control our decision are of
recent origin. They differ from those applicable when the trial judge rendered
his decision.
[50]
The principles at work have to do with the
essential elements of the offence of sexual interference; the mistaken belief
in age defence in s. 150.1(4); and the combined effect of these principles in
the circumstances of this case. Those circumstances include two findings of
fact made by the trial judge:
i.
that the appellant honestly believed L.S. was
18; and
ii.
the appellant failed to take all reasonable
steps to ascertain L.S.s age as required by s. 150.1(4) of the
Criminal
Code
.
The Offence Charged: Sexual Interference
[51]
The appellant was charged with sexual
interference, an age-specific offence created by s. 151 of the
Criminal
Code
prohibiting defined sexual conduct with a prescribed class or group
of persons. To establish this offence in the circumstances of this case, the
Crown had to prove beyond a reasonable doubt:
i.
L.S. was under 16;
ii.
the appellant touched L.S.; and
iii.
the touching was for a sexual purpose.
[52]
Like the cognate offence of invitation to sexual
touching in s. 152, the language of the section creating the offence of sexual
interference says nothing expressly about the
mens rea
requirement or
fault element as it relates to an accuseds belief about the age of the
complainant: see
R. v. Carbone
, 2020 ONCA 394, 150 O.R. (3d) 758, at
para. 67. See also
R. v. B.J.T
., 2019 ONCA 694, 378 C.C.C. (3d) 238,
at para. 37.
[53]
The language in s. 151 does
not
track
the formula expressed in s. 172.1(1) requiring that the complainant be a
person who is, or who the accused believes is,
under a specified age: see
Carbone
,
at paras. 98-99. Thus, the fault element in s. 151 would appear to be the
intention to touch the body of a person under 16 with a part of the accuseds
own body for a sexual purpose.
Mistaken Belief in Age: Section 150.1(4)
[54]
Section 150.1(4) applies to the sexual
interference offence of s. 151. Section 150.1(4) refers to a defence and
imposes restrictions upon its availability. The defence, absent the statutory
restrictions, has its roots in the common law which permit a defence of mistake
about an essential element of an offence requiring proof of
mens rea
. The
section precludes the defence of an honest but mistaken belief that the complainant
was at least 16 years old unless the accused took all reasonable steps to
ascertain the complainants age. A similar statutory provision appears in s.
172.1(4) which, like s. 150.1(4), forecloses the defence where the claim is
entirely devoid of an objective basis:
Morrison
at para. 45;
Carbone
,
at para. 67.
[55]
Substantive defences like s. 150.1(4) have
implications for the burden of proof. An evidentiary burden is imposed on the
accused. A persuasive burden on the Crown. The threshold evidentiary burden on
the accused is to adduce evidence sufficient to give the defence an air of
reality:
Morrison
, at paras. 84, 118;
R. v. Levigne
, 2010 SCC
25, [2010] 2 S.C.R. 3, at para. 32(3); and
Carbone
, at para. 129. This
requires the introduction of evidence that would permit the trier of fact to
find that the accused believed the complainant was the required age and took
all reasonable steps to determine the complainants age:
Morrison
, at
paras. 119-120;
Carbone
, at para. 129. This is consistent with general
principles:
R. v. Cinous
, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 2,
50-54.
[56]
Where an accused fails to meet the evidentiary
burden under s. 150.1(4), the defence available under that section fails
in
limine
in accordance with general principle. However, where the
evidentiary burden is met, the defence is in play and becomes available for the
trier of fact to consider in accordance with its terms. Once the defence is in
play, the burden settles upon the Crown to negate the defence for which the
subsection provides. This too accords with general principle, except for those
few defences where the legal burden also falls upon the accused.
[57]
Where the defence of s. 150.1(4) is in play, the
Crown may negate it in either of two ways. The Crown may prove that the accused
did not honestly believe that the complainant was at least 16 years old at the
time of the alleged offence. Or the Crown may prove that, despite the accuseds
claim that they honestly believed that the complainant was at least 16, the
accused did not take all reasonable steps to ascertain the complainants age:
Morrison
,
at para. 88;
Carbone
, at para. 118. See also
R. v. Saliba
,
2013 ONCA 661, 304 C.C.C. (3d) 133, at paras. 26-28;
R. v. Duran
, 2013
ONCA 343, 306 O.A.C. 301, at para. 51.
[58]
The all reasonable steps analysis required
under s. 150.1(4) is highly contextual and fact specific. As a general rule,
the more reasonable an accuseds perception of the complainants age, the fewer
steps required of the accused to satisfy the standard of diligence imposed:
R.
v. George
, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 9.
[59]
Some steps are of no avail in the all
reasonable steps analysis. The sexual activity itself cannot be summoned in
support because the steps must precede the activity which forms the subject matter
of the charge. Equally unavailing are steps taken
after
the alleged
interference, although these steps may have purchase on an assessment of the
credibility and reliability of a witness. The steps must precede the conduct in
issue:
George
, at paras. 18-21.
[60]
Reasonable steps are steps that a reasonable
person would take, in the same circumstances known to the accused at the time,
to ascertain the complainants age. The reasonable steps requirement includes
both objective and subjective elements. The steps, viewed objectively, must be
reasonable. And the reasonableness of those steps must be asserted in the
circumstances known to the accused:
Morrison
, at para. 105.
[61]
Reasonable steps are steps that provide
information reasonably capable of supporting an accuseds belief that the
complainant is of legal age. In other words, the steps must be meaningful.
Steps that solicit information that does not reasonably support a belief in
legal age are not reasonable steps. Relevant considerations include not only
the nature of the steps themselves, but also the information that those steps
solicit. The steps need not always be active. However, where the early steps of
an accused could reasonably support a belief that the other person is of legal
age, but later events raise red flags that the other person may not be of
legal age, additional steps may be required to meet the standard of s.
150.1(4):
Morrison
, at paras. 106-109.
[62]
There is no magic number or exhaustive list of
steps that an accused must take to satisfy the all reasonable steps
requirement in s. 150.1(4). A practical, common sense approach should prevail,
informed by the overarching purpose of the provision to protect vulnerable
young people from sexual crimes by assigning responsibility for preventing
adult/youth sexual activity on adults. And by an enhanced standard. Not simply
reasonable steps, but all reasonable steps to ascertain the age of the
complainant.
Section 150.1(4) and Proof of Guilt
[63]
Where a substantive defence to a charge is in
play, but disproved by the Crown, the consequences for proof of the essential
elements of the offence vary. To illustrate what I mean, consider the offence
of second degree murder and the defences of self-defence, alibi, and
provocation.
[64]
When the Crown disproves a defence of
self-defence that is advanced as the sole defence to a charge of second degree
murder, the Crown has established an essential element of the offence an
unlawful killing but not the offence itself. This is because rebuttal of the
defence says nothing about proof of the fault element in second degree murder.
[65]
Where an accused advances a defence of alibi and
the Crown disproves it beyond a reasonable doubt, the effect is of no
consequence to proof of any essential element of second degree murder. It does
not establish the accuseds presence when and where the offence was committed,
only that they were not elsewhere as they claimed.
[66]
Where the Crown proves beyond a reasonable doubt
that the accused was not acting under provocation, the effect is that the
accused committed murder. This is because provocation only enters the picture
when murder has been proven. When provocation is negated, murder remains
proven.
[67]
Where the defence of honest belief in age is in
play in a prosecution for sexual interference and the Crown proves beyond a
reasonable doubt that the accused did not take all reasonable steps to
ascertain the complainants age, this means that the defence is unavailing. But
it does not mean that, on this basis alone, the offence charged has been proven
beyond a reasonable doubt. Whether the offence charged has been so proven
depends on whether the trier of fact concludes that the Crown has proven beyond
a reasonable doubt that the accused believed that the complainant was underage:
Morrison
, at para. 129.
[68]
Where the Crown has disproven the honest belief
in age defence in s. 150.1(4), the trier of fact is left with three possible
states of mind. The accused may have believed or have been wilfully blind to
the fact that the complainant was under 16. The accused may have appreciated
that there was a risk that the complainant was under 16 but decided to go ahead
anyway despite that risk. Or the accused may never have adverted to the
complainants age and chose to proceed with the touching:
Carbone
, at
para. 122.
[69]
The fault element under s. 151 may be proven by
establishing that the accused believed that the complainant was under 16, or
that the accused was wilfully blind to the fact that the complainant was under
16. The Crown may also establish the fault element by proving beyond a
reasonable doubt that the accused believed that there was a risk that the complainant
was under 16, but went ahead anyway, choosing to do so despite the risk. In
other words, the accused was reckless as to the complainants true age. And the
Crown may also demonstrate that the accused never turned their mind to the
complainants age as they proceeded. This too may establish recklessness on the
accuseds part with respect to the complainants age. Reckless indifference is
a subjective state of mind bespeaking a choice on the part of an accused to
treat the complainants age as irrelevant and to assume the risk associated
with their choice:
Carbone
, at paras. 123, 126-127.
[70]
As
Carbone
teaches, the fault element
of recklessness is subjective. It involves the appreciation of some level of
risk coupled with the conscious decision to take that risk. Under s. 151, an
accused who chooses to proceed with the activity the section prohibits sexual
activity with young persons after having adverted to the possibility that the
complainant was underage, will inevitably be found to have been reckless with
respect to the complainants age:
Carbone
, at para. 125. So too, at
least in most cases, indifference to the complainants age, a state of mind
that reflects a positive choice by an accused to treat the complainants age as
irrelevant to their decision to engage in the sexual activity:
Carbone
,
at paras. 126-127.
The Principles Applied
[71]
I would not give effect to this ground of
appeal. To explain why, I begin with some background.
[72]
At trial, several circumstances were
uncontroversial. The sexual activity which the appellant and L.S. participated
took place within the time period alleged in the indictment and amounted to the
external circumstances or
actus reus
of the offences charged. The
appellant touched the body of L.S. with a part of his own body. The touching
was for a sexual purpose. L.S. was 15.
[73]
The defence the appellant advanced at trial was
that he honestly believed that L.S. was 18, thus not under 16 as the
offence-creating provision requires, and that he had taken all reasonable steps
in the circumstances as he knew them to ascertain L.S.s age. In other words,
the appellant had satisfied all the requirements of s. 150.1(4) of the
Criminal
Code
.
[74]
In his reasons for judgment, the trial judge
made two findings of fact upon which he rested his decision that the Crown had
proven the appellants guilt beyond a reasonable doubt. He found that the
appellant honestly believed that L.S. was 18 and would have made the same
finding even if the appellant had to establish this fact beyond a reasonable
doubt. The trial judge also found that the Crown had proven beyond a reasonable
doubt that the appellant failed to take all reasonable steps the circumstances
required to ascertain L.S.s true age. On the basis of the then existing
authorities, these two findings together established the appellants guilt of
both offences charged.
[75]
We now know that this reasoning, which treats
the failure to take all reasonable steps to ascertain a complainants age as a
discrete pathway to conviction, is erroneous. This is because this reasoning
fails to take into account the fault element the Crown is required to prove in
cases of sexual interference where the mistaken belief in age defence of s.
150.1(4) has failed for want of all reasonable steps.
[76]
To establish the requisite fault element in the
circumstances of this case, the Crown had a suite of options. Actual belief
that L.S. was under 16. Wilful blindness as to whether L.S. was under 16. And
recklessness, either through the appellants appreciation of the risk that L.S.
was under 16 and proceeding anyway in spite of that risk, or in never turning
his mind to L.S.s age.
[77]
This court has indicated that this additional
step assessing the adequacy of the proof of the fault element will have
little practical effect on verdicts rendered on the basis of the former
alternative pathway analysis. This is so because removal of the positive belief
that the complainant was the required age, in tandem with recklessness as a
basis for a finding of
mens rea
, will leave little room for a
conclusion other than that an accused was, at minimum, reckless as to the
complainants true age:
Carbone
, at para. 130.
[78]
Whether the result would have been the same
under the additional step now required in the
mens rea
analysis under
the alternative pathway approach, which this court has said is likely to be the
case in the majority of instances, will turn largely on the trial judges
analysis of the failure of the accused to take all reasonable steps to
determine the age of the complainant.
[79]
In this case, the trial judge likened the
analysis required as akin to an inquiry into the exercise of due diligence.
There was no checklist of factors dipositive of the issue. The benchmark was
what steps a reasonable person in equivalent circumstances would have
undertaken to determine the complainants age. The analysis was highly
contextual and fact specific. The trial judge then listed the factors upon
which the appellant relied and rejected the submission that they met the
standard required by s. 150.1(4). He concluded that the appellant essentially
accepted L.S.s statement about his age without further meaningful inquiry.
[80]
Here, contrary to the position advanced by the
appellant, the trial judge specifically rejected a checklist approach to the
issue framed by s. 150.1(4). He did not require a standard of perfection. The
offences charged were complete within minutes of the first actual meeting
between the parties. The appellant relied on what L.S. had said on his Grindr
profile and in their chats. He well knew that things were not as advertised on
Grindr. Account holders lied about many things. Their identity. Their age, as
he did himself. The age gap between the parties was three decades. This is not
a case where L.S.s physical appearance showed him to be clearly of age. The
appellant had no external benchmarks against which to test L.S.s
representation about his age. He made no request for identification, simply took
L.S. at his word and made unwarranted assumptions.
[81]
In the circumstances of this case, I am
satisfied that, had he had the benefit of the later authorities, the trial
judge would have reached the same conclusion. The trial judge rejected the
single defence advanced, that is to say, that the appellant honestly believed
L.S. was over 16 when the sexual activity prohibited by s. 151 took place. The
rejection was grounded on the appellants failure to take all reasonable steps
to ascertain L.S.s true age. This rejection took the appellants claim that he
believed L.S. was at least 16 out of the evidentiary mix. This rejection, on
these facts, left only two possibilities.
Either the
appellant actually knew or was wilfully blind as to whether L.S. was under 16,
or that he was reckless about L.S.s true age
. Either is sufficient to
establish the
mens rea
required by s. 151.
Ground #2: Misapprehension of Evidence
[82]
The appellant urges a second ground of appeal.
He says that the trial judge misapprehended evidence that was material to the
finding of guilt. This misapprehension provided context to the reasonableness
of the appellants inquiries and his perception of L.S.s appearance. It was thus
important to the all reasonable steps analysis under s. 150.1(4) that led the
trial judge to reject the only defence put forward at trial.
The Essential Background
[83]
The misapprehensions in this case include a
mistake about the substance of evidence and the failure to consider evidence
about L.S.s representation that he was 18.
The Online Dating Profile
[84]
In his online dating profile on Grindr, L.S. indicated
he identified as a twink, a younger gay man who had a boyish look. Briefly, a
boyish gay man. This attracted plenty of attention on Grindr from older men.
[85]
In examination-in-chief, the appellant testified
that on Grindr L.S. also associated himself with an older guy tribe.
Selection of a tribe indicated a persons preference of what he liked, things
of interest to the account holder.
The Age Representation
[86]
As he began his relationship with the appellant
and Steven, L.S. represented himself as 18.
[87]
In cross-examination, it was suggested to L.S.
that when he met others in person, they accepted or appeared to accept that he
was 18. He agreed. He was not asked and gave no evidence about having or using
fake identification documents describing his age as 18. No submissions were
made about him having or using fake identification.
The Reasons of the Trial Judge
[88]
In his written reasons, the trial judge referred
to evidence that on his Grindr profile, the appellant indicated his interest in
two tribes: The
twink tribe (being younger-looking
men) and another tribe, being older men.
[89]
The trial judge made no reference to any evidence
about the appellant being accepted by others as older than his true age or his
possession or use of false identification.
The Arguments on Appeal
[90]
In brief submissions on this issue, the
appellant contended that the trial judge was in error about the substance of
the evidence about the online Grindr profile of L.S. His designation of the
tribe twink did
not
indicate his interest in younger men, as the
trial judge recounted it, but that he was someone who had a youthful
appearance. This misapprehension was material because it provided further
context to the reasonableness of the appellants inquiries and his perception of
L.S.s appearance.
[91]
In addition, the appellant says that the trial
judge failed to consider evidence that others accepted that the complainant was
18 and that he had used fake identification in the past. This evidence
indicated that the appellants failure to cross-examine L.S. about his age or
to ask for identification were unlikely to produce any truthful response about
his actual age. It follows that the appellants failure to do so should not
have tolled against him in the all reasonable steps analysis
.
[92]
The respondent demurs. There was no
misapprehension of evidence, in either sense advanced by the appellant,
material to the reasoning process that led to the findings of guilt. This is a
stringent test. The misapprehension must be an essential, rather than
peripheral, part of the reasoning process leading to the finding of guilt. For
it to amount to a miscarriage of justice, the misapprehension must leave the
balance of the reasoning on shaky ground when struck from the determination of
guilt.
[93]
First, the respondent submits, the trial judge
was not mistaken about the substance of the evidence about the twink tribe
selected on L.S.s Grindr profile. L.S. explained its meaning. The tribe twink
referred to younger gay men. This comported with his youthful appearance and reinforced
his later representations that he was 18.
[94]
Second, the trial judges failure to refer to
evidence that others accepted that L.S. was 18, including others on Grindr such
as Steven, was of no consequence to the trial judges findings of guilt. Neither
was it of consequence that the trial judge failed to refer to evidence that
L.S. had apparently used or tried to use fake identification, and thus might
have done so if asked by the appellant for identification. None of these steps
were taken by the appellant.
The Governing Principles
[95]
The principles governing appellate review of
claims of misapprehension of evidence are well established in our
jurisprudence.
[96]
A misapprehension of evidence includes a mistake
about the substance of evidence, a failure to consider evidence relevant to
decide a material issue, or a failure to give proper effect to evidence:
R.
v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at pp. 217-218.
[97]
For a misapprehension of evidence to vitiate a
conviction on the ground of a miscarriage of justice, the misapprehension must
have to do with the substance of the evidence, not merely its details. The
misapprehension must be material, not merely peripheral, and the error must
play an essential part in the reasoning process leading to conviction, not just
in the narrative of the judgment:
R. v. Lohrer
, 2004 SCC 80, [2004] 3
S.C.R. 732, at para. 2. An error in the assessment of evidence amounts to a
miscarriage of justice only if striking it from the judgment leaves the reasoning
leading to the finding of guilt on shaky ground:
R. v. Sinclair
, 2011
SCC 40, [2011] 3 S.C.R. 3, at para. 56.
The Principles Applied
[98]
In my respectful view, this ground of appeal
fails. As I will explain, the claims of misapprehension advanced here, whether
considered individually or in combination, simply do not ascend to the
stringent threshold required to warrant our intervention.
[99]
First, the evidence about L.S.s Grindr profile.
[100]
The reasons of the trial judge include two references to the
tribes included in L.S.s Grindr profile. Each refers to twink and another
tribe with interest in older men. The profile itself was not tendered or filed
as an exhibit.
[101]
The initial reference to another tribe, being older men appears
under the heading Background. This is a narrative part of the judgment. It
informs no part of the reasoning process leading to conviction. The second
reference is contained in a summary of the appellants testimony at trial,
recounting the factors upon which the appellant relied on to found his belief
that L.S. was 18. The reference is faithful to the appellants testimony that
the designation of a tribe reflected the account holders sexual preferences,
things that youre interested in.
[102]
To the extent that the submission about misapprehension of evidence
is grounded on a mistake about the substance of this evidence, the argument
fails.
[103]
Nor am I persuaded that the omission of references to the acceptance
by others of L.S.s representations that he was 18, or that he had used fake
identification in the past, contaminated the judges conclusion that the
appellant failed to take all reasonable steps to ascertain L.S.s true age.
[104]
The evidence was of doubtful admissibility at least to the extent
that it consisted of a witness reporting what others had said about acceptance
of L.S.s age-related representations as evidence of actual acceptance, or L.S.s
possession or use of false identification. It would appear to offend the
hearsay rule and fall well short of admission by exception. Even received as
non-hearsay, there was no evidence that it formed part of the appellants
consideration. Similar admissibility concerns emerged when L.S. was asked in
cross-examination whether others accepted that he was 18. That they did so was
scarcely something about which he could testify, all the more so when the
circumstances of such acceptance were not disclosed.
Disposition
[105]
For these reasons, I would dismiss the appeal.
Released: MJF August 24, 2021
David Watt J.A.
I agree. Fairburn J.A.
I agree. Grant Huscroft J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Politis v.
Politis, 2021 ONCA 587
DATE: 20210826
DOCKET: C68238
Tulloch, Nordheimer and Jamal
*
JJ.A.
BETWEEN
Catherine Elizabeth Politis
Applicant (Appellant and
Respondent by way of cross-appeal)
and
Themistocles Politis
Respondent (Respondent and
Appellant by way of cross-appeal)
Herschel I.
Fogelman and Lauren Daneman, for the appellant and respondent by
way of
cross-appeal
James D.
Singer, for the respondent and appellant by way of cross-appeal
Heard: in writing
On appeal from the order of Justice E.
Llana Nakonechny of the Superior Court of Justice, dated February 27, 2020,
with reasons reported at 2020 ONSC 1306.
On cross-appeal from the costs
endorsement of Justice E. Llana Nakonechny of the Superior Court of Justice,
dated April 9, 2020
.
COSTS ENDORSEMENT
[1]
On July 28, 2021, we released our decision in
which we dismissed the appeal and the cross-appeal of the costs order. We
invited the parties to make written submissions on the costs of the appeal. We
have now reviewed those submissions.
[2]
The respondent asks for his costs of the appeal
in the amount of $38,580. The appellant submits that the costs should be fixed
in the amount of $7,500.
[3]
In our view, taking into account the issues
raised in the appeal and the limited resources of the parties, an award of
costs in favour of the respondent in the amount of $15,000, inclusive of
disbursements and HST, is a fair and reasonable amount for the appellant to
bear.
[4]
The appellant is ordered to pay that amount to
the respondent.
M.
Tulloch J.A.
I.V.B.
Nordheimer J.A.
*
Jamal J.A. did not take part in this decision.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R.F. v. J.W., 2021 ONCA 586
DATE: 20210826
DOCKET: C68225
Juriansz, van Rensburg and
Sossin JJ.A.
BETWEEN
R.F.
Applicant (Appellant)
and
J.W.
Respondent (Respondent)
Ken Nathens and Denniel Duong, for the
appellant
Kirsten Hughes and Darryl Willer, for
the respondent
Heard: in writing
On appeal from the order of Justice Mary
Jo McLaren of the Superior Court of Justice, dated February 26, 2020, with
reasons reported at 2020 ONSC 1213.
COSTS ENDORSEMENT
[1]
The court has received and reviewed the costs
submissions of the parties in respect of the appeal, which was dismissed on
July 22, 2021.
[2]
The respondents reliance on the circumstances
of the intervention motion before Fairburn A.C.J.O., in respect of which no
costs were awarded, is misplaced. Nor are there any other circumstances in
relation to the appeal that would warrant an award of substantial indemnity
costs.
[3]
Costs of the appeal, including the motion for
fresh evidence, are fixed in favour of the respondent in the sum of $22,500,
inclusive of disbursements and HST.
R.G.
Juriansz J.A.
K.
van Rensburg J.A.
L.
Sossin J.A.
|
COUR DAPPEL DE LONTARIO
RÉFÉRENCE : R. c. Dansereau, 2021 ONCA 580
DATE : 20210827
DOSSIER : C67867
Les juges Rouleau, Hoy et van
Rensburg
ENTRE
Sa Majesté la Reine
Intimée
et
Jean Jacques Dansereau
Appelant
Eric Granger, pour lappelant
Vallery Bayly, pour lintimée
Date de laudience : 31
mai 2021 par visioconférence
En appel de la condamnation prononcée le
8 août 2019 et de la peine imposée le 9 décembre 2019 par la juge Nathalie
Champagne de la Cour supérieure de lOntario.
MOTIFS DE LA COUR
[1]
Lappelant a été reconnu coupable des
infractions de contact sexuel et dincitation à des contacts sexuels avec une
personne âgée de moins de 14 ans.
[1]
Il interjette appel de ses condamnations et il fait demande
dautorisation dappel de sa peine de 30 mois demprisonnement.
[2]
Pour les motifs qui suivent, lappel est rejeté.
Interdiction de publication
[3]
Au début de laudience de lappel, lavocat de
la couronne a informé la Cour que la plaignante cherchait à lever lordonnance
dinterdiction de publication imposée au procès selon larticle 486(4) du
Code
criminel
. Lappelant na pas présenté darguments sur cette question. Dans
les circonstances, nous sommes de lavis que lordonnance de linterdiction nest
pas nécessaire et nous lavons levée.
Contexte
[4]
La plaignante a allégué que lappelant, son
grand-père, la régulièrement abusée sexuellement lorsquelle avait entre cinq
et sept ans, de 2003
à
2005.
Ses parents étaient séparés et son père habitait avec ses propres parents :
les grands-parents de la plaignante et de sa sur cadette. Les deux filles ont
commencé à leur rendre visite lorsque la plaignante avait quatre ans.
Éventuellement elles passaient une partie de chaque fin de semaine ou chaque
deux fins de semaine chez eux.
[5]
La plaignante a témoigné que les incidents
dabus sexuel ont eu lieu dans latelier de son grand-père au sous-sol de la
maison. Elle a témoigné quà plusieurs reprises, lappelant a touché ses
parties génitales, essayant même de pénétrer son vagin avec son pénis, mais
sans succès, et quil la forcée à le masturber et à lui faire une fellation.
La plaignante a témoigné que les agressions sexuelles ont continué jusquà ce
que ses grands-parents aient déménagé de leur maison (entre 2005 et 2007). Elle
a porté plainte à la police à lâge de 19 ans. Elle avait 21 ans quand elle a
témoigné au procès.
[6]
La défense de lappelant au procès a consisté,
en grande espèce, à contester la crédibilité de la plaignante. Lappelant a nié
les allégations et il a maintenu quelle nétait presque jamais au sous-sol
quand elle et sa sur rendaient visite
à
leurs grands-parents, et quil ne travaillait pas au sous-sol quand
elles
é
taient chez eux. La juge
de première instance a conclu que le témoignage de lappelant nétait ni
crédible ni fiable. Elle a accepté le témoignage de la plaignante.
LAppel des Condamnations
[7]
Lappelant soulève un seul argument dans lappel
de ses condamnations. Il maintient que la juge de première instance a erré
dans son évaluation de la crédibilité et de la fiabilité de la plaignante.
[8]
Lévaluation de la crédibilité des témoins par
la juge de procès commande la retenue judiciaire en appel. Cependant,
lévaluation des erreurs de droit permet une intervention en appel :
R.
c. F.J.
, 2021 ONCA 268, au para. 11.
[9]
Lappelant fait valoir quil y a une erreur
fatale dans ce cas : lappelant prétend que la juge na pas adéquatement
considéré une déclaration antérieure incohérente de la plaignante qui était
adulte quand elle a témoigné au procès au sujet des
événements
qui ont eu lieu dans son enfance. Dans sa déclaration écrite devant la police,
elle avait dit que son grand-père avait éjaculé pendant le premier incident, ce
qui contredit son témoignage au procès où elle a maintenu quil na pas éjaculé
la première fois.
[10]
Lappelant sappuie sur un passage dans larrêt
R. c. W. (R.)
,
[1992] 2 R.C.S.
122, o
ù
la juge MacLachlin a
dit : « En règle générale, lorsquun adulte témoigne relativement à des
événements survenus dans son enfance, il faut évaluer sa crédibilité en
fonction des critères applicables aux témoins adultes »: à la p. 134. Il affirme
que la juge de procès a ignoré ce principe et a plutôt appliqué une norme moins
exigeante en
é
valuant le t
é
moignage de la plaignante.
[11]
Selon lappelant, la juge de première instance
aurait dû considérer la déclaration antérieure incohérente de la plaignante
comme preuve de sa négligence envers la vérité. Même si la plaignante a
prétendu quelle pouvait se rappeler des événements dune façon détaillée, elle
a erré dans son témoignage sur ce détail important. Lappelant prétend que ce
que la juge a caractérisé comme une explication de lincoh
é
rence est illogique. Lappelant sappuie
sur larrêt
R. v. A.M.
, 2014 ONCA 769, 123 O.R. (3d) 536, o
ù
cette cour a affirmé limportance des
déclarations antérieures incohérentes dans lévaluation de la crédibilité dun
témoin adulte qui décrit des événements qui se sont passés pendant son enfance.
[12]
Il est convenable de décrire comment lavocat de
la d
é
fense a utilis
é
la d
é
claration
é
crite de
la plaignante au cours de son contre-interrogatoire. Dabord, lavocat a
remarqu
é
le manque de d
é
tails dans la d
é
claration
é
crite et
le fait que la d
é
claration
nindiquait pas que les gestes de lappelant avaient tendance
à
changer dun incident
à
lautre. La plaignante a expliqu
é quon lui a demandé décrire selon ce quelle se souvenait; donc elle
navait décrit que la première fois quun des divers attouchements a eu lieu. Quand
les policiers lui ont demandé si les agressions ont persisté, elle leur a répondu
quelles ont persisté pendant deux ans. Puis, lavocat de la défense a contre
-interrog
é
la
plaignante sur lincohérence :
Q.
vous avez aussi parlé plus tôt [en interrogatoire
principale] aujourdhui que, durant la première fois que cette interaction-là
sexuelle sest produite quil ny a pas eu déjaculation de votre grand-père.
Cest ça?
A. Pas cette occasion-là, non, pas la
première.
Q. Je vais vous ramener à la deuxième page de
votre témoignage écrit au policier où vous décrivez la première fois. Je vais
vous faire lire ici
je peux vous diriger là-dessus cinquième question
je vais
vous demander de lire à vous-même essentiellement cette cinquième question-là
et votre réponse.
A. (La témoin accède à la demande) Oui.
Q. Donc, nest-il pas vrai
en revoyant votre
témoignage écrit au policier, que vous avez indiqué que durant la première fois
il y aurait eu éjaculation?
A. Oui, jai dit ça.
Q. Okay. Donc, je vais vous suggérer
que soit
que vous vous trompiez dans votre témoignage ce matin ou lors de la fois où
vous avez donné votre témoignage au policier.
A.
Jai écrit toutes les choses qui me sont
arrivées et il se peut que ça ne soit pas dans le bon ordre pour cette chose
spécifique, mais ce sont toutes des choses qui me sont arrivées.
[Nous
soulignons].
[13]
Il est important dobserver que lavocat de la défense
na pas demandé directement une explication de lincohérence : il a plutôt
suggéré que la plaignante sétait trompée soit au procès ou à loccasion de
donner sa déclaration au policier. Après avoir reçu la réponse qui est
soulignée ci-dessus, lavocat de la défense au procès na pas poursuivi
lincohérence. Plutôt il sest lancé dans une autre série de questions sans
rapport avec la d
é
claration
é
crite.
[14]
Nous ne donnons pas effet aux arguments de
lappelant que la juge de procès a erré en droit dans son traitement du t
é
moignage de la plaignante. Contrairement
aux représentations de lappelant, la juge de procès a bien considéré les
principes de larrêt
W. (R).
et elle na pas trait
é
le t
é
moignage de la plaignante comme celui dun t
é
moin enfant.
[15]
Au cours de son analyse, la juge de proc
è
s a fait référence aux représentations de
lavocat de la défense : en particulier, que le témoignage de la
plaignante en ce qui concerne si lappelant avait éjaculé pendant le premier
incident des attouchements était contredit par sa déclaration écrite, et que la
déclaration ne contenait pas plusieurs détails quelle a fournis au procès.
[16]
La juge a dit :
En acceptant le manquement de détails sur la
durée et le nombre de fois que les gestes auraient eu lieu et en acceptant son
contredit sur la question de léjaculation de son grand-père la première fois,
japplique les principes dans larrêt
W.R.
qui exigent que le
témoignage dun adulte doit être considéré dans le contexte que les évènements
ont eu lieu en enfance. Selon le témoignage de la plaignante, les gestes de son
grand-père ont eu lieu répétitivement pendant deux ans. Ce nest pas donc
surprenant quelle se serait trompée sur le connexe de certains gestes.
[17]
Dans larrêt
W. (R.)
, la Cour supr
ê
me a expliqu
é
lapproche appropriée envers le témoignage dun adulte qui raconte
les événements v
é
cus pendant son
enfance, à la p. 134 :
Il nest ni souhaitable ni possible détablir
des règles inflexibles sur les situations où il y a lieu dévaluer les
témoignages selon des normes applicables soit aux adultes, soit aux enfants,
car on rétablirait ainsi des stéréotypes aussi rigides et injustes que ceux que
visaient à dissiper les récents changements apportés en droit relativement aux
témoignages des enfants. Quiconque témoigne devant un tribunal, quel que soit
son âge, est une personne dont il faut évaluer la crédibilité et le témoignage
selon les critères pertinents compte tenu de son développement mental, de sa
compréhension et de sa facilité de communiquer. J'ajouterais cependant ce qui
suit.
En règle générale, lorsqu'un adulte témoigne relativement à des
événements survenus dans son enfance, il faut évaluer sa crédibilité en
fonction des critères applicables aux témoins adultes. Toutefois, pour ce qui
est de la partie de son témoignage qui porte sur les événements survenus dans
son enfance, s'il y a des incohérences, surtout en ce qui concerne des
questions connexes comme le moment ou le lieu, on devrait prendre en
considération l'âge du témoin au moment des événements en question.
[Nous
soulignons.]
[18]
Lappelant sappuie sur larrêt
A.M.
, o
ù
cette cour a
conclu
que le juge de proc
è
s a commis une erreur de droit quand il a trait
é
le t
é
moignage de la plaignante comme sil était rendu par un t
é
moin enfant : au para. 25.
[19]
Ici, la juge de proc
è
s na pas fait la m
ê
me
erreur. Elle a attentivement examin
é
le t
é
moignage de la
plaignante. Elle a noté que son t
é
moignage était direct et nétait pas exag
éré
, et que la plaignante était franche quand elle ne se souvenait pas du
nombre de fois ou de la dur
é
e
des gestes, que la plaignante se souvenait des d
é
tails du sous-sol et de latelier de lappelant, y compris limage
dun dauphin accroch
é
e au mur,
et que sa sur navait pas les m
ê
mes souvenirs. La juge a r
é
pondu aux repr
é
sentations
de lavocat de la d
é
fense au
sujet de la d
é
claration
é
crite de la plaignante. Elle na ni ignor
é
ni attribu
é
moins dimportance
à
lincoh
é
rence
à
cause de l
â
ge de la plaignante quand les incidents ont eu lieu. Plutôt elle
a analys
é
le t
é
moignage de la plaignante dans le contexte
n
é
cessaire, et selon les
principes articul
é
s dans
larrêt
W. (R.).
Même si la plaignante était adulte quand elle a
témoigné et quand elle a fait sa déclaration écrite, elle décrivait des év
é
nements qui ont eu lieu répétitivement lors
de son enfance. Pour cette raison, la juge de proc
è
s a accepté quil n
é
tait pas surprenant que la plaignante se soit tromp
é
e sur le connexe de certains gestes.
[20]
La juge de proc
è
s na pas ignor
é
les
directives de la Cour suprême dans larrêt
W. (R.).
Elle a expliqu
é
pourquoi elle a
ttribuait
peu dimportance
à
lincoh
é
rence dans son analyse
du t
é
moignage de la plaignante.
Elle na pas commis derreur de principe dans son
é
valuation de la cr
é
dibilit
é
de la plaignante.
[21]
La juge de procès avait expliqué pourquoi elle rejetait
le témoignage de lappelant et celui de sa femme. Lappelant a témoigné dune
façon contradictoire sur la question du temps quil a passé au sous-sol dans
son atelier quand la plaignante et sa sur étaient en visite, et sur la
question du temps que les petites-filles ont passé au sous-sol. Il na pas
répondu directement aux questions à propos des allégations contre lui. Son témoignage
a changé plusieurs fois sur plusieurs points. Sa femme a témoigné que son mari
nétait jamais seul avec leurs petites-filles et navait jamais travaillé dans
son atelier quand elles étaient là, ce que la juge de procès trouvait inconcevable
quand on prend en considération la fréquence des visites des enfants et le fait
que travailler dans son atelier était le passe-temps de lappelant.
[22]
Lappelant na d
é
montr
é
aucune erreur
de droit dans les motifs de jugement de la juge de proc
è
s. Par cons
é
quent,
lappel des condamnations est rejeté.
Appel de la Peine
[23]
Lappelant fait demande dautorisation dappel
de sa peine de 30 mois en prison. En f
é
vrier 2020, il a été mis en libert
é
sous caution en attendant lissue de lappel apr
è
s avoir pass
é
68 jours en prison.
[24]
Lappelant soul
è
ve deux arguments. Dabord, il soumet que la juge de proc
è
s a err
é
quand elle a rejet
é
la demande de la d
é
fense pour
une peine demprisonnement avec sursis : elle na pas consid
é
r
é
avec attention ses circonstances personnelles, en particulier son
â
ge (il a maintenant 78 ans) et sa mauvaise
sant
é
.
[25]
Nous rejetons cet argument. La juge de proc
è
s na commis aucune erreur de principe ayant
une incidence sur la d
é
termination
de la peine, et la peine nest pas manifestement non indiqu
é
e :
R. c. Lacasse
, 2015 CSC
64, [2015] 3 R.C.S. 1089, au para. 11. Dans ses motifs pour la peine, la juge
de proc
è
s a sp
é
cifiquement fait r
é
f
é
rence
à
l
â
ge et
à
la sant
é
de lappelant pour réduire sa peine. Apr
è
s avoir identifié une fourchette des peines
pour des condamnations similaires entre 3 et 5 ans demprisonnement, elle a
conclu que « ces probl
è
mes
m
é
dicaux et l
â
ge de [lappelant] rendront son
emprisonnement plus difficile que celui dune personne plus jeune et en
meilleure santé. Pour cette raison je lui accorde une r
é
duction. » Elle na ignor
é
ni lâge ni les problèmes de santé de lappelant quand elle a impos
é
une peine de 30 mois. « [L]a d
é
cision daccorder plus ou moins
dimportance
à
des
circonstances aggravantes ou att
é
nuantes rel
è
ve
strictement du pouvoir discrétionnaire du juge qui prononce la peine. » :
Lacasse
, au para. 78. La juge de proc
è
s a prononc
é
une
peine appropri
é
e aux
circonstances du crime et du contrevenant. Et elle na pas err
é
quand elle a rejet
é
une peine demprisonnement avec sursis, en consid
é
rant la gravit
é
et la nature des crimes.
[26]
Deuxi
è
mement, lappelant maintient quune peine demprisonnement avec
sursis devrait être impos
é
e par
cette cour à cause des effets de la pandémie COVID-19. Il sappuie sur le
principe articul
é
dans la cause
R. v. Morgan
, 2020 ONCA 279 : que la COVID-19 a cr
éé
des cons
é
quences indirectes pour les personnes incarc
é
r
ée
s qui peuvent
dans certaines circonstances justifier une intervention dans la peine. Il pr
é
tend que son
é
tat de sant
é
est une
circonstance exceptionnelle dans le contexte de la pandémie.
[27]
Le contexte de la pand
é
mie ne doit pas inciter la cour à r
é
viser une peine autrement appropri
é
e :
R. v. Larivière
, 2020 ONCA 324, aux paras. 16, 17.
M
ê
me si lappelant a 78 ans et
quil a des probl
è
mes de sant
é
, il na offert aucune preuve de ses
circonstances et des risques particuliers quil subirait en prison
à
cause de la pand
é
mie. Par cons
é
quent,
la pand
é
mie ne justifie pas une
r
é
vision de la peine prononc
é
e par la juge de proc
è
s.
[28]
La demande dautorisation dinterjeter appel de
la peine est accordée, mais lappel de la peine est rejeté.
« Paul Rouleau j.c.a. »
« Alexandra Hoy j.c.a »
« K.
van Rensburg j.c.a. »
[1]
La
cour a prononcé un arrêt conditionnel des procédures sur un chef daccusation
dagression sexuelle en conformité avec larrêt
R. c. Kienapple
, [1975] 1 S.C.R. 729.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Zwaan v. Laframboise, 2021 ONCA 583
DATE: 20210827
DOCKET: M52725 (C69721)
Doherty, Huscroft and Roberts JJ.A.
BETWEEN
Sylvia Zwaan
Plaintiff (Respondent in the Appeal)
and
Douglas Laframboise
Defendant (Appellant in the Appeal)
Robert N. Kostyniuk, Q.C., for the plaintiff
(respondent)
Douglas Laframboise, acting in person
Heard: August 25, 2021 by video conference
REASONS FOR DECISION
[1]
The order of Justice Varpio, made on July 15, 2021, adjourning the
proceedings on the specified terms, is clearly an interlocutory order. There is
no appeal to this court. The appeal brought by Mr. Laframboise (Court File No.
C69721) is quashed for want of jurisdiction.
[2]
Costs to the moving party (Sylvia Zwaan), fixed at $4,000, inclusive of
disbursements and relevant taxes.
Doherty J.A.
Grant Huscroft J.A.
L.B. Roberts J.A.
|
Corrected
decision: The text of the original judgment was corrected on September 22, 2021
and the description of the correction is appended.
COURT OF APPEAL FOR ONTARIO
CITATION: 1758704 Ontario Inc. v. Priest,
2021 ONCA 588
DATE: 20210830
DOCKET: C68390
Benotto, Miller and Trotter
JJ.A.
BETWEEN
1758704 Ontario Inc. and 1191305
Ontario Inc.
Plaintiffs
(Respondents/Appellants by way of cross-appeal)
and
Carl Priest
Defendant
(Appellant/Respondent by way of cross-appeal)
AND BETWEEN
Carl Priest and 1737161 Ontario
Limited
Plaintiffs by Counterclaim
(Appellants/Respondents by way of cross-appeal)
and
1758704 Ontario Inc., 1191305
Ontario Inc. and Martin Donkers
Defendants by Counterclaim
(Respondents/Appellants by way of cross-appeal)
Maanit Zemel, for the appellants/respondents
by way of cross-appeal
Krista McKenzie, for the
respondents/appellants by way of cross-appeal
Heard: April 22, 2021 by video conference
On appeal from the judgment of Justice Annette
Casullo of the Superior Court of Justice, dated May 22, 2020, with reasons
reported at 2020 ONSC 3222, and from the costs order, dated August 18, 2020.
Trotter J.A.:
[1]
These appeals arise from the sale of a business.
Almost two years after the deal closed, things went awry. The purchasers/assignees,
who are the appellants in this appeal, defaulted on a promissory note, secured
by certain assets (i.e., heavy construction equipment). Without notice, the respondents/cross-appellants
(hereafter the respondents) seized these assets from the appellants, putting
them out of business.
[2]
The respondents sued for the money still owing.
The appellants filed a counterclaim pleading breach of contract, intentional
interference with economic relations, and the tort of conversion based on the
seizure without notice.
[3]
In the main action, the trial judge granted
judgment in favour of the respondents, based on the unpaid debt. She also
dismissed the appellants counterclaim, based on her conclusion that the
respondents were not required to provide notice to the appellants prior to seizing
the assets.
[4]
The appellants originally appealed from the
judgment against them in the main action and from the dismissal of the
counterclaim. However, at the oral hearing, they focused solely on the
counterclaim. The respondents appeal the trial judges award of damages.
[5]
I would allow the appeal from the dismissal of
the counterclaim. At common law, and under the terms of the Asset Purchase Agreement
(APA) entered into by the parties, the appellants were entitled to notice
before the equipment was seized. This amounted to a breach of contract. I would
remit the case to the Superior Court for an assessment of damages. As I see no
error in the trial judges assessment of damages in the main action, I would
dismiss the cross-appeal.
A.
BACKGROUND FACTS
(1)
Overview
[6]
The appellants are 1737161 Ontario Ltd. (173
Ltd.) and its principal, Carl Priest. The respondents are 1758704 Ontario Inc.
(175 Inc.) and 1191305 Ontario Inc. (119 Inc.) and their principal, Martin
Donkers.
[7]
In May 2010, the numbered companies entered into
an APA, whereby 173 Ltd. Agreed to purchase the assets of 175 Inc. and 119 Inc.
[8]
The APA covered two key transactions. First, 173
Ltd. Agreed to purchase all the assets set out in Schedule A of the APA (the
purchased assets). This purchase was to be satisfied through a promissory note
in the amount of $558,740.00, plus 7% annual interest, which Mr. Priest
personally guaranteed. The note was payable by monthly blended installments
from June 2010 to May 2013.
[9]
Second, 173 Ltd. Agreed to assume a number of third-party
leases from 175 Inc. for several pieces of equipment (the leased equipment),
as set out in Schedule B of the APA. 173 Ltd. Was to assume the leases for a
loader and an excavator and make all subsequent payments directly to the
lessor, John Deere. 173 Ltd. Was to assume the lease for a truck and trailer
and make monthly payments to 175 Inc., which would remit the payments to the
lessor, General Electric.
[10]
The numbered companies executed a General
Security Agreement (GSA), which secured payment under the promissory note and
granted the corporate respondents security over the purchased assets and leased
equipment. The GSA was registered under the
Personal Property Security Act
,
R.S.O. 1990, c. P.10 (
PPSA
).
(2)
The First Default: The Leased Equipment
[11]
173 Ltd. Properly assumed the lease for the loader and made all required
payments to John Deere until it was paid off in December 2011. 173 Ltd. Also
properly assumed the lease for the truck and trailer and made all required
payments to 175 Inc. until the truck and trailer were seized in December 2012.
[12]
However, 173 Ltd. Never properly assumed the lease for the excavator.
The circumstances surrounding the failed assumption are immaterial. Suffice it
to say, 173 Ltd. Took possession of the excavator, but made no payments on the
lease. This resulted in arrears for which 175 Inc. was ultimately responsible
to John Deere.
[13]
In April 2012, the respondents gave the appellants notice that there
was $115,399.12 owing in arrears under the APA and GSA for the unassumed excavator
lease. The notice advised that the respondents considered the arrears an
occurrence of an event of default and, as a result, the arrears for the excavator
lease, the amount outstanding under the truck and trailer lease, and the amount
outstanding under the promissory note became due and payable in full. The notice
further advised the appellants that they had 10 days to satisfy the excavator
arrears in full, failing which the respondents would seize the appellants
assets and sue for any shortfall.
[14]
The appellants made no payments towards the excavator arrears but
continued to make monthly payments under the truck and trailer lease, and the promissory
note until November 2012.
(3)
The Second Default: The Promissory Note
[15]
The appellants made every payment under the promissory
note from June 2010 to October 2012. However, on November 18, 2012, the
appellants gave Mr. Donkers a cheque for the truck and trailer lease, but made
no payment on the promissory note. Instead, Mr. Donkers received an unsigned
letter advising him that the appellants were in the final stages of obtaining
funding to satisfy the remaining seven payments on the promissory note. The
letter asked Mr. Donkers to call Mr. Priest to discuss.
[16]
On November 19, Mr. Donkers emailed Mr. Priest
about the missing cheque. Mr. Priests response merely referenced the letter
and asked Mr. Donkers to call him. Mr. Donkers replied by email, telling Mr.
Priest that putting together financing to pay the balance was up to him. There
is no evidence of any further discussion on the outstanding payment.
(4)
Seizure and Sale of Assets and Equipment
[17]
On December 8 and 9, 2012, the respondents seized
173 Ltd.s assets, including some of the purchased assets, the truck and trailer,
and the loader. The respondents did not give the appellants notice; the appellants
discovered that their equipment was gone on December 10, 2012 and called the
police.
[18]
On December 14, 2012, the appellants received a
Notice to Retain Articles from Lloyds Bailiff Services.
[1]
The Notice advised 173 Ltd. Of
the following: Lloyds intended to retain the seized articles; 173 Ltd. Owed
175 Inc. and 119 Inc. $132,634 for late payments; and Lloyds would be
charging ongoing storage fees at $900 per day, or $27,000 per month. The equipment
was stored at Call Service Towing/Classic Towing and Storage (Call Service),
and the storage fees from the date the assets were seized to the date they were
sold totalled $160,200.
[19]
Shortly after the seizure, Mr. Donkers began running
another business out of the same address as Call Service and used Call Service
to store some of his own equipment. Mr. Donkers storage costs were considerably
less: $1,500 per month for roughly 35% less space than that required to store
the seized assets.
B.
Procedural History
[20]
This litigation has been lengthy, rancorous, and
messy. Although there were multiple actions and many steps in the litigation
prior to trial, two events are relevant to the issues on appeal: (a) an appeal
to this court (March 17, 2014) from an order granting partial summary judgment
to 175 Inc. and 119 Inc.; and (b) a default judgment granted on February 28,
2017 (which was later set aside).
(1)
Partial Summary Judgment
[21]
In June of 2013, in an action brought by 175 Inc.
and 119 Inc. against Mr. Priest, the companies moved for summary judgment on
the promissory note. McDermot J. granted partial summary judgment in which he
found Priest had defaulted on the promissory note but ordered a trial on the
issue of damages. He also struck Mr. Priests Statement of Defence:
1758704
Ontario Inc. v. Priest
, 2013 ONSC 5395, 1 P.P.S.A.C. (4
th
) 279.
[22]
On appeal, this court agreed with McDermot J.s
finding that Mr. Priest defaulted on the promissory note, holding there can be
no dispute about that fact:
1758704 Ontario Inc. v. Priest
, 2014 ONCA
202, at para. 4. However, the court set aside the part of McDermot J.s order
that struck Mr. Priests Statement of Defence. The court further held that,
the appellant is not precluded from arguing, on the return of the injunction
application and the trial of the issue, that the seizure and sale of the assets
was unlawful and should prevent the respondents recovery of any deficiency
from the appellant (at para. 8). This decision is referenced in the trial
judges reasons, discussed below.
(2)
The Default Judgment
[23]
The underlying actions were consolidated in
April 2014 and the respondents issued and served a consolidated Statement of
Claim on July 15, 2016. After failing to file a Statement of Defence, the
appellants were noted in default on August 30, 2016, and the respondents
appeared before Mulligan J. on February 28, 2017, on a default judgment motion.
The appellants did not attend the hearing and Mulligan J. awarded the
respondents $368,339.79 in damages, calculated as follows:
·
$161,943.65 in damages for the outstanding
principal and interest owing under the Promissory Note, calculated from the
date of default until the date of the default judgment hearing, plus 7% annual
interest from the date of judgment; plus
·
$189,804.49 in damages for the outstanding
principal and interest owing under the excavator lease, after deducting credits
from John Deeres sale of the equipment, plus 7% post-judgment interest; plus
·
$50,814.84 in damages for the outstanding
principal and interest owing under the truck and trailer lease, plus 7%
post-judgment interest; and minus
·
$34,223.19 in credit to the appellants,
representing the difference between the respondents expenses ($236,082.65) and
amount the respondents recovered after selling the seized equipment ($
270,305.84)
.
[24]
The default judgment was set aside on an unopposed
motion. At a subsequent appearance before Di Tomaso J. on June 14, 2019, he
made an order, on consent, issuing a Writ of Seizure and Sale against the
appellants for $383,409.79, being roughly the amount awarded under the default
judgment.
C.
the trial judges reasons
[25]
After reviewing the evidence, the trial judge
referred to this courts earlier decision in this litigation and framed the
issues before her as follows (at para. 86):
Mr. Priests failure to make the November
payment on the Promissory Note has already been judicially determined to be a
default, of which I am in full agreement. Pursuant to the GSA, any default
permitted Mr. Donkers to pursue the remedies contained in the GSA, including
seizure and sale. Thus, the issues before me are:
1.
Was notice required prior to the 2012 seizure?
2.
If not, what damages flow from the default?
(1)
Notice
[26]
The trial judge found that, by operation of the
PPSA
,
the respondents were not required to give the appellants notice of their
intention to seize the equipment as a result of the default on the promissory note.
[27]
The trial judge rejected the appellants argument that the duty
of good faith in the performance of contracts obliged Mr. Donkers to tell Mr.
Priest that he considered the missed November 2012 payment a default on the promissory
note and that he intended to seize the equipment: see
Bhasin
v. Hrynew
, 2014 SCC 71, [2014] 3 S.C.R. 494;
C.M.
Callow Inc. v. Zollinger
, 2020 SCC 45, 452 D.L.R. (4
th
) 44.
[28]
Consequently, the trial judge dismissed the
counterclaim.
(2)
Damages
[29]
The trial judge re-calculated the quantum of
damages. She resisted the respondents invitation to simply endorse the
accounting of Mulligan J. on the default judgment. The trial judge said (at
para. 99): I concur to a certain degree, but adjustments are required. Recall
that Mulligan J. was presented only with Mr. Donkers version of events; I have
had the benefit of a full trial, with submissions from all parties. While
Mulligan J. had calculated damages in the amount of $368,339.79, the trial
judge awarded $200,865.48.
[30]
Additionally, the trial judge found the
appellant Priest to be jointly and severally liable with 173 Ltd. For the failure
to assume the excavator lease.
(3)
Writ of Seizure and Sale
[31]
As for the Writ in the amount of $383,409.79, the
trial judge waived the requirements under r. 60.07(18) of the
Rules of Civil
Procedure
, R.R.O. 1990, O. Reg. 194, which provides that no sale of real
property may proceed until six months after the writ has been filed with the
sheriff.
(4)
Costs
[32]
The trial judge ordered $137,812.65 in costs
against the appellants on a joint and several basis.
D.
ISSUES ON APPEAL
[33]
The appellants appeal the dismissal of the
counterclaim on the notice issue. In the alternative, they submit that the
trial judge erred in finding Mr. Priest personally liable for failing to assume
the excavator lease. Finally, they appeal the decision to waive the six-month
waiting period under the Writ of Seizure and Sale.
[34]
The respondents appeal the trial judges
calculation of damages, urging this court to substitute the order of Mulligan
J.
E.
ANALYSIS
(1)
Notice Was Required
[35]
In my view, the appellants were entitled to
notice prior to the seizure of the collateral, at common law and pursuant to
the APA.
[36]
The APA, promissory note, and GSA all include
provisions relevant to an event of default.
[37]
The APA provides that, if 173 Ltd. Defaults on
any payments under the Agreement, the respondents must give 173 Ltd. 15 days
notice before seizing the purchased assets. The leased equipment is excluded
from this provision.
[38]
The promissory note includes an acceleration
clause in the event of default, such that the entire unpaid balance and accrued
interest becomes payable immediately. It contains no notice requirement.
[39]
Similarly, the GSA makes any outstanding
obligations including those under the promissory note and equipment leases
immediately payable in full upon default. It also specifies the remedies
available to the respondents, including the right to enter any premises where
the purchased assets or leased equipment are located, and to repossess and sell
those items. Like the promissory note, the GSA stipulates no notice
requirement.
(a)
The
PPSA
[40]
In my respectful view, the trial judge erred in
finding that the
PPSA
relieved the respondents of the obligation to give
the appellants notice of its intention to seize the secured assets.
[41]
Part V of the
PPSA
provides rights and
remedies to a creditor upon default of a debtor. More specifically, s. 62 gives
the creditor the right to take possession of the secured goods, unless
otherwise agreed, or if the secured goods are equipment, the right to render
the equipment unusable, but without removing it from the debtors premises.
Section 63 then grants the creditor the right to dispose of the secured goods,
provided the creditor gives the debtor at least 15 days advance notice, in
writing: s. 63(4). However, pursuant to s. 63(7)I, no notice is required under
s. 63(4) where the goods are of a type customarily sold on a recognized market.
[42]
Relying on
Lloyds Bank Canada v. Transfirst
Inc.
, 71 O.R. (2d) 481 (Ont. H.C.) and
AJM Leasing v. Brown
(2002), 6
P.P.S.A.C. (3d) 58 (Ont. S.C.), the trial judge was satisfied the seized assets
fell within the exception under s. 63(7) of the
PPSA
; therefore Mr.
Donkers had no obligation to give Mr. Priest notice.
[43]
In my view, s. 63(7)I of the
PPSA
had no
application in the circumstances; it could not relieve the respondents of its
common law obligation to provide notice to the appellants, and its contractual
obligation under the APA.
[44]
Looking at the scheme of the
PPSA
as a
whole, s. 62 (Possession Upon Default) addresses the rights of creditors in
terms of seizing secured assets, whereas s. 63 (Disposal of Collateral)
speaks to disposition. In Jacob S. Ziegel, David L. Denomme & Anthony
Duggan,
The Ontario Personal Property Security Act Commentary and Analysis
,
3
rd
ed. (Toronto: LexisNexis, 2020), the authors describe the
operation of s. 63, at p. 486: Once the secured party has repossessed the
collateral it will typically proceed with its disposition either directly or
through a receiver. Section 63 is concerned with all aspects of the disposal
process.
[45]
Although the trial judge may have been correct
in finding that the seized equipment was fungible for the purposes of s. 63(7)I,
the provision has no application at the pre-seizure stage. The respondents were
required to give notice at common law, and according to the terms of the APA.
(b)
Common Law Duty
The Principle in
Lister
v. Dunlop
[46]
The trial judge did not consider the position
advanced by the appellants on the common law obligation to give notice to a
debtor before seizing secured assets. This principle was adopted in Canada in
R.E.
Lister Ltd. V. Dunlop Canada Ltd.
, [1982] 1 S.C.R. 726. Writing for the
Court, Estey J. said, at p. 746:
The rule has long been that enunciated
in
Massey v. Sladen
(1868), L.R. 4 Ex. 13 at 19, 38 L.J.
Ex. 34: the debtor must be given some notice on which he might reasonably
expect to be able to act. The application of this simple proposition will
depend upon all the facts and circumstances in each case. Failure to give such
reasonable notice places the debtor under economic, but nonetheless real
duress, often as real as physical duress to the person, and no doubt explains
the eagerness of the courts to construe debt-evidencing or creating documents
as including in all cases the requirement of reasonable notice for payment.
[47]
See also
Royal Bank of Canada v. W. Got &
Associates Electric Ltd.
, [1999] 3 S.C.R. 408, at p. 417, where it is
applied in a debt collection action that shares some similarities with this
case.
[48]
In
Kavcar Investments Ltd. V. Aetna Financial
Services Ltd.
(1989), 70 O.R. (2d) 225 (C.A.), this court applied and
clarified the
Lister
principle. McKinlay J.A. wrote that it applies,
regardless of the wording of the security document (at p. 228) and that [r]easonable
time must be given by the creditor, whether or not asked for by the debtor (at
p. 235). See also
Waldron v. Royal Bank
(1991), 53 B.C.L.R. (2d) 294 (B.C.C.A.),
at p. 7,
per
Lambert J.A.
[49]
In
Kavcar
and
Got Electric
, both
courts considered what constitutes reasonable notice in the circumstances. However,
it is not necessary to address that issue in this case because, as discussed
below, no notice was given at all.
[50]
The
Lister
principle has been embedded in
Canadian debtor-creditor law for decades. This reality is important when
considering the reach and effect of the
PPSA
. The respondents submit
that it has been ousted by the
PPSA
. Even if I were to accept the respondents
interpretation of s. 63(7) of that Act, there is no basis to conclude that the
Legislature intended to extinguish the
Lister v. Dunlop
line of
authority:
Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp
.,
2020 SCC 29, 41 B.C.L.R. (6
th
) 1, at para. 39;
Parry Sound (District)
Social Services Administration Board v. O.P.S.E.U., Local 324
,
2003 SCC 42
, [2003] 2
S.C.R. 157, at para.
39
. In
Goodyear
Tire & Rubber Co. of Canada Ltd. V. T. Eaton Co. Ltd.
, [1956] S.C.R.
610, at p. 614, Fauteux J. (as he then was) wrote, a Legislature is not
presumed to depart from the general system of the law without expressing its
intentions to do so with irresistible clearness, failing which the law remains
undisturbed.
[51]
In my view, the
Lister v. Dunlop
line of
cases remains undisturbed by the
PPSA
.
Application to
his Case
[52]
Despite their assertion that they were under no
duty to give the appellants notice, the respondents submit that they did give
reasonable notice to the appellants. In their Factum, they assert, The Trial
Judge found as a fact that there was a demand for payment and notice of default
given by the Respondents to the Appellants on April 20, 2012.
[53]
This is a distortion of the trial judges
reasons. She found that the seizure of the equipment was
not
based on
the April 2012 Notice. The trial judge found that the respondents did not take
any steps on that notice and, [m]atters continued on much as they had for the
previous two years (at para. 33).
[54]
The trial judge rejected Mr. Donkers evidence
that he had always intended to seize the equipment on the strength of the earlier
notice. He testified that he waited until after the summer because he did not
want to harm the appellants business. The trial judge rejected this evidence,
holding that it did not ring true, especially since the respondents were
forced to pay more than $100,000 in relation to the excavator lease.
[55]
The trial judge concluded her analysis of this
aspect of the facts in the following way: Given the deficiencies contained in
the 2012 Notice,
had Mr. Donkers relied upon it to seize equipment
, he
would have been on tenuous ground. Fortunately for Mr. Donkers, and
unfortunately for Mr. Priest, however, a second breach intervened (at para. 55).
In relation to the second default, the trial judge made the following finding,
at para. 63:
Mr. Donkers seized the defendants assets over
the weekend of December 8, 2012.
Priest was not given notice of the seizure,
nor was he given an opportunity to cure the default or redeem the equipment
before seizure.
[Emphasis added.]
[56]
Consequently, the question of reasonable notice
was tethered to the November 2012 default on the promissory note, not the April
2012 default concerning the excavator lease. Indeed, the trial judge found that
Mr. Donkers acted out of spite when he did not tell Mr. Priest he was treating
the missed payment as a default (at para. 96).
[57]
The trial judge erred in dismissing the
counterclaim. As the Supreme Court held in
Got Electric
at paras. 20-21,
the seizure of assets without notice amounts to a breach of contract. The same
set of circumstances may also support an action for the tort of conversion. In
that case, the Court decided that it was unnecessary to consider whether
conversion was made out because the quantum of damages would not differ,
whether liability sounded in contract or in tort (at pp. 418-419). Here too,
having found that the respondents conduct amounted to a breach of contract,
it is not necessary to address the tort claim.
(c)
Notice Requirement in the APA
[58]
In addition to the common law doctrine discussed
above, the appellants rely upon the APA, which also provides a duty to give
notice in the event of default. Para. 3.03 of the APA provides:
3.03 That
upon default of any payment
owing hereunder
the
Vendor shall forthwith provide notice of such default to the Purchaser
or
its solicitor by fax or by electronic communication at fax numbers or email
addresses to be designated by the Purchaser.
Upon such default existing for
a period of fifteen (15) days following receipt notification of such default
,
the Vendor shall thereafter be entitled to forthwith have all licences and
certificates howsoever related to the assets included hereunder reverted back
to name of the Vendor or as it might direct which to such reversion of said
licences and certifications the Purchaser does hereby consent and agree.
Further in the event of such default, the Vendor shall have the right to seize
all chattels and assets included hereunder pursuant to its security
documentation however to mitigate its losses and without interference from the
Purchaser. [Emphasis added.]
[59]
The trial judge did not address this provision
in her reasons. The appellants submit that the trial judge erred in failing to
give effect to this provision in relation to the default on the promissory
note. The respondents submit that the notice provision in Article 3.03 is
inapplicable because it merged on closing.
[60]
I would reject the respondents submissions. The
notice provision in Article 3.03 remained operative. It did not merge upon
closing.
[61]
Although the doctrine of merger has some
application to real property transactions (see
Fraser-Reid v. Droumtsekas
,
[1980] 1 S.C.R. 720, at pp. 734-738), [t]he doctrine has never applied to
transactions involving personal property, such as goods: G.H.L. Fridman,
The
Law of Contract in Canada
, 6
th
ed. (Toronto: Thomson Reuters
Canada Limited, 2011), at p. 566. Moreover, even when applicable, merger is not
automatic; it is the intentions of the parties that must prevail:
Fraser-Reid
,
at p. 738. This is a fact-specific inquiry.
[62]
In this case, the inclusion of Article 3.03 would
make no sense if it were to merge upon closing. The entire transaction, for
both purchased and leased equipment, was structured on installment payments to
satisfy outstanding debt. It provided that, in the event of default of any
payment owing hereunder, the respondents would have certain remedies, and the
appellants would be entitled to notice.
[63]
The respondents breached this term of the APA.
(d)
Conclusion
[64]
For the foregoing reasons, the trial judge erred
in finding that the respondents had no duty to give the appellants notice upon
the default on the promissory note.
[65]
The failure to provide notice was not an
academic exercise or a mere formality in this case. The record before the trial
judge established that, in October 2012, the appellants applied to their bank
for financing to retire the balance on the promissory note, which was roughly
$120,645 at the time. Just days after the illegal seizure, on December 12,
2012, the bank approved the advance of $122,000.
[66]
Given my conclusion that the appellants were
entitled to notice at common law and according to the terms of the APA, it is
not necessary to address the appellants alternative argument that the duty of
good faith in the performance of contracts required the respondents to give
notice of its intention to seize the appellants assets. The application of
this duty would be especially difficult in this case given the trial judges apt
finding, at para. 95: To be frank, both parties acted dishonourably.
[67]
I would set aside the trial judges order
dismissing the counterclaim, allow the counterclaim, and remit the matter to
the Superior Court for an assessment of damages. During her submissions at the
hearing, appellants counsel advised us that the matter could be addressed in
writing because the trial judge heard all of the evidence relevant to this
issue. While that may well be the case, the matter of how to proceed is best
determined by that court.
(2)
Personal Liability and the Excavator Lease
[68]
The trial judge found that both 173 Ltd. And Mr.
Priest were liable for failing to properly assume the excavator lease. At para.
48 of her reasons, the trial judge found, [b]ased on the evidence before me, I
am satisfied that Mr. Priest failed to assume the Excavator lease pursuant to
the Agreement. She awarded damages against both 173 Ltd. And Priest. This
finding may well have been inadvertent, a simple result of failing to
distinguish between Priest and his company.
[69]
Nonetheless, I agree with the appellants that
the trial judge erred in awarding damages against Mr. Priest personally. Mr.
Priest was not a party to the APA. Although he was personally liable on the
promissory note, the note only applied to purchased assets, not leased
equipment. In the absence of findings that would support a decision to pierce
the corporate veil, and there were none, this part of the trial judges order
cannot stand.
(3)
Damages
[70]
The respondents appeal the trial judges
calculation of damages. As noted above, at para. 29, the trial judge made
adjustments to Mulligan J.s calculations. She did so because she had the
benefit of a more robust record, including input from both sides. The trial
judges assessment of damages must be accorded significant deference unless
tainted by an error in principle, or is unreasonably high or low:
Awan v.
Levant
, 2016 ONCA 970, 133 O.R. (3d) 401, at paras. 100-101 and
Whitefish
Lake Band of Indians v. Canada (Attorney General)
, 2007 ONCA 744, 87 O.R.
(3d) 321, at para. 28. The respondents have failed to identify any such error.
Promissory Note
and Excavator
[71]
The trial judge accepted Mulligan J.s
calculations and only adjusted the amount to reflect interest to date.
Loader
[72]
Although Mulligan J. did not address the loader
in his endorsement, the trial judge determined the loader was sold for $15,000
less than it was worth. Mr. Donkers commissioned three appraisals for the loader,
which averaged out at $49,000. However, the loader was only sold for $34,000.
The trial judge also noted the fact the loader was sold to the owner of Call
Service rendered the sale questionable. She granted Mr. Priest a $15,000
credit for the sale of the loader.
[73]
In my view, it was in the trial judges purview
to make this finding.
Truck and
Trailer
[74]
Mulligan J. awarded $50,814.84 in damages for
the outstanding payments on the truck and trailer lease, plus interest. The
trial judge rejected this award and removed the amount from her consideration
of damages. She noted that there was $33,661.33 outstanding on the lease
between the seizure and sale of the truck and trailer. General Electric
repossessed the truck and trailer from Mr. Donkers and consigned them to a
third party, which sold the equipment at auction for $101,500. The third party
paid General Electric the outstanding $33,661.33 and remitted the remaining
$65,538.67 to Mr. Donkers. That amount was then properly credited to Mr.
Priest. Since Mr. Donkers was never required to make any payments to General
Electric for the truck and trailer, there was no basis upon which to award him
$50,814.84 in damages.
[75]
I agree with the trial judges assessment of
this issue.
Storage Costs
[76]
Mulligan
J. approved the respondents expenses at $236,082.65, which included $160,200
for the 178 days the seized assets were stored at Call Service. However, the
trial judge found the $900 per day storage fee was excessive. Mr. Donkers had
eight months (from April 2012, when the appellants received the 2012 Notice, to
December 2012, when the respondents seized 173 Ltd.s assets) to find a
suitable facility at a reasonable rate, yet there was no evidence he made any
effort to look elsewhere than Call Service. Considering the rate Mr. Donkers
was paying to store his own equipment with Call Service, the trial judge
concluded $10,000 was a reasonable monthly fee, for a total of $60,000 for the
roughly six months the seized assets spent in storage. Accordingly, she gave
Mr. Priest a $100,200 credit, representing the excessive storage fees.
[77]
It
was unclear whether interest applied to the Call Service storage costs that Mr.
Donkers personally guaranteed. Accordingly, the trial judge held that if Mr.
Donkers satisfied Mr. Priests counsel that interest applied, it would be
calculated at the rate set out in s. 127 of the
Courts of Justice Act
,
R.S.O. 1990, c. C-43.
[78]
Again,
I see no error in the trial judges approach.
(4)
The Writ of Seizure and Sale
[79]
Given that this case must be returned to the
Superior Court for an assessment of damages on the counterclaim, the writ is
set aside altogether. It is not necessary to consider the issue of waiver.
F.
conclusion
[80]
I would allow the appellants appeal against the
dismissal of its counterclaim and remit the case to the Superior Court for an
assessment of the appellants damages. I would dismiss the cross-appeal against
the trial judges award of damages in the main action.
[81]
Both parties agreed that the successful party is
entitled to costs of the appeal in the amount of $20,000, plus disbursements
and HST. Costs are awarded to the appellants in this amount.
[82]
As for the costs awarded at trial, the parties
are content that they be addressed in the Superior Court in conjunction with
the assessment of damages on the counterclaim.
Released: MLB August 30, 2021
Gary Trotter J.A.
I agree. M.L. Benotto J.A.
I agree. B.W. Miller J.A.
Erratum
Correction made September 22, 2021: The
phrase inclusive of disbursements and HST in paragraph 81 was replaced with
plus disbursements and HST.
[1]
Note that the bailiff in this case used the wrong form. This notice
was under the
Repair and Storage Liens Act
, R.S.O. 1990, c. R.25. Where
creditors seek to secure payment of a debt by taking a security interest in
property of the debtor, they must issue a Notice of Intent to Enforce
Security pursuant to the
PPSA
.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Bakal, 2021 ONCA 584
DATE: 20210830
DOCKET: C67651
Fairburn A.C.J.O., Juriansz and Paciocco JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Mustafe Bakal
Appellant
Lance Beechener, for the appellant
Jeffrey Pearson, for the respondent
Heard: February 10, 2021 by video conference
On appeal from the convictions entered by Justice John M.
Johnston of the Superior Court of Justice on July 3, 2019.
Fairburn A.C.J.O.:
A.
OVERVIEW
[1]
In the early morning hours of August 13, 2017, a
woman called 911 to report that she had just been assaulted by the appellant, Mustafe
Bakal, who was her boyfriend at the time. She told the 911 operator that the
appellant had just left the apartment with a firearm in the waistband of his
pants. That 911 call precipitated a quick police response.
[2]
With the assistance of the appellants cell
phone service provider, Detective Constable (D.C.) Meredith of the Toronto
Police Service (T.P.S.) was able to successfully track the appellants phone
moving in an eastbound direction from Toronto toward Ottawa. The tracking
information was conveyed to the Ontario Provincial Police (O.P.P.), who were
then able to locate the appellant and his brother travelling in a vehicle on
Highway 401 just east of Kingston, Ontario. The police stopped the vehicle and arrested
the appellant for assault.
[3]
When the vehicle was searched incident to the arrest
for assault, a vacuum-sealed package of what was believed to be cocaine was located
in a hidden compartment in the trunk. The police then stopped the search and
obtained a telewarrant for further inspection, after which they discovered two loaded
firearms hidden in a locked compartment in the centre console of the vehicle.
[4]
At their trial for multiple firearm and drug related
offences, the appellant and his brother alleged
various
violations of the
Canadian Charter of Rights and Freedoms
, seeking the
exclusion
of all evidence seized from the motor vehicle. While the appellants brother
succeeded in that pursuit (including in relation to a serious s. 10(b) breach
that the trial Crown acknowledged), the appellant did not. Ultimately, the
appellant was convicted of multiple drug and firearm counts, resulting in a global
custodial sentence of six years. The charges against his brother were dismissed.
[5]
This appeal is predicated on three alleged errors said to have been made
by the trial judge. Two of those errors are said to be rooted in the trial
judges reasons for dismissing the appellants s. 8
Charter
application. The appellant contends that the trial judge erred by concluding
that: (1) the exigent circumstances doctrine justified the warrantless tracking
of his cellular phone; and (2) the search incident to arrest doctrine justified
the initial warrantless search of the motor vehicle.
[6]
The third alleged error relates to what the appellant argues was the
improper admission of expert evidence at trial related to drug pricing and jargon.
The appellant maintains that if this court concludes that the expert evidence should
not have been admitted, then acquittals must be entered because, without that
evidence, the verdicts were necessarily unreasonable. Conversely, if the expert
evidence was properly admissible, the appellant acknowledges that the
reasonableness of the verdicts cannot be questioned.
[7]
For the reasons that follow, I would dismiss the appeal.
B.
The
General Facts Leading up to the Police Response
[8]
Shortly before 3 a.m. on August 13, 2017, the complainant called 911 to
report that she had just been assaulted by her boyfriend. The complainant
conveyed to the 911 operator that, after assaulting her, the appellant had left
the apartment with a gun in the waistband of his pants. The complainant said
that the appellant always carried his gun with him and, while he had
threatened her with his gun in the past, he had not specifically done so that
night. Rather, the appellant had told the complainant that he was going to cho[ke]
[her] and put [her] to sleep and throw [her] over the balcony.
[9]
The complainant told the 911 operator that the appellant had taken a
suitcase containing her belongings with him when he left the apartment. While
she did not know where the appellant had gone, she said that he had family in
both Toronto and Ottawa. She also provided his cell phone number.
[10]
Shortly after the 911 call was made, Constable (Cst.) Cicchirillo of
the T.P.S. arrived at the apartment. The complainant provided him with a few
additional details, including about the assault and firearm. She said that the assault
occurred in the bedroom and included the appellant banging her head against the
wall multiple times, pushing her onto the bed, and choking her with both of his
hands. The complainant also explained that the appellants gun was on the bedside
table during the assault and that she didnt want to get shot. When asked
whether the appellant threatened her with the gun, she said: No, but it was
right there at the time. She described the gun as resembling Cst.
Cicchirillos service firearm.
C.
The Warrantless Tracking of the Appellants Cell Phone
(1)
The Facts Leading up to the
Pinging of the Cell Phone
[11]
D.C. Meredith worked as an investigator in the Major
Crime Unit of the T.P.S. While it was unusual for an investigator in that unit to
be involved in a domestic allegation, D.C. Meredith got involved because of the
information about the gun.
[12]
After listening to the information being
conveyed over the police radio and speaking with Cst. Cicchirillo (who had just
spoken to the complainant), D.C. Meredith formed the view that it was critical for
public safety that the appellant be located as quickly as possible. In his view,
this required the use of an investigative technique known as pinging, a
colloquial term used to refer to an exchange of signals between a cell phone
tower and a cell phone. As cell phone towers only cover a certain geographical radius,
the exchange of signals can provide information about the general location of
the cell phone at the time the signal exchange occurs:
R. v. Grandison
, 2016 BCSC 1712, 342 C.C.C. (3d) 249, at paras. 64-65.
[13]
Given D.C. Merediths opinion about the urgency
of the situation, he asked a T.P.S. civilian supervisor to contact the
appellants telecommunications provider to request the companys assistance in pinging
the appellants cell phone. The civilian supervisor declined to do so because,
in his view, there was no urgency associated with finding the appellant and the
matter could wait until judicial authorization had been obtained.
[14]
In contrast, it was D.C. Merediths belief that
time was of the essence: there was a male who was unlawfully in possession of
a firearm who had just committed an offence of violence while he had the
firearm and it was in the public interest
and for the public safety to get
the firearm and, if I didnt,
Id be in neglect of my duty. Accordingly, D.C.
Meredith contacted the telecommunications company himself and asked for its assistance
in locating the appellants phone. The company agreed to assist. Over the next
short while, the pings demonstrated that the appellants cell phone was
moving in an eastbound direction along Highway 401. That information was
conveyed to the O.P.P., allowing officers to locate the vehicle in which the
appellant was travelling.
(2)
The Trial Judges Reasons
[15]
The appellant claimed at trial that his s. 8
Charter
rights had been infringed when his cell phone was tracked without a warrant. He
argued that there were no exigent circumstances that could justify this
warrantless tracking, given that the complainant was safe and in police
protection at the time that the pinging occurred. As there was no immediate
risk of danger, the police should have been required to obtain a warrant before
tracking his cell phone.
[16]
The trial judge dismissed that argument,
concluding that, while the complainant may well have been safe, exigent
circumstances remained. Given the appellants history of violence, his
assaultive behaviour that night, the proximity of the firearm to the acts of
violence, and the placement of the firearm in the waistband of the appellants pants
when he left the apartment, the trial judge determined that there was a strong
inference that the appellant was prepared to use the firearm on short notice.
In these circumstances, the trial judge concluded that exigent circumstances
justified the warrantless tracking of the appellants cell phone in an effort
to locate him.
(3)
The Appellants Argument on Appeal
[17]
For the most part, the appellant repeats on
appeal the same argument he advanced before the trial judge. He maintains that,
given the complainant had been moved out of harms way, there were no objective
circumstances justifying the warrantless search. The appellant emphasizes that there
was no suggestion that he used or threatened to use the gun during the alleged assault
of the complainant, and he did not threaten to shoot or harm anyone after he
left the apartment. Therefore, the appellant says that there was nothing that
could justify a warrantless tracking of the appellants cell phone.
(4)
Exigent Circumstances Justified the Warrantless Tracking
[18]
In the normal course, the police need prior
judicial authorization to track a cell phone, which in turn provides
information about an individuals whereabouts:
Criminal Code
, R.S.C. 1985, c. C-46, s. 492.1(2). The question for determination
on appeal is whether the warrantless approach taken was justified on the basis
that the police were operating in exigent circumstances. I see no error in the
trial judges conclusion that this was the case.
[19]
This warrantless search doctrine, involving as
it does exigent circumstances, is not designed to promote efficiency or
expediency. Rather, its singular purpose is to accommodate those situations
where the state can forgo obtaining prior judicial authorization because of the
urgency of the matter at hand. In particular, the police can act without prior
judicial authorization where there exists an imminent threat to police safety
or public safety or in circumstances where there exists a risk of imminent loss
or destruction of evidence:
R. v. Paterson
,
2017 SCC 15,
[2017] 1 S.C.R. 202,
at paras. 32-33;
R. v.
Feeney
,
[1997] 2 S.C.R. 13,
at para. 52;
R.
v. Kelsy
, 2011 ONCA 605, 280 C.C.C. (3d) 456, at para.
24.
[20]
The exigent circumstances doctrine has deep
roots in both the common law and statute: see e.g.
Criminal Code
ss. 117.02, 487.11, 529.3;
Controlled Drugs and
Substances Act
, S.C. 1996, c. 19, s. 11(7). While the
respondent made reference on appeal to the fact that the warrantless tracking
of the appellants cell phone was provided for under s. 117.02(1)(b) of the
Criminal
Code
, I will only briefly address this point as no submissions
or authorities were provided to justify that suggestion.
[21]
Undoubtedly, s. 117.02(1)(b) reflects an important
codification of the common law exigent circumstances doctrine where firearms and
other forms of weaponry are involved. It is frequently used to search motor
vehicles and other locations for firearms: see e.g.
R. v. T.A.V.
, 2001 ABCA 316, 299 A.R. 96, at paras. 23-26;
R. v.
Narayan
, 2007 BCCA 429, 245 B.C.A.C. 243;
Virgo
c. R.
, 2013 QCCA 1114. The provision reads as follows:
Where a peace
officer believes on reasonable grounds
that an offence is
being committed, or has been committed, under any provision of this Act that
involves, or the subject-matter of which is, a firearm,
and
evidence of the offence is likely to be found on a person, in a
vehicle or in any place or premises other than a dwelling-house
, the peace officer may, where the conditions for obtaining a
warrant exist but, by reason of exigent circumstances, it would not be practicable
to obtain a warrant,
search, without warrant, the
person, vehicle, place or premises, and seize any thing by means of or in
relation to which that peace officer believes on reasonable grounds the offence
is being committed or has been committed
. [Emphasis
added.]
[22]
It is not clear that the warrantless tracking
of a cell phone to locate a person is provided for under s. 117.02(1)(b).
Included in the list of outstanding questions would be: whether pinging a
cell phone constitutes evidence of the offence; if it is evidence of the
offence, whether it is evidence likely to be found on a person, in a vehicle
or in any place or premises other than a dwelling-house; and, if these
requirements were met, whether the search of one of those locations without a warrant
would lead to the seizure of a thing by means of or in relation to which that
peace officer believes on reasonable grounds the offence is being committed or
has been committed.
[23]
While I would not rule out the application of s.
117.02(1)(b) for purposes of the investigative technique used in this case, in
my view, it would be unwise to determine the matter in the absence of
submissions on the point. This is particularly true in this case given that the
common law fills the void. Indeed, it is the common law that the trial judge
leaned on to resolve the question of exigent circumstances at trial.
[24]
I reject the appellants assertion that there
were no exigent circumstances present because he did not pose an imminent risk
to others. While the exigent circumstances doctrine should be invoked only
where it is necessary, the factual matrix within which the decision to track
the appellants cell phone was made met that requirement:
Kelsy
,
at para. 35.
[25]
The police are charged with the responsibility
of protecting the communitys safety. To this end, what the police knew was
that the appellant had just violently assaulted his girlfriend on a bed while
his firearm lay next to them. The police had been informed that the appellant
had a history of violence, including previously threatening his girlfriend with
his gun. They also knew that he had left this highly volatile situation with his
firearm in the waistband of his pants. It is against that factual backdrop that
the trial judge concluded that the concerns over public safety were well-founded.
[26]
The
trial judge also concluded that, had there
been time, the police could have obtained a tracking warrant.
[27]
Section 492.1 of the
Criminal Code
was amended in
2015 to create two types of tracking warrants, one for the tracking of
transactions and thing[s] (s. 492.1(1)) and the second for tracking an
individuals movement by identifying the location of a thing that is usually
carried or worn by the individual (s. 492.1(2)):
Protecting Canadians from
Online Crime Act
, S.C. 2014, c. 31, s. 23.
[1]
When it comes to tracking individuals (s. 492.1(2)), a reasonable grounds
standard is operative: A justice or judge who is satisfied by information on
oath that there are reasonable grounds to believe
. See:
Robert
W. Hubbard, Peter M. Brauti & Scott K. Fenton,
Wiretapping and
Other Electronic Surveillance: Law and Procedure
,
loose-leaf (2020-Rel. 76) (Aurora, Ont.: Canada Law Book, 2000), at ch. 3-13.
[28]
Although not strictly necessary to the reasoning process in this
case, I agree with the trial judge that
, if there had been
time, a tracking warrant pursuant to s. 492.1(2) of the
Criminal
Code
could have been obtained. Indeed, the warrant
likely would have been issued on the force of the complainants information
alone. Yet the police were operating in exigent circumstances and, quite
simply, did not have the time to obtain a tracking warrant.
[29]
While it was suggested to D.C. Meredith in
cross-examination that he could have obtained a telewarrant to track the
appellants cell phone in 15 minutes, the officer rejected that suggestion. So
did the trial judge. So do I.
[30]
Section 487.1(1) of the
Criminal Code
allows an application for a
s.
487
warrant to be made by telephone or other means of
telecommunication where a peace officer believes that it would be
impracticable to appear personally before a justice. Several other warrant
provisions incorporate s. 487.1 by reference: see e.g., ss. 529.5, 487.092(4),
487.05(3), 487.01(7). Notably, s. 492.1 of the
Criminal Code
is absent from that list of provisions.
[31]
In any event, a telewarrant is not free for the asking.
To be sure, a telewarrant application carries the same degree of solemnity as
an application that would be determined after being dropped at a courthouse in
the light of day. While s. 487.1 provides for more flexibility in terms of how
an application for a warrant is placed before a justice, it does not alleviate
the normal demands placed upon an affiant in relation to preparing that
application. Nor does it relieve the application justice from taking the time
necessary to properly consider the application to determine whether the requested
authorization should be granted.
[32]
In my view, even if a telewarrant had been
available for purposes of obtaining prior judicial authorization to track the
appellants phone, the police would have been hard pressed to obtain one in the
less than three hours that transpired between when it became clear that the
appellant had to be located and when he actually was located a few hundred
kilometres away.
[33]
For all of these reasons, I would not give
effect to this ground of appeal.
D.
The Search of the Motor Vehicle Incident to Arrest
(1)
The Facts Leading up to the Search Incident to Arrest
[34]
Once it was determined that the appellants cell
phone was travelling in an eastbound direction, D.C. Meredith contacted the O.P.P.
to ask for their assistance.
While D.C. Meredith said
that he believed that the appellant was headed for Ottawa, he also said that the
only thing we know for sure is, hes heading eastbound on
[Highway]
401. D.C. Meredith also said that
the appellant was wanted for a domestic assault in Toronto and that a warrant
would be issued for his arrest.
[35]
Cst. Snider was the O.P.P. officer involved in
locating the vehicle, stopping it, arresting the appellant for domestic assault,
and conducting the search of the vehicle. While a cursory search was originally
done at the scene, the vehicle was quickly towed to the police detachment to permit
for a safer search environment.
[36]
Once at the police detachment, and before
continuing the search, Cst. Snider called D.C. Meredith to discuss the alleged domestic
assault and to gain a better understanding of what he should be looking for
within the vehicle. Cst. Snider stated that he knew that, pursuant to the
search incident to arrest doctrine, he could only search for offence-related
property to the domestic assault.
[37]
While Cst. Snider knew that there was speak of
a firearm, until he spoke with D.C. Meredith, he was unsure as to whether the
firearm was offence-related property. He testified that D.C. Meredith told
him that the firearm was related to the assault and that this information had
been received from the victim of the domestic assault. The content of that
discussion is clearly memorialized in Cst. Sniders handwritten notes, which
were provided as part of the record on the
Charter
application: Advised firearm was related to domestic assault. Info
from victim.
[38]
The call with D.C. Meredith occurred at 6:46
a.m., and the search incident to arrest at the police detachment commenced at
7:01 a.m.
[39]
Recall that the complainant told the police that
the appellant had taken her suitcase, which was full of her possessions. Cst.
Snider testified that he located suitcases in the back of the vehicle and that
one of them contained womens clothing and a passport bearing a females
identification.
[40]
The police also located a compartment in the
trunk of the vehicle. Once opened, it appeared to contain a vacuum-sealed
package of cocaine. A short time later, a superior officer directed that the
search be stopped and a telewarrant obtained. A number of hours later, with the
telewarrant in hand, the search recommenced, and two loaded firearms were found
hidden in a locked compartment in the centre console of the vehicle. Both had
their serial numbers removed. One had its trigger guard removed.
(2)
The Trial Judges Reasons
[41]
The trial judge concluded that Cst. Snider subjectively
believed that he was entitled to search the vehicle incident to the arrest of
the appellant for assault and that it was objectively reasonable to conduct
that search in the circumstances.
[42]
While the trial judge acknowledged that the
firearm was not used by the appellant in the course of the assault, he
emphasized that the assault occurred in the bedroom, that the appellant had his
gun on the bedside table in the same room, and that the complainant feared that
she would be shot. He described the gun as being part of the events that
unfolded in the condominium in Toronto on that early morning.
[43]
The trial judge concluded that Cst. Snider was
entitled to rely upon the information he had received from D.C. Meredith as to
the circumstances of the assault, and that those circumstances formed his
reasons for searching the vehicle incident to arrest. Cst. Snider was entitled
to search the vehicle for any evidence related to the assault and threats
alleged by
[the complainant]
.
[44]
The trial judge then went on to express serious concerns
regarding D.C. Merediths credibility. The details around why that is so are
beyond the scope of these reasons. What is important is that the trial judge
was so concerned with D.C. Merediths evidence that,
[
t
]
o the extent that
he had to rely upon D.C. Merediths evidence, he would only do so if it was
corroborated. While it was true that Cst. Snider relied in part upon D.C.
Merediths information to form his belief that the firearm was involved in the
assault, the trial judge found that Cst. Snider was also searching the vehicle
for other offence-related evidence and not exclusively for the firearm.
According to the trial judge, Cst. Snider was entitled to do that. Ultimately,
the trial judge concluded the following:
I do find the search was incident to the
lawful arrest. The grounds formed by [Cst.] Snider, in my view, were not
tainted by [D.C.] Meredith to the point that it was not a lawful search
incident to arrest.
(3)
The Appellants Position on Appeal
[45]
The appellant advances two broad arguments regarding
the search incident to arrest: (1) the trial judge erred by extending the
search incident to arrest doctrine too far by including searches for what he
describes as collateral evidence to corroborate a complainants version of
events; and (2) the trial judge erred by concluding that Cst. Snider had a lawful
basis to search the vehicle incident to arrest despite D.C. Meredith providing
false and misleading statements to Cst. Snider.
(4)
The Firearm was Related to the Assault
[46]
The appellant takes issue with the following
statement from the trial judges reasons:
While the firearm was not involved as part of
the actus reus
of the assault, according to [the complainant], in any
event, it was present. It was evidence at the scene.
The firearm may well have been evidence to corroborate the
complainant[s] version of what she claimed happened in that condominium
bedroom. In other words, locating a firearm could be seen as evidence to
bolster [the complainants] statement that the [appellant] had the handgun at
the time of the assault, and the threats
. Again it is
clear that she is not alleging the gun itself was involved in the assault.
[Emphasis added.]
[47]
The appellant contends that it is a step too far
to use the search incident to arrest doctrine to seize evidence that might
bolster the credibility of a complainant on what the appellant refers to as collateral
matters. The appellant suggests that such an extension of the doctrine would
lead to unbridled warrantless search powers because virtually anything could be
seen to bolster a complainants credibility.
[48]
In support of this position, the appellant
points to
R. v. Caslake
,
[1998] 1 S.C.R. 51, at para. 22, where
Lamer
C.J. emphasized that for the police to search incident to arrest, there must
be some reasonable prospect of securing evidence
of the offence for
which the accused is being arrested
(emphasis in
original). The appellant argues that the trial judges reasons are unfaithful
to
Caslake
,
as they improperly expand
the scope of the search incident to arrest doctrine beyond its intended limit
to capture all forms of evidence, not just that which is necessary to proving
the offence.
[49]
I reject the suggestion that
Caslake
,
or any other
authority for that matter, places the types of restrictions advocated for by
the appellant upon the search incident to arrest doctrine. Before addressing
why that is so, I will first address why the firearm was much more than evidence
that would serve to corroborate the complainant
[
s
]
version of what
she claimed happened in that condominium bedroom.
[50]
To be clear, the firearm was not some benign
object lying on the bedside table beside the bed where the complainant was
being choked. Rather, it was a deadly weapon that she had been previously threatened
with and that she was afraid may actually be used during the violent assault.
As before, she told the police that the firearm was right there at the time
and that she didnt want to get shot.
[51]
The firearm was very clearly part and parcel of
the offence, part of the physical and psychological domination taking place during
the assault. While it was not used in the sense of being pointed at the
complainant during the assault, it was plainly related to the assault and
would be entirely relevant at a later trial for assault. It would also be
entirely relevant to any sentencing proceeding that may ensue were the
appellant to be convicted. Therefore, it was not merely corroborative of the complainants
account, but fundamentally linked to the offence.
[52]
In any event, I reject the suggestion that the
search incident to arrest doctrine turns on the nuanced distinction the
appellant draws between collateral and non-collateral evidence. Even if the
appellant were right, and the firearm could be properly characterized as
collateral in nature because it could only serve to bolster the complainants
credibility, the search incident to arrest doctrine would justify its seizure.
[53]
The search incident to arrest doctrine is a
warrantless search power that strikes a vital balance between the privacy
interests of individuals and the objectives of law enforcement:
Cloutier v.
Langlois
,
[1990] 1 S.C.R. 158
;
Caslake
, at para. 14;
R.
v. Golden
,
2001 SCC 83,
[2001]
3 S.C.R. 679,
at para. 46. There are three legitimate
goals that can justify searching incident to arrest: (1) ensuring the safety of
the police and the public; (2) protecting evidence from destruction; and (3) discovering
evidence
of the offence for which the accused is being arrested
:
Caslake
, at para. 22 (emphasis
in original).
[54]
Cst. Snider made clear that he searched the
vehicle to discover evidence. While one can imagine another officer having said
that the search was done for safety, staying with Cst. Sniders justification
for the search, I will remain focused upon the evidence discovery component of the
search incident to arrest doctrine.
[55]
There are three conditions that must be
satisfied to certify the validity of a search incident to arrest:
R.
v. Stillman
,
[1997] 1 S.C.R. 607,
at para. 27
. First, the arrest must be lawful:
Caslake
, at para. 39. There is no complaint on appeal about the lawfulness
of the appellants arrest. Second, the search must be truly incidental to the
lawful arrest, meaning that the search must be directed at achieving a valid
purpose connected to the arrest:
Caslake
,
at
para. 19. And, third, any search incident to arrest must be conducted
reasonably:
R. v.
Fearon
, 2014 SCC 77,
[2014]
3 S.C.R. 621,
at para.
27;
R. v. Saeed
, 2016 SCC 24,
[2016] 1 S.C.R. 518,
at para. 37.
[56]
Searching incident to arrest is undoubtedly an
extraordinary power because: (1) it permits the police to search without a
warrant; and (2) it permits the police to search in circumstances where
judicial authorization might not even be available:
Fearon
,
at para. 16. This latter observation means that, for a
search incident to arrest to take place, the police need not possess the reasonable
grounds that would be required to obtain prior judicial authorization:
Caslake
,
at para. 20. Rather, all the police need is some reason
related to the arrest for conducting the search at the time the search was
carried out, and that reason must be objectively reasonable:
Caslake
,
at para. 25.
[57]
I take the appellant to be arguing that where a
search incident to arrest is directed at discovering evidence, it will only be
justified where there is a real prospect of securing actual evidence of the
offence that can be admitted at trial. On this basis, the appellant contends
that there was nothing the police would be justified in looking for within the
vehicle incident to arrest.
[58]
Respectfully, I do not accept this submission.
In my view, the common law animating the principles around the doctrine of
search incident to arrest is clear. There is nothing in that body of jurisprudence
that limits the police to searching only for evidence that is admissible at
trial as going to prove an element of the offence. To the contrary, the police
can search for those things that relate directly to the arrest. While those
things may, from time to time, be admissible at trial as proof of the offence,
when the police are searching for those things, they are not concerning
themselves with questions of admissibility. Rather, as the common law directs,
they are concerning themselves with whether there is a direct link between the
arrest and what is being looked for.
[59]
The common law makes good, practical sense sense
that can be applied on the ground in real search incident to arrest scenarios. Importantly,
the common law does not expect the police to ask themselves pristine questions
about the elements of an offence and how what they are looking for might tie
into those elements. Nor does the common law expect the police to consider complicated
questions of admissibility.
[60]
Rather, the common law requires the police to
ask whether the search is truly incidental to the arrest in question:
Caslake
,
at para. 17. Officers must take into account all of the
known information when deciding whether what they are looking for is truly
incidental to the arrest. At the end of the day, what is required is that the
police are able to clearly explain why they did what they did and how it was
connected to the arrest. On that basis, an after-the-fact reviewer will be able
to determine whether a valid purpose connected to the arrest was being
pursued and, if so, whether it was objectively reasonable in the
circumstances:
Caslake
,
at paras. 19, 25.
[61]
Cst. Snider understood exactly that. As Cst.
Snider explained, it is precisely why he called D.C. Meredith, so that he could
discuss the alleged domestic assault and gain a better understanding of what related
to the arrest and, therefore, what he was entitled to look for in the vehicle.
As he put it, he could only search for offence-related property. He was right,
and he did just that.
(5)
The Impact of D.C. Merediths False and Misleading Statements
[62]
The appellant advances two arguments related to
the trial judges adverse credibility findings as they related to D.C. Meredith.
[63]
First, the appellant asserts that the trial
judges conclusion about D.C. Merediths credibility should have resulted in a
finding of an unlawful search because Cst. Snider based his reasons to search only
upon what he was told by D.C. Meredith. I do not agree with this suggestion.
[64]
The appellants argument conflates the rejection
of a witnesss credibility on a
voir dire
with the need to reject everything that the witness has said on an
earlier occasion. That is not so.
[65]
Importantly, this is not a case where a trial
judge determined that the information supplied by D.C. Meredith to Cst. Snider
was inaccurate. To the contrary, and as previously discussed, it was entirely
accurate and well supported in the record. While it is true that the trial
judge had difficulty with D.C. Merediths credibility in his capacity as a
witness on the
Charter voir dire
, those
credibility findings did not touch on the accuracy of the information that D.C.
Meredith conveyed to Cst. Snider. Accordingly, the trial judge was right to
conclude that [Cst.] Snider was entitled to rely on the information that he
received from [D.C.] Meredith as to the circumstances of the assault, and that
those formed the grounds for his belief and the grounds to search the vehicle
incident to arrest.
[66]
Second, the appellant argues that, even if this
court concludes that the firearm was related to the domestic assault (which I
have concluded), there is nothing supporting the suggestion that D.C. Meredith
knew that to be the case when he advised Cst. Snider that, as reflected in Cst.
Sniders notes, the: firearm was related to the domestic assault. Info from
victim. It is the appellants position that D.C. Meredith merely invented that
suggestion when he spoke to Cst. Snider and that it is pure happenstance that
his invention turned out to be true. According to the appellant, the fact that
it turned out to be true should not excuse that it was an invention in the
first place and, therefore, the search incident to arrest should be found
unlawful.
[67]
I reject the suggestion that D.C. Meredith was
inventing anything.
[68]
The appellant emphasizes that Cst. Cicchirillo agreed
with defence counsels suggestion in cross-examination that the firearm was not
related to the assault. In my view, this observation on Cst. Cicchirillos
part does not advance the appellants cause. The fact is that Cst.
Cicchirillos evidence is riddled with detailed accounts about what the complainant
had shared with him about the appellants firearm.
[69]
Police officers do not provide evidence on
Charter
voir dires
to assist the court with the law. Rather,
like all witnesses, they testify to assist the court with understanding the
facts and it is up to the court to settle upon the actual facts and then draw
legal conclusions from them. To this end, Cst. Cicchirillo testified about
facts that established the clear legal nexus between the firearm and the
assault. The fact that he did not characterize the firearm as related to the
assault is neither here nor there.
[70]
While Cst. Cicchirillo could not recall exactly
what he told D.C. Meredith, what is clear from both of their testimonies is
that they spoke to each other after Cst. Cicchirillo spoke to the complainant,
meaning after Cst. Chicchirillo learned the information about the firearm being
related to the assault. What is also clear from Cst. Cicchirillos evidence is
that, while he could not recall the specifics by the time of trial, he knows
that he told D.C. Meredith about the firearm.
[71]
Like Cst. Cicchirillo, D.C. Meredith did not
have good notes about what they discussed. What D.C. Meredith recalled by the
time of trial was that Cst. Cicchirillo told him that the complainant had
informed him that the appellant had a firearm. While by the time of trial D.C.
Meredith could not recall telling anyone that the firearm was related to the
assault, Cst. Sniders notes memorialized the fact that D.C. Meredith had done just
that.
[72]
Therefore, of central importance is the fact
that Cst. Snider had a note memorializing what he says that D.C. Meredith told
him: that the firearm was related to the assault and that that information had
come from the victim. That is true; that is accurate; and that is correct. Accordingly,
I reject the appellants suggestion that D.C. Meredith was engaged in an
elaborate invention when he spoke to Cst. Snider and told him what is actually
true: Advised firearm was related to domestic assault. Info from victim. When
looked at in context, it is clear that, while this case involved some foggy
police memories by the time of trial, foggy police memories do not make for
Charter
breaches. Rather, looked at in its full context, as the
trial judge did, it is clear that Cst. Cicchirillo learned from the complainant
of the nexus between the firearm and the offence and passed that information on
to D.C. Meredith, who in turn passed it on to Cst. Snider. Cst. Snider then
memorialized that accurate information in his notebook.
[73]
Against that factual backdrop, it is clear that
both Cst. Cicchirillo and D.C. Meredith will want to take better notes in the
future. What is equally clear is that D.C. Meredith was not inventing anything.
He simply forgot the specifics of his conversations with colleagues by the time
of trial.
[74]
Accordingly, Cst. Snider had lawful grounds to
search the vehicle incident to arrest. As such, the appellants s. 8
Charter
rights were not violated during the search incident to
arrest of the vehicle.
E.
THE Expert Evidence
[75]
The trial Crown proffered the expert evidence of a police
officer, Detective Sergeant (D.S.) Canham of the O.P.P. Organized Crime
Section, to testify about various subjects pertaining to drug trafficking, including
drug pricing and drug jargon. The appellant opposed the admission of that
evidence on the basis of D.S. Canhams lack of training in the matter of drug
jargon and the fact that he does not have the requisite degree of expertise
and the experience to offer a fair, informed, balanced and reliable opinion on
the definition and meaning of language that is used by suspected drug
traffickers.
[76]
At the conclusion of the
voir dire
,
the trial
judge ruled as follows:
The issue that I struggle with and have struggled with over the
break is on the issue of [D.S. Canhams] expertise in jargon and language, and
whether this officers expertise or experience meets the threshold reliability.
At the end of the day, for reasons that I am going to expand on, I do find that
he meets the threshold reliability. I will allow him, therefore, to testify in
both of those areas.
[77]
We are informed by the parties that the reasons for this ruling do not
appear to have been provided. Even so, this court has held that a failure to
provide reasons for an evidentiary ruling is not fatal, provided that the
decision is supportable on the evidence or the basis for the decision is
apparent from the circumstances:
R. v. Tsekouras
, 2017 ONCA 290, 353
C.C.C. (3d) 349, at para. 156, leave to appeal refused, [2017] S.C.C.A. No. 225.
In this case, as in
Tsekouras
, the absence of reasons on the ruling is
not fatal on this issue. In my view, considered in the entire context, the
record provides an adequate basis upon which to decide the matter.
[78]
The appellant points to the fact that D.S. Canham is a member of the O.P.P.,
the same police service as Cst. Snider. The appellant contends that this should
have been a relevant factor in determining the admissibility of the expert
evidence.
[79]
I do not take the appellant to be saying that, standing on its own, the
fact that D.S. Canham is a member of the same police service as Cst. Snider
necessarily disqualified him based on lack of impartiality. Nor could that
argument be advanced: see
R. v. Mills
,
2019 ONCA 940, 151 O.R.
(3d) 138, at para. 62. Whether of the same police service or not, the real
question for determination is whether the expert was unable or unwilling to
carry out the duties of an expert:
Mills
, at para. 62. Here, D.S.
Canham stated that he had zero involvement in the investigation into the
appellant, and he clearly explained his understanding that he had an obligation
as an expert to give impartial opinion. I see no difficulty on this record
with the expert being proffered from the same police service as the one that
conducted the investigation.
[80]
In challenging the admissibility of this expert evidence, the appellant
also emphasizes that D.S. Canham did not have any specific training in the area
of drug jargon. The appellant also points to the fact that evidence about drug
jargon is not capable of scientific validation.
[81]
Expert evidence does not need to be predicated upon years of training.
From time-to-time, police officers will testify as experts on the basis of
expertise that has been obtained through practical experience on the job over
many years:
Mills
,
at para. 54;
R. v. Sekhon
,
2014
SCC 15, [2014] 1 S.C.R. 272, at paras. 73-74,
per
LeBel J. (dissenting,
but not on this point). While D.S. Canham had not taken a course in drug
jargon, his experience with on-the-ground policing was vast, involving
approximately twenty years of involvement with drug trafficking investigations.
He had been working in a
milieu
involving drug culture for many years
and had come to know the language used by those involved in its trade.
[82]
Moreover, expert opinion evidence does not have to be capable of
scientific validation. To make this point, I would simply adopt what Doherty J.A.
said in
R. v. Abbey
, 2009 ONCA 624, 246 C.C.C. (3d) 301, at para. 109,
leave to appeal refused, [2010] S.C.C.A. No. 125: "[m]ost expert evidence
routinely heard and acted upon in the courts cannot be scientifically
validated." Examples abound, including psychiatrists testifying about the
existence of mental states; doctors testifying about the causes of injury or
death; and accident reconstructionists testifying about the location or causes
of accidents:
Abbey
, at para. 109. Like these types of expertise, the
evidence about drug jargon cannot be supported by scientific error rates,
resting as it does upon "specialized knowledge gained through experience
and specialized training in the relevant field":
Abbey
, at para. 109;
Mills
,
at para. 53.
[83]
Finally, the appellant maintains that D.S. Canham was partial, in the
sense that he was disposed to only assisting the Crowns case, and that he did
not meet the test for threshold reliability.
[84]
A few examples are provided to demonstrate D.S. Canhams alleged
partiality, including the witness being confronted with and outright rejecting
the suggestion that a zip, which he said referred to an ounce of cocaine,
could in fact be an ounce of marijuana. Indeed, the expert went so far as to
suggest that he did not need to check on the Internet to see whether zip
could be used to refer to marijuana because, in his experience, zip was a
common term for an ounce of cocaine and hes never heard anyone call an ounce
of marijuana a zip.
[85]
In oral submissions, the appellant gave another example of what is said
to be demonstrative of the experts lack of reliability and his partiality. At
one point, the expert testified in-chief that drug prices have not changed that
much over the years, only to later acknowledge in cross-examination that he did
not know the price of cocaine per kilogram in some earlier years.
[86]
In my view, what is referred to on appeal as examples of partiality are
really just examples of the expert being unprepared to accede to suggestions
put on cross-examination. While it may be true that at points the expert was
dug in a little more than others experts may have been, these were all matters
for the trial judge to take into account in determining the weight he would
place upon the expert opinion.
[87]
In the end, it was open for the trial judge to accept the expert
evidence. Importantly, it did not overwhelm the inquiry. Rather, the trial
judges reasons make it clear that he considered the expert evidence as only
one piece of circumstantial evidence in arriving at his conclusion on the
appellants guilt. This is underscored by the following passage in the trial
judges lengthy reasons:
I do consider the experts evidence, particularly as it relates
to the general drug chatter on the cell phones. I take into account the fact
that each individual had two cell phones. I do take into account that in this
day and age sometimes people have more than one phone. I take into account the
quantity of cocaine that was seized. I take into account that two firearms were
located, that both were loaded. I take into account that the Bakal brothers
were stopped after leaving Toronto.
Taking into account all of the
circumstances
, the location of where the items were seized, I conclude
that Crown counsel has proven beyond a reasonable doubt that both individuals
in the vehicle had possession and control of both the drugs and the two
firearms. [Emphasis added.]
[88]
Therefore, it cannot be said that the trial judge erred by admitting
D.S. Canhams expert evidence pertaining to drug pricing and drug jargon.
[89]
As this ground of appeal does not gain traction, and in accordance with
the appellants position, there is no need to consider the argument regarding
unreasonable verdicts.
F.
Disposition
[90]
For the reasons above, I would dismiss the appeal in its entirety.
Fairburn A.C.J.O.
I agree R.G. Juriansz
J.A.
Paciocco J.A. (Concurring):
A.
overview
[91]
I, too, would dismiss the appeal, but on a different basis. I agree with
Fairburn A.C.J.O. that the exigent circumstances doctrine justified the
warrantless tracking of Mustafe Bakals cellular phone, and that the expert
evidence was properly admitted by the trial judge. However, unlike my
colleague, I am persuaded that the trial judge erred in finding that the search
of the motor vehicle incident to the arrest that led to the discovery of the handguns
was lawful. In my view, the search that led Cst. Snider to find the handguns
was, in fact, unconstitutional.
[92]
I agree with my colleague that Cst. Cicchirillo and the police
dispatcher had objective grounds linking the handgun to the assault. But that
is not enough. Cst. Snider conducted the search of the motor vehicle. As a
matter of law, it is Cst. Snider who required grounds for the search and he
lacked objective information that could link the handgun to the assault for
which Mr. Bakal was arrested. To be sure, Cst. Snider conducted the search in
reliance on D.C. Merediths grounds, and if D.C. Meredith had the requisite
grounds for the search that would have been enough. But no evidence was led
during the
Charter voir dire
that D.C. Meredith had objective
information linking the handgun to the assault for which Mr. Bakal was
arrested. Indeed, the evidence was to the contrary. Unfortunately, the trial
judge missed this crucial fact, and thereby erred in upholding the
constitutionality of the search.
[93]
Despite finding a
Charter
violation I would deny this
ground of appeal. In my view, the repute of the administration of justice
requires that the evidence obtained during the unconstitutional search of the
motor vehicle be admitted.
[94]
I therefore join my colleague in the outcome of her decision, but not in
all her reasoning.
B.
the legal principles
[95]
Four legal principles animate my conclusion that the trial judge erred
in finding that the search of the motor vehicle incident to Mr. Bakals arrest
was lawful.
[96]
First, given the intrusive and powerful authority that searches incident
to arrest entail, courts are obliged to strictly interpret the central
guiding principle
that the search must be
truly incidental to the arrest:
R.
v. Balendra
, 2019 ONCA 68, [2019] O.J. at para. 44;
R. v. Fearon
,
2014 SCC 77, [2014] 3 S.C.R. 621, at para. 16. Of relevance to this case, the
purpose relied on to justify the search at trial must have been the actual
reason the police conducted the search:
R. v. Santana
,
2020
ONCA 365, at para. 28, per Doherty J.A.;
R. v. Caslake
, [1988] 1
S.C.R. 51, at paras. 21-22; 26-27. It follows that if Cst. Snider lacked the
lawful authority to search the hidden compartments of the motor vehicle for
evidence of the alleged assault incident to Mr. Bakals arrest, the search was
unconstitutional. The fact that there may have been other legal avenues
available to Cst. Snider for searching those hidden compartments does not
change this, a point I will return to below, when determining that the evidence
obtained must be excluded pursuant to s. 24(2) of the
Charter
.
[97]
Second, a subjective/objective test applies to searches incident to
arrest, including for the purpose of discovering evidence. As Cromwell J. noted
in
Fearon
, at paras. 21-25:
[T]he police must be attempting to achieve some valid purpose
connected to the arrest. That turns on what they were looking for and why.
The police must have one of the purposes for a valid search
incident to arrest in mind when the search is conducted, and the officer
conducting the search must reasonably believe that this purpose may be served
by the search.
This is not a standard of reasonable and probable grounds, but
simply a requirement that there be some reasonable basis for doing what the
police did. For example, if the purpose of the search is to find evidence,
there must be some reasonable prospect of finding evidence of
the offence for which the accused is being arrested.
[In
R. v. Nolet
, 2010 SCC 24, [2010] 1 S.C.R. 851]
Binnie J. reiterated the important point made in
Caslake
and
Golden
that a search is properly incidental to arrest when the police attempt to
achieve some valid purpose connected to the arrest, including ensuring the
safety of the police and the public, the protection of evidence from
destruction at the hands of the arrestee or others, and the discovery of the
evidence: para. 49, quoting
Caslake
, at para. 19. As Binnie J. put
it,
[t]he important consideration is the link between
the location and purpose of the search and the grounds for the arrest
the basis
of the warrantless search is not exigent circumstances, but connection or
relatedness to the crime for which the suspect has been arrested
(Emphasis added.)
[98]
Third, as the above passage confirms, it is the officer conducting the
search who must reasonably believe that a valid purpose may be served by
the search. When evaluating the constitutionality of the conduct of the
officer conducting the search, it is not enough that others, including other
police officers, may have had lawful grounds to act. The issue is whether the
state agent exercising the challenged police power had the authority they
purported to be exercising:
R. v. Gerson-Foster
, 2019 ONCA 405, [2019]
O.J. No. 2877, at paras. 77-78.
[99]
Fourth, there is an exception to the third principle just described that
permits officers who do not personally have the requisite grounds, to exercise
police powers on the instruction or advice of other officers who do have the
requisite grounds. However, an officer who lacks the requisite grounds cannot
confer authority on other officers to act lawfully:
R. v. Debot
, [1989]
2 S.C.R. 1140, at pp. 1166-1167;
Gerson-Foster
, at para. 84. As noted
by the majority in
R. v. Ahmad
, 2020 SCC 11, 63 C.R. (7th) 1 (S.C.C.),
at para. 32, [T]he hunch or mere suspicion of one police officer cannot
become something more simply because it was shared with other officers.
[100]
To illustrate
this fourth point in the context of this case, even if Cst. Snider personally
lacked the objective grounds for the search he conducted, it would have
sufficed if D.C. Meredith had the requisite grounds since Cst. Snider was
conducting the search at D.C. Merediths behest. The problem is that D.C.
Meredith did not have the requisite grounds.
C.
THE
REQUISITE OBJECTIVE KNOWLEDGE WAS LACKING
(1)
Cst. Sniders Grounds
[101]
Cst. Snider
testified that his purpose in searching the motor vehicle incident to arrest
was to discover evidence of the offence for which Mr. Bakal was arrested,
namely, the alleged domestic assault. In law, he could search only for items he
reasonably believed to be linked to that assault. It is evident from his
testimony that Cst. Snider understood this.
[102]
At the time of
the initial roadside search, Cst. Snider had only minimal information that he
obtained from the call for service, specifically, that Mr. Bakal was in
possession of a semi-automatic handgun as well as several kilograms of cocaine,
and that an arrest warrant would be issued for a domestic assault which had
happened in Toronto. Although there was speak of a firearm Cst. Snider had no
information as to whether the handgun was offence-related property linked to
the alleged assault. Indeed, when testifying about his knowledge at the time of
the roadside search about the role, if any, that the handgun played in the
assault he said, [t]he information on that is still not clear in regards to
the firearm, if its offence-related property or what the status of that is.
At this point, Cst. Snider clearly lacked the objective grounds to search for
the handgun as evidence of the assault for which Mr. Bakal was arrested.
[103]
Cst. Snider
testified that after Mr. Bakal was arrested and the vehicle was impounded and
brought to the police detachment, he want[ed] to gain a better understanding
of what [he would] be looking for within the confines of the vehicle. He
therefore contacted D.C. Meredith, who had sought the assistance of the OPP in
arresting Mr. Bakal. During their conversation, D.C. Meredith advised Cst.
Snider that the firearm was believed to potentially have been related to the
domestic assault, information from the victim. However, in his testimony Cst.
Snider confirmed that he was not told that the handgun had been used in the
commission of the offence, or that it had been present during the assault.
[104]
Simply put, Cst.
Snider was aware that D.C. Meredith believed, based on unspecified information
from the complainant, that the handgun was potentially related to the assault. But
even after speaking personally to D.C. Meredith, Cst. Snider had no specific
information supporting the reasonableness of that belief.
[105]
Armed with knowledge
that D.C. Meredith was of the view that the handgun was potentially related to
the assault, Cst. Snider proceeded to search for the handgun. He conducted a
more intrusive search of the motor vehicle, including by forcefully opening the
two hidden compartments that had been discovered.
[2]
The handgun that Cst. Snider was searching for was found along with another
handgun in the second compartment that had been forcibly opened.
(2)
D.C. Merediths
Grounds
[106]
Although Cst.
Snider personally lacked objective information linking the handgun to the
assault, he was entitled to rely on D.C. Merediths grounds in searching for
the handgun, but only if D.C. Meredith had the requisite grounds. However,
there is no evidence that D.C. Meredith had an objective basis for believing
that the handgun was evidence of the assault. To be sure, D.C. Meredith did
testify that he believed that the handgun had been used during the domestic
assault, but that conclusory statement, even if credited, affirms only his
subjective belief, not the objective foundation for that belief. An examination
of D.C. Merediths evidence shows that he lacked a reasonable or objective
basis for his subjective belief that the handgun was potentially related to the
domestic assault.
[107]
Specifically,
D.C. Meredith testified that he had received information over the air that
the complainant was assaulted by Mr. Bakal and that he banged her head against
the wall, punched her in the face and choked her. He provided no evidence
about having been told that a handgun was used in the assault or was present
when the assault occurred.
[108]
D.C. Meredith
also testified that he had received information over the air that Mr. Bakal was
seen walking away from the complainants apartment, and that he was in
possession of two suitcases and a handgun and a quantity of cocaine. This
information provided D.C. Meredith with a sound basis for concluding that Mr.
Bakal had a handgun with him when he left the apartment, but no basis for
reasonably inferring that the handgun was linked to the assault.
[109]
Based on his
testimony, this is the total of what D.C. Meredith knew. He testified
explicitly that he did not believe he received any further information from
Cst. Cicchirillo. He also said that when he attended at the scene he was not
following through with the details of the assault. When asked if he inquired
whether the handgun had been used in the commission of the assault he said,
no, and he gave the same answer when asked if he had inquired into whether
Mr. Bakal had possession of the handgun during the assault. When pressed again
on whether he asked Cst. Cicchirillo, look, did this firearm have anything to
do with the assault?, D.C. Meredith replied, I dont recall if I did, no. He
also agreed with the suggestion that he did not know even when testifying
whether the handgun was related to the assault.
[110]
Simply put, at
no point did D.C. Meredith testify to having any knowledge relating to any role
that the handgun played in the assault.
[111]
In my view, Cst.
Cicchirillos testimony that he told D.C. Meredith that there was the
possibility of a handgun in play cannot be relied upon to conclude that D.C.
Meredith had a reasonable basis for inferring that the handgun was linked to
the assault. Cst. Cicchirillos reference to a handgun in play is simply too
obscure to have reasonably enabled D.C. Meredith to infer that the handgun was
linked to the assault.
[112]
Indeed, when
Cst. Cicchirillos evidence about telling D.C. Meredith that there was a handgun
in play is read in context it becomes clear that Cst. Cicchirillo was
testifying that he told D.C. Meredith that there was a handgun in play in the
community, not that the handgun had been in play in the assault. I say this
for three reasons.
[113]
First, when the
entire answer Cst. Cicchirillo gave relating to the handgun being in play is
considered, it is apparent that he was telling D.C. Meredith that the handgun
was in play in the community. Specifically, he said:
We were discussing what was what was we were discussing the
possibility of a handgun in play and someone
I mean,
[the] possibility of someone having a handgun in public basically is a concern
(Emphasis added.)
[114]
Second, when
asked during cross-examination whether he told D.C. Meredith anything beyond
the fact that [Mr. Bakal] had [a handgun] at some point and that it was black,
Cst. Cicchirillo testified, thats it. I just told him he had a gun, she says
he had a gun. Cst. Cicchirillos answer is consistent with his having told
D.C. Meredith that the handgun was in play in the community and is inconsistent
with the suggestion that he told D.C. Meredith that it was in play during the
assault.
[115]
Third, when
asked specifically if he told D.C. Meredith what the complainant said about the
gun being located on the table while the assault was underway, Cst. Cicchirillo
answered, no. Once again, this answer is consistent with his having told D.C.
Meredith that the handgun was in play in the community, but it is not
consistent with the suggestion that he told D.C. Meredith the handgun was in
play during the assault.
[116]
I am therefore
persuaded that on the evidence presented during the
Charter
voir
dire
, the Crown failed to establish that D.C. Meredith had the
objective basis required to support a search for the handgun incident to
arrest.
(3)
Conclusion on the
Objective Grounds
[117]
In my view, the
Crown failed to establish that either the searching officer, Cst. Snider, or
the directing officer, D.C. Meredith, had an objectively reasonable basis
linking the handgun to the assault.
[118]
With respect, I
cannot accept my colleagues view that it can be inferred that the officers
exchanged the objective foundation for the search but had foggy memories about
having done so. The Crown bore the burden of establishing the reasonableness of
this warrantless search. It is inconsistent with the Crowns burden to infer
that forgotten evidence would have supported the Crowns position. The absence
of evidence of the objective basis for a warrantless search, whether
attributable to forgotten memories or not, is a basis for allowing the
Charter
challenge, not for defeating it.
[119]
Indeed, as I
have described, the inference that the officers must have exchanged the
objective information that Cst. Cicchirillo possessed is inconsistent with the
affirmative evidence.
[120]
It was therefore
unlawful for Cst. Snider to open the hidden compartments to search for the
handgun incident to Mr. Bakals arrest for assault.
D.
the trial
judges decision
[121]
The trial judge
nonetheless upheld the search for the handgun as a lawful search incident to
arrest. I see ambiguity in his reasons. The trial judge said that [Cst.]
Snider was entitled to rely on the information that he received from [D.C.]
Meredith as to the circumstances of the assault, and that those formed the
grounds for his belief and the grounds to search the vehicle incident to
arrest. This passage suggests that the trial judge relied upon D.C. Merediths
grounds to support Cst. Sniders search. But after addressing credibility
problems with D.C. Merediths evidence, the trial judge appears to have upheld
the search for the handgun not based on Cst. Sniders reliance on D.C.
Merediths grounds, but because Cst. Snider was searching for other
offence-related evidence when he found the handgun. Specifically, the trial
judge said:
Notwithstanding my concern about [D.C.] Merediths evidence, I
do accept that [Cst.] Snider had grounds incident to arrest to search the
vehicle. It is true that [Cst.] Snider did rely in part on [D.C.] Merediths
information to form his belief that the firearm was involved in the assault.
However, [Cst.] Snider also testified that he was searching the vehicle for
other offence-related evidence and not exclusively for the firearm. In my view,
he was entitled to do that. There was a connection, subjectively and
objectively.
[122]
Neither line of
reasoning withstands scrutiny. If the trial judge upheld the search based on
Cst. Sniders reliance on D.C. Merediths grounds, he erred in failing to
consider whether D.C. Meredith had an objective basis for his belief that the handgun
was linked to the assault. As I have explained, no such grounds existed.
[123]
Alternatively,
if the trial judge concluded that Cst. Snider had the requisite grounds because
he was conducting a search for other offence-related evidence when he found the
handgun, this too would have been in error. For a search incident to arrest to be
valid there must be a link between the
location
and purpose of the search and the grounds for arrest:
R. v. Nolet
,
2010 SCC 24, [2010] 1 S.C.R. 851, at para. 49 quoted in
Fearon
, at
para. 25 (emphasis added). Therefore, police may only search a place for
evidence incidental to an arrest if they reasonably believe that they will find
such evidence in the place searched:
Fearon
, at para. 21;
R. v.
Rutten
, 2006 SKCA 17, 279 Sask. R. 201, at para. 30. As indicated, the
handguns were found in a hidden compartment in the motor vehicle. Although
there was a reasonable basis for believing that cocaine or handguns could be
found in the hidden compartments that were forcibly opened, recall that Cst.
Snider purported to justify his search as a search for evidence incidental to
the assault for which Mr. Bakal was arrested. There was no reasonable basis for
believing that evidence linked to the assault, such as the female clothing Cst.
Snider referred to, would have been secreted inside a hidden compartment. In my
view, the seizure of the handguns cannot be upheld based on the theory that
Cst. Snider was searching for offence-related property when he found them, and
the trial judge erred in finding to the contrary.
E.
section
24(2)
[124]
Although the
search for the handgun was contrary to s.8 of the
Charter
, I would not
remedy that breach by excluding the evidence. The balancing of the three
factors identified in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353 requires
that the evidence, including the handguns and the cocaine, be admitted into
evidence in Mr. Bakals prosecution.
(1)
The Seriousness of
the Violation
[125]
The first
Grant
factor concerns the seriousness of the
Charter
-infringing state
conduct, a determination that is heavily influenced by the state of mind of
police officers relating to the
Charter
breach. The strongest
pro-exclusionary factor is the trial judges finding that D.C. Meredith gave
disingenuous, if not downright deceitful testimony during the
Charter
voir dire
. This reprehensible behaviour strikes at the integrity of the
judicial system and the truth-seeking function of the courts which lie at the
heart of the admissibility inquiry envisaged under s. 24(2) of the
Charter
and this significantly aggravates the seriousness of the
Charter
breach:
R. v. Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 26-27;
R.
v. Pino
, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 102-103. However,
whether dishonest testimony during a
Charter voir dire
will
lead to exclusion depends on all the circumstances:
R. v. Lai
, 2019
ONCA 420, 438 C.R.R. (2d) 1, at paras. 36-37. In this case, three factors
mitigate the need for the court to dissociate itself from such behaviour by
excluding the evidence.
[126]
First, the false
testimony was not about the search for the handguns, the legal issue now under
consideration. Specifically, the trial judge found that D.C. Meredith was not
forthright in his testimony related to whether he had knowledge that Mustafe
Bakal left the condominium in Toronto with cocaine. Although D.C. Meredith was
found to have misled the court on this issue because he believed it had some
relevance to the
Charter
application, that lie did not relate
to the issues now under consideration.
[127]
Second, and more
importantly, Cst. Snider, who conducted the search, clearly did so in good
faith, which reduces the taint of D.C. Merediths behaviour:
R. v. James
,
2016 ONSC 4086, at paras. 47, 49.
[128]
Third, there
were legal avenues available that would have permitted the officers to search
for the handgun, had those legal avenues been used. As my colleague intimates,
a search incident to arrest for the firearms may have been justifiable for
officer safety or on the same exigent circumstances that permitted the motor
vehicle to be tracked to the location where the initial search occurred.
Indeed, there is authority suggesting that a search incidental to arrest may be
conducted for evidence which may
assist [the police] in their determination
as to whether the arrested person should be held:
R. v. Lim
, [1990] 1
C.R.R. (2d) 136, at para. 31, per Doherty J., as he then was, affd (1993), 12
O.R. (3d) 538. In this case, possession of a firearm in a car while leaving the
scene of a domestic assault would certainly have informed that decision.
[129]
I am not
suggesting that the availability of
Charter
-compliant means to secure
unconstitutionally obtained evidence will always mitigate the seriousness of
the breach. Rather, if police knowingly use illegal means to search in order to
forgo legal avenues, the breach will be undertaken in bad faith and this will
aggravate the seriousness of the breach:
R. v. Buhay
, 2003 SCC 30, [2003]
1 S.C.R. 631, at para. 63;
R. v. Feeney
, [1997] 2 S.C.R. 13, at para.
76;
R. v. Côté
, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 82. Where,
however, the failure to pursue
Charter
-compliant means to secure
unconstitutionally obtained evidence arises from the non-negligent failure of
the police to know the law, the availability of those means can mitigate the
seriousness of the breach:
R. v. Kitaitchik
(2002), 166 C.C.C. (3d) 14
(Ont. C.A.), at paras. 43-44.
[130]
Although the
breach remains serious because of D.C. Merediths disingenuous, if not downright
deceitful testimony and his failure to take the modest investigative steps
necessary to ensure that there were proper grounds to encourage a search for
the handgun, this is the only
Grant
factor that offers any
support for exclusion.
(2)
The Impact of the
Breach
[131]
The second
Grant
factor, the impact of the breach on Mr. Bakal, does not offer any such
support. Mr. Bakal did not have a reasonable expectation of privacy in the
place that was searched, namely, the motor vehicle. Although that search was
aggressive, causing damage to the motor vehicle, it was not Mr. Bakals motor
vehicle that was impacted. The impugned search did not touch upon Mr. Bakals
person or property, other than to rid him of possession of a handgun he could
not legally possess.
(3)
Societys Interest
[132]
The third
Grant
factor focuses on societys interest in the adjudication of the case on its
merits. This factor works decidedly in favour of inclusion. The charges are
serious, the evidence is reliable, and its exclusion will entirely gut the
Crowns case.
F.
conclusion
[133]
In the
circumstances, I am persuaded that the admission of the unconstitutionally
obtained evidence would not bring the administration of justice into disrepute.
It would therefore be improper to exclude it.
[134]
Accordingly, I
would reject this ground of appeal.
Released: August 30, 2021 JMF
David M. Paciocco J.A.
[1]
Notably, s. 487.11 of the
Criminal Code
allows for warrantless tracking
in exigent circumstances: see,
Kelsy
,
at para. 27;
R. v.
Chuhaniuk
, 2010 BCCA 403, 261 C.C.C. (3d) 486, at para. 68. The difficulty
is that s. 487.11 has not kept stride with the amendments to s. 492.1, meaning
that it does not make reference to what is now s. 492.1(2), the provision that
allows for the tracking of an individuals movements. Section 487.11 reads: A
peace officer
may
exercise any of the powers described in
s.
492.1(1)
without a warrant if the conditions for
obtaining a warrant exist but by reason of exigent circumstances it would be
impracticable to obtain a warrant (emphasis added). The respondent does not
rely upon s. 487.11 as providing a statutory basis for the exercise of exigent
circumstances in this case, presumably because it does not make reference to s.
492.1(2).
[2]
Although a telewarrant was secured after cocaine was found in the first hidden
compartment that had been forced open, the trial judge upheld the search for
the handgun based on the search incident to arrest.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Heliotrope Investment Corporation v. 1324789
Ontario Inc., 2021 ONCA 589
DATE: 20210831
DOCKET: C68121, C68122 & C68123
Feldman, Lauwers and Trotter JJ.A.
DOCKET: C68121
BETWEEN
Heliotrope Investment
Corporation
Plaintiff (Respondent)
and
1324789 Ontario Inc.,
Martha Lorraine Beach, Johnathan Gary
Beach and 1073650
Ontario Inc.
Defendants (Appellants)
and
1324789 Ontario Inc.,
Martha Lorraine Beach, Johnathan Gary
Beach and 1073650 Ontario
Inc.
Plaintiffs by
Counterclaim
(Appellants)
and
Canadian Western
Trust Company (In Trust for RRSP Plan
Number #10084752 and
Plan #10084190), Heliotrope Investment
Corporation, Magenta
Capital Corporation and Magenta
Mortgage Investment
Corporation
Defendants by
Counterclaim
(Respondents)
DOCKET: C68122
AND BETWEEN
Canadian Western
Trust Company
(In Trust for RRSP
Plan Number #10084752 and Plan #10084190)
Plaintiff (Respondent)
and
1324789 Ontario Inc.,
Martha Lorraine Beach, Johnathan Gary
Beach and 1073650
Ontario Inc.
Defendants (Appellants)
and
1324789 Ontario Inc.,
Martha Lorraine Beach, Johnathan Gary
Beach and 1073650
Ontario Inc.
Plaintiffs by
Counterclaim
(Appellants)
and
Canadian Western
Trust Company (In Trust for RRSP Plan
#10084752 and Plan
#10084190), Heliotrope Investment
Corporation, Magenta
Capital Corporation and Magenta
Mortgage Investment
Corporation
Defendants by
Counterclaim
(Respondents)
DOCKET:
C68123
AND BETWEEN
Canadian Western
Trust Company (Incorporation No. A46845),
In Trust for RRSP
Plan Number #10084189 and Plan #10084190
Plaintiff
(Respondent)
and
1324789 Ontario Inc.,
1073650 Ontario Inc., Johnathan Gary
Beach and Martha
Lorraine Beach
Defendants
(Appellants)
Bruce Marks, for the appellants
Charles L. Merovitz, Denise Sayer and Eric Lay, for the
respondents
Heard: February 18, 2021 by video conference
On appeal from the judgment of Justice Patrick Hurley of the
Superior Court of Justice, dated February 5, 2020, with reasons reported at
2020 ONSC 810.
Lauwers J.A.:
I.
Introduction
[1]
The appellants are Johnathan Gary
Beach, Martha Lorraine Beach, and companies under Mr. Beachs control,
collectively, the Beach parties. The respondents are companies under the
control of Gavin Marshall, collectively, the Magenta parties. The appellants
and the respondents were involved in real estate developments. In the course of
their collaboration, the Magenta parties loaned money to the Beach parties,
secured by mortgages on properties owned by the Beach parties. The relationship
deteriorated, and in the litigation that followed, the Magenta parties sought
to enforce the mortgages by way of motions for summary judgment in three
different mortgage enforcement actions. Those motions were heard together by the
motion judge, who granted summary judgment in all three actions in a single set
of reasons. He refused to stay the enforcement of those judgments under r.
20.08 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, pending
the resolution of the Beach parties claims against the Magenta parties.
[2]
Although the appellants raise many
issues, they can be distilled into two:
1.
Did the motion judge err in granting the summary judgments?
2.
Did the motion judge err in declining to stay the enforcement of the
summary judgments?
[3]
I address these issues after setting out the facts and the motion
judges decision. For the reasons that follow, I would dismiss the appeals.
II.
Facts
(1)
The Parties Relationship
[4]
Mr. Beach first approached Mr. Marshall in 2013 for a loan. He had been
developing two waterfront properties on Loughborough Lake, north of Kingston,
with another individual whom he wished to buy out. Mr. Marshall first loaned
money to Mr. Beach secured by a number of mortgages and later invested in the venture.
They entered into two Joint Venture Agreements (the JVAs) in February and
July 2014, and collaborated on four residential land development projects,
specifically Applewood Lane and Johnson Point, both on Loughborough Lake, Pine
Point, and Cranberry Cove. However, one project, Cranberry Cove, was not
included in either JVA, though Mr. Beach claims that the parties had intended
the same arrangement to apply to it.
[5]
Under the JVAs, Mr. Marshall was primarily responsible for financing the
projects, and Mr. Beach was the project manager. Each JVA provided for each
partys Proportionate Share of that JVA, and both contemplated that each
party would contribute to development costs according to their proportionate
share.
[6]
The Beach parties borrowed money from the Magenta parties in order to
make their financial contributions to the projects. The loans were secured by
various mortgages on properties owned by the Beach parties, including some
unrelated to the projects. The mortgages listed below secured the loans. The
2013 mortgages preceded the JVAs.
(2)
The Mortgages
[7]
In April 2013, Mr. Marshall and his spouse loaned funds through RRSPs they
held with Canadian Western to the Beach parties, secured by two mortgages,
collateral to one another. The advances were made on April 4, 2013 for $801,443,
and on October 17, 2014 for $8,847. The Beaches used the funds to discharge the
mortgages on their principal residence and to repay other debts. The maturity
date was April 3, 2014. The amount due and owing under these mortgages, as of
September 4, 2019, was $780,853.74.
[8]
In December 2013, Heliotrope, a company owned by Mr. Marshall, loaned
funds to the Beach parties, secured by a mortgage. The advance was made on
December 31 for $300,000. The funds were used to pay down an existing mortgage
on one of the development properties. The maturity date was January 20,
2014, which was extended to October 31, 2015. The amount due and owing, as
of September 4, 2019, was $488,359.80.
[9]
In February 2014, through Canadian Western, the Magenta parties loaned
funds to the Beach parties secured by two mortgages. The advances were made on February
14, 2014 for $1,087,616, and on October 17, 2014 for $240,779. The funds
were used to discharge two previous mortgages on the development properties,
totaling $1 million. The balance of funds went to the Beaches personal debts, to
some joint venture expenses, and a previous mortgage on a development property.
The amount due as of July 9, 2019 was $2,171,265.71.
(3)
The Litigation
[10]
After cost overruns and delays on the projects, the relationship between
Mr. Beach and Mr. Marshall soured and a flurry of litigation
commenced.
[1]
Mr. Beach was the first to threaten litigation
[2]
but the Magenta parties sued first on May 11, 2018, for the enforcement of
promissory notes totaling over $1.1 million (the Promissory Notes action). On
May 22, 2018, the Beach parties sued the Magenta parties, pleading breach of
contract, breach of fiduciary duties, bad faith, and constructive trust claims
over Cranberry Cove (the JVA action).
[11]
Between June 22, 2018 and July 4, 2019, the Magenta parties started five
mortgage enforcement actions, including the three decided in the summary
judgment motions under appeal.
[12]
On September 25, 2020, Mr. Beach sued the Magenta parties claiming
wrongful termination and breach of human rights, as well as breach of contract
and breach of fiduciary duties (the Wrongful Termination action).
Counterclaims have been made in many of these actions, as described in more
detail below. The parties have also issued crossclaims in other actions: in an
action started by the Magenta parties against Above All Builders, the
homebuilder engaged in building homes on some of the lots on the JVA properties;
and in an action brought by the prospective buyers of a home on one of the JVA
properties, where the buyers sued Above All Builders, 1324789 Ontario Inc.
(132 Ontario), and the Magenta parties for the return of deposits after the
home was not completed by the outside occupancy date.
[13]
Many interlocutory motions have been argued in the litigation, including
for the appointment of a receiver-manager, certificates of pending litigation,
contempt orders, and injunctions. Decisions and costs orders have been issued
on many of these motions. Most, but not all, were decided by the motion judge,
who has been case managing this morass of litigation.
III.
The Motion Judges Decision
[14]
The Beach parties did not dispute that the Magenta parties had advanced
the monies secured by the mortgages or that the mortgages were in default. The
motion judge found the three mortgages to be enforceable and granted summary
judgment.
[15]
The Beach parties made four arguments before the motion judge. First,
they defended on the basis of an alleged forbearance agreement, relying on
emails from Mr. Marshall in which he suspended the obligation to make payments and
advised the Beach parties that he would forbear enforcement in anticipation of
the sale of lots. However, the motion judge pointed out that the legal effect
of these emails was considered by Ryan Bell J. in
Canadian Western Trust
Company v. 1324789 Ontario Inc.
, 2019 ONSC 4789, at paras. 26-27,
who found that the emails did not satisfy the requirements of the
Statute
of Frauds
, R.S.O. 1990, c. S.19, and as a result, the alleged forbearance
agreement was unenforceable. Her decision was not appealed, and the motion
judge agreed with her conclusion. The motion judge quoted Archibald J., who
said in
SK Properties & Development Inc. v. The Equitable Trust Co
,
[2003] O.J. No. 2234 (S.C.), at para. 18:
[T]he principle of equitable estoppel cannot be invoked in
these circumstances to modify the principle that a variation of a mortgage must
be in writing. In my view, the public policy behind that principle is obvious.
Parties must be able to conduct their business on an orderly basis. Mortgage
agreements such as the one before the court must be reduced to writing so that
there can be clarity and certainty in business negotiations. Any extensions or
renewals must also be in writing for that sound policy reason.
[16]
The motion judge found that there had been no part performance of the
alleged verbal forbearance agreement. Mr. Beachs actions in becoming project
manager, doing extra work, and incurring debt, did not fall within the doctrine
of part performance, and he could show no relevant detrimental reliance.
[17]
The Beach parties second argument was that the Magenta parties had
wrongly allocated revenue from the sale of lots to pay down the Beach parties other
debts rather than the debts secured by the three mortgages. The motion judge found
that the parties had agreed in the JVAs that debt incurred in relation to the projects
would be repaid before revenue from the sale of the lots would be shared
between them. Further, he found that Mr. Marshall was entitled to use proceeds
from lot sales to pay down other loans instead of those at issue on the summary
judgment motions, and to apply those proceeds in priority to unsecured loans
made to the Beach parties.
[18]
The Beach parties third argument was that summary judgment on the
mortgages would constitute impermissible partial summary judgment in the overall
context of the lawsuits among the parties. The motion judge found that while
these mortgage actions are related to the lawsuits brought by the Beach
parties, the legal issues are distinct. In his view, granting judgment would advance
the litigation as a whole. There was no risk of inconsistent findings of fact,
and no risk of substantive injustice because the Beach parties would not be
prevented from pursuing their claims for damages.
[19]
The Beach parties fourth argument was that enforcement of the judgments
should be stayed under r. 20.08 of the
Rules of Civil Procedure
pending
the determination of other litigation between the parties. The motion judge
declined to stay the enforcement of the summary judgments, finding little merit
in the Beach parties claims, insufficient evidence of prejudice to the Beach
parties in the enforcement of the summary judgments, and prejudice to the Magenta
parties if a stay were to be granted.
IV.
Fresh Evidence
[20]
Before turning to the issues, I address the Beach parties fresh
evidence motion. The test for admitting fresh evidence is well established. The
party seeking to introduce it must show that the proposed evidence is credible,
could not have been obtained by reasonable diligence before trial or
application, and if admitted, would likely be conclusive of an issue in the
appeal. The admission of the fresh evidence must be in the interests of
justice:
St. Amand v. Tisi
, 2018 ONCA 106, 89 R.P.R. (5th) 1, at para.
8.
[21]
The Beach parties wish to introduce:
·
Final appraisal reports on the sale prices of properties sold by
the Magenta parties under the power of sale since the motion judge decided the
enforcement motion, to demonstrate that the Magenta parties sold these
properties at below-market values;
·
A Recommended Report to Frontenac Council, prepared by Joe
Gallivan, Director, Planning & Economic Development, in which he recommended
extending the approval for one of the JVA projects for six months, to
demonstrate that the Magenta parties were motivated to delay the project to
accrue further interest on the mortgages;
·
A September 2019 affidavit of Mr. Beach, with exhibits, and a May
2017 email authored by Mr. Marshall, to demonstrate that Mr. Marshall breached
the principle of good faith and the duty of honest performance in relation to
Cranberry Cove.
[22]
The Cranberry Cove documents were available to the Beach parties when
the motion judge heard the summary judgment motions and are not properly fresh
evidence. The other fresh evidence purportedly strengthens the claims of the
Beach parties in the counterclaims and the other actions, but is of marginal
relevance on this appeal. The final appraisals are arguably indicative of reduced
prejudice to the Magenta parties if a stay were granted under r. 20.08, because
the property values are higher. However, with reasonable diligence, the
appraisals could have been obtained before the motions were heard.
[23]
I would therefore not admit the fresh evidence on appeal.
V.
Analysis
[24]
As noted, there are two primary issues on appeal: did the motion judge
err in granting the summary judgments and in refusing to stay the judgments. The
Beach parties raised only the second issue in their initial appeals, asserting
that the motion judge applied the wrong test in refusing to grant a stay of enforcement
under r. 20.08. The Beach parties moved successfully for leave to appeal the
entire judgment and amended their notices of appeal to raise more issues.
[25]
The Beach parties add the claim that the motion judge erred in allowing Mr. Marshall
to allocate sale proceeds contrary to the JVAs. However, the Magenta parties
point to clear evidence that the Beach parties did not object to these
allocations at the time they were made. The motion judge did not find any
misallocation, but found that Mr. Marshall was entitled to allocate the funds
as he did under the JVAs. The Beach parties do not challenge this finding or the
motion judges interpretation of the JVAs by which he reached it.
[26]
The Beach parties argue that the claims they advance in their
counterclaims, in the JVA action and in the Wrongful Termination action (which
was started after the date of the judgments under appeal), warrant reversal of
the summary judgments. They assert that the motion judge failed: to apply
doctrines of good faith, fiduciary duty, and unconscionability, to determine whether
the JVAs created a fiduciary duty, to review the evidence of Mr. Marshalls bad
faith conduct, to consider whether the bad faith terminations provide grounds
to reverse the summary judgments, and to determine whether the JVAs are
unconscionable.
[27]
With respect, these are not properly constituted issues on this appeal. The
motion judge considered whether the Beach parties counterclaims could render
the mortgages unenforceable and found they could not. That finding is not
directly challenged.
[28]
I now turn to the two issues.
VI.
Issue One: DID THE MOTION JUDGE ERR IN GRANTING The SUMMARY JUDGMENTs?
[29]
The Beach parties argued below that summary judgment should be denied
because it would, in effect, constitute partial summary judgment in the context
of all the litigation in which the parties are involved.
[3]
On appeal, the Beach parties assert that their counterclaims make summary judgment
inappropriate.
(1)
Standard of Review
[30]
The standard of review for a decision to grant summary judgment is
deferential, except if there are extricable errors:
Baywood Homes
Partnership v. Haditaghi
, 2014 ONCA 450, 120 O.R. (3d) 438, at
para. 30;
Service Mold + Aerospace Inc. v. Khalaf
, 2019 ONCA 369, 146
O.R. (3d) 135, at paras. 14-15.
(2)
Partial Summary Judgment
[31]
The motion judge summarized the Beach parties arguments that granting
the motion would, in effect, constitute partial summary judgment and that
these three motions would be akin to partial summary judgment because the
issues are significantly intertwined with those raised in the lawsuit commenced
by 132 Ontario.
[4]
The motion judge did not expressly agree with the Beach parties that these were
effectively motions for partial summary judgment but he addressed their
argument.
[32]
Summary judgment might not be in the interest of justice where there is
a risk of duplicative proceedings or inconsistent findings of fact:
Hryniak
v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 60. See also
Baywood
Homes
, at para. 34;
Canadian Imperial Bank of Commerce v.
Deloitte & Touche
, 2016 ONCA 922, 133 O.R. (3d) 561, at
paras. 36-38, leave to appeal requested but appeal discontinued, [2017] S.C.C.A.
No. 58;
Butera v. Chown, Cairns LLP
, 2017 ONCA 783, 137 O.R. (3d) 561,
at para. 25; and
Service Mold
, at paras. 14, 17-18. However, in some
cases, the resolution of an important claim against a key party could
significantly advance access to justice, and be the most proportionate, timely
and cost-effective approach:
Hryniak
, at para. 60.
[33]
The motion judge was alive to these requirements, citing the following
passage from para. 34 of
Butera
:
A motion for partial summary judgment should be considered to
be a rare procedure that is reserved for an issue or issues that may be readily
bifurcated from those in the main action and that may be dealt with
expeditiously and in a cost effective manner. Such an approach is consistent
with the objectives described by the Supreme Court in
Hryniak
and with
the direction that the Rules be liberally construed to secure the just, most
expeditious, and least expensive determination of every civil proceeding on its
merits.
[34]
The motion judges analysis of the appropriateness of summary judgment
in this case was brief. He stated, at para. 54:
Although the debt enforcement actions are connected to the
lawsuit because they involve the same parties and relate to loans made to the
Beaches, the legal issues are distinct. There is no serious dispute that the
mortgages and promissory notes are valid, that the money was loaned and the
defendants have defaulted in payment of all the loans. They are claims that can
be easily determined. The litigation as a whole will be advanced by dealing
with them separately as the factual and legal issues can be summarily
determined without the need to make any credibility findings. There is no risk
of inconsistent findings of fact. There would also be no substantive injustice
because 132 Ontario can still pursue its claim for damages based on Mr.
Marshalls alleged wrongful conduct.
[35]
The motion judge clearly adverted to and found absent the reasons
why partial summary judgment would not be advisable. His reasons should be read
in the context of the litigation between these parties as a whole, including
his own decisions on related motions. His decision not to consolidate the two
other Magenta debt enforcement actions with the JVA action is particularly
helpful in this regard.
[5]
There (i.e., in
Heliotrope v. 1324789 Ontario Inc.
, 2020 ONSC 808), the
motion judge stated, at para. 15:
If the pleadings were the sole consideration, I would agree
that there appear to be common factual and legal issues which would tend to
support a consolidation order. But this motion comes more than 18 months after
the litigation was commenced and the evidentiary record demonstrates that the
most expeditious and inexpensive determination of the disputes between the
parties is to order that the debt enforcement actions proceed separately from
the action commenced by 132 Ontario. I am also satisfied that there is no risk
of inconsistent judicial findings in doing so.
[36]
He continued, at para. 18:
If 132 Ontario is successful in its action, it would be
entitled to an award of damages. None of the claims made by it would have to be
re-litigated in the debt enforcement actions. The counterclaims in each of
those actions, because they duplicate the ones made in 132 Ontarios lawsuit,
would not have to be tried. Rather, the trial in 132 Ontarios action would
proceed first and the result of that trial would dictate the outcome for each
of the counterclaims.
[37]
Although there appeared to be common factual and legal issues between
the Beach parties counterclaims in the Magenta debt enforcement actions and
their own claims in the JVA action that would ordinarily favour consolidation,
the motion judge found no risk of inconsistent findings of fact if he refused the
Beach parties motion. That conclusion was supported by his careful
consideration of whether the Beach parties claims could undermine either the
enforceability of the mortgages or the amounts owing. The Beach parties
received the money advanced under the mortgages and are in default.
[38]
The motion judge was deeply familiar with the lawsuits, the issues, the
facts, and the parties, and has made several rulings in the litigation. He was clearly
of the opinion that the most efficient route to resolving the disputes between
the parties would be for the substantive counterclaims in the mortgage
enforcement actions to be heard in the trial of the JVA action. He found that ordering
summary judgment would not duplicate proceedings or judicial efforts, and would
mitigate rather than cause delay. As the motion judge noted in his 2020 ONSC
808 decision, at para. 8, apart from the three motions on which he granted
summary judgment, the litigation remains at the pleadings stage. In these
circumstances, the orders for summary judgment advanced the
Hryniak
objectives
of proportionality, efficiency, and cost-effectiveness.
[39]
I would defer to the motion judges assessment in light of his grasp of
the state of play in the obscuring blizzard of litigation and dismiss the Beach
parties appeal of the summary judgments.
VII.
Issue Two: DID THE MOTION JUDGE ERR IN DECLINING TO GRANT A STAY OF
EXECUTION?
[40]
The Beach parties argue that the motion judge should have stayed the summary
judgments under r. 20.08 of the
Rules of Civil Procedure
pending the
determination of other issues in the parties litigation. Rule 20.08 provides:
Where it appears that the enforcement of a summary judgment
ought to be stayed pending the determination of any other issue in the action
or a counterclaim, crossclaim or third party claim, the court may so order on
such terms as are just.
[41]
The Beach parties argue that the motion judge erred by applying the
wrong standard. They submit that a stay should be granted under r. 20.08 unless
the counterclaim is without merit. As Epstein J.A. stated in
Hinke v.
Thermal Energy International Inc.
, 2012 ONCA 635, at para. 29:
The law is clear that a stay should be granted unless the
counterclaim is without merit:
Freedom International Brokerage Company v.
Anastakis (2006)
, 21 B.L.R. (4th) 246 (Ont. S.C.). It is significant that
Hinke
did not, in the relief sought in
his motion for summary judgment, seek dismissal of the counterclaim. By
inference,
Hinke
must consider
the counterclaim as having sufficient merit so as to raise a genuine issue
requiring a trial.
Hinke
reflects a line of jurisprudence
spanning several versions of the rules governing civil procedure in Ontario.
[42]
However, the motion judge relied on the approach to r. 20.08 described
in
Zucchetti Rubinetteria S.P.A. v. Natphil Inc.
, 2011 ONSC 2275, at
para. 15,
per
Perell J., affd 2011 ONCA 726:
The jurisdiction to grant a stay is discretionary and depends
on the facts of the case. In exercising its discretion, the court will consider
such factors as: (a) whether the plaintiff resides out of the jurisdiction
or is impecunious and potentially unable to satisfy a judgment on the
defendant's counterclaim; (b) whether factually the claim and the counterclaim
are closely connected; (c) whether the counterclaim appears to be meritorious;
(d) whether the counterclaim was tardy or appears to be an afterthought to the
plaintiffs claim; and (e) whether the counterclaim appears to have been brought
for delay or for tactical reasons. [Citations omitted.]
[43]
The motion judges discretionary, multi-factorial approach to r. 20.08
is also well-supported by the jurisprudence.
[6]
(1)
The Governing
Principles Concerning Stays Under r. 20.08
[44]
Two distinct and somewhat inconsistent approaches to r. 20.08 have
emerged. The first might be called the merits test, which arose in the
jurisprudence under the old
Rules of Practice
. The second is the
multi-factorial test, which has emerged since 1985 under the
Rules of Civil
Procedure
. I explain the origin of each test and then consider how they
should be reconciled.
(a)
The Merits Test
[45]
The merits test is reflected in
Hurwitz v. Baz
, [1955] O.J. No.
352 (C.A.), an oral endorsement of this court under the old
Rules of Practice
.
The court said:
Rule 56, which has been called to our attention, provides a
counter claim shall be deemed to be a defence within the meaning of the rule.
The affidavit of merits does set up a counter claim and there is nothing in the
record to show that that counter claim is without [merit]. We are, therefore,
of the opinion that the learned Judge erred in directing judgment to be entered
for the plaintiff in these circumstances without staying proceedings on the
claim of the plaintiff until the counter claim was disposed of.
[7]
[46]
To explain the terminology at play, I note that the old
Rules of
Practice
allowed the plaintiff to issue a specially endorsed writ of
summons
where the claim was to recover a debt or
liquidated demand in money arising in certain prescribed circumstances, such
as recovery on a cheque, promissory note, or bill of exchange, or recovery on a
mortgage.
[8]
To defend against a specially endorsed writ, the defendant was required to serve
and file an affidavit of merits setting out a defence to the action within 15
days.
[9]
If the defendant did not do so, the plaintiff was entitled to sign default
judgment and proceed to execution. Under r. 42(4), a counterclaim was deemed to
be a defence to a specially endorsed writ. The plaintiff could cross-examine
the defendant on the affidavit of merits, and either move for judgment or
convert the action into one destined for trial.
[10]
[47]
Rule 118 of the
Rules of Practice
applied where the defendant
had a counterclaim. It provided: Where a defendant does not dispute the
plaintiffs claim but sets up a counter-claim, the court may stay proceedings
respecting the claim until the counterclaim is disposed of. This court invoked
r. 118 in
General Printers Ltd. v. Algonquin Publishing Co.
,
[1970] O.J. No. 1534 (C.A.), and found, at para. 5, the appropriate
question to be whether the counterclaim could give rise to a triable issue or
whether the defendants would necessarily fail to gain success.
[11]
[48]
As can be seen by this courts decision in
Hinke
in 2012, the
merits test survived the adoption of the
Rules of Civil Procedure
in
1985.
[12]
[49]
The gist of the jurisprudence on the merits test for a stay can be
distilled. First, the court may stay the judgment if the defendant alleges a
legal set-off, as Strathy J. (as he was then) noted in
Univar Canada Ltd.
v. Pax-All Manufacturing Inc.,
2008 CanLII 44741 (Ont. S.C.), at para. 12:
There are two requirements of legal set-off. First, both
obligations the plaintiff's claim and the defendant's claim for which set-off
is asserted must be debts. Second, the debts must be mutual
cross-obligations. A mutual cross-obligation is a debt due from each party to
the other for liquidated sums, or money demands which can be ascertained with
certainty at the time of pleading: see
Telford v. Holt
[(1987), 41
D.L.R. (4th) 385] at 393.
[50]
Second, the court may stay the judgment if the counterclaim constitutes
an equitable set-off, as Strathy J. noted in
Univar
. He set out the
elements of equitable set-off, at para. 15, summarizing this courts test in
Algoma
Steel Inc. v. Union Gas Ltd.
, [2003] O.J. No. 71 (C.A.), at para. 26:
1.
The party relying on a set-off must show some equitable ground for being
protected against the adversary's demands.
2.
The equitable ground must go to the very root of the plaintiff's claim.
3.
A cross-claim must be so clearly connected with the demand of the
plaintiff that it would be manifestly unjust to allow the plaintiff to enforce
payment without taking into consideration the cross-claim.
4.
The plaintiff's claim and the cross-claim need not arise out of the same
contract.
5.
Unliquidated claims are on the same footing as liquidated claims.
[51]
Third, the court will consider the strengths and weaknesses, or the
merits of the counterclaim. As noted in
Hinke
, a stay will be issued
where the counterclaim has some merit. If the counterclaim is without merit or
a sham, a stay will not be issued.
[52]
The underlying purpose of the merits test for a stay is to ensure that
the defendants claims against the plaintiff are fully determined on their
merits before the plaintiff can enforce judgment.
(b)
The Multi-Factorial Test
[53]
The multi-factorial test emerged from the policy orientation of the
Rules
of Civil Procedure
. Walter Williston was tasked with proposing a
modernization of the
Rules of Civil Procedure
and released his
proposal in June 1980. The terms of reference provided to him included the need
to balance expense
against convenience, efficiency and social purpose and
the consideration of alternative, more expeditious and less formal
adjudicative procedures.
[13]
In describing the proposed changes to summary judgment, he described how
plaintiffs had seldom been able to obtain judgment on contested specially
endorsed writs: No matter how shadowy or unlikely a defence is disclosed by
the Affidavit, the Court has been exceedingly reluctant to allow the plaintiff
to obtain judgment without giving the defendant the right to go to trial.
[14]
Mr. Willistons proposal included the current wording of r. 20.08.
[15]
[54]
Morden J.A. was tasked with the revision of the
Rules of Civil
Procedure
after Mr. Willistons death. He noted that the goal presented in
r. 1.04(1), being the just, most expeditious and least expensive determination
of every civil proceeding on its merits, must be balanced against the
competing demands of the desire to provide a mechanism that will assist in
ascertaining the truth, on the one hand and, on the other, the concern not to
make litigation too cumbersome or expensive.
[16]
Balancing is necessary because it is not possible to achieve perfection in the
solution to all problems.
[17]
[55]
The discretionary, multi-factorial approach allows for a stay to be
refused where its imposition would lead to prejudice, or disproportionate delay
or expense to the plaintiff. It seeks to achieve the effective summary judgment
procedure sought by Mr. Williston and the balance sought by Morden J.A.
(c)
A Restated Multi-Factorial Approach to r. 20.08
[56]
In 35 years of experience with r. 20.08, judges have developed several
factors to be taken into account in considering whether to exercise discretion
to grant a stay under r. 20.08.
[18]
The principle of fundamental fairness is the basis for equitable set-off, which
underpins the rule and requires an assessment of the equities between the
parties.
[19]
The multi-factorial test can now be restated.
[57]
The first factor is the merits of the counterclaim. On balance, the
stronger the merits, the more likely the stay. If there is little or no merit
to the counterclaim, a stay is not warranted. But if there is some merit, a
stay might be warranted because it might be impossible to know before the trial
of the counterclaim who will be the net winner and it would be unjust to compel
the defendant to pay the judgment in advance. A court is therefore required to
undertake a more robust assessment of the merits rather than making a simple
finding that the counterclaim is not without merit.
[20]
Other factors must also be considered and balanced. For example, a legal
set-off is a complete defence to the extent of the set-off and might warrant a
partial, if not a complete, stay of the plaintiffs judgment.
[21]
The analysis of the impact of an equitable set-off is more nuanced, as the next
factors show.
[58]
The second factor is the relationship between the judgment and the
counterclaim. On balance, the closer the relationship, the more likely the
stay.
[22]
If the relationship is very close, for example, in the context of the same or a
closely connected transaction, then the argument is stronger that it would be
unfair or unjust to allow the plaintiff to enforce a judgment before the
disposition of the counterclaim. If the parties are the same but the disputes
are not factually related, then the fairness argument is weaker.
[59]
The third factor is the conduct of the defendant, including whether the
counterclaim was launched late, or for strategic purposes, or for the purpose
of delay. Questionable litigation strategy is part of this factor, including
the failure to diligently pursue the counterclaim.
[23]
[60]
The fourth factor is the balance of prejudice to the parties. As examples,
a court might need to balance the plaintiffs need for the funds as against a
weak counterclaim,
[24]
assess whether the defendant is able to pay the judgment now but possibly
unable to do so in the future, or consider if the plaintiff is impecunious or
resides out of the jurisdiction, which puts in doubt the defendants recovery
on a counterclaim that has some merit.
[25]
[61]
The fifth factor is whether the terms of a stay can sufficiently
mitigate the negative effects on the plaintiff. Rule 20.08 provides that where
it appears a judgment ought to be stayed, the court may do so on such terms as
are just. In describing the phraseology and syntax adopted in drafting the
Rules
of Civil Procedure
, Morden J.A. commented that the phrase, as are just
or as is just, confers the power described in objective rather than
subjective terms (as may be expressed by as are considered just).
[26]
As examples, the court could make an order requiring the payment of the
judgment into court,
[27]
requiring the judgment to be paid on a net basis where the judgment exceeds the
counterclaim,
[28]
or requiring the trial of the counterclaim to be expedited where that has a
realistic prospect of success.
[29]
[62]
The factors set out above are interrelated but not exhaustive. More than
one can apply in any given situation.
[63]
This restated multi-factorial approach has substantial support in the
cases, and, in my view, best achieves both the purposes of r. 20.08 and the
summary judgment procedure as well as the goals of the
Rules of Civil
Procedure
more broadly in securing the just, most expeditious and least
expensive determination of every civil proceeding on its merits.
(2)
Application to the Appeals
[64]
Recall that there are many actions between the Magenta parties and the
Beach parties with many counterclaims and crossclaims. These are summarized in
the Appendix. The motion judge appears to have been case managing them.
[65]
The business relationship between the parties is irretrievably broken.
This litigation is, in short, a recovery exercise in which it is in the
interests of both parties to maximize the values of the properties subject to
the JVAs and to sell them, with the proceeds used to pay off the loans. Under
the JVAs, this is the responsibility of Mr. Marshall. The motion judge noted,
at para. 62:
The parties had the good sense to retain lawyers at the outset
and negotiate agreements that governed their rights and obligations. There is
nothing unfair in holding them to the bargain they made. This is especially the
case where, as here, the debtors greatly benefited from the loans when they
were made.
[66]
There is potential unfairness to the Beach parties in enforcing the
summary judgments before their counterclaims are determined. In assessing
whether they were entitled to a stay, the motion judge used the multi-factorial
test and relied on the factors set out by Perell J. in
Zucchetti.
He
did not err in doing so.
(a)
The Merits of the Counterclaims
[67]
The merits of the counterclaim is the first factor in the restated test.
The motion judge assessed the merits of the counterclaims, at paras. 60-61:
The counterclaims in these three actions mirror those made in
the lawsuit commenced by 132 Ontario. As I noted at the outset of these reasons,
I concluded in my earlier decision that the claims made in that lawsuit were
not strong ones. The defendants did not adduce any evidence in these motions
that would cause me to change my opinion. Despite the passage of almost two
years, the defendants have still not provided any evidence that there was third
party financing available at lower interest rates. Nor have they even attempted
to do so for example, by identifying financial institutions or other lenders
that might have provided such financing but were not solicited by Mr. Marshall.
The lawsuit rests on alleged breaches of fiduciary duty which, as I noted
before, is a steep road to climb in this type of commercial dispute and an
amorphous bad faith allegation.
There is also no evidence that Mr. Marshall engaged in a
fraudulent scheme aimed at depriving the defendants of their potential profit
from the joint venture. Although not labelled as fraudulent, 132 Ontario made,
in substance, the same allegation in the statement of claim and the motion for
an interlocutory injunction. I made a finding on this issue in my previous
decision, stating that it was an unsupportable grievance. There were voluminous
affidavits filed in these motions and the other ones I heard in December of
last year and also extensive cross-examinations. The defendants did not present
any new evidence in the motions that would change my conclusion.
[68]
The earlier decision referred to in para. 60 of the motion judges
reasons was his decision in
1324789 Ontario Inc. v. Marshall
, 2019
ONSC 517, where he dismissed a Beach motion for the appointment of a
receiver-manager, or for an interlocutory injunction restraining Mr. Marshall
from taking steps to remove Mr. Beach as the manager, or from taking steps
to compel the payment of Mr. Beachs debt. The motion judge addressed the
merit of Mr. Beachs claims in his earlier decision, at paras. 33-37, which he then
invoked in para. 60 of the judgments under appeal:
The plaintiffs claim arising from MWDCs [Magenta Waterfront
Development Corporations] failure to obtain third party financing at lower
interest rates, on the basis of the record before me, is weak. The Joint
Venture Agreements required reasonable efforts by MWDC to obtain this funding
and it has provided detailed evidence of the efforts made by it. The plaintiff
did not submit any countervailing evidence that such funding was available but
maintains that this is a triable issue. It complains that Mr. Marshall did
not offer his personal guarantee in order to secure a loan when he said that he
would do so. At its highest, this was a pre-contractual representation which is
not likely legally enforceable. The Joint Venture Agreements specifically
imposed this obligation on Mr. Beach and his wife, not Mr. Marshall.
Finally, when the plaintiff and the Beaches borrowed the money, it was at their
request and they signed documents which clearly identified the interest rates.
The argument that they had no choice but to borrow the money is without merit.
Although it is disputed by MWDC, I am prepared to find, for the
purposes of this motion, that the work performed by Mr. Beach as project
manager was more extensive than originally contemplated by the parties.
However, the Joint Venture Agreements did not impose an obligation on MWDC to
increase his remuneration. Therefore, it did not breach the Agreements by
declining to do so.
The plaintiff will have an uphill battle in establishing that
MWDC owed it a fiduciary duty that superseded, or was in addition to, the terms
of the Joint Venture Agreements.
Even if the plaintiff is able to establish a fiduciary duty, I
have difficulty in ascertaining what that fiduciary duty is and how it was
breached by MWDC. In the statement of claim, the plaintiff alleges that MWDCs
failure to obtain the third party financing was a breach of fiduciary duty but
this cannot be because its obligation was specifically set out in the Joint
Venture Agreements. The other alleged breach was MWDCs refusal to renegotiate
Mr. Beachs remuneration. The plaintiff pleads, in the alternative, that
this was a breach of the reciprocal obligations of good faith and loyalty.
Again, the parties rights and obligations in this regard are covered by the
Agreements.
I conclude that there are serious issues
to be tried because I cannot say the claims are frivolous or vexatious but I
would not find that the plaintiff has made out a strong
prima facie
case.
[Emphasis added.]
[69]
While the motion judge found that the claims were not frivolous or
vexatious, he did not find them to be without potential merit. However, he was
clearly of the well-considered opinion that the claims have only minimal
potential merit and a small chance of success. This was not an unreasonable
assessment.
(b)
The Connection Between the Claims and Counterclaims
[70]
There is a clear connection between the Magenta claims and the Beach counterclaims
in the mortgage enforcement actions. While some of the mortgages were granted before
the JVAs were signed, advances on two of the three mortgages were used to pay
down other debt on the joint venture properties. The mortgages arose out of a
single course of dealings between the Beach parties and the Magenta parties, and
their collaboration in bringing the development projects to completion.
Considered on their own, these facts would favour a stay.
(c)
The Conduct of the Defendants
[71]
The motion judge considered, at para. 57, the more narrowly framed
factors from
Zucchetti
of whether the counterclaim was tardy or
appears to be an afterthought and whether the counterclaim appears to have
been brought for delay or for tactical reasons. Here, while the Beach parties
claims were not the first claims brought, the Beach parties were the ones who
raised the prospect of litigation, and they brought their claims shortly after
the Magenta parties launched the Promissory Notes action. The Beach parties
also brought the JVA action before any of the mortgage enforcement actions were
commenced.
[72]
However, despite their initial eagerness, some of the Beach parties
conduct during the litigation could be seen as a failure to diligently pursue
their claims. At the same time that the motion judge heard the motions for
summary judgment, he heard a Beach motion for the consolidation of various
actions involving the parties. He noted, at para. 8 of the latter decision (
Heliotrope
v. 1324789 Ontario Inc.
, 2020 ONSC 808), that both sides have
focused their efforts on bringing interlocutory motions rather than advancing
the litigation in the usual manner. Although the motion judge, at para. 20, did
not blame either side for the delay in moving beyond the pleadings stage, such
litigation conduct does not elicit patience and indulgence from this court.
[73]
The motion judge also specifically referenced Ryan Bell J.s criticism
of the Beach parties reprehensible litigation conduct in footnote six to
para. 63 of his reasons for summary judgment. The Beach parties had brought
motions for certificates of pending litigation over the lands on which the
Magenta parties sought to enforce mortgages. In
Canadian Western Trust
Company v. 1324789 Ontario Inc.
, 2019 ONSC 5948, Ryan Bell J. stated, at
paras. 8-9:
The Beach parties motion was an ill-conceived effort to stop
power of sale proceedings in the absence of any evidence of fraud or any
pleading of fraud in relation to the mortgages. They relied on the alleged
fraudulent scheme set out in paragraph 27 of their statement of defence and
counterclaim even though on its face, this allegation of fraud had nothing to
do with the validity of the mortgages or the Beach parties ability to redeem
the mortgages.
If the Beach parties had any basis to allege deliberate
wrongdoing by the Marshall parties in relation to the mortgages, they ought to
have tried to prove their allegation. They did not. This was not the tenacious
pursuit of a certificate of pending litigation founded on a serious claim of
fraud in relation to the mortgages. In my view, the pursuit of the motion was
reprehensible litigation conduct
that justifies punitive
cost sanctions. [Emphasis added.]
[74]
Ryan Bell J.s comments, taken together with the motion judges concerns
about the Beach parties contribution to the delay in moving the litigation
forward, suggest that the Beach parties conduct does not weigh in favour of
granting the stay.
[75]
Since the release of the decision under appeal, the parties have
continued with their litigation. The motion judges findings in subsequent
judgments confirm that the Beach parties litigation conduct does not weigh in
favour of granting the stay. In July 2020, the motion judge allowed a motion
from the Magenta parties requesting security for costs in the JVA action, based
on two costs awards that the Beach parties had not yet paid:
1324789
Ontario Inc. v. Marshall et al.
, 2020 ONSC 4651. The motion
judge determined, at para. 6(g), that:
[Mr. Beach] has been dilatory in advancing the litigation as a
whole. The lawsuit was started in May 2018 and remains at the pleadings stage.
The plaintiff has not delivered an affidavit of documents nor proposed or
agreed to a discovery plan.
[76]
In December 2020, the motion judge heard a Magenta motion seeking a
variety of relief essentially allowing Mr. Marshall to secure the completion of
the JVA projects without Mr. Beach, and restraining Mr. Beach from interfering.
[30]
In his decision,
1324789 Ontario Inc. v. Marshall et al.
, 2021 ONSC
86, the motion judge referred back to his decision in 2020 ONSC 7592, and
observed, at para. 10:
My guarded optimism that the parties could work together, to
their mutual benefit, was misplaced. Mr. Beach has continued to act,
particularly towards third parties, as if he has the legal authority under the
JVAs to dispute the decisions of Mr. Marshall if he believes that they are not
in his best interests. He has refused to execute documents that government
authorities require in order to approve the further development of the lands
and has taken the position that he will not do so unless and until certain information
is provided to him. In addition to not cooperating with Mr. Marshall, he has
communicated with third parties, including the municipality, its legal counsel
and the real estate broker handling the sale of lots, objecting to what Mr.
Marshall has done or is planning to do.
[77]
The motion judge proceeded to note, at para. 11, that Mr. Beach had
commenced another action (i.e., the Wrongful Termination action), and that
while the wrongful termination claim in that lawsuit seemed to have merit,
many of [the claims] are duplicative of the first action. He found, at para.
16, that Mr. Beachs conduct evinces a determination to obstruct Mr.
Marshalls efforts to complete the development of the lands, and accordingly
granted an interlocutory injunction against the Beach parties. The motion judge
commented, at para. 24: This action must move forward. It can no longer remain
at the pleadings stage, mired in costly interlocutory skirmishing. He directed
the parties to agree on a discovery plan within 60 days.
[78]
The Beach parties have not pursued their claims with any diligence or
dispatch. They have pursued ill-conceived motions, failed to pay costs awards
against them in a timely way, initiated new actions with duplicative claims,
and obstructed efforts to bring the JVA projects and hopefully with them the
litigation to a close. These facts seriously undermine any unfairness to the
Beach parties by refusing to grant them a stay of enforcement. Given their own
actions, the Beach parties can no longer expect patience and indulgence from
the court.
(d)
The Balance of Prejudice
[79]
The context for assessing prejudice was set by the argument of the Beach
parties, as noted at para. 58 of the motion judges decision: [T]he mortgages
are also on properties not included in the joint venture and a judgment at this
stage would be a substantial windfall for the plaintiffs; and there would be
no prejudice to the plaintiffs because the value of the properties exceeds the
debt owed to the plaintiffs. It is worth noting that the interest rates in the
mortgages are high so that the earlier payment of the mortgages might well
result in lower total interest costs.
[80]
While the Beach parties asserted on the motion that the enforcement of
the judgments would leave them unable to continue their litigation, the motion
judge found that they had not provided any evidence to substantiate this
assertion. He noted, at para. 63, they have not made comprehensive disclosure
of their financial position and to date have been able to fully engage in
costly litigation. This factor therefore did not bear on the motion judges
decision to deny a stay.
[81]
The motion judge considered the prejudice to the Magenta parties. He
observed, at para. 63: [T]he prejudice to the plaintiffs is certain: if a stay
is granted, they will not be repaid the millions of dollars they loaned to the
defendants until years down the road. Another potential prejudice was whether
the value of the property would exceed the debt. The motion judge was of the
view, based on the inadequate evidence put forward by the Beach parties, that
the value of the secured property was speculative.
[82]
From the perspective of the Beach parties, the motion judge observed
that the Magenta parties are not impecunious, noting in para. 63:
There is no risk that the defendants, if they succeed on their
counterclaims, would not recover any award of damages made against the
plaintiffs. The same is true in 132 Ontario's lawsuit.
[83]
This morass of litigation seems likely to continue for a good while
longer. While the Magenta parties might be able to recoup the debt from the
proceeds of the sales of lots on the JVA properties, Mr. Beach has acted to
delay that process. There is prejudice to the plaintiffs in being out of pocket
during the time it takes for either of these events to occur.
[84]
A term of the stay could be imposed to require the Beach parties to pay
the amount of the judgments into the court, but they appear unlikely to be able
to satisfy such a term. It does not appear possible to impose terms that would
render a stay order just in the circumstances. While there is disadvantage to the
Beach parties by refusing to grant a stay of the summary judgments, any
perceived unfairness is outweighed by their conduct and the potential prejudice
to the Magenta parties of granting a stay.
[85]
In the circumstances, I agree with the motion judges conclusion that a
stay under r. 20.08 should not be granted. I would defer to the exercise of the
motion judges discretion in refusing a stay. He was fully conversant with the
relevant factors and applied the correct principles. He made no error in
principle that warrants this courts intervention.
VIII.
CONCLUSION
[86]
In my view, the motion judge considered the relevant law and the
applicable factors in light of the complex facts with which he was deeply familiar,
both in respect of granting the summary judgments and refusing the stay. This
court should not intervene absent an error of law or principle, or a palpable
and overriding error of fact. The Beach parties have not established any of
these. The orders for summary judgment, even if they functionally operate as
orders for partial summary judgment, were appropriate in the circumstances, and
stays under r. 20.08 would not be. I would dismiss the appeals with costs
to the Magenta parties.
[87]
If the parties are unable to resolve costs, then the Magenta parties may
file written submissions no more than 3 pages in length within 14 days of the
date of the release of these reasons; the Beach parties may file written
submissions no more than 3 pages in length within 10 days of the date the
Magenta submissions are due; and the Magenta parties may file reply submissions
no more than 1 page in length within 5 days of the date the Beach submissions
are due.
Released: August 31, 2021 K.F.
P. Lauwers J.A.
I agree. K. Feldman
J.A.
I agree. Gary Trotter
J.A.
APPENDIX
I.
OVERVIEW
[1]
The Beach parties counterclaims in the mortgage enforcement actions
allege the following facts:
·
The Beach parties and the Magenta parties agreed to purchase
Cranberry Cove together.
·
While no JVA was executed in relation to Cranberry Cove, the
parties treated it like the other JVA properties. Promissory notes were
executed for the Beach parties share of the development costs in the same way
as for the other joint venture properties.
·
The Magenta parties alone purchased Cranberry Cove, but Mr.
Marshall represented that this was to reduce taxes and that he would transfer
title to be jointly held by the Magenta parties and the Beach parties, but
later failed or refused to do so.
·
For the JVA properties, the Beach parties were to fund their
proportional share of development costs under the JVA through promissory notes
or by registering mortgages in favour of the Magenta parties.
·
Both parties understood that these debts would be cured with the
proceeds generated by the sale of lots upon completion of the JVs.
·
The Magenta parties knew that the Beach parties would not be able
to satisfy these debts other than through the JV proceeds, and the parties
carried on under this understanding for four and a half years, with no demands
for payment made in that time.
·
Mr. Marshall only demanded payment under the mortgages after Mr.
Beach sought a restructuring of the interest on the debt because it was eroding
his equity in the projects.
·
This erosion was due to Mr. Marshalls failure or refusal to
obtain third party financing of these loans at lower interest rates, despite
being responsible for doing so under the JVAs.
·
Mr. Marshalls position allowed him to fund the JVs and enjoy the
proceeds, while saddling Mr. Beach with the risk.
·
By demanding payment on the mortgages before completion of the JV
work, Mr. Marshall ensured that Mr. Beachs interest in the JV would be eroded
and that Mr. Beach would not be able to share in the proceeds of the JVs.
[2]
On these facts, the Beach parties argue that Mr. Marshalls conduct is
high-handed and constitutes bad faith in contractual performance because:
·
Mr. Marshall knew or ought to have known that the defendants were
reliant on the proceeds from the completion of the JVA projects to satisfy
their indebtedness on the mortgages;
·
Mr. Marshall knew that demanding payment prior to completion
would price out the Beach parties from their interest in the JVs; and
·
There was no reason for Mr. Marshall to demand payment on the
dates that he did.
[3]
The Beach parties purport to plead and rely on all of the allegations in
their Statement of Claim in CV-18-178. They seek:
(a)
A
declaration that Mr. Marshall breached the contract between them, breached
fiduciary duties created in that contract, and acted in bad faith or in a
heavy-handed manner;
(b)
$2
million in damages for bad faith;
(c)
In
the alternative, $2 million in damages for breach of contract;
(d)
In
the further alternative, $2 million in damages for breach of fiduciary duty;
and
(e)
Costs
on a substantial indemnity basis.
II.
Comparison to Counterclaims in Other Actions
[4]
The Beach parties counterclaims in the actions at issue are almost
identical to their counterclaims in the two other mortgage enforcement actions
(CV-19-090 and CV-19-115), and in the Promissory Notes action (CV-18-167). In
each of the other counterclaims, the Beach parties repeat the same or very
similar factual allegations with regard to the structure of the JVAs and the
intention that the Beach parties debts would be repaid through the proceeds of
the completed JVA projects. On the basis of those facts, the Beach parties make
the same claims (bad faith, breach of contract, or breach of fiduciary duty)
and seek the same quantum of damages ($2 million).
III.
Comparison to Claims in the Beach Parties Actions
[5]
The counterclaims also mirror some of the claims made in the Beach
parties own actions: the JVA action (CV-18-178) and the Wrongful Termination
action (CV-20-84558).
(1)
Claims in the JVA Action
[6]
The JVA action seeks relief including:
(a)
A
declaration that the Magenta parties breached the contract and their fiduciary
duties, and acted in bad faith or in a high-handed manner;
(b)
$5
million in damages based on those breaches;
(c)
A
detailed interlocutory injunction related to the completion of the JVA projects;
and
(d)
A
declaration that the Beach parties have a beneficial and constructive interest
in Cranberry Cove.
[7]
The constructive trust claim is based on a breach of fiduciary duty,
unjust enrichment, or on a
quantum meruit
basis. The Beach parties
allege that Cranberry Cove was considered a JVA property and was being
developed on the same terms as the JVAs. Mr. Beach states that he did not wish
to borrow further from Mr. Marshall to purchase a share of the Cranberry
Cove development and that he preferred instead to be recognized for his sweat
equity in locating the opportunity. He expected this to be reflected in the
ownership of Cranberry Cove upon purchase, with himself and Mr. Marshall each
owning 50 percent as tenants in common. He later discovered that this had not
occurred.
[8]
The Beach parties also allege that:
·
Mr. Beach carried out management duties for four projects based
on compensation that was predicated on two contemplated projects.
·
Mr. Marshall failed to discharge his responsibility under the
JVAs to undertake reasonable efforts to secure third-party financing, resulting
in an inequitable situation and irreparable financial harm to the Beach
parties.
·
While the Magenta parties provided some evidence of efforts to
secure financing, these efforts were insufficient as they only targeted larger
lending institutions and did not seek modestly lower interest rates (focusing
only on prime plus one rates).
·
Mr. Beachs personal funds were required to fund the projects at
the high interest rates, which diminished his equity and return, while the
Magenta parties earned the interest and the increased value of the properties
due to Mr. Beachs work.
·
Mr. Marshall refused to negotiate compensation as required by the
JVAs, despite the changes in the scope of Mr. Beachs work. Mr. Marshall had
not engaged in the good faith efforts expected to genuinely restructure the JVAs
to compensate for his failure to secure better financing and to reflect the
increase in Mr. Beachs work.
·
The Magenta parties have full financial control, but have not
disclosed any financial statements or accounting. There has been no accounting
of how the proceeds from the lots already sold have been applied to the Beach
parties debts, other than an insufficient annual report of proceeds. Mr. Marshall
has dictated the application of proceeds.
·
The initiation of the Promissory Notes action comprises high-handed,
reprehensible conduct that warrants sanction.
[9]
Many of these factual allegations, and the pursuit of damages for bad
faith, breach of contract, or breach of fiduciary duty, are similar to the claims
made in the counterclaims.
(2)
Claims in the Wrongful Termination Action
[10]
There are some similarities between the claims in the Wrongful
Termination action and the counterclaims at issue. In the Wrongful Termination action,
Mr. Beach claims for breach of contract, breach of fiduciary duties, and
unjust enrichment, and seeks a rectification of the JVAs declaring that the
loans are only to be paid through the sale of lots. Other claims in the action
include wrongful termination, and breach of the obligation of good faith and fair
dealing in the manner of dismissal. Damages are claimed under a number of
heads.
[1]
The actions, and the crossclaims and counterclaims within the actions, are
summarized in the Appendix.
[2]
See
1324789 Ontario Inc. v. Marshall
, 2019 ONSC 517, at para. 21.
[3]
2020 ONSC 810, at para. 34.
[4]
Ibid
, at paras. 34, 53.
[5]
This decision does not appear to have been appealed.
[6]
See, for example,
Perdue v. Myers
, 2005 CanLII 30860 (Ont. S.C.), at
para. 34;
Univar Canada Ltd. v. Pax-All Manufacturing Inc.
, 2008
CanLII 44741 (Ont. S.C.), at para. 30, affd 2009 ONCA 341, 56 B.L.R.
(4th) 175;
Canaccord Genuity Corp. v. Sammy
, 2014 ONSC 3691, at para.
84;
and
Waverly
Corporate Financial Services Inc. v. Kanwal Inc
., 2018 ONSC 1469, at para.
11.
[7]
In the last version of the
Rules of Practice
before their replacement in 1985 by the current
Rules of
Civil Procedure
, r. 56 had become r. 42. See Walter B.
Williston & R.J. Rolls,
The Law of Civil Procedure
, vol. 2 (Toronto:
Butterworths, 1970), regarding the practice, in c. 7 regarding writs, and c. 9
regarding defences. See also George Holmested & George Alexander Gale,
Holmested
and Gale on the Judicature Act of Ontario and Rules of Practice
(Scarborough: Carswell, 1983), for all the historical referents.
[8]
Rule 33 in the last version of the
Rules of
Practice
.
[9]
Rule 35.
[10]
The process under r. 58 has no equivalent in the
Rules of Civil Procedure
but has been superseded by the summary judgment process.
[11]
See also
Pomocon Ltd. et al. v. Golias et al.
(1974), 4 O.R. (2d) 310
(Div. Ct.). Rule 118 became r. 58(5) in the final version of the
Rules of
Practice
.
[12]
Hinke
was applied most recently in
Janeric Engineering Inc. v.
2496110 Ontario Inc.
, 2020 ONSC 220.
[13]
Ontario, Ministry of the Attorney General, Civil Procedure Revision Committee,
Letter to Hon. R. Roy McMurtry, Q.C., from Walter B. Williston in
Report
of the Civil Procedure Revision Committee
(Toronto: Ministry of the
Attorney General, 1980) (Chair: Walter B. Williston), at p. 2.
[14]
Ibid
, at p. 19.
[15]
Ontario, Ministry of the Attorney General, Civil Procedure Revision Committee,
Proposed Rules of Civil Procedure in
Report of the Civil Procedure
Revision Committee
(Toronto: Ministry of the Attorney General, 1980)
(Chair: Walter B. Williston), at p.
67.
[16]
Ontario, Ministry of the Attorney General, Special Sub-Committee on the
Proposed Rules of Civil Procedure,
Final Report to the Rules Committee from
the Special Sub-Committee on the Proposed Rules of Civil Procedure
(Toronto: MAG, 1984) (Chair: Morden J.A.), at p. 92 [Morden Report].
[17]
Ibid.,
at p. 93.
[18]
The Superior Court has applied the discretionary, multi-factorial approach on
many occasions. See, for example,
Inveresk
PLC v. Precision Fine Papers Inc.
, 2008 CanLII 28054 (Ont. S.C.);
Hino Truck Centre
(Toronto) Ltd. v. Hino Motors Canada Ltd.
, 2009 CanLII 58979 (Ont. S.C.);
Goldberg
v
.
Desrochers
, 2009 CanLII 46444 (Ont. S.C.);
TD Waterhouse
Canada Inc. (TD Waterhouse Private Investment Advice) v. Little
, 2009
CanLII 43663 (Ont. S.C.), affd 2010 ONCA 145;
King v. McHugh
, 2009
CanLII 41361 (Ont. S.C.);
Faithshire Leasing Corp. v. 1589630 Ontario Inc.
,
2009 CanLII 55123 (Ont. S.C.);
Tubacex & Cotubes Canada Inc. v. Scan
Tube & Steel Services Ltd.
, 2009 CanLII 14052 (Ont. S.C.), appeal
abandoned, 2009 ONCA 809;
1578838 Ontario Inc. v. Bank of Nova Scotia
,
2011 ONSC 3482, 6 R.P.R. (5th) 332;
Jarmain v. Canadian Imperial Bank of
Commerce
, 2012 ONSC 1625;
1445369 Ontario Inc. v. Bandkohal
,
2013 ONSC 5481, 18 B.L.R. (5th) 326, revd in part, 2014 ONCA 346;
Montel
Inc. v. Kipawa Sales & Services Inc.
, 2014 ONSC 83;
Distributions
Katrina Inc. v. Enroute Imports Inc.
, 2018 ONSC 5644, affd 2019 ONCA 441;
and
Waverly
. See
also Garry D. Watson & Derek McKay,
Holmested and Watson:
Ontario Civil Procedure
(Scarborough: Carswell, 2020) at § 36:15 - Stay of Execution: Rule 20.08.
[19]
Comtract Air Compressors Inc. v. A.W. Service Industries Inc.
, 2000
CanLII 22763 (Ont. S.C.), at para. 28;
Liu v. Wong
, 2010 ONSC
5896, at para. 36.
Comtract Air Compressors
has since been followed on
many occasions. See, for example,
Elgrichi
v. Hornstein
, [2003] O.J.
No. 1308 (S.C.), at para. 10, affd [2004] O.J. No. 484 (Div. Ct.);
Brantford
Engineering and Construction Ltd. v. 1562772 Ontario Inc.
, [2007] O.J. No.
1636 (S.C.), at para. 38;
Parmalat Canada Inc. v. 703558 Ontario Ltd.
,
2008 CanLII 51775 (Ont. S.C.), at para. 68;
King
, at para. 12;
CBC v. iSport Media and Kevin
Albrecht
, 2014 ONSC 1905, 119 O.R. (3d) 211, at para. 45; and
Jones
Collombin Investment Counsel Inc. v. Fickel
, 2016 ONSC 6536, at para. 59.
I note that while the motion judge stated that this court, in
1652620
Ontario Inc. v. Cornerstone Builders Ltd.
, 2018 ONCA 973, cited
Jones
Collombin
with approval, the court, in fact, went no further than saying,
at para. 9, that [i]t would seem in those circumstances that a stay ought to
have been granted, as was done in
Jones
.
[20]
Liu
, at para. 36.
[21]
Univar
,
at
para. 12.
[22]
Iraco Ltd. et al. v. Staiman Steel Ltd.
, 1987
CarswellOnt 2398 (C.A.), at para. 2
;
Cuddy Food Products v. Puddy
Bros. Ltd
., [2002] O.J. No. 3181
(S.C.)
, at paras. 29-32.
[23]
Kilderkin Investments Ltd. v. Mastin
, 1991 CarswellOnt 413 (Gen.
Div.), at paras. 16-17.
Kilderkin
has been cited often. See, for
example,
Crown Life Insurance Co.
v. Medipac International Inc.
, [1996] O.J. No. 1633 (Gen. Div.), at para. 22;
Cheng v. Cheng
,
[1996] O.J. No. 3751 (C.A.), at para. 9;
Comtract
, at para. 28;
Stiles v. W.H. Stuart Mutuals
Ltd.
, [2000] O.J. No.
5001 (S.C.), at para. 11;
Outset
Media Corp. v. Stewart House Publishing Inc.
, [2002] O.J. No. 5304 (S.C.), at paras.
49-51, revd but not on this point, [2003] O.J. No. 2558 (C.A.);
Perdue
,
at para. 34; and
King
, at
para. 10.
[24]
Kilderkin
, at paras. 14-15, citing
Polar Hardware Manufacturing
Co. v. Zafir et al.
, [1983] O.J. No.
3065
(Div. Ct.). See also
Crown Life Insurance
, at paras.
24-25.
[25]
Univar
, at para. 30(1), citing
Iraco Ltd.
;
Fasco Motors Ltd. v. General
Refrigeration Inc.
, [1998] O.J. No. 151
(Gen. Div.).
[26]
Morden Report, at p. 118.
[27]
American Agronomics Corporation v. International Citrus of Canada Inc.
, 1982 CanLII 3233 (Ont. H.C.), at paras. 10, 12
;
Polar Hardware
, at para. 16;
Iraco Ltd.
, at para. 4;
Abrasive
Engineering & Manufacturing, Inc. v. Cowan & Stevens Machinery Sales,
Ltd.
, 2003 CanLII 8979 (Ont. S.C.), at para. 29;
Luxus Pack Packaging
Industrial Co. v. Conros Corporation
, 2006 CanLII 909 (Ont. C.A.), at
para. 9; and
Spitzer v. Spitzer
, 2008 CanLII 50801 (Ont. S.C.), at para. 29.
[28]
Smov Industrie Ceramiche S.P.A. v. Sole Ceramic Importing Ltd.
,
[1983] O.J. No. 197 (H.C.), affd [1984]
O.J. No. 3478 (Div. Ct.).
[29]
Bank of Nova Scotia v. Elby
Health Foods Co.
, [1982]
O.J. No. 290 (H.C.),
at
para. 23
;
Perdue
, at
para. 38.
[30]
The Divisional Court dismissed the motion for leave to appeal the decision in
this motion:
132789 Ontario Inc. v. Marshall
, 2021 ONSC 5444.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Drywall
Acoustic Lathing and Insulation, Local 675 Pension Fund v. Barrick Gold
Corporation, 2021 ONCA 596
DATE: 20210901
DOCKET: C67681
Hoy, Brown and Thorburn JJ.A.
BETWEEN
The Trustees of the
Drywall Acoustic Lathing and Insulation Local
675 Pension Fund and Royce Lee
Plaintiffs (Appellants)
and
Barrick Gold Corporation,
Aaron W. Regent, Jamie C. Sokalsky,
Ammar Al-Joundi and Peter
Kinver
Defendants (Respondents)
Joel P. Rochon, Peter R. Jervis and Golnaz Nayerahmadi,
for the appellants
Kent E. Thomson, Luis Sarabia and Steven G. Frankel, for
the respondents
Heard: November 9 and 10, 2020 by video conference, with further
written submissions filed on November 23, 2020.
On appeal from the order of Justice Edward P. Belobaba of
the Superior Court of Justice, dated October 9, 2019, with reasons reported at 2019
ONSC 4160, 148 O.R. (3d) 755.
COSTS ENDORSEMENT
[1]
In reasons released on February 19, 2021, the court ordered that if the
parties were unable to agree on costs of the appeal and the motion below, the
appellants shall make written submissions not exceeding five pages within 14
days of release of the reasons, and the respondents shall make written
submissions not exceeding five pages within 10 days after the appellants make
their submissions.
[2]
In a letter to the Registrar of the court dated August 16, 2021, which
was forwarded to the panel, counsel for the appellants inquired about the
panels disposition of the costs of the appeal and motion below and provided
copies of the costs submissions which counsel advised had filed been with the
court on March 5, 2021 (appellants) and March 15, 2021 (respondents).
[3]
Regrettably, through administrative oversight, those costs submissions
had not been previously provided to the panel, and the panel assumed that the
parties had agreed on costs.
[4]
The panel has now reviewed the costs submissions included with
appellants counsels letter.
[5]
The motion judge, Belobaba J., denied the appellants leave to proceed
under s. 138.3 of the Ontario
Securities Act
, R.S.O. 1990, c. S.5 in
respect of the categories of alleged misrepresentations described in the
courts reasons as the capex and scheduling misrepresentations and
the accounting and financial reporting misrepresentations
(collectively, the alleged financial misrepresentations). Whether he erred in
principle in so doing was the primary issue on appeal.
[6]
The motion judge granted leave to the appellants to proceed with what he
characterized as their core environmental claim but denied leave with respect
to four alleged misrepresentations by omission with respect to environmental
compliance. We agree with the motion judges characterization of the
environmental claim in respect of which he granted leave as the appellants
core environmental claim. The respondents did not cross-appeal the motion
judges grant of leave with respect to the core environmental claim.
[7]
The court concluded that the motion judge erred in principle in denying leave
in respect of the alleged financial misrepresentations and returned the issue
of whether leave should be granted in respect of them to the court below, to be
determined by a judge selected by the administrative judge of the class actions
team in Toronto. The parties advise that Akbarali J. has been selected to
determine whether leave should be granted in respect of the alleged financial
misrepresentations.
[8]
As to the secondary issue on appeal, the court concluded that there was
no basis for it to interfere with the motion judges denial of leave to proceed
with the four alleged misrepresentations by omission with respect to
environmental compliance.
[9]
The parties agreed that costs of the appeal in the amount of $60,000,
all inclusive, would be awarded to the successful party on the appeal. The
appellants succeeded on the central issue before the court. They were
substantially successful. Accordingly, they are entitled to costs of the appeal
in the amount of $60,000, all inclusive.
[10]
The appellant brought one motion for leave to proceed. The motion
judge awarded no costs of the motion on the basis that success was divided. The
costs of both portions of the motion for leave shall be determined by Akbarali
J. once she has determined whether to grant leave in respect of the alleged
financial misrepresentations and the overall outcome of the motion is known.
Alexandra Hoy J.A.
David Brown J.A.
J.A. Thorburn J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Ontario First Nations (2008) Limited Partnership v.
Ontario Lottery and Gaming Corporation, 2021 ONCA 592
DATE: 20210901
DOCKET: C68701 & C68702
Fairburn A.C.J.O., Lauwers and Jamal JJ.A.
BETWEEN
Ontario First Nations (2008) Limited Partnership
Claimant
(Respondent)
and
Ontario Lottery and Gaming
Corporation and
Her Majesty the Queen in right
of Ontario,
as represented by the Minister of Aboriginal
Affairs
Respondents
(Appellants)
R. Paul Steep, Bryn E. Gray and Stephanie Sugar, for the
appellant, Ontario Lottery and Gaming Corporation
D. Brent McPherson, Edmund S. Huang, Manizeh Fancy and
Insiyah Kanjee, for the appellant, Her Majesty the Queen in right of Ontario
Sheila Block, David Outerbridge, Leora Jackson, Nic Wall
and Hannah Allen, for the respondent, Ontario First Nations (2008) Limited
Partnership
Heard: June 9 and 10, 2021 by video conference
On appeal from the order of Justice Glenn A. Hainey of
the Superior Court of Justice, dated March 31, 2020, with reasons reported at
2020 ONSC 1516.
Jamal J.A.:
OVERVIEW
[1]
In 2008, Ontario and OLG entered into a Gaming Revenue Sharing and
Financial Agreement with First Nations Partnership, a limited partnership of
Ontario First Nations. Under the Agreement, Ontario and OLG agreed to share with
First Nations three types of revenue associated with gaming in Ontario.
[1]
[2]
A few years later, however, OLG decided to outsource its non-gaming amenities
to private operators, effectively giving them responsibility for two of the
three types of revenue under the Agreement. Private sector operators assumed
the risk and responsibility for non-gaming amenities, in exchange for keeping
100% of the associated non-gaming revenue. OLG described this arrangement as
modernization. Although OLG anticipated much greater revenue under modernization,
it did not disclose its outsourcing plans to the First Nations Partnership or
seek to amend the Agreement to be relieved of the obligation to pay the First
Nations Partnership all three types of revenue.
[3]
When OLG implemented modernization, it stopped paying the First Nations
Partnership two of the three types of revenue under the Agreement. When the
First Nations Partnership discovered this, it initiated an arbitration under
the Agreement.
[4]
The arbitration panel held that Ontario and OLG breached the Agreement.
The majority ruled that Ontario and OLG breached express contractual terms when
they stopped paying two of three agreed-upon types of revenue. The dissenting
member found that Ontario and OLGs unilateral changes to the operation of the
Agreement breached an implied contractual term, describing their conduct as breathtaking
in the age of reconciliation.
[5]
The appeal judge dismissed Ontario and OLGs appeals.
[6]
Ontario and OLG now appeal to this court. They argue that the appeal
judge made three errors: he applied the wrong standard of review,
misinterpreted the Agreement, and erred in concluding that they breached the
honour of the Crown.
[7]
For the reasons that follow, I would dismiss the appeals. I would uphold
the majority decision of the arbitration panel on any standard of review. I see
no error in the appeal judges interpretation of the Agreement and I would find
it unnecessary to address the honour of the Crown.
BACKGROUND
[8]
OLG is a Crown corporation that conducts and manages lottery schemes in
Ontario on behalf of the provincial government. It operates under an exemption
to the prohibition against gaming and betting in Canada under the
Criminal
Code
, R.S.C. 1985, c. C-46. OLGs profits are paid to Ontario and are the provinces
largest source of non-tax revenue.
[9]
The First Nations Partnership is a limited partnership of 132 Ontario First
Nations established to receive and distribute revenue under the Agreement to promote
education, health, economic, cultural, and community development in First
Nations communities.
(a)
Prior gaming-revenue litigation
[10]
The Agreement
was reached after about a decade of disputes between Ontario and First Nations
involving gaming revenues. Foremost among these was litigation over an earlier revenue
sharing agreement, the Casino Rama Revenue Agreement, which entitled the First
Nations Partnerships predecessor to a share of revenue from Casino Rama
a casino complex located on the reserve lands of The
Chippewas of Rama First Nation. First Nations sued Ontario and OLG for more
than $2 billion in damages after a new Ontario government imposed a 20% win
tax on Casino Ramas gross revenues to be paid to Ontario in priority to First
Nations entitlement. Through the Agreement, the parties agreed to settle the win
tax and other litigation.
(b)
Agreement on the definition of Gross Revenue to be shared
[11]
In 2004,
when the win tax litigation was underway, OLG proposed that the parties enter
into a new revenue sharing agreement to address First Nations concerns about
the unpredictable and reduced revenue flows under the prior arrangements. The first
phase of negotiations was between former Ontario Premier David Peterson, as
Ontarios representative, and First Nations. The Order‑in-Council
appointing Mr. Peterson stated Ontarios desire to establish a new Ontario
First Nations Gaming Revenue Sharing Agreement that provides more stable
funding and strengthens the financial position of the Ontario First Nations.
Mr. Petersons terms of reference contained a similar instruction.
[12]
During
the first phase of negotiations, a draft agreement was reached, but was not
ratified by First Nations Chiefs in June 2007. The parties did, however, agree
on a key item, Gross Revenue, that would eventually become part of the Agreement
the base of provincial gaming revenue to be shared with First Nations would
include three sources: (1) gaming revenue from lotteries, slots, and table
games from operations conducted and managed by OLG (gaming revenue); (2)
revenues from non-gaming activities ancillary to those operations (non-gaming
revenue); and (3) the retail value of accommodation, food and beverage
services, and other services provided to gaming patrons on a complimentary
basis to encourage them to visit and stay at the gaming sites (Comps). These
three types of revenue comprised Gross Revenue. Even though Comps were an
expense to OLG and not revenue, they were deemed to be revenue for revenue sharing
purposes. OLG gave First Nations negotiators financial projections of the anticipated
future revenue based on all three components of Gross Revenue, with a breakdown
of each. The draft agreement provided that the First Nations Partnership would
receive 1.6% of Gross Revenue, which included all three revenue sources.
[13]
Before
the draft agreement was presented to First Nations Chiefs, the First Nations sought
confirmation that in the future Ontario would not turn current revenues that
are received to the final account of the Province into revenues that are not.
In response, Mr. Peterson provided Ontarios unequivocal commitment to share
gross gaming revenue. He assured First Nations that Ontario would not conduct
itself in any way to undermine the agreement by allowing revenues from such gaming
[to] go to third parties. He also noted that the First Nations Partnership
would have a full and equal member on the board of directors of OLG to protect
and advance the interests of First Nations in Ontario. The government
separately assured the First Nations Partnership that the primary objective of
the proposed draft agreements is to replace an uncertain source of revenues
with stable, predictable long term funds for First Nations communities.
Despite these assurances, the First Nations Chiefs did not approve the proposed
agreement.
(c)
Reaching the Agreement
[14]
A second
phase of the negotiations began in late 2007 on a government-to-government
basis between First Nations Chiefs and the Minister of Aboriginal Affairs,
Michael Bryant, based on the same agreed-upon definition of Gross Revenue. The negotiations
were solemn and based on First Nations traditions, including smudge ceremonies
and the presence of sacred objects. The terms of the Agreement were ultimately reached
in 2008. The Agreement now provided that the First Nations Partnership would
receive 1.7% of Gross Revenue, again based on all three revenue sources.
[15]
Before
the Agreement was approved by First Nations Chiefs, Minister Bryant assured
the Chiefs that the agreement provides stability of revenue for 25 years grounded
in a new relationship based upon respect and autonomy. After hearing Minister
Bryant, the First Nations Chiefs approved the Agreement.
(d)
Key terms of the Agreement
[16]
The
key terms of the Agreement are set out in the Appendix to these reasons.
(e)
Events leadings to this litigation
[17]
In
2010, less than two years after the Agreement was signed, OLG began a strategic
business review of its operations to address declining provincial gaming
revenues. Based on that review, OLG decided to outsource its non-gaming
amenities to the private sector a process it called modernization. Under modernization,
private sector operators would assume the risk and responsibility for
non-gaming amenities in exchange for keeping 100% of the associated non‑gaming
revenue. OLG believed this was necessary to attract world-class private
operators to invest in OLGs non-gaming amenities. OLG anticipated much greater
revenue after modernization, projecting a $1.3 billion increase in net profits annually
once implemented.
[18]
When
the Agreement was signed in 2008, neither OLG nor the First Nations Partnership
believed that it was legally possible for OLG to outsource its non‑gaming
operations. OLG only changed its position in 2011, based on its strategic
business review of the benefits of modernization. As the appeal judge noted, modernization
represented a wholesale reinterpretation by Ontario and OLG of OLGs mandate
relating to non-gaming amenities under its enabling legislation. It was
completely different from what the parties mutually understood to be legally
possible during the negotiation of the [Agreement].
[19]
For several
years, OLG did not disclose its planned outsourcing to either the First Nations
Partnership or the provincial government, including the provincial Ministry of
Indigenous Relations and Reconciliation. By early 2013, OLG had decided that once
it outsourced its non-gaming operations, it would stop sharing non-gaming
revenue and Comps with the First Nations Partnership. Internal OLG emails in
October 2015 show that OLG knew this would be a hot button issue for First
Nations. OLG also knew that turning off two of the three revenue taps could
lead to decreasing payments under the Agreement. One internal OLG email noted
that payments to the First Nations Partnership could decrease simply based on
the fact that they will not be entitled to the 1.7% of non-gaming revenue as
this will remain with the [private] service provider. Even so, OLG did not
disclose its plans to the First Nations Partnership or to First Nations. OLG
disclosed its plans to Ontarios Ministry of Finance for the first time during
a conference call in or around December 2015. Even then, OLG still did not tell
the Ministry of Indigenous Relations and Reconciliation, which had government
responsibility for First Nations peoples.
[20]
In January
2016, OLG implemented modernization: it began the process of outsourcing its
non-gaming operations to private operators and ceasing to share non-gaming
revenue and Comps with the First Nations Partnership. The First Nations
Partnership learned this in June 2016, through a note to the 2016 audited
financial statements required under the Agreement. The Ministry of Indigenous
Relations and Reconciliation learned this in the summer of 2016, when the First
Nations Partnership began the arbitration process.
[21]
One
reason the First Nations Partnership did not learn of OLGs plans for so long was
because Ontario and OLG failed to seat a representative of the First Nations
Partnership on OLGs board from 2008 until 2015, even though doing so was a
contractual obligation under the Agreement. When the First Nations Partnership pursued
arbitration under the Agreement to secure its promised board member, a panel
composed of three retired judges of the Ontario Superior Court of Justice
unanimously held that Ontario had breached the Agreement in bad faith and in a
manner that was egregious and exhibited an odour of moral failure. The
panel also noted that the First Nations Partnership had not been consulted or
invited to take part in OLGs strategic business review at a time when it had
no board member.
[22]
The
arbitration that is the subject of the present appeals was formally commenced against
Ontario and OLG in late February 2017. The First Nations Partnership claimed Ontario
and OLG breached the Agreement when they stopped sharing non-gaming revenue and
Comps, two of the three types of revenue they had agreed to share under the Agreement.
DECISIONS BELOW
(a)
The arbitration decision
[23]
The
arbitration involved a ten-day hearing held in September and October 2018
before a three-member panel chaired by Hon. Mr. Stephen T. Goudge, Q.C., and
including Mr. Stan G. Fisher, Q.C. and Mr. John Campion. The panel received
affidavit evidence and expert reports and heard seven days of
viva voce
evidence from ten witnesses, including several who were directly involved in
the process leading to the Agreement, such as Mr. Bryant. The panel released a
comprehensive, 385-paragraph arbitration award.
[24]
The
panel majority, Mr. Goudge and Mr. Fisher, ruled that the Agreement required the
appellants to share 1.7% of the three revenue sources existing when the Agreement
was signed in 2008, namely, gaming revenue, non-gaming revenue, and Comps. The majority
ruled the appellants breached the Agreement when they stopped paying non-gaming
revenue and Comps as a result of modernization, because modernization did not relieve
them of their payment obligation under the Agreement. The majority ordered OLG
to provide an accounting and to pay the respondent 1.7% of the non-gaming
revenue and Comps from January 2016, when the first outsourced site began
operating, to the end of the term of the Agreement.
[25]
The
majority took the view that the honour of the Crown doctrine was engaged by the
Agreement and was relevant to its interpretation. Although the majority ultimately
interpreted the Agreement without relying on the honour of the Crown, they
noted the doctrine provided clear moral support for their interpretation.
[26]
The
dissenting member, Mr. Campion, found that the arbitration turned on
reasonable differences in the interpretation of the Agreement. In his view, Ontario
and OLG had not breached any obligation under the Agreement to pay the First
Nations Partnership 1.7% of the three revenue sources after modernization,
because the First Nations Partnership had no right to share in revenues that
OLG did not receive. In his opinion, the majoritys interpretation of the Agreement
relied on inadmissible evidence of the parties negotiations leading to the Agreement.
Finally, he noted that even if Ontario and OLG had breached the Agreement by
not paying 1.7% of all three revenue sources, the First Nations Partnership had
not suffered any damages.
[27]
However,
the dissenting member concluded that Ontario and OLG breached an implied term of
the Agreement to disclose and consult with the First Nation Partnership before
it made any fundamental changes to the revenue structures under the Agreement. He
found OLG fail[ed] to meet these minimum standards of notice and
consultation. In his view, Ontario and OLG failed in their government-to-government
commitment with [the First Nations Partnership] in not giving them notice and
consulting with them before they changed the Agreement by outsourcing two of
the three revenue sources. He stated that [t]he contrast between the words of
hope, promise, respect, trust and self-government and the unilateral action of
OLG and Ontario in changing the [Agreement] without notice and consultation is
breathtaking in the age of reconciliation. Even so, he concluded the First
Nations Partnership suffered no damages for breach of the implied term. In his
view, the honour of the Crown doctrine did not apply to the Agreement.
(b)
The appeal decision
[28]
The
appeal judge dismissed Ontario and OLGs appeals. He noted he had no
jurisdiction to review the panels many findings of fact because s. 9.2 of the Agreement
limited any appeal of an arbitration award to questions of law, or questions
of mixed fact and law.
[29]
The
appeal judge ruled that the reasonableness standard of review applied to the
majoritys contractual interpretation of the Agreement and the damages award.
He based his conclusion on the Supreme Court of Canadas decisions in
Sattva
Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, and
Teal Cedar Products Ltd. v. British Columbia
, 2017 SCC 32, [2017] 1
S.C.R. 688, which in his view were unaffected by
Canada (Minister of
Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, 441 D.L.R. (4th) 1. The
appeal judge found the majoritys interpretation of the Agreement was both reasonable
and correct.
[30]
The
appeal judge determined that the majority had not allowed the factual matrix to
overwhelm the words of the contract and rejected OLGs submission that the
majority ignored provisions of the Agreement to reach a commercially absurd
interpretation. He also held the majority did not err in deciding that the Agreement
engaged the honour of the Crown, but in any event, noted that the majoritys reference
to the doctrine was
obiter
.
[31]
Finally,
the appeal judge held that the damages awarded by the majority were both reasonable
and correct.
ISSUES
[32]
Ontario
and OLG raise three issues:
1.
Did the appeal
judge err as to the standard of review?
2.
Did the appeal
judge err in interpreting the contract?
3.
Did the appeal
judge err in applying the honour of the Crown?
DISCUSSION
Issue #1: Did the appeal judge err as to the standard of
review?
[33]
Ontario
and OLG assert that the appeal judge erred in concluding that the standard of
review of the majoritys interpretation of the Agreement and its damages award is
reasonableness. They say the appropriate standard of review, in the wake of
Vavilov
,
is the appellate standard: correctness for questions of law and palpable and
overriding error for questions of mixed fact and law.
[2]
[34]
Ontario
and OLG acknowledge that the Supreme Court in
Sattva
, at para. 75,
ruled that the standard of review in an appeal from a commercial arbitration
conducted under the former
Arbitration Act
, R.S.B.C. 1996, c. 55, which
was limited to a question of law arising out of the award, is almost always
reasonableness; see also
Teal Cedar
, at para. 74.
[3]
They contend, however, that the reasonableness standard of review for questions
of law prescribed by
Sattva
and
Teal Cedar
has been overtaken
by
Vavilov
, where the majority ruled that an administrative decision subject
to a statutory right of appeal should be reviewed under the appellate standard:
correctness for questions of law, and palpable and overriding error for
questions of fact and questions of mixed fact and law where the legal principle
is not readily extricable: at paras. 36-38, 44. They say
Vavilov
applies whenever the legislature has provided for a statutory appeal, such as under
Ontarios
Arbitration Act, 1991
, S.O. 1991, c. 17. They also claim
that even if the reasonableness standard of review applies, the appeal judge
erred in concluding that the majoritys decision was reasonable.
[35]
The First
Nations Partnership disputes the claim that
Vavilov
effectively
overruled
Sattva
and
Teal Cedar
on the standard of review of a
commercial arbitration decision on questions of law. It submits that
Vavilov
governs the standard of review in administrative law but does not apply to
commercial arbitration decisions, which should continue to be reviewed under a
deferential standard on questions of law.
[36]
The First
Nations Partnerships more fundamental point, however, is that the standard of
review does not affect the outcome of these appeals. It says that whether or
not
Vavilov
applies to the review of a commercial arbitration
decision, Ontario and OLG have largely raised questions of mixed fact and law
questions about the interpretation and application of the Agreement that do not
involve extricable legal errors. It submits that a deferential standard of
review applies to these questions.
[37]
In
my view, it is unnecessary in these appeals to address whether
Vavilov
changed the standard of review analysis in
Sattva
and
Teal Cedar
in an appeal from a commercial arbitration decision, for two reasons.
[38]
First,
as I will address below, whether the standard of review on questions of law is
reasonableness or correctness, the appeal judge did not err in upholding the
majoritys decision. Because a court should generally refrain from deciding
issues of law that are unnecessary to the resolution of an appeal (
Phillips
v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy)
,
[1995] 2 S.C.R. 97, at para. 6), I would not address the standard of review
issue.
[4]
[39]
The
Supreme Court took the same approach in
Wastech Services Ltd. v. Greater
Sewerage and Drainage District
, 2021 SCC 7, 454 D.L.R. (4th) 1, at para. 46,
where the majority,
per
Kasirer J., declined to consider the effect,
if any, of
Vavilov
on the standard of review principles articulated in
Sattva
and
Teal Cedar
, partly because the outcome of the case did
not depend on the standard of review.
[40]
Second,
I agree with the First Nations Partnership that, putting aside the extricable
errors of law alleged, Ontario and OLG largely advance questions of contractual
interpretation, which since
Sattva
it has been accepted are questions
of mixed fact and law attracting a deferential standard of review. There has
been no suggestion that
Vavilov
changed the law on this point, which is
distinct from the issue of whether an arbitrators decision on a question of
law is reviewable under a standard of reasonableness or under the appellate
standard.
[41]
In
Corner
Brook (City) v. Bailey
, 2021 SCC 29, 17 B.L.R. (6th) 1,
per
Rowe J.,
the Supreme Court affirmed the direction from
Sattva
that a
deferential standard of review applies to questions of mixed fact and law
involving the interpretation of a contract. The court in
Corner Brook
underscored
that contractual interpretation is a fact specific exercise, and should be
treated as a mixed question of fact and law for the purpose of appellate review,
unless there is an extricable question of law: at para. 44. As the court
explained, [e]xtricable questions of law in the context of contractual
interpretation include the application of an incorrect principle, the failure
to consider a required element of a legal test, or the failure to consider a
relevant factor: at para. 44 (citations omitted). The court also cautioned
that [t]he circumstances in which a question of law can be extracted will be
uncommon. Whether something was or should have been within the common knowledge
of the parties at the time the contract was entered into is a question of
fact: at para. 44 (citations omitted); see, to the same effect,
Sattva
,
at paras. 50, 55;
Teal Cedar
, at paras. 47, 57.
[42]
Here,
the parties agree on the applicable principles of contractual interpretation. Where
they disagree is how those principles should be applied to the contractual facts,
consisting of the Agreement itself and the factual matrix or surrounding
circumstances. Absent an extricable error of law, such an exercise of
contractual interpretation by a first-instance decision maker whether a court
or an arbitrator attracts appellate deference.
[43]
I
now turn to whether the appeal judge erred in interpreting the Agreement.
Issue #2: Did the appeal judge err in interpreting the Agreement?
(a)
Introduction
[44]
Ontario
and OLG submit that the appeal judge erred in law in interpreting the Agreement
in four respects. First, they say he ignored their limited payment obligation
under the Agreement. Second, they say his decision conflicts with the Agreement
read as a whole. Third, they claim he failed to apply the entire agreement
clause in the Agreement and to correct the majoritys decision to admit extrinsic
evidence that overwhelmed the words of the Agreement. Fourth, in the
alternative, OLG argues the appeal judge erred in affirming the majoritys
damages award.
[45]
I
will first summarize the applicable principles of contractual interpretation
and then address these four arguments. As I will elaborate, Ontario and OLG largely
repeat arguments that the appeal judge rejected. I see no basis to reach a
different conclusion.
(b)
Applicable principles of contractual interpretation
[46]
The parties
agree that the appeal judge correctly stated the applicable principles of
contractual interpretation. Those principles were discussed in the Supreme Courts
unanimous decisions in
Sattva
,
per
Rothstein J., and more recently
in
Corner Brook
,
per
Rowe J. They may be summarized as
follows:
1.
Courts should take
a practical, common-sense approach not dominated by technical rules of
construction. The overriding concern is to determine the intent of the parties
and the scope of their understanding:
Sattva
, at para. 47 (citations
omitted).
2.
Courts must
read the contract as a whole, giving the words used their ordinary grammatical
meaning, consistent with the surrounding circumstances known to the parties at
the time of formation of the contract:
Sattva
, at para. 47;
Corner
Brook
, at para. 20.
3.
The surrounding
circumstances should be considered in contractual interpretation. [A]scertaining
contractual intention can be difficult when looking at words on their own,
because words do not have an immutable or absolute meaning:
Sattva
,
at para. 47. The meaning of words in a contract often derives from contextual
factors, such as the purpose of the agreement and the nature of the
relationship it creates:
Sattva
, at para. 48. A contract is not made
in a vacuum and must be placed in its proper setting. Interpreting a commercial
contract requires knowledge of the commercial purpose of the contract, based on
the genesis of the transaction, the background, the context, the market in
which the parties are operating:
Sattva
, at para. 47, citing
Reardon
Smith Line Ltd. v. Hansen-Tangen
;
Hansen-Tangen v. Sanko Steamship
Co.
, [1976] 3 All E.R. 570 (U.K. H.L.), at p. 574,
per
Lord
Wilberforce.
4.
The nature of
the evidence that may be considered as part of the surrounding circumstances will
vary from case to case, but should include only objective evidence of the
background facts at the time of the execution of the contract, that is,
knowledge that was or reasonably ought to have been within the knowledge of
both parties at or before the date of contracting. That determination is
inherently fact specific:
Sattva
, at paras. 55, 58 (citation omitted);
Corner Brook
, at para. 20.
5.
The surrounding
circumstances should never be allowed to overwhelm the words of the agreement.
The surrounding circumstances are considered in order to deepen a
decision-makers understanding of the mutual and objective intentions of the
parties as expressed in the words of the contract. The interpretation of a
written contractual provision must always be grounded in the text and read in
light of the entire contract. Courts cannot use the surrounding circumstances
to deviate from the text of the contract to the point that the court
effectively creates a new agreement:
Sattva
, at para. 57;
Corner
Brook
, at para. 20.
[47]
I
will now apply these principles to Ontario and OLGs four contractual
interpretation arguments.
(c)
Ontario and OLGs contractual interpretation arguments
(i)
Did the appeal judge ignore Ontario and OLGs limited payment obligation
under the Agreement?
[48]
First,
Ontario and OLG assert that both the appeal judge and the majority ignored their
limited payment obligation under the Agreement. They say several provisions of
the Agreement confirm that they only have to pay the First Nations Partnership
1.7% of gaming revenue, non-gaming revenue, and Comps received by OLG, so they do
not have to pay any of the non-gaming revenue or Comps for the non-gaming
amenities outsourced to private operators. They rely on:
·
s. 2.2(a), which requires them to pay 1.7% of the aggregate Gross
Revenues for all Agents of the Province in the applicable Preceding Fiscal
Year;
·
s. 1.1(f), the definition of Agent of the Province, which
includes OLG but excludes any operator that OLG may hire to operate any
gaming facility or to operate the conduct and [management] of such lottery
schemes for or on behalf of the Province, OLG or such other agency of the
Province; and
·
Schedule 1.1(nn), which provides that Gross Revenues means, in
respect of an Agent of the Province, revenue reported on the audited
Consolidated Financial Statements of that Agent of the Province but does not
include revenues received
[but] not retained to the final account of the
Province, OLG or any such other Agent of the Province.
[49]
This
argument was carefully considered and, in my view, correctly rejected by the appeal
judge and the majority of the arbitration panel. Both highlighted that Schedule
1.1(nn) expressly lists the three components of Gross Revenues as consisting
of the revenues of an Agent of the Province generated from gaming revenue, non-gaming
revenue, and Comps, even though Comps are not revenues received by OLG but are expenses.
In other words, under the Agreement, revenue need not be received by OLG to be
included as Gross Revenues for revenue sharing purposes. As the majority
stated, and the appeal judge affirmed:
Schedule 1.1(nn) provides that for the purposes of the [Agreement],
Gross Revenues of OLG are made up of the [gaming revenue] as well as ancillary [non-gaming
revenue] and Comps
generated by the gaming conducted and managed by OLG as
Agent of Ontario in 2008
. These three components are the base on which the [First
Nations Partnership] share of 1.7% annually is calculated for the term of the [Agreement].
Comps are included in the base, although they are not revenues received by OLG.
That was the shared understanding of the parties in 2008. [Emphasis added.]
[50]
The use
of the year 2008 to determine the revenue and deemed revenue included as Gross
Revenues arises from s. 2.4(c) of the Agreement, which requires OLG to
calculate Gross Revenues in accordance with the accounting practices and
principles applied by OLG at the Effective Date, the date of the Agreement
February 19, 2008. The parties agree that, on February 19, 2008, OLG included
both non-gaming revenue and Comps as part of Gross Revenues, even though
Comps were not received or retained by OLG. This date provided a benchmark for,
or snapshot of, what was included as part of Gross Revenues. As the majority of
the arbitration panel explained:
The reference in Schedule 1.1(nn) to what is reported in the
Segmented Information notes in the notes to, or as otherwise reported in, the
audited Consolidated Financial Statements of that Agent of the Province is a
statement about the snapshot at the time the [Agreement] was made. That
snapshot simply describes the components on which the payments owed to [the First
Nations Partnership] are to be based. The words reflect the shared
understanding of the parties in 2008, when the [Agreement] was made, of the
sources of revenue to be shared with the First Nations.
There is no language in Schedule 1.1(nn) nor any evidence of a
shared intention of the parties in 2008, that this reference referred to what
might appear in the audited Consolidated Financial Statements as they might be
from time to time in future years.
[51]
The
appeal judge found this interpretation to be commercially reasonable and Ontario
and OLGs interpretation commercially unreasonable because [i]t would not be
commercially reasonable to interpret the [Agreement] in a manner that allows
OLG to turn off two of three revenue taps because it can make a better deal
in the private sector. I agree.
[52]
The appeal
judge also found the majoritys interpretation was purposive, and Ontario and
OLGs interpretation to be non-purposive and technical, because the majority considered
the historical and relationship factors that underpinned the Agreement to
provide First Nations in Ontario with resources derived from lottery schemes in
Ontario conducted and managed by Ontario, directly or indirectly, to advance
their economic growth and development. Again, I agree.
[53]
I
would add that it is inconceivable that the shared understanding of the parties
when they entered the Agreement was that OLG, by outsourcing to private parties
two of the three revenue sources in the definition of Gross Revenues, could pay
First Nations nothing on account of these sources. I say this for two reasons.
First, First Nations had agreed to settle a $2 billion claim in exchange for
the Agreement to obtain stable funding for their communities. Part of that
stability arose from having three carefully defined and locked-in revenue sources.
Second, when the parties agreed to the Agreement they did not contemplate that it
was legally possible for OLG to outsource responsibility for its non-gaming
amenities to private operators. The scenario of paying nothing for outsourced non-gaming
amenities thus could not have been within the reasonable contemplation of the
parties. As the appeal judge found:
In 2008 when the [Agreement] was entered into, OLG did not
contemplate that it could transfer responsibility for non-gaming amenities
exclusively to private operators. It was only in 2011, as OLG conducted its
strategic business review, that it concluded that OLG was permitted to fully
outsource the provision of non-gaming amenities. This shift in OLGs
operational model was presented to and approved by the provincial Cabinet.
[54]
It
follows that I would reject Ontario and OLGs argument that the definition of
Agent of the Province makes clear that the revenue of private third-party
service providers to whom non-gaming amenities were outsourced after 2008 are
excluded from Gross Revenues. As already noted, the parties did not
contemplate the outsourcing of non-gaming amenities to be legally possible in
2008. Moreover, s. 10.10(b) of the Agreement confirms Ontario and OLGs ongoing
revenue-sharing obligations if the Province reorganizes how it conducts and
manages gaming. Lastly, evidence in the record suggests that the reference to
private third-party operators in the definition of Agent of the Province was
directed at excluding the revenue of four private resort casinos that OLG
operated through private operators at the time the Agreement was agreed to.
[55]
I
therefore see no error in how the appeal judge or the majority interpreted Ontario
and OLGs payment obligation under the Agreement.
(ii)
Did the appeal judge fail to read the Agreement as a whole?
[56]
Second,
Ontario and OLG assert that the appeal judge and the majority ignored other
important terms of the Agreement the non-derogation and final account clauses
and thus erred in law by failing to read the Agreement as a whole.
[57]
Non-derogation
clause (s. 10.1)
. Ontario and OLG contend that the majority and appeal
judge erred by ignoring the non-derogation clause. This provision preserves for
Ontario and OLG full discretion and control over the conduct and management of
OLGs business, without guaranteeing a minimum level of revenue, any obligation
on Ontario or OLG to continue to operate any particular business, or any
obligation to make additional payments to the First Nations Partnership for a
reduction in revenue because of a business change (s. 10.1(b)(i)). Nor
does the First Nations Partnership have any interest in any lottery scheme or
any assets of Ontario or OLG (s. 10.1(b)(ii)). Ontario and OLG contend that
nothing in the Agreement gives the First Nations Partnership a separate and
ongoing right to receive a share of the revenue or value of Comps from
non-gaming activities that OLG was operating in 2008, if OLG stops operating
those businesses, receiving that revenue, or providing those Comps.
[58]
I do
not accept this submission. The majority expressly considered the non‑derogation
clause, concluding it contemplated that there may be internal reorganizations
of OLG but, notwithstanding that, the contractual rights of [the First Nations
Partnership] remain intact. The majority noted that no one contests OLGs
right to modernize, but that does not give it the right to shed its obligations
to [the First Nations Partnership]
[M]odernization does not displace [the]
payment obligation. It coexists with it. By ceasing to pay amounts equal to
1.7% annually of [non-gaming revenue] and Comps, OLG and Ontario have breached
the [Agreement]. For his part, the appeal judge noted that Ontario and OLG repeated
submissions made before the arbitration panel that were considered and
rejected by the majority who provided reasonable reasons for rejecting them. I see
no basis to impugn these conclusions or for this court to intervene.
[59]
Final
account clause (s. 1(f) of Schedule 1.1(nn))
. The final account clause,
which forms part of the definition of Gross Revenues, provides that Gross
Revenues shall not include any revenues received by the Province, OLG or any
other Agent of the Province
to the extent that, such revenues so received are
not retained to the final account of the Province, OLG or any such other Agent
of the Province. Ontario and OLG say the majority wrongly determined that this
provision was of no assistance, and thus disregarded it. They say this
provision helps in interpreting the scope of Gross Revenues, which must be
revenues received by OLG and Ontario. They claim OLG has never recognized, let
alone retained, third-party revenues generated at outsourced sites, which are
expressly excluded by s. 1(f) of Schedule 1.1(nn).
[60]
I do
not agree with this submission. At first instance, all parties agreed the final
account clause did not apply here and both Ontario and OLG stated in argument that
they did not rely on the clause. Ontarios counsel stated that the final
account clause was not an issue in this case because we are not relying on
this received but not retained clause to try to exclude revenue. We are not
carving out or diverting using that provision. The majority accepted this
view, noting the parties agree [this clause] is of no assistance here, because
it addresses revenues received by OLG but not retained. That is not this case.
I agree. This case does not involve revenue being received by Ontario or OLG and
then being diverted to third parties to avoid a payment obligation to the First
Nations Partnership. There was thus no need for the arbitrators or the appeal
judge to consider this clause any further.
(iii)
Did the appeal judge ignore the entire agreement clause and allow the
extrinsic evidence to overwhelm the words of the Agreement?
[61]
Third,
Ontario and OLG assert that the appeal judge and majority erred in law by
admitting the pre-contractual negotiations into evidence especially evidence
of Ontarios negotiator, former Minister Bryant, to the effect that Ontario and
OLGs diversion of the non-gaming revenue stream and the termination of the
payment of an amount equal to Comps, two of the three revenue streams referred
to in the Agreement, conflicted with the parties shared understanding. Ontario
and OLG also argue that an entire agreement clause, s. 1.10, precludes reliance
on any pre-contractual warranty, representation, opinion, advice, or assertion of
fact.
[62]
I do
not agree with this submission. An entire agreement clause alone does not
prevent a court from considering admissible evidence of the surrounding
circumstances at the time of contract formation. As already noted, the surrounding
circumstances are relevant in interpreting a contract exactly because words
alone do not have an immutable or absolute meaning:
Sattva
, at para.
47. Relevant background and context are often essential to understand contractual
language. I therefore agree with the following observations of Fraser C.J.
for a majority of the Court of Appeal of Alberta in
IFP Technologies
(Canada) v. EnCana Midstream and Marketing
, 2017 ABCA 157, 53 Alta. L.R.
(6th) 96, at para. 124, leave to appeal refused, [2017] S.C.C.A. No. 303:
The mere existence of an entire agreement provision does not
mean that the words chosen beyond that entire agreement provision admit of one
interpretation only. The purpose of considering the surrounding circumstances
is not to add to, contradict or vary the terms of the agreement but rather use
them as an interpretive aid to determine the meaning of the words in dispute.
Where parties have concluded an agreement and a court is left to sort out the
parties objective intentions, it cannot be prevented from considering the
surrounding circumstances by a provision that is itself based on the assumption
that the agreement is clear when it is not.
[63]
The relevant
question, then, is whether the evidence considered by the majority was properly
part of the surrounding circumstances. I again agree with Fraser C.J., that
[d]etermining what constitute properly surrounding circumstances is a question
of fact:
IFP Technologies
, at para. 83; see also
Sattva
, at
paras. 49-55, 58;
Corner Brook
, at para. 44; and
Kilitzoglou v.
Curé
, 2018 ONCA 891, 143 O.R. (3d) 385, at para. 37. Such a question of
fact is outside this courts jurisdiction, because the parties agreed to limit
any appeals to questions of law or mixed fact and law: Agreement, s. 9.2.
[64]
Even
assuming, without deciding, that this is one of the rare or uncommon circumstances
where a question of law can be extricated from the interpretation process (
Sattva
,
at para. 55;
Corner Brook
, at para. 44), I see no error in how the surrounding
circumstances were considered. These circumstances helped to place the Agreement
in its proper setting and understand the genesis of the transaction, the
background, and the context. They included the parties history of litigation
over revenue sharing; their shared objective of locking‑in three
identified revenue streams to ensure stable, predictable, long-term funds for
First Nations communities; and Ontarios commitment not to convert revenues
received to the final account of the Province into revenues that were not. Such
evidence was admissible to show the parties objective mutual intention and the
background facts leading to the Agreement. In my view, the surrounding
circumstances were not used to overwhelm the words of the agreement or to
deviate from the text to create a new agreement: see
Sattva
, at para.
57.
[65]
I therefore
agree with the appeal judge, that [w]hile the majority considered the
surrounding circumstances, its interpretation of the [Agreement] was firmly
rooted in the actual wording of the agreement. The surrounding circumstances or
matrix of facts were not determinative in interpreting the Agreement one way or
the other: see
Corner Brook
, at para. 57.
[66]
To
conclude, I see force in the submission of the First Nations Partnership that Ontario
and OLG have presented a matrix-free case one that ignores the
circumstances leading to the Agreement and the parties common objectives in
entering this new long-term agreement to advance the growth and capacity of
First Nations communities. I am not inclined to adopt such a matrix-free
approach.
(iv)
Did the appeal judge err in awarding damages?
[67]
Finally,
in the alternative, OLG submits that if the appeal judge was correct in holding
that Ontario and OLG breached the Agreement, he failed to correct errors in the
damages awarded. OLG says the majoritys order that Ontario and OLG pay 1.7% of
non-gaming revenue and Comps at all gaming facilities in Ontario is not compensatory
but instead gives the First Nations Partnership a windfall it puts it in a
better position than it would have been in had the Agreement been performed, because
modernization is projected to generate more revenue and therefore greater
payments to the First Nations Partnership. OLG says the proper measure of
damages is to put the First Nations Partnership in the position it would have
been in but for the breach, based on OLGs reasonable expectations of lower projected
revenue before modernization. On OLGs approach, the First Nations Partnerships
damages should be zero.
[68]
I do
not accept this submission. In my view, the appeal judge appropriately affirmed
the majoritys damages order. Under the expectation measure of damages for
contractual breach, the First Nations Partnership had a right to be put in the
position it would have been in had the Agreement been performed: see
Bank
of America Canada v. Mutual Trust Co.
, 2002 SCC 43, [2002] 2 S.C.R. 601,
at paras. 26-27;
Dasham Carriers Inc. v. Gerlach
, 2013 ONCA 707, 313
O.A.C. 95, at paras. 17, 28-30. Ontario and OLG breached the Agreement by
failing to pay the First Nations Partnership the agreed upon 1.7% of gaming
revenue, non-gaming revenue, and Comps from gaming sites conducted and managed
by OLG. The majoritys award, as affirmed by the appeal judge, requires Ontario
and OLG to pay exactly that amount.
[69]
Such
an award does not overcompensate the First Nations Partnership and gives it only
what it bargained for under the Agreement. As the majority held, and the appeal
judge affirmed: [The First Nations Partnership] bargained for a percentage of [gaming
revenue, non-gaming revenue], and Comps. If the value of any one of those streams
goes up or down, [the First Nations Partnership] is entitled to the increased
benefit or required to suffer the loss that results. This is not a net benefit
exercise. I see no error in that reasoning or conclusion.
[70]
I
would also reject OLGs claim that any damages should be limited to the value
of non-gaming revenue and Comps that the First Nations Partnership would have
received had OLG not modernized. OLG did not breach the Agreement through modernization.
It breached the Agreement when it stopped paying the First Nations Partnership two
of the three agreed upon types of revenue. I see no basis to intervene with the
appeal judges conclusion that the majoritys award compensates for that breach.
Issue #3: Did the appeal judge err in applying the honour of
the Crown?
[71]
Finally,
Ontario and OLG claim that the appeal judge erred in agreeing with the majority
that the honour of the Crown was relevant to the interpretation of the Agreement.
[72]
The
honour of the Crown is a foundational principle of Aboriginal law and governs
the relationship between the Crown and Aboriginal peoples:
Mikisew Cree
First Nation v. Canada (Governor General in Council)
, 2018 SCC 40, [2018]
2 S.C.R. 765, at para. 21. It obliges servants of the Crown to conduct
themselves with honour when acting on behalf of the sovereign with Aboriginal
peoples:
Manitoba Métis Federation Inc. v. Canada (Attorney General)
,
2013 SCC 14, [2013] 1 S.C.R. 623, at para. 65. The ultimate purpose of the
honour of the Crown is the reconciliation of pre-existing Aboriginal societies
with the assertion of Crown sovereignty:
Manitoba Métis Federation
,
at para. 66;
R. v. Desautel
, 2021 SCC 17, 456 D.L.R. (4th) 1, at
paras. 22, 30; and
Newfoundland and Labrador (Attorney General) v.
Uashaunnuat (Innu of Uashat and of Mani-Utenam)
, 2020 SCC 4, 443 D.L.R.
(4th) 1, at paras. 22-24.
[73]
Ontario
and OLG claim the Agreement is a commercial agreement that does not engage the
honour of the Crown. They note the Agreement expressly states it is not a
treaty and does not create any treaty or fiduciary relationship between the Crown
and Aboriginal peoples. They also contend the appeal judge erred by ruling that
the Agreement represented the reconciliation of the constitutionally protected
Aboriginal right of self-government, which includes jurisdiction over gaming,
with the Crowns sovereignty over gaming under the
Criminal Code
. Ontario
and OLG note that no such right has been recognized by a Canadian court or by
the arbitration panel, nor was this issue meaningfully argued before the appeal
judge.
[74]
For
its part, the First Nations Partnership says that neither the arbitration panel
nor the appeal judge relied on the honour of the Crown in reaching their
decisions. It asserts that because their observations on this point were
expressly identified as
obiter dicta
, this ground of appeal should
fail. However, if the court is inclined to address this point, it submits that
the Agreement does engage the honour of the Crown, which is always at stake in
the Crowns dealings with Aboriginal peoples. It claims the Agreement is not
merely a commercial agreement but a government-to-government agreement, forged
in partnership and negotiated in solemn gatherings between the Crown and First
Nations conducted in accordance with First Nations traditions. It submits that
although First Nations have an inherent right to self-government, whether that right
includes jurisdiction over gaming was not before the arbitration panel or
appeal judge and is not in issue in this case. It says this important issue should
not be decided without a full factual record and complete argument.
[75]
I
would decline to address the honour of the Crown on the facts of this case, for
two reasons. First, both the majority of the arbitration panel and the appeal
judge expressly noted that their comments on the honour of the Crown were
obiter
and thus unnecessary for their rulings. A court should generally refrain from
addressing a legal issue, and especially a constitutional issue, that is
unnecessary to dispose of a case:
Phillips
, at paras. 6-9;
R. v.
Drury
, 2020 ONCA 502, 391 C.C.C. (3d) 18, at para. 84. A policy of
restraint is desirable because unnecessary constitutional pronouncements may
prejudice future cases, the implications of which have not been foreseen:
Phillips
,
at para. 9.
[76]
Second,
as explained above, the appeal judge did not err in dismissing the appeals based
on ordinary principles of contractual interpretation, without recourse to the
honour of the Crown doctrine.
[77]
Thus,
quite apart from the honour of the Crown, I conclude the appeal judge made no
reviewable error in dismissing the appeals based on ordinary principles of
contractual interpretation.
CONCLUSION
[78]
I
would dismiss the appeals.
[79]
If
the parties cannot agree on costs of the appeals, the First Nations Partnership
may file written submissions of up to three pages and a bill of costs within seven
days of this decision. Ontario and OLG may each do likewise within a further seven
days.
Released: September 1, 2021 J.M.F.
M. Jamal J.A.
I agree. Fairburn
A.C.J.O.
I agree. P. Lauwers
J.A.
Appendix Relevant Contractual Provisions
Gaming and
Revenue Sharing and Financial Agreement (Agreement)
Preamble:
WHEREAS
the Province and First Nations in Ontario,
acting through [the First Nations Partnership], have agreed to enter into this
Gaming Revenue Sharing and Financial Agreement with the objective of advancing
the growth and capacity of First Nations in Ontario in respect of community
development, health, education, economic development and cultural development.
AND WHEREAS
in furtherance of this objective it is
the intention of the Province and First Nations in Ontario to maintain an
on-going relationship for so long as the Province is involved directly, or
indirectly through an Agent of the Province, in conducting and managing Lottery
Schemes in Ontario.
NOW THEREFORE
in consideration of the mutual
covenants and agreements contained in this Agreement and other good and
valuable consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereto agree, as follows:
1.1 Definitions
(f) Agent of the Province
means any agency of the
Province, including OLG, that conducts and manages a lottery scheme under the
authority of section 207(1)(a) of the
Criminal Code
, and includes the
Province itself if the Province conducts or manages any such lottery scheme
directly but, for greater certainty, does not include any operator that the
Province, OLG or any other agency of the Province that conducts and manages
such lottery schemes may hire to operate any gaming facility or to operate the
conduct and manage of such lottery schemes for or on behalf of the Province,
OLG or such other agency of the Province.
(nn) Gross Revenues
has the meaning attributed to
that term in Schedule 1.1(nn).
(rr) Initial Term
has the meaning attributed to
that term in section 8.1.
(bbb) Lottery Scheme
means a lottery scheme
conducted and managed by the Province or any Agent of the Province, under the
authority of section 207(1)(a) of the
Criminal Code
.
(ccc) Monthly Revenue Share Payment
or
MRSP
has the meaning attributed to that term in section 2.2(a).
(bbbb) Province
means Her Majesty the Queen in
right of Ontario.
(dddd) Renewal Term
means the five year period commencing
on the next date after the date of expiration of the Initial Term and ending on
the date that is the 5th anniversary of the date of expiration of the Initial
Term.
.
1.10 Entire Agreement
This agreement and the Closing Agreement constitute the
entire agreement between the parties pertaining to the subject matters herein.
There are no warranties, conditions, or representations (including any that may
be implied by statute) and there are no agreements in connection with such
subject matters except as specifically set forth or referred to in this Agreement
and the Closing Agreement. No reliance is placed on any warranty,
representation, opinion, advice or assertion of fact made either prior to,
contemporaneous with, or after entering into this Agreement, or any amendment
or supplement thereto, by any party to this Agreement or its partners,
directors, officers, employees or agents, to any other party to this Agreement
or its partners, directors, officers, employees or agents, except to the extent
that the same has been reduced to writing and included as a term of this
Agreement, and none of the parties to this Agreement has been induced to enter
into this Agreement or any amendment or supplement by reason of any such
warranty, representation, opinion, advice or assertion of fact. Accordingly, there
shall be no liability, either in tort or in contract, assessed in relation to
any such warranty, representation, opinion, advice or assertion of fact, except
to the extent contemplated above.
2.2 Monthly Gaming Revenue Share Payments
(a)
Commencing with Fiscal Year 2012, and in each
Fiscal Year thereafter during the Initial Term and the Renewal Term, the
Province shall pay, or cause an Agent of the Province to pay, to [the First
Nations Partnership], 12 monthly payments (the monthly payments payable each
month by the Province, or any Agent of the Province, being hereinafter
collectively referred to as a
Monthly Revenue Share Payment
or
MRSP
),
each MRSP being in the aggregate equal to one-twelfth of 1.7% of the aggregate
Gross Revenues for all Agents of the Province in the applicable Preceding
Fiscal Year.
(d)
Upon delivery of the Unaudited Gross Revenues Statement
in accordance with section 2.2(c)(i) and the Audited Gross Revenues Statement pursuant
to section 2.2(c)(ii), OLG shall, and the Province shall cause each other Agent
of the Province, to make, at the request of [the First Nations Partnership],
the respective finance personnel of OLG or that Agent of the Province,
including, in the case of the Audited Gross Revenues Statement, their
respective independent auditors, as applicable, available to [the First Nations
Partnership] and [the First Nations Partnerships] accounting advisors, within
the 20 day period referred to in section 2.2(f), to discuss in good faith such
statements of OLG or of that Agent of the Province, as the case maybe.
2.4 Changes in Accounting Procedures
(a)
In the event that during the course of any
Fiscal Year there has been a change in any applicable accounting practice or
principle of the Province, OLG or any other Agent of the Province, which change
affects the determination of Gross Revenues, the Province, OLG or such other
Agent of the Province shall deliver a written notice of such change to [the First
Nations Partnership] in sufficient detail in order for [the First Nations
Partnership] to understand such change. For the purposes of this section 2.4, a
change in any applicable accounting practice or principle
shall mean
any change in any accounting practice or principle related to the recognition
of Gross Revenues by the Province or OLG from those accounting practices or
principles applied by the Province or OLG in respect of the recognition of
Gross Revenues from the Lottery Schemes conducted and managed by OLG at the
Effective Date, as reported in the Consolidated Financial Statements of OLG.
For greater certainty, a change in any applicable accounting practice or
principle does not include the determination of any accounting practice or
principle that may be applied by the Province, OLG or any other Agent of the
Province to any new Lottery Schemes that the Province, OLG or any other Agent
of the Province may commence to conduct and manage from and after the Effective
Date, which determination of accounting practices and principles applicable to
such new Lottery Schemes commenced after the Effective Date shall be at the
sole discretion of the Province, OLG or such other Agent of the Province, as
the case may be.
2.5 Provincial Levies, including Taxes and WIN
Contributions
(a)
Subject to sections 2.5(b) and 2.5(c), the
Province affirms and agrees that the receipt by [the First Nations Partnership]
or the [First Nations Partnership] Partners of all or any portion of the $201
Million Payment or any Monthly Revenue Share Payments shall not be reduced by
any Levy of the Province or any agency of the Province with the jurisdiction
and power to impose such a charge acting under the authority of the Province,
including the WIN Contribution. If it is determined that any Levy of the
Province becomes payable by [the First Nations Partnership] or any [First
Nations Partnership] Partner on the receipt by [the First Nations Partnership] or
such [First Nations Partnership] Partner of all or any portion of the $201
Million Payment or any Monthly Revenue Share Payments, and [the First Nations
Partnership] and/or such [First Nations Partnership] Partners have complied
with their obligation to pay such Levy and no remission is available to them,
then the Province shall pay to [the First Nations Partnership] or such [First
Nations Partnership] Partners an amount equivalent to the Levy of the Province
so paid by each of [the First Nations Partnership] or such [First Nations
Partnership] Partners respectively.
(b)
The Province and [the First Nations Partnership]
acknowledge and agree that the affirmation and agreement of the Province set
out in section 2.5(a) does not apply to any Levy of an Authority related
directly or indirectly to any right, title or interest in and to, or any use,
expenditure, investment or application of, the $201 Million Payment or the
Monthly Revenue Share Payments after receipt thereof by [the First Nations
Partnership] or the [First Nations Partnership] Partners or to any income,
revenue or appreciation of value received or realized by [the First Nations
Partnership] and/or [a First Nations Partnership] Partner directly or
indirectly related to or derived from the use, expenditure, investment or
application of the $201 Million Payment or the Monthly Revenue Share Payments
after the receipt thereof by [the First Nations Partnership] or [a First
Nations Partnership] Partner, including such Levies of any Authority imposed
on, measured by or referred to as, income, land transfer, sales, goods and
services, use, consumption, capital, value added, excise, stamp, withholding,
business, wealth, estate, franchising, property, development, occupancy,
employer benefit, payroll, workers compensation, health, social services,
education or social securities taxes.
(c)
[The First Nations Partnership] acknowledges
that the Federal Government of Canada, or any agent or Authority of the Federal
Government of Canada, may be obliged to apply a Levy of the Province or any
Levy created by an agency of the Province with the jurisdiction and power to
impose such a charge acting under the authority of the Province to the receipt
by [the First Nations Partnership] or [First Nations Partnership] Partners of
all or any portion of the $201 Million Payment or any Monthly Revenue Share
Payments. In such event, and provided that [the First Nations Partnership] or
the [First Nations Partnership] Partners have complied with their obligation to
pay such Levy and no remission is available to them, then the Province shall
pay to [the First Nations Partnership] or such [First Nations Partnership] Partners
an amount equivalent to such Levy of the Province paid by each of [the First
Nations Partnership] or such [First Nations Partnership] Partners respectively.
2.6 OLG Board Membership
[The First Nations Partnership] shall have the right to
have a representative of [the First Nations Partnership] appointed by the
Province as a member of the board of directors of OLG in accordance with and pursuant
to the procedures of the Province for making such appointments. Any nominee of [the
First Nations Partnership] must comply with the criteria established for
service as a member of the board of directors of OLG. [The First Nations
Partnership] shall require any appointee that subsequently ceases to comply
with such approved criteria to resign immediately, failing which the Province
shall be entitled to terminate such appointee as a member of the board of
directors of OLG.
8.1 Initial Term
The initial term (the Initial Term) of this Agreement shall
commence upon the Effective Date and shall include all days up to but not
including the date that is the 20th anniversary of the Effective Date, unless
terminated earlier.
8.2 Renewal Term
Commencing on the date that is one year prior to the
commencement date of the Renewal Term, [the First Nations Partnership] and the
Province shall negotiate in good faith what amendments, if any, should be made
to this Agreement (as may have been amended from time to time during the
Initial Term) for the Renewal Term. If [the First Nations Partnership] and the
Province cannot agree on what amendments, if any, should be made to this
Agreement for the Renewal Term, then this Agreement shall continue in force and
effect, unamended, during the Renewal Term, unless terminated earlier.
.
9.2 Dispute Resolution
In the event that an acceptable resolution of the Dispute is
not achieved pursuant to section 9.1 and the party giving notice wishes to
resolve the matter, then the matter shall be referred for determination in
accordance with Schedule 9.2, which sets out the sole and exclusive procedure
for the resolution of such Disputes. The award of any arbitration shall be
appealable by the parties to the appropriate Ontario court on questions of law,
or questions of mixed fact and law, including, without limitation, matters of
process and procedure. The Arbitrators, as part of their award, may award costs
of the arbitration, in their discretion, having regard to the success achieved,
the good faith of the parties, the encouragement of good faith discussions to
resolve matters and other relevant factors.
10.1 Non-derogation
(a)
Nothing expressed or implied in this Agreement
shall be construed so as
to
affect in any manner the jurisdiction of the Province to conduct
and manage, and to control, licence, administer and regulate in the Province of
Ontario, the conduct and management of activities pursuant to section 207 of
the
Criminal Code.
(b)
Nothing expressed or implied in this Agreement
shall:
(i)
oblige the Province or OLG or any other Agent
of the Province to conduct and manage or to continue to conduct and manage or
provide for the operation of any lottery scheme or any other activity or any
facility, including any casinos;
(ii)
create any interest in favour of the First
Nations in Ontario, [the First Nations Partnerships predecessor], [the First
Nations Partnership], any [First Nations Partnerships predecessor] Partner,
any [First Nations Partnership] Partner or the Chiefs of Ontario in or to any
Lottery Schemes or in or to any assets of the Province or of OLG or any other Agent
of the Province, including any casinos, casino assets or other lottery or
gaming related assets; or
(iii)
limit the right of the Province or OLG or any
other Agent of the Province to conduct and manage activities under section 207
of the
Criminal Code
in their sole and absolute discretion in
accordance with Applicable Laws.
(c)
Nothing in this Agreement shall abrogate or
derogate from the application and
operation of Section 35 of the
Constitution Act, 1982
to
or in respect of aboriginal or treaty rights.
(d)
Subject to the terms of section 6.2 of this
Agreement and the Closing Agreement, nothing in this Agreement, including any
of the payments required under this Agreement, shall adversely affect, diminish
or derogate from any policy, program or statutory entitlement or benefit funded
or provided by the Province to which any one or more [First Nations Partnerships
predecessor] Partner, [First Nations Partnership] Partner, or any member of [a First
Nations Partnerships predecessor] Partner or [a First Nations Partnership]
Partner, was entitled at the Effective Date. For the purposes of this section
10.1(d), a policy, program or statutory entitlement or benefit is not adversely
affected where a negative effect or reduction of expenditure is based primarily
on reasons other than the receipt of funds under this Agreement or the [First
Nations Partnership Partnership] Agreement.
(e)
Nothing contained in this Agreement shall:
(i)
be deemed or construed or interpreted to
constitute any form of business relationship or to constitute any party hereto
a partner, joint venturer or any other form of business associate of the other;
(ii)
constitute any party hereto the agent or legal
representative of any other party hereto;
(iii)
create any fiduciary or other similar
relationship between any of the parties; or
(iv)
be deemed to constitute any kind of treaty or
treaty relationship between the Province and First Nations in Ontario within
the meaning of Section 35 of the
Constitution Act, 1982
.
10.10 Assignment
(b)
[The First Nations Partnership] acknowledges
and agrees that the Province may cause an internal reorganization of the
Government of Ontario or Agents of the Province that may affect OLG and other
Agents of the Province and may result in the assignment by OLG of its rights
and obligations under this Agreement to another Agent of the Province or to the
Province. The Province acknowledges that, notwithstanding any such internal reorganization
of the Government of Ontario or any Agent of the Province, including OLG, Her
Majesty the Queen in Right of the Province of Ontario and any Agent of the
Province that
replaces OLG, shall remain bound by the obligations and
agreements and shall be entitled to the rights, remedies
and benefits of
the Province or OLG, as the case may be, under this Agreement.
***
SCHEDULE 1.1(nn)
GROSS REVENUES
1. For purposes of this Agreement, Gross Revenues means,
in respect of an Agent of the Province (including OLG), the revenues of that
Agent of the Province, before the deduction of promotional allowances, as
reported in the Segmented Information notes in the notes to, or as otherwise
reported in, the audited Consolidated Financial Statements of that Agent of the
Province and generated from the following:
(a) Lotteries, including on-line games, sports games, instant games and bingo
gaming;
(b) Slot machines and table games at casinos and
racetracks; and
(c) Non-gaming activities ancillary to the conduct and
management of Lottery Schemes, including hotel, food, beverage and other
services, including the retail value of accommodation, food and beverage
services and other services provided to gaming patrons on a complimentary
basis.
Notwithstanding the foregoing and for greater certainty:
(d) Gross Revenues generated from lotteries, slot machines
and table games and non-gaming activities as set out above shall, for the
purposes of this Agreement, be determined in accordance with the OLG revenue
recognition accounting practices and principles set out in section 2 of this
Schedule 1.1(nn) notwithstanding any changes from and after the date of this
Agreement in such accounting practices or principles by OLG or any other Agent
of the Province, provided that If any particular accounting practice or
principle is not addressed in section 2 of this Schedule 1.1(nn), that
accounting practice or principle applied by OLG as at March 15, 2006 shall be
used.
(e) Gross Revenues shall include any revenues generated
front the conduct and management of any Lottery Scheme in existence as of March
15, 2006 and any Lottery Scheme which is a new product offering for the
Province or any Agent of the Province (for the purposes of this Schedule
1.1(nn), a New Lottery Scheme) that comes into existence from and after March
15, 2006, which revenues generated from such New Lottery Scheme shall be
determined in accordance with the accounting practices and principles applied
to such New Lottery Scheme in the sole discretion of the Province, OLG or any
other Agent of the Province, as the ease may be, at the time such New Lottery
Scheme comes into existence.
(f) Gross Revenues shall not include any revenues received
by the Province, OLG or any other Agent of the Province from the conduct and
management of the Lottery Scheme, including such conduct and management at any
gaming facility if, and to the extent that, such revenues so received are not
retained to the final account of the Province, OLG or any such other Agent of
the Province.
2. Revenue from lottery games, for which results are
determined based on a draw, is recognized when the draw takes place. Revenue
for future draws is deferred and recognized when the draw takes place. Revenue
from instant games is recognized when the ticket is activated for play by the
retailer. Revenue from sports wagering games and bingo gaming is recognized
when the ticket is sold to the consumer. Tickets issued as a result of the
redemption of free ticket prizes are not recorded as revenue.
Gaming revenue from slot and table game operations
represents the net win from gaming activities, which is the difference between
amounts earned through gaming wagers less the payouts from those wagers.
Non-gaming revenue includes revenue from hotel, food and
beverage, entertainment centre and other services and is recognized at the time
the services are rendered to patrons. This also includes the retail value of
accommodations, food and beverage and other services provided to patrons on a
complimentary basis.
***
SCHEDULE 9.2
DISPUTE RESOLUTION
DEFINITIONS
1. In this Schedule 9.2:
(a)
Arbitrators
means the panel of three
arbitrators appointed pursuant to paragraphs 6 and 7;
(b)
Chair
means the chair appointed pursuant to
paragraph 7;
(c)
Claimant
means a Party that commences a
dispute resolution pursuant to paragraph 4;
(d)
Disputes
has the meaning attributed to such
term in section 9.1 of the Agreement;
(e)
Party
means a party to a Dispute;
(f)
paragraph
means a paragraph of this Schedule
9.2; and
(g)
Respondent
means a Party who is not the
Claimant, and the term Respondents shall, where there is only one Respondent,
refer to that Respondent.
GENERAL
2. All Disputes which are to be determined according to
the terms of this Schedule 9.2 pursuant to section 9.2 of the Agreement shall
be arbitrated in accordance with the provisions of the
Arbitration Act,
1991
, S.O. 1991, c. 17 (the Arbitration Act) except to the extent that
those provisions are expressly modified by the provisions of the Agreement and
this Schedule 9.2.
3. No individual shall be appointed to arbitrate a Dispute
pursuant to this Schedule 9.2 unless he or she agrees in writing to be bound by
the provisions of this Schedule 9.2.
COMMENCEMENT OF DISPUTE RESOLUTION
4. A Party may commence a dispute resolution as Claimant
by delivering a written notice of arbitration (the Notice of Arbitration) to
each of the Respondents.
5. The Notice of Arbitration shall include in the text or
in one or more attachments:
(a) the full names, descriptions and addresses of the
Parties;
(b) a demand that the Dispute be referred to arbitration pursuant
to this Schedule 9.2;
(c) a general description of the Dispute;
(d) the relief or remedy sought; and
(e) the name of the person the Claimant nominates as an
arbitrator.
6. The arbitrator nominated by the Claimant shall be
independent of each Party and shall not be or have been in the employ of or on
contract with the Claimant at any time and shall be qualified by education and
experience to determine the subject matter of the Dispute. Such qualified
arbitrator nominated by the Claimant shall be one of the panel of Arbitrators who
will resolve the Dispute. Within 20 days of the date of receipt by the
Respondent of the Notice of the Arbitration, the Respondents shall by notice to
the Claimant, jointly appoint a second arbitrator to serve on the panel of
Arbitrators who will resolve the Dispute, and the arbitrator nominated by the
Respondents shall also be independent of each Party and shall not be or have
been in the employ of or on contract with any respondent at any time and shall
be qualified by education and experience to determine the subject matter of the
Dispute.
7. Within 10 days of the appointment of the second
arbitrator by the Respondents, the appointees of the Claimant and Respondents shall,
by notice to the Parties, appoint a third and final arbitrator to act as chair of
the Arbitrators, failing which a chair shall be appointed by a judge of the
Superior Court of Justice of Ontario on the application of any Party on notice
to all the other Parties. Such chair shall be independent of each Party and shall
riot be or have been in the employ of or on contract with any Party at any time
and shall be qualified by education and experience to determine the subject
matter of the Dispute.
8. Subject to the Arbitration Act, the Agreement and this
Schedule 9.2, the Arbitrators may conduct the arbitration in such manner as the
Arbitrators consider appropriate.
PLEADINGS
9. The following shall apply to the arbitration of any
Dispute:
(a) within 10 days of the appointment of the three
Arbitrators, the Claimant shall deliver to all the Respondents and the
Arbitrators a written statement (the Statement) concerning the Dispute
setting forth, with particularity, the Claimants position with respect to the
Dispute and the material facts upon which the Claimant intends to rely;
(b) within 15 days after the delivery of the Statement,
each Respondent shall deliver to the Claimant and the Arbitrators a written
response (an Answer) to the Statement setting forth, with particularity, the
Respondents position on the Dispute and the material facts upon which the
Respondent intends to rely;
(c) if any Respondent fails to deliver an Answer within
the time limit in paragraph 9 (b), that Respondent shall be deemed to have
waived any right to provide an Answer to the Statement and the arbitration may
continue without further notice to that Respondent;
(d) within 10 days after the earlier of: (i) the day all
Answers have been delivered, and (ii) the 15th day referred to in paragraph
9(b), the Claimant may deliver to all the Respondents and the Arbitrators a
written reply (a Reply) to the Answer of each Respondent, setting forth, with
particularity, the Claimants response, if any, to the Answer;
(e) within the time limit in paragraph 9(b), a Respondent
may also deliver to the Claimant, each other Respondent and the Arbitrators a
counter-statement (a Counter-Statement) setting forth, with particularity,
any additional Dispute for the Arbitrators to decide. Within 15 days of the
delivery of a Counter-Statement, the Claimant shall deliver to each Respondent
and the Arbitrators an Answer to the Counter-Statement. If the Claimant fails
to deliver an Answer to the Counter-Statement within such 15-day period, the
Claimant shall be deemed to have waived any right to provide an Answer to the
Counter-Statement. Within 10 days after the delivery of an Answer to the
Counter-Statement, the Respondents may deliver to the Claimant and the
Arbitrators a Reply to such Answer. Any Dispute submitted to arbitration in
accordance with this paragraph 9(e) shall be governed by, and dealt with as if
it were the subject of a Statement in accordance with, this Schedule 9.2,
except that it shall be decided by the Arbitrators already appointed, and shall
be determined by the Arbitrators accordingly; and
(f) the time limits referred to in paragraphs 9(a) to 9(f)
may be extended by the Chair for such period not to exceed an aggregate of 30
days for such reasons as the Arbitrators in the Arbitrators discretion may
determine upon application in writing made to the Arbitrators by the Claimant
or any Respondent on notice to each other Party to the arbitration, either
before or within five days after the expiry of the relevant time limits and, in
the event that the other Party or Parties wishes to oppose the application, the
other Party or Parties shall be given an opportunity to make submissions on the
application.
The Parties to the Agreement have set the time limits in
this paragraph 9 after due consideration of the amount of time necessary to
complete each step and it is their express desire that no extension of any time
limit shall be granted except in extraordinary circumstances, the onus for the
proof of the existence of which lies on the Party seeking an extension.
CASE CONFERENCES
10. Within 10 days of the appointment of the three
Arbitrators, the Chair shall convene a case conference for the determination of
any preliminary or interlocutory matter or to provide for planning and
scheduling of the arbitration or to determine the timing or desirability of expert
reports.
[1]
The formal name of OLG is Ontario Lottery and Gaming Corporation.
Ontario is known formally in these proceedings as
Her Majesty
the Queen in right of Ontario. The First Nations Partnership is known formally
as the Ontario First Nations (2008) Limited Partnership.
[2]
As noted above, u
nder s. 9.2. of the Agreement, there may be
an appeal from any arbitration award only on questions of law or questions of
mixed fact and law; there is no provision for an appeal on questions of fact.
[3]
The
Arbitration Act
, R.S.B.C. 1996,
c. 55, was repealed and replaced in 2020 by the
Arbitration Act
, S.B.C. 2020. Section
59(2) of the new Act likewise limits appeals to questions of law.
[4]
This court recently granted leave to appeal in another case
involving an appeal from a commercial arbitration award that may consider
whether
Vavilov
changed the standard of review principles in
Sattva
and
Teal Cedar
: see
Tall Ships Landing Devt. Inc. v. City of
Brockville
, 2019 ONSC 6597 and
Tall Ships Devt. Inc. v. City of Brockville
, 2020 ONSC 5527, leave to appeal to Ont. C.A. granted, M51065 (July
22, 2021).
|
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 complainants 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. T.C., 2021 ONCA 595
DATE: 20210901
DOCKET: C67307
Paciocco, Nordheimer and Coroza JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
T.C.
Appellant
William Gilmour, for the appellant
Katie Doherty, for the respondent
Heard: August 31, 2021 by videoconference
On appeal from the convictions entered on May 23, 2019 by
Justice Gordon D. Lemon of the Superior Court of Justice sitting with a jury.
REASONS FOR DECISION
[1]
T.C. appeals his convictions for sexual exploitation, sexual assault,
and sexual interference. At the conclusion of the hearing, we dismissed the
appeal with reasons to follow. We now provide our reasons.
[2]
The appellant was accused of sexually abusing his stepdaughter over a
period of three years from the time when the stepdaughter was 13 until she was
16. It is alleged that the abuse occurred two to three times per week.
[3]
The appellant advances three grounds of appeal. First, he alleges that
the trial judge erred in not allowing him to adduce evidence regarding a
particular email that the stepdaughter had told her friends she had obtained
from the appellants email account. The appellant wished to advance an argument
that this email, along with some related messages, demonstrated the technical
skill that the stepdaughter possessed that would have allowed her to fabricate certain
earlier text messages that she had and that were placed into evidence.
[4]
The trial judge ruled that the emails were inadmissible. He noted that
the emails were created some months after the appellants arrest and raised an
issue that was collateral to the issues to be addressed in the trial. He also
found that the emails were of little probative value. The trial judge
consequently concluded that the emails were irrelevant and refused to allow them
to be placed into evidence.
[5]
We do not see any error in the trial judges conclusion on this issue. We
do not agree that the emails necessarily constituted a collateral matter since
it is possible that the emails could have supported a suggestion of animus by
the complainant. However, we would defer to the trial judges balancing of the
probative value versus prejudicial effect of this evidence in respect of its
admissibility. Lastly, we note that the refusal to admit these emails did not
hamper the appellants ability to cross-examine the stepdaughter regarding the
allegation that the much earlier text messages, that were put into evidence,
had been fabricated by her.
[6]
The second ground of appeal is that the trial judge, in his instructions
to the jury, improperly emphasized a particular piece of evidence, that is, a
towel that was found by the police and that had the appellants DNA on it. We
do not see any merit to this argument. The portion of the final instructions
about which the appellant complains was part of the trial judges recitation of
the Crowns position at trial. The trial judge simply repeated what the trial
Crown had advanced as a submission regarding the relevance of the towel and
what the jury should take from it. The trial judge did not advance this submission
himself nor did he, in any way, suggest that he agreed with it. We also note
that a draft of the final instructions, with this portion included, was
provided to counsel and no objection was made to it.
[7]
The third ground of appeal is that the trial judge erred in his answer
to a question that the jury asked regarding a test that the complainant said
she had undergone that related to her allegations. The trial judge properly
told the jury that there was no evidence regarding the results of this test and
that they should not speculate regarding it. We also note that the trial
judges response to the question was the same in content that defence counsel
had asked for as a response to the question.
[8]
For these reasons, the appeal was dismissed.
David M. Paciocco
J.A.
I.V.B. Nordheimer
J.A.
S. Coroza J.A.
|
WARNING
The judge hearing this motion 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 complainants 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
An order restricting publication in this proceeding
was made under s. 517 of the
Criminal Code
and continues to be in
effect. This section of the
Criminal Code
provides:
517(1) If the prosecutor or the accused
intends to show cause under section 515, he or she shall so state to the justice
and the justice may, and shall on application by the accused, before or at any
time during the course of the proceedings under that section, make an order
directing that the evidence taken, the information given or the representations
made and the reasons, if any, given or to be given by the justice shall not be
published in any document, or broadcast or transmitted in any way before such
time as
(a) if a preliminary inquiry is held, the
accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect
of whom the proceedings are held is tried or ordered to stand trial, the trial
is ended.
Failure to comply
(2) Everyone who fails without lawful excuse, the
proof of which lies on him, to comply with an order made under subsection (1)
is guilty of an offence punishable on summary conviction.
(3) [Repealed, 2005, c. 32, s. 17]
R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st
Supp.), s. 101(E); 2005, c. 32, s. 17.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. N.S., 2021 ONCA 605
DATE: 20210907
DOCKET: M52683 & M52732 (C69437)
Fairburn A.C.J.O. (Motion Judge)
BETWEEN
Her Majesty the Queen
Appellant
and
N.S.
Respondent
and
Criminal Lawyers
Association (Ontario), Canadian Alliance for Sex Work Law Reform, Monica
Forrester, Valerie Scott, Jane X, Alessa Mason, Lanna Moon Perrin, and Tiffany
Anwar
Proposed Interveners
Deborah Krick, Michael Dunn,
and Jeremy Tatum, for the appellant
Jeffery Couse, for the respondent
Gerald Chan and Dragana Rakic,
for the proposed intervener the Criminal Lawyers Association (Ontario)
Michael Rosenberg and Alana
Robert, for the proposed interveners the Canadian Alliance for Sex Work Law
Reform, Monica Forrester, Valerie Scott, Jane X, Alessa Mason, and Lanna Moon
Perrin
Tara Santini, for the
proposed intervener the Canadian Alliance for Sex Work Law Reform
James Lockyer, for the
proposed intervener Tiffany Anwar
Michael H. Morris and Joseph
Cheng, for the Attorney General of Canada
Heard: August 19, 2021 via videoconference
REASONS FOR DECISION
A.
Overview
[1]
The respondent (N.S.) was charged with numerous offences under the
Criminal Code
, R.S.C., 1985, c. C-46,
including s. 286.2(1) (receiving material benefit from sexual services), s.
286.3(1) (procuring sexual services), and s. 286.4 (advertising sexual
services). At trial, N.S. asserted that all three of those provisions infringed
ss. 2(b), 2(d), and 7 of the
Canadian Charter of Rights and Freedoms
and were not justifiable limits under s. 1. The trial judge found that the
provisions infringed s. 7 of the
Charter
, declared them of no force
and effect, and declined to suspend the declaration of invalidity:
R. v.
N.S.
, 2021 ONSC 1628;
R. v. N.S.
, 2021 ONSC 2920.
[2]
On June 15, 2021, the Crown filed an application to stay the effect of
the declaration pending the resolution of the appeal in this matter. The Crown
has already filed its motion record on the application for a stay, including
seven affidavits in support of its position. That application is scheduled to
be heard by a panel of this court on October 1, 2021. I have been informed that
the Crown expects to perfect the appeal prior to the date that the stay
application will be heard.
[3]
These reasons pertain to the relief sought by a number of proposed
interveners. With the exception of the Criminal Lawyers Association (Ontario)
(CLA), I will refer to all other proposed interveners collectively as the Group
Interveners. This is appropriate because, both in written and oral
submissions, they presented a united front at the motion forming the subject of
these reasons.
[4]
At this time, the CLA only requests leave to intervene in the Crowns
motion for a stay. The Crown consents to the CLAs motion. I would grant the
requested relief, subject to the conditions set out at the end of these
reasons.
[5]
The Group Interveners ask that they be permitted leave to intervene in
the appeal of this matter. The Group Interveners also seek a number of other forms
of cascading relief, relief that far exceeds what the CLA requests. In
particular, the Group Interveners ask for the following:
(i) as their primary position, the Group Interveners
ask for an order suspending the hearing of the appeal in this matter until such
time that an application that the Group Interveners have lodged in the Superior
Court of Justice has been adjudicated upon;
(ii) if the hearing of the appeal is not suspended, then
the Group Interveners ask for an order granting them leave to intervene in the
Crowns motion for a stay pending appeal of the declaration of invalidity of
ss. 286.2, 286.3(1), and 286.4 of the
Criminal Code
, including an
order that the Group Interveners be permitted to introduce fresh evidence on
the stay application and participate fully in cross-examinations on that
application;
(iii) if the hearing of the appeal is not suspended
until after the Superior Court application is adjudicated upon, the Group
Interveners also request an order that they be permitted to file a fresh
evidence application on the appeal proper, an application that would largely
duplicate the materials they wish to file on the stay application (should the
relief in (ii) above be granted), as well as the materials filed in support of
their application in the Superior Court of Justice.
[6]
The Crown consents to the Group Interveners being granted leave to
intervene in both the motion to stay and the appeal, subject to limitations
being placed upon the length of their factums and submissions. However, the Crown
opposes the Group Interveners being permitted to delay the hearing of the
appeal and expand the evidentiary record in both the stay application and the
appeal.
[7]
For the reasons that follow, the Group Interveners are granted leave to
intervene in both the motion to stay and the appeal. They will be permitted to
file written submissions and make oral argument in accordance with the terms
set out at the end of these reasons. All other forms of relief are denied.
B.
The Requests of the Group Interveners
[8]
The Group Interveners consist of sex workers rights organizations,
individual sex workers, and a third party. They include the Canadian Alliance
for Sex Work Law Reform, a coalition of 25 leading sex workers rights
organizations predominantly led by and for sex workers across Canada. This coalition
is joined by current and former sex workers and a former escort agency
operator.
[9]
The Crown acknowledges that the Group Interveners meet the criteria for
leave to intervene as set out in this courts prior jurisprudence:
Peel
(Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd.
(1990), 74 O.R. (2d) 164 (C.A.), at p. 167;
Bedford v. Canada (Attorney
General)
, 2009 ONCA 669, 98 O.R. (3d) 792, at para. 2 [
Bedford
(2009)].
Accordingly, the Crown consents to the Group Interveners being granted leave to
intervene in both the stay motion and the appeal proper.
[10]
I
do not question the Crown concession on this point. The Group Interveners
include well-recognized entities with a special expertise in the issues to be
decided on appeal; all have a real, substantial, and identifiable interest in
the subject matter of the proceedings; and each has an important perspective to
bring to the appeal, which perspectives I am satisfied will differ in some
respects from the immediate parties to the appeal:
Bedford
(2009), at
para. 2.
[11]
Where
the Group Interveners and the Crown part company is on the role that the Group
Interveners should play in relation to this appeal. The Crown maintains that
the Group Interveners should be held to the traditional intervener status of
friends of the court and, therefore, not be permitted to act as if they are a
party to this criminal appeal, weighing in on scheduling issues and expanding
the issues to be decided and factual record upon which to decide them.
[12]
The
group interveners want more.
(1)
Should the Appeal be Delayed Pending Adjudication of the Civil
Application in the Superior Court of Justice?
[13]
The
Group Interveners have brought a civil application in the Superior Court of
Justice, in which they challenge the constitutionality of many (if not all) of
the
Criminal Code
provisions pertaining to commercial sex work. As
their primary form of relief in the criminal appeal before this court, the one
focused most heavily upon in both written and oral submissions, the Group
Interveners ask that the appeal be placed on pause until their civil
application has been adjudicated. They say that this relief should be granted
because their application is the best means of determining the
constitutionality of the provisions at issue in this criminal matter. The Group
Interveners emphasize that this appeal only involves three of the
Criminal
Code
provisions relating to sexual services and that the record is, in
their view, woefully inadequate. As well, the Group Interveners argue that the
constitutionality of the provisions were only considered through a ss. 2(b),
2(d), and 7
Charter
lens at trial, when in fact they should have also
been considered, at a minimum, under s. 15 of the
Charter
.
[14]
The
Group Interveners therefore argue that this appeal should be delayed so that
their civil application can be adjudicated, thereby offering this court the
benefit of robust guidance when considering the appeal in this matter.
Alternatively, the Group Interveners say, if there is an appeal taken from the
decision arising out of their civil application, then that appeal could be grouped
with this one, a grouping that would provide this court with the benefit of a
significantly expanded factual record, and with an expanded constitutional lens
through which to consider the impugned
Criminal Code
provisions. It is
said that this would promote judicial economy in this court, defend against
inconsistent decisions, and ensure that this court has the best available
information before it when deciding these important issues.
[15]
Notwithstanding
the importance of these issues, I would not grant this relief.
[16]
The
Group Interveners civil application before the Superior Court of Justice
challenges the same
Criminal Code
provisions struck down in this case:
ss. 286.2(1), 286.3(1), and 286.4. In addition, that application challenges
three other sections of the
Criminal Code
, all of which also relate to
commercial sex work: s. 213(1) (stopping or impeding traffic for the purpose of
offering, providing, or obtaining sexual services), s. 213(1.1) (communicating to
provide sexual services for consideration next to a school, playground or daycare
centre), and s. 286.1 (obtaining sexual services for consideration). In short,
as I understand it from the materials filed on this application, the Group
Interveners are essentially challenging all of the sexual service provisions in
the
Criminal Code
.
[17]
Not
only is the constitutional approach to those provisions much broader in scope
than what was before the trial judge in this appeal (including a s. 15
Charter
argument that was not argued in this case), but the Group Interveners have
filed a factual record on their civil application that can only be described as
considerable in scope. A condensed version of that record was filed on this
motion and is over 600 pages in length. As I understand it, the full extent of
the record as it currently stands is over 2,000 pages deep. It was only filed in
the Superior Court on July 14, 2021 and contains 16 affidavits, with five of
them being expert affidavits.
[18]
The
Attorney General of Canada (AGC) is the respondent on the civil application
in the Superior Court of Justice. While the AGC does not take a position on the
Group Interveners application in this court, the AGC appeared as a courtesy to
answer any questions about the outstanding civil application. The AGC says that
it has not yet filed its record on the civil application. If all goes according
to plan, the AGC will aim to have its materials filed by December 15, 2021.
While understandably reluctant to provide exact numbers, counsel to the AGC
allowed that they will likely be filing between 10 to 20 affidavits on the
civil application. Then a reply record will have to be filed.
[19]
While
there is no timetable set as yet for cross-examinations on the civil
application, I am informed that it is reasonable to expect that around eight
weeks will be needed for those cross-examinations. Of course,
cross-examinations will not commence until after all materials have been filed.
[20]
While
counsel are optimistic that this matter could be ready to be heard in the
Superior Court by June of 2022, respectfully, I would place emphasis on the
word optimistic. The simple reality is that, based upon the information
available to this court on this application, the Group Interveners application
in the Superior Court is at a very preliminary stage.
[21]
I
have come to this conclusion based in part upon the helpful April 27, 2021
civil endorsement form of Myers J. In his endorsement, Myers J. notes that the
applicants (the Group Interveners in this matter) were at that time asking for a
February 2022 date for the hearing of the civil matter, which he described as
not realistic. He also described what was being proposed as a huge trial in
a box, questioning the appropriateness of only a four-day hearing for an application
that would likely involve 20 or more affidavits, in addition to all of the
transcript arising from cross-examinations.
[22]
Justice
Myers declined the request to schedule the matter for four days in February
2022. As he put it, if the matter did not go ahead on those days, it would
essentially mean the loss of a judge-week from a schedule already beset with
backlog from the pandemic.
[23]
I
was informed at the hearing of this application that a case management judge
has recently been assigned in the Superior Court, but that the first case
management meeting will not happen until September 14, 2021. Whatever comes
from that case management process, one thing seems clear today, even based upon
the parties own schedules, this matter cannot be heard in the Superior Court
until at least June of next year.
[24]
Even
if the parties to the civil application have completed the record by June of
2022, an ambitious schedule to be sure, it is not for this court to weigh in on
whether the Superior Court will have time to hear the matter at that time. It
will be for the Superior Court to determine the form that the application will
take, the number of days that will be assigned to the matter, and when the
Superior Courts schedule will accommodate the matter. In other words, it is
not at all clear that this matter will be heard by June of next year. And, even
if it is heard then, one cannot forget that the matter has to be decided. On a
record of this size, it is a simple reality that whatever judge hears the civil
application, it will take some time to produce the reasons.
[25]
It
seems somewhat clear today that the civil application will not be concluded for
a long time.
[26]
At
the same time, I am informed by Crown counsel that the Crown appeal in this
matter will be perfected before October 1, 2021, the date scheduled for the
hearing of the stay application. The Crown also says that it will be ready to
argue the appeal by the early new year. I was informed by counsel for the
respondent on the criminal appeal that he may not be in a position to file
responding submissions and argue the appeal until a few months later, likely
into April of 2022.
[27]
I
would add the following. While the respondent supports the Group Interveners in
this case provided it creates only what he describes as a modest delay,
which he defines as the appeal being argued in 2022 he is not prepared to say
that he is without s. 11(b)
Charter
concerns. While he does not rest
charged right now and, accordingly, his s. 11(b)
Charter
entitlement
is not active, I keep the respondents s. 11(b) concern in mind in arriving at
my conclusion in this case. The fact is that, should the Crown succeed on
appeal, the respondent will again face jeopardy on these charges. In my view,
his concern reflects the fact that this is a criminal matter with significant
implications, not only for the respondent as an individual, but for the
community at large.
[28]
In
any event, even if the civil application could be heard in June of 2022, and
even if the reasons on this potentially 30-plus affidavit case, involving what
Myers J. referred to as a trial in a box, could be delivered within a couple
of months, respectfully, it seems unrealistic that an appeal from those reasons
could get before this court and heard by the end of 2022. Therefore, stepping
back and looking at this matter realistically, the respondents position that
he will agree to a modest delay of up to the end of 2022 likely cannot be
accommodated.
[29]
I
am not familiar with the hearing of a criminal appeal ever having been delayed
pending the outcome of a civil application. While the Group Interveners rely on
a couple of civil appeals that were delayed in the interests of justice, they
are not apposite to the request being made here.
[30]
In
one of the cases, the delay was predicated on the need for the trial judge to
determine some outstanding issues which would reduce the number of appeals
brought before this court as a result. A short stay was granted for that
purpose:
Korea Data Systems (USA), Inc. v. Aamazing Technologies Inc.
,
2012 ONCA 756, 29 C.P.C. (7th) 51, at paras. 23-24.
[31]
The
other authority relied upon by the Group Interveners is one where this court
delayed a civil appeal on the basis that it involved essentially the same
litigation. Like
Korea Data Systems
, the same parties were embroiled
in different pieces of litigation arising out of one main set of allegations:
Canadian
Planning and Design Consultants Inc. v. Libya (State)
, 2015 ONCA 661, 340
O.A.C. 98, at para. 53.
[32]
These
decisions have no application to the Group Interveners request in this case.
[33]
In
my view, the Group Interveners request to delay this appeal will result in a
very long delay. The purpose of the request is really predicated on a desire to
turn the appeal into something very different than what is being appealed. The
objective of this delay is to ensure that this appeal is heard against the
backdrop of: (a) a significantly expanded record, including another potentially
30-plus affidavits and cross-examinations; (b) additional impugned statutory
provisions; and (c) additional constitutional arguments. Respectfully, this is
a request to turn this appeal into more of a reference, akin to the case that
is currently lodged in the Superior Court.
[34]
It
is critical to keep in mind the context surrounding this appeal. This is a
criminal appeal predicated on an indictment. The respondent brought a constitutional
challenge to the statutory provisions under which he was charged. He chose how
to litigate those issues and the record unfolded accordingly. As with all
constitutional litigation, the trial judge decided the matter based upon the factual
record and arguments put before him. The Crown appeals from that decision.
[35]
Appeals
must proceed in an expeditious fashion. This is particularly true where there
is conflicting jurisprudence on the very subject of the appeal, as is the case
here. Contrary to the disposition in this case, the trial judge in
R. v.
MacDonald
, 2021 ONSC 4423, found that
R. v. N.S.
, 2021 ONSC 1628,
was plainly wrong and upheld the constitutionality of the same impugned
provisions: at para. 16. Two further trial judges agreed with the findings of
the trial judge in
MacDonald
, similarly asserting that the decision in
N.S.
is plainly wrong:
R. v. Williams
(2 July 2021),
Brampton (Ont. S.C.);
R. v. Maldonado Vallejos
, 2021 ONSC 5809, at
para. 19. Additionally, there is one other matter pending at the Superior
Court, where the accused has been found guilty and has been given time to
consider whether to bring a constitutional challenge to s. 286.2(1) of the
Criminal
Code
:
R. v. Y.S.
, 2021 ONSC 4010, at paras. 52, 202-204.
[36]
In
addition, there are at least two appeals pending before this court in which I
am informed by the Crown that each appellant appears to be raising the
constitutionality of the same or similar
Criminal Code
provisions for
the first time on appeal:
R. v. J.K.
(3 August 2016), Brampton (Ont.
C.J.), appeal as of right to Ont. C.A., C63449;
R. v. S.M.
(11 October
2019), Newmarket, 18/05543 (Ont. C.J.), appeal as of right to Ont. C.A., C67806.
There is also an appeal in the matter of
R. v. B.
, 2018 ONSC 7205
(C69136 & C69138), where the constitutional challenge to the same
provisions as this case was dismissed. That case involves persons under the age
of 18 years.
[1]
[37]
Of
further concern are four cases cited by the Crown that were scheduled to be
heard by the Superior Court between August 2021 and September 2021.
[2]
Depending upon the results of those decisions, this court could be faced with
even more appeals of a similar nature.
[38]
Quite
simply, the trial courts need some help with respect to this matter. In my
view, this court would be abdicating its responsibility to provide guidance on
matters of constitutional importance, especially where there is uncertainty on
such matters, if it were to suspend the hearing of a criminal appeal one that
would bring those constitutional matters into focus pending a civil matter
being adjudicated in the Superior Court, which may or may not even resolve
within the next calendar year. This is particularly true when there are other
constitutional challenges to the legislation being litigated in trial courts
across Ontario right now, as is the case here.
[39]
Finally,
as part of the materials filed on this application, the Crown also filed its
record for the stay application. I do not intend to address that record in any
detail, a matter that should be left to the panel hearing the stay application.
I would simply note the fact that, as of May 21, 2021, there were hundreds of
active cases in the Province of Ontario involving the impugned
Criminal
Code
provisions.
[40]
Whether
the record in this case is as complete as it could be or not, and whether N.S.
challenged the provisions as completely as he could have or not, this matter is
one of importance to N.S., to other accused whose jeopardy hangs in the
balance, to the public, and to the administration of justice. It cannot be put
on hold for an indefinite period of time.
[41]
Therefore,
I dismiss the request to delay the hearing of the appeal.
(2)
Should the Group Interveners be Permitted to Introduce New Evidence on the
Stay Application?
[42]
If
the Group Interveners had succeeded in their application to have the appeal
delayed, then they would not have taken a position on the Crowns stay
application. However, in the event that the request to delay the appeal were to
be dismissed, the Group Interveners asked to be permitted to make written and
oral submissions on that application and to file a factual record. It was made
clear during oral submissions for reasons that I need not get into, but which
reasons I accept that the Group Interveners are not prepared to share their
factual record with the respondent to the stay application.
[43]
While
I would grant the Group Interveners request to be permitted to intervene,
subject to the terms set out below, they may not augment the factual record.
[44]
I
start with the proposition that interveners are not typically granted the
ability to supplement the record:
R. v. M.C.
, 2018 ONCA 634, at para.
10;
R. v. Morris
, 2019 ONCA 509, at para. 7;
R. v. Chapman
(2005), 203 O.A.C. 233 (C.A.), at para. 6. Nor are they permitted to raise issues
beyond those raised by the parties to the litigation. For instance, this court has
denied an interveners request to raise a new constitutional argument for the
first time on appeal: see e.g.,
Bedford v. Canada (Attorney General)
,
2011 ONCA 209, at paras. 4-20 [
Bedford
(2011)]. Notably, as pointed
out by the Crown, the Supreme Court also recently commented that interveners
play a vital role in our justice system by providing unique perspectives and
specialized forms of expertise that assist the court in deciding complex issues
that have effects transcending the interests of the particular parties before
it but, even so, interveners should not be permitted to widen or add to the
points in issue:
R. v. Barton
, 2019 SCC 33, [2019] 2 S.C.R. 579, at
paras. 52-53.
[45]
In
my view, the same can be said of requests to intervene relative to a stay
application. This stay application is a criminal matter between the parties,
one that can be decided on the facts as marshalled by the parties. I am
confident that those facts will be sufficient to give proper life to the
application for a stay. I am also confident that the Group Interveners
presence on the application, and the submissions they will offer, will provide
the court with the assistance necessary to properly decide the issues before it.
[46]
Therefore,
while the Group Interveners may provide written and oral submissions at the
stay application, they may not augment the factual record.
(3)
Should the Group Interveners be Permitted to Augment the Appeal Record?
[47]
This
brings me to the next form of relief requested by the Group Interveners.
[48]
If
they are denied a stay of the appeal pending their civil application playing
through in the Superior Court, then they wish to augment the appeal record with
the record they have filed in the Superior Court. As mentioned before, the
record from the civil application is already a record of substantial heft and
will only get larger with the affidavits to be filed by the AGC and the eight weeks
of cross-examinations yet to come.
[49]
Permitting
the Group Interveners to augment the appeal record in this fashion would turn
this appeal into an entirely different case. As previously noted, and for the
reasons already discussed, it would essentially turn this court into a court of
first instance on this issue of constitutionality and render the trial judges
reasons entirely nugatory to the result. I say this because the case in this
court would be litigated on an entirely different basis. This would be unfair
to the trial judge, it would be unfair to the Crown, it would be unfair to the
respondent, and it would be unfair to the administration of justice. It is not
how constitutional litigation should evolve.
[50]
In
essence, it would turn this criminal appeal into a reference involving a
broad-ranging civil application. If there is to be additional evidence led on
appeal, it is the parties who will have to follow the usual course and bring a
fresh evidence application, leaving it to the panel hearing the appeal to
decide whether that evidence should be admitted:
R. v. M. (A.)
, 2005
CanLII 33773 (Ont. C.A.), at paras. 1, 4.
C.
Conclusion
[51]
The
CLA and the Group Interveners are granted leave to intervene in the Crowns
motion to stay the effect of the declaration of invalidity pending the
resolution of the appeal, subject to the following terms:
(i)
The CLA and the Group Interveners may each file a factum not exceeding 15 pages
in length;
(ii)
The factums will be filed no later than September 16, 2021;
(iii)
Oral argument of no more than 10 minutes each will be permitted;
(iv)
The record will not be supplemented in any way;
(v)
The interveners shall not seek costs; and
(vi)
No costs will be ordered against the interveners or the parties.
[52]
The
Group Interveners are granted leave to intervene in the appeal subject to the
following terms:
(i)
They may file a factum not exceeding 15 pages in length;
(ii)
The factum will be filed in accordance with a direction given by the case
management judge;
(iii)
Oral argument of no more than 15 minutes will be permitted;
(iv)
The record will not be supplemented in any way;
(v) The interveners shall not seek costs; and
(vi) No costs will be ordered against the interveners or
the parties.
Fairburn A.C.J.O.
[1]
The Crown has suggested that it may seek to have the appeal of
R. v. N.S.
heard with the appeal in
R. v. B.
[2]
R. v. Beeransingh
, in Newmarket;
R. v. Bernard
,
R. v. Deidun
, in Peel;
R. v. MacMillian
, in St. Catharines; and
R. v. Saab
, in Peel.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R.
v. Bristol, 2021 ONCA 599
DATE: 20210908
DOCKET: C64759
Pardu, Paciocco and Nordheimer JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Roger Bristol
Appellant
Andrew Menchynski, for the appellant
Manasvin Goswami, for the respondent
Heard: September 1, 2021 by
videoconference
On appeal from the sentences imposed on September
19, 2016 by Justice Marvin Zuker of the Ontario Court of Justice.
REASONS FOR DECISION
[1]
Mr. Bristol seeks leave to appeal the total sentence
of ten years imposed on him following on his convictions on 32 counts of break
and enter; 34 counts of failure to comply with probation, and two counts of
attempted break and enter. For the following reasons, we grant leave to appeal
and reduce the sentences to a total of seven years.
[2]
The appellant pleaded guilty to committing a
series of break and enters at residential homes in the City of Toronto over a two-month
period in 2015. The appellant would generally gain access to the homes through
unlocked doors or open windows. He would find valuables such as electronics and
jewellery which he would then take and flee. The appellant said that he engaged
in these activities in order to pay back drug dealers to whom he was indebted.
There was no violence used in any of these break and enters and on the odd
occasion when the appellant found that someone was in the home, he fled
immediately.
[3]
The appellant has an extensive criminal record
reflecting similar offences dating back over 30 years. Prior to these offences,
the longest sentence that the appellant had received was a period of
incarceration of just over two years.
[4]
The appellant was 44 years old at the time of
his sentencing. He has a serious addiction to drugs. The appellant also suffers
from schizophrenia and has severely limited intellectual abilities.
[5]
In our view, the sentencing judge made a number
of errors which impacted directly on the sentence that he imposed:
R. v.
Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44, of which three
are particularly serious. First, the sentencing judge referred, more than once,
to the break and enters as home invasion robberies. They were not. In doing
so, it is apparent that the sentencing judge placed the offences in a more
serious category than they properly represented.
[6]
Second, the sentencing judge erred in his
treatment of the appellants mental health challenges and whether they impacted
on the moral blameworthiness of his actions. The sentencing judge not only had
a pre-sentence report, he also had a forensic report authored by two
psychiatrists that detailed the appellants mental health issues. These issues
date back to when the appellant was 12 years old. The psychiatrists gave
evidence that the appellant was in the retarded range of intellectual
functioning. The appellants challenges were exacerbated by his use of drugs.
[7]
The sentencing judge failed to give proper
weight to this evidence in evaluating the appellants moral blameworthiness.
Indeed, at one point, the sentencing judge said that he was not sure that
there is any diminished moral responsibility with respect to the appellants
actions.
[8]
Third, the sentencing judge failed to give
proper effect to the jump principle in deciding on the appropriate sentence.
While the sentencing judge referred to the principle in his reasons, he never
actually addressed it. As earlier noted, prior to these offences, the longest
sentence that had been imposed on the appellant was a period of incarceration
of slightly more than two years. That sentence was imposed in 2006. An increase
from two years to ten years, even given the number of offences involved, was
excessive.
[9]
Given these errors, it falls to this court to
determine the appropriate sentence. In our view, a sentence of seven years, as
suggested by the appellant, is an appropriate sentence given the factors we
have mentioned and his guilty plea.
[10]
In deciding on that sentence, we have taken into
account one other factor. At the sentencing, the appellants trial counsel (not
counsel on the appeal) had sought an adjournment to obtain records from the
Toronto South Detention Centre regarding the number of lockdowns that had occurred
while the appellant was incarcerated. The sentencing judge refused the
adjournment of the basis that the appellant had had months to obtain the
records and had failed to do so. That refusal was within the discretion of the
sentencing judge. However, we now have those records which show that the
appellant was in lockdowns for 257 days of his pre-sentence incarceration.
[11]
We are entitled to look at these records since
we are now charged with determining an appropriate sentence and, in doing so,
we must consider whether a
Duncan
credit is appropriate.
[1]
While the respondent argues
that the appellant did not lead any evidence of direct impact on him arising
from the lockdowns, we are of the view that some impact is self-evident.
Lockdowns involve lack of showers and loss of physical activity. They also mean
that prisoners are restricted to their cells for long periods of time. Individual
evidence is not required to establish those basic effects which go beyond the difficult
and restrictive circumstances offenders often encounter during pretrial custody
and which are accounted for by the
Summers
credit.
[2]
[12]
In deciding on seven years as the appropriate
sentence we have included a
Duncan
credit for these periods of
lockdown. As noted in
R. v. Marshall
, 2021 ONCA 344, at para. 52, the
Duncan
credit is not a deduction from the otherwise appropriate sentence, but is one
of the factors to be taken into account in determining the appropriate sentence.
[13]
In the end result, we grant leave to appeal and
reduce the global sentence from ten years to seven years.
G.
Pardu J.A.
David M. Paciocco J.A.
I.V.B. Nordheimer J.A.
[1]
R. v. Duncan
, 2016 ONCA
754.
[2]
R. v. Summers
, 2014 SCC
26, [2014] 1 S.C.R. 575
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Dunn Aggregates Limited v. Coco Paving Inc., 2021 ONCA 604
DATE: 20210909
DOCKET: C68961
Juriansz, Lauwers and Sossin JJ.A.
BETWEEN
Dunn Aggregates Limited
Plaintiff (Appellant)
and
Coco Paving Inc.
Defendant (Respondent)
James K. Ball, for the appellant
John D. Leslie and Ted Kalnins, for the
respondent
Heard: August 30, 2021 by video conference
On
appeal from the order of Justice Scott K. Campbell of the Superior Court of
Justice, dated December 4, 2020, with reasons at 2020 ONSC 7095.
REASONS
FOR DECISION
[1]
The appellant Dunn Aggregates previously
operated as a stone merchant, whose assets were acquired by the respondent,
Coco Paving. The agreement closed on March 11, 2011. A number of post-closing
disagreements arose. On September 6, 2011, Coco Paving moved for an interlocutory
injunction in the context of an anticipated action and the injunction was
granted. It restrained Dunn Aggregates from breaching the non-competition and
restrictive covenant agreements entered into pursuant to the asset purchase
agreement. Coco Paving gave the customary undertaking as to damages.
[2]
The action started by Dunn Aggregates and the
action started by Coco Paving proceeded to trial together. The trial judge
concluded that Coco Pavings contractual breaches did not justify Dunn
Aggregates non-performance of the non-competition agreement. He concluded that
it would not be appropriate to make the interlocutory injunction permanent, in
part because the non-competition agreement had expired by its own terms prior
to trial.
[3]
The assessment of damages remains outstanding.
[4]
The trial judge made an order barring Dunn
Aggregates from claiming damages under r. 40.03 arising from the interlocutory
injunction.
[5]
The purpose of the customary undertaking as to
damages is to protect the party against whom the injunction is granted, in this
case Dunn Aggregates, if the injunction were found to have been wrongly granted.
The trial judge cited several authorities for this proposition and pointed to
the decision in
United States of America v. Yemec
, 2013 ONSC 50, 35 C.P.C. (7th) 57, affd 2014
ONCA 274, 58 C.P.C. (7th) 223 as being especially persuasive. In
Yemec
, Belobaba
J. considered the undertaking to pay damages and noted, at para. 14, that its
purpose is to cover damage caused by a wrongly granted injunction.
[6]
The trial judge
concluded that because Coco Paving was the successful party at trial the
injunction had not been wrongfully granted. He pointed out that Dunn Aggregates
had not made efforts to appeal the granting of the injunction or to alter it
in the course of over five years of litigation. He found there to be no special
circumstances that would warrant
the awarding of damages [to Dunn Aggregates] based on the undertaking. There
was, in his view, no basis on which Dunn Aggregates should be able to advance a
claim for damages as a result of the injunction having been granted. We agree with
the trial judge and do not disturb his order.
[7]
The appeal is dismissed
with costs to Coco Paving fixed in the amount of $3,500, all inclusive.
R.G.
Juriansz J.A.
P.
Lauwers J.A.
L.
Sossin J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Tanti v. Tanti, 2021 ONCA 607
DATE: 20210909
DOCKET: M52665 (C69521)
Strathy C.J.O., Lauwers and
Sossin JJ.A.
BETWEEN
Raymond Tanti
Applicant (Respondent/Responding Party)
and
Paul Tanti
and the Public Guardian and Trustee
Respondents (Respondents/
Responding Party
)
and
Sharon
Joseph
Respondent (Appellant/Moving Party)
Joy Nwawe, for the moving party, Sharon
Joseph
William R. Gilmour, for the responding
party, Raymond Tanti
Kathleen Kinch, for the responding
party, Paul Tanti
Heard: September 3, 2021 by video conference
REASONS
FOR DECISION
[1]
After hearing submissions on behalf of the
moving party, we advised counsel that the motion would be dismissed, with
reasons to follow. These are our reasons.
[2]
Paul Tanti and Sharon Joseph were married on
July 27, 2019.
[3]
On September 12, 2019, Paul Tantis son, Raymond
Tanti, sought a guardianship order with respect to his fathers property and
person. Harris J. of the Superior Court of Justice granted that order.
[4]
Sharon Joseph subsequently brought a motion to
set aside the guardianship order. On July 31, 2020, Shaw J. ordered that Sharon
Joseph be added as a party to the guardianship proceedings. Shaw J. also
ordered that the issue of the validity of the marriage of Paul Tanti and Sharon
Joseph would be determined as a threshold issue in the application.
[5]
By judgment dated December 22, 2020, Mandhane J.
determined that the marriage was valid. That judgment is the subject of an
appeal pending before this court (C69056), which is scheduled to be heard on
October 1, 2021.
[6]
On May 27, 2021, Trimble J. of the Superior
Court granted a stay of the guardianship proceedings pending disposition of the
appeal of the order of Mandhane J.
[7]
Sharon Joseph purported to appeal the order of
Trimble J. to this court (C69521). She brought a motion to expedite that
appeal. That motion was heard by Benotto J.A. on July 13, 2021. Benotto J.A.
dismissed the motion, holding that the order of Trimble J. was procedural and
interlocutory and that no appeal lies to this court.
[8]
Although not styled as such, this is a motion
pursuant to s. 7(5) of the
Courts of Justice Act
to set aside or vary
the order of Benotto J.A.
[9]
The moving party has demonstrated no error in
the reasons of Benotto J.A. As Benotto J.A. observed, the order of Trimble J.
did not determine the substantive rights of the parties and the guardianship
application remains to be determined. The order the moving party purports to appeal
is clearly interlocutory.
[10]
Moreover, as a matter of efficiency and economy,
the validity of the marriage should be determined before the guardianship
proceedings are continued.
[11]
The motion to vary is dismissed and the appeal
is quashed, with costs to the responding party, Raymond Tanti, fixed in the
amount of $1,000 and to the responding party, Paul Tanti, fixed in the amount
of $350, both amounts inclusive of disbursements and all applicable taxes.
G.R.
Strathy C.J.O.
P.
Lauwers J.A.
L. Sossin J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: 2161907 Alberta Ltd. v. 11180673
Canada Inc., 2021 ONCA 590
DATE: 20210830
DOCKET: C68698
Rouleau, Hoy and van Rensburg
JJ.A.
BETWEEN
2161907 Alberta Ltd.
Applicant (Appellant)
and
11180673 Canada Inc.
Respondent
(Respondent)
J. Thomas Curry, Brian Kolenda and
Aoife Quinn, for the appellant
Jeffrey Hoffman, for the respondent
Heard: June 3, 2021 by video conference
On appeal from the judgment of Justice Cory
A. Gilmore of the Superior Court of Justice, dated September 11, 2020, with
reasons reported at 2020 ONSC 5409.
Rouleau J.A.:
OVERVIEW
[1]
2161907 Alberta Ltd. (
216
) holds the Ontario rights to
the Tokyo Smoke cannabis brand, which it licenses to various retail
operators. 11180673 Canada Inc. (
111
)
and its principal, Mr. Robert Heydon, won a cannabis retail operator license in
the allocation lottery held by the Alcohol and Gaming Commission of Ontario (
AGCO
) in August 2019.
[2]
In November 2019, the parties entered into a series
of agreements for the operation of a Tokyo Smoke-branded cannabis store in
Toronto. These agreements included a License Agreement for the use of the Tokyo
Smoke brand and a Sublease whereby 111 rented the retail premises from 216. 216
offered 111 funding for start-up costs, including rent, and an inducement of
approximately $2 million to open under the Tokyo Smoke banner (the Branding
Fee). The Branding Fee would come due once 111 obtained its Retail Store
Authorization from the AGCO.
[3]
Two days before the store was supposed to open,
a dispute arose as to 216s obligation to fund the payment of 111s rent for the
month of opening. Faced with 216s refusal to pay, 111 advised 216 that it
would not be opening the store as planned. 216 took the position that this was
a threat to cease carrying on business and accordingly constituted a breach of
their agreement. 216 terminated its relationship with 111, refusing to pay the Branding
Fee.
[4]
216 brought an application seeking a declaration
that 111 had breached the various agreements in effect between the parties,
that the Branding Fee was not payable to 111, and that 111 must therefore
vacate the retail premises. 111 brought a counter-application seeking, among
other things, payment of the Branding Fee and a declaration that 216 had wrongfully
terminated the License Agreement and breached its duty of good faith in the
performance and enforcement of contractual relations. The application judge
dismissed 216s application and granted 111s application. She declared that
216 had no valid reason to terminate the agreements, that it had acted in bad
faith, and ordered 216 to pay the Branding Fee.
Issues
[5]
216 raises three issues on appeal:
a.
Did
the application judge err in finding that 216s termination of the License
Agreement was invalid?
b.
Did
the application judge err in finding that 216 had breached the duty of good
faith?
c.
Did the application
judge err in failing to issue a declaration that the Sublease between the
parties was validly terminated on August 5, 2020?
[6]
For the reasons that follow, I would set aside
the finding of bad faith, but would dismiss the balance of the appeal.
FACTUAL BACKGROUND
[7]
In August 2019, 111 won the right to apply for a
Retail Operator Licence and Retail Store Authorization in the AGCO allocation
lottery, permitting 111 to open a retail cannabis store.
[8]
216 approached Mr. Heydon with a proposal that
he open his retail location under the Tokyo Smoke banner for which 216 held
the Ontario rights under licence from a subsidiary of Canopy Growth Corporation
(Canopy).
[9]
Between November 1 and November 7, 2019, the
parties entered into the three agreements at issue in this case:
a.
Under the Sublease, 111 rented the retail
premises, as Subtenant, from 216, as Sublandlord, at a monthly rent of
$105,409.03. 216 in turn rented the premises from First Capital Holdings
(Ontario) Corporation.
b.
Under the License Agreement, 216 granted 111 the
right to use Tokyo Smoke brand marks in the retail storefront and in its
marketing materials subject to 216s rights of supervision. The License
Agreement stipulated that 216 would pay 111 an up-front Branding Fee of approximately
$2 million upon the fulfillment of certain conditions, including the issuance
of a Retail Store Authorization by the AGCO.
c.
Under the Loan Agreement, 216 agreed to advance
roughly $1.5 million in start-up costs to 111.
i.
Loan A
provided for a maximum loan of up to $750,000, plus the aggregate amount of
rent due under the Sublease up to the opening of the store. Loan A was intended
to finance construction improvements to the premises, decorations, security,
point of sale systems, and other equipment.
ii.
Loan B provided for a
maximum loan of up to $750,000 to finance the purchase of inventory, insurance,
and human resources.
[10]
The parties anticipated that the store would
open in early June 2020.
[11]
On May 31, 2020 Mr. Heydon wrote to 216 to
confirm that he could draw on Loan A to pay June rent. 216s representative,
Mr. Graydon Calvert, advised Mr. Heydon that the draw was limited to the
prorated amount of $10,540 for the first three days of June before the store
opened. This left 111 with a shortfall of $95,000 in rent for the month.
[12]
The next day, June 1, Mr. Heydon sought the
additional $95,000 in rent for June. Mr. Justin Farbstein, the president of
216, responded that Mr. Heydon was at the max of the facility and that he was
not able to grant more. As it turned out, Mr. Farbstein was mistaken. He would
later admit on cross-examination that Loan A should have covered the amounts
sought by Mr. Heydon.
[13]
Faced with 216s refusal to fund the balance of
the June rent, Mr. Heydon responded: Please inform Canopy that we will NOT be
opening. I will lay off the staff tomorrow. Mr. Farbstein called Mr. Heydon
that same evening to calm him down, indicating that he could likely arrange
to have the rent payment deferred and that, in any event, the Branding Fee
would soon be paid. It was more than sufficient to cover rent for June.
[14]
On the morning of June 2, the AGCO gave 111
final approval to open for business. 111 forwarded the approval notice to 216 as
proof that the final condition for the payment of the Branding Fee had been
satisfied. Mr. Farbstein again confirmed, on behalf of 216, that the Branding
Fee would be paid later in the week in accordance with the License Agreement
now that all conditions for the payment of the Branding Fee had been met.
[15]
In the late morning of June 2, Mr. Farbstein reviewed
the License Agreement and concluded that Mr. Heydons statements the previous
day that 111 would not be opening the store constituted a threat to cease to
carry on business contrary to the License Agreement. Mr. Farbstein indicated
in cross-examination that he sought instructions from 216s parent company and
communicated with both external and internal counsel. Then, at around noon on
June 2, Mr. Farbstein instructed external counsel to begin drafting a notice
terminating the License Agreement. 216 pulled its staff from the retail
premises and, at 4:26 p.m., sent 111 a Notice of Defaults indicating that the
License Agreement had been terminated.
[16]
Mr. Heydon did not follow through on his threat.
111 responded to 216s Notice of Defaults through counsel and carried on with
the planned opening. The store opened to the public on June 3, 2020.
[17]
216 did not pay the Branding Fee. On July 2,
2020, it commenced this application seeking, among other things, a declaration
that the License Agreement was validly terminated.
[18]
111 did not make its June and July rent
payments. On August 5, 2020, 216 gave notice of termination of the Sublease,
citing the missed rent payments. 216 subsequently amended its notice of
application to seek a further declaration that the Sublease was validly
terminated on August 5 as a result of unpaid rent.
Decision
below
[19]
The application judge found that Mr. Heydons
communication to the effect that he would not be opening the store and would be
laying off staff was not an event of default under the License Agreement. It
was an emotional response to being given incorrect information at a critical
time. As a result, she concluded that 216s termination of the License
Agreement was invalid. The application judge went on to find, based on Mr.
Farbsteins admission in cross-examination that on the morning of June 2, 2020,
216 was looking for a way to end the relationship with 111, that 216 had
pounced on the statement made by Mr. Heydon as a way to terminate the
relationship and avoid paying the Branding Fee, and therefore that 216s
termination of the agreements was not done in good faith.
[20]
The application judge also found that the Branding
Fee was due and owing, subject to certain deductions, including set-off for
111s unpaid rent between June and September 2020. The issue of damages was
left to be determined at trial or by agreement between the parties.
DID THE APPLICATION JUDGE ERR IN FINDING THAT 216S
TERMINATION OF THE LICENSE AGREEMENT WAS INVALID?
[21]
216 submits that it validly terminated the
License Agreement in response to a genuine threat to cease carrying on business
by Mr. Heydon. 216 relies on the following paragraph of the License Agreement:
26.
The Licensor has the right, without liability, cost or penalty, to terminate
this agreement with immediate effect on written notice to the Licensee if one
or more of the following occurs.
(c) the Licensee ceases or
threatens to cease to
carry on business
, or takes
or threatens to take any action to liquidate its assets, or stops making
payments in the usual course of business; [Emphasis added.]
[22]
216 argues that the application judge erred in
finding that Mr. Heydons statement that he intended to cease operations did
not constitute grounds for termination under the License Agreement because it
was an emotional response. 216 submits that there were in fact several
statements made to different representatives of 216 and Canopy. 216 further
submits that it was an error of law for the application judge to have expected 216
to discern Mr. Heydons subjective intention for the statements, and for the
application judge to have relied on Mr. Heydons subjective intention to
determine whether those statements were indeed threats to cease to carry on
business.
[23]
According to 216, the application judge had to
determine what a reasonable person, circumstanced as the actual parties were,
would have had in mind when Mr. Heydons statements were made. See
Goodyear
Canada Inc. v. Burnhamthorpe Square Inc.
(1998), 41 O.R. (3d) 321 (C.A.),
at para. 88. 216 cites three communications:
a)
Mr. Heydons June 1 email to 216 stating:
Please inform Canopy we will NOT be opening. I will lay off the staff tomorrow;
b)
Mr. Heydons June 1 email to a representative of
Canopy with the subject line Still no rent on the table
stating I also have
to pay payroll this week. So if we cannot sort by tomorrow, I will be forced to
lay off the staff;
c)
Mr. Heydons oral communications with 216s on-site
staff, whom he advised that the store would not be opening due to issues
regarding rent with 216.
[24]
216 argues that, viewed objectively, these three
communications from Mr. Heydon to 216, Canopy and 216s on-site representatives
clearly constituted a threat to cease to carry on business entitling 216 to
terminate the agreement.
[25]
I disagree.
[26]
The interpretation of commercial agreements
involves questions of mixed fact and law. A trial judges interpretation and
application of contractual terms is owed deference on appeal:
Sattva
Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633.
[27]
In this case, the application judge was called
upon to determine whether the statements made by Mr. Heydon on June 1
constituted a threat to cease to carry on business for the purposes of paragraph
26(c) of the License Agreement. As the Supreme Court stated in
Sattva
,
at para. 47, [t]he overriding concern is to determine the intent of the
parties and the scope of their understanding by reading the contract as a
whole and giving the words used their ordinary and grammatical meaning
consistent with the surrounding circumstances known to the parties at the time of
formation of the contract.
[28]
Unfortunately, the application judge did not
expressly grapple with the scope or purpose of paragraph 26(c), nor did she explore
the parties intentions in including it in their agreement. On appeal, neither
party sought to explain the rationale for paragraph 26(c). Without this crucial
framing, it is difficult to determine whether Mr. Heydons statements were, as
a matter of contractual interpretation, threats for the purposes of paragraph
26(c). In other words, while, on their face, Mr. Heydons statements were a
threat not to open, were these threats that would trigger default under the
License Agreement?
[29]
In my view, there are at least two possible
interpretations of paragraph 26(c), one of which the application judge
implicitly adopted and the other she implicitly rejected.
[30]
Under the first interpretation, paragraph 26(c)
seeks to prevent the licensee from making what are, on their face, threats to
cease carrying on business or threats to take any action to liquidate its
assets. In other words, the clause is directed at preventing the licensee from
making these kinds of statements whether or not the licensee intends to carry
out the threatened action or the licensor expects that the threat will be
carried out. The logic behind such an interpretation would be that the License
Agreement was set to last for a 10-year initial term. Threats and brinkmanship
exhibited by the licensee would be corrosive to such a long-term relationship,
especially if such threats were used as a negotiating or pressure tactic.
Moreover, as Mr. Farbstein repeatedly stressed in his evidence, 216 was
concerned about preserving its relationship with Canopy, the master licensor of
the Tokyo Smoke brand. Threats of closure by a branded store, whether acted
upon or not, might be viewed as injuring the brand.
[31]
The second interpretation would require the
threat to be objectively credible in order to trigger default under the
agreement. This second interpretation recognizes that the language of paragraph
26(c) contemplates more than threats to cease to carry on business: it is also
an event of default under paragraph 26(c) for 111 to take action or threaten to
take action to liquidate its assets, or to stop making payments in the usual
course of business. Taken as a whole, paragraph 26(c) can be viewed as seeking
to preserve the licensors rights in the event of a looming insolvency. Indeed,
paragraph 26(d), addresses formal insolvency proceedings, and paragraph 26(e)
makes it an event of default for 111 to cease to operate the Business at the
Store for a period of more than thirty (30) consecutive days. It is reasonable
that 216 would seek to preserve its right to terminate the License Agreement in
such circumstances, both to pre-empt the uncertainty associated with insolvency
and to avoid its brand materials becoming associated with a defunct or
inoperative storefront in a fashionable neighbourhood. Viewed through this
lens, paragraph 26(c) is directed toward credible threats to cease to carry on
business which would require 216 to take action to preserve its intellectual
property rights. From the application judges reasons, it is apparent that she
interpreted paragraph 26(c) in this way. Such an interpretation is reasonable
in the circumstances and I see no basis to interfere.
[32]
The application judge correctly noted that 111s
communications during the evening of June 1 had to be viewed in context. Mr. Heydon
had just been told that 216 would not be advancing the money needed to pay the
June rent. He believed that this was a breach of 216s obligation pursuant to
the agreements between the parties. It turned out that he was in fact correct
in that regard and 216 ought to have financed the payment of the June rent.
[33]
On June 1, 2020, as a consequence of 216s
mistake, Mr. Heydon was faced with an unexpected shortfall of $95,000. There
was therefore uncertainty as to whether 111 could be ready to open on June 3.
[34]
The application judge had before her the email
chain between Canopy and Mr. Heydon and between 216 (represented by Mr. Calvert
and Mr. Farbstein) and Mr. Heydon from June 1. These emails show that Mr. Heydon
was reacting to the fact that he had been denied the June rent advance:
Canopy - 4:00 pm: Can we confirm that we will
be opening the doors as per your regular store hours?
Heydon - 4:26 pm: No, we are not. Just need to
sort out rent.
Calvert - 6:48 pm: Can you clarify your
comments? As discussed in last nights email we fund the prorated portion of
June rent ($10k) in Loan A. Is there something outside of this that would
prevent you from opening?
Heydon - 7:38 pm: The other 95k
Farbstein - 7:41 pm: Rob you are at the max
of the facility. I am not able to grant more.
Heydon - 7:48 pm:
Ok, thank you. Please inform Canopy we will NOT be opening. I will lay off the
staff tomorrow.
[35]
In a separate email to Canopy at 8:16 p.m. with
the subject line Still no rent on the table
Mr. Heydon wrote: I also have
to pay payroll this week. So if we cannot sort by tomorrow I will be forced to
lay off the staff.
[36]
Significantly, during the evening of June 1,
with these exchanges ongoing, Mr. Farbstein called Mr. Heydon to calm him
down and reassure him that everything was going to be ok. He reiterated that
216 would pay 111 the Branding Fee as agreed. In other words, Mr. Farbstein responded
to the threat in a manner suggesting that he could address Mr. Heydons
concerns and that a closure could and would be avoided. In fact, by the time
the Notice of Defaults was sent, it would have been apparent that Mr. Heydon
was moving forward with the planned opening.
[37]
Given the context, I see nothing unreasonable in
the application judges conclusion that Mr. Heydons communication did not
constitute a threat entitling 216 to terminate the License Agreement. An
objective observer would understand that Mr. Heydon was facing a problem: how
was he to cover the June rent and open on June 3 given the last-minute wrongful
withholding of needed funds? Indeed, despite Mr. Heydons threat not to open
and to lay off staff, his frustration provided an objective manifestation of
his strong desire to open as planned, not an intent to shutter the store.
[38]
Contrary to 216s submission, the application
judges finding that Mr. Heydons behaviour was an emotional response to being
given incorrect information at a critical time was not simply based on Mr. Heydons
subjective frustration. It was based on the application judges objective
assessment of the parties exchanges in light of the language of the agreement
and the factual context.
[39]
In my view, on this record, the application
judges finding that Mr. Heydons emotional frustration, viewed in context, did
not meet the requirements of the parties termination clause was clearly reasonable.
For the threats to be treated as an event of default under the License
Agreement, a degree of objective credibility or objective intent or a real
risk that Mr. Heydons threats would be carried out was required. As a finding
of mixed fact and law, the application judges conclusion is owed deference on
appeal and I see no basis to interfere.
Did the application JUDGE err
in finding that 216 had breached its duty of good faith?
[40]
216 acknowledges that the License Agreement
contained an express contractual duty of good faith that bound both parties.
However, 216 argues that the application judge erred in law in finding that 216
had breached that duty or the common law duty of good faith in contractual
performance. In 216s submission, the application judge equated what she held
was an invalid termination of the License Agreement with bad faith because 216 was
looking for a way to get out of the relationship. 216 takes the position that a
party does not act in bad faith merely because its error concerning its
contractual termination rights achieved an additional objective, fulfilling its
desire to end the relationship.
[41]
111 for its part argues that 216 acted in bad
faith by misleading 111 about the funds available to it under Loan A and by
leading 111 to believe that the Branding Fee would be paid and the rent
deferred. Shortly after giving these assurances, 216 terminated the License
Agreement. In its factum, 111 submits that this conduct revealed 216s true
intention, namely, to seek to end its relationship with 111 and seize 111s
business without paying the Branding Fee and without compensating 111. 111
submits that all of these findings were open to the application judge on this
record and constitute a breach of 216s duty of honest performance.
The Law
[42]
The Supreme Court in
Bhasin v. Hrynew
, 2014 SCC 71, [2014] 3 S.C.R. 494,
explained that good faith contractual performance is a general organizing
principle of the common law of contract. The court also recognized a more
specific manifestation of the organizing principle in the duty to act
honestly in the performance of contractual obligations: at para. 33. In this
case, there is no issue as to the existence of a duty of good faith since the
parties expressly stipulated such a duty in the License Agreement. The issue is
therefore to determine the content of that duty in the circumstances and
whether it was breached.
[43]
Good faith requires simply that parties
generally must perform their contractual duties honestly and reasonably and not
capriciously or arbitrarily:
Bhasin
, at para. 63. The duty requires
that in carrying out his or her own performance of the contract, a contracting
party should have appropriate regard to the legitimate contractual interests of
the contracting partner:
Bhasin
, at para. 65. It does not require
that contracting parties serve each others interests. However, they may not
seek to undermine those interests in bad faith.
[44]
In
Bhasin
, the
court identified four distinct legal doctrines operating as manifestations of
the general organizing principle: 1) the duty of cooperation between the
parties to achieve the objects of the contract; 2) the duty to exercise
contractual discretion in good faith; 3) the duty not to evade contractual
obligations in bad faith; and 4) the duty of honest performance. These
doctrines generally reflect the situations and relationships in which the law
requires contracts to be performed honestly, and reasonably, and not capriciously
or arbitrarily. Accordingly, the list of recognized duties is not closed:
Bhasin
,
at para. 66
.
[45]
The application judge did not specify which of
these doctrines was at play in this case, nor did she have the benefit of the
Supreme Courts decisions in
C.M. Callow Inc. v. Zollinger
, 2020 SCC 45, 452 D.L.R. (4th) 44, or
Wastech
Services Ltd. v. Greater Vancouver Sewerage and Drainage District,
2021 SCC 7, 454 D.L.R. (4th) 1, both of which were
released after her decision
. In its notice of counter-application
and its factum, 111 focusses on the duty of honest performance. 111 alleges
that 216 knowingly misled 111 about the amounts available to it under the Loan
Agreement, that the Branding Fee would be paid and that rent would be deferred.
After knowingly misleading 111 in this way, it simply terminated the agreement.
111 further alleges that 216 terminated the agreement to avoid payment of the Branding
Fee. All of this conduct, in 111s submission, amounts to a breach of the duty
of honest performance.
Analysis
[46]
The application judge set out her finding of bad
faith in five paragraphs at the end of her reasons. She concluded as follows:
While I do not
find that 216 lied to 111, it pounced on a single statement made by Mr. Heydon
as a basis to trigger default, thereby achieving its goal of ending the relationship
with Mr. Heydon and attempting to discharge its obligation to pay the Branding
Fee.
[47]
While the application judges conclusion clearly
rested on her finding that 216 pounced on Mr. Heydons threat, 111 argues
that the record discloses, and it is implicit from her reasons, that other
sources of bad faith informed the application judges analysis.
[48]
In what follows, I address four potential
sources or instantiations of bad faith: first, that 216 knowingly misled 111;
second, that 216 pounced on a default that it did not believe had occurred;
third, that 216 sought to evade payment of the Branding Fee in bad faith; and
fourth, that 216 seized upon a breach of its own making as in
Mason v. Freedman
,
[1958] S.C.R. 483.
(1)
216 did not knowingly mislead 111
[49]
I turn first to the question of whether 216
knowingly misled 111 at any point. In my view, the application judges finding
that 216 did not lie to 111 and that Mr. Farbstein did not act dishonestly is
critical in this respect. As I will explain, it is apparent from the
application judges finding on this point that, when Mr. Farbstein informed 111
about the amounts available to it under the Loan Agreement and that he intended
to pay the Branding Fee and seek to have the June rent deferred, he was not, as
111 alleges, knowingly misleading Mr. Heydon.
[50]
I accept that it is possible to mislead in many
ways: lies, half-truths, omissions, and even silence. In this case, it is
acknowledged that at various points, 216 misled or misinformed 111, or changed its
position. The critical issue, however, is whether Mr. Farbstein or 216
knowingly misled 111:
Bhasin
at para. 73. In this respect, it is
significant that the application judge found that Mr. Farbstein did not lie to
111 at any point. Further, nothing in the application judges reasons suggest
that she rejected any element of Mr. Farbsteins testimony or made an adverse
credibility finding against him. Mr. Farbsteins evidence on at least three key
points indicates that he never intended to mislead 111 or Mr. Heydon.
[51]
First, Mr. Farbstein admitted on
cross-examination that he was mistaken when he told Mr. Heydon that 216 was not
required to fund the June rent. He did not lie or knowingly withhold
information. Thus, while 111 received false information, there is no basis for
saying that 216 knowingly misled 111.
[52]
Second, Mr. Farbstein gave evidence that when he
called Mr. Heydon during the evening of June 1 to calm him down, he did not
say that 111 was in default because he did not believe 111 was in default at
that time. He told Mr. Heydon that 216 would pay the Branding Fee later in the
week and that it would work with the landlord to defer rent until 111 was able
to pay, as appears from the following excerpt from Mr. Farbsteins cross-examination:
Q: Say, at the time you made this statement
that you would pay the Branding Fee later that week and you would go speak to
the landlord about deferring rent, those statements were true at the time you
made them, right?
A: Correct.
Those are
true
.
Q: And you didnt tell him in that phone call
that his agreements with 216 were at risk of being terminated, did you?
A: I didnt tell
him because at that point, I had it wasnt in my head at risk of being
I hadnt thought about terminating at that point
. I was
thinking to try and just so I do tell him that.
[53]
Third, Mr. Farbstein admitted that his email of
June 2 at 9:24 a.m., in which he reiterated that the Branding Fee would be paid
and a rent deferral sought, was honest and reflected his true intention at the
time, despite the fact that 216 was considering ways to terminate the
relationship. He stated:
Q: Did you say at that point in time, 9:24 a.m. on June 2nd,
you didnt think he was in default or you wouldnt have written that, right?
A: Thats what I said.
A:
At that point at
9:24, I did not think he was in default because at that point, I had not
re-reviewed the License Agreements
. So I thought at that point he
wasnt in default and that I owed him the Branding Fee at that point in time,
9:24, when I sent that email. Youre correct.
Q: Was [216] looking for a way to get out of the relationship
with 111?
A: On the morning of June 2nd, it
was looking for a way to end the relationship with 111, correct.
[54]
Taken together, the uncontradicted evidence is
that 216 did not, at any point, knowingly mislead 111 about its intention with
respect to the Branding Fee or the deferral of rent. In fact, because the
application judge made a finding that Mr. Farbstein did not lie to 111, it is
apparent that the assurance given to Mr. Heydon reflected Mr. Farbsteins
honest belief at the time they were made. He had not reviewed the agreements or
spoken with counsel. Mr. Farbstein explained that he did not form a concrete
intention to terminate the agreement until after 9:24 a.m. on June 2, at which
point he had reviewed the License Agreement and determined that Mr. Heydons
threat gave 216 cause to terminate and that the Branding Fee was no longer due.
He then contacted internal and external counsel to validate his thoughts on
the termination before instructing external counsel to draft a notice.
[55]
216 did not, as 111 suggests, actively mislead 111.
It simply changed positions in light of new information. The application judge
made no finding that the change in position was taken dishonestly or
unreasonably nor is there any suggestion that it was taken capriciously or arbitrarily.
(2)
Pouncing by 216 did not constitute bad faith
[56]
The application judges conclusion that 216
acted in bad faith is more plausibly anchored to her finding that 216 pounced on
a single statement made by Mr. Heydon as a basis to trigger default, thereby
achieving its goal of ending the relationship
and attempting to discharge its
obligation to pay the Branding Fee. In my view, however, 216s act of pouncing
did not constitute bad faith in this case.
[57]
Setting aside the factual question of whether Mr.
Heydon made a single statement or several statements, the more fundamental difficulty
I have with this as a basis for finding that there was a breach of the duty of honest
performance and bad faith on the part of the appellant is that the application
judge made no finding of dishonesty and such a finding cannot be inferred from
her reasons. A party is not prevented from exercising a right of termination
simply because it wishes to bring its relationship with the other party to an
end. Nor should a party be prevented from ending a relationship because it will
deprive the defaulting party of a payment that it would have received had the
relationship continued. Where a party is anxious to end a relationship, and a valid
reason to do so presents itself, that party is not, in the absence of some
other relevant fact, prevented from pouncing on it.
[58]
While 216s basis for terminating the License
Agreement ultimately proved invalid, as discussed above, its position on
termination was not unreasonable, malicious, or so inconsiderate of 111s
legitimate contractual interests as to constitute bad faith. It was neither
manufactured nor concocted. Mr. Farbstein believed Mr. Heydons threat
constituted a breach.
[59]
I also see no basis for concluding that 216s
change in position was capricious or arbitrary. Mr. Farbstein reviewed the
License Agreement and spoke with counsel before taking the position that Mr.
Heydons threat constituted an event of default.
[60]
Mr. Farbsteins conduct following Mr. Heydons
threatening statements is consistent with Mr. Farbstein having viewed Mr.
Heydons communication as a genuine and credible threat, even if he did not
immediately recognize that such a threat could constitute an event of default
under the License Agreement. Mr. Farbstein called Mr. Heydon because at ten
months trying to get the store opened and I was threatened two nights before
the store was opened that it wasnt going to be open, and so, my reaction was
to try to calm him down
If I wasnt concerned, I wouldnt call him. I was
concerned. He then promised and ultimately did speak with the landlord about a
possible rent deferral, and reported on the situation to 216s parent company
at least twice between 8:30 p.m. on June 1 and 10:00 a.m. on June 2. Mr.
Farbsteins actions suggest that he saw Mr. Heydons communications as more than
empty threats or posturing.
[61]
While Mr. Farbstein may well have understood by
sometime on June 2 that, despite his threat, Mr. Heydon would in fact open the
store on June 3, 216 had an interest in ending such threats, especially those
sent directly to Canopy, 216s master licensor. As I have noted, it is possible
to read paragraph 26(c) of the License Agreement as permitting termination when
a party makes what, on its face, is a significant threat, even if such threat is
later withdrawn or may be considered unlikely to be carried out. Such an
interpretation acknowledges 216s legitimate contractual interest in preserving
its own relationship with Canopy and enjoying a commercial relationship with
111 free of brinkmanship. As Mr. Farbstein deposed: That type of [threatening]
behaviour by 216s sublicensees may cause Canopy to lose confidence in 216, and
undermine its business relationship.
[62]
The evidence is that the relationship between
216 and 111 was difficult because Mr. Heydon bristled at any intervention by
216. The threat was, from 216s perspective, serious. As the application judge
observed:
a)
216 saw 111s threat as a shakedown for
additional funds;
b)
216 was concerned that Mr. Heydons behaviour
reflected negatively on his capacity to act honestly; and
c)
the fact that Mr. Heydons threat was sent
directly to Canopy worried 216 that this could cause Canopy to lose confidence
in it.
[63]
Mr. Farbstein confirmed in his evidence that, by
June 2, 216 had serious reservations about being in business with 111 for the
next 10 years. As he admitted on cross-examination, Mr. Farbstein returned to
the License Agreement early on June 2 with a view to determining whether the
threat constituted a breach that justified terminating the relationship with
111: I, you know, took some time and re-looked at the License Agreement and
believed that the email that happened the night before may be cause for
termination of License Agreement because I perceived that as a threat. The
breach he ultimately invoked was based on 216s understanding that the threat
was the type of threat contemplated by paragraph 26(c). That interpretation was
wrong but, absent a finding that it was a position manufactured to achieve 216s
objective of ending the relationship, an unreasonable position, or a position
taken capriciously or arbitrarily, it constitutes an error and no more. This
was a fluid situation at a crucial point in the commercial relationship with
both parties evaluating and re-evaluating their legal rights in real time.
[64]
In my view, the finding that 216 had a desire
to end its relationship with 111 and chose to pounce on what, incorrectly, it
saw as providing the opportunity to do so was not sufficient to justify a
finding of bad faith. I would therefore set aside the application judges
finding of bad faith.
(3)
The Branding Fee
[65]
111 argues that 216s true intention in
terminating the agreements was to seize 111s business without paying the
Branding Fee. Although the application judges reasons do not set out an
express finding on this point, 111 submits that such a finding is implied in
her conclusion that 216 pounced on 111s statement to trigger default, thereby
achieving its goal of ending the relationship with Mr. Heydon and attempting to
discharge its obligation to pay the Branding Fee.
[66]
I disagree. I acknowledge that, in
Bhasin
,
the Supreme Court explained that a party has a duty not to evade its
contractual obligations in bad faith. As a result, a party that manufactures an
artificial reason to terminate a contract in order to avoid future payment
obligations would likely be found to have acted in bad faith. However, as
explained above, 216 believed the termination was justified. The fact that
termination releases a party from making a significant payment does not amount
to bad faith, even where a court later finds that the termination was invalid.
[67]
The issue of the Branding Fee was put directly
to Mr. Farbstein in cross-examination:
Q. All right. Did 216 start to regret the fact
that it obligated itself to pay a Branding Fee, a $2 million Branding Fee, to
Mr. Heydon once the market opened up in 2020?
A. It did not.
Q. Was it looking for a way to avoid the
payment of that fee?
A. Nope.
[68]
The application judge did not reject this evidence.
Without an adverse credibility finding against Mr. Farbstein or some other reason
to reject his testimony, there is no basis for 111s suggestion that the
termination of the License Agreement was an excuse manufactured by 216 to avoid
payment of the Branding Fee. If 216s goal of ending the relationship with Mr.
Heydon was achieved legitimately by the exercise of an express termination
right, it would, as far as Mr. Farbstein understood at the time, result in the
discharge of 216s obligation to pay the Branding Fee. This alone does not support
a finding of bad faith.
(4)
Does the doctrine in
Mason
v. Freedman
apply?
[69]
While it was
not explicitly argued in this way, 111 effectively takes the position that 216
should not be permitted to evade its contractual obligation to pay the Branding
Fee by invoking a breach of its own making. It was Mr. Farbsteins erroneous
interpretation of the License Agreement that caused Mr. Heydons emotional
response, which 216 then claimed was a threat in violation of the License Agreement.
216s attempt to seize upon the consequences of its own mistake is arguably
another way that 216 sought to evade its contractual obligations in bad faith,
contrary to the duty described above.
[70]
Again, I
disagree. In
Bhasin
, the Supreme Court illustrated the duty not to evade
contractual obligations in bad faith with reference to the case of
Mason
.
In
Mason
, a vendor of real property attempted to repudiate an agreement
of sale on the basis that he was unable or unwilling to remove a defect on
title because his wife would not provide a bar of dower. The evidence, however,
revealed that the vendor had made no effort to remove the defect on title in a
deliberate attempt to sabotage the sale and escape his bargain.
[71]
In this case,
the evidence is that Mr. Farbstein simply misinterpreted the Loan Agreement
when he made the statements that triggered Mr. Heydons emotional response,
which Mr. Farbstein in turn perceived as an event of default. Unlike
Mason
,
there was no deliberate attempt to create the conditions giving rise to 216s
right of termination. While Mr. Heydons reaction was, in the sequence of
events, a default of 216s own making, it is not analogous to the vendors
actions in
Mason
. In my view, it would not be appropriate to
characterize 216s error as bad faith simply because that error set in motion
the events that would culminate with 216s invalid termination of the License
Agreement. This is quite simply a case of breach of contract.
Conclusion on Good Faith
[72]
Put simply, in terminating the License
Agreement, 216 did not seek to undermine 111s interests in bad faith. While 216s
notice of termination was, by definition, an attempt to put an end to the agreement,
the termination right in question formed part of the parties bargain and
reflected, among other things, the licensors legitimate interest in protecting
its brand in circumstances that the parties expressly stipulated would give
rise to a right of termination. The fact that Mr. Farbstein erroneously
believed those circumstances were present does not amount to bad faith.
[73]
As I have explained, the application judges
findings do not, in law, make out the necessary requirements for bad faith. That
finding must be set aside.
DID THE APPLICATION JUDGE ERR IN FAILING TO DECLARE THAT
THE SUBLEASE WAS TERMINATED IN AUGUST 2020?
[74]
216 argues that the application judge was
obliged to declare that the Sublease was validly terminated on August 5, 2020
and that, consequently, the License Agreement was frustrated and at an end.
[75]
As noted, 111 failed to pay June and July rent
after the purported termination of the License Agreement on June 2. 216 gave
111 notice that it intended to terminate the Sublease for failure to pay, and
it gave 111 an opportunity to cure the breach. 111 was unable to cure the
breach and 216 terminated the Sublease for failure to pay June and July rent
and sought a declaration that the Sublease was at an end. 216 argues that the
application judge simply failed to address these issues.
[76]
216 maintains that once the Sublease was
terminated the License Agreement was frustrated. The License Agreement
permitted 111 to use the Tokyo Smoke brand only at the Store, defined as the
Licensees retail cannabis store to be located at Unit A01131A, 21 Bloor
Street, Toronto, Ontario. 216 suggests that this is a classic case of
contractual frustration because the August 5 termination of the Sublease makes
it both legally and physically impossible to operate the Store in accordance
with the License Agreement.
[77]
For its part, 111 argues that June and July rent
would have been paid if 216 had not wrongfully terminated the License Agreement
and withheld payment of the Branding Fee. The purpose of the agreements between
the parties was to ensure that 111 was funded in the early stages of the
opening of the store. If 216 had paid the Branding Fee as agreed, 111 would
have had no difficulty in paying June and July rent.
[78]
111 objects to 216 raising the question of
frustration on appeal since it was not argued before the application judge.
Nevertheless, 111 argues that there was no frustration of the License Agreement
because there was no supervening event that made the License Agreement
incapable of being performed. It was 216s wrongful termination of the License
Agreement in June that brought the parties relationship to an end.
[79]
In any event, 111 notes that the parties entered
into a consent order in connection with the judgment below. In the judgment, the
outstanding rent obligations between June and September 2020, totalling
$344,336.18, were set off against the unpaid Branding Fee. The consent order
granted 216 possession of the premises as of September 2020. Accordingly, an
order that the Sublease was terminated in August was not warranted.
Analysis
[80]
The application judges reasons only address the
termination of the Sublease in general terms. However, her resolution of the
issue is apparent in her judgment and in the consent order. The application
judge awarded 216 its rent payments under the Sublease for the period June 1 to
September 8, and the consent order granted 216 possession of the retail
premises as of September 8. From a practical perspective, the Sublease is at an
end and all of the outstanding issues under the Sublease are resolved.
[81]
The impact that terminating the Sublease may
have had on the License Agreement and on the damages that flowed from 216s
wrongful termination of the License Agreement in June 2020, were not addressed
in the court below. Nor is that issue dealt with in the settled judgment. In my
view, therefore, the issue as to whether the License Agreement was brought to
an end in August by virtue of the doctrine of frustration ought not to be
addressed for the first time on appeal. It is best left to the trial or other
resolution of the outstanding damages issues pursuant to the application
judges decision.
CONCLUSION
[82]
In conclusion, therefore, I would set aside the finding
of bad faith, but would otherwise dismiss the appeal. As I consider that 111
was largely successful on appeal, I would award it costs on a partial indemnity
basis in the all-inclusive amount of $27,000.
Released: August 30, 2021
P.R.
Paul
Rouleau J.A.
I
agree
Alexandra Hoy J.A.
I agree K. van Rensburg J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Urbancorp Toronto Management Inc. (Re), 2021 ONCA 613
DATE: 20210909
DOCKET: M52721
(M52689)
Miller
J.A. (Motions Judge)
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 Toronto
Management
Inc., Urbancorp (St. Clair
Village)
Inc. Urbancorp (Patricia) Inc.,
Urbancorp
(Mallow) Inc., Urbancorp
(Lawrence)
Inc., Urbancorp Downsview Park
Development
Inc., Urbancorp (952 Queen West)
Inc.,
King Residential Inc., Urbancorp 60 St.
Clair
Inc., High Res. Inc., Bridge on King Inc.
(Collectively
the Applicants) and the Affiliated
Entities
Listed in Schedule A Hereto
Kenneth Kraft, Neil Rabinovitch and
Michael Beeforth, for the moving party, Guy Gissin, in his capacity as the Foreign
Representative of Urbancorp Inc.
Robin Schwill, Matthew Milne-Smith and
Robert Nicholls, for the responding party, KSV Restructuring Inc., in its
capacity as Monitor
Matthew Gottlieb, James Renihan and
Jane Dietrich, for the responding party, Mattamy Homes Limited
Heard: August 26, 2021 by video conference
ENDORSEMENT
[1]
This motion arises out of long-running CCAA
proceedings involving a group of companies ultimately owned by Urbancorp Inc.
(UCI). The moving party, the Foreign Representative of UCI, seeks a stay pending
its motion for leave to appeal an order of the supervising judge. That order authorized
a process for the sale of a 51% interest in a real estate development project
called Downsview Homes Inc. (DHI), owned by Urbancorp Downsview Park
Development Inc. (Downsview), a subsidiary of UCI. The responding party,
Mattamy Homes Limited (Mattamy), owns the other 49% of DHI.
[2]
Mattamy is the lender to Downsview under a
debtor-in-possession facility (the DHI Facility), which matured eight months
ago, on February 3, 2021. Downsview owes Mattamy over $9 million pursuant to
the terms of the DHI Facility and the order approving the DHI Facility (the
DIP Order). Downsview cannot repay the debt, and Mattamy will not extend the
deadline for payment any further unless a sales process is conducted for
Downsviews interest in DHI.
[3]
There is also a dispute as to whether Mattamy is
entitled to a substantial payment from Downsview under the co-ownership
agreement they entered into with respect to DHI. The supervising judge ordered arbitration
of that payment dispute. The outcome of the arbitration will have a material
impact on the value of Downsviews interest in the project. If Mattamy is
entitled to the payment, Downsviews interest in the project will be essentially
worthless. If Mattamy is not entitled, then Downsviews interest will be worth
millions of dollars, even after the repayment of the DHI Facility.
[4]
Downsview argued before the supervising judge that
the sale process for Downsviews interest proposed by the Monitor be postponed until
the question of the disputed payment could be arbitrated. Downsview was (and
remains) concerned that the uncertainty about the value of its interest in DHI
will have a chilling effect on the sale process. It is conceivable, Downsview
says, that no bidder will step forward because of the difficulty they would
encounter conducting due diligence and ascertaining the probable value of DHI in
light of the disputed payment. If the sale process fails and no bidder is
found, Mattamy could, under the proposed terms of the sale process, seize
Downsviews interest. This would result in a windfall to Mattamy even if the
arbitration of the disputed payment were to be resolved in Downsviews favour
later.
[5]
The supervising judge was persuaded by the
arguments of the Monitor and decided that the sale process should not be
postponed until after the arbitration. He highlighted three of the Monitors
arguments. First, that Mattamy, as the debtor-in-possession lender, was
entitled to assert its rights over Downsviews interest in DHI in the event
Downsview did not repay the DHI Facility. Second, that Downsviews obligations
under the DHI Facility continued to accrue. Third, that the proposed sale
process could be conducted without knowing the outcome of the arbitration,
because the process contemplated the bidders submitting two offers one on the
basis that Mattamy was entitled to the additional payment and one on the basis
that it was not.
[6]
The Monitor had considered and rejected
Downsviews concerns that the proposed sale process would create a chilling
effect on potential bidders. The Monitor concluded that potential bidders would
be sophisticated enough to conduct due diligence and assess both possible
outcomes of the disputed payment issue, and would not be dissuaded or confused
by being asked to submit separate bids for both possible outcomes. It argued
that Downsview was merely speculating that potential bidders would be dissuaded
from bidding.
[7]
The supervising judge agreed with the Monitor that
Downsviews concerns were speculative and ought to have been given no weight.
[8]
Downsview is seeking leave to appeal to this
court. It will argue that the supervising judge erred in concluding that its
concerns were speculative, and erred in not ordering the sale process to be
delayed until after the conclusion of the arbitration.
[9]
Downsview argues for a stay of the sale process
until the leave application can be decided. If leave to appeal is denied, then
that will be the end of things and the sale process can unfold. However, if
leave is granted, Downsview will seek a motion for a further stay of the order
and the sale process pending the disposition of the appeal.
ANALYSIS
[10]
The test for staying an order pending appeal is analogous
to the test set out in
RJR-MacDonald Inc. v. Canada (Attorney General)
,
[1994] 1 S.C.R. 311, at
p. 334
for granting an interlocutory injunction: (i) is
there a serious issue to be determined on appeal; (ii) will the moving party
suffer irreparable harm if the stay is not granted; and (iii) does the balance
of convenience favour the granting of the stay:
Belton v. Spencer
, 2020
ONCA 623, paras. 20-21.
A.
A serious question to be determined on appeal
[11]
The moving party set out four issues that it
characterized as important, both to the parties and to the CCAA process as a
whole: (i) the level of deference owed by the court to a Super Monitor; (ii)
the extent to which a Super Monitor needs to obtain independent evidence to
support the fairness and viability of a proposed sale process; (iii) whether
the evidentiary onus regarding fairness and viability of the sale process
remains with the Super Monitor or shifts to the party objecting to the sale
process; and (iv) the extent to which a court can rely on a decision that is
released after the parties hearing.
[12]
Although it may seem unlikely the moving party
will succeed on a motion for leave to appeal, the first two issues are at least
arguable, if weak. The latter two issues would be highly unlikely to attract leave.
First, although there seems to be little reason why a Super Monitor should be
given less than the substantial deference that a supervising judge gives to the
decisions and recommendations of a receiver, there is no authority from this
court settling the issue. Second, the idea that a Monitor must obtain independent
evidence as to the fairness and viability of the sale process seems premised on
the idea that an independent party would have greater expertise than the
Monitor. Were the moving party correct, it would seem to undermine the speed at
which the process is meant to operate. Third, the question of whether there was
a shift in evidentiary onus is not a genuine issue the supervising judge
found that the Monitor had satisfied the evidentiary burden necessary to
establish that the sale process was fair and reasonable. Fourth, the question
of whether the supervising judge ought not to have cited a decision
subsequently released by this court is of no importance. The decision in
question did not change the law, and the ground is further weakened by the moving
partys failure to outline the submissions on the decision that it would have
made before the supervising judge if it had the opportunity.
[13]
Above all, the moving party faces the high
hurdle of the standard of review applicable to a decision of the supervising
judge in a CCAA proceeding. The supervising judge had to determine whether the
Sale Process ought to commence immediately or wait until the arbitration was
concluded. The supervising judge applied the appropriate criteria set out in
(Re)
Brainhunter
(2009)
,
62 C.B.R. (5th) 41 (Ont. Sup. Ct.), at para.
13,
in deciding whether to order a particular sale process, all of
which are factual in nature. The findings of the supervising judge will be entitled
to deference on appeal, should leave be granted. The decision to order the sale
process was itself made on the recommendations of the Monitor within the
context of a long-running CCAA proceeding, compounding the nature of the
deference owed by this court:
Marchant Realty Partners Inc. v. 2407553
Ontario Inc.
, 2021 ONCA 375, 90 C.B.R. (6th) 39, at para 19.
[14]
Given the weakness of the grounds for appeal
that have been articulated, as well as the unlikelihood that the moving party will
satisfy the other grounds of the test for leave to appeal, the moving party is
unlikely to obtain leave to appeal. This factor weighs in favour of dismissal.
B.
Irreparable Harm
[15]
As the moving party argued, the criterion of
irreparable harm refers to the nature of the harm rather than its magnitude:
RJR-MacDonald
,
at p. 341. The question is whether refusal to grant relief would so adversely
affect the moving partys interests that the harm could not be remedied were
the moving party to lose the motion but succeed on the appeal:
RJR-MacDonald
,
at p. 341.
[16]
The moving party argues that if the sale process
is not deferred until after the arbitration is completed, and Downsviews
interest in DHI is sold, it will be impossible to know whether a higher
purchase price could have been obtained had the sale process been deferred. Additionally,
if the stay motion is not granted and a sale is concluded prior to the appeal
being heard, the moving partys appeal will have been rendered moot.
[17]
Mattamy argues in reply that the supervising
judge already adjudicated the issue of whether the sale process constitutes
irreparable harm to the moving party. The supervising judge dismissed as
speculative the argument that the sale process would generate a chill that
would result in a lower sale price. Mattamy argues that if I were to find the
prospect of irreparable harm, I would be finding that the prospect of a chill
is more than speculative, and effectively would be reversing a factual finding
of the supervising judge, contrary to the role of this court on a stay motion:
Hodgson
v. Johnston
, 2015 ONCA 731, at para. 9.
[18]
In addition, if the sale process is frustrated, Mattamy
would be entitled, as a result of the moving partys default under the terms of
the DHI Facility, to simply enforce its security and run another sale process,
involving additional time and expense.
[19]
I agree with the submissions of Mattamy. There
is no basis on which I can substitute my evaluation of the efficacy of the sale
process over that of the supervising judge and find that not granting the stay could
result in irreparable harm to the moving party.
C.
The balance of convenience
[20]
Determining the balance of convenience requires
an inquiry into which of the two parties will suffer the greater harm from
granting or refusing the stay:
RJR-MacDonald
, at p. 342.
[21]
The moving party argues that it will suffer the
greater harm if a stay is refused, because it owns the 51% interest in DHI at
issue, and therefore bears the risk of the interest being sold for a lower
price than what otherwise could have been obtained. It also bears the risk of the
sale process failing to attract any bids, which could result in Mattamy
foreclosing on its interest. It argues that Mattamy faces no conceivable harm
in delaying the sale process until such time as this court decides whether to
grant leave to appeal.
[22]
Mattamy and the Monitor argue to the contrary that
Mattamy will suffer irreparable harm if there is further delay, and that the
balance of convenience favours Mattamy. Mattamy has presented evidence on this
motion that it has approached eight potential bidders since the sale process
order was issued, and is concerned that those potential bidders will lose
interest and faith in the sale process if it continues to be bogged down in
litigation. Mattamy attests that the current market is favourable for
investments of this nature because of favourable interest rates. These market
conditions can change at any time, and prospective bidders can lose faith in
the process because of procedural delay and decline to participate.
[23]
Comparing the potential commercial prejudice to
Mattamy from delaying the sale process against what the supervising judge
concluded to be an absence of genuine prejudice to the moving party in proceeding
with the sale process prior to the conclusion of the arbitration, I find that
the balance of convenience favours Mattamy. I would dismiss the motion.
D.
Sealing order
[24]
All parties request a sealing order on the same
basis and on analogous terms as the sealing order granted by the supervising
judge, in order to preserve the integrity of the sale process and the pending
arbitration. I am prepared to grant that order.
E.
Disposition
[25]
The motion to stay is dismissed. The request for
a sealing order is granted. If parties are unable to agree on an order for costs
for this motion, I will receive submissions from each party not exceeding three
pages within 10 days of these reasons.
B.W.
Miller J.A.
SCHEDULE A
LIST OF AFFILIATED ENTITIES
Urbancorp Power
Holdings Inc.
Vestaco Homes
Inc.
Vestaco
Investments Inc.
228 Queens
Quay West Limited
Urbancorp
Cumberland 1 LP
Urbancorp
Cumberland 1 GP Inc.
Urbancorp
Partner (King South) Inc.
Urbancorp
(North Side) Inc.
Urbancorp
Residential Inc.
Urbancorp
Realtyco Inc.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Florovski v.
Florovski, 2021 ONCA 606
DATE: 20210910
DOCKET: C68917
Strathy C.J.O., Lauwers and Sossin JJ.A.
BETWEEN
Diane
Florovski
Applicant
(Appellant)
and
Louie
Florovski
Respondent
(Respondent)
Fadwa Yehia and Gabrielle Pop-Lazic, for the appellant
Christina Doris and Sydney Bunting, for the respondent
Heard: September 3, 2021 by video conference
On appeal from the order
of Justice Richard T. Bennett of the Superior Court of Justice, dated December
2, 2020, with reasons reported at 2020 ONSC 7486.
REASONS FOR DECISION
[1]
In this family law case, Vallee J. made an order
requiring the respondent to make full disclosure, building in a daily $500 financial
penalty for any failure to do so on a timely basis (August 26, 2019 - 2019 ONSC
5013). The appellant moved to strike the respondents pleading and to enforce
the penalty, which by then had accumulated to the total of $224,000, even
though disclosure was relatively complete. The motion judge declined to do so
and left the proper application of the penalty provision in the order of Vallee
J. to the trial judge, as all parties acknowledge. He did not err in declining
to enforce a penalty that appeared to be disproportionate to the degree of
non-disclosure. Because this was an interlocutory order, it is not appealable
to this court. The appeal is quashed with costs payable by the appellant to the
respondent in the amount of $15,000, all inclusive.
G.R. Strathy C.J.O.
P. Lauwers J.A.
L. Sossin J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Panasonic
Eco Solutions Canada Inc. v. XL Specialty Insurance Company, 2021 ONCA 612
DATE: 20210910
DOCKET: C68282
Feldman, Paciocco and Coroza JJ.A.
BETWEEN
Panasonic Eco Solutions Canada Inc.
Applicant (Respondent/
Appellant by way of cross-appeal)
and
XL Specialty Insurance Company
Respondent (Appellant/
Respondent by way of cross-appeal)
W. Colin Empke and Anthony H. Gatensby, for the
appellant
Jeffrey A. Brown and Callum J. Micucci, for the
respondent
Heard: March 12, 2021 by videoconference
On appeal from the judgment of Justice Markus Koehnen of
the Superior Court of Justice, dated March 9, 2020, with reasons at 2020 ONSC
1502.
Feldman J.A.:
A.
Introduction
[1]
The issue on this appeal is whether the appellant insurer, XL Specialty
Insurance Company, has a duty to defend its insured, the respondent Panasonic
Eco Solutions Canada Inc., against two claims for breach of contract brought
against Panasonic by a group of companies collectively operating as Solar Flow-Through
Fund (Solar) in an arbitration proceeding. The insurance policy is a
professional errors and omissions policy that excludes contractual liability
claims unless the insured would have had the liability in the absence of the
contract.
[2]
The application judge held that XL has a duty to defend one of the
claims but not the other. XL appealed and Panasonic cross-appealed.
[3]
I would allow the appeal and dismiss the cross-appeal. XL has no duty to
defend either claim.
B.
Background Facts Pleaded by Solar in its Arbitration Claim
[4]
Panasonic entered into two agreements with Solar. The first was an
Engineering, Procurement, and Construction Agreement (the Engineering
Agreement) that required Panasonic to procure, construct and install
roof-mounted solar electricity generating systems. Solar planned to sell the generated
electricity through 20-year contracts it had entered into with Ontarios
Independent Electricity System Operator (the IESO). The Engineering Agreement
required Panasonic to achieve substantial completion by a guaranteed date.
Panasonic failed to do so, resulting in the IESO cancelling seven of its
contracts with Solar.
[5]
In the arbitration claim, Solar pleaded that Panasonic failed to achieve
substantial completion in breach of its contractual obligations and claimed liquidated
damages of $92,309.62, the sole remedy provided in the Engineering Agreement for
a contractors failure to reach substantial completion by the guaranteed date.
[6]
Solar further pleaded that following the cancellation, the three parties
Panasonic, Solar and the IESO entered into negotiations that resulted in
the IESO reinstating two of the seven cancelled contracts with Solar, and re-issuing
the remaining five contracts, but to Panasonic.
[7]
The re-issued contracts were part of an agreement between Solar and
Panasonic, referred to as the Proceeds Agreement, although it was never
finalized or signed. According to that agreement, Solar would provide its
expertise for the five contracts that had been re-issued to Panasonic, and in
exchange, Panasonic would pay Solar a portion of the proceeds from its sale of
the projects. Solar anticipated that it would recover, at a minimum, its sunk
costs of $1,300,000 on the re-issued contracts with the IESO.
[8]
In the arbitration claim on the Proceeds Agreement, Solar claimed
damages for breach of contract, or in the alternative for negligent
misrepresentation, or in the further alternative, for unjust enrichment. The
negligent misrepresentation claim was based on Panasonics ongoing
representations to Solar, in order to obtain its assistance with the re-issued
projects, that it would pay Solar in accordance with the Proceeds Agreement,
but Panasonic then failed to pay. The unjust enrichment claim was based on
Panasonic enriching itself at Solars expense by retaining the full benefit of
the sold re-issued projects and depriving Solar of compensation for its
assistance.
C.
Findings of the Application Judge
[9]
The application judge noted that Panasonic had already received invoices
from its defence counsel on the arbitration for $492,965.25, that the
arbitration was continuing and that the defence costs were continuing to
increase.
[10]
The
XL policy insuring Panasonic is an errors and omissions policy, formally named
a Professional and Contractors Pollution Legal Liability Policy. The policy
covers monetary judgments that Panasonic becomes legally obligated to pay
because of a claim resulting from an act, error or omission in Professional
Services. XL agreed that Solars claim arises from the delivery of
professional services.
[11]
Under
the policy, XL has a duty to defend any claim against Panasonic to which this insurance
applies regardless of the merits of the claim. Whether the insurance applies
depends on the interpretation of the following exclusion and exception to the
exclusion clause:
This Policy does not apply to any Claim
arising from the Insureds:
1. assumption of liability in a
contract or agreement; or
2. breach of contract or agreement.
This exclusion does not apply to: (i) liability that the Insured
would have in the absence of the contract or agreement
[12]
The
application judge referred to the four principles applicable to an insurers
duty to defend set out by the Supreme Court of Canada in
Monenco Ltd. v.
Commonwealth Insurance Co.
, 2001 SCC 49, [2001] 2 S.C.R. 699, at paras. 28,
33. He summarized these principles as follows:
(a) The duty to defend is distinct
from, and broader than, the duty to indemnify. There may be a duty to defend
even if the insurer may not ultimately be required to indemnify the insured.
(b) The court assumes that the pleaded
facts are true.
(c) The court applies the pleaded facts
to the policy wording.
(d) The duty to defend arises if the
underlying complaint alleges any facts that might fall within coverage under
the policy.
[13]
The
application judge also referred to the principle that where the pleadings are
imprecise, the insurers obligation to defend will be triggered where, on a
reasonable reading of the pleadings, a claim within coverage can be inferred:
Monenco
,
at para. 31.
(1)
The Claim under the Engineering Agreement
[14]
In
its claim for liquidated damages under the Engineering Agreement, Solar relied
on Article 13 of the Agreement which the application judge quoted in part:
[I]f a system has not reached Substantial Completion by the Guaranteed
Substantial Completion date solely due to Contractors acts or omissions, Owner
shall be entitled to receive as daily liquidated damages from Contractor
[15]
XL
argued to the application judge that it had no duty to defend because Solars
claim for liquidated damages arose out of Panasonics breach of contract in
failing to achieve substantial completion by the guaranteed date in accordance
with its contractual obligation, and was therefore excluded by the exclusion
clause.
[16]
The
application judge rejected this argument. He reasoned that Solars claim for
liquidated damages arises out of Panasonics acts or omissions in failing to
meet the guaranteed date, and Panasonics delay could have been caused by its
negligence, in which case Solars claims could fall within coverage. It
depended on the cause of the delay. Further, the fact that Solar did not plead
negligence did not undermine the analysis as long as it pleaded facts that were
capable of supporting the tort of negligence:
Non-Marine Underwriters,
Lloyds of London v. Scalera
, 2000 SCC 24, [2000] 1 S.C.R. 551, at para.
83.
[17]
The
application judge was unable to determine on the record before him whether the
damages Solar sought were attributable to negligence by Panasonic or to
circumstances beyond Panasonics control. He presumed that this may be one of
the issues in the underlying arbitration. The application judge noted, as an
aside, that if it turned out that the delay was due to deliberate acts or
omissions by Panasonic, as opposed to negligence, then there would be no
coverage.
(2)
The Claim under the Proceeds Agreement
[18]
In
its Notice of Arbitration against Panasonic, Solar pleaded that Panasonics
failure to pay Solars share of the sale proceeds from the reissued projects was
tactical and meant to sidestep its obligations to pay [Solar] anything for its
work under the Proceeds Agreement.
[19]
The
application judge concluded that Panasonics liability under the Proceeds
Agreement was in effect a debt claim that arose under the contract and could
not come within the exception to the exclusion. He also rejected the efficacy
of the negligent misrepresentation and unjust enrichment claims. The negligent
misrepresentation claim was based on representations by Panasonic that it would
pay under the agreement, and was therefore based solely on Panasonics breach
of the Proceeds Agreement by failing to make payments under it. The application
judge further found that the unjust enrichment claim is excluded under the policy
because the policy does not cover claims for equitable remedies.
D.
Issues on the Appeal and the Cross-Appeal
[20]
The
question on the appeal and cross-appeal is the proper interpretation of the XL policy
and its potential application to the arbitration claim, triggering the duty to
defend. To answer that question, the following are the issues to be addressed:
1) The standard of review;
2) Principles of interpretation
and application of insurance policies;
3) The proper interpretation
of the exclusion clause;
4) Does Solars claim under
the Engineering Agreement give rise to a duty on XL to defend the claim?
5) Does Solars claim under
the Proceeds Agreement give rise to a duty on XL to defend the claim?
E.
Analysis
(1)
The Standard of Review
[21]
Both
parties agree that the appeal involves the interpretation of a standard form
policy of insurance. As a result, in accordance with the decision of the
Supreme Court of Canada in
Ledcor Construction Ltd. v. Northbridge Indemnity
Insurance Co.,
2016 SCC 37, [2016] 2 S.C.R. 23, the standard of review to
be applied by this court is correctness. The court summarized the principle at
para. 4:
4 In my opinion, the appropriate standard of review in
this case is correctness. Where, like here, the appeal involves the
interpretation of a standard form contract, the interpretation at issue is of
precedential value, and there is no meaningful factual matrix that is specific
to the particular parties to assist the interpretation process, this
interpretation is better characterized as a question of law subject to
correctness review.
(2)
Principles of Interpretation and Application of Insurance Policies
[22]
The
first substantive issue is the principles governing the duty of an insurer to
defend claims brought against the insured. In
Monenco
, the Supreme Court
reviewed and restated the principles that govern the duty to defend. The first
is the rule that the pleading by the claimant against the insured is what
triggers the duty to defend. If the facts alleged in the pleading would, if
true, require the insurer to indemnify, then the insurer has the duty to
defend. The duty to defend is therefore broader than the duty to indemnify
because it is triggered by the mere possibility of coverage:
Monenco
, at
paras. 28-29. In addition, the pleadings themselves are to be interpreted
broadly, with any doubt to be resolved in favour of the insured:
Monenco
,
at para. 31. In that regard, where the claim alleges facts that might fall
within coverage, the duty arises:
Monenco
, at para. 33. The required
analysis is to determine the substance of the claim rather than merely the legal
label chosen by the claimant.
[23]
The
Supreme Court reviewed and summarized the general principles of policy
interpretation that had been set out in previous Supreme Court case law
[1]
in its decision in
Progressive Homes Ltd. v. Lombard General Insurance Co. of
Canada
, 2010 SCC 33, [2010] 2 S.C.R. 245, at paras. 22-24:
22 The primary interpretive principle is that when the
language of the policy is unambiguous, the court should give effect to clear
language, reading the contract as a whole.
23 Where the language of the insurance policy is ambiguous,
the courts rely on general rules of contract construction. For example, courts
should prefer interpretations that are consistent with the reasonable
expectations of the parties, so long as such an interpretation can be supported
by the text of the policy. Courts should avoid interpretations that would give
rise to an unrealistic result or that would not have been in the contemplation
of the parties at the time the policy was concluded. Courts should also strive
to ensure that similar insurance policies are construed consistently. These
rules of construction are applied to resolve ambiguity. They do not operate to
create ambiguity where there is none in the first place.
24 When these rules of construction fail to resolve the
ambiguity, courts will construe the policy contra proferentem against the
insurer. One corollary of the contra proferentem rule is that coverage
provisions are interpreted broadly, and exclusion clauses narrowly. [Citations
omitted.]
(3)
The Proper Interpretation of the Exclusion Clause
[24]
The
policy begins with the coverage clauses and the duty to defend. Clause I.A.1 is
the coverage clause that provides that XL will pay on behalf of the Insured
for Professional Loss which the Insured becomes legally obligated to pay
because of a Claim resulting from an act, error or omission in Professional
Services.
[25]
The
following are definitions of some of the terms referred to in the coverage
clause:
Professional Services: Value Engineering, Field Changes to
Design, Design/Build or Design performed by or on behalf of the Named Insured,
and project or construction management services in connection with Contracting
Services;
Contracting Services: Installation, maintenance, and repair of
solar power arrays, commercial/residential battery storage, operation and maintenance
services;
Professional Loss: a monetary judgment, award or settlement of
compensatory damages
[26]
Under
Clause VII.C, XL has the right and the duty to defend any Claim against the
Insured seeking Professional Loss or Pollution Loss to which this insurance
applies, including the right to select counsel, even if any of the allegations
are groundless, false or fraudulent. In accordance with the case-law, XL has
the duty to defend any claim if there is a possibility that there is coverage
for it under the policy.
[27]
The
policy contains a number of exclusions. The issue on the appeal is whether the contractual
liability exclusion in Section IV, including the exception to the exclusion, applies.
The clause provides:
This Policy does not apply to any Claim, Professional Loss
B. Contractual Liability
arising from the Insureds:
1.
assumption of
liability in a contract or agreement; or
2.
breach of
contract or agreement.
This exclusion does not apply to: (i) liability that the
Insured would have in the absence of the contract or agreement
[28]
Applying
the principles of interpretation from
Progressive Homes
, the first
question for the court is whether this exclusion clause is ambiguous. If it is
not, then the court is to give effect to the clear language, reading the contract
as a whole. The clause contains both an exclusion and an exception to the
exclusion. They form part of a whole clause and must be read together.
[29]
Looking
at the contractual exclusion first, I see no ambiguity. The policy does not
cover a claim that arises from an insureds assumption of liability in a
contract or from an insureds breach of contract. Panasonic argues that the
meaning and effect of this exclusion, read literally, is to nullify the
coverage under the policy, because the insured always provides its professional
services under a contract, as it did here.
[30]
This
was the holding by the United States Court of Appeals for the Seventh Circuit in
Crum & Forster Specialty Insurance Company v. DVO, Inc.
,
939
F. (3d) 852 (7th Cir. Ct. App. 2019), where the court considered a similarly
worded exclusion and concluded that it was so broad as to render coverage under
the policy illusory. However, in that case, unlike in the XL policy, the insurance
policy did not contain an exception to the exclusion. If there had been no
exception to the contractual liability exclusion in the XL policy, then in
accordance with
Cabell v. The Personal Insurance Company
, 2011 ONCA 105,
104 O.R. (3d) 709, if the exclusion rendered the coverage nugatory, the court
may not give it any effect as it would not be within the reasonable expectation
of the parties.
[31]
The
next issue, therefore, is to determine the meaning and effect of the exception.
The first question is whether the wording of the exception is also unambiguous.
It excepts from the exclusion liability that the insured would have in the
absence of the contract or agreement. In my view, read literally, the
exception is ambiguous, because the insured would have no relationship with the
claimant if there had been no contract or agreement between them under which the
insured provided the professional services to the claimant. If they had no contractual
relationship, no services would be performed, and there would be nothing to
insure. That is clearly not what was intended.
[32]
Given
that ambiguity, the court then applies the principles of contractual
interpretation summarized in
Progressive Homes
to interpret the
exception. Those principles direct the court to give the words the
interpretation that accords with the reasonable expectations of the parties,
and that provide a realistic result that is consistent with the interpretation
given to similar policies.
[2]
[33]
Applying
those principles, the meaning of the exception becomes clear. The policy
continues to cover professional losses caused by the insured in performing its
professional functions in its relationship with the claimant that arise in law,
regardless of the terms of their contract. As the insurer XL submits, these
would include liability for losses that third parties may suffer as a result of
an insureds negligence in performing the professional services contract, as
well as liability to the claimant for negligence in performing the contractual
obligations under the doctrine of concurrent liability in contract and in tort:
see
Central Trust Co. v. Rafuse
, [1986] 2 S.C.R. 147;
B.G. Checo
International Ltd. v. British Columba Hydro and Power Authority
, [1993] 1
S.C.R. 12; and
Winnipeg Condominium Corporation No. 36 v. Bird Construction
Co.
, [1995] 1 S.C.R. 85.
[34]
This
interpretation makes sense from the point of view of both the insured and the
insurer, and gives effect to both their reasonable expectations, in light of
the purpose of the professional errors and omissions insurance contract. The
insurer will be responsible for the losses caused by the insureds negligent
performance of its professional obligations; but the insurer will not indemnify
the insured for any extra obligations it undertakes in a contract, or for the
breach of any extra obligations that it undertakes in a contract.
(4)
Does Solars claim against Panasonic under the Engineering Agreement
give rise to a duty on XL to defend the claim?
[35]
The
claim by Solar is found in its Notice of Arbitration. The parties entered into
the Engineering Agreement in January 2016. Panasonic agreed to procure,
construct and install the solar electricity generating systems that were the
subject of the agreements that Solar had with the IESO. Panasonic was
responsible for achieving substantial completion of the projects by a guaranteed
date, but it failed to do so in respect of 18 of them, causing the IESO to
terminate seven of its contracts with Solar, although it later reinstated two
of them. An arrangement was made among the parties to allow Solar to recoup its
costs of the other five. That arrangement was the Proceeds Agreement that will
be discussed later in these reasons.
[36]
Solars
claim against Panasonic under the Engineering Agreement is for liquidated
damages in the amount of $92,309.62, based on Panasonics obligation under Article
13 of the Engineering Agreement to pay liquidated damages if a System has not
reached Substantial Completion by the Guaranteed Substantial Completion Date
solely due to Contractors acts or omissions. Article 13 provides in part:
The amounts payable under this Article
13 shall be [Solar]s sole and exclusive remedy for [Panasonic]s failure to
achieve Substantial Completion of a System by the Guaranteed Substantial Completion
Date.
[37]
It
goes on to state that the agreed amount of liquidated damages is not a penalty
but represents a genuine pre-estimate of the damages that Solar would suffer as
a result of the delay.
[38]
Therefore,
while Panasonics delay was an act or omission in performing its professional
obligations that caused loss to Solar that would have been covered by the XL
coverage clause, by agreeing to the liquidated damages clause, Panasonic effectively
contracted out of its insurance coverage. The exclusion excludes coverage for liability
arising from breach of contract, and the exception does not apply because the obligation
to pay liquidated damages is purely contractual and does not otherwise arise.
Furthermore, because the Engineering Agreement provides that liquidated damages
are Solars sole remedy, there is no way to read Solars pleading to claim any
other or additional remedy for the delay.
[39]
A
liquidated damages clause, such as this one, demonstrates the fairness of the
contractual exclusion and exception clause of the insuring agreement, when it
is interpreted in accordance with the reasonable expectations of the parties to
that agreement. An insured is free to make whatever promises it wishes when it
contracts to perform services, for example for remedies for its breach.
Panasonic could have agreed to pay liquidated damages to Solar in any amount as
part of the consideration for the contract. But it could not bind its insurer
to that bargain. The insurer is only obligated to cover liability that the
insured would have had without the contract.
[40]
The
application judge erred in his application of the test for determining the duty
to defend. He focused on the fact that Panasonic could be liable for negligence
in its delay, which would be within coverage, but he failed to apply the
exclusion and the exception to the exclusion to his analysis of the liquidated
damages clause. In particular, he failed to note that the claim for liquidated
damages was Solars sole remedy under its agreement. In other words, Solar had
contracted out of any claim it may have had against Panasonic for damages for
negligence. Therefore, it could not make a negligence claim against Panasonic
in the arbitration.
[41]
The
application judge therefore erred in law in his interpretation and, as a result,
in his application of the exclusion clause by finding that XL has a duty to
defend Panasonic against Solars claim for liquidated damages for breach of the
Engineering Agreement. No duty to defend arises in respect of this claim.
(5)
Does Solars claim against Panasonic under the Proceeds Agreement give
rise to a duty on XL to defend the claim?
[42]
The
arbitration claim states that because of Panasonics delay and IESOs
cancellation of five of Solars projects, Solars pre-construction costs loss
was $1.3 million. In order to recoup that loss, Solar agreed with Panasonic
that if Panasonic entered into agreements with IESO to complete the projects,
Solar would provide certain services to help achieve timely completion. In
exchange, Panasonic would pay Solar a portion of the sale proceeds, which Solar
anticipated would amount to at least $1.3 million. That was the Proceeds
Agreement, although it was never finalized in writing.
[43]
Panasonic
completed and sold the projects, but it refused to pay Solar any portion of the
proceeds of sale. Further, Solar claims that it worked in accordance with the
Proceeds Agreement to help Panasonic achieve the sales, and that Panasonic regularly
represented to [Solar] that its efforts in this regard were subject to the
Proceeds Agreement. Solar claimed negligent misrepresentation, asserting that
Panasonic owed it a duty of care and that it relied on Panasonics
representations that it would be paid under the Proceeds Agreement. It also
claimed that Panasonic enriched itself at the expense of Solar amounting to unjust
enrichment, as well as breach of contract and breach of its obligations to act
in good faith.
[44]
The
application judge found that Panasonics liability under the Proceeds Agreement
arose out of its assumption of liability under a contract and out of its breach
of that contract, thereby falling squarely within the contractual exclusion. The
claim could not come within the exception because Panasonic would not have had
the liability to Solar to pay it following the sale of the projects, except
under the contract. It amounted to a debt.
[45]
It
was XLs position on the application that Solars claims come within the coverage
clause of the policy but are excluded from coverage by the contractual
liability exclusion clause. In respect of the Proceeds Agreement, coverage
would presumably be based on Panasonics acts or omissions in carrying out its
obligations under the Engineering Agreement that resulted in the delay and in
Solars loss of its $1.3 million in costs thrown away. However, Solar resolved
any claim it had in that regard by entering into the Proceeds Agreement.
[3]
It is the Proceeds Agreement that Solar seeks to enforce in the arbitration.
[46]
I
agree with the application judge that the claim under the Proceeds Agreement is
essentially for a debt owing. It arises under the contract. There would be no
claim without the contract. Therefore, if the claim came within the coverage
under the policy, it is excluded by the contractual liability exclusion clause
and is not saved by the exception to the exclusion.
[47]
I
also agree with the application judge that the claims for negligent
misrepresentation and unjust enrichment do not give rise to a duty to defend.
The negligent misrepresentation alleged against Panasonic is that it misled
Solar into working on the promise that it would be paid under the Proceeds
Agreement. This is based solely on Panasonics failure to make payments under
the Proceeds Agreement, in breach of that contract. The contractual liability
exclusion is triggered, and the exception to the exclusion does not apply. As
the application judge found, the unjust enrichment claim is an equitable claim
that is specifically not compensable under the XL insurance policy.
F.
Conclusion
[48]
I
would allow the appeal and set aside the order of the application judge that
found a duty on XL to defend the claim under the Engineering Agreement. I would
dismiss the cross-appeal and uphold the order of the application judge that
there is no duty on XL to defend the claim under the Proceeds Agreement. XL is
entitled to its costs of the appeal fixed in the agreed amount of $12,500
inclusive of disbursements and HST.
Released: September 10, 2021 K.F.
K. Feldman
J.A.
I agree. David
M. Paciocco J.A.
I agree. S. Coroza J.A.
[1]
Co-operators Life Insurance Co. v. Gibbens
, 2009 SCC 59, [2009] 3 S.C.R.
605, at paras. 20-28;
Jesuit Fathers of Upper Canada v. Guardian Insurance
Co. of Canada
, 2006 SCC 21, [2006] 1 S.C.R. 744, at paras. 27-30;
Scalera
,
at paras. 67-71;
Brissette Estate v. Westbury Life Insurance Co.
, [1992]
3 S.C.R. 87, at pp. 92-93; and
Consolidated-Bathurst Export Ltd. v. Mutual
Boiler & Machinery Insurance Co.
(1979), [1980] 1 S.C.R. 888, at pp.
899-902.
[2]
No case was brought to the courts attention where the same or
a similar contractual liability exclusion and exception clause had been
interpreted by a court.
[3]
I also note that because the liquidated damages clause provides
the sole and exclusive remedy for Panasonics delay, it appears Solar has no
claim for the $1.3 million lost costs under the Engineering Agreement if they
arose from Panasonics delay in completion.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
R. v.
Kuleba, 2021 ONCA 611
DATE: 20210910
DOCKET: C68069
Hoy, Trotter and Paciocco JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Paul Kuleba
Appellant
No one appearing for the appellant
Nicole Rivers, for the respondent
Heard and released orally: September 8, 2021 by
video conference
On appeal from the judgment of Justice Stephen T. Bale of
the Superior Court of Justice, dated January 15, 2020.
REASONS FOR DECISION
[1]
Mr. Kuleba did not appear. The appeal was listed peremptory to Mr.
Kuleba. The Crown sent Mr. Kuleba several letters reminding him that his appeal
was listed to be argued today. It received no response. It also notified Mr.
Kuleba that if he failed to attend it would ask that his appeal be dismissed as
abandoned.
[2]
The Crown advised that Mr. Kuleba did not attend on the second day of
trial for the criminal proceeding which gave rise to the application for
habeas
corpus
at issue on appeal and there is a warrant for his arrest.
[3]
This appeal is dismissed as abandoned.
Alexandra Hoy J.A.
Gary Trotter J.A.
David M. Paciocco J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Asghar, 2021 ONCA 615
DATE: 20210910
DOCKET: M52345 &
M52420
Benotto, Brown and Harvison Young JJ.A.
BETWEEN
Sajjad Asghar
Applicant (Moving Party)
and
Her Majesty the Queen in Right of Ontario
Respondent
Sajjad Asghar, in person
Karlson Leung, for the respondent
Heard: September 9, 2021 in writing
ENDORSEMENT
[1]
There are
two motions before the court: (i) the
appellants request for a panel review of the order of Pepall J.A. dated April
19, 2021; and (ii) the respondents r. 2.1.01(1) motion to dismiss the
appeal as frivolous, vexatious and an abuse of process of the court. These
reasons deal with both motions.
[2]
The appellant commenced an application against
the respondent claiming that the respondent is responsible for a vast community
of organized crime which has threatened him and used heavy volumes of hired
women [who] have sabotaged [his] right to lawfully making a family besides
finding any quality matrimonial connections. These women especially the white
women have destroyed his right to love and sex. He sought an investigation
into these allegations, and arrest of the perpetrators.
[3]
Myers J. dismissed the application on a r. 21
motion, concluding that:
this application
cannot succeed. In addition, this is a repeat of prior efforts by Mr. Asghar to
seek similar relief at an earlier date.
[4]
Mr. Asghar sought to appeal to this court and
moved for an order extending the time to appeal the order of Myers J. On April
19, 2021, Pepall J.A. dismissed his motion concluding that the justice of the
case does not favour an extension because the merits of the appeal are
seriously lacking; the conclusion of Myers J. that the application could not
succeed is unassailable; and the application is clearly frivolous,
vexatious, and an abuse of process.
[5]
Mr. Asghar seeks a panel review of the order of
Pepall J.A.
[6]
A panel review of a chambers judge decision is
not a new determination. Here, the chambers judge made a discretionary
decision. That decision is entitled to deference. The reviewing panel will not
interfere absent legal error or misapprehension of a material fact. (See:
Machado
v. Ontario Hockey Association
, 2019 ONCA 210, at para.
9).
[7]
We see no error in principle or misapprehension
and thus no basis to interfere with the decision.
[8]
Further, we agree with the chambers judge that the
appeal is clearly frivolous, vexatious and an abuse of process. On this basis,
the review motion is dismissed, and the r. 2.1 motion is allowed.
M.L. Benotto J.A.
David Brown J.A.
A. Harvison Young
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Afifi (Re),
2021 ONCA 608
DATE: 20210913
DOCKET: C68824
Paciocco, Nordheimer
and Coroza JJ.A.
IN THE MATTER OF:
Shehab Afifi
AN APPEAL UNDER PART
XX.1 OF THE
CODE
Anita Szigeti and Maya Kotob, for the appellant
Deborah Krick, for the respondent, Attorney General of
Ontario
Leisha Senko, for the respondent, Person in Charge of the
Centre for Addiction and Mental Health
Heard: August 30, 2021 by video conference
On appeal from the disposition of the Ontario Review
Board dated October 15, 2020, with reasons dated November 2, 2020 and
reported at
Afifi (Re)
, [2020] O.R.B.D. No. 2245.
REASONS FOR DECISION
[1]
The appellant, Shehab Afifi, appeals the disposition of the Ontario
Review Board (Board) dated October 15, 2020, detaining him at the Centre for
Addiction and Mental Health (CAMH or the hospital) on a general unit with
privileges up to community living in approved accommodation. At the conclusion
of the hearing, we dismissed the appeal with reasons to follow. We now provide
our reasons.
[2]
In November 2006, the appellant was found not criminally responsible on
account of mental disorder on charges of mischief under $5,000 (x2), assault,
and uttering threats. He has been diagnosed with schizophrenia, cannabis use
disorder (in partial remission), alcohol use disorder (in sustained remission),
and antisocial personality disorder.
[3]
He was subject to a detention order and is placed at CAMH. In 2008, he
moved back into the community into an independent apartment. Over the years, he
has been readmitted back into CAMH and then discharged back into his apartment.
However, the appellant has acted violently on several occasions since his 2006
arrest. In March 2019, the appellant was alleged to have assaulted an elderly man
by punching him in the stomach. After the alleged incident, he was admitted to
the hospital and tested positive for cannabis shortly after. He was eventually
discharged on April 8, 2019 but readmitted to CAMH only a few days later on
April 16, 2019. This was after he arrived late for an appointment with his
treatment team and appeared to be disheveled, irritable, and disorganized. After
readmission, he was reported to be clearly suffering from symptoms of
psychosis. Although he denied any recent cannabis use, the appellants urine
drug screens were positive for cannabis on April 16 and 17, 2019.
[4]
At his latest review hearing, held September 25, 2020, the Board
unanimously held that the appellant continues to pose a significant threat to
the safety of the public and that a conditional discharge would not be
sufficient to ameliorate that risk given the difficulty to quickly bring him
back into hospital when he decompensates. The Board issued a continuation of
the current detention order at CAMH with privileges up to community living in
approved housing. The effect of the detention order is that the appellant will
lose his apartment where he has lived for the last 11 years, subject to many
readmissions to the hospital. CAMH has taken steps to inform the appellants housing
provider that it no longer approves of the appellants apartment as a suitable
housing option because of the lack of sufficient supervision.
[5]
The appellant advances several arguments.
[6]
First, the appellant contends that the Boards disposition is not the
least onerous, least restrictive disposition and submits that the evidence
before the Board demonstrated that any risk factors could be safely managed
under the rubric of a properly crafted conditional discharge that would allow
him to return to his independent apartment.
[7]
We do not accept the appellants argument.
[8]
Considerable deference is owed to the Boards decision. In our view, the
Boards reasoning process and outcome in this case reflects an internally
coherent and rational chain of analysis and is justified in relation to the
facts and the law.
[9]
The evidence before the Board included the lengthy history of the appellants
decompensation and his assaultive behaviour. Dr. Kung testified before the
Board on behalf of the appellants treatment team. She opined that the
appellants history of hospitalization, recent record of violent activity, and
substance abuse issues demonstrate the need for close and continued 24-hour supervision.
It was open to the Board to accept her evidence and conclude that this could
only be accomplished by way of a detention order.
[10]
Second, the appellant argues that, at para. 60 of its reasons, the Board
recognized that the staff at the appellants independent apartment could have
managed his risk when it stated, [T]he Board questions whether or not the
treatment team has explored utilizing [the independent apartment] community
workers to monitor [the appellant] in his current apartment. The appellant
submits that, in light of these comments, the decision to impose a detention
order is not the least onerous and least restrictive disposition because the
Board identified a potential alternative to the supervision offered by CAMH and
was required to explore this further.
[11]
In our view, the Boards comments at para. 60 were not findings by the Board
that the independent apartment could provide adequate supervision in the
community. The Board permitted a social worker at CAMH to testify at the
hearing and provide information about what support community workers can offer
for independent living in the apartment. That social worker testified that the
present arrangement is for community workers to do weekly property checks to
ensure that there is no destruction to the apartment. We view the comments at para.
60 as merely the Boards observations that, moving forward, if supervised
housing approved by CAMH was not available within a reasonable time, then CAMH
should potentially consider independent living in an apartment with the
assistance of the community workers. We see no breach of the Boards
inquisitorial duties. The issue was explored by the Board through the testimony
of the social worker but, ultimately, the Board accepted Dr. Kungs evidence
that a high degree of supervision is required at this time.
[12]
Finally, the appellant contends that the Board erred when it held that
if left to his own devices he would not recognize his own decompensation,
and would not voluntarily return to hospital which renders the
Mental
Health Act
ineffective to treating his psychotic episodes. The appellant
argues that a conditional discharge would still subject him to his treatment
team and that it is simply wrong to suggest that the
Mental Health Act
(
MHA
)
is rendered ineffective if the appellant is discharged to the community because
the committal provisions under the
MHA
are available to effect the
return of the appellant to the hospital for assessment and admission.
[13]
We do not accept this argument. We acknowledge that the ease of
returning an individual to the hospital will not always justify a detention
order and cannot be imposed as a matter of convenience:
Valdez (Re)
,
2018 ONCA 657, at paras. 22-23. However, in our view, it was open to the Board to
find that the
MHA
was inadequate to manage the appellants risk.
Contrary to the appellants submissions, the Board did assess the evidentiary
record and did not rely solely on the ease of returning an individual to a
hospital to justify the detention order. The Board also noted that the
appellant does not recognize his decompensation, would not voluntarily return
to the hospital, and demonstrates a high risk of physical violence when he decompensates.
The Boards finding, that a conditional discharge would not ameliorate this
risk given the difficulty to quickly bringing the appellant back into hospital
under the
MHA
, must be read in this context.
[14]
For these reasons, the appeal was dismissed.
David M. Paciocco
J.A.
I.V.B. Nordheimer
J.A.
S. Coroza 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 complainants
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. Ajimotokan,
2021 ONCA 616
DATE: 20210913
DOCKET: C68557
Hoy, Trotter and Paciocco JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Samsuldeen Ajimotokan
Appellant
Samsuldeen Ajimotokan, acting in person
Philippe Cowle, for the respondent
Heard and released orally: September 9, 2021 by
video conference
On appeal from the conviction entered by Justice John B.
McMahon of the Superior Court of Justice on April 12, 2018, and from the
sentence imposed on October 2, 2019.
REASONS FOR DECISION
[1]
The appellant appeals his conviction for sexual assault, his designation
as a dangerous offender, and the imposition of an indeterminate sentence.
[2]
At trial there was no issue that the sexual interaction took place. Further,
in oral argument, trial counsel for the appellant conceded that the complainant
subjectively was not consenting to the sexual acts. The complainant testified
that she allowed the appellant to do the things he did as she had a subjective belief
she would be harmed if she resisted and she remained passive throughout.
[3]
The issue at trial was whether the Crown had proved that the defence of
honest, but mistaken belief, in communicated consent did not apply. The trial
judge was satisfied, beyond a reasonable doubt, that the defence did not apply.
[4]
On appeal, the appellant argues that the complainant was not credible
and that the complainant threw him under the bus.
[5]
The trial judge found the complainant to be credible and reliable, and
accepted that she remained passive throughout because of her fear. He provided
careful reasons for so finding. That finding is entitled to deference.
[6]
In any event, silence or passivity is not communicated consent. There
must be words spoken or conduct that demonstrates a willingness to engage in
sexual activity.
[7]
There is no basis for this court to interfere with the appellants
conviction.
[8]
As to the sentence appeal, the appellant submits that: the other sexual
assaults, of which he was previously convicted, were not related to this
incident; the fact that Dr. Pearce opined that he suffered from paraphilic coercive
disorder shows that Dr. Pearce was biased and his evidence should not have been
accepted; and the trial judges finding that he had not responded at all to
treatment in the past was not correct.
[9]
This was the appellants fourth sexual assault in less than five years.
Some of those offences occurred while he was on bail or parole. It does not
matter that the offences were discrete incidents.
[10]
The trial judge did not accept Dr. Pearces opinion that the appellant
suffered from paraphilic coercive disorder. The trial judge accepted the
evidence of both Dr. Pearce and the defence forensic psychiatrist, Dr. Rootenberg,
that the appellant suffered from unspecified personality disorder, with
antisocial and narcissistic personality traits. The sentence the trial judge
imposed was based on that diagnosis.
[11]
The trial judges finding that the accuseds sexual misconduct challenges
are intractable and he is unable to surmount them, even with the proposed
treatment plan was fully supported by the record.
[12]
The sentence imposed was reasonable and not tainted by error of law.
There is no basis for this court to interfere.
[13]
The appeal against conviction is dismissed. Leave to appeal sentence is
granted, but the appeal as to sentence is dismissed.
Alexandra Hoy J.A.
Gary Trotter J.A.
David M. Paciocco J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Anderson, 2021 ONCA 618
DATE: 20210913
DOCKET: C67987
Tulloch, van Rensburg and Nordheimer JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Carly Anderson
Appellant
Howard L. Krongold, for the appellant
Gavin MacDonald, for the respondent
Heard: September 8, 2021 by videoconference
On appeal from the sentence imposed on January 28, 2020 by
Justice Peter Doody of the Ontario Court of Justice.
REASONS FOR DECISION
[1]
Ms. Anderson seeks leave to appeal the sentence of six months imposed on
her, following her conviction for aggravated assault. At the conclusion of the
hearing, we granted leave to appeal and reduced the sentence to time served,
with reasons to follow. We now provide our reasons.
[2]
This was a case of what is commonly referred to as "road
rage". The appellant, who was 24 years old at the time, was driving on a
busy road in Ottawa on August 7, 2018. She cut off the car driven by the
complainant and abruptly stopped about three car lengths in front of her, causing
the complainant to apply her brakes and stop her car quickly.
[3]
The appellant got out of her car and began to move toward the
complainants car. The complainant, who was 66 years old, got out of her own
car and walked, with the support of a cane, towards the appellant. She came
very close to the appellant. The appellant pushed or shoved the complainant,
causing her to fall to the roadway. The complainant sustained injuries from the
fall that required hospitalization.
[4]
After the complainant fell to the ground, the appellant bent down towards
her. The appellant then got in her car and drove away. She turned herself in to
police the next day.
[5]
Appellate courts may interfere with a sentence if it is demonstrably
unfit or if the trial judge has committed an error in principle, failed to
consider a relevant factor, or erroneously considered aggravating or mitigating
factors, and such an error had an impact on the sentence:
R. v. Lacasse
,
2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 41, 43-44. In our view, the sentencing
judge erred in his reliance on the decision of this court in
R. v. Rocchetta
,
2016 ONCA 577 as the benchmark for his assessment of the appropriate sentence
to be imposed in this case. The two cases are not comparable. This error led
the sentencing judge to impose a harsher sentence than was warranted given the
surrounding circumstances.
[6]
In reaching that conclusion, we recognize that the complainant suffered
serious injuries, and we recognize that the altercation arose out of a road
rage situation. On that latter point, we agree with the sentiment that acts of
road rage must be denounced in clear and unmistakable terms.
[7]
However, achieving the objectives of general deterrence and denunciation
did not require a jail sentence of the length imposed by the sentencing judge,
given the particular circumstances of the appellant. In that regard, we emphasize
the appellants very troubled upbringing, the fact that the sentencing judge
had concluded, in his reasons for conviction, that two of the three factors in
support of self-defence were made out in this case, and the very positive
efforts that the appellant has made, since her conviction, to improve her life,
including her success at Algonquin College and her efforts to obtain
counselling.
[8]
We were advised that the appellant has spent 38 days in custody during
the course of these proceedings. In our view, that period of incarceration is
sufficient to drive home to the appellant, and to others, that instances of
road rage will be dealt with seriously. Further incarceration will not advance
the objectives of general deterrence and denunciation in this case. Those
objectives are achieved as much by the fact of incarceration as by the length
of that incarceration.
[9]
It is for these reasons that we granted leave to appeal and reduced the sentence
to time served. The two-year probation order along with the other ancillary
orders remain in effect.
M. Tulloch J.A.
K. van Rensburg J.A.
I.V.B. Nordheimer
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Forest Meadows Developments Inc.
v. Shahrasebi, 2021 ONCA 620
DATE: 20210914
DOCKET: C68789
Benotto, Brown and Harvison
Young JJ.A.
BETWEEN
Forest
Meadows Developments Inc.
Applicant (Appellant)
and
Narges Shahrasebi
Respondent (Respondent)
Mark A. Ross and Vladimira M. Ivanov,
for the appellant
Eddy Battiston and Harold Rosenberg,
for the respondent
Heard: September 9, 2021 by video conference
On
appeal from the judgment of Justice Jana Steele of the Superior Court of
Justice, dated September 3, 2020.
REASONS FOR DECISION
[1]
The appellant Forest Meadows Developments Inc. appeals the order by the
application judge dismissing its application for a declaration that the
respondent was in breach of an Agreement for Purchase and Sale (APS), which
was an agreement for the purchase and sale of land and a custom pre-built
dwelling on the land.
[2]
Briefly, the dispute arises out of the following circumstances.
The APS was signed in March 2017. It provided that the closing would take place
on March 25, 2018. Construction began in the fall of 2018. In 2019, there were
a number of extensions of the closing date occasioned by the appellant which
were contemplated by the APS. There was another extension to August 29, 2019,
which the application judge found to have been requested by the appellant in
return for a discount on certain upgrades. In May 2019, the parties executed an
amendment to the APS which extended the closing date to October 29, 2019. That
closing did not take place. The respondent argues that she was ready to close
on that date despite the fact that her house had not yet sold and that the
failure of the appellant to close on that date was a breach of the APS
entitling her to terminate the contract and receive back her deposit and all
monies paid. The discussions in the months leading up to October 29, 2019, were
attempts to negotiate a better price for the upgrades and possibly a price reduction.
[3]
The appellant argues that it had relied on the respondents
representations that she would not be able to close, slowing down construction
and preparation for the final appraisal, which would be necessary to close and
a prerequisite for the respondent to obtain the financing that had been
preapproved.
[4]
The appellant commenced this application arguing that the
respondent had made representations that she would not close on October 29
because her house was not selling at the price necessary to finance the
purchase of the new property, that she was in anticipatory breach, and that the
appellant was entitled to terminate the contract.
[5]
In dismissing the application, the application judge found that there
had been no anticipatory breach or representations that could have given rise
to reasonable reliance by the appellant.
[6]
All the issues raised by the appellant turn on one central
question of fact: did the respondent say or represent that she would not be
able to close on October 29, 2019? The application judge expressly found that
she did not. This finding of fact attracts a high level of deference and we see
no palpable or overriding error to justify the intervention of this court.
[7]
While the appellant also raises certain extricable issues of law,
such as whether the APS could be amended by subsequent representations or
conduct on the part of the respondent, these also depend on finding that the
representation that the respondent could not close on October 29 was actually
made.
[8]
The application judges findings were well grounded in the record before
her. She found that while the respondent had certainly communicated the
difficulty she was having selling her house for the price necessary, she had
never said that she would not be able to close on that date.
[9]
There is no basis to interfere with this key finding on the part
of the application judge. Without it, there was no representation that the
respondent would not be able to close, and the question of whether the
appellant reasonably relied does not arise. Nor can the question of whether an
oral contract or representations could amend the APS in light of the entire
agreement clause arise as the application judges finding was that there was no
agreement to extend the October 29 closing date, oral or otherwise.
[10]
We also find that there is no merit to the
argument that the application judge erred in failing to give weight to the
September 12 meeting between the respondent, her husband, and Mr. Tiz, a
representative of the appellant, which was surreptitiously recorded by the
appellant. She gave good reasons for so declining, namely, that there was ample
written correspondence between the parties and their counsel and that there was
clearly unfairness where the appellant knew they were taping the recording
while the respondent and her husband did not.
[11]
Lastly, the application judge gave clear reasons
for the findings of fact made.
[12]
The appeal is dismissed.
[13]
The appellant shall pay the respondent her partial indemnity
costs of the appeal fixed in the amount of $27,926, inclusive of disbursements
and applicable taxes.
M.L.
Benotto J.A.
David
Brown J.A.
A.
Harvison Young J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
James Henry Ting (Re), 2021 ONCA 622
DATE: 20210914
DOCKET:
M51957 (C68764)
Lauwers
J.A. (Motion Judge)
In
the Matter of the
Bankruptcy and Insolvency Act
,
R.S.C.
1985, c. B-3, as amended
And
in the Matter of a Proceeding in the Hong Kong Special
Administrative
Region Re: James Henry Ting (in Bankruptcy)
Application
of Cosimo Borrelli and Jacqueline Walsh of
Borrelli
Walsh Limited under Section 272 of the
Bankruptcy
and
Insolvency Act
, R.S.C., 1985, c. B-3, as amended
Andrew Rogerson and Arash Jazayeri, for
the moving party, Andrew Henry Ting
Ilan Ishai and Adam Zur, for the
responding parties, Cosimo Borrelli and Jacqueline Walsh
Heard: September 7, 2021 by video conference
REASONS
FOR DECISION
[1]
This is an
application for leave to appeal under
s. 193(e) of the
Bankruptcy and Insolvency Act
, R.S.C. 1985
, c. B-3, r. 31(2) of the
Bankruptcy
and Insolvency General Rules
,
C.R.C., c. 386,
and r.
61.03.1 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194
. The order sought
to be appealed found the applicant, Andrew Henry Ting, in contempt of court for
failing to attend at an examination as required by the order of Penny J. dated
January 15, 2019, in aid of the foreign bankruptcy of his father, James Henry
Ting. For the reasons that follow, the motion is dismissed.
The Factual Background
[2]
The background facts were set out by the motion judge who
dismissed Andrew Henry Tings request for a stay of the bankruptcy proceeding
dated October 5, 2020 (2020 ONSC 5955). The Superior Court recognized
the bankruptcy proceeding in Hong Kong against Andrew Henry Tings
father, James Henry Ting, as the foreign main proceeding" under s. 268 of
the
BIA
.
The recognition order was granted on October 6, 2017
and it recognized the Trustees as a foreign representative" under s. 268
of the
BIA.
[3]
On August 18, 2018, the Trustees moved to
enforce a letter of request from the Hong Kong Court requesting assistance to
require Andrew Henry Ting to be examined and to produce documents. Penny J.
made the requested order on January 15, 2019. The order required Andrew Henry
Ting to produce certain documents within 14 days and to attend at any
examination. He unsuccessfully attempted to appeal Penny J.s order to this
court.
[4]
The contempt proceeding that is the subject of
this proposed appeal (2020 ONSC 5976) was heard immediately after the
stay motion, and the reasons for both matters were issued on the same day.
The Motion for Leave to Appeal
[5]
The parties agree that the test for leave to
appeal under s. 193 (e) of the
BIA
was set out by Blair J.A. in
Business
Development Bank of Canada v. Pine Tree Resorts Inc.
, 2013 ONCA 282, 115
O.R. (3d) 617. The three-part test is whether: the proposed appeal raises an
issue that is of general importance to the practice in bankruptcy/insolvency
matters or to the administration of justice as a whole, and is one that the
court should therefore consider and address; it is
prima facie
meritorious;
and it would not unduly hinder the progress of the bankruptcy/insolvency
proceedings.
[6]
Andrew Henry Ting raises two substantive issues
to be pursued in the proposed appeal: the refused recusal motion; and personal
service of the contempt proceedings on him.
The Refused Recusal Motion
[7]
Andrew Henry Ting argues that the motion judge
erred in failing to recuse herself after hearing damning descriptions of the
conduct and character of the bankrupt, James Henry Ting, during argument.
Counsel for the Trustees referred to the bankrupt as a thief, and someone who
engaged in fraudulent and criminal activity and who demonstrated a
consistent pattern of disobedience. Counsel for Andrew Henry Ting expressed the
concern, as he did to the motion judge, that she would be unable to avoid
imputing his fathers alleged conduct and character to him.
[8]
To this suggestion, the motion judge responded:
[16] The basis for the responding partys
request for my recusal is his subjective view on how I could be influenced. He
perceives that what he sees as emotive language and exaggerations regarding the
Bankrupts character, which could deny him safeguards that would protect him
from wrongful conviction, could lead to an unfair result for him.
[17] In my view, no informed person, viewing
the matter realistically and practically, would conclude that a judge would
impute to the son a negative description of his fathers character, which is
irrelevant to the determination of the issue at hand. The issue to be
determined on the Contempt Motion is straightforward: is the responding party
in breach of the January 15, 2019 Order and if so, should he be found to be in
contempt? This question can be determined, objectively, on the record.
[9]
There is no merit to the suggestion that the
motion judge would be unable to disabuse herself of the prosecutors rhetorical
flourishes. We routinely expect this disposition from judges. The motion judge
properly instructed herself, and counsel raised nothing in her reasons to
suggest that she did not meet this expectation.
The Contempt Proceeding
[10]
The second substantive issue is whether the motion judge
erred in law at paras. 38-39 of her decision by dispensing with the
requirement of r. 60.11(2) that requires personal service on the alleged
contemnor and not by an alternative thereto, unless the court orders otherwise.
[11]
The parties agree that the test for civil
contempt was set by the Supreme Court in
Carey v. Laiken
, 2015 SCC 17,
[2015] 2 S.C.R. 79 at paras. 32-35. The
moving party must prove beyond a reasonable doubt that: a) the order alleged to
have been breached must state clearly and unequivocally what should and should
not be done; b) the party alleged to have breached the order must have had actual
knowledge of it; and c) the party allegedly in breach must have intentionally
done the act the order prohibits or intentionally failed to do the act the
order compels.
The governing precedent from this court on the issue of
personal service, which dovetails with the
Carey
test, is
Susin v.
Susin
, 2014 ONCA 733, 379 D.L.R. (4th) 308
per
Blair J.A. at
paras. 2832 and 3336. At para. 28, Blair J.A. noted:
Procedural protections on motions for civil
contempt are generally strictly enforced. This includes the requirement that
the materials be served personally on the party sought to be found in contempt:
see
Rules of Civil Procedure
, r. 60.11(2). However, procedural
protections that are meaningless in a particular case ought not to trump
substantive compliance where the purpose of personal service has been met in
the circumstances and there has been no substantial wrong or miscarriage of
justice.
[12]
In considering the
Carey
test, the
motion judge noted, at para. 32:
I am also satisfied that the second prong of
the test is met. The responding party had actual knowledge of the January 15, 2019
Order. Though the responding party may not have been served with the January
15, 2019 Order, actual knowledge may be inferred from the circumstances. The
responding partys counsel assisted in the drafting of the Order and consented
to its form and content.
[13]
She added, at para. 37: Further, based on the
email exchanges between counsel to the responding party and counsel to the
Trustees, I am satisfied that the responding party had no intention of
attending the examination, regardless of the pandemic.
[14]
Finally, the motion judge noted, at para. 39:
The Contempt Motion came to the attention of
the responding party
and he responded to it.
Rule
60.11 is aimed at ensuring that the alleged contemnor has notice of the
contempt proceeding. The rule does allow for an alternative to personal service
by court order. Such court order was not obtained, but I am satisfied that the
responding party had adequate notice of the Contempt Motion. [Emphasis added.]
[15]
The motion judge knew, as she noted in para. 40,
that the burden on the Trustees was to prove contempt beyond a reasonable
doubt. To paraphrase Blair J.A. in
Susin
, there was substantive
compliance here because the purpose of personal service has been met in the
circumstances and there has been no substantial wrong or miscarriage of
justice.
[16]
There is nothing in this matter that rises to
the level required for leave to be granted as specified in
Pine Tree
Resorts.
The proposed appeal does not raise an issue that is of general
importance to the practice in bankruptcy/insolvency matters nor to the administration
of justice as a whole, and is not one that the court should therefore consider
and address; there is no
prima facie
merit to the proposed appeal; and
giving leave to appeal in these circumstances would unduly hinder the progress
of the bankruptcy/insolvency proceedings.
[17]
It is time for this tiresome cat and mouse game
to end.
[18]
Costs to the responding parties in the agreed
amount of $7,500, inclusive of HST and disbursements.
P.
Lauwers J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
N. v. F., 2021
ONCA 614
DATE: 20210914
DOCKET:
C68926
Lauwers,
Hourigan and Brown JJ.A.
BETWEEN
N.
Applicant
(Respondent)
and
F.
Respondent
(Appellant)
Fareen L. Jamal, Fadwa Yehia and Edward
C. Conway, for the appellant
Bryan R.G. Smith, Lindsey Love-Forester
and Andrew Lokan, for the respondent
Estée Garfin and Hera Evans, for the
intervener Attorney General of Ontario
Caterina E. Tempesta and Sheena Scott,
for the intervener Office of the Childrens Lawyer
Heard: January 21, 2021 by video
conference
On appeal from the order of Justice
Clayton Conlan of the Superior Court of Justice, dated December 15, 2020, with
reasons reported at 2020 ONSC 7789.
Hourigan J.A.:
A.
introduction
[1]
Trial courts are frequently called upon to make
difficult decisions about the future care of children due to the break-up of
parental relationships. Trial judges are parachuted into a family, made privy
to its most intimate details, and charged with determining the best course for
the children's future in the face of the parents opposing viewpoints. On
appeal, considerable deference is paid to those decisions because trial judges
have the opportunity to observe first-hand both the witnesses and the family
dynamic. This case raises squarely the role of appellate courts in reviewing
family law decisions.
[2]
The underlying facts of the dispute are largely
uncontroverted. The parties have been married since February 2012 and lived
together in Dubai, the United Arab Emirates (UAE), for eight years. They have
two children who are under the age of five. In mid-2020, the appellant advised
the respondent that she intended to take the children to Milton, Ontario, for a
month-long trip to visit her parents. The respondent consented to the trip, and
the appellant purchased return airline tickets. However, within two weeks of
arriving in Canada, the appellant told the respondent of her unilateral
decision to not return to Dubai with the children.
[3]
The appellant took no steps in the Ontario
courts to determine the jurisdictional issue that arose regarding the custody
and access of the children. As a result, the respondent was forced to commence
legal proceedings, first in Dubai and then in Ontario. The matter proceeded to trial
in the Ontario Superior Court. The trial judge issued a 181-page decision
wherein he found that Ontario did not have jurisdiction and ordered the
children returned to the UAE.
[4]
In his comprehensive reasons for judgment, the
trial judge found that the appellant was not a credible witness and disbelieved
many of her claims about why the children should remain in Ontario. He also
concluded that the appellants expert on the law of the UAE actually supported
the respondents position on a critical legal issue i.e. that the courts in
Dubai looked at the best interests of the child in custody and access
matters. Further, the trial judge held that the appellants expert on the
childrens welfare was unable to opine on the issue of whether the children would
suffer serious harm if returned to Dubai without the appellant. All of these
findings were amply supported by the record and were open to the trial judge.
[5]
On appeal, the appellant invites us to retry the
case. However, she does not offer any persuasive reasons for why we should do
so, and cannot articulate any errors of law or palpable and overriding errors
of fact or mixed fact and law. Instead, she asserts that we should effectively
consider her case de novo and rule in her favour.
[6]
These reasons explain why I would decline to
interfere with the trial judges decision. When an appellate court trespasses
into the domain of a trial court and redoes its analysis, it runs the risk of
rendering a results-based decision. Such decisions do not serve the cause of
justice; they pervert it by creating uncertainty in the law for other similarly
situated parties. This concern is particularly acute in family law cases where
there may be sympathetic facts. Appellate courts must resist the temptation to
conduct what is essentially a second trial on appeal.
[7]
In my reasons, after briefly reviewing the facts
and issues in this appeal, I will first consider the appellants motion for
leave to tender fresh evidence, followed by the applicable standards of review.
My analysis will then be broken down into an assessment of whether the trial
judge erred in: (1) declining jurisdiction under s. 22 of the
Childrens
Law Reform Act
, R.S.O. 1990, c. C.12 (the
CLRA
); (2) declining
jurisdiction under s. 23 of the
CLRA
; (3) declining to exercise
parens
patriae
jurisdiction; and (4) making an order under s. 40 of the
CLRA
.
As I agree with the reasons of my colleague, Brown J.A., on the constitutional
grounds of appeal raised by the appellant, I will not consider those issues in
my reasons.
B.
facts
[8]
The appellant was born in Pakistan and
immigrated with her family to Canada in 2005 when she was 15 years old. She is
a Canadian citizen.
[9]
The respondent was born in Pakistan and is a
Pakistani national. He has lived in Dubai since January 2008, where he works as
an executive with a major international bank.
[10]
The parties were married in Pakistan in February
2012. The appellant joined the respondent in Dubai that same month, and the
parties resided there for the entirety of their marriage.
[11]
The parties daughter, Z., was born in Ontario
in November 2016 and is a Canadian citizen. Their son, E., was born in Dubai in
November 2019 and is also a Canadian citizen.
[12]
Neither the parties nor their children are UAE
nationals. The appellant has no independent right to reside in the UAE after
the parties' divorce. Under UAE law, the appellant has a one-year grace period
during which she can stay in the country without a residency permit.
[13]
Throughout the parties' eight-year marriage, the
appellant visited Ontario annually. On June 19, 2020, with the respondent's
permission, the appellant travelled to Ontario with Z. and E., intending to
visit her parents in Milton for one month. She purchased return airline tickets
and was supposed to be back in Dubai on or around July 19, 2020.
[14]
As noted, on or around July 2, 2020, the
appellant informed the respondent that she and the children would not return to
Dubai and that they would remain in Ontario. In September 2020, the appellant
cancelled Z.s enrollment in her Dubai school without the respondents
knowledge or consent. She subsequently enrolled Z. at an Ontario school.
[15]
The respondent commenced proceedings in the
Ontario Superior Court of Justice and sought an order under s. 40 of the
CLRA
,
returning the children to the UAE. The appellant responded by asking the court
to exercise its jurisdiction under ss. 22 or 23 of the
CLRA
and to
decide the matters of custody and access in her favour. She also raised a
constitutional issue with respect to the return order provision in s. 40(3) of
the
CLRA
.
[16]
Prior to trial, the respondent served a with
prejudice settlement offer that was disclosed to the trial judge. The terms of
that offer included: that the appellant would be the primary residential parent
and that major decisions would be decided jointly; that the respondent would
purchase a house in Dubai in the appellant's name to be held in trust for their
children; and that the respondent would secure a residency visa for the
appellant. If the appellant was not satisfied with the proposed custody and
support arrangements, the offer provided her with the alternative of pursuing
her remedies in a UAE court. Further, the offer specifically stated that its
terms could be incorporated into a s. 40 order under the
CLRA
.
[17]
The trial judge heard the evidence and
submissions of the parties over 11 days in November 2020. The Attorney General
of Ontario participated as an intervener on the appellants constitutional
application. Both the appellant and the respondent testified. The respondent
also called one of the parties mutual friends, their nanny, and Diana Hamade
(an expert on family law in Dubai) as witnesses on his behalf. The appellant
called another of their mutual friends, her mother, Elena Schildgen (an expert
on family law in Dubai), and Carol-Jane Parker (a psychotherapist), as
witnesses on her behalf.
[18]
The trial judge concluded that the respondent
was significantly more credible than the appellant. He also made the
following findings of fact:
·
The appellant has always been the primary
caregiver for the children.
·
The parties nanny helped a great deal with the
care of the children.
·
The parties never had an agreement or settled
intention to move to Canada.
·
But for trips abroad, the children have spent
their whole lives in Dubai.
[19]
With respect to the three expert witnesses, the
trial judge accepted all of the evidence of Ms. Hamade, some of the evidence of
Ms. Schildgen, and a limited amount of the evidence of Ms. Parker. He made the
following findings based on his consideration of the expert evidence:
·
A court in Dubai would determine custody by
making the best interests of the children its paramount consideration.
·
A court in Dubai would be able to incorporate,
approve, and enforce, as a valid order, the settlement proposed by the
respondent if agreed to by the appellant.
·
When infants are separated from their primary
caregiver, they can face adverse emotional and psychological impacts.
·
It is unknown whether the children in this case
would suffer serious harm from such potential adverse impacts.
[20]
Ultimately, the trial judge concluded that the
court could not assume jurisdiction over the parties dispute under ss. 22 or
23 of the
CLRA
. He also rejected the appellants argument that the
respondent had attorned to the jurisdiction of the Ontario courts.
[21]
Pursuant to s. 40 of the
CLRA
, the
trial judge was satisfied, on the balance of probabilities, that the children's
best interests would be served by their return to Dubai, with or without the
appellant, so that a court there could adjudicate the matters of custody,
access, and guardianship. He also found that the children had been wrongfully
retained in Ontario and that Dubai was their real home.
[22]
Despite the appellants request in her written
submissions, the trial judge declined to exercise the courts residual
parens
patriae
jurisdiction pursuant to s. 69 of the
CLRA
. He found that
it would be inexplicable to do so, given the findings and conclusions he had
already made in his reasons.
[23]
The trial judge distilled two main components to
the appellants constitutional argument: (1) that s. 40 is
ultra vires
the authority of Ontarios powers; and (2) that s. 40 contravenes various
protections afforded to the appellant and the children under the
Canadian
Charter of Rights and Freedoms
. He concluded that the vast weight of the
jurisprudence precluded him from finding in the appellants favour.
Accordingly, he dismissed the appellants constitutional challenge.
C.
issues
[24]
The issues raised on this appeal and my
conclusion on each issue may be summarized as follows:
(1) Should the proposed fresh evidence
be admitted?
No. The evidence sought to be tendered is of
little or no relevance to the issues in this proceeding, and in the case of one
of the documents, could have been available at trial if the appellant had acted
with reasonable diligence. Therefore, the appellant has failed to meet the test
for the admission of fresh evidence on appeal.
(2) What is the applicable standard of
review?
The jurisprudence establishes that significant
deference must be paid to family law decisions. It is not the role of appellate
courts to redo a trial judges analysis based on vague notions of what they
perceive to be a just result. When appellate courts stray from their mandate
and impermissibly interfere with lower court decisions, they run the risk of
rendering results-based rulings, which create uncertainty in the law.
(3) Did the trial judge err in
declining jurisdiction under s. 22 of the CLRA?
No, s. 22 does not apply. The trial judge
correctly found that s. 22(1)(a) does not ground jurisdiction because the
children were not living in Ontario with both parents since their arrival here
in June 2020. Further, the appellant failed to establish that all six
enumerated criteria are met under s. 22(1)(b).
(4) Did the trial judge err in
declining jurisdiction under s. 23 of the CLRA?
No. The trial judge carefully considered the
expert evidence regarding the law of UAE and made the correct decision about
its application in this case. He also reached conclusions available to him
regarding the respondents parenting plan and the issue of serious harm.
(5)
Did the trial judge err in
declining to exercise parens patriae jurisdiction?
The trial judge correctly applied the leading
authority on
parens patriae
jurisdiction and found no necessity for
the court to protect the children. There is no basis for appellate interference
with this highly discretionary judgment call.
(6)
Did the trial judge err in making
an order under s. 40 of the CLRA?
This issue was not raised in the Notice of
Appeal and was not argued by the appellant in her factum. Despite the fact the
Office of the Childrens Lawyer (OCL) raised the issue in its factum, it was
not properly before this court and I would decline to consider it.
D.
analysis
(1)
Fresh Evidence
[25]
The appellant seeks leave to file the following
fresh evidence: (1) an email from counsel for the respondent to counsel for the
appellant, dated December 18, 2020; (2) the affidavit of Sameh Abdou, an Arabic
language translator, sworn January 6, 2021; and (3) an email from counsel for
the appellant to counsel for the respondent, dated January 8, 2021. All of
these documents were created after the trial judge issued his reasons.
[26]
The law regarding the admission of fresh
evidence on appeal is well settled. In order to obtain leave to file such
evidence, the moving party must establish that the evidence: (a) is credible;
(b) could not have been obtained by reasonable diligence before the trial or
motion; and (c) would likely be conclusive of an issue on the appeal:
Ojeikere
v. Ojeikere
, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 48;
Palmer v.
The Queen
, [1980] 1 S.C.R. 759, at p. 775.
[27]
Where the welfare of a child is at stake, the
case law allows for a more flexible approach to the test. However, that
increased flexibility does not render all proffered fresh evidence admissible.
The factors listed in the test remain relevant:
H.E. v. M.M.
, 2015
ONCA 813, 393 D.L.R. (4th) 267, at paras. 71-72, leave to appeal refused,
[2016] S.C.C.A. No. 63.
[28]
In the email dated December 18, 2020, counsel
for the respondent advised counsel for the appellant that his client was likely
entitled to a significant costs award. He cautioned that the appellant should
not dissipate her assets. In the factum filed to support her fresh evidence
motion, the appellant says that this email is relevant because it demonstrates
the Fathers attempt to intimidate the Mother using financial threats.
[29]
It is difficult to conceive how this email could
meet the test for the admission of fresh evidence. If it were admitted, its
inclusion in the record would not be potentially conclusive on any issue in the
appeal. Instead, the email strikes me as the sort of communication that prudent
counsel would routinely send to protect a clients interest. Accordingly, it
has no relevance to this appeal.
[30]
The affidavit of Mr. Abdou is tendered to show
that the Arabic language has a means of expressing the term, best interests,
so the word, best, qualifies the word, interest. The appellant says Mr.
Abdous clarification is relevant because Ms. Hamade, the respondents expert
witness on UAE law, testified that the Arabic word for interest, being
maslahah
,
could not be combined with an Arabic word meaning, best, since
maslahah
already stood for the concept of best interest. The appellant submits that
she could not have foreseen this as an issue before trial as Ms. Hamade did not
include it in her written report.
[31]
Accepting for the moment that this evidence is
credible, I am not satisfied that leave should be granted for its admission. I
say this for two reasons. First, it could have been adduced through the
exercise of reasonable diligence. The respondent presented his case first, and
it would not have been difficult for the appellants counsel to raise the point
in cross-examination or to seek leave to file an expert report on the subject
at trial. Second, the experts on the law of the UAE were largely in agreement
about the role that best interests play in that countrys legal system.
Therefore, the affidavit would not be conclusive of any issue on the appeal.
[32]
In the email dated January 8, 2021, counsel for
the appellant wrote to counsel for the respondent seeking an update regarding
the Dubai proceedings initiated by the respondent. She sought, among other
things, copies of any orders made by the court and information on whether the
respondent had stayed the proceeding. In her factum filed on the fresh evidence
motion, the appellant argues that this email is relevant because courts in
Dubai often make obedience orders requiring the mother to return to the
household with a child (or children). The appellant submits that if the Dubai
courts did so in this case, it demonstrates the severe disability that the
Mother suffers under UAE law.
[33]
I would decline to grant leave to file this
evidence as I am not satisfied that it would be conclusive of any issue in the
proceeding. The actual evidence proposed to be tendered is a short email from
counsel for the appellant, asking the respondent a series of questions. The
email adds nothing to the court's analysis. Further, there is no evidence
before us indicating that the type of obedience orders referred to by the appellant
has been made against her.
[34]
For these reasons, I would decline to grant
leave to the appellant to file any of the proposed fresh evidence.
(2)
Standards of Review
[35]
At the outset of my analysis of the grounds of
appeal, it is necessary to consider the jurisprudence regarding the applicable
standards of review.
[36]
In
Hickey v. Hickey
, [1999] 2 S.C.R.
518, the Supreme Court considered the standard of review in family law cases
pertaining to support. LHeureux-Dubé J., writing for the court, stressed, at
para. 12, the public policy reasons that animate significant deference in the
review of such decisions:
[12] There are strong reasons for the
significant deference that must be given to trial judges in relation to support
orders. This standard of appellate review recognizes that the discretion
involved in making a support order is best exercised by the judge who has heard
the parties directly. It avoids giving parties an incentive to appeal judgments
and incur added expenses in the hope that the appeal court will have a
different appreciation of the relevant factors and evidence. This approach
promotes finality in family law litigation and recognizes the importance of the
appreciation of the facts by the trial judge. Though an appeal court must
intervene when there is a material error, a serious misapprehension of the
evidence, or an error in law, it is not entitled to overturn a support order
simply because it would have made a different decision or balanced the factors
differently.
[37]
The reasoning of LHeureux-Dubé J. was applied
in the context of a custody order in
Van de Perre v. Edwards
, 2001 SCC
60, [2001] 2 S.C.R. 1014. In that case, the court considered the finding of the
British Columbia Court of Appeal that the principles in
Hickey
do not
fully apply in custody cases and that appellate courts should be free to
reweigh the evidence on the grounds of protecting the best interests of a
child, even in the absence of a material error. Bastarache J. rejected this
approach, at para. 16:
[16] In the present case, the Court of Appeal
considered the decision of the trial judge and decided that it was within the
scope of review to examine all the evidence and determine whether the trial
judge weighed the evidence improperly. It is in reconsidering the evidence that
the Court of Appeal determined that the trial judge had made material errors.
As discussed above, this is not the proper method of appellate review. If the
Court of Appeal had followed the appropriate method, it would not have reconsidered
the evidence and found what it described as material errors in Warren J.s
decision. There was no scope for appellate intervention in this case.
[38]
In my view, the policy rationales that support
deference in the context of reviewing custody and support orders apply with
equal force to a consideration of whether an Ontario court should assume
jurisdiction or make a return order under the
CLRA
. The analysis of
those issues involves the application of evidence to a series of factors
identified in the legislation. Absent a legal error or a palpable and
overriding error of fact or mixed fact and law, it is not the place of an
appellate court to redo a lower courts analysis to achieve a result that it
deems to be in the best interests of the child.
[39]
Proper adherence to the standard of review helps
enforce a discipline in appellate courts that guards against the potential of
rendering results-based decisions, which do not adhere to the law and create
uncertainty for other similarly situated parties. This danger is particularly
pronounced in family cases where there may be sympathetic facts, and the
appellate court may have a different view on what it believes is the fairest
result.
[40]
In the present case, there is also an issue
regarding the proper interpretation of foreign law. The appropriate standard of
appellate review in Ontario on questions of foreign law is correctness:
Grayson
Consulting Inc. v. Lloyd
, 2019 ONCA 79, 144 O.R. (3d) 507, at para. 29.
[41]
In summary, the identification and faithful
application of the correct standard of review are vital in ensuring that
appellate courts do not stray from their proper role and enter the domain of
trial judges. When an appellate court moves beyond its function as an
error-correcting institution and engages in the determination of factual issues
and issues of mixed fact and law, the justice of the case is imperilled.
(3)
Section 22 of the
CLRA
[42]
The legislature has defined the circumstances in
which an Ontario court will assume jurisdiction for the purposes of making a
parenting or contact order in s. 22 of the
CLRA
. Before considering
that section, it is helpful to consider this courts guidance in
Ojeikere
regarding the public policy purposes underlying s. 22. Laskin J.A., writing for
the court, stated:
[13] All four provisions are found in Part III
of the
CLRA
. Section 19 sets out the overall purposes of Part III. In
substance, there are five purposes:
·
To ensure that custody and access applications
will be determined on the basis of the best interests of the children;
·
To avoid the concurrent exercise of jurisdiction
by tribunals in different places;
·
To provide that, save in exceptional
circumstances, an Ontario court will decline jurisdiction where custody and
access are more appropriately determined by a tribunal having jurisdiction in
another place with which the child has a closer connection;
·
To discourage the abduction of children as an
alternative to the determination of custody rights by due process; and
·
To provide for the more effective enforcement of
custody and access orders and for the recognition and enforcement of these
orders made outside Canada.
These general purposes set out in s. 19 must
guide the interpretation and application of ss. 22 and 23, the provisions in
issue on this appeal.
[
14
] The specific purposes
of s. 22 include deterring parties from shopping for a forum to decide their
custody dispute, and importantly, discouraging child abduction. See
Brooks
v. Brooks
(1998), 163 D.L.R. (4th) 715 (Ont. C.A.), at para. 22.
[
15
] Neither s. 22(1)(a) nor
s. 22(1)(b) is itself a best interests test neither provision asks the court
to consider the childs needs and circumstances as set out in s. 24(1) and the
catalogue of best interests considerations listed in s. 24(2)[.]
[
16
] But the policy behind
discouraging child abduction and requiring a summary return to habitual
residence does reflect the Legislatures overriding concern with a childs best
interests. Child abductions ordinarily harm children, undermine the important
goal of maximizing contact between a child and both parents, and often promote
a parents interests over that of the child. [Footnotes omitted.]
[43]
In considering whether Ontario may assume
jurisdiction to determine a parenting or contact order, the court will not
conduct a best interests analysis. Instead, it will focus on the specific
factors identified in s. 22 that allow it to exercise jurisdiction, while being
mindful of the public policy purposes underlying this part of the
CLRA
,
including the discouragement of international child abductions.
[44]
With that background in my mind, I move to a
consideration of s. 22, which provides:
Jurisdiction
22
(1)
A court shall only exercise its jurisdiction to make a parenting order or
contact order with respect to a child if,
(a)
the child is habitually resident in Ontario at the commencement of the
application for the order; or
(b)
the child is not habitually resident in Ontario, but the court is satisfied
that,
(i) the child is physically
present in Ontario at the commencement of the application for the order,
(ii) substantial evidence
concerning the best interests of the child is available in Ontario,
(iii) no application respecting
decision-making responsibility, parenting time or contact with respect to the
child is pending before an extra-provincial tribunal in another place where the
child is habitually resident,
(iv) no extra-provincial order
respecting decision-making responsibility, parenting time or contact with
respect to the child has been recognized by a court in Ontario,
(v) the child has a real and
substantial connection with Ontario, and
(vi) on the balance of
convenience, it is appropriate for jurisdiction to be exercised in Ontario.
Habitual residence
(2) A child is habitually resident
in the place where the child resided in whichever of the following
circumstances last occurred:
1. With both parents.
2. If the parents are living
separate and apart, with one parent under a separation agreement or with the
consent, implied consent or acquiescence of the other or under a court order.
3. With a person other than a
parent on a permanent basis for a significant period of time.
Abduction
(3) The removal or withholding of a
child without the consent of all persons having decision-making responsibility
with respect to the child does not alter the habitual residence of the child
unless there has been acquiescence or undue delay in commencing due process by
the person from whom the child is removed or withheld.
[45]
The appellant argued unsuccessfully at trial
that the court should assume jurisdiction under s. 22. The trial judge reasoned
that s. 22(1)(a) was inapplicable because the children had not been living in
Ontario with both of their parents since their arrival in June 2020. The
appellant does not challenge that finding on appeal.
[46]
The focus of the appellants submissions on this
ground of appeal is that the court erred in not assuming jurisdiction under s.
22(1)(b). To find jurisdiction under this subsection, the appellant had the
onus of establishing that all six enumerated criteria were met on a balance of
probabilities:
Wang v. Lin
, 2013 ONCA 33, 358 D.L.R. (4th) 452, at
para. 50. Her failure to meet her onus on any one of the factors prohibits her
from relying on this subsection.
[47]
The trial judge found that the appellant was
unable to establish the following four factors: (1) that substantial evidence
concerning the best interests of the children is available in Ontario; (2) that
there was no custody proceeding pending in another jurisdiction; (3) that the
children have a real and substantial connection to Ontario; and (4) that the
balance of convenience favours Ontario taking jurisdiction.
[48]
For the purposes of the appeal, I will only
consider the issue of whether there was substantial evidence in Ontario
concerning the best interests of the children, as required by s. 22(1)(b)(ii).
In reaching his conclusion that the appellant had not met her onus on this
point, the trial judge noted, among other things, that the children had only
lived in Ontario for six months, that neither the parties nor the children had
spent significant time in Ontario during the period from February 2012 to June
2020, and that nobody in Ontario testified except for [the appellant] and her
mother. These findings were well-grounded in the evidence and free of error.
They are immune from appellate interference.
[49]
Given that the criterion under s. 22(1)(b) are
cumulative, and that the appellant failed to prove the availability of
substantial evidence concerning the best interests of the children in Ontario,
this ground of appeal must fail. It is unnecessary to consider the appellants
other arguments under s. 22.
(4)
Section 23 of the
CLRA
[50]
Much of the argument on the appeal focussed on
the trial judges s. 23 analysis. That section provides:
Serious harm to child
23 Despite sections 22 and 41, a
court may exercise its jurisdiction to make or vary a parenting order or
contact order with respect to a child if,
(a)
the child is physically present in Ontario; and
(b) the
court is satisfied that the child would, on the balance of probabilities,
suffer serious harm if,
(i) the child remains with a
person legally entitled to decision-making responsibility with respect to the
child,
(ii) the child is returned to a person
legally entitled to decision-making responsibility with respect to the child,
or
(iii) the child is removed from
Ontario.
[51]
Since the parties children were physically
present in Ontario, s. 23(b) permitted the trial judge to exercise jurisdiction
over their custody or access if satisfied, on a balance of probabilities, that
the children would suffer serious harm should they be returned to Dubai.
[52]
A trial judges exercise of s. 23 is
discretionary. In
Ojeikere
, at para. 64, Laskin J.A. provided a list
of potentially relevant factors that a court could use to determine whether a
child will suffer serious harm. He considered: (1) the risk of physical harm;
(2) the risk of psychological harm; (3) the views of the children; and (4) the
mothers claim that she would not return to her home country, even if the
children were required to do so.
[53]
The trial judge characterized the appellants s.
23 argument as the most legitimately debatable point at trial. He applied the
factors identified in
Ojeikere
and found:
·
No evidence that the children were at risk of
being physically harmed if they returned to Dubai.
·
Some circumstantial evidence that the children
could be at risk of emotional and psychological harm if they returned to Dubai
without the appellant.
·
No evidence that the children had specific views
or preferences as to with whom or where they resided.
·
There was an absence of reliable evidence that
the court system in Dubai will do anything other than determine custody in
accordance with the best interests of the children if contested, award custody
to the appellant if contested, and approve the settlement proposal tendered by
the respondent if agreed to by the appellant.
[54]
The appellant submits that the trial judge erred
in his analysis of serious harm. Specifically, she says that he erred in his
consideration of: (a) her uncertain residential status in Dubai; (b) the
respondents proposed settlement offer and consent order; (c) the law of the
UAE that she says disadvantages her; (d) the adequacy of the respondents
parenting plan; and (e) the nature of the potential harm to the children.
[55]
My colleague, in his dissent, accepts the
appellants position on s. 23 and would accordingly allow the appeal. He finds
that the trial judge made a palpable and overriding error because he failed to
properly assess the harm of an involuntary separation of the children from the
appellant. Further, with regard to the nature of the harm, my colleague says
that the trial judge should have found a risk of serious harm despite the fact that
the appellants expert could not opine on the specific risk to Z. and E.
[56]
In this section of my reasons, I will explain
why I would not interfere with the trial judges conclusion on the issue of
serious harm. In short, the appellants submission amounts to an invitation to
reweigh the evidence and draw different conclusions than the trial judge did.
As discussed above, that would be an impermissible intrusion into the role of
the trial judge.
[57]
Below, I will consider each of the appellants
arguments with respect to the trial judges alleged errors in his s. 23
analysis. Before doing so, I note the following comments from Harvison Young J.
(as she then was) in
Bolla v. Swart
, 2017 ONSC 1488, 92 R.F.L. (7th)
362, regarding the context of s. 23 and its onus:
[37] The context of s. 23 is important to
understand. While this matter is not governed by the
Hague Convention
,
the principle underlying ss. 22 and 23 is similar: children should be protected
from the harmful effects of their wrongful removal from their habitual
residence, and their prompt return to the state of their habitual residence
should be ensured.
[38] This is the general rule. It reflects the
presumption that it is generally in the best interests of the child that issues
relating to custody and access be adjudicated in the jurisdiction where they
have habitually resided. For that reason, the parent who has removed or
wrongfully retained the children from their place of habitual residence has the
burden of establishing the serious harm that permits the Ontario court to
accept jurisdiction in such a case: see
Rajani v. Rajani
, 2007 CanLII
38126 (ON SC), at para. 90; and
Ndegwa v. Ndegwa
(2001), 20 R.F.L.
(5th) 118 (Ont. S.C.), at para. 30.
(a)
Residential Status
[58]
According to the appellant, the trial judge
erred in placing insufficient weight on the fact that the Mother has no
automatic legal right to reside in the UAE. This is one of the many examples
where the appellant is asking this court to reweigh the evidence, rather than
identifying an error that this court must correct.
[59]
Regardless, the trial judge considered the
evidence of the respondents expert on the law of the UAE, Ms. Hamade, and
determined that the appellant had various options available to her.
Specifically, the trial judge summarized Ms. Hamades evidence as being that
after the divorce, the appellant would be granted a one-year grace period
during which she could remain in Dubai without a residency permit. Ms. Hamade
testified that when the one-year period was over, the appellant could continue
to stay in the country through (1) sponsorship by her ex-husband, (2) the
purchase of a property, including a property held in trust, or (3) the use of a
"free zone," which involves the rental of an office.
[60]
On the issue of UAE law, the trial judge
preferred the evidence of Ms. Hamade over that of Ms. Schildgen. He explained
why he reached that conclusion, at paras. 295-297, as follows:
[295] Having conducted hundreds of hearings
over the last nine years, many of them with expert evidence, I must say that I
was very impressed with the evidence of Ms. Hamade.
[296] She was precise in her evidence. She did
not waver in her evidence. She was not impeached in cross-examination, except
in one instance where Mr. Conway put to her an opinion that she rendered in
another case; to which she replied, satisfactorily in my view, that there were
significant factual differences between that case and ours. She delivered her
evidence in a straightforward, unbiased, sharp, and articulate manner.
[297] Further, Ms. Hamade is very experienced
in family law (more so than Ms. Schildgen), and very experienced in the courts
in the United Arab Emirates (Ms. Schildgen is not), and fluent in the Arabic
language in which the original relevant legislation was written (Ms. Schildgen
is not), and intimately familiar with all aspects of N.s proposed settlement
agreement (dated October 30, 2020), including trusts (Ms. Schildgen is not).
[61]
An appeal court has limited scope to intervene
on a trial judges interpretation of expert evidence. Krever J.A., writing for
the court in
Larche v. Ontario
(1990), 75 D.L.R. (4th) 377 (Ont.
C.A.), leave to appeal refused, [1991] S.C.C.A. No. 25, described it this way:
[3] Before addressing the appellant's
submissions, two general points may usefully be made with respect to the issue
of liability of both the hospital and the architects. First, the submissions
relate to findings of fact with which this court can interfere only if the
appellant can show that they reflect palpable and overriding errors on the part
of the trial judge. Second, in general, the appellant's submissions seek to
have this court accept the opinions of expert witnesses that the trial judge
rejected and reject the opinions of expert witnesses that the trial judge
accepted. It would require the existence of extraordinary circumstances before
this court would do so, given the special position a trial judge is in who saw
and heard the witnesses and gave reasons for the findings made.
[62]
The trial judge accepted the evidence of Ms.
Hamade as he was entitled to do. Further, the respondent had agreed to
incorporate, as undertakings in a s. 40 order, the terms of his offer to
settle, which included securing a residency visa for the appellant. The trial
judge, in his reasons, invited appellants counsel to make further submissions
regarding the incorporation of the respondents settlement proposal in his
order. This direction was consistent with what the court did in
Bolla
,
where the order incorporated the undertakings given by the respondent father
regarding the return of the children:
Bolla
, at paras. 140-144. The
appellants lawyer rejected the offer and advised the court that his client did
not seek further direction from the trial judge.
[63]
Clearly, the trial judge was aware of the
concern associated with the appellants residency status, but he accepted the
evidence of Ms. Hamade that there were workable solutions to resolve the issue.
He even invited counsel to make submissions so that the solution could be
incorporated into his order. The appellant chose not to avail herself of that
opportunity. I fail to see any error in the trial judges treatment of this
issue. I disagree with my colleagues suggestion that the respondent has not
proven his ability to mitigate Mothers precarious residency status. That
reverses the onus, which was on the appellant to prove serious harm.
(b)
Settlement Offer and Consent Order
[64]
As noted, in his reasons, the trial judge
referenced the with prejudice settlement offer served by the respondent.
Based on the testimony of Ms. Hamade, he found that an agreement between the
parties could be incorporated into an order of a Dubai court and would be
enforceable by the court.
[65]
The appellant submits that the settlement offer
is disadvantageous to her because she faces the application of UAE law (which
is different from Ontario law), both in terms of enforcing the agreement and in
terms of contesting the agreement if she disagrees with the provisions. The
appellant also argues that the trial judge unreasonably assume[d] [that] there
will be no future disagreement regarding parenting issues and thereby fail[ed]
to assess the risk of
future
harm (emphasis in original).
[66]
The appellants concerns are not consistent with
the expert testimony. Ms. Hamade testified that the UAE courts respect
settlements and are happy to make them a part of binding court orders. She also
gave evidence that if a party wants to alter an agreement incorporated into an
order, they must show an impactful change of circumstances. According to Ms.
Hamade, the primary consideration on such an application will be the childrens
best interests. Ms. Schildgen, the appellants expert, also testified that any
dispute about changing the terms of an order would be resolved on the basis of
the childrens best interests.
[67]
The trial judge carefully considered the expert
evidence and reached the following findings, at paras. 301-305, regarding the
best interests of the children and the enforceability of a settlement
agreement:
[301] It is inconceivable that this Court
would find that Ms. Schildgens evidence supports a conclusion that (i) best
interests of the child does not trump all else in child custody law in Dubai,
or that (ii) settlement agreements like the one proposed by N. in this case are
not enforceable as valid court orders in Dubai.
[302] For this Court to draw either of those
conclusions in favour of the mother, this Court would have to cherry-pick to a
degree that is grotesque, and I concur with Mr. Conway that this Court should
avoid doing so. I would have to completely ignore the entire cross-examination
of Ms. Schildgen at trial, by finding, I suppose, that she must have been
confused or misspoke multiple times or something, and then I would have to
accept just the direct evidence of Ms. Schildgen, including her report, and
then finally I would have to reject entirely the evidence of Ms. Hamade.
[303] I decline to do so. I commend Ms.
Schildgen for being honest in cross-examination. I do not think that she was
confused at all. I appreciate her upholding her duties as an unbiased,
professional expert witness. She was being fair to this Court and non-partisan
to make sure that I was not left with the impression that best interests of
the child is a concept that means virtually nothing in Dubai. In fact, it
means everything.
[304] Let me be frank, with respect. The
cross-examination of Ms. Schildgen at trial eviscerated the very underpinning
of the mothers case (apart from the Constitutional question), that is that the
children cannot be returned to Dubai because this Court can have no confidence
that any decision made there regarding their welfare will be based, as the
paramount consideration, on their best interests. Ms. Schildgens evidence in
cross-examination points precisely to the opposite conclusion. [Emphasis in
original.]
[68]
Those very clear findings were made by the trial
judge, who had the opportunity to observe the testimony of the expert
witnesses. There is no legitimate basis for this court to interfere.
[69]
My colleague, in his dissent, takes a different
approach to the trial judges reliance on the settlement offer. He suggests
that the respondent could renege on his offer, and that consequently, there is
no guarantee the offer will find its way into a Dubai court order. According to
the dissent, the failure of the trial judge to consider this possibility was an
error that influenced his s. 23 analysis and gave him a false sense of security
regarding what would happen if the children returned to Dubai.
[70]
This criticism is unfounded. I do not doubt that
the trial judge recognized the potential risk of the respondent resiling from
his commitment and attempting to limit the appellants access to the children.
However, the context of the proceeding has to be considered.
[71]
Perhaps the one indisputable fact established on
the record was that the appellant, not the respondent, sought to limit access
to the children. The appellant unilaterally retained the children in Ontario,
and, according to the trial judge, in her draft final order, she proposed
anything but lots of access.
[72]
In contrast, there was nothing in the record to
suggest that the respondent was intent on limiting the appellants interaction
with the children. As a sign of his good faith, the respondent proposed
incorporating the terms of his settlement offer, which provided that the
appellant would be the primary residential parent for the children and that
major decisions would be decided jointly, into an Ontario court order. That
offer, which the trial judge was willing to incorporate into his s. 40 order,
was rejected by the appellant. Further, the trial judge made an explicit
finding that the respondent was credible and that the appellant was not.
[73]
It is also essential to consider whether this
type of analysis properly reflects the role of an appellate court in reviewing
a decision under s. 23 of the
CLRA
. There is no genuine legal or
factual error identified. Instead, the concern expressed by the appellant is
that the trial judge did not draw the same inference as my colleague would from
the evidence. With respect, that is not our role on appeal. Moreover, the
concern that my colleague expresses about the respondent possibly resiling from
his settlement offer is speculative.
(c)
UAE Law
[74]
The appellant submits that the trial judge erred
in his assessment of UAE law. She argues that he should not have relied solely
on Ms. Hamades evidence, which she says is contradicted by the plain wording
of the relevant UAE legislation, the
Personal Status Law No. 28
("PSL"). In addition, the appellant points to gender-based inequities
in the law, specifically that mothers can never be guardians under the PSL and
that when E. turns 11 and Z. turns 13, the appellant could potentially be
stripped of her role as custodian. The appellant ultimately asserts that since
the UAE law disadvantages her, and that a risk of harm to a primary caregiver
is [a] risk of harm to a child, the trial judges errors warrant appellate
intervention.
[75]
I would not give effect to these arguments. As
noted above, the expert evidence on the law of the UAE was carefully considered
by the trial judge. He explained why he preferred the evidence of Ms. Hamade
over the evidence of Ms. Schildgen.
[76]
Regarding the appellants complaint about the
trial judges alleged failure to account for the plain wording of the PSL, the
trial judge was permitted to accept Ms. Hamade's evidence that the legislation
is read with regard to the relevant jurisprudence interpreting the same. This
is hardly a novel concept in our domestic law, and it is unsurprising that the
UAE utilizes a similar approach to statutory interpretation. In my view, the
trial judge reached the correct conclusion on how to interpret the PSL, and
there is no basis for appellate interference.
[77]
I am also satisfied that the trial judge was
aware of the problematic aspects of UAE law and its inconsistencies with
Canadian values. However, the trial judge properly focussed on the issue before
him, being whether the application of UAE law would result in serious harm to
the children.
[78]
In his dissent, my colleague states that if UAE
law were applied, then the "appellant would not have the incidents of
custody contemplated by Ontario law, to the detriment of the children."
His concern appears to be that under UAE law, for the initial parenting
arrangements, the appellant will be appointed custodian, which amounts to
day-to-day custody, and the respondent will be granted guardianship, which
gives him big picture decision-making authority. According to my colleague,
this is detrimental to the children when compared to ss. 19 and 20 of the
CLRA
,
which emphasize the sharing of decision-making responsibility between both
parents.
[79]
It is worth reiterating at this juncture that
the role of the court under s. 23 is to determine whether the party invoking
the section has established, on a balance of probabilities, that a child will
suffer serious harm if an Ontario court does not assume jurisdiction. For the
law of the UAE to qualify as serious harm, that harm would have to be clearly
established on the evidence. It is not enough to point to differences in the
law and suggest that a parent may have different rights in a foreign
jurisdiction vis-à-vis Ontario. The serious harm test in s. 23 of the
CLRA
,
which was implemented to protect the safety of children, must not be reduced to
a means for Ontario courts to prefer this provinces system of justice over
those of foreign jurisdictions under the guise of child safety.
[80]
Under the law of the UAE, on the initial
determination of custody, the appellant would actually have an advantage over
her position than if this case were determined in Ontario. In Dubai, the usual
order would be that she is appointed custodian and thus granted primary
physical custody of the children and the power to make day-to-day decisions on
their behalf. It is true that the respondent would ordinarily be appointed as
guardian and given the power to make significant decisions. However, the trial
judge examined the nature of the parenting arrangements that would be put in
place if the parties were obliged to follow UAE law and did not come to an
agreement on how the children would be raised. Specifically, he examined the
rights of the appellant in that scenario and concluded, at para. 378, as
follows:
[378] I pause here to note that I disagree
with the submission that F. will be deprived of decision-making authority in
Dubai. I accept the evidence of both Ms. Hamade and Ms. Schildgen that F. will
be granted custody of the children in Dubai, and that means day to day care and
the decision-making authority that goes along with that. Further, I accept the
evidence of Ms. Hamade that the rights of the custodian are not subject to
those of the guardian. Besides, the fact that the guardian, N., is able to make
certain decisions about the children is of no consequence here, in terms of
prejudice to F., because the evidence demonstrates that things like education
and religion for Z. and E., including the place of schooling for Z., were not
subjects of dispute between the parties by the time that F. left with the
children in June 2020. There is simply no basis in the evidence at trial to
conclude that the custodial rights of F. in Dubai will be some illusory concept
that will not have any real meaning to it. I find otherwise.
[81]
It is evident from the foregoing that the trial
judge turned his mind to the nature of the parenting arrangement for this
family if the parties did not reach an agreement. He correctly concluded that
the appellant would have physical custody of the children and would make the
day-to-day decisions regarding their welfare. With respect to the respondent's
decision-making rights, the trial judge ascertained that in the circumstances
of this family, they would have limited impact, as the evidence indicated the
parties agreed on significant issues like schooling and religious instruction.
Further, as noted above, the trial judge understood that any changes after the
initial order for custody would be determined according to the children's best
interests.
[82]
In my view, the trial judge correctly concluded
that the application of UAE custody law would not harm the children. Those
conclusions were well-rooted in the evidence and open to him. Again, there is
no basis for appellate interference.
[83]
I also observe that if my colleagues analysis
were to be followed, the precedent established would be concerning. Such a
decision would send a message to parents living in the UAE that if they
unilaterally come to Ontario with their children, they will not be required by
the Ontario courts to send their children home. Instead, they can avoid the s.
22 analysis and reduce the s. 23 analysis to a question of whether they would
be subject to the law of the UAE. Thus, the underlying objective of the
CLRA
to reduce child abductions would be jettisoned in the wake of the rather
provincial view that unless Ontario law is applied, children will suffer
serious harm. As a matter of comity, public policy, and common sense, such a
precedent leaves much to be desired.
(d)
Respondents Parenting Plan
[84]
The appellant argues in her factum that the
respondent had the onus of establishing that no serious harm would result if he
became the primary caregiver for the children. No authority is cited for this
proposition, likely because it is incorrect. Section 23 puts the onus on the
appellant to establish, on a balance of probabilities, serious harm:
Bolla
,
at para. 38.
[85]
According to the appellant, the respondents
parenting plan was inadequate because he refused to significantly cut back on
his work schedule and because he indicated that he would rely on the assistance
of the nanny and his relatives to raise the children. It is difficult to
ascertain the error that the trial judge is alleged to have made. Presumably,
the appellant disagrees with the proposed plan and seeks this court's
concurrence with her opinion. That is not our role. In any event, I am also not
satisfied that the children would suffer any harm under the respondents
parenting plan.
(e)
Nature of Potential Harm
[86]
At trial, the appellant proposed to call a
psychotherapist, Carol-Jane Parker, to give expert evidence. The respondent
opposed qualifying Ms. Parker as an expert witness, and the trial judge
conducted a
voir dire
. He ruled that Ms. Parker could give expert
evidence on the issue of the potential impacts (emotional and psychological)
the children may face if they are separated from their primary caregiver. For
the purposes of her evidence, an infant was defined as being up to five years
of age. Thus, both children were considered infants.
[87]
The trial judge's analysis of Ms. Parker's
evidence is found at paras. 305-315 of his reasons:
[305] Finally, moving to Ms. Parker, I find
that her evidence is of limited assistance to this Court. Without hesitation, I
accept her evidence that infants can face serious negative effects from being
removed from their primary caregiver, but I knew that before Ms. Parker
testified. No trial judge needs expert evidence for that.
[306] I did need expert evidence on other
things, however, and Ms. Parker helped me greatly with those areas.
[307] In direct examination, Ms. Parker
testified that the research indicates potential negative consequences for
infants, generally, when they are separated from their primary caregiver:
cognitive impairment (such as reading difficulties), negativity, aggressive
behaviours, symptoms of borderline personality disorder, and difficulties
managing stress, included. I accept that evidence.
[308] Brain development in an infant is
impacted where there is a loss of consistency that the primary caregiver
provides, stated Ms. Parker in direct examination. I accept that evidence.
[309] In cross-examination, Mr. Smith read
from a professional resource that the quality of care and responsiveness of the
new (alternate) caregiver will impact how the child responds to the separation
from the primary caregiver; and Ms. Parker agreed with that statement. I accept
that evidence.
[310] Ms. Parker agreed in cross-examination
that the culture of the family in question affects the potential harm of
separating a child from the primary caregiver. I accept that evidence.
[311] In cross-examination, Ms. Parker stated
that there are two types of harm from the separation one is short-term
(crying, loneliness) and is usually resolved within months, and the other is
longer-term. Both types of harm can be ameliorated and treated through
counselling and professional help, and through continued contact with the
mother (whether in-person and/or online). I accept that evidence.
[312] Otherwise, I do not accept any of Ms.
Parkers evidence, whether given in direct examination or in cross-examination
at trial, as to what will likely happen with these two children, Z. and E., if
they are separated from F.
[313] In my view, Ms. Parkers evidence on the
voir dire
about not being able to express an opinion about these
children with any degree of certainty was not limited to an opinion about
attachment; it was in reference to any opinion at all. I have read the
transcript in question many times; there is no other reasonable interpretation
of the words used.
[314] My mid-trial ruling expressly permitted
Ms. Parker to provide evidence about these children specifically. She did
nothing wrong at trial in doing so. But the fact that she then said that her
opinions about these children are almost guarantees (my word; she said very
high degree of certainty and very certain) gives me great discomfort. It is
totally at odds with what she said during the
voir dire
.
[315] Thus, I cannot rely upon Ms. Parkers
opinion evidence when it comes to Z. and E
. [Emphasis in original.]
[88]
The trial judge applied his findings regarding
Ms. Parkers evidence in his consideration of whether the appellant had met her
onus of establishing serious harm. He accepted Ms. Parkers testimony as circumstantial
evidence that the children could be at risk of emotional or psychological harm
if separated from the appellant. However, the trial judge placed very little
weight on the appellant's testimony that she would not return to Dubai with
them. He believed that she was unhappy while there, but rejected her evidence
that she suffered religious discrimination and social isolation.
[89]
The appellant submits that the trial judge erred
in minimizing the risk of harm associated with separating a primary caregiver
from an infant. She also argues that the trial judge wrongly rejected the
evidence of Ms. Parker by subjecting it to a standard of certainty.
[90]
There are two points that need to be stressed
regarding Ms. Parker's evidence. First, Ms. Parker conceded on the
voir
dire
that she could not testify about the psychological impact of
separation on these children to any degree of certainty, without conducting an
assessment. Second, she accepted that several factors could lessen the risk of
harm and ameliorate such harm, including the family's culture, the quality of
care of the alternate caregiver, and the use of counselling services. These
points led the trial judge to discount Ms. Parkers trial evidence regarding
her high degree of certitude that the children would suffer harm.
[91]
Ultimately, the trial judge accepted Ms.
Parkers evidence, but in assessing its weight, concluded the evidence was not
specific enough for the appellant to prove, on a balance of probabilities, that
the children would suffer serious harm if separated from her. This was a
conclusion available to the trial judge. Ms. Parker herself testified that an
assessment was necessary to opine on the issue of serious harm, and admitted
that she had not conducted one. Ms. Parker also provided no analysis before the
trial judge on how various mitigating factors might impact the potential for
harm. Therefore, the trial judge concluded that Ms. Parkers evidence was
insufficient to meet the appellants onus about serious harm.
[92]
In his dissent, my colleague states that the
trial judge made a palpable and overriding error in analyzing Ms. Parker's
evidence. He holds that:
[a]n indefinite separation of two quite young
children, one under two years old and the other only four, from the parent who
has always been their primary caregiver, constitutes a risk of serious harm.
This finding can be reached without any expert evidence on the specific impact
such a separation is likely to have on Z. and E. in particular. A risk of
serious harm is established if the court is convinced on a balance of
probabilities that this separation will occur.
[93]
If my colleague is correct, then there was no
need for Ms. Parker to testify. Indeed, much of the evidence called at trial
was superfluous. According to his logic, to succeed on a s. 23 argument, all
that a primary caregiver needs to establish is: (1) that the children in issue
are under the age of five; (2) that they refuse to return the wrongfully
retained children to the childrens home jurisdiction; and (3) that they refuse
to return to the childrens home jurisdiction if the children are required to
go back there.
[94]
This logic is problematic for several reasons.
First, it encourages child abductions, contrary to one of the public policy
purposes underlying the
CLRA
. Second, it calls for an analysis that
focuses solely on the preferences of the custodial parent and not on the best
interests of the children. Third, it uncritically accepts that there will be
serious harm regardless of the circumstances in a particular case, which are
ignored entirely. Fourth, it comes dangerously close to reviving the
long-discredited tender years' doctrine. Fifth, it replaces the discretion to
be exercised by the trial judge with a hard-and-fast rule.
[95]
The trial judge considered the expert and lay
evidence regarding serious harm and applied it to the facts of this case. He
reached an available conclusion on the evidence. The role of this court is not
to redo that analysis or to replace it with a non-discretionary rule that must
be followed when there are cases involving the wrongful retention of infants.
(f)
Parens Patriae
Jurisdiction
[96]
The trial judge declined to exercise
parens
patriae
jurisdiction. In so doing, he relied on
E. (Mrs.) v. Eve
,
[1986] 2 S.C.R. 388, the leading case on the issue. There, the Supreme Court
held, at p. 426, that
parens patriae
jurisdiction is founded on
necessity, namely the need to act for the protection of those who cannot care
for themselves.
[97]
In the case at bar, the trial judge was not
satisfied that necessity had been established. The trial judges decision was
highly discretionary and is owed deference:
Eve
, at p. 427;
Pellerin
v. Dingwall
, 2018 BCCA 110, 7 B.C.L.R. (6th) 314, at para. 38. As the
appellant has not shown any error in the trial judges decision to decline
parens
patriae
jurisdiction, I would dismiss this ground of appeal.
(g)
Section 40 Order
[98]
The OCL, which was granted intervenor status on
the appeal, submits that in making a s. 40 order, a court must consider the
best interests of the child (or children) who would be the subject(s) of the
order. This issue was not raised in the Notice of Appeal or addressed in the
appellants factum. It is not properly before this court, and I would decline
to consider it.
E.
disposition
[99]
For the foregoing reasons, I would dismiss the
motion for leave to file the fresh evidence and dismiss the appeal.
[100]
Regarding the costs of the appeal, the parties may make brief
written submissions of no more than five pages plus a bill of costs. The
respondents submissions are due within 14 days of the release of these
reasons. The appellants submissions are due within 14 days of the receipt of the
respondent's submissions.
C.W.
Hourigan J.A.
Brown J.A. (Concurring)
I.
OVERVIEW
[101]
I concur with my colleague, Hourigan J.A., and agree with his
proposed disposition of this appeal. These reasons supplement his by dealing
with the constitutional grounds of appeal advanced by the appellant mother, F.
[102]
The mother asserts two types of constitutional claims. The first is
a division of powers claim, in which she contends that s. 40(3) of the
Childrens
Law Reform Act
, R.S.O. 1990, c. C.12 (
CLRA
), is
ultra vires
the Province of Ontario. Her second claim is based on the
Canadian Charter
of Rights and Freedoms
: namely, that by authorizing an order that directed
the two children return to Dubai where the issue of custody would be
determined,
CLRA
s. 40(3) infringed her rights guaranteed by ss. 2(a),
7, and 15 of the
Charter
and infringed those of the children under ss.
2(a), 6(1), 7, and 15.
[103]
The trial judge rejected both claims. The mother appeals,
essentially repeating the arguments she made below. For the reasons that
follow, I would not give effect to her arguments.
II.
DIVISION OF POWERS ISSUE
A.
DECISION OF THE TRIAL JUDGE
[104]
In her Fresh as Amended Answer, the mother seeks [a] declaration
that state-action directly or indirectly requiring the removal of an individual
from Ontario, pursuant to section 40(3) of the
Childrens Law Reform Act
(
CLRA
) is
ultra vires
the Province of Ontario. The mother
argues that
CLRA
s. 40(3) is
ultra vires
Ontario because all
acts of removal of a person from Canada are tantamount to a deportation, which
lies within the exclusive legislative power of Parliament.
[105]
In considering that submission, the trial judge, citing
Canadian
Western Bank v. Alberta
, 2007 SCC 22, [2007] 2 S.C.R. 3, at paras. 25-29,
recognized that he must ascertain the pith and substance, or the true nature,
of
CLRA
s. 40(3). He observed the Supreme Court held in
Office of
the Childrens Lawyer v. Balev
, 2018 SCC 16, [2018] 1 S.C.R. 398, at
paras. 23-25, that a return order made under
CLRA
s. 40(3) is not a
custody order. He rejected the mothers submission that that characterization
applies only to cases where the foreign country is a signatory to the
Convention
on the Civil Aspects of International Child Abduction
, 25 October 1980,
Can. T.S. 1983 No. 35 (entered into force 1 December 1983) (
Hague
Convention
), holding that the rationale applies equally to orders made to
return a child to a non-
Hague Convention
country.
[106]
The trial judge held that
CLRA
s. 40(3) is all about the
return of children to a place (in this case, Dubai) that they are most closely
connected to, for a determination of custody issues in that place, provided no
serious harm will result (which I have found to be the case here). The trial
judge adopted the analysis in
Kovacs v. Kovacs
(2002), 59 O.R. (3d)
671 (S.C.), which he read as holding that
CLRA
s. 40 falls within
provincial legislative authority.
B.
ISSUE ON APPEAL
[107]
The mother submits that the matter of
CLRA
s. 40(3) is
the removal of a citizen from Canada, which falls within exclusive federal
jurisdiction. To support her position, she relies heavily on the dissent of
Kellock J. in the decision of the Supreme Court of Canada in
McKee v. McKee
,
[1950] S.C.R. 700 (
McKee (SCC)
),
revd [1951] 2 D.L.R. 657
(P.C.) (
McKee (JCPC)
).
[108]
On his part, the respondent father, N., argues that in its pith and
substance
CLRA
s. 40(3) concerns a matter of child welfare and family
law, which falls within provincial jurisdiction:
R. v. S. (S.)
, [1990]
2 S.C.R. 254. The intervenor, the Attorney General of Ontario (AGO), supports
the fathers submission.
[109]
My analysis shall proceed as follows. First, I will summarize the
principles governing the pith and substance analysis required to determine
whether legislation falls within the constitutional competence of the federal
or a provincial government. Second, I will characterize the matter of
CLRA
s. 40(3). In the course of so doing, I will describe the statutory scheme in
which
CLRA
s. 40(3) is embedded, examine the purpose of a return
order, and consider the mothers submissions regarding the
McKee
case.
Finally, I will classify the matter of
CLRA
s. 40(3) for purposes of
determining whether the provision falls within the legislative competence of
Ontario.
C.
THE PRINCIPLES GOVERNING A PITH AND SUBSTANCE
ANALYSIS
[110]
Although early Canadian constitutional decisions by the Judicial
Committee of the Privy Council applied a rigid division of federal-provincial
powers as watertight compartments, subsequent Supreme Court jurisprudence has
favoured a flexible view of federalism the so-called modern form of
cooperative federalism:
References re Greenhouse Gas Pollution Pricing Act
,
2021 SCC 11, 455 D.L.R. (4th) 1, at para. 50. Canadian federalism jurisprudence
supports the principle that a subject matter can have both federal and
provincial aspects and, in such a case, the double aspect doctrine permits a
province to legislate in pursuit of a valid provincial objective and Parliament
to do the same in pursuit of a separate federal objective:
Reference re Pan
‑
Canadian Securities Regulation
, 2018
SCC 48, [2018] 3 S.C.R. 189, at para. 114.
[111]
One reason Canadian constitutional jurisprudence uses such a
flexible approach lies in the practical difficulty in identifying the matter
of a statute. The late Professor Peter W. Hogg described the problem in the
following way in
Constitutional Law of Canada
, 5th ed. (Toronto:
Thomson Reuters, 2007), at §15.5(a):
The difficulty in identifying the matter of
a statute is that many statutes have one feature (or aspect) which comes within
a provincial head of power and another which comes within a federal head of
power. Clearly, the selection of one or the other feature as the matter of
the statute will dispose of the case; equally clearly, the court in making its
selection will be conscious of the ultimate result which is thereby dictated.
... How does the court make the crucial choice? Logic offers no solution: the
law has both the relevant qualities and there is no logical basis for
preferring one over the other. What the courts do in cases of this kind is to
make a judgment as to which is the most important feature of the law and to characterize
the law by that feature: that dominant feature is the pith and substance or
matter of the law; the other feature is merely incidental, irrelevant for
constitutional purposes. [Footnote omitted.]
[112]
In the
Greenhouse Gas References
, the majority of the
Supreme Court detailed the elements of this approach, at paras. 51-56:
(i)
At the first stage of the division of powers
analysis, a court must consider the purpose and effects of the challenged
statute or provision in order to identify its pith and substance, true
subject matter, or what the law in fact is all about. The court does so with
a view to identifying the statutes or provisions main thrust, or dominant or
most important characteristic;
(ii)
The pith and substance of a challenged statute
or provision must be described as precisely as possible, but precision should
not be confused with narrowness. Instead, the pith and substance of a
challenged statute or provision should capture the laws essential character in
terms that are as precise as the law will allow;
(iii)
It is permissible in some circumstances for a
court to include the legislative choice of means in the definition of a
statutes pith and substance, as long as it does not lose sight of the fact
that the goal of the analysis is to identify the true subject matter of the
challenged statute or provision;
(iv)
To determine the purpose of the challenged
statute or provision, the court can consider both intrinsic evidence, such as
the legislations preamble or purpose clauses, and extrinsic evidence, such as
Hansard records or minutes of parliamentary committees;
(v)
In considering the effects of the challenged
legislation, the court can consider both the legal effects those that flow
directly from the provisions of the statute itself and the practical effects,
the side effects that flow from the application of the statute;
(vi)
The characterization process is not technical or
formalistic. A court can look at the background and circumstances of a
statutes enactment as well as at the words used in it; and
(vii)
Finally, the characterization and classification stages of the
division of powers analysis must be kept distinct. The pith and substance of a
statute or a provision must be identified without regard to the heads of
legislative competence.
D.
THE CHARACTERIZATION OF THE MATTER
[113]
What, then, are the purpose and effects of
CLRA
s. 40(3):
its pith and substance or true subject matter? What is the provisions main
thrust, or dominant or most important characteristic? What is the section all
about?
The statutory scheme in which
CLRA
s. 40(3) is embedded
[114]
Section 40 falls within Part III of the
CLRA
, which deals
with decision-making responsibility, parenting time, contact, and guardianship,
the first three items being the new statutory labels for what used to be called
custody and access. The purposes of Part III are set out in
CLRA
s. 19
which, to repeat what is set out in para. 42 above, states:
19 The purposes of this Part are,
(a) to ensure that applications to
the courts respecting decision-making responsibility, parenting time, contact
and guardianship with respect to children will be determined on the basis of
the best interests of the children;
(b) to recognize that the concurrent
exercise of jurisdiction by judicial tribunals of more than one province,
territory or state in relation to the determination of decision-making
responsibility with respect to the same child ought to be avoided, and to make
provision so that the courts of Ontario will, unless there are exceptional
circumstances, refrain from exercising or decline jurisdiction in cases where
it is more appropriate for the matter to be determined by a tribunal having
jurisdiction in another place with which the child has a closer connection;
(c) to discourage the abduction of
children as an alternative to the determination of decision-making
responsibility by due process; and
(d) to provide for the more
effective enforcement of parenting orders and contact orders, and for the
recognition and enforcement of orders made outside Ontario that grant
decision-making responsibility, parenting time or contact with respect to a
child.
[115]
Part III legislates with respect to a broad range of issues relating
to the making of parenting and contact orders. Some of its provisions address
whether an Ontario court can or should exercise jurisdiction to make a
parenting or contact order (ss. 22, 23, and 25). Others concern the making,
enforcement, and variation of parenting or contact orders, including the
statutory requirement only to take into account the best interests of the child
when making a parenting or contact order (s. 24). Yet other sections deal with
extra-provincial matters.
[116]
The provisions collected under the heading
Decision-Making
Responsibility, Parenting Time and Contact Extra-Provincial Matters
(ss.
40 to 46) provide two mechanisms by which to achieve the purposes enunciated in
s. 19 specifically, those of discouraging child abduction and refraining from
exercising jurisdiction in cases where it is more appropriate for the matter to
be determined by a tribunal having jurisdiction in a place other than Ontario
with which the child has a closer connection.
[117]
The first mechanism is the incorporation of the provisions of the
Hague
Convention
into the law of Ontario:
CLRA
, s. 46(2). Under the
Hague
Convention
, where a child has been wrongfully removed from a contracting
state and brought to Ontario by one parent, the other parent may apply for the
return of the child to the contracting state:
CLRA
, s. 46(5);
Hague
Convention
arts. 3, 12, 29. Where certain conditions are satisfied and
certain exceptions do not apply, Article 12 requires a court to order forthwith
the return of a child who has been wrongfully removed or retained.
[118]
The second mechanism involves
CLRA
s. 40 which states:
Interim powers of court
40 Upon application, a court,
(a) that is satisfied that a child has been
wrongfully removed to or is being wrongfully retained in Ontario; or
(b) that may not exercise jurisdiction under
section 22 or that has declined jurisdiction under section 25 or 42,
may do any one or more of the following:
1. Make such interim parenting order or contact
order as the court considers is in the best interests of the child.
2. Stay the application subject to,
i. the condition that
a party to the application promptly commence a similar proceeding before an
extra-provincial tribunal, or
ii. such other conditions
as the court considers appropriate.
3. Order a party to return the child to such place
as the court considers appropriate and, in the discretion of the court, order
payment of the cost of the reasonable travel and other expenses of the child
and any parties to or witnesses at the hearing of the application.
[119]
Section 40 applies to both domestic and international situations:
where a child has been wrongfully removed to Ontario from another jurisdiction
in Canada and where a child has been wrongfully removed from a state that is
not a contracting party to the
Hague Convention
and brought to Ontario.
[120]
In
Geliedan v. Rawdah
, 2020 ONCA 254, 446 D.L.R. (4th) 440,
leave to appeal refused, [2020] S.C.C.A. No. 193, this court observed, at
paras. 34 and 69, that a court is able to exercise a broader range of
discretionary powers under
CLRA
s. 40 than under the
Hague
Convention
.
CLRA
s. 40(3) sets out one such power; it authorizes a
court to order a party to return the child to such place as the court considers
appropriate if the court is satisfied that a child has been wrongfully removed
to or is being wrongfully retained in Ontario. Section 40(3) is the target of
the mothers constitutional challenges in this case.
[121]
The different procedures under the
Hague Convention
and
provincial legislation, such as
CLRA
s. 40, for securing the return of
a child wrongfully removed or retained operate independently of each other:
Thomson
v. Thomson
, [1994] 3 S.C.R. 551, at p. 603;
Geliedan
, at paras.
30-33. Nevertheless, as a practical matter, where the provisions of provincial
legislation such as
CLRA
s. 40, are engaged, [it] may not be improper
to look at the Convention in determining the attitude that should be taken by
the courts, since the legislature's adoption of the Convention is indicative of
the legislature's judgment that international child custody disputes are best
resolved by returning the child to its habitual place of residence:
Thomson
,
p. 603.
The purpose of a return order
[122]
The purpose of a return order under the
Hague Convention
has
been described by the Supreme Court in two cases:
Thomson
and
Balev
.
[123]
In
Thomson
, the court stated that the
Hague Convention
seeks to enforce custody rights and protect children internationally from the
harmful effects of their wrongful removal or retention by providing procedures
to return children promptly to the situation they were in immediately before
their wrongful removal:
Thomson
, at pp. 578-79. The harm that the
Hague
Convention
seeks to prevent was also summarized in
Balev
, at para.
23:
The harms the
Hague Convention
seeks to
remedy are evident. International child abductions have serious consequences
for the children abducted and the parents left behind. The children are removed
from their home environments and often from contact with the other parents.
They may be transplanted into a culture with which they have no prior ties,
with different social structures, school systems, and sometimes languages.
Dueling custody battles waged in different countries may follow, delaying
resolution of custody issues. None of this is good for children or parents.
[124]
The harms to a child from a wrongful removal or retention were
further described by this court in
Ojeikere v. Ojeikere
, 2018 ONCA
372, 140 O.R. (3d) 561, at para. 16: Child abductions ordinarily harm
children, undermine the important goal of maximizing contact between a child
and both parents, and often promote a parents interests over that of the
child: see also,
M.A.A. v. D.E.M.E.
, 2020 ONCA 486, 152 O.R. (3d) 81,
at para. 38, leave to appeal refused, [2020] S.C.C.A. No. 402.
[125]
In
Balev
, the court stated that the prompt return of
wrongfully removed or retained children serves three purposes: (i) it protects
against the harmful effects of wrongful removal or retention; (ii) it deters
parents from abducting the child in the hope that they will be able to
establish links in a new country that might ultimately award them custody;
(iii) finally, it is aimed at speedy adjudication of the merits of a custody or
access dispute in the forum of a child's habitual residence, eliminating
disputes about the proper forum for resolution of custody and access issues: at
paras. 25-27.
[126]
Against this background, the court in
Balev
went on to
describe, at para. 24, the nature of a return order made under the
Hague
Convention
:
The return order is not a custody
determination: Article 19. It is simply an order designed to restore the
status
quo
which existed before the wrongful removal or retention, and to deprive
the wrongful parent of any advantage that might otherwise be gained by the
abduction. Its purpose is to return the child to the jurisdiction which is most
appropriate for the determination of custody and access.
[127]
A return order made under
CLRA
s. 40(3) shares the same
purpose as one made under the
Hague Convention
. The Preamble of the
Hague
Convention
and
CLRA
s. 19 display a commonality of purpose. The
Preamble expresses the desire to protect children internationally from the
harmful effects of their wrongful removal or retention and to establish
procedures to ensure their prompt return to the state of their habitual
residence. On its part, s. 19 of the
CLRA
seeks to discourage the
abduction of children as an alternative to the determination of decision-making
responsibility by due process and to ensure Ontario courts refrain from exercising
jurisdiction where a more appropriate forum exists in which to determine
decision-making responsibility.
[128]
In
M.A.A.
, this court recognized the commonality of purpose
of return orders made under the
Hague Convention
and
CLRA
s.
40, stating, at para. 38: With respect to non-signatory countries, the
CLRA
applies and reflects the
Hague Convention
s goals of discouraging child
abductions by confining Ontario jurisdiction over custody to limited
circumstances.
[129]
In
Kovacs
, a
Hague Convention
case, Ferrier J. noted
the common purposes of the return provisions under the Convention and the
CLRA
,
stating, at paras. 140-41, that in making an order that a child be returned to
its habitual residence without a determination of the custody issue, [the
court] is making an order considered to be in the best interests of the welfare
of the child, a jurisdiction that clearly is one of provincial power. See
also:
Bolla v. Swart
, 2017 ONSC 1488, 92 R.F.L. (7th) 362, at para.
37, quoted above at para. 57.
[130]
This commonality of purpose was also recognized by Professor
Nicholas Bala in his article,
O.C.L. v. Balev
: Not an Evisceration
of the
Hague Convention
and the International Custody Jurisdiction of
the
CLRA
(2019), 38 Can Fam LQ 301, at p. 308:
Provincial legislation like Ontario's
Children's
Law Reform Act
adopts a statutory regime for enforcement of custody rights
of parents from non-
Hague
countries that is based on the same basic
principles and concepts as apply when there is a wrongful removal or retention
of a child to Ontario from a
Hague Convention
country. Like the
Hague
Convention
, the
CLRA
is intended to discourage forum shopping and
deter international abduction of children, and to avoid exercise of concurrent
jurisdiction by Ontario courts where courts of another state have a closer
connection to the child.
[131]
Accordingly, the nature and purpose of a return order made under
CLRA
s. 40(3) is the same as one made under the
Hague Convention
: to protect
a child from the harmful effects of their wrongful removal or retention and to
return a child wrongfully removed or retained to the jurisdiction which is most
appropriate for the determination of custody and access.
The effects of a return order
[132]
The mother submits that since a return order can operate to remove a
child from Ontario and return him or her to a foreign jurisdiction, the effect
of the order is akin to that of a deportation order, in respect of which
Parliament has the exclusive power to legislate. I am not persuaded by this
submission. A laws legal effects are discerned from its provisions by asking
how the legislation as a whole affects the rights and liabilities of those subject
to its terms:
Greenhouse Gas References
, at para. 70 (citation
omitted). The mothers argument ignores the larger statutory scheme in which
CLRA
s. 40(3) operates.
[133]
Certainly, the effect of a
CLRA
s. 40(3) return order is to
remove a child from Ontario. And certainly the means of ordering the return
of a child is central to the operation of
CLRA
s. 40(3).
[134]
But, the power of a court to order the return of a child under s.
40(3) is one of several means made available to a court under s. 40, and Part
III more broadly, to right a wrong the wrong consisting of the wrongful
removal to or retention of a child in Ontario.
[135]
As this court stated in
Geliedan
, at para. 77, the
legislative purposes set out in
CLRA
s. 19 inform the exercise of the
discretion authorized by s. 40. A return order made under
CLRA
s.
40(3) seeks to achieve the purposes of Part III of the
CLRA
in several
respects.
[136]
First, s. 40(3) offers a practical way to thwart unilateral efforts
by one parent to change existing custody/decision-making arrangements.
CLRA
s. 40(3) echoes the good sought by a return order under the
Hague
Convention
namely, that a wrongful removal often harms a child and it is
in the interests of the child to have custody issues determined by the place
with the closest connection to the child. The nature of the remedy granted by
s. 40(3) the return of a child from Ontario to another jurisdiction
reflects the nature of the wrong committed by one parent: the wrongful removal
of the child to Ontario. If an Ontario court cannot order the good of a
childs return to alleviate the harm of his or her wrongful removal, then
Ontario risks becoming a haven for child abductors, hardly a constitutionally
worthy goal.
[137]
Relatedly,
CLRA
s. 40(3) seeks to preserve the
status
quo
regarding the respective custody rights of the childs parents and
provides a mechanism to return a child to the place most appropriate for the
determination of the parental custody issues, a good which is also in the
childs best interests.
[138]
Further, the making of a return order under s. 40(3) is the
culmination of a judicial inquiry into the interests of a child who has been
wrongfully removed to and retained in Ontario. As a practical matter, the
provisions of s. 40, including s. 40(3), must be read and understood in the
context of the larger statutory scheme that includes
CLRA
ss. 22 and
23. That is because typically non-
Hague Convention
proceedings for the
return of a child to another country involve competing legal claims by the
parents, with one seeking the return of the child and the other usually seeking
a custody order: see, for example,
Ojeikere
;
M.A.A.
[1]
Such competing claims bring
into play the issue of whether the Ontario court has the jurisdiction to make a
parenting order under
CLRA
ss. 22(1) or 23. While, broadly speaking,
the factors enumerated in
CLRA
s. 22(1) direct an inquiry into the
degree of connection of the child with Ontario, including whether proceedings
are pending before a tribunal in another place, those in s. 23 direct an
inquiry into the degree of harm a child would suffer if removed from Ontario.
[139]
While neither s. 22(1)(a) nor s. 22(1)(b) is itself a best interests
test, as observed by this court in
Ojeikere
, at para. 16:
[T]he policy behind discouraging child
abduction and requiring a summary return to habitual residence does reflect the
Legislatures overriding concern with a childs best interests. Child
abductions ordinarily harm children, undermine the important goal of maximizing
contact between a child and both parents, and often promote a parents
interests over that of the child.
[140]
Section 23 also reflects the Legislatures overriding concern with
the childrens best interests:
Ojeikere
, at para. 17. Under s. 23, an
Ontario court must assess the possibility or risk of future harm if the child
is removed from Ontario, both in respect of its likelihood and severity:
Ojeikere
,
at para. 62.
[2]
It is evident from the case law that the holistic assessment of serious harm
under
CLRA
s. 23 enables a court to consider the many factors relevant
to a childs best interests.
[141]
Accordingly, an assessment of the effects of
CLRA
s. 40(3)
in the context of Part III of the
CLRA
legislation as a whole confirms
that the provisions focus is on the welfare of a child and providing a
practical mechanism to protect a child against the harmful effects of an
international abduction by one parent.
CLRA
s. 40(3) forms a necessary
part of a provincial statutory scheme that seeks to protect a child from the
harmful effects of their wrongful removal or retention.
[142]
I therefore conclude that the true subject matter of
CLRA
s. 40(3) is to enforce custody rights (decision-making responsibility/parenting
time) and prevent harm to a child. The provision achieves these matters by
authorizing an Ontario court to return a child who has been wrongfully removed
to Ontario or wrongfully retained in Ontario to such place as the court
considers appropriate which, in turn, will enable the custody of the child to
be determined by the state that has the closer connection to the child.
The decision in
McKee v. McKee
[143]
The decision in
McKee
, on which the mother so strongly
relies in support of her federalism challenge to
CLRA
s. 40(3), does
not alter that conclusion. As I read
McKee
, the case does not support
the mothers argument for exclusive federal jurisdiction over the return of
wrongfully removed or retained children; on the contrary, it supports the
fathers division of powers submission.
[144]
McKee
involved a mother and father who
were both citizens of the United States and domiciled there. Shortly before
their separation, their son was born. Both parties then participated in custody
and divorce proceedings in California. Following a trial in 1942, the
California court awarded the father custody of the child, with the son to spend
three months each summer with his mother. In 1945, the father applied to modify
the mothers access; the mother cross-claimed. After a further trial, custody
was awarded to the mother. The father brought review proceedings, which
ultimately were dismissed in the mothers favour. Before they were, the father
took the child from his residence in Michigan across the border into Ontario.
The father stated he intended to make Ontario their new place of residence.
[145]
The mother obtained a writ of
habeas corpus
from an Ontario
court. On the return of the writ, a judge directed a trial of the custody
issue. The trial judge took into account the more recent California orders giving
custody to the mother but concluded that it was in the best interests of the
child to give the father custody. This court dismissed the mothers appeal. A
majority of the Supreme Court of Canada reversed the trial judge. On further
appeal, the Judicial Committee of the Privy Council (JCPC) set aside the
decision of the Supreme Court of Canada and restored the trial judgment.
[146]
The majority of the Supreme Court of Canada took issue with the
judge on the return of the
habeas corpus
writ directing a trial of the
custody issue. The circumstances that most heavily influenced the majority
were: the parents were U.S. citizens; they lived in the U.S.; the custody
litigation took place in the California courts; both had entered into an
agreement not to take the child outside of the U.S. without the consent of the
other; yet the father took the child to Ontario in the final moments of a
protracted litigation in his own country for the purpose of avoiding obedience
to the judgment of its Courts, and in deliberate disregard of his own
agreement:
McKee
(SCC)
, at p. 709. The majority concluded
that, on the return of the writ, the judge should have directed that the child
be delivered into the custody of the [mother] on her undertaking to return with
him to her home in the United States:
McKee
(SCC)
, at p.
710. The majority made an order to that effect, which included a provision that
the mother have custody of the child.
[147]
In our case, the mother relies heavily on the dissenting reasons
authored by Kellock J. The minority saw no error in the procedure adopted by
the judge on the return of the
habeas corpus
writ: given the childs
presence in Ontario, the court had to consider the childs best interests. The
minority stated, at p. 720, that no jurisdiction existed for the majority to
make the order that it did, which would return the child to the United States
without an inquiry into his best interests:
That which is involved in the present case is a matter of
custody. The appellant, under the guise of custody proceedings, asks for an
order for which there is no authority outside the
Extradition Act
or the deportation
provisions of the
Immigration
Act
.
Even if it could be said that such
authority resides in the executive, it has not been committed to the courts
,
Attorney-General for Canada
v.
Cain
. In my respectful
opinion,
there is no jurisdiction in the courts of Ontario
or in this court to make such an order as the [mother] seeks or to do otherwise
than to apply to the circumstances of this case, the ordinary law of Ontario as
to custody
, giving due weight, of course, to the California decree.
[Emphasis added.]
[148]
At the time of the
McKee
case,
The Infants Act
,
R.S.O. 1937, c. 215, did not contain any provision analogous to
CLRA
s. 40. As I read the dissent of Kellock J., the minority was simply observing
that, at that time, no authority had been given to the courts to make the
return order sought by the mother.
[149]
The JCPC reversed the decision of the Supreme Court and restored the
trial judges award of custody to the father. As there was no dispute that the
trial judge had jurisdiction to entertain the question of custody that had been
referred to him, he did not need to blindly follow an order made by a foreign
[c]ourt but, as part of his best interests analysis, could give proper weight
to the foreign judgment:
McKee (JCPC)
, at pp. 664-65. Consequently,
the trial judge did not commit any error.
[150]
The JCPC allowed that, in some circumstances, an Ontario court might
not need to look beyond the foreign judgment to conduct its own custody
analysis, stating, at pp. 664-65:
It is possible that a case might arise in which it appeared to
a Court, before which the question of custody of an infant came, that it was in
the best interests of that infant that it should not look beyond the
circumstances in which its jurisdiction was invoked and for that reason give
effect to the foreign judgment without further enquiry.
Once it is conceded
that the Court of Ontario had jurisdiction to entertain the question of custody
and that it need not blindly follow an order made by a foreign Court, the
consequence cannot be escaped that it must form an independent judgment upon
the question, though in doing so it will give proper weight to the foreign
judgment. What is the proper weight will depend upon the circumstances of each
case.
It may be that, if the matter comes before the Court
of Ontario within a very short time of the foreign judgment and there is no new
circumstance to be considered, the weight may be so great that such an order as
the Supreme Court made in this case could be justified. But if so, it would be
not because the Court of Ontario, having assumed jurisdiction, then abdicated
it, but because in the exercise of its jurisdiction it determined what was for
the benefit of the infant
. [Emphasis added.]
[151]
Taking a step back,
McKee
does not stand for the
proposition asserted by the mother that an Ontario court lacks the jurisdiction
to make an order requiring a child to be returned to another country because
the subject matter of such an order falls within exclusive federal jurisdiction
under the
Constitution Act
,
1867
. On the contrary, the
decision of the JCPC recognized that an Ontario court could make such an order
provided it applied the law of Ontario as it then stood namely, conducting a
best interests of the child analysis while deciding which parent should have
custody of the child.
E.
THE CLASSIFICATION OF THE MATTER
[152]
The second stage of a division of powers review requires classifying
the subject matter with reference to federal and provincial heads of power
under the Constitution in order to determine whether it is
intra vires
of Ontario and therefore valid:
Greenhouse Gas References
, at paras.
47, 56.
[153]
Under Canadian jurisprudence, the constitutional authority to
legislate with respect to child custody and welfare (save for corollary relief
orders under the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.)) is firmly
anchored in the provinces, particularly the provincial legislative power under
s. 92(13) of the
Constitution Act
,
1867
regarding property
and civil rights in the province:
Hogg
,
at §27.5(a);
NIL/TU,O Child and Family Services Society v. B.C. Government
and Service Employees Union
, 2010 SCC 45, [2010] 2 S.C.R. 696, at para.
45;
R. v. S. (S.)
, at p. 279.
[154]
As the subject matter of a
CLRA
s. 40(3) removal order
involves the enforcement of custody rights, protecting a child from the harm of
a wrongful removal, and ensuring that the custody of a child is determined by
the most appropriate state, it falls within the established provincial power to
legislate with respect to child custody and welfare as a matter of property
and civil rights in the province. Accordingly,
CLRA
s. 40(3) is
intra
vires
of the Legislature of Ontario.
F.
CONCLUSION
[155]
Although the trial judge, at para. 455, purported to follow
Kovacs
in finding
CLRA
s. 40(3)
intra vires
of Ontario, in fact the
comments made in
Kovacs
about the
vires
of s. 40 were
obiter
as the issues raised in that case did not directly engage
CLRA
s. 40.
Nevertheless, the trial judge went on to hold, at paras. 456 and 463, that
CLRA
s. 40(3) is all about the return of children to a place (in this case, Dubai)
that they are most closely connected to, for a determination of custody issues
in that place, provided no serious harm will result and that the section falls
within Ontarios lawful authority to legislate matters of child welfare and
family law.
[156]
For the reasons given, I see no error in that conclusion.
CLRA
s. 40(3) is
intra vires
the legislative power of Ontario. Accordingly,
I would give no effect to this ground of appeal by the mother.
III.
THE
CHARTER
CLAIMS
A.
OVERVIEW
[157]
In her Fresh as Amended Answer, the mother seeks an order that
CLRA
s. 40(3) breaches the following constitutional rights of herself and the two
children:
Charter
ss. 2(a); 7; and 15. As well, the mother advances a
s. 6(1) claim with regard to the children only and seeks an order, if
necessary, to bring
Charter
claims on their behalf. Common to all
these
Charter
breach allegations is the argument that any return order
made under
CLRA
s. 40(3)
without a full best-interests
determination in the ordinary course
(emphasis in original), is
constitutionally infirm and therefore has the effect of breaching the
enumerated
Charter
rights.
[158]
At trial, the father argued that the mother had failed to establish
a sufficient factual foundation for her
Charter
claims; the trial
judge rejected that submission. However, in the result, the trial judge
dismissed the
Charter
claims advanced by the mother. I will describe
his reasons for so doing when dealing with each
Charter
breach
allegation.
[159]
An assessment of the mothers
Charter
claims requires
understanding the order made by the trial judge exercising the power granted by
CLRA
s. 40(3). The trial judge made the following orders:
(i)
The mother has wrongfully retained the children
in Ontario;
(ii)
The children shall forthwith be returned to
Dubai;
(iii)
If the mother does not return to Dubai, the
children shall forthwith be in the fathers care and control for the limited
purpose of the children being able to travel with him to Dubai;
(iv)
The consent of the mother for the father to
travel with the children for such purposes is dispensed with;
(v)
The mother shall deliver to the father the
childrens travel documentation and medical records; and
(vi)
The mother is prohibited from removing the
children from Ontario except for the purpose of returning them to Dubai.
[160]
Before dealing with each
Charter
claim, I wish to make a
few preliminary observations.
[161]
First, the parties did not provide extensive argument in respect of
the mothers
Charter
claims. Both devoted just over the last two pages
of their factums to the
Charter
claims; more extensive written
submissions were made by the intervenors, the AGO and the Office of the
Childrens Lawyer (OCL). Given that this appears to be the first
Charter
-based
challenge to
CLRA
s. 40(3), the brevity of the parties submissions is
most unfortunate.
[162]
Second, some of the mothers
Charter
claims lack precision;
some shifted their focus as the argument unfolded before the trial judge; and
some shifted their content from the notice of appeal to the mothers factum. In
order to gain a fulsome understanding of the nature of the mothers
Charter
claims, I have considered several of her documents: (i) the Fresh as Amended
Answer; (ii) Factum of the Respondent re: Constitutional Claim filed before the
trial judge; (iii) the Notice of Appeal; and (iv) her Factum on this appeal.
[163]
Finally, on this appeal the father takes the position that if
CLRA
s. 40(3) falls within the legislative competence of Ontario, then judicial
orders made under that provision are not subject to
Charter
scrutiny.
I disagree. I would observe that just because a statutory provision falls
within the legislative competence of Ontario under a division of powers
analysis does not mean it is immunized from further review regarding its
compliance with the
Charter
. Further, I understand the mother to be
arguing that
CLRA
s. 40(3) authorizes conduct that produces an
unconstitutional effect. In other words, the statutory provision, by
authorizing a court to make an order to return a child to such place as the
court considers appropriate, legislatively sanctions conduct that has the
effect of violating the
Charter
rights of the mother and two children
given the factual circumstances in which the mother and children find
themselves
[3]
.
My analysis will proceed on that basis.
B.
Charter
S. 7
Claim
The proceeding below
[164]
Section 7 of the
Charter
states: Everyone has the right to
life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.
[165]
The trial judge concluded that a return order made under the
authority of
CLRA
s. 40(3) would not result in an infringement of the
s. 7
Charter
rights of the mother and children for several reasons:
(i)
A return order is not a custody order and therefore it does not result
in the loss of any legal rights by the mother;
(ii)
Any
breaking of the bond between the mother and her children, and the resulting
psychological effect, would result from her decision to choose not to return to
Dubai;
(iii)
Although
CLRA
s. 40(3) does not expressly require a consideration
of the best interests of the child, no constitutionally infirm deprivation
would result as the best interests of the child is not a principle of
fundamental justice;
(iv)
In any
event, the evidence established that in determining the custody of the
children, the best interests of the children would be the paramount
consideration of a court in Dubai; and
(v)
CLRA
s. 40(3) did not result in a process that lacked
procedural fairness as a full-blown trial was held to determine the application
for a return order.
Issues on appeal
[166]
As I understand the s.
7
Charter
claims advanced by the mother on
behalf of herself and the two children, the following issues are raised on this
appeal:
(i)
Did the trial judge err in concluding that an order made under
CLRA
s. 40(3) did not engage the rights of the
mother and children to security of the person under s. 7 of the
Charter
?
(ii)
Did the trial judge err in concluding that the absence of an express
requirement in
CLRA
s. 40(3) that a court
conduct a full blown best interests of the child analysis in making a removal
order did not infringe s. 7 of the
Charter
?
(iii)
Does a
CLRA
s. 40(3) removal orders effect of requiring the
mother to litigate custody issues in the UAE (Dubai) deny her a
constitutionally protected right to access to justice in Ontario?
[167]
It is understandable that the mother is not pursuing the additional
s. 7 claim described in her Fresh as Amended Answer that
CLRA
s. 40(3)
infringed s. 7 by not prescribing a hearing process akin to an ordinary
course custody hearing. An 11-day hearing was held to adjudicate the parties
respective claims, with each party able to adduce evidence, test evidence by
way of cross-examination, and make full legal submissions. The mother received
a hearing that fully accorded with the procedural principles of fundamental
justice.
Analysis
First Issue: Did the trial judge err in concluding that an order
made under
CLRA
s. 40(3) did not engage the rights of the mother and
children to security of the person under
Charter
s. 7?
[168]
In her factum below, the mother described herself as the childrens
psychological parent. She explained the intrusion on her security of the
person that would result from the operation of
CLRA
s. 40(3):
Under
CLRA
s. 40 the state (the
court) is determining whether to remove custody of the child from the mother.
In this case,
that state-imposed change of custody
carries the substantial
risk of permanently breaking the bond between the psychological parent and
children. [Emphasis added.]
[169]
The trial judge did not accept this submission. Relying on
Balev
,
he properly held that a return order made under
CLRA
s. 40(3) is not a
custody order. He concluded that if the mother chose not to return to Dubai,
then any breaking of the bond between the children and her would not be caused
by the operation of
CLRA
s. 40 but by her own choice.
[170]
On appeal, the mother repeats her argument that an order removing a
child from their primary caregiver breaches s. 7.
[171]
State action that has a serious and profound effect on a persons
psychological integrity, assessed objectively, may amount to an interference
with the persons security of the person for purposes of s. 7 of the
Charter
:
New Brunswick (Minister of Health and Community Services) v. G. (J.)
,
[1999] 3 S.C.R. 46, at para. 60. As Hamish Stewart observes in
Fundamental
Justice: Section 7 of the Canadian Charter of Rights and Freedoms
, 2nd ed.
(Toronto: Irwin Law, 2019), at p. 103, the
G. (J.)
case set a
threshold for finding interference with psychological integrity that is both
objective and high.
[172]
The case of
G. (J.)
involved, in part, the extension of an
order that had granted custody of the appellants children to a provincial
child welfare agency. The majority of the Supreme Court held that state
removal of a child from parental custody pursuant to the states
parens
patriae
jurisdiction constitutes a serious interference with the
psychological integrity of the parent because it stigmatizes a parent as
unfit when relieved of custody, thereby interfering with the psychological
integrity of the parent
qua
parent: at paras. 61, 64.
[173]
In
A.M.R.I. v. K.E.R.
, 2011 ONCA 417, 106 O.R. (3d) 1, at
para. 98, this court recognized that a refugee childs s. 7
Charter
rights are engaged where the childs involuntary removal is sought under the
Hague
Convention
to a country where the child has already been found to face a
risk of persecution: see also,
J.P.B. v. C.B.
, 2016 ONCA 996, 2
R.F.L. (8th) 48, at para. 25.
[174]
In the present case, the children are quite young (both under five
years old). They are not refugees. The trial judge found that the mother had
always been their primary caregiver and there was some circumstantial evidence
that the children could be at risk of emotional and psychological harm if they
are returned to Dubai without their mother. That said, the mother predicated
this part of her s. 7 argument on the proposition that a
CLRA
s. 40(3)
return order would amount to a change of her custodial rights, which is
incorrect. The purpose of a return order is to restore the
status quo
in respect of custodial rights of the parents and requires them to litigate the
issue of custody in a forum more appropriate than Ontario.
[175]
As well, I think the trial judge was correct in concluding that any
psychological harm that might arise on the part of the mother or the children
would result from the mothers refusal to return to Dubai with the children,
not from any state conduct flowing from
CLRA
s. 40(3). The mother was
quite clear in her evidence that she would not return to Dubai, testifying:
[F]irst of all and before anything else, the
-- the reason for the separation was because [the children] deserve a happy mom
and deserve a mom, a parent who is happy, and so I dont see the possibility of
that happening if I am -- if I am to go back.
[176]
In
Ojeikere
, this court expressed concern about permitting
an abducting parent to create a risk of psychological harm by refusing to
return to the place from which the children were removed, stating, at para. 91,
in the context of its
CLRA
s. 23 serious harm analysis:
Mr. Ojeikere argues that by professing to stay
in Ontario and separating herself from the children, Mrs. Ojeikere is
manipulating them and, by her stance alone, trying to establish serious harm. I
have some sympathy for his argument.
Ordinarily, a parent
in Mrs. Ojeikeres position ought not to be able to create serious harm and
then rely on it through her own refusal to return to the country of the
childrens habitual residence at least without a substantial reason for doing
so, such as the risk of imprisonment or persecution, risk to health or physical
safety, or the risk of a significant obstacle to employment
. [Emphasis
added.]
[177]
Nonetheless, I will proceed to consider the mothers s. 7 arguments
assuming that the exercise of the authority granted by
CLRA
s. 40(3)
engaged the security of the person of both herself and the two children.
Second Issue: Did the trial judge err in concluding that the absence
of an express requirement in
CLRA
s. 40(3) that a court conduct a
full blown best interests of the child analysis in making a removal order did
not infringe s. 7 of the
Charter
?
[178]
It is true that
CLRA
s. 40(3) does not contain an express
reference to best interests of the child. It is also true that the purpose
articulated in
CLRA
s. 19(a) of ensuring that applications to the
courts respecting decision-making responsibility, parenting time, contact and
guardianship with respect to children will be determined on the basis of the
best interests of the children does not formally include return orders under
CLRA
ss. 40(3) or 46 where no order is made with respect to decision-making
responsibility or parenting time.
[179]
Nevertheless, since
Baker v. Canada (Minister of Citizenship and
Immigration)
, [1999] 2 S.C.R. 817, it has been well-established that
serious consideration must be given to the best interests of children when
exercising discretionary powers that may affect them:
M.M. v. United
States of America
, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 146. In such
cases, a decision-maker must consider a childs best interests as an important
factor and give them substantial weight:
Baker
, at para. 75.
[180]
However, as the Supreme Court observed in
M.M.
, the best
interests of the child will not always outweigh other considerations, stating
in part, at para. 145:
[T]he best interests of children on surrender
for extradition must be considered in light of other important legal principles
and the facts of the individual case:
Fischbacher
, at paras. 37-38. As
the Court said in
Canadian Foundation for Children, Youth and the Law v.
Canada (Attorney General)
, 2004 SCC 4, [2004] 1 S.C.R. 76, the legal
principle of the best interests of the child may be subordinated to other
concerns in appropriate contexts; its application is inevitably highly
contextual; and [s]ociety does not always deem it essential that the best
interests of the child trump all other concerns in the administration of
justice: paras. 10-11.
See also:
A.M.R.I.
, at para.
82.
[181]
How do those
principles apply to the order-making power created by
CLRA
s. 40(3)?
In my view, since the orders authorized by that statutory provision obviously
will affect children, a court must include, as part of its exercise of
discretion under that section, a consideration of the best interests of the
child.
[182]
The mother contends
that any consideration of the best interests of the child under
CLRA
s. 40(3) must be performed in the same way as when determining custody (decision-making
responsibility/parenting time) under
CLRA
s. 24, namely that,
the court
shall
only
take
into account
the best interests of the child
(emphasis added).
[183]
I disagree. That is
not the law in respect of applications under the
Hague
Convention
, where the consideration of the interests of the
children is not done in the manner the court would do at a custody hearing
because a return order does not determine custody:
Thomson
, at p. 578;
Ludwig v. Ludwig
, 2019 ONCA 680, 437 D.L.R. (4th) 517, at para. 64.
[184]
So, too, in the case
of a
CLRA
s. 40(3) return order. Both the
scope
of a best interests inquiry and the
role
played by
a best interests inquiry under s. 40(3) differ from that when determining
custody under s. 24. That is because the scope and role of the inquiry must be
commensurate with the purposes of the s. 40(3) analysis, which differ from
those under s. 24.
[185]
The scope
of the
analysis under
CLRA
s. 40(3) does not
decide the ultimate issue of custody of the children but the narrower,
preliminary issue of the jurisdiction in which custody should be determined.
[186]
As well, under s. 24
the best interests of the child is the only factor a court may take into
account. However, to fulfill the purposes set out in
CLRA
s. 19, a
court making a return order under
CLRA
s.
40(3) must consider not only the best interests of the child but also s. 19s
policy objectives namely, discouraging the abduction of children as an
alternative to the determination of decision-making responsibility by due
process, as well as refraining from exercising jurisdiction in cases where it
is more appropriate for the matter to be determined by another tribunal (one
that has jurisdiction and with which the child has a closer connection). A
holistic analysis of those three factors is required in order that the
statutory discretion granted by s. 40(3) fulfills the purposes of Part III of
the
CLRA
.
[187]
This differing
application of the best interests of the child test under
CLRA
ss.
40(3) and 24 reflects the inherent indeterminacy and elasticity of the test:
MacGyver
v. Richards
(1995), 22 O.R. (3d) 481 (C.A.), at p. 15. As put by Abella
J.A. (as she then was), the test
can be no more than an
informed opinion made at a moment in the life of a child about what seems
likely to prove to be in that child's best interests
:
MacGyver
,
at p. 15.
At this point of time in the lives of these two children, their immediate legal
interests concern where the issue of their custody should be determined, not
who should have custody. The best interests test must be applied in that
context.
[188]
Moreover,
the statutory scheme of which
CLRA
s. 40(3) forms a part
offers a procedurally fair mechanism, which accords with principles of
fundamental justice, by which a court can consider any risk of harm to the
children, including the impact of a separation from a parent and/or primary
caregiver.
[189]
Reading the reasons of
the trial judge as a whole, I am satisfied he performed the multi-factored
analysis required by
CLRA
s. 40(3). He made specific findings of fact
regarding the interests of the children: about the relationship between the
children and both parents and the potential impact of a return order on the
children; the adequacy of evidence of the best interests of the children
available in Ontario; the potential risk of harm to the children if returned to
Dubai; that the settlement proposed by the father, if accepted by the mother,
would be incorporated in a Dubai judgment;
[4]
and that the best interests of the children would be the paramount
consideration in determining custody in a court in Dubai: at paras. 291, 294,
347, and 366.
[190]
The trial judge also
correctly recognized that a return order under
CLRA
s. 40(3) is not
the same as a custody order. Finally, the trial judge specifically found, at
several places in his reasons, that the return of the children to Dubai was in
their best interests: at paras. 387, 390, and 460-61.
[191]
Consequently,
I would not give effect to this ground of appeal by the mother.
Third Issue: Does the removal orders effect of requiring the mother
to litigate issues concerning the childrens custody in the UAE deny her a
constitutionally protected right to access to justice?
[192]
In her appeal factum, the mother submits that being forced through
the UAE legal system amounts to a denial of her constitutionally protected
right to access to justice. She elaborated on this argument in her factum
before the trial judge, stating in part, at paras. 88 and 90:
The [mothers] access to justice in Dubai is
impaired. Neither the Mother, or children, will receive
constitutionally-minimum legal treatment in Dubai.
The Charter
requires that the foreign legal system afford constitutionally-minimum legal
treatment, assessed from a purely Canadian standard, or the Canadian jurisdiction
decision will
ipso facto,
reject handing a matter over to that foreign
legal system.
The effect of the return Order is a change of
primary residence and a separation of the child from the primary parent,
ordered in the absence of a full best-interests determination in the ordinary
course
. Such
effects
are an unconstitutional
infringement of the independent constitutional right of primary parent and each
applicant child under s.2 and s.7. [Emphasis in original.]
[193]
In support of this submission, the mother relies on the concurring
reasons of Brown J. in
Uber Technologies Inc. v. Heller
, 2020 SCC 16,
447 D.L.R. (4th) 179, a case dealing with the enforceability of an arbitration
clause in a contract of adhesion that would require an Ontario Uber driver to
resolve any dispute with Uber through mediation and arbitration in the
Netherlands.
[194]
The majority of the court concluded that the arbitration agreement
made it impossible for the driver to arbitrate, thereby constituting a classic
case of unconscionability that invalidated an arbitration agreement: at para.
4.
[195]
While agreeing that the arbitration agreement was invalid, Brown J.
was not prepared to rely on the doctrine of unconscionability to reach that
result. Instead, he anchored his analysis on the principle that precludes the
ouster of court jurisdiction, either directly or through a clause that has the
ultimate effect of blocking access to a legally determined resolution: at
paras. 110, 113. It was in that context that Brown J. made the following
statements, at para. 120, upon which the mother relies:
[A]ccess to justice is constitutionally
protected through s. 96 of the
Constitution Act
,
1867
, which
limits the legislatures ability to place restrictions on dispute resolution
(
Trial Lawyers Association of British Columbia
v. British Columbia (Attorney General
)
,
2014 SCC 59, [2014] 3 S.C.R. 31, at para. 43). As this Court stated in
Trial
Lawyers
, at para. 32:
The historic task of
the superior courts is to resolve disputes between individuals and decide
questions of private and public law. Measures that prevent people from coming
to the courts to have those issues resolved are at odds with this basic
judicial function.
The resolution of these disputes and resulting
determination of issues of private and public law, viewed in the institutional
context of the Canadian justice system, are central to what the superior courts
do. Indeed, it is their very book of business. To prevent this business being done
strikes at the core of the jurisdiction of the superior courts protected by s.
96 of the
Constitution Act, 1867
. [Emphasis
added in
Uber
.]
[196]
I do not see how this passage from
Uber
assists the
mothers s. 7 argument. First, s. 7 of the
Charter
was not in issue in
the
Uber
case; the Supreme Court made no comment on the section.
Second,
CLRA
s. 40(3) has not denied the mother access to a s. 96
court: the mother asserted claims and defences in her Fresh as Amended Answer,
and her evidence and submissions were considered by a s. 96 judge. Third, the
claims and counterclaims raised by the father and mother in this proceeding
constitute the type of issue frequently considered by a s. 96 court: namely,
which jurisdiction is the most appropriate in which to decide the merits of the
case?
[197]
Quite apart from the mothers misplaced reliance on the
Uber
decision, I see no merit in her other submissions. The return order does not
change the childrens primary residence. On the contrary, it seeks to restore
the
status quo
of the childrens residence before the mother engaged
in her wrongful conduct.
[198]
Finally, the mother does not point to authority to support her
submission that [t]he Charter requires that the foreign legal system afford
constitutionally-minimum legal treatment, assessed from a purely Canadian
standard. Many foreign countries do not share the same family law as Ontario.
That does not preclude a court from considering a request under
CLRA
s. 40(3) to return a child to such a country. Of course, when considering such
a request, Part III of the
CLRA
requires a court to examine the
effects of returning a child to such a country. That is precisely the analysis
the trial judge conducted. Significantly, he found, at para. 366(vi), that:
[T]here is a
total
absence
of any reliable evidence at trial that the court system
in Dubai will do anything other than (a) determine custody in accordance with
the best interests of Z. and E., if contested, and (b) award custody to F., if
contested, and (c) approve the settlement proposal tendered by N., if agreed to
by the mother. [Emphasis in original.]
[199]
Consequently, I give no effect to this part of the mothers s. 7
claim.
Conclusion on s. 7 claims
[200]
The trial judge dismissed the s. 7 claims by the mother and on
behalf of the children. For the reasons set out above, I see no error in that
result.
C.
CHARTER
S. 2(a)
CLAIM
Analysis
[201]
Section 2(a) of the
Charter
provides
that everyone
has the fundamental freedom of conscience
and religion. The standard claim that state conduct has infringed a persons
s. 2(a) freedom requires a claimant to demonstrate that (i) she has a sincere
belief or practice that has a nexus with religion and (ii) that the impugned
state conduct interferes, in a manner that is more than trivial or
insubstantial, with his or her ability to act in accordance with that practice
or belief:
Trinity Western University v. Law Society of Upper Canada
,
2018 SCC 33, [2018] 2 S.C.R. 453, at para. 32.
[202]
The mother has not asserted a standard s. 2(a) claim, which is not
surprising given the facts of this case. In respect of her own s. 2(a) right,
the mother has made it clear that she does not intend to return to Dubai, so
any
CLRA
s. 40(3) return order would not limit her ability to practise
her faith in Canada. As to the children, the evidence is uncontroverted that
upon their return to Dubai, they will continue to be raised in their parents
Shia faith, so the return order works no limit on their instruction in that
faith.
[203]
The mother fashions a s. 2(a) claim predicated on her return to
Dubai which, as mentioned, is completely at odds with her evidence that she
will not return to Dubai. In any event, the mother recasts her s. 7 claim as a
s. 2(a) claim to argue that a return order breaches her right as the childrens
primary caregiver to raise the children according to
her
decision-making, a right that would be unambiguously denied to her under UAE
law (emphasis in original). The factual findings made by the trial judge
undermine the claim so framed. I repeat the findings made by the trial judge,
at para. 366(vi) of his reasons:
[T]here is a
total
absence
of any reliable evidence at trial
that the court system in Dubai will do anything other than (a) determine
custody in accordance with the best interests of Z. and E., if contested, and
(b) award custody to F., if contested, and (c) approve the settlement proposal
tendered by N., if agreed to by the mother. [Emphasis in original.]
[204]
In addition, the trial judge made the following findings, at paras.
368-69:
Further, even if I did believe [the mothers] evidence about
not returning to Dubai,
I do not accept
her evidence about how allegedly miserable her life in Dubai was
.
I do believe that she was unhappy in her marriage, but that marriage will be
over now. She deserves to be happy and fulfilled and respected, and that will
not happen with N.
Otherwise, however,
regarding
her evidence about religious discrimination
and social isolation
and so on,
I reject it
.
[Emphasis added.]
[205]
The mother has not demonstrated that those findings of fact were
tainted by palpable and overriding error. Accordingly, I see no error in the
trial judges dismissal of the s. 2(a) claims advanced by the mother.
D.
CHARTER
S. 15(1)
CLAIM
The proceeding below
[206]
Section 15(1) of the
Charter
states: Every individual is
equal before and under the law and has the right to the equal protection and
equal benefit of the law without discrimination and, in particular, without discrimination
based on race, national or ethnic origin, colour, religion, sex, age or mental
or physical disability. At trial, the mother framed her s. 15(1) claim in two
different ways.
[207]
First, in her Fresh as Amended Answer, she argued that
CLRA
s. 40(3) authorized state action that removed the custody of a child from a
psychological parent without affording a best interests of the child hearing in
the ordinary course. As I understand this argument, the mother contrasts (a)
the treatment of a parent who is found to have wrongfully removed a child from
another jurisdiction to Ontario with (b) the treatment of two Ontario resident
parents who are disputing custody of a child. In the latter case, the
determination of custody is subject only to a best interests of the child
analysis, whereas in her case it is not.
[208]
Second, the mother reframed the argument in a slightly different
fashion in her factum below:
The offensive state conduct is the act of forcibly returning
a Canadian citizen from Ontario to Dubai, pursuant to a CLRA s. 40 change of
custody from Mother to Father,
where
that change of custody is done without a best interests custody analysis
.
Every
other child in Canada, who is not part
of this discrete and insular minority (of children coming from non-democratic
sharia law countries), is unharmed, both legally and in fact, by the
application of the CLRA s.40 wrongfully retained test to change their custody
and remove them from Ontario.
This is because, every
other child, when being removed from Ontario, pursuant to CLRA s.40, goes to a
geographic location where best interests will then be applied to determine
their fate. This does not happen in Dubai or any other non-democratic sharia
law country. This is disproportionate impact.
This adverse impact of a
facially neutral law, infringes the applicants right to all the equalities
under s 15 of the Charter. [Emphasis added.]
[209]
This reframed argument contends that a disparate impact arises from
both the operation of Ontario law i.e., the failure to consider the best
interests of the children in a
CLRA
s. 40(3) analysis and from the
law of the country to which the children are returned.
[210]
During final argument at trial, the mother attempted to further
recast her s. 15(1) claim. Her counsel argued that
CLRA
s. 40 impacts
the mother as a woman differently than a man who comes under the same provision
and has disproportionate impacts with respect to a woman than with respect to a
man. The father objected to the mother raising a new claim at the end of trial
based on the enumerated ground of sex; the trial judge upheld that objection.
[211]
The trial judge dismissed the mothers s. 15(1) claim largely on the
basis that the argument required accepting a persons place of residence as an
analogous ground, which the case law to date has not recognized. The trial
judge concluded that the mother had not established that a
CLRA
s.
40(3) return order discriminated on any enumerated or analogous ground.
The issues on appeal
[212]
On appeal, the mother submits that
CLRA
s. 40(3) has a
discriminatory impact on her and the children. She identifies three
discriminatory impacts:
(i)
As a primary caregiver, she would suffer more of a severe discriminatory
legal burden where a child is ordered returned to Dubai than if ordered
returned to another province, the United States or England. This differential
burden is a disproportionate effect;
(ii)
The
two children would suffer dramatically more severe impact leaving Ontario to
return to Dubai than identically placed children returned to Alberta, Scotland,
or the United States; and
(iii)
Where the childs primary caregiver is the mother, a return to
Dubai by female results in the loss of badges of custody to the father under
UAE law, which a father would not face if he had to make the decision to
follow the infants back to Dubai, causing a disproportionate impact.
[213]
In response, the father submits that the mothers distinction
between children who are habitually resident in Dubai and those resident in
another province, the United States, or England, relies on a distinction based
upon residence, a ground that courts repeatedly have rejected. The mothers
other argument advances discriminatory impact based on sex, which the trial
judge did not permit her to argue. In any event, no evidence or data were
advanced at trial to demonstrate that
CLRA
s. 40(3) disproportionately
affects women. Fathers as well as mothers abduct or wrongfully retain children,
and s. 40(3) provides an important discretionary tool to protect mothers in
such situations.
[214]
The AGO also contends that the mothers claim that the legislation
discriminates on the basis of residence fails at the first step of the s. 15
analysis.
Analysis
[215]
To prove a
prima facie
violation of s. 15(1), a claimant
must demonstrate that the impugned law or state action (i) on its face or in
its impact, creates a distinction based on enumerated or analogous grounds and
(ii) imposes burdens or denies a benefit in a manner that has the effect of
reinforcing, perpetuating, or exacerbating disadvantage:
Fraser v. Canada
(Attorney General)
, 2020 SCC 28, 450 D.L.R. (4th) 1, at para. 27. In the
second step of the analysis, [t]he goal is to examine the impact of the harm
caused to the affected group, which may include [e]conomic exclusion or
disadvantage, [s]ocial exclusion
[p]sychological harms
[p]hysical harms
[or]
[p]olitical exclusion, and must be viewed in light of any systemic or
historical disadvantages faced by the claimant group:
Fraser
, at
para. 76 (citation omitted).
[216]
As to the first step of the s. 15(1) analysis in the present case,
CLRA
s. 40(3) is facially neutral. It provides that where a court is satisfied that
a child has been wrongfully removed to or is being wrongfully retained in
Ontario, the court may order a party to return the child to such place as the
court considers appropriate. Under the provision, the person who wrongfully
removes a child may be the mother, father, or some other person. The provision
does not distinguish amongst wrongdoers based on any of the grounds enumerated
in s. 15(1) or recognized, to date, as analogous. Nor does the provision
distinguish amongst those places to which the judicial return of a child might
be appropriate.
[217]
Given the facial neutrality of
CLRA
s. 40(3), the mother
casts her s. 15(1) claim as one based on the impact of the provision. Adverse
impact discrimination occurs when a seemingly neutral law has a
disproportionate impact on members of groups protected on the basis of an
enumerated or analogous ground; [i]nstead of explicitly singling out those
who are in the protected groups for differential treatment, the law indirectly
places them at a disadvantage:
Fraser
, at para. 30. [I]n order for a
law to create a distinction based on prohibited grounds through its effects, it
must have a disproportionate impact on members of a protected group; a court
must explore whether it does so indirectly through its impact on members of
that group:
Fraser
, at paras. 52-53.
[218]
The threshold issue regarding the mothers s. 15(1) claims then
becomes: what is the group protected on the basis of an enumerated or analogous
ground in which she claims membership and who are subject to a disproportionate
impact under a law? The law, of course, must be a law enacted by a Canadian
state entity identified in s. 32 of the
Constitution Act
,
1982
:
Hogg, at §55.5(b). In this case, the law is
CLRA
s. 40(3).
[219]
I accept the submissions by the father and the AGO that the two s.
15(1) claims described in para. 212(i) and (ii) above advanced by the mother on
behalf of herself and the two children are predicated on using a place of
residence as an analogous ground. The claims compare the treatment of (a) the
mother as a parent who removed her children from Dubai with that received by
(b) parents who remove children from another country, and compare the treatment
of (c) children to be returned to Dubai with that of (d) children to be
returned to another country. Both claims use place of residence as the marker
by which to locate the mother and the children in a protected group for
purposes of a s. 15(1) analysis.
[220]
With one exception, Canadian courts have consistently held that
residence is not a ground of discrimination analogous to those enumerated in s.
15(1) of the
Charter
: see the cases cited in
Canadian Snowbirds
Association Inc. v. Attorney General of Ontario
, 2020 ONSC 5652, 152 O.R.
(3d) 738, at para. 73. The one exception is Aboriginality-residence as it
pertains to whether an Aboriginal band member lives on or off a reserve. Such
residence has been recognized as an analogous ground as it relates to a
personal characteristic essential to a band members personal identity, which
is no less constructively immutable than religion or citizenship:
Corbiere
v. Canada (Minister of Indian and Northern Affairs)
, [1999] 2 S.C.R. 203,
at para. 14.
[221]
Given that jurisprudence, I see no error in the trial judges
conclusion that the return order did not discriminate based on any enumerated
or analogous ground.
[222]
As to the mothers third claim, described in para. 212(iii) above,
it closely resembles the sex-based s. 15(1) claim that the mother tried,
unsuccessfully, to raise at the end of trial. While not strictly speaking a new
constitutional issue raised for the first time on appeal, I accept the
submission of the father and the AGO that the mother has failed to lead any
evidence to show a disproportionate impact on women in the operation of
CLRA
s. 40(3). Moreover, the mother and father did lead evidence specific to their
case about Dubai law and, as mentioned, the trial judge found, at para. 366(vi)
that:
[T]here is a
total absence
of any
reliable evidence at trial that the court system in Dubai will do anything
other than (a) determine custody in accordance with the best interests of Z.
and E., if contested, and (b) award custody to F., if contested, and (c)
approve the settlement proposal tendered by N., if agreed to by the mother.
[Emphasis in original.]
[223]
The mother has not demonstrated that that finding is tainted by
palpable and overriding error.
[224]
For these reasons, I conclude that the trial judge did not err in
dismissing the s. 15(1) claims advanced by the mother.
E.
CHARTER
S. 6(1)
CLAIM
The proceeding below
[225]
Section 6(1) of the
Charter
states: Every citizen of
Canada has the right to enter, remain in and leave Canada.
[226]
The mother advances s. 6(1) claims on behalf of both children. As
articulated in her Fresh as Amended Answer, the claims asserted are that the
children, as Canadian citizens, have constitutional rights under s. 6 of the
Charter
to remain in Canada, and any removal of the citizen-child from Canada against
the citizens consent, as expressed through the Mother, or as determined by a
best interest analysis in the ordinary course is a breach of s.6.
[227]
I would observe that, as articulated in this manner, the mothers
claim proceeds on a false predicate: it assumes, incorrectly, that at law the
mother possesses some superior right in the children to that of the father.
[228]
The trial judge dealt briefly with these claims in his reasons,
concluding that the return order made under
CLRA
s. 40(3) did not
banish or exile or deport, and thereby infringe the mobility rights of
anyone.
Issues on appeal
[229]
On appeal, the mother repeats her submission that the interest
protected by
s. 6 of the
Charter
is the right
of
the citizen children exercisable only in Canada to maintain the child-bond
with the psychological mother.
[230]
On his part, the father submits that neither
CLRA
s. 40(3),
nor return orders made thereunder,
infringe the
childrens s. 6(1)
Charter
rights
. That is because, practically
speaking, young children reside with their parents or guardians. If their s. 6
rights to remain in or leave Canada were engaged by a court order under
CLRA
s. 40(3), any outcome would potentially infringe the
Charter
.
[231]
The AGO argues that a family law order made on the basis of the best
interests of the child, which returns a child to a jurisdiction outside of
Canada pending the determination of a custody or access application in the
appropriate forum, is removed from the protected core of s. 6(1) of the
Charter
and does not infringe the childs s. 6(1) rights. This is particularly the case
because the
CLRA
only permits such an order where no serious harm to a
child would result.
[232]
It is the position of the OCL that for a court to order the removal
of a child from Canada against their will and in a manner that negatively
impacts their connections, including potential separation from the primary
caregiver, the court must first consider and give significant weight to the
impact on the childs enjoyment of the right to remain in Canada.
Analysis
[233]
What is the protection afforded by s. 6(1) of the
Charter
and how does it apply in the context of an order made under the authority of
CLRA
s. 40(3) directing the return of children to the country from which one parent
wrongfully removed them?
[234]
The starting point of the analysis remains the decision of the
Supreme Court of Canada in
United States of America v. Cotroni
, [1989]
1 S.C.R. 1469, where that court considered whether the surrender of a Canadian
citizen to a foreign state constituted an infringement of his right to remain
in Canada as found in s. 6(1) of the
Charter
and, if it did, whether
the infringement was justified under s. 1 of the
Charter
. Although the
court held, at p. 1482, that the central thrust of s. 6(1) is against exile
and banishment, the purpose of which is the exclusion of membership in the
national community, the court rejected the contention that s. 6(1) of the
Charter
would only apply when a Canadian citizen is threatened with exile, banishment,
or expulsion. Instead, drawing on the broad phrasing of s. 6(1)s guarantee of
the right to remain in Canada, the court held that [t]he right to remain in
one's country is of such a character that if it is to be interfered with, such
interference must be justified as being required to meet a reasonable state
purpose:
Cotroni
, at p. 1480. The court concluded that extradition
prima
facie
infringes upon the right guaranteed by s. 6(1) of the
Charter
:
at pp. 1479-81;
Divito v. Canada (Public Safety and Emergency Preparedness)
,
2013 SCC 47, [2013] 3 S.C.R. 157, at paras. 46-47.
[235]
However, the court went on to hold that the infringement was
justified under s. 1 of the
Charter
: the infringement to s. 6(1) that
results from extradition lies at the outer edges of the core values sought to
be protected by the provision; the impact of extradition on the rights of the
citizen is of secondary importance as an accused may return to Canada following
his trial (if acquitted) or completion of sentence; the objective of
extradition relates to concerns that are pressing and substantial, specifically
the investigation, prosecution and suppression of crime with an international
dimension for the protection of the citizen; and the means are proportional as
extradition practices have been tailored, as much as possible, for the
protection of the liberty of the individual:
Cotroni
, at pp. 1481-82,
1485, 1490.
[236]
Three decisions of this court have touched upon the relationship
between
CLRA
s. 40(3) and s. 6(1) of the
Charter
, but in none
was the court asked to consider squarely whether the operation of
CLRA
s. 40(3) has the effect of infringing a childs rights under s. 6(1) of the
Charter
.
[237]
Parsons v. Styger
(1989), 67 O.R. (2d)
1 (H.C.), affd (1989), 67 O.R. (2d) 11 (C.A.), was a case under the
Hague
Convention
in which the court granted a fathers application for return of
the infant child to California. The child had dual Canadian and American
citizenship. In response to an argument made by the mother resisting the return
on the basis of the childs rights as a Canadian citizen, the application judge
stated, at p. 10: As a Canadian citizen does [the child] have the right to
remain in Canada in defiance of The
Hague Convention
? I think not. No
more so than a Canadian citizen could defeat a Canadian [c]ourt extradition
order to a [t]reaty co-signatory member. In a very short endorsement, this
court dismissed the mothers appeal without commenting on the s. 6(1) argument.
[238]
In
J.P.B. v. C.B.
, 2016 ONCA 996, 2 R.F.L. (8th) 48, a
panel of this court had ordered that two children be returned to Germany in a
proceeding under the
Hague Convention
. The OCL moved for a stay of that
order pending an application for leave to appeal the panel decision to the
Supreme Court of Canada. Benotto J.A., sitting as a motion judge, dismissed the
stay motion. In the course of her reasons she addressed the OCLs argument
based on s. 6 of the
Charter
, stating, at paras. 27 and 28:
The OCL submits that the children, as Canadian citizens, have a
right to remain in Canada pursuant to s. 6 of the
Charter.
Children who have been
abducted from their country of habitual residence and brought to a country
where they are citizens are not immunized from the application of the Hague
Convention and may be ordered to return to a custodial parent in another
country:
see
Kovacs v. Kovacs
(2002),
59 O.R. (3d) 671 (S.C.), at para. 117.
The proposed appeal does
not raise a serious question to be tried
. [Emphasis added.]
[239]
Finally,
Ojeikere
concerned an order made under
CLRA
s. 40(3) that three children 12, 14, and 15 years old be returned to
Nigeria. All were Canadian citizens. The majority reasons stated that the
factors to be considered in assessing the issue of serious harm under
CLRA
s. 23 included the risk of psychological harm to and the views of the children.
The majority regarded the Canadian citizenship of the children as an element of
a courts assessment of the risk of psychological harm, stating, at para. 85:
[T]he childrens desire to stay in Ontario is
reinforced by their citizenship. All three children are Canadian citizens who
would be entitled to stay here but for this custody dispute. Of course, the
views and objections of non-Canadian citizens would also be relevant under s.
23. But the childrens rights as Canadian citizens, rooted in their
constitutional right under s. 6(1) of the
Canadian Charter of Rights and
Freedoms
to remain in Canada, is an added consideration somewhat
increasing the risk of psychological harm from being ordered to return to
Nigeria.
[240]
Miller J.A., in his concurring reasons, queried the appropriateness
of including the childrens citizenship as a factor in the serious harm
analysis, in part because it would grant an implicit exemption to Canadian citizens
from the ordinary application of the
Hague Convention
. He noted, at
para. 122:
It is settled law, for example, that s. 6
(properly qualified by s. 1 considerations) does not preclude extradition,
given that the purpose of extradition is not exclusion from membership in the
national community:
United States of America v. Cotroni
, [1989] 1
S.C.R. 1469, at p. 1482. Just as the extradited citizen is eventually free to
return to Canada, so too is the child citizen who, at the direction of one or
both parents, is relocated overseas.
[241]
The majoritys reasons in
Ojeikere
suggest that the weight
to be accorded to a childs Canadian citizenship in a serious harm analysis
will vary according to the age of the child and his or her consequent ability
to express their views, for Laskin J.A. wrote, at para. 78: A 15-year-old who
expresses a considered objection to returning to the country of habitual
residence is harmed far more by a forced removal than is, say, a
five-year-old.
[242]
Counsel also referred to the decision of the Saskatchewan Court of
Queens Bench in
J.S.S. v. P.R.S.
, 2001 SKQB 283, [2001] S.J. No. 380,
a case involving an application in respect of Article 12 of the
Hague
Convention
for the return to the United States of a 6-year old child who
was a Canadian citizen. In the proceeding, the mother, who had been granted
interim custody by a Saskatchewan court, contended that she thereby had the
standing to exercise the childs right under s. 6(1) to remain in Saskatchewan.
The application judge rejected that submission but went on to consider whether
a return order made under the
Hague Convention
would infringe the
childs s. 6(1) rights.
[243]
The application judge concluded it would not, stating, at para. 19:
The rights protected by s. 6(1) are not
infringed by family law orders relating to the custody or residence of a minor
child. Children do not have control over their own residence. They are always
subject to the direction of their parents or in the case of parental disputes
an order of the Court. While s. 6(1) protects a citizens right to stay in
Canada it also guarantees the citizens right to leave Canada. If a family law
order requiring that a child be returned to the United States breached the
childs right to stay in Canada, then equally the family law order requiring
the child to stay in Canada would breach the childs right to leave Canada. All
family law orders that contain any restriction on a childs residence would
prima
facie
infringe one or the other right under s. 6(1) and would have to be
justified under s. 1 of the
Charter
. If [J.S.S.]s argument were
correct there would be a substantial restriction on the power of the courts to
grant custody to parents who live outside of Canada.
[244]
In any event, the application judge regarded the return power in Article
12 of the
Hague Convention
as a reasonable limitation that was justified
under s. 1 of the
Charter
.
[245]
Notwithstanding that the weight of the jurisprudence suggests return
orders do not infringe a childs s. 6(1) rights, I think the generous
interpretation of that right as formulated in
Cotroni
and
Divito
directs a different conclusion, namely that an order made under
CLRA
s. 40(3) to return a Canadian citizen child to a place outside of Canada
prima
facie
infringes the childs
Charter
right to remain in Canada. I
see no analytical utility in characterizing such an order as near, on the outer
edge, or having fallen off the table of the core values protected by s. 6(1).
Cotroni
emphasized the broad language of s. 6(1), and a return order
made under
CLRA
s. 40(3) clearly prevents a child from remaining in
Canada.
[246]
However, just as with extradition orders, such a
prima facie
infringement is justified as a reasonable limit under s. 1 of the
Charter
.
Considering each element of the s. 1 analysis in turn:
(i)
CLRA
s. 40(3)
addresses pressing and substantial objectives: to remedy the harms caused to a
child and the parent left behind by the wrongful removal of a child; to
discourage the abduction of children as an alternative to the determination of
decision-making responsibility by due process; and to ensure that issues
concerning the custody of a child are determined by a tribunal having
jurisdiction in a place other than Ontario with which the child has a closer
connection;
(ii)
There is a clear connection between those
objectives and the means chosen to implement them in
CLRA
s. 40(3):
the provision is remedial in nature as it seeks to restore the childs
status
quo
ante
, or position before his or her wrongful removal;
(iii)
The provision meets the requirement of minimal
impairment: the harm the provision seeks to remedy is the childs wrongful
removal; no other remedy would right that wrong; and
(iv)
The
Charter
infringement of the childs
s. 6(1) rights is not too high a price to pay for the benefit of the law:
Hogg
, at §38.12. Section 40(3) is only
triggered by a finding that a child has been wrongfully removed to or retained
in Ontario. As the jurisprudence has explained repeatedly, the wrongful removal
of a child is a bad thing; it harms the child; it is to be discouraged. But, as
described earlier in these reasons, before issuing a removal order under
CLRA
s. 40(3) a court must examine the circumstances of the wrongful removal and
retention, together with its effect on the child, including the serious harm a
child might suffer if returned. Assessed in the context of that statutory
regime,
CLRA
s. 40(3) works a proportionate effect.
[247]
Accordingly, I conclude that
CLRA
s. 40(3) does not violate
the s. 6(1)
Charter
rights of the two children. I therefore see no
error in the trial judges dismissal of the s. 6(1) claims advanced by the
mother and give no effect to this ground of appeal.
F.
CONCLUSION ON THE
CHARTER
CLAIMS
[248]
For the reasons set out above, I see no error in the trial judges
dismissal of the mothers claims, on behalf of herself and the children, that
CLRA
s. 40(3)
violates their various rights guaranteed by ss.
2(a), 6(1), 7, and 15 of the
Charter
.
IV.
DISPOSITION
[249]
I join with Hourigan J.A. in dismissing the mothers motion for
leave to file the fresh evidence and her appeal.
David Brown
J.A.
Lauwers J.A. (dissenting):
A.
INTRODUCTION
[250]
I would allow the appeal in this difficult case and therefore
dissent, for the reasons that follow.
[251]
I have had the benefit of reading the reasons of my colleague,
Hourigan J.A. The basis for our disagreement is explained at length in our respective
reasons. Here I briefly address four of his criticisms.
[252]
First, I take no issue with my colleagues articulation of the
standard of appellate review or its purposes in preventing result-selective
reasoning by appellate courts. As I will explain, the trial judge made legal
errors that warrant reversal in his interpretation and application of ss. 23
and 40 of the
Children's Law Reform Act
, R.S.O. 1990, c. C.12 ("
CLRA
").
[253]
Second, in my view the trial judge failed to take into account
Mothers peculiar vulnerability as a foreign national, and as a woman
undergoing a divorce process in Dubai under the laws of the UAE, with its
effects on the children. The expert evidence of both parties clearly
demonstrated Mothers precarious residency status. This gave rise to an
evidentiary burden that Father, with whom all the relevant power rests, did not
dispel. His arrangements to address her precarious residency status were all
unacceptably contingent. The suggestion that I reversed the legal onus on that
issue is unfounded.
[254]
Third, the defects in Fathers case are not endemic to UAE law, so
any suggestion that my approach would set an iron-clad precedent is unfounded.
One can imagine cases in which a mothers residency status is not precarious.
In any event, courts are well able to deal with forum-shopping.
[255]
Finally, the trial judge did not accept Mothers expert evidence on
the specific impact of separation from her on the children. He found that the
impact was unknown. In my view the risk of this harm was precisely what the trial
judge had to assess in order to make determinations under ss. 23 and 40 of the
CLRA
.
[256]
I now turn to the factual background.
[257]
This is an international parenting dispute.
[5]
It is
governed by ss. 23 and 40 of the
CLRA
because Dubai is part of the
United Arab Emirates (UAE), which is not a signatory to the
Hague
Convention
,
[6]
unlike Canada. The court below declined jurisdiction and ordered the return of
the children to Dubai for parenting orders to be made there.
[258]
The father, N., and the mother, F., were married in Pakistan in
2012. For convenience, I will refer to the mother as Mother and to the father
as Father throughout. They have lived in Dubai their entire married lives.
Father is a Pakistani national. Mother was born in Pakistan and is a Canadian
citizen. She lived in Canada with her family from the age of 15 until her
marriage to Father, when she moved to Dubai. She has family in Ontario whom she
usually visits for about three weeks each year. Daughter, Z., was born in
Ontario in 2016 and is a Canadian citizen. Son, E., was born in Dubai in 2019
and is also a Canadian citizen.
[259]
Neither party nor their children are citizens of the UAE. Mother has
no independent status to reside in the UAE. She and the children were sponsored
by Father and are subject to his UAE residency permit. Father is seeking a
divorce in the UAE. Under UAE law, if Mother does not secure a residency permit
within a one-year grace period after the divorce, she will be required to leave
the UAE, likely without the children.
[260]
On June 19, 2020, Mother travelled to Ontario with Z. and E. to
visit family for one month. Father consented to the trip but did not consent to
Mother moving the children to Ontario permanently. On or around July 2, 2020,
Mother told Father that she and the children were not returning to Dubai. She
cancelled Z.s enrollment in school in Dubai and enrolled her in school in
Ontario.
[261]
Father objected and applied to the Ontario Superior Court for an
order returning the children to the UAE under s. 40 of the
CLRA
.
Mother, in response, asked the court to exercise jurisdiction under s. 23 of
the
CLRA
and to make parenting orders.
[262]
The trial judge found that he could not exercise jurisdiction under
s. 22 of the
CLRA
. He declined to exercise jurisdiction under s. 23
because he was not satisfied, on a balance of probabilities, that the children
would suffer serious harm if they were removed from Ontario and returned to
Dubai. The trial judge then exercised his discretion under cl. 3 of s. 40 of
the
CLRA
and ordered that the children be returned forthwith to
Father in Dubai. He was satisfied on the evidence that the children were being
wrongfully retained in Ontario by Mother under s. 40(a). He dismissed
Mothers constitutional challenges to the legislation. The Attorney General of
Ontario intervened on those constitutional challenges at first instance and in
this court. The Office of the Childrens Lawyer also intervened on the
constitutional challenges, but only in this court.
B.
OVERVIEW
[263]
The trial judge reached three basic conclusions. First, he found
that the children are not habitually resident in Ontario but rather in Dubai.
[7]
The children had no real and
substantial connection to Ontario.
[8]
He also found that the parties did not share the intention to permanently
relocate the family to Canada.
[9]
In my view, these factual findings are right. Consequently, the trial judge
found that he could not exercise jurisdiction under s. 22(1)(b) of the
CLRA
.
[10]
This legal conclusion is also
right.
[264]
Second, the trial judge was satisfied on the evidence that Mother
had wrongfully retained the children in Ontario,
[11]
giving him authority to make
an order returning the children to Father in Dubai under s. 40, cl. 3 of the
CLRA
.
Again, this factual finding and the legal conclusion that follows from it are
both right.
[265]
However, the trial judges third conclusion is problematic. He found
that a Dubai court would, on his view of the expert evidence, decide custody
based on the childrens best interests.
[12]
He concluded, therefore, that in the pending proceeding in Dubai brought by
Father, there is no risk of serious harm to the children if they are returned
to Dubai that could trigger the application of s. 23 of the
CLRA
.
[13]
[266]
This appeal turns on whether, in his approach to ss. 23 and 40 of
the
CLRA
, the trial judge considered the relevant principles in
assessing the risk of serious harm to the children. In my view, he failed to do
so and made legal errors that warrant reversal.
[14]
C.
iSSUES
[267]
Mothers numerous grounds of appeal compress into three issues:
1.
What is the nature of Ontarios interest in the parties parenting
dispute?
2.
Did the trial judge err in ordering that the children be returned to
Father in Dubai?
3.
Is the provision of Ontarios legislation that permits such a return
order unconstitutional?
[268]
I do not address the constitutional issues in this dissent.
D.
ISSUE ONE: WHAT IS THE NATURE OF ONTARIOS INTEREST
IN THE PARTIES CUSTODY DISPUTE?
[269]
This case is framed by the fact that Mother is withholding the
children, who are habitually resident in Dubai. As a policy matter, Canada and
Ontario deplore the wrongful withholding or retention of children who, while
physically present in Ontario, are habitually resident elsewhere. Section 19 of
the
CLRA
discourages the abduction of children as an alternative to
determination by due process.
[270]
This perspective on wrongful retention of children is reinforced by
Canadas subscription to the
Hague Convention
, which aims to secure the
prompt return of children wrongfully removed to a contracting state and obliges
contracting states to take various measures towards that goal, including
ordering the childs return in most circumstances. Section 46 of the
CLRA
incorporates the
Hague Convention
into law in Ontario. In wrongful
retention cases where the children are habitually resident in a contracting
state, the provisions of the
Hague Convention
apply.
[271]
However, in this case, the jurisdictional and extra-provincial
provisions of the
CLRA
govern because the UAE is not a signatory to
the
Hague Convention
. Even though Canada and Ontario have set their face
against child abduction and wrongful child retention, there are circumstances
in which an Ontario court will consider the application of a parent for custody
in Ontario. In both ss. 23 and 40 of the
CLRA
, the best interests of
the child pose a potentially countervailing policy influence against the
policy favouring the return of wrongfully retained children.
(1)
The role of the best interests of the child in
interpreting and applying ss. 23 and 40 of the
CLRA
[272]
The Supreme Court of Canada has noted often that in interpreting
legislation the court must heed the text, the context and the purpose of a
provision. The concept of the best interests of the child plays a basic role
in interpreting and applying ss. 23 and 40 of the
CLRA
. Section 19(a)
specifies expressly that one of the purposes of Part III of the
CLRA
,
which includes ss. 23 and 40, is to ensure that matters are determined on the
basis of the best interests of the children. While s. 23 does not use the
phrase, cl. 1 of s. 40 gives the court authority to: Make such interim
parenting order or contact order as the court considers is in the best
interests of the child.
[273]
Section 24(2) of the
CLRA
requires a court, in determining
the best interests of a child, to consider all factors related to the
circumstances of the child and to give primary consideration to the childs
physical, emotional and psychological safety, security and well-being. In s.
24(3), a non-exhaustive list of factors related to the circumstances of a child
is provided. These factors will often be relevant in assessing whether a risk
of serious harm exists under s. 23, and in determining whether a return order
should be made under s. 40.
[274]
What goes into an assessment of the best interests of the child will
vary with the context. Section 21 contemplates a full-scale assessment but that
is not expected under either s. 23 or s. 40. Nonetheless, in exercising
authority under both ss. 23 and 40, the court must be alive to the issue.
[275]
In
H.E. v M.M.
, 2015 ONCA 813, 393 D.L.R. (4th) 267, at
para. 82, leave to appeal refused, [2016] S.C.C.A. No. 63, Weiler J.A. noted
that because [c]hildren have no control over where their parents litigate,
[t]he
CLRA
mandates a child-centered approach based on the best
interests of the child in discouraging child abduction. Laskin J.A. pointed to
the primacy of the best interests of the child in
Ojeikere v. Ojeikere
,
2018 ONCA 372, 140 O.R. (3d) 561, at paras. 13, 16 and 17. Assessing best
interests requires a holistic approach:
M.A.A. v D.E.M.E.
, 2020 ONCA
486, 152 O.R. (3d) 81, at para. 44,
per
Benotto J.A., leave to appeal
refused, [2020] S.C.C.A. No. 402. Benotto J.A. added, at para. 76: When the
issue is potential harm to children, the courts must always be guided by the
childrens best interests.
[276]
The exercise of the courts discretion under both s. 23 and s. 40
must be guided by the imperative of the best interests of the children.
(2)
The governing principles regarding the serious
harm exception
[277]
I now turn to consider the serious harm exception in s. 23(b)(iii)
of the
CLRA
, which allows the court to exercise jurisdiction to make a
parenting or contact order even though the child is not habitually resident in
Ontario and is, as here, being wrongfully retained in Ontario, where the child
would, on the balance of probabilities, suffer serious harm if
removed from
Ontario.
[278]
What constitutes serious harm? The context for considering this
question is that the foreign jurisdiction, the UAE, has declined to sign the
Hague
Convention
, whose signatories are, according to the Conventions preamble,
[f]irmly convinced that the interests of children are of paramount importance
in matters relating to their custody. The adherence by signatories to
reciprocal obligations under the Convention gives Ontario courts some
confidence that, in the signatory foreign jurisdiction, custody will be decided
based on the childs best interests. By contrast, [i]n cases decided under s.
23, an Ontario court will not always have the same assurance that a
non-signatory country will, as Ontario does, put the best interests of children
first:
Ojeikere
, at para. 61,
Geliedan v. Rawdah
, 2020 ONCA
254, 446 D.L.R. (4th) 440, at paras. 37-38, leave to appeal refused, [2020]
S.C.C.A. No. 193.
[279]
The exercise of the courts discretion under s. 23 should be guided
by principle. As Laskin J.A. noted in
Ojeikere
, at para. 63, the
relevant factors will vary from case to case. He added: In some cases, one
factor may decisively show serious harm; in other cases a combination of
relevant factors may do so. One or more of the factors listed in s. 24(3)
might be relevant to this determination. The threshold for demonstrating
serious harm under s. 23 is lower than the standard under the
Hague
Convention
, which requires a grave risk of an intolerable situation:
Ojeikere
,
at paras. 58-59, 62;
M.A.A. v. D.E.M.E.
, at para. 43,
Thomson v.
Thomson
, [1994] 3 S.C.R. 551, at pp. 596-597, [1994] S.C.J. No. 6, at
para. 80.
[280]
The court must assess both the likelihood and the severity of a risk
of future harm:
Ojeikere
, at para. 62. Where a risk of serious harm
exists, the aim of discouraging child abduction must yield to
the best
interests of the child:
H.E. v. M.M.
, at para. 87. The objective of
discouraging child abduction then becomes secondary to the aim of preventing
serious harm to the child:
Ojeikere
, at para. 39.
(3)
The application of the governing principles
[281]
The possible serious harm at issue in this case is the effect on the
children of Mothers involuntary separation from them. I note that my
colleagues reasons refer to this courts comments in
Ojeikere
that a
parent should not be able to voluntarily refuse to return to the habitual
residence and then rely on the serious harm that separation from her would
create. That is not the issue in this case. Here, on the facts as found by the trial
judge, the mothers lack of status in the UAE may force her involuntary
separation from the children. The trial judge did not mention this possibility
in considering the risk of serious harm under s. 23. He referred to the
possibility of adverse impacts if Z. and E. are returned to Dubai without
Mother and to her claim that she will not return to Dubai if the children are
ordered to return there, before commenting that there is nothing else in the
evidence at trial that this court finds to be relevant to the serious harm
assessment for Z. and E.
[15]
The trial judge failed to properly assess the harm of an involuntary separation
and, in so doing, made a palpable and overriding error.
[282]
The risk of this harm emerges from the intersection of three
different elements: the precariousness of Mothers residential status in Dubai;
the uncertain status of the proposed consent order on which the trial judges
decision hinged, particularly if Father were to change his mind and not take
out the consent order in Dubai or to later countermand it; and the unacceptable
nature of the allocation of parenting responsibilities between Father and
Mother if the situation reverted to UAE law. I address each element in
sequence, after describing the serious harm in issue.
(a)
Separation of Mother from the children would constitute serious harm
[283]
One of the factors referred to in s. 24(3) is the nature and
strength of the childs relationship with each parent. The trial judge found
that Mother is and has always been the primary caregiver for Z. and E.
[16]
He found that Mother had
fulfilled this role well, describing her as a loving and caring and devoted
mother who has been a powerful force in the lives of these two children and
has so much to offer them.
[17]
Comparatively, the trial judge found that Father had always been less involved
in their care.
[18]
[284]
Mothers expert witness, Carol-Jane Parker, gave
evidence on the potential impact on
infants, including Z. and E., of separation from their primary caregiver. The trial
judge accepted Ms. Parkers evidence that [b]rain development in an infant is
impacted where there is a loss of consistency that the primary caregiver
provides.
[19]
[285]
However, the trial judge declined to accept Ms. Parkers evidence as
to what would happen to Z. and E. if they were separated from Mother.
[20]
On a
voir dire
, Ms. Parker had said that she
was not able to express an opinion about Z. and E. with any degree of
certainty.
[21]
In her evidence, she expressed opinions about Z. and E. with a very high
degree of certainty.
[22]
This inconsistency left the trial judge unable to rely on Ms. Parkers opinion
evidence on the likely impact of separation on Z. and E., in particular.
[286]
The trial judge accepted that as for whether infants, generally,
face potential adverse impacts, emotional and psychological, upon separation
from their primary caregiver, the answer is, undoubtedly, yes.
[23]
But he went on to find that
as for whether that would occur here, with Z. and E., if separated from
[Mother], the answer is unknown.
[24]
[287]
The trial judge made a palpable and overriding error in finding
that, because he could not accept the expert evidence offered on the specific
impact of separation on Z. and E., that impact was unknown. The risk of this
harm was precisely the issue that the trial judge needed to determine, on the
evidence available to him, to make determinations under ss. 23 and 40.
[288]
The absence of expert evidence on the specific impact on Z. and E.
did not render him unable to make this determination. Z. and E. are very young
children. Z. is four years-old, and E. is not yet two. The trial judge accepted
that Mother is their primary caregiver. The particular role and emotional
bonding the child enjoys with his or her primary caregiver and [t]he
importance of preserving the childs relationship with his or her psychological
parent are well recognized:
Gordon v. Goertz
, [1996] 2 S.C.R. 27, at
para. 121,
per
L'Heureux Dubé J. (concurring). This relationship may
be the most determinative factor on the childs long-term welfare:
Gordon
,
at para. 121. No further evidence was needed to conclude that separating Z. and
E. from Mother would put them at risk of serious harm.
[289]
In
Ojeikere
, Laskin J.A. stated, at para. 92, in connection
with much older children, that, [t]here may be cases where a parents refusal
to accompany the children back to the country of habitual residence could give
rise to a serious risk of harm to the children. Laskin J.A. did not give
weight to this factor because, in the circumstances of that case, the mother
had simply asserted that there was nothing for her in returning to the habitual
residence of Nigeria. The mother was born in Nigeria and there was no legal
impediment to her returning to and staying in Nigeria with the children.
[290]
If a parents voluntary refusal to return to the country of habitual
residence with teenage children could give rise to a serious risk of harm, it
follows that so could a
primary
parents
legal inability
to
remain with her young children in the country of habitual residence.
[291]
In my view, an indefinite separation of two quite young children,
one under two years and the other only four, from the parent who has always
been their primary caregiver, constitutes a risk of serious harm. This finding
can be reached without any expert evidence on the specific impact such a
separation is likely to have on Z. and E. in particular. A risk of serious harm
is established if the court is convinced on a balance of probabilities that
this separation will occur.
(b)
Mothers residential status in the UAE is
precarious
[292]
The trial judge did not give due weight to Mothers precarious
residency status in the UAE. She has no legal right to remain in the UAE. Her
residency permit is and has always been contingent on Fathers residency
permit. Father proposed several ways to mitigate the risk of separation due to
her loss of residency, but none is assured. There is no solid legal arrangement
that mitigates the risk of harm to the children.
[293]
As noted, after the parties divorce, Mother will have a one-year
grace period in which to secure a new residency permit.
[25]
She could do so if Father
buys real estate of a certain value in her name.
[26]
In a with-prejudice letter
from his counsel, dated October 30, 2020, Father undertook to buy a property in
Mothers name, to be held in trust for Z. and E.
[27]
However, as the trial judge
noted, Father has provided no evidence to substantiate his financial ability to
do so.
[28]
[294]
On the facts found by the trial judge, Mother could not secure a
residency permit independently. Instead, she would be reliant on Father fulfilling
his undertaking. In a proposed settlement agreement, Father also agrees to
procure, either directly or through a third party a residency visa for
[Mother] at all times.
[29]
The copy of this agreement in the record is not signed by either party.
[30]
[295]
The trial judge did not consider whether Fathers undertaking would
be enforceable in Dubai and made no findings on the recourse available to
Mother if Father were to rescind or fail to fulfil his undertaking, or to later
countermand the consent order. Without such recourse, Mothers ability to
secure a residency permit would be entirely within Fathers control.
[296]
In short, Father has not proven his ability to mitigate Mothers
precarious residency status.
(c)
The proposed consent order is unacceptably
contingent
[297]
The trial judge was clearly reassured by Fathers proposed
settlement agreement, referred to in the October 2020 with-prejudice letter
from Fathers counsel, which the trial judge reproduced in his reasons.
[31]
The letter states that the
proposals terms could be included as an order of the court as a condition of a
return order under s. 40, and that [t]he terms herein will be made into a
consent Order/Judgment issued by the court in the UAE.
[298]
Under Fathers settlement proposal, he would secure a residency permit
for Mother, she would remain the childrens primary caregiver, they would share
decision-making, and Father would provide financial support.
[32]
[299]
Both parties called expert witnesses on family law in the UAE. The
application judge accepted the evidence of Diana Hamade, Fathers expert, in
full, and preferred it over the evidence of Elena Schildgen, Mothers expert.
[33]
[300]
Ms. Hamade stated that settlement agreements made between parents
are respected by the courts in the UAE.
[34]
Ms. Schildgen admitted in cross-examination that people in the UAE that
separate and have children regularly turn to agreements to share
decision-making and parenting time, and that those agreements are then made
into and enforced as judgments of the court.
[35]
[301]
Based on this evidence, the trial judge found that:
[A]s for whether the settlement proposed by
[Father], if agreed to by [Mother], will be able to be incorporated into a
valid court order in Dubai, approved by the court in Dubai, and enforceable as
a valid court order in Dubai, the answer is, unreservedly, yes.
[36]
The trial judge repeated this finding
in his conclusions on s. 23.
[37]
[302]
As with the undertaking to secure residency for Mother, the trial
judge does not appear to have considered whether Fathers settlement proposal,
in its current form, is actually enforceable in Dubai at Mothers instance. At
present, it is no more than a proposal. While I acknowledge the trial judges
finding that Father was significantly more credible than Mother, his
credibility cannot be relied upon to presume that he will honour the proposal
he has made.
[38]
There does not appear to be anything preventing Father from rescinding this
proposal and either making a new proposal on less favourable terms, or refusing
to enter into a settlement agreement at all. Fathers proposed consent order is
unacceptably contingent.
(d)
If UAE law were to prevail, Mother would not
have the incidents of custody contemplated by Ontario law, to the detriment of
the children
[303]
If Father were to rescind or unacceptably alters the settlement
proposal, UAE law would govern the parenting dispute. The risk of Mother
becoming separated from the children due to her residency status must therefore
be considered in the context of family law in the UAE.
[304]
The trial judge found that the best interests of Z. and E. would be
the paramount
consideration in determining custody in a court in Dubai (emphasis
in the original).
[39]
He commented that the best interests of the child means everything in custody
proceedings in Dubai.
[40]
However, a review of the expert evidence, and the trial judges findings,
demonstrates that the best interests of the child are to use the language of
the
CLRA
applied
only in disputes over parenting time, and not to determine the division of
decision-making responsibility.
[305]
The expert evidence concerning Dubai law might have lulled the trial
judge into a false sense of security that Dubais understanding of the term
the best interests of the child substantially resembles Ontarios
understanding. While I agree with his statement that the foreign legislation
need not duplicate Ontarios legislation,
[41]
the fact that it might fall far short must be a relevant consideration to an
Ontario court.
[306]
The trial judge reproduced the entirety of Ms. Schildgens
cross-examination in his reasons and placed great emphasis on her admissions
about the UAEs
Personal Status Law
, which governs parenting disputes.
[42]
Ms. Schildgen admitted that while the UAE legislation does not say best
interests, there is no expression in Arabic that equates to best interests.
[43]
However, the phrase
interests of the child in the legislation has been applied to mean best
interests of the child.
[44]
The trial judge commented:
The cross-examination of Ms. Schildgen at
trial eviscerated the very underpinning of the mothers case
that is that the
children cannot be returned to Dubai because this Court can have no confidence
that any decision made there regarding their welfare will be based,
as the paramount consideration
, on their best interests. Ms. Schildgens evidence in
cross-examination points precisely to the opposite conclusion. [Emphasis in the
original.]
[45]
[307]
The fact that the law in the UAE uses an expression equivalent to
best interests of the children cannot determine the issues in this case. It
is not the language of the law but its substance that governs.
[308]
The experts agreed that, in the UAE, upon divorce, a mother will
usually have what they call custody of the children, and the father will have
what is called guardianship.
[46]
The experts also agreed that what they were referring to as custody amounted
to care of the children.
[47]
Fathers, as guardians, are assured decision-making power. A mother can lose
custodial rights upon the children reaching a certain age (11 for a male child,
13 for a female child), or if she remarries.
[48]
The expert evidence at trial established that this loss of custodial rights is
not automatic and depends on the best interests of the children involved.
[49]
[309]
When asked what role the best interests of children plays in the
courts decision-making process and within the legislation, Ms. Hamade
responded that it is taken into account when we talk about the end of the
custody years of children.
[50]
In cross-examination, Ms. Schildgen agreed that the principle that custody
shall revolve around the interests of the child had been applied in hundreds
of cases in Dubai.
[51]
She agreed that a court in the UAE has to consider the best interests of the
children if custody is disputed upon them reaching the age where a mother can
lose custodial rights, or when the mother remarries.
[52]
The best interests of
children are also considered when a father seeks custody.
[53]
[310]
The trial judge, after reproducing Ms. Schildgens
cross-examination, commented that Ms. Schildgen agreed that the best interests
of the child determine all decisions of the court, regardless of whether the
decision is being made
at first
instance
, or when the children turn certain
ages, or when the mother remarries, or whenever the decision is being made
(emphasis added).
[54]
In fact, neither expert provided evidence that the best interests of the child
are taken into account in any kind of first instance decision on parenting
arrangements.
[311]
Instead, both experts suggested that the initial allocation of
parenting responsibility is automatic, with custody (care of the children)
going to the mother and guardianship (decision-making) to the father. Ms.
Hamade stated that, generally, custody in the United Arab Emirates goes to the
mother, while guardianship is with the father.
[55]
Ms. Schildgen stated that
custody goes to the mother, while the father gets guardianship.
[56]
The experts described the
difference between custody and guardianship in similar terms. According to Ms.
Schildgen, custody, essentially, means day to day care.
[57]
Ms. Schildgen and Ms. Hamade
agreed that the guardians role is tied to finances, and that the guardian
makes the major decisions, including on the childrens education and religion.
[58]
[312]
The trial judge appears to have accepted that without an enforceable
settlement agreement, and without any best interests of the child analysis
being performed by the Dubai court, Mother and Father would occupy the
prescribed custody and guardianship roles described by the experts. He
states:
I accept the evidence of both Ms. Hamade and
Ms. Schildgen that [Mother] will be granted custody of the children in Dubai,
and that means day to day care and the decision-making authority that goes
along with that. Further, I accept the evidence of Ms. Hamade that the rights
of the custodian are not subject to those of the guardian. Besides, the fact
that the guardian, [Father], is able to make certain decisions about the
children is of no consequence here, in terms of prejudice to [Mother], because
the evidence demonstrates that things like education and religion
were not
subjects of dispute between the parties by the time that [Mother] left with the
children in June 2020. There is simply no basis in the evidence at trial to
conclude that the custodial rights of [Mother] in Dubai will be some illusory
concept that will not have any real meaning to it. I find otherwise.
[59]
[313]
Decision-making responsibility is defined in s. 18(1) of the
CLRA
as responsibility for making significant decisions about a childs well-being,
including with respect to, (a) health, (b) education, (c) culture, language,
religion and spirituality, and (d) significant extra-curricular activities. In
the UAE, according to both experts, all decision-making responsibility is
reserved to the guardian.
[314]
This automatic assignment of decision-making power to fathers is in
direct contrast to s. 20(1) of Ontarios
CLRA
, which, at the date of
trial, provided: Except as otherwise provided in this Part, a childs parents
are equally entitled to custody of the child. This provision was updated:
Except as otherwise provided in this Part, a childs parents are equally
entitled to decision-making responsibility with respect to the child. The
change is one of terminology, not philosophy.
[315]
Section 19 of the
CLRA
clearly states that one of the
purposes of the parenting order provisions is:
[T]o ensure that applications to the courts
respecting
decision-making
responsibility
, parenting time, contact and
guardianship with respect to children will be determined on the basis of the
best interests of the children. [Emphasis added.]
One of the factors pertaining to the
best interests of the child analysis, listed in s. 24(3), is (h) the ability
and willingness of each person in respect of whom the order would apply to care
for and meet the needs of the child.
[316]
The automatic assignment of decision-making responsibility to one
parent is not, as the trial judge found, of no consequence. It is a
pronounced departure from Ontarios understanding of the best interests of the
child in determining parenting arrangements.
[317]
Equal entitlement of parents to decision-making responsibility is
one very significant way in which Ontarios legislation puts the best interests
of children first. Where parents disagree, the court will choose the parent
whose decisions will best promote the childrens best interests to make
decisions. A system that automatically entitles a father to responsibility for
all major decision-making deprives the court of the opportunity to grant
decision-making responsibility to the parent who will best promote the
childrens best interests. On the trial judges own findings, in the UAE,
decision-making responsibility would not be determined based on the best
interests of the children as Ontario understands them.
[318]
This is particularly problematic in this case. The trial judge did
not consider whether, absent a settlement agreement, and as custodian and not
guardian, Mother would be able to take Z. and E. with her if she were forced to
leave the UAE due to her precarious residency status. Evidence accepted by the trial
judge strongly suggests that she would not be able to do so.
[319]
Ms. Hamades expert report states:
A mother must live near to the father of the
children otherwise may lose custody. It must be noted that the mother can
relocate with the children to another state without forfeiting custody, if she
so desires however the move should not harm the father or cause him hardship in
travelling to see the children, hence the distance between the location of the
mother and the father must not be too great.
[60]
[320]
Ms. Hamade also states that, in the UAE, either parent can make an
ex parte
application to the court for a
travel ban to prevent the children from leaving the UAE with the other parent.
[61]
This suggests both that
Mother would not be permitted to leave the UAE for Canada with her children
over the objections of their guardian, Father, and that he could prevent Mother
from doing so by obtaining a travel ban.
[321]
Ms. Schildgens report points to several parts of the UAEs
Personal Status Law
that support this
conclusion. Article 149 states: It shall not be permissible for the custodian
female to travel with the child in custody abroad except with the approval of
the status guardian in writing. Ms. Schildgen states that under arts. 150(2)
and 152, Mother could lose her custodial rights if she moved out of the UAE. Ms.
Schildgen also states that Father, as guardian, would have the right to keep
the childrens passports, pursuant to art. 157.
[62]
[322]
Based on the expert evidence, UAE law would not confer on Mother the
ability to take Z. and E. with her if her residency status lapsed and she were
forced to leave the UAE.
(4)
Conclusions on s. 23
[323]
The trial judge erred in his approach to s. 23 of the
CLRA
and in his treatment of the evidence.
[324]
To recapitulate, separating Mother from the children would
constitute serious harm to them and would be inconsistent with their best interests.
[325]
Mothers residential status in Dubai is undoubtedly precarious on
the evidence. The trial judge made a palpable and overriding error in failing
to give any practical weight to this fact. Father has not proven his financial
ability to remedy Mothers precarious residency status, which is entirely under
his control.
[326]
The consent agreement proposed by Father is unacceptably contingent.
[327]
Further, at the moment there is no negotiated parenting agreement
that might apply to the familys life in Dubai. There is no evidence that a
negotiated settlement agreement in a form acceptable to Mother and reasonably
congruent with the best interests of the children under Ontario law would be
enforceable in Dubai at Mothers instance if Father changed his position.
[328]
On the evidence, in the absence of a settlement agreement, a
parenting determination by the Dubai courts would not be made based on the
childrens best interests, as understood under Ontario law. This court held in
H.E.
v. M.M.
, at para. 30, that Egyptian law, under which fathers are
automatically decision-makers while physical custody remains with the mother
until the children turn 15, would not determine custody based on the best
interests of the child.
[329]
The number of contingencies left open by the trial judge gives rise
to a real risk that Z. and E. could suffer the serious harm of being separated
from their primary caregiver, Mother. I am satisfied on the record that the
children would, on the balance of probabilities, suffer serious harm if they
were removed from Ontario and returned to the UAE. In my view, an Ontario court
may exercise its jurisdiction pursuant to s. 23 to make parenting orders. The
matter should proceed to a hearing on what parenting orders would be in these
childrens best interests. Father may present evidence to allay the concerns
identified and to satisfy the court that residing in Dubai would be in these
childrens best interests, which could lead to a parenting order under s. 21
requiring their return to Dubai.
E.
ISSUE TWO: DID THE TRIAL JUDGE ERR IN ORDERING
THAT THE CHILDREN BE RETURNED TO FATHER IN DUBAI?
[330]
Section 40, cl. 3 of the
CLRA
allows a court to order a childs return to another jurisdiction in
cases of wrongful retention to which the
Hague
Convention
does not apply.
The trial judge, acting under this provision, ordered that Z. and E.
be returned forthwith to Father in Dubai.
Because I
would find that Ontario should exercise jurisdiction under s. 23, a return
order under s. 40 is not available. However, the trial judges reasons on s. 40
require comment.
[331]
Where a court finds no risk of serious harm, and so refuses to
exercise jurisdiction under s. 23, a return order under s. 40, cl. 3 does not
automatically follow. Section 40 lists things that a court may do. While art.
12 of the
Hague Convention
obliges a court that does not find a grave
risk under art. 13 to order a childs return, s. 40 does not operate in the
same manner, because unlike under the
Hague Convention
, the court is
given broad discretionary powers when determining what order will remedy a
wrongful removal to or retention in Ontario:
Geliedan
, at para. 69.
[332]
The trial judge agreed that the return order is discretionary,
citing
Geliedan
, but
stated the mothers counsel offer no other potential alternative.
[63]
While alternatives may be
relevant in exercising the discretion provided by s. 40, cl. 3, it is not
incumbent on a party opposing return to provide an alternative.
[333]
The Office of the Childrens Lawyer intervened on this appeal and
argued that, in exercising the discretion to make a return order under s. 40,
cl. 3 in a non-
Hague Convention
case, courts must consider whether the return order is in the
overarching best interests of the child. I agree.
[334]
The trial judge agreed with Mother that, in
Young v. Young
, [1993] 4 S.C.R. 3, all
of the Judges agreed that the best interests of the child is
the
, not merely
one of the, and not merely a, consideration that must govern all decisions
regarding the welfare of children, whether custody or access (emphasis in the
original).
[64]
Yet, the trial judge disagreed that a fulsome best interests of the child
analysis is necessary before making a return order under s. 40, cl. 3.
[65]
He asked: What does that
mean a fulsome best interests of the child analysis? The application of
section 24 and an award of custody to one of the parents, on the merits?.
[66]
[335]
The trial judge appears to have viewed the best interests of the
child analysis as an all-or-nothing exercise specific to the determination of
custody disputes. It is not.
[336]
The best interests of the child principle is widely understood and
accepted in Canadas legal system:
Kanthasamy v.
Canada (Citizenship and Immigration)
, 2015 SCC 61,
[2015] 3 S.C.R. 909, at para. 36. Canada has ratified the
Convention on the Rights of the Child
,
20 November 1989, Can. T.S. 1992 No. 3 (entered into force 2 September 1990),
and [t]he values and principles of [that] Convention recognize the importance
of being attentive to the rights and best interests of children when decisions
are made that relate to and affect their future:
Baker
v. Canada (Minister of Citizenship and Immigration)
, [1999] 2 S.C.R. 817, at para. 71. The childs best interests must
be the primary consideration [w]henever a child is affected by a court or
government process:
Ontario (Childrens Lawyer) v.
Ontario (Information and Privacy Commissioner)
,
2018 ONCA 559, 141 O.R. (3d) 481, at para. 58, leave to appeal refused, [2018]
S.C.C.A. No. 360.
[337]
The application of the best interests of the child principle is
highly contextual:
Canadian Foundation for
Children, Youth and the Law v. Canada (Attorney General)
, 2004 SCC 4, [2004] 1 S.C.R. 76, at para. 11. The relevant factors
and the depth of analysis required will vary with the scope and nature of the
impact of the judicial determination on the child. In each case, the best
interests of the child principle must be applied in a manner responsive to
each childs particular age, capacity, needs and maturity:
Kanthasamy
, at para. 35.
[338]
The implementation of a return order under s. 40, cl. 3 could have a
deep and lasting impact on a child, particularly, but not only, where that
order is enforceable by police. In my view, before making such an order, the
court must determine that doing so is in the best interests of the child,
focussing, as called for by s. 24(2) of the
CLRA
, on the childs physical, emotional and psychological safety,
security and well-being and having regard to the list of factors in s. 24(3).
Other factors may be relevant in the circumstances, including the citizenship
and residency status of each child and each parent in all of the relevant
countries.
[339]
To repeat, the best interests of the child analysis conducted under
s. 40, cl. 3 need not mirror the analysis required to make a parenting
order.
F.
DISPOSITION
[340]
I would allow the appeal. I would set aside the order of the trial
judge and order that the Ontario Superior Court has jurisdiction to make a
parenting order in relation to the children, Z. and E. Both parents would have
the right to fully participate in that determination, which would be made by a
judge other than the trial judge.
[341]
Pending that determination, I would continue the relevant parts of
the August 12, 2020 interim order of Chozik J. prohibiting: Mother from removing
Z. and E. from Ontario with the childrens passports remaining with Mothers
counsel, pending further order of the court or the agreement of both parties. I
would further order that Mother have interim custody of Z. and E. and be
permitted to remain with them in Ontario pending the determination of the
court, and that Father have generous access in that time, including by voice
calls, video calls, or personal visits. If Mother and Father cannot agree on
terms of access, I would direct them to apply to the Superior Court for interim
relief.
Released: September 14, 2021 P.L.
P. Lauwers
J.A.
[1]
In the present case, the father, in his Application, claimed
custody of the children under the
CLRA
. However, his Reply clarified
that the primary relief he sought was (i) a declaration that the appellant had
wrongfully removed the children from their habitual residence in Dubai and was
wrongfully retaining them in Ontario and (ii) an order that the mother return
the children to Dubai to the care and control of the father. If the mother did
not comply with the return order, then the father sought an order that the
children temporarily be in his care and control for the limited purpose of
travelling with him to Dubai. On her part, the mother, in her Fresh as Amended
Answer, sought a temporary and final order for sole custody of the children
under the
CLRA
.
[2]
In
Ojeikere
, there was disagreement between the majority and
concurring reasons about the precise content of serious harm. In that case,
the majority saw the relevant factors guiding the serious harm inquiry in the
particular circumstances as: the risk of physical harm; the risk of
psychological harm; the views of the children; and the retaining parents claim
that she or he would not return to the country from which the children were
taken if the children were required to return there:
Ojeikere
, at paras.
63-64. The concurring reasons warned against reducing the notion of serious
psychological harm caused by a return to mere disappointment of having to
return to another country: at para. 101.
[3]
See, for example, the discussion of the relationship between the
Charter
and custody orders in
Young v. Young
, [1993] 4 S.C.R. 3, per McLachlin
J., at p. 120, and per Sopinka J., at p. 107.
[4]
The
fathers with prejudice settlement offer is described at para. 16 above in
the reasons of Hourigan J.A.
[5]
Though the decision below was made under the previous version of
the
CLRA
,
I refer throughout to the current provisions of the
CLRA
,
which came into effect on March 1, 2021. The substance of the relevant
provisions is the same in the previous and current versions. As of March 1,
2021, the language of orders for custody and access was replaced with the
language of parenting orders involving decision-making responsibility and
parenting time.
[6]
The Hague Convention is formally known as
the
Convention on the Civil Aspects of International Child Abduction
, 25
October 1980, Can. T.S. 1983 No. 35 (entered into force 1 December 1983).
[7]
Reasons, at paras. 341 and 354.
[8]
Reasons, at para.
352.
[9]
Reasons, at para.
355.
[10]
Reasons, at para.
362.
[11]
Reasons, at para.
388.
[12]
Reasons, at para.
293.
[13]
Reasons, at para.
366.
[14]
The trial judges reasons in this case extended over 179
pages and 482 paragraphs. Large chunks of the text consisted of lengthy
verbatim recitations of evidence, arguments, and case law. This is a form of
unacceptable data dump criticized by this court in
Welton v. United Lands
Corporation Limited
, 2020 ONCA 322, at paras. 61-63. As I noted there, a
blizzard of words can obscure. That happened here too.
[15]
Reasons, at para. 366.
[16]
Reasons, at para.
291.
[17]
Reasons, at para.
380.
[18]
Reasons, at para.
291.
[19]
Reasons, at para.
308.
[20]
Reasons, at para.
312.
[21]
Reasons, at para. 313.
[22]
Reasons, at para. 314.
[23]
Reasons, at para.
294.
[24]
Reasons, at para.
294.
[25]
Reasons, at para. 194.
[26]
Reasons, at para.
194.
[27]
Appeal Book and Compendium, at p. 719.
[28]
Reasons, at para.
51.
[29]
Appeal Book and Compendium, at p. 443.
[30]
Appeal Book and Compendium, at p. 455.
[31]
Reasons, at para.
49.
[32]
Appeal Book and Compendium, at p. 441ff.
[33]
Reasons, at para.
293.
[34]
Reasons, at para.
19.
[35]
Reasons, at p
. 77.
[36]
Reasons, at para. 294.
[37]
Reasons, at para.
366.
[38]
Reasons, at para.
255.
[39]
Reasons, at para.
294.
[40]
Reasons, at para.
303
[41]
Reasons, at para.
417.
[42]
Reasons, at para.
214.
[43]
Reasons, at p.
67.
[44]
Reasons, at
pp. 68-69.
[45]
Reasons, at para.
304.
[46]
Reasons, at para
. 185 (Ms. Hamade) and para. 207 (Ms.
Schildgen).
[47]
Appeal Book and Compendium, at p. 731 (Ms. Hamades Report)
and Reasons, at para. 207 (Ms. Schildgen).
[48]
Reasons, at para. 185.
[49]
Reasons, at para. 185.
[50]
Reasons, at para. 187.
[51]
Reasons, at pp. 70-71.
[52]
Reasons, at p. 71.
[53]
Reasons, at p. 72.
[54]
Reasons, at para. 216.
[55]
Reasons, at para. 185.
[56]
Reasons, at para. 207.
[57]
Reasons, at para. 207.
[58]
Reasons, at para. 189 (Ms. Hamade) and para. 207 (Ms.
Schildgen).
[59]
Reasons, at para. 378.
[60]
Appeal Book and Compendium, at p. 736.
[61]
Appeal Book and Compendium, at p. 738.
[62]
Appeal Book and Compendium, at p. 754.
[63]
Reasons, at
paras. 382-386.
[64]
Reasons, at
para. 432.
[65]
Reasons, at p
ara. 447.
[66]
Reasons, at
para. 448.
|
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. S.K., 2021 ONCA 619
DATE: 20210916
DOCKET: C66374
Pardu, Paciocco and Nordheimer
JJ
.A.
BETWEEN
Her Majesty the Queen
Respondent
and
S.K.
Appellant
Laura Remigio, for the appellant
Justin Reid, for the respondent
Heard: September 1, 2021 by
video conference
On appeal
from the sentence imposed on March 24, 2017 by Justice Lucia Favret of the Ontario
Court of Justice.
REASONS FOR DECISION
[1]
The appellant seeks leave to appeal from sentences imposed for offences
related to four home invasion robberies. The offences were committed over a
period of approximately two months when the appellant was 17 and 18 years old.
He was sentenced to a total term of imprisonment of nine years broken down as
follows:
·
Adult sentences
·
Three counts of robbery, and one count of forcible entry,
contrary to s. 73 of the
Criminal Code
, R.S.C. 1985, c. C-46
seven
years concurrent on each count
·
Possession of a loaded firearm without a serial number- two years
consecutive to the robbery sentences
·
Possession of a firearm without a serial number two years
concurrent
·
Possession of cocaine 30 days concurrent
·
Youth sentence
·
Robbery one year concurrent to adult sentence
[2]
At the sentencing proceedings the Crown sought a global sentence of 12
years for the adult offences; the defence suggested six to seven years would be
adequate. For the youth sentence the Crown sought one year concurrent and the
defence advocated for a sentence of three to six months, also concurrent.
Nature of the offences
[3]
The home invasions took place between November 2014 and January 2015.
[4]
The first offence was committed when the appellant was 17 years old in
November 2014. He and one other person entered L.s apartment and the appellant
caged her with his arms and legs around her on a couch. He asked her where
she kept her money. After they obtained some money and her cell phone, they
left the apartment. L. was not injured and no other violence was used.
[5]
On January 3, 2015, four males, including the appellant, forced their
way into Z.s home. One of them, not the appellant, hit Z. on the head and
kicked her several times. Another, again not the appellant, had an imitation
firearm in his possession. While the culprits searched the apartment, Z.
escaped and shouted for help. The four males left. They stole $200-$300, an
iPhone, and the keys to her apartment. Surveillance video recorded the men
leaving the residence, one of whom was the appellant.
[6]
Three weeks later, H.W. woke to find a man (not the appellant) armed
with a knife in her bedroom. He demanded money and held the knife to her cheek,
cut her on the face, and placed a comforter over her head. The victim could
feel a large amount of blood flowing from the cut on her cheek and cried out.
The man ran out of her room. The males who entered her apartment were not
initially masked but donned masks after entering the apartment. Surveillance
recorded that the appellant was one of the males who entered her home.
[7]
The next day, L. was expecting a visitor. Lobby camera footage showed
the appellant using the buzzer system to get into the building, with three
other men. When L. heard a knock at her door, she opened it and four men forced
their way in. She was hit on the head, had a bag placed over her head and was beaten
and dragged to the bathroom. Another male entered the bathroom brandishing a
firearm and asked where her money was. One of the males sexually assaulted her.
There was no evidence identifying the appellant as the one who assaulted her or
used the firearm. The men left after gathering two cell phones, purses, jewelry,
and money.
[8]
On March 2, 2015, about five weeks after the last robbery, a search
warrant executed at the appellants home uncovered a loaded handgun, with an
obliterated serial number and 8.05 grams of cocaine.
Plea
[9]
The appellant pleaded guilty to the offences on October 6, 2016. An
agreed statement of facts outlined the circumstances of each of the offences.
Analysis
[10]
The
sentencing judge made errors in principle which had an impact on the sentences
imposed, and accordingly it falls to this court to determine a fit sentence:
see
R v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R.
1089, at paras. 41-44;
R v. Friesen
, 2020 SCC
9, 444 D.L.R. (4
th
) 1, at paras. 25-27.
[11]
The
sentencing judge did not differentiate in the principles to be applied when
sentencing a youth under the
Youth Criminal Justice Act
(
YCJA
), S.C. 2002, c. 1 as opposed to an adult. A youth
sentence must be the least restrictive sentence possible, while still holding
the young person accountable:
YCJA
, ss. 38(2)
(d), (e). General deterrence is not a relevant factor when sentencing a young
person. The sentencing judge was under the mistaken impression that there was a
joint submission for a one-year custodial sentence for this offence. She
indicated that she would deliver reasons on the youth sentence at a later date,
but those reasons were never delivered.
[12]
The
appellant was a youthful first offender. When dealing with the adult offences,
the sentencing judge referred to rulings from this court indicating that
ordinarily for youthful offenders, as for first offenders, the objectives of
individual deterrence and rehabilitation are paramount. She then went onto say
that that principle did not apply because of the aggravating feature of the
home invasion. That was a misreading of this courts authorities: see e.g.
R. v. Batisse
, 2009 ONCA 114, 93 O.R. (3d) 643,
at para.
32;
R. v. Priest
(1996),
1996 CanLII 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.)
.
Where
a term of incarceration must be imposed because of the nature of the offence,
for a young first offender, the term should be as short as possible and
tailored to the individual circumstances of the accused.
R.
v. Priest
at p. 12. In
R. v. Kwakye
, 2015 ONCA 108, [2015] O.J. No. 707 (QL)
this court noted that rehabilitation remains an important factor, when
sentencing a young first offender on any offence, including manslaughter.
R. v. Jacko
,
2010 ONCA 452, 101 O.R. (3d) 1
provides another example:
perpetrators of a serious home invasion had their sentences reduced on appeal
to two years less a day and a conditional sentence in order to better reflect
their rehabilitative potential.
[13]
This
is particularly important when sentencing a youthful first offender to a first
penitentiary sentence. This court noted in
R. v. Borde
(2003),
2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at para. 36:
Aside from the
gravity of the appellant's crimes, the overwhelming factor is his youth. In my
view, the trial judge erred in principle in focusing almost exclusively on the
objectives of denunciation and general deterrence, given the appellant's age
and that this was his first adult prison sentence and his first penitentiary
sentence. The length of a first penitentiary sentence for a youthful offender should
rarely be determined solely by the objectives of denunciation and general
deterrence. Where, as here, the offender has not previously been to
penitentiary or served a long adult sentence, the courts ought to proceed on
the basis that the shortest possible sentence will achieve the relevant
objectives. The trial judge's repeated references to the need to send a message
and his statement that the sentence was meant to deter others who resort to
guns make it clear that general deterrence and to a less extent denunciation
determined the length of the sentence. In my view, this error led the trial
judge to impose an excessive sentence for the aggravated assault.
[14]
The
appellant had the support of his family and community. The sentencing judge
failed to give adequate weight to the appellants rehabilitative potential.
[15]
Finally,
the sentencing judge erred when she found that it was an aggravating factor
that the appellant deliberately used his baby-faced appearance to dupe the
victims into opening their doors. This was not an argument advanced by the
Crown, and the evidence did not support this conclusion. In effect, the
sentencing judge used the appellants youth as an aggravating factor.
[16]
These
offences were in the nature of a spree, all committed before the appellant was
subject to the sanction of imprisonment, when he was a youthful first offender.
Fresh evidence bears out the rehabilitative potential the appellant has. He is
now on parole and working. He pleaded guilty at an early opportunity and was
remorseful for his actions.
[17]
We
would not interfere with the one-year concurrent youth sentence. The effect of
that sentence is now spent. Pursuant to s. 82 of the
YCJA,
the appellant has been deemed never to have been found guilty of the youth
offence, as that sentence was completed by March 24, 2018. Variation of that
sentence would have no practical effect.
[18]
We
agree the offences were serious and merit a stiff sentence. Tailoring that
sentence to the circumstances of this appellant, we are of the view that a
global sentence of seven years, before credit for pre-sentence custody, would
be adequate. That is still a very substantial jail sentence for a youthful
first offender going to the penitentiary.
[19]
We
would vary the adult sentences imposed by the trial judge as follows:
1.
Robbery Count 3, the appellant was a party to a robbery committed while
a participant was armed with a restricted firearm. This attracts a minimum
sentence of five years. We impose that sentence less credit for presentence
custody of 605 days for 403 days actual presentence custody for a net sentence
of 1220 days.
2.
Robbery Counts 6, and 11, four years incarceration concurrent to the
sentence on Count 3 on each count.
3.
Count 7, forcible entry contrary to s. 73 of the
Criminal
Code
. The Crown concedes that the seven years incarceration must
be reduced, and we substitute a one-year sentence concurrent to the sentence on
Count 3, as the maximum available sentence is not more than two years.
4.
Count 22 possession of a loaded firearm contrary to s. 95(1) of the
Criminal Code
, we maintain the two-year consecutive
sentence consecutive to Count 3.
5.
Count 25 possession of firearm without a serial number, we maintain the
two years concurrent to the sentence on Count 22.
6.
Count 26, possession of cocaine, we maintain the 30 days concurrent to Counts
22 and 23.
[20]
The
victim fine surcharge is set aside, in light of
R. v.
Boudreault
, 2018 SCC 58, [2018] S.C.R. 599.
[21]
The
other ancillary orders made by the sentencing judge are affirmed.
G. Pardu J.A.
David Paciocco J.A.
I.V.B. Nordheimer J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Gefen v. Gaertner, 2021 ONCA 631
DATE: 20210916
DOCKET: M52606 (C68850)
Strathy C.J.O., Pepall and Pardu
JJ.A.
BETWEEN
Henia Gefen in
her personal capacity and
as estate trustee of the Estate of Elias Gefen
Plaintiff (
Appellant/Responding Party
)
and
Arie
Gaertner, Miller, Canfield, Paddock and Stone LLP
the Jewish
Home for the Aged, Baycrest Hospital,
Baycrest
Centre for Geriatric Care,
\
Yehuda Gefen
and
Harry Gefen
Defendants (
Respondents/
Moving Party
/
Responding Party
)
AND BETWEEN
Harry Gefen
Plaintiff by Counterclaim
(
Respondent/Responding Party
)
and
Henia Gefen in her personal capacity and
as estate trustee of the Estate of Elias Gefen, Harvey Gefen, Ashley Gefen, Dundas-Thickson Properties Ltd.,
1393522 Ontario Limited and 1585708 Ontario Limited
Defendants by Counterclaim
(
Appellant/
Responding Party
)
Christopher
M.B. Graham, for the moving party, Lucia Maria Saunders, Estate Trustee of the
Estate of Yehuda Gefen (deceased)
Ronald B.
Moldaver, Q.C., for the responding party, Henia Gefen in her personal capacity
and as estate trustee of the estate of Elias Gefen
Devin
McMurtry, for the responding party, Harry Gefen
Heard: September 15, 2021 by video conference
REASONS FOR DECISION
[1]
At the conclusion of submissions, we advised
counsel that the motion to quash the appeal would be dismissed with reasons to
follow. These are our reasons.
[2]
The moving party seeks to quash the appeal of
the responding party, Henia Gefen, on the ground that it is out of time.
[3]
The trial judge released her reasons for
decision on October 17, 2019. The judgment dismissed the claim of Henia Gefen
in her personal capacity and as estate trustee. The judgment also dismissed the
counterclaim of the responding party, Harry Gefen.
[4]
The appeal of Harry Gefen from that judgment,
and the appeal of Henia Gefen in respect of paragraph 5 of that judgment, are
scheduled to be heard on October 13, 2021.
[5]
Although the reasons were released on October
17, 2019, and a decision on costs was released on February 14, 2020, the
judgment itself was not signed until October 16, 2020, because the parties
could not agree on the form of judgment. It was necessary for the trial judge
to convene a case conference and to receive further submissions in order to
settle the judgment. On October 13, 2020, the trial judge released an
endorsement giving reasons for settling the form of judgment.
[6]
On October 20, 2020, Henia Gefen served a notice
of appeal from the judgment, but only insofar as para. 5 of the judgment was
concerned. That paragraph identified assets owned by the deceased at the time
of his death.
[7]
The moving party submits that the time for
appeal generally runs from the date of the release of the reasons, not from the
date that the judgment is finally settled and issued. That proposition, as a
general rule, is well supported by authority:
Fontaine v. Canada (Attorney
General)
, 2012 ONCA 206, 213 A.C.W.S. (3d) 7.
[8]
The general rule may be displaced where the
judgment provides otherwise, or where the judgment is uncertain on a point, or
where something of substance has been missed. In such cases, time runs from the
date of entry of the judgment, not the date of pronouncement:
Fontaine
,
at paras. 59-60;
Byers (Litigation Guardian of) v. Pentex Print Master
Industries Inc.
(2003), 62 O.R. (3d) 647 (C.A.), at paras. 31, 33, 34, 36,
43.
[9]
It is equally well settled, however, that the
appeal itself is from the judgment and not from the reasons:
Ross v. Canada
Trust Company
, 2021 ONCA 161, 458 D.L.R. (4th) 39, at para. 53. The
content of para. 5 of the judgment was not a part of the trial judges summary
of disposition at para. 248 of her reasons, where she summarized the relief
that she granted.
[10]
It was not until the judgment was finally
settled, and issued, that the responding party, Henia Gefen, became aware that
the content of para. 5 would form part of the judgment of the court. It is reasonable,
in our view, to treat October 16, 2020 as the date on which time to appeal
began to run and it is not, therefore, out of time.
[11]
Quite apart from the foregoing, the two appeals
are factually connected, the moving party has identified no prejudice as a
result of an extension of time and it would have been in the interests of
justice that an extension be granted, had it been necessary.
[12]
The motion to quash is dismissed, with costs to
the responding party, Henia Gefen, fixed in the amount of $3,500, inclusive of
disbursements and all applicable taxes.
G.R.
Strathy C.J.O.
S.E.
Pepall J.A.
G.
Pardu J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Pinder v. Biggar, 2021 ONCA 623
DATE: 20210917
DOCKET: M52551 (C69419)
Benotto, Brown and Harvison
Young JJ.A.
BETWEEN
Jack
Pinder, Victor Dusik and Innotech Safety Solutions Inc.
Creditors
(Respondents/Moving Parties)
and
Wayne Biggar
Debtor
(
Appellant/Responding Party
)
and
Hospodar Davies & Goold
Garnishee
(Respondent/Responding
Party)
Stephen Barbier and Ben Tustain, for
the moving parties
Douglas Spiller, for the responding
party Wayne Biggar
John Davies, for the responding party Hospodar
Davies & Goold
[1]
Heard: September 8, 2021 by video conference
REASONS FOR DECISION
[1]
The respondents, Jack Pinder, Victor Dusik and
Innotech Safety Solutions Inc., move to quash the appeal brought by the appellant,
Wayne Biggar, from the order made by Skarica J. dated April 13, 2021 following
a garnishment hearing (the Order) on the basis that the Order is
interlocutory, not final.
[2]
For the reasons that follow, we conclude that
the Order is interlocutory in nature and quash Mr. Biggars appeal.
[3]
By way of background, in 2018 Mr. Biggar commenced
an oppression action against the respondents, in which he obtained an
interlocutory injunction and orders to produce information. Mr. Biggar later alleged
that the respondents failed to comply with the production order and he moved
for contempt. The respondents brought a cross-motion to dissolve the
injunction. By order dated June 5, 2019 Perell J. dismissed Mr. Biggars
contempt motion and dissolved the injunction. He ordered costs against Mr. Biggar.
[4]
Mr. Biggar sought to appeal the order of Perell
J., first to this court and then to the Divisional Court. By the time all the
appellate dust had settled, the order of Perell J. was left standing,
undisturbed, and Mr. Biggar had been ordered to pay the respondents costs
totalling $128,500 ($110,000 by Perell J.; $7,500 by this court; and $11,000 by
the Divisional Court).
[5]
Mr. Biggar has exhausted his rights of appeal in
respect of the order of Perell J., the cost order of this court, and that
of the Divisional Court.
[6]
Mr. Biggars oppression action remains
outstanding, with no final determination having been made.
[7]
The respondents sought to enforce the cost
orders totalling $128,500 by garnishing part of the proceeds of the sale of Mr.
Biggars matrimonial home, which were being held in trust by a law firm pending
the determination of the matrimonial litigation between Mr. Biggar and his
wife. At the request of Mr. Biggar, the motion judge held a garnishment
hearing.
[8]
As the motion judge noted in his oral reasons
for the Order, Mr. Biggars wife did not oppose the respondents effort to
garnish as she was satisfied that sufficient funds would remain in trust to
satisfy the claims she is asserting against Mr. Biggar in their matrimonial
litigation. The motion judge relied on the statements made by Ms. Biggar at
para. 18 of her affidavit of December 11, 2020 where she deposed:
I was aware that I could oppose the
garnishment but based upon the amount being sought under the garnishment I
instructed my solicitors not to oppose as I felt there would be sufficient
funds remaining to address issues of equalization and costs in the matrimonial
proceedings.
[9]
Following a garnishment hearing, the motion
judge ordered $128,500 to be paid from the trust funds to the respondents in
satisfaction of Mr. Biggars cost obligations to them. In addition, he ordered
$5,600 to be paid for accrued postjudgment interest on the cost awards.
[10]
Mr. Biggar has appealed the Order to this court,
contending that it is a final order. The respondents move to quash the appeal
on the basis that the Order is interlocutory. Mr. Biggars wife did not oppose
the Order and she is not a party to Mr. Biggars appeal. The garnishee takes no
position on this motion.
[11]
The Order is an interlocutory one. It was made
within the oppression action Mr. Biggar commenced, not within the matrimonial
litigation. The Order did not finally dispose of the rights of the parties in
the oppression action, including any right to substantive relief sought by Mr.
Biggar:
Hendrickson v. Kallio
, [1932] O.R. 675 (C.A.), at p. 680;
Sun Life Assurance Co. v. York Ridge Developments Ltd.
(1998),
116 O.A.C. 103 (C.A.), at para. 13. Nor did it finally dispose of an issue
raised by a defence in the oppression action, as Mr. Biggar is the plaintiff:
Ball
v. Donais
(1993), 13 O.R. (3d) 322 (C.A.). Nor does the Order end a
discrete proceeding before the court, as the garnishment hearing was simply a
step in the process to enforce cost orders made in the oppression action:
Buck
Brothers Ltd. v. Frontenac Builders Ltd.
(1994), 19 O.R. (3d) 97 (C.A.).
[12]
The legal effect of the Order that Mr. Biggar
seeks to appeal is interlocutory in nature: the Order was made in furtherance
of the respondents efforts to enforce cost awards made against Mr. Biggar in
the oppression action and in respect of which Mr. Biggar has exhausted his
rights of appeal.
[13]
Accordingly, this court has no jurisdiction to
hear an appeal from the Order:
Courts of Justice Act
, R.S.O. 1990, c.
C.43, s. 6(1)(b) (
CJA
). Mr. Biggars appeal is quashed. Any avenue
of appeal that Mr. Biggar may have left in respect of the Order lies to the
Divisional Court pursuant to
CJA
s. 19(1)(b) and must be considered by
that court.
[14]
If the parties are unable to agree upon the
costs of this motion to quash and the motion to extend, they may deliver
written cost submissions, not exceeding three pages in length (excluding any
Bill of Costs), within 10 days of the date of these reasons.
M.L.
Benotto J.A.
David
Brown J.A.
Harvison
Young J.A.
[1]
John Davies appeared but made no written or oral submissions on
behalf of the responding party Hospodar Davies & Goold.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. McLaughlin-Coward, 2021 ONCA
626
DATE: 20210917
DOCKET: C68324
Hoy, Trotter and Paciocco JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Allister McLaughlin-Coward
Appellant
Allister McLaughlin-Coward, acting in
person
Michael Crystal, appearing as duty
counsel
Avene Derwa, for the respondent
Heard: September 10, 2021 by
video conference
On appeal from the sentenced imposed on April
27, 2020 by Justice Iona M. Jaffe of the Ontario Court of Justice.
REASONS
FOR DECISION
[1]
The appellant was convicted of one count of
aggravated assault. He was sentenced to 6 years imprisonment, less 17 months
credit for time spent in pre-sentence custody (PSC), and another 4 months as
a result of the harsh conditions of confinement. He applies for leave to appeal
his sentence.
[2]
The appellant attacked his former partners
husband, the victim, with a knife. The appellant and his former partner had a
daughter together 14 years earlier. The appellant was frustrated about not
being able to see her. One afternoon, he showed up unannounced at the home of
his former partner and the victim, demanding to see his daughter. His former
partner told the appellant that he must follow the formal access procedures.
[3]
When the victim intervened, the appellant
threatened him. The conflict soon turned physical. The appellant was armed with
two knives. He stabbed the victim multiple times. The police arrived shortly
after and saw the appellant using a screwdriver to puncture the tire of the
familys vehicle. In the course of his arrest, the appellant yelled at the
victim, I hope it hurt.
[4]
The appellant gave an inculpatory statement to
the police at the scene in which he explained that he believed his daughter was
being exploited. He told the police that he did not intend to kill the victim,
but he knew that it could have happened. He said he wanted to hurt the victim.
[5]
The victim sustained serious injuries. The
sentencing judge noted:
He was stabbed twice in the stomach. One
stomach wound was one centimeter in length and the other was five centimeters.
The larger of those two stab wounds eviscerated the victims abdominal
contents. The victim also sustained five stab wounds in the back and one on the
left side of his neck. The victim required surgery and spent three days in
hospital.
[6]
The appellant entered a plea of guilty to the
offence.
[7]
At the time, he was 41 years old. He had prior
convictions for assault with a weapon in 2008, for which he received a
suspended sentence, and possession of a weapon in 2017, for which he received a
suspended sentence (after spending 75 days in PSC).
[8]
The Crown submitted that the appellant should
receive a sentence in the range of 5 to 6 years imprisonment, whereas counsel
for the appellant sought a sentence of 15 to 18 months.
[9]
The sentencing judge provided thorough reasons
for sentence. She identified general deterrence and denunciation as the primary
objectives in sentencing the appellant. In doing so, she relied on the victims
injuries, the fact that the appellant armed himself with two knives, the
appellants related criminal record, and that part of the scenario occurred in
front of his daughter. The sentencing judge characterized the attack as unprovoked
and vicious, which left the victim seriously injured.
[10]
On the other side of the equation, the
sentencing judge took into account the mitigating value of the appellants
guilty plea. She also considered the detailed information about his life
circumstances in the Pre-Sentence Report (PSR) and the challenges he has
faced over the years. At the time, the appellant denied any alcohol or
substance abuse. However, he was medicated for anxiety and depression.
[11]
In her reasons, the sentencing judge expressed
concern about the appellants insight into the gravity of the offence. In his
discussions with the author of the PSR, he seemed to suggest that his actions
were justified on some level (i.e., for the protection of his daughter). He
made similar comments to the sentencing judge when asked if he had anything to
say before his sentence was imposed.
[12]
On appeal, the appellant submits that the trial
judge misunderstood his attitude in court. He acknowledges that he showed
little emotion at the time. He explained that he was under stress as a result
of the conditions of his pre-sentence custody and that he was trying to be
strong for his daughter. The appellant says that he was remorseful then, as he
is now.
[13]
There is no indication that the sentencing judge
formed her impressions about the appellants lack of insight based on his
emotional presentation. Her observations were based on the appellants statements
to the author of the PSR, and his words prior to being sentenced. During the
hearing of the appeal, the appellant made similar statements, focusing on his
concern for his daughter, rather than the impact of his offence on the victim.
[14]
We see no error in the trial judges treatment
of this factor. It was a finding that was open to her to reach on the record.
She did not improperly treat the appellants lack of insight as an aggravating
factor; instead, she merely found that she was limited in her ability to give
effect to the appellants rehabilitative potential by virtue of his attitude
towards his conduct. In the circumstances, the trial judge was correct to focus
on general deterrence and denunciation. The sentence imposed properly reflects
the application of those principles to this case. It cannot be said that the
sentence is unfit.
[15]
In conclusion, we note that the author of the
PSR recommended that the appellant take rehabilitative and/or counselling
programs directed at: substance abuse, anger management, counseling through a
mental health professional, and additional counselling as directed. At the
appeal hearing, the appellant expressed a willingness to follow this
rehabilitative path and we encourage him to do so.
[16]
The application for leave to appeal sentence is
allowed, but the appeal is dismissed.
Alexandra
Hoy J.A.
Gary
Trotter J.A.
David
M. Paciocco 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 complainants 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.
N.H., 2021 ONCA 636
DATE: 20210917
DOCKET: C63612
Simmons, Watt and Roberts JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
N.H.
Appellant
Margaret Bojanowska, for the appellant
Philippe Cowle, for the respondent
Heard: September 29, 2020 by
video conference
On appeal from
the convictions entered on September 23, 2016 by Justice Beth A. Allen
of the Superior Court of Justice, sitting with a jury and from the sentence
imposed on April 21, 2017.
ADDENDUM
Introduction
[1]
On November 4, 2020, we released our reasons in this
matter to the parties only. Because our reasons contained references to
evidence the appellant applied to adduce at trial under s. 276 of the
Criminal
Code
and to the trial judges decision dismissing that application, we
requested submissions from the parties concerning publication of our reasons.
Among other things, we asked whether the publication ban contained in s. 278.95
[1]
of the
Criminal Code
applies to our reasons and if it does, whether we could make an order
permitting publication of our reasons as-is,
i.e.
, unredacted, in
the same form in which they were distributed to the parties.
[2]
The Crown responded to our request and informed
us that appellants counsel agreed with its response. In essence, the Crown
submitted that the s. 278.95 publication ban applies to our reasons but
that this court has, and in this case we should invoke, inherent jurisdiction
to make an order permitting publication of our reasons as is.
[3]
Prior to this panel determining the issue, two
other panels of this court requested submissions concerning publication of
their reasons in other appeals involving the same or similar publication bans. In
at least one of those matters, the Crown submitted this court has jurisdiction
under s. 278.95(1)(d)(ii) of the
Criminal Code
to make an order
permitting publication of unredacted reasons subject to the s. 278.95
publication ban. Given that submission, we requested further submissions
concerning the jurisdiction issue.
[4]
Counsel have now clarified that the Crowns
position is that this court has inherent jurisdiction to make an order
permitting publication of our reasons as is and should exercise that discretion
based on the same factors that would guide a trial judge or a justice under s.
278.95(1)(c) or (d)(ii) of the
Criminal Code
.
[5]
For the reasons that follow, we accept the
Crowns position and order that our reasons in this matter may be published in
the form released to the parties on November 4, 2020, subject to the s. 486.4
publication ban imposed at trial.
The Section
278.95
Criminal
Code
Publication Bans and Related Provisions
[6]
Section 278.93
of the
Criminal Code
sets out the procedure for an accused to
apply for a hearing to determine the admissibility at trial of evidence of
other sexual activity on the part of the complainant not the subject of the
charge before the court. Section 278.93(4) specifies that the presiding judge
or justice may decide to hold an admissibility hearing.
[2]
Section 278.94 prescribes various
procedural rules relating to any hearing that is ordered, including a
requirement that the presiding judge or justice give reasons for the admissibility
determination: s. 278.94(4).
[3]
[7]
Section 278.95
prohibits publication of: the contents of a s. 278.93 application; the evidence
or representations made on a s. 278.93 application or at a s. 278.94 hearing;
and of the decision(s) concerning same, but subject to certain exceptions
concerning the decision(s) made as set out in s
s.
278.95(1)(c) and (d)
:
278.95 (1) A person shall not
publish in any document, or broadcast or transmit in any way, any of the
following:
(a) the contents of an application
made under subsection 278.93;
(b) any evidence taken, the
information given and the representations made at an application under section
278.93 or at a hearing under section 278.94;
(c)
the
decision of a judge or justice under subsection 278.93(4), unless the judge or
justice, after taking into account the complainants right of privacy and the
interests of justice, orders that the decision may be published, broadcast or
transmitted
; and
(d)
the
determination made and the reasons provided under subsection 278.94 (4) unless
;
(i) that determination is that
evidence is admissible, or
(ii)
the judge
or justice, after taking into account the complainants right of privacy and
the interests of justice, orders that the determination and reasons may be
published, broadcast or transmitted
. [Emphasis added.]
The Crowns Position
[8]
In essence, the
Crown submits:
·
the s. 278.95
publication ban applies to our reasons;
·
the authority
to make an order permitting publication under s
s.
278.95(1)(c) and/or (d)(ii) is restricted to the judge who made the decision
under s. 278.93 or 278.94 as the case may be; and
·
this court has,
and in this case should invoke its inherent jurisdiction to make an order
permitting publication of its reasons in the same form in which they were
distributed to the parties.
(i)
The s. 278.95
publication
ban applies to our reasons
[9]
In brief, the Crown
submits that the s. 278.95 publication ban applies to our reasons and that neither
of the exceptions to the application of the ban set out in
ss. 278.95(1)(c) and (d) apply. That is: i) the evidence sought to
be adduced in the court below was not admitted; and ii) the judge in the court
below did not make an order permitting publication, broadcast or transmission
of her decision. In fact, there was no discussion in the court below concerning
whether the ban should apply.
[10]
The Crown is not aware of any provisions that
would limit or restrict the duration or operation of the ban but submits s.
278.95 should not be interpreted to impose such limits or restrictions, as a
restrictive interpretation would defeat its purpose. The purpose of s. 278.95
can be gleaned by analogy to similar publication bans and by reference to the
statutory context. In
Canadian Newspapers Co. v. Canada (Attorney
General),
[1988] 2 S.C.R. 122, at pp. 129-32, the Supreme Court of Canada
discussed the purpose of s. 486.4 publication bans, which protect the identity of
complainants in prosecutions for sexual offences. Broadly speaking, the Court
recognized that the purpose of the publication ban was to foster complaints
from victims of sexual assault by protecting them from the trauma of
wide-spread publication, which could result in embarrassment and humiliation.
[11]
The Crown notes that those same important
objectives underlie the statutory framework surrounding applications to lead
evidence of extrinsic sexual activity. In ss. 276(3)(b),(f), and (g), Parliament
expressly lays out the objectives of encouraging reporting and protecting the
dignity and privacy of complainants as factors that the court must consider in determining
whether the evidence of extrinsic sexual is admissible. As highlighted in
Canadian
Newspapers
, at pp. 131-33, legislation aimed at protecting a complainants
privacy rights must be robust, as temporary protection is effectively no
protection at all.
[12]
Finally, the Crown submits that the existence of
a s. 486.4 publication ban does not affect whether the s. 278.95 ban applies.
The scope of the bans and the protected interests under them are different.
Whether a s. 486.4 ban is in place, a complainant may, or may not, wish the
details of the evidence presented on a s. 276 application to remain
private.
(ii)
Subsections 278.95(1)(c) and (d)(ii) do not
provide this court with authority to permit publication of our reasons
[13]
The Crown submits that the authority to make an
order pursuant to ss. 278.95(1)(c) or (d)(ii) is restricted to the judge
who made the decision under ss.
278.93 or
278.94. Subsections 278.95(1)(c) and (1)(d) both refer to the judge
or justice (as opposed to a judge or justice), suggesting that the authority
is granted specifically to the judge who made the decision. The French text
supports this interpretation, referring to le juge ou le juge de paix. Read
on its face,
no language in
s. 278.95 purports to create any power exercisable by a reviewing
court.
(iii)
This court has, and should invoke in this case its inherent jurisdiction
to make an order permitting publication of its reasons as-is
[14]
The Crown acknowledges that it may be possible
for this court to access the trial courts power to make an order under s.
278.95 through s. 13(2) of the
Courts of Justice Act
, R.S.O. 1990, c.
C.43 (the
CJA
),
[4]
or to find jurisdiction to make an order permitting publication through the
combined operation of s. 683(3) of the
Criminal Code
and s. 134 of the
CJA
.
[5]
[6]
However, the Crown submits
both of those options present challenges. In any event, the Crown submits this
court has inherent jurisdiction to make an order permitting publication of its
reasons as is. As will be discussed further below, the Crown relies on several
cases holding that a court has inherent jurisdiction to control its own records
in support of that proposition. Further, taking account of the statutory
factors that would guide trial judges making the same decision under ss.
278.95(c) or (d), the Crown submits this court should make an order permitting
publication of its reasons in this case for four reasons:
·
the complainant is comfortable with this courts
decision being published as is;
·
the complainants privacy remains protected
through the s. 486.4 publication ban, which will remain in place;
·
on the particular facts of this case, the
privacy rights at issue are already lessened, because the evidence at issue on
the s. 276 application came out at trial despite the trial judges ruling; and
·
the development of the jurisprudence surrounding
s. 276 applications and evidence of extrinsic sexual activity will benefit from
the publication of this courts decision as is.
Discussion
(1)
This court has inherent jurisdiction to permit publication of its
reasons as is
[15]
Assuming that we cannot authorize publication,
broadcast or transmission of our reasons under ss. 278.95(1)(c) or (d)(ii) of
the
Criminal Code
, we are satisfied that, in any event, we have inherent
jurisdiction to do so.
[16]
In support of its position that this court has
inherent jurisdiction to order that its judgment be published unedited and
effectively override the s. 276.3 publication ban, the Crown initially relied
on this courts decisions in
Re Joudrie
(1997), 100 O.A.C. 25 and
R. v. A.B.
(1997), 33 O.R. (3d) 321 in which this court lifted
publication bans imposed at trial under ss. 486(3) and (4) of the
Criminal
Code
. Although this court did not discuss its jurisdiction in those cases,
the Crown submitted that, by implication, it relied on its inherent
jurisdiction to control its own records.
[17]
In our view, those cases appear to be premised
on a courts inherent jurisdiction to vary or revoke an order made at trial
where the circumstances that were present at the time the order was made have
materially changed. The Crown has subsequently clarified
[7]
that it relies on a general
line of cases establishing a courts authority to control its own records.
[18]
Those cases are:
R. v. Garofoli
, [1990]
2 S.C.R. 1421, at p. 1457;
Vickery v. Nova Scotia Supreme Court
(Prothonotary)
, [1991] 1 S.C.R. 671, at pp. 681-83;
R. v.
Bernardo
, [1995] O.J. No. 1472 (Gen. Div.), at paras. 13, 112-28, leave to
appeal refused, [1995] S.C.C.A. No. 250, further appeal dismissed for lack of
jurisdiction, (1998) 122 C.C.C. (3d) 475 (Ont. C.A.); and
R. v. Canadian
Broadcasting Corp.
, 2010 ONCA 726, 102 O.R. (3d) 673.
[19]
None of the above-noted cases dealt with a
reviewing courts power to lift a statutory publication ban. However, they all
dealt with public access to court records and affirmed the supervisory power a
court holds over access to its records. Further,
Vickery
relied on
A.G.
(Nova Scotia) v. MacIntyre
, [1982] 1 S.C.R. 175, in which the Supreme
Court clearly stated, at p. 189, Undoubtedly every court has a supervisory and
protecting power over its own records.
[20]
The records at issue in the cases upon which the
Crown relied include exhibits at a criminal trial or preliminary inquiry
(transcripts of an alleged confession after an accused was acquitted:
Vickery
;
explicit recordings of violent crime:
Bernardo
; preliminary inquiry exhibits:
CBC
; search warrants and the information to obtain based on which they
were issued:
MacIntyre
; and affidavits, upon which the police relied
to obtain wiretaps:
Garofoli
).
[21]
Here, the court record at issue is this courts
reasons for decision, which include reference to the reasons of the court below
the object of a s. 278.95 statutory publication ban. However, if this court
has supervisory and protective powers over externally filed court records, it
must follow that it has at least the same or greater powers over its own
reasons.
[22]
Moreover, given that s. 278.95 is silent on the
powers of a reviewing court, whatever inherent jurisdiction this court
possesses necessarily survives, as it has not been displaced by clear and
precise statutory language:
Canada (Attorney General) v. Fontaine
,
2017 SCC 47, [2017] 2 S.C.R. 205, at para. 33;
R. v. Adams
,
[1995] 4 S.C.R. 707, at para. 28.
[23]
Undoubtedly, the tests enunciated in the early
cases for restricting public access to court records have been superseded by
the Dagenais/Mentuck test: see
Dagenais v. Canadian Broadcasting Corp.,
[1994] 3 S.C.R. 835;
R. v. Mentuck
, 2001 SCC
76, [2001] 3 S.C.R. 442
. However, what is at issue in this
case is not restricting public access. Rather, the issue is whether statutorily
restricted public access to this courts reasons should be expanded.
[24]
Accepting that this court has inherent
jurisdiction over its own records, we conclude that it can exercise its discretion
concerning publication, based on the same factors that the court below is
entitled to permit publication of its reasons. It makes sense that this courts
discretion should be exercised in a manner that accords with the framework of
the statutory publication ban.
[25]
We also accept the Crowns submission that this
courts discretion extends to permitting publication of any portion of the
reasons of the court below that refer to the content of the underlying
application and the evidence and representations made in relation to it or at a
hearing. That is consistent with a purposive interpretation of s. 278.95(1). To
hold otherwise would make the discretion to permit publication conferred in
that section, and by extension this courts inherent jurisdiction to do so,
meaningless.
(2)
This court should permit publication of its reasons as is in this
case
[26]
In this case, there was no discussion in the
court below concerning whether the mandatory s. 278.95 publication ban should
be lifted under s. 278.95(1)(c). The mandatory ban therefore applied by
statute. The question of what, if any, deference is owed to the court below
does not arise.
[27]
On appeal, the Crown asks that this court
exercise its discretion to publish its reasons. It notes that the complainant
is comfortable with that result and the complainants identity will in any
event be protected by the s. 486.4 publication ban, which will remain in place.
Equally important, the development of the jurisprudence surrounding s. 276
applications and evidence of extrinsic sexual activity will benefit from the
publication of this courts decision as is.
[28]
We accept the Crowns submissions as supporting
the order it seeks. They take proper account of both the complainants privacy
right and the interests of justice, the relevant factors under s. 278.95(1)(c)
of the
Criminal Code
.
Disposition
[29]
Based on the foregoing reasons, we order that,
despite the s. 278.95 publication ban, our reasons in this matter may be
published in the form released to the parties on November 4, 2020, subject to
the s. 486.4 publication ban imposed at trial.
Janet
Simmons J.A.
David
Watt J.A.
L.B.
Roberts J.A.
Appendix A
English Version
Evidence of complainants sexual
activity
276 (1)
In proceedings in respect of an offence under section 151, 152,
153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271,
272 or 273, evidence that the complainant has engaged in sexual activity,
whether with the accused or with any other person, is not admissible to support
an inference that, by reason of the sexual nature of that activity, the
complainant
(a)
is more likely to have consented to the sexual activity that forms
the subject-matter of the charge; or
(b)
is less worthy of belief.
Conditions for admissibility
(2)
In proceedings in respect of an offence referred to in subsection (1), evidence
shall not be adduced by or on behalf of the accused that the complainant has
engaged in sexual activity other than the sexual activity that forms the
subject-matter of the charge, whether with the accused or with any other
person, unless the judge, provincial court judge or justice determines, in
accordance with the procedures set out in sections 278.93 and 278.94, that the
evidence
(a)
is not being adduced for the purpose of supporting an inference
described in subsection (1);
(b)
is relevant to an issue at trial; and
(c)
is of specific instances of sexual activity; and
(d)
has significant probative value that is not substantially
outweighed by the danger of prejudice to the proper administration of justice.
Factors that judge must consider
(3)
In determining whether evidence is admissible under subsection (2), the judge,
provincial court judge or justice shall take into account
(a)
the interests of justice, including the right of the accused to
make a full answer and defence;
(b)
societys interest in encouraging the reporting of sexual assault
offences;
(c)
whether there is a reasonable prospect that the evidence will
assist in arriving at a just determination in the case;
(d)
the need to remove from the fact-finding process any discriminatory
belief or bias;
(e)
the risk that the evidence may unduly arouse sentiments of prejudice,
sympathy or hostility in the jury;
(f)
the potential prejudice to the complainants personal dignity and
right of privacy;
(g)
the right of the complainant and of every individual to personal
security and to the full protection and benefit of the law; and
(h)
any other factor that the judge, provincial court judge or justice
considers relevant.
Interpretation
(4)
For the purpose of this section,
sexual activity
includes any communication made for a sexual purpose or whose content is of a
sexual nature.
Application for hearing sections
276 and 278.92
278.93 (1)
Application may be made to the judge, provincial court judge or
justice by or on behalf of the accused for a hearing under section 278.94 to
determine whether evidence is admissible under subsection 276(2) or 278.92(2).
Form and content of application
(2)
An application referred to in subsection (1) must be made in writing, setting
out detailed particulars of the evidence that the accused seeks to adduce and
the relevance of that evidence to an issue at trial, and a copy of the
application must be given to the prosecutor and to the clerk of the court.
Jury and public excluded
(3)
The judge, provincial court judge or justice shall consider the application
with the jury and the public excluded.
Judge may decide to hold hearing
(4)
If the judge, provincial court judge or justice is satisfied that the
application was made in accordance with subsection (2), that a copy of the
application was given to the prosecutor and to the clerk of the court at least
seven days previously, or any shorter interval that the judge, provincial court
judge or justice may allow in the interests of justice and that the evidence
sought to be adduced is capable of being admissible under subsection 276(2),
the judge, provincial court judge or justice shall grant the application and
hold a hearing under section 278.94 to determine whether the evidence is
admissible under subsection 276(2) or 278.92(2).
Hearing jury and public excluded
278.94 (1)
The jury and the public shall be excluded from a hearing to
determine whether evidence is admissible under subsection 276(2) or 278.92(2).
Complainant not compellable
(2)
The complainant is not a compellable witness at the hearing but may appear and
make submissions.
Right to counsel
(3)
The judge shall, as soon as feasible, inform the complainant who participates
in the hearing of their right to be represented by counsel.
Judges determination and reasons
(4)
At the conclusion of the hearing, the judge, provincial court judge or justice
shall determine whether the evidence, or any part of it, is admissible under
subsection 276(2) or 278.92(2) and shall provide reasons for that
determination, and
(a)
if not all of the evidence is to be admitted, the reasons must
state the part of the evidence that is to be admitted;
(b)
the reasons must state the factors referred to in subsection 276(3)
or 278.92(3) that affected the determination; and
(c)
if all or any part of the evidence is to be admitted, the reasons
must state the manner in which that evidence is expected to be relevant to an
issue at trial.
Record of reasons
(5)
The reasons provided under subsection (4) shall be entered in the record of the
proceedings or, if the proceedings are not recorded, shall be provided in
writing.
Publication prohibited
278.95 (1)
A person shall not publish in any document, or broadcast or
transmit in any way, any of the following:
(a)
the contents of an application made under subsection 278.93;
(b)
any evidence taken, the information given and the representations
made at an application under section 278.93 or at a hearing under section
278.94;
(c)
the decision of a judge or justice under subsection 278.93(4),
unless the judge or justice, after taking into account the complainants right
of privacy and the interests of justice, orders that the decision may be
published, broadcast or transmitted; and
(d)
the determination made and the reasons provided under subsection
278.94(4), unless
(i)
that determination is that evidence is admissible, or
(ii)
the judge or justice, after taking into account the complainants
right of privacy and the interests of justice, orders that the determination
and reasons may be published, broadcast or transmitted.
Offence
(2)
Every person who contravenes subsection (1) is guilty of an offence punishable
on summary conviction.
Order restricting
publication sexual offences
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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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
from time to time before the day on which this subparagraph comes into force,
if the conduct alleged would be an offence referred to in subparagraph (i) if
it occurred on or after that day; or
(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).
Mandatory order on application
(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.
Victim under 18 other
offences
(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.
Mandatory order on application
(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.
Child pornography
(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.
Limitation
(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.
Version française
Preuve concernant le comportement
sexuel du plaignant
276 (1)
Dans les poursuites pour une infraction
prévue aux articles 151, 152, 153, 153.1 ou 155, aux paragraphes 160(2) ou (3)
ou aux articles 170, 171, 172, 173, 271, 272 ou 273, la preuve de ce que le
plaignant a eu une activité sexuelle avec laccusé ou un tiers est inadmissible
pour permettre de déduire du caractère sexuel de cette activité quil est :
a)
soit plus susceptible davoir consenti à
lactivité à lorigine de laccusation;
b)
soit moins digne de foi.
Conditions de ladmissibilité
(2)
Dans les poursuites visées au paragraphe
(1), laccusé ou son représentant ne peut présenter de preuve de ce que le
plaignant a eu une activité sexuelle autre que celle à lorigine de laccusation
sauf si le juge, le juge de la cour provinciale ou le juge de paix décide,
conformément aux articles 278.93 et 278.94, à la fois:
a)
que cette preuve nest pas présentée afin
de permettre les déductions visées au paragraphe (1);
b)
que cette preuve est en rapport avec un
élément de la cause;
c)
que cette preuve porte sur des cas
particuliers dactivité sexuelle;
d)
que le risque deffet préjudiciable à la
bonne administration de la justice de cette preuve ne lemporte pas
sensiblement sur sa valeur probante.
Facteurs à considérer
(3)
Pour décider si la preuve est admissible
au titre du paragraphe (2), le juge, le juge de la cour provinciale ou le juge
de paix prend en considération:
a)
lintérêt de la justice, y compris le
droit de laccusé à une défense pleine et entière;
b)
lintérêt de la société à encourager la
dénonciation des agressions sexuelles;
c)
la possibilité, dans de bonnes conditions,
de parvenir, grâce à elle, à une décision juste;
d)
le besoin décarter de la procédure de
recherche des faits toute opinion ou préjugé discriminatoire;
e)
le risque de susciter abusivement, chez le
jury, des préjugés, de la sympathie ou de lhostilité;
f)
le risque datteinte à la dignité du
plaignant et à son droit à la vie privée;
g)
le droit du plaignant et de chacun à la
sécurité de leur personne, ainsi quà la plénitude de la protection et du
bénéfice de la loi;
h)
tout autre facteur quil estime applicable
en lespèce.
Précision
(4)
Il est entendu que, pour lapplication du
présent article,
activité sexuelle
sentend notamment de toute communication
à des fins dordre sexuel ou dont le contenu est de nature sexuelle.
Demande daudience : articles 276 et
278.92
278.93 (1)
Laccusé ou son représentant peut demander
au juge, au juge de la cour provinciale ou au juge de paix de tenir une
audience conformément à larticle 278.94 en vue de décider si la preuve est
admissible au titre des paragraphes 276(2) ou 278.92(2).
Forme et contenu
(2)
La demande daudience est formulée par
écrit et énonce toutes précisions utiles au sujet de la preuve en cause et le
rapport de celle-ci avec un élément de la cause; une copie en est expédiée au
poursuivant et au greffier du tribunal.
Exclusion du jury et du public
(3)
Le jury et le public sont exclus de
laudition de la demande.
Audience
(4)
Une fois convaincu que la demande a été
établie conformément au paragraphe (2), quune copie en a été expédiée au
poursuivant et au greffier du tribunal au moins sept jours auparavant, ou dans
le délai inférieur autorisé par lui dans lintérêt de la justice, et quil y a
des possibilités que la preuve en cause soit admissible, le juge, le juge de la
cour provinciale ou le juge de paix accorde la demande et tient une audience
pour décider de ladmissibilité de la preuve au titre des paragraphes 276(2) ou
278.92(2).
Audience exclusion du jury et du
public
278.94 (1)
Le jury et le public sont exclus de
laudience tenue pour décider de ladmissibilité de la preuve au titre des
paragraphes 276(2) ou 278.92(2).
Non-contraignabilité
(2)
Le plaignant peut comparaître et présenter
ses arguments à laudience, mais ne peut être contraint à témoigner.
Droit à un avocat
(3)
Le juge est tenu daviser dans les
meilleurs délais le plaignant qui participe à laudience de son droit dêtre
représenté par un avocat.
Motifs
(4)
Le juge, le juge de la cour provinciale ou
le juge de paix rend une décision, quil est tenu de motiver, à la suite de
laudience sur ladmissibilité de tout ou partie de la preuve au titre des
paragraphes 276(2) ou 278.92(2), en précisant les points suivants:
a)
les éléments de la preuve retenus;
b)
ceux des facteurs mentionnés aux
paragraphes 276(3) ou 278.92(3) ayant fondé sa décision;
c)
la façon dont tout ou partie de la preuve
à admettre est en rapport avec un élément de la cause.
Forme
(5)
Les motifs de la décision sont à porter
dans le procès-verbal des débats ou, à défaut, donnés par écrit.
Publication interdite
278.95 (1)
Il est interdit de publier ou de diffuser
de quelque façon que ce soit le contenu de la demande présentée en vertu de
larticle 278.93 et tout ce qui a été dit ou déposé à loccasion de cette
demande ou aux audiences mentionnées à larticle 278.94. Linterdiction vise
aussi, dune part, la décision rendue sur la demande daudience au titre du
paragraphe 278.93(4) et, dautre part, la décision et les motifs mentionnés au
paragraphe 278.94(4), sauf, dans ce dernier cas, si la preuve est déclarée
admissible ou, dans les deux cas, si le juge ou le juge de paix rend une
ordonnance autorisant la publication ou la diffusion après avoir pris en
considération le droit du plaignant à la vie privée et lintérêt de la justice.
Infraction
(2)
Quiconque contrevient au paragraphe (1)
commet une infraction punissable sur déclaration de culpabilité par procédure
sommaire.
Ordonnance limitant la
publication infractions dordre sexuel
486.4 (1)
Sous réserve du paragraphe (2), le juge
ou le juge de paix qui préside peut rendre une ordonnance interdisant de
publier ou de diffuser de quelque façon que ce soit tout renseignement qui
permettrait détablir lidentité de la victime ou dun témoin dans les
procédures relatives à:
a)
lune des infractions suivantes:
(i)
une infraction prévue aux articles 151,
152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173,
213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2,
286.3, 346 ou 347,
(ii)
une infraction prévue par la présente
loi, dans toute version antérieure à la date dentrée en vigueur du présent
sous-alinéa, dans le cas où lacte reproché constituerait une infraction visée
au sous-alinéa (i) sil était commis à cette date ou par la suite;
b)
deux infractions ou plus dans le cadre de
la même procédure, dont lune est une infraction visée à lalinéa a).
Obligations du juge
(2)
Dans les procédures relatives à des
infractions visées aux alinéas (1)a) ou b), le juge ou le juge de paix qui
préside est tenu:
a)
daviser dès que possible les témoins
âgés de moins de dix-huit ans et la victime de leur droit de demander
lordonnance;
b)
de rendre lordonnance, si le
poursuivant, la victime ou lun de ces témoins lui en fait la demande.
Victime de moins de dix-huit ans
autres infractions
(2.1)
Sous réserve du paragraphe (2.2), le juge
ou le juge de paix qui préside peut rendre une ordonnance interdisant de
publier ou de diffuser de quelque façon que ce soit tout renseignement qui
permettrait détablir lidentité de la victime âgée de moins de dix-huit ans
dans les procédures relatives à toute infraction autre que celles visées au
paragraphe (1).
Obligations du juge
(2.2)
Dans les procédures relatives à toute
infraction autre que celles visées au paragraphe (1), le juge ou le juge de
paix qui préside est tenu, si la victime est âgée de moins de dix-huit ans:
a)
daviser dans les meilleurs délais la
victime de son droit de demander lordonnance;
b)
de rendre lordonnance, si le poursuivant
ou la victime lui en fait la demande.
Pornographie juvénile
(3)
Dans les procédures relatives à une
infraction visée à larticle 163.1, le juge ou le juge de paix rend une
ordonnance interdisant de publier ou de diffuser de quelque façon que ce soit
tout renseignement qui permettrait détablir lidentité dun témoin âgé de
moins de dix-huit ans ou dune personne faisant lobjet dune représentation,
dun écrit ou dun enregistrement qui constitue de la pornographie juvénile au
sens de cet article.
Restriction
(4)
Les ordonnances rendues en vertu du
présent article ne sappliquent pas à la communication de renseignements dans
le cours de ladministration de la justice si la communication ne vise pas à
renseigner la collectivité.
[1]
Many of the
Criminal Code
provisions referred to in
this Addendum have been renumbered since the trial. For convenience, we will
refer to the current section numbers.
[2]
Sections 278.93 and 278.94 also apply to applications and
hearings regarding the admissibility of records in the accuseds possession
that relate to a complainant, which are presumptively inadmissible under s.
278.92.
[3]
All
Criminal Code
provisions referred to in this Addendum
are set out in full, in both French and English, in Appendix A.
[4]
Section 13(2) of the
CJA
states: A judge of the Court of Appeal is, by
virtue of his or her office, a judge of the Superior Court of Justice and has
all the jurisdiction, power and authority of a judge of the Superior Court of
Justice.
[5]
Section 683(3) of the
Criminal Code
states:
A court of appeal may
exercise, in relation to proceedings in the court, any powers not mentioned in
subsection (1) that may be exercised by the court on appeals in civil matters,
and may issue any process that is necessary to enforce the orders or sentences
of the court, but no costs shall be allowed to the appellant or respondent on
the hearing and determination of an appeal or on any proceedings preliminary or
incidental thereto.
Section 134(1) of the
CJA
states:
Unless
otherwise provided, a court to which an appeal is taken may,
(a) make
any order or decision that ought to or could have been made by the court or
tribunal appealed from;
(b) order a
new trial;
(c) make
any other order or decision that is considered just.
[6]
The Crown notes there is precedent for this
court to impose a publication ban pursuant to s. 134(1) of the
CJA
:
R.
v. G.M.
, [2000] O.J. No. 5007, at para. 4. (Presumably, this was done in
conjunction with s. 683(3) of the
Criminal Code
.) Further, the
Crown notes that a Superior Court judge has inherent jurisdiction to vary or
lift publication bans pursuant to s. 486.4 after the trial judge has become
functus
officio
(
R. v. Ireland
(2005), 203 C.C.C. (3d) 443 (Ont. S.C.J.)). As
noted, under s. 13(2) of the
CJA
, judges of this court have the
jurisdiction, power and authority of judges of the Superior Court of Justice.
[7]
In our second request for submissions referred to above, we asked
if this courts inherent jurisdiction to make an order permitting unredacted
publication of its reasons was confined to situations where there had been a
material change in circumstances. We asked this question because in
Re
Joudrie
and
R. v. A.B.
, the complainants asked on appeal
that publication bans imposed at trial be lifted and the Crown supported their
requests. In lifting the publication bans, this court had regard to principles
set out in
R. v. Adams
, [1955] 4 S.C.R. 707. In
Adams
, the
Supreme Court of Canada held, at para. 30, that, as a general rule, any order
relating to the conduct of a trial can be varied or revoked if the
circumstances that were present at the time the order was made have materially
changed. To be material, the change must relate to a matter that justified the
order in the first place.
|
COURT OF APPEAL FOR
ONTARIO
CITATION: R. v. Scott, 2021 ONCA 625
DATE: 20210917
DOCKET: C68108
Tulloch, Roberts and Trotter
JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Gary Scott
Respondent
Frank Au and Scott Patterson, for the appellant
Nader R. Hasan, Dragana Rakic and Karen
Bernofsky, for the respondent
Heard: May 11, 2021 by video conference
On appeal from the acquittal entered on January
30, 2020, by Justice Kelly P. Byrne of the Superior Court of Justice, sitting
without a jury.
Trotter J.A.:
A.
Introduction
[1]
Henryk Dabrowski was murdered in his apartment
on October 28, 2017. He was stabbed 23 times, and his face, hair, and hands
were covered with a brown substance that appeared to be chocolate sauce. Months
later, the respondent was charged with second degree murder. After a judge
alone trial, the respondent was found not guilty. The Crown appeals his
acquittal.
[2]
The trial judge provided thorough reasons for
judgment in which she carefully evaluated all of the evidence. The Crown
isolates three aspects of the trial judges reasons and contends they reflect errors
of law that were instrumental in her decision to acquit the respondent.
[3]
I would dismiss the appeal. The trial judge made no legal errors in her analysis. The Crown disputes the weight the trial judge assigned to certain pieces of evidence and attacks the reasonableness of the acquittal, both of which are beyond the scope of proper appellate review on a Crown appeal.
B.
factual background
(1)
Introduction
[4]
The bulk of the trial judges findings are uncontested.
Consequently, the following general overview relies heavily on her reasons. I
will review the contested portions of the evidence in greater detail when
addressing the grounds of appeal.
[5]
The trial was brief, lasting only a week. The
respondent made many admissions. The Crowns case was entirely circumstantial.
The only issue was identity.
[6]
The precise time of Mr. Dabrowskis death was never
established. After he was killed, however, witnesses observed the respondent moving
around the building, going between floors, and changing his appearance. His
comings and goings were captured by security video cameras, which turned out to
be a significant feature of this case. At one point, the respondent was seen
leaving the building with his hand wrapped in a white towel, returning just a
few minutes later. A contentious issue at trial was whether anything was
concealed under the towel. The Crown contended the respondent disposed of the
murder weapon, a knife. The trial judge disagreed and found that there was
nothing concealed in the towel.
[7]
The Crown relied on forensic evidence concerning
an apparent trail of what appeared to be chocolate sauce, leading from the
deceaseds apartment to the respondents. The trial judge rejected the
proposition that the deposits or stains that the Crown pointed to were
sufficient to establish a trail.
This conclusion is linked to the Crowns complaint, discussed below, that
the trial judge improperly rejected an admission made by the respondent
concerning the apparent presence of a sticky substance on a stairwell door
handle close to Mr. Dabrowskis apartment.
[8]
It was admitted at trial that the respondent had
been in Mr. Dabrowskis apartment on the day that he was killed. The police
seized shoes from the respondents apartment. The shoes could not be excluded
as having made the impressions in Mr. Dabrowskis apartment. The footwear
impressions expert, Detective Johnston, however, could not say when the
impressions were made. The police also seized a jacket, seen in some of the
video clips, that contained a small stain of Mr. Dabrowskis blood. The trial
judge found that the respondent was inside Mr. Dabrowskis apartment after he
had been killed.
[9]
The respondent called no evidence in his
defence.
[10]
Twice in its factum, the Crown makes mention
that this trial was meant to be a bifurcated procedure. That is, it was expected
that the respondent would be found to have killed Mr. Dabrowski and the
proceedings would then shift to address a potential defence of not criminally
responsible on account of mental disorder (NCRMD):
Criminal Code
,
R.S.C. 1985, c. C-46, s. 16.
[11]
The Crown leaves the impression that the trial
of the question of the respondents guilt in killing Mr. Dabrowski was a mere
formality along the road to a NCRMD hearing. The respondent rejects this
proposition and contends that the Crowns case was seriously challenged through
cross-examination, especially that of William Cameron, whose evidence the trial
judge largely rejected.
[12]
Whatever may have transpired behind the scenes
before trial, it is not in issue on this appeal, nor does it form a backdrop for
our consideration. At trial, the respondent enjoyed the full protection of the
presumption of innocence. The trial judge was tasked with determining whether
the evidence proved beyond a reasonable doubt that the respondent killed Mr.
Dabrowski. She did just that, making the following thoughtful observations, at
para. 102:
In a case like this where an individual has
been brutally murdered, I am mindful that the desire to want to identify the
offender is strong. Human nature wants to blame and hold someone accountable.
As I navigate my way through the evidence, I remind myself that suspicion and
probable guilt are not a basis for conviction. Our law requires certainty and
nothing less than proof beyond a reasonable doubt will suffice. When I consider
the evidence against Mr. Scott, I am unable to say with a level of certainty
that he stabbed Mr. Dabrowski. I find myself left in a state of reasonable
doubt. Our law requires that Mr. Scott be given the benefit of that doubt.
[13]
As discussed below, the trial judge was entitled
the make the findings that she did based on the evidence and lack of evidence
before her.
(2)
Mr. Dabrowski and The Apartment Building
[14]
Mr. Dabrowski and the respondent lived in the
same building at 5 Wakunda Place. Mr. Dabrowski lived in apartment 213; the
respondent lived in apartment 502. 5 Wakunda Place is connected to an adjacent
building, 7 Wakunda Place, via an enclosed walkway that extends from a lobby on
the second floor. As discussed below, a good deal of evidence focused on the
respondents movements that night within 5 Wakunda and back and forth between 5
and 7 Wakunda.
[15]
The apartment buildings, and one other, are part
of a Toronto Community Housing Complex. The trial judge observed that many
residents deal with addictions and have other challenges. It was common for the
police, the fire department, and ambulances to be at the complex on a daily
basis.
[16]
Mr. Dabrowski sold beer out of his apartment for
double the price he paid for it. He accepted cash or, if someone was low on cash
near the end of the month, he took collateral, such as personal items. As
discussed below, the respondent may have left electronics at Mr. Dabrowskis
apartment.
[17]
Mr. Dabrowski was last seen alive at 5:32 p.m.
on the night he was murdered. Mr. Dabrowskis neighbours found his body at approximately
8:50 p.m. At least five people entered Mr. Dabrowskis apartment after he was
found dead, one of whom helped himself to a beer.
[18]
When the police arrived, Mr. Dabrowski was lying
in a pool of blood. He had been stabbed 23 times in his torso, and he suffered
other defensive wounds. Mr. Dabrowskis hair, face, and hands were covered in a
brown substance that appeared to be chocolate sauce. The apartment otherwise seemed
to be in order: a significant amount of money, electronics, and other valuables
were left undisturbed. The police did not find the murder weapon.
(3)
The Respondents Movements That Night
[19]
The respondent was on the move around the
Wakunda buildings around the time Mr. Dabrowski was killed. Of importance to
the appeal is the evidence of William Cameron, who claimed to see the
respondent three times that night, and the evidence of Arthur Ramsay, who spoke
with the respondent while in an elevator. Their evidence is better understood
against the backdrop of the security video footage, which establishes the
following timeline on the evening of the murder:
[1]
6:22:16 p.m.
The
respondent stands outside the elevator on the fifth floor. He is wearing a
blue shirt and green Adidas shoes but does not get on the elevator.
6:37:20 p.m.
As Mr.
Cameron enters 5 Wakunda Place via the second-floor walkway, a man runs past
him, moving north away from the direction of Mr. Dabrowskis apartment and
toward the north stairwell.
6:40:03 p.m.
The
respondent enters the elevator on the fifth floor. His appearance has
changed. He is wearing a green jacket with the hood up, a blue shirt, black
pants, a black mask, and green Adidas shoes. He is carrying a black gym bag,
and there is a white cloth on his right hand.
6:40:30 p.m.
The
respondent exits the elevator on the first floor and walks across the lobby
and into the north stairwell.
6:40:35 p.m.
The
respondent enters the north stairwell on the first floor and heads up the
stairs.
6:40:45 p.m.
Mr.
Cameron enters the second-floor walkway from outside, and a man runs past
him, heading south from the north stairwell, toward Mr. Dabrowskis
apartment. The trial judge accepted that the respondent is the man in the
footage.
6:43:15 p.m.
The
respondent walks from the second-floor lobby to the walkway and drops an
envelope addressed to Mr. Dabrowski.
6:43:18
p.m. to 6:45:48 p.m.
The
respondent walks along the second-floor walkway, leaves 5 Wakunda Place, and
walks southbound on the sidewalk. He then returns to 5 Wakunda Place from the
same direction in which he left.
6:46:25 p.m.
The
respondent stands outside the main entrance to 5 Wakunda Place. He is talking
to two people and hands them a CD out of his bag.
7:53:18 p.m.
The
respondent boards the elevator on the fifth floor. Mr. Ramsay is in the
elevator. The respondent has changed his clothes again and is wearing white
shoes and a multi-coloured shirt. He is carrying a beer in his left hand and his
right hand is wrapped in an unknown item.
(a)
William Cameron
[20]
William Cameron lived at 7 Wakunda Place. He was
an important but contentious witness. He testified to seeing the respondent
three times that night. The trial judge concluded Mr. Cameron only saw the
respondent twice.
[21]
First, at 6:37 p.m. (approximately one hour
after Mr. Dabrowski was last seen alive), Mr. Cameron said he saw the
respondent running from the direction of Mr. Dabrowskis apartment on the second
floor toward the north stairwell and up the stairs. He was wearing a varsity
style jacket with mixed colours.
[2]
[22]
The trial judge viewed the corresponding video
clip (6:37:20 p.m.) numerous times, noting that it was blurry and fleeting.
She was unable to conclude that the male who was running away was the
respondent. The trial judge rejected Mr. Camerons evidence that it was the
respondent.
[23]
Second, at 6:40 p.m., Mr. Cameron passed the
respondent on the first floor, as the respondent was getting off the elevator
and Mr. Cameron was getting on. The respondent had changed his clothes and was
now wearing a green jacket over a blue shirt. He had the hood of the jacket up
over his head and wore a black mask. Mr. Cameron testified that the respondent
was holding an object in his right hand, wrapped in a white cloth. I will
address this evidence in more detail below.
[24]
A few seconds later, as Mr. Cameron got off the
elevator on the second floor, he saw the respondent for the third time. The
respondent was walking southbound down the second-floor hallway, away from the
north stairwell and in the direction of Mr. Dabrowskis apartment. Upon
reviewing the video surveillance, the trial judge concluded that it was the
respondent in this sequence.
(b)
Arthur Ramsay
[25]
Mr. Ramsay lived on the 10
th
floor at
5 Wakunda Place. He knew Mr. Dabrowski and the respondent. On October 28, 2017,
he and his friend were on an elevator with the respondent at 7:53:18 p.m. The
respondent told Mr. Ramsay that he was depressed, out of sorts, and needed
someone to talk to. He asked Mr. Ramsay to go to Mr. Dabrowskis apartment to retrieve
a piece of electronic equipment for him, telling Mr. Ramsay to go down and if
the door is open get it for him. Mr. Ramsay declined to do so, but suggested
he would tell Mr. Dabrowski to go see the respondent, to which the respondent
replied, I can do it myself.
[26]
When the three men got off the elevator, they
ran into a fourth resident who asked the respondent why his hand was wrapped. There
was no response.
(4)
Items Seized from the Respondent
[27]
The police searched the respondents apartment
on November 1, 2017, four days after the murder. The police seized a green
jacket and a pair of green Adidas shoes. The shoes were found in the
respondents bathtub. There was a small bloodstain inside the right sleeve of
the jacket, and the respondent conceded it was Mr. Dabrowskis blood. There was
no evidence, however, as to how much blood was inside the sleeve where the
bloodstain was located. No blood was found on the exterior of the jacket.
[28]
The shoes tested positive for the presence of
blood, but the sample was too small to be tested for DNA. The respondent did
not dispute that his shoes left footwear impressions in the blood inside Mr.
Dabrowskis apartment; however, there was no evidence as to when the
impressions were made.
(5)
Substance Trail and Formal Admission
[29]
The Centre of Forensic Science (CFS) tested
the brown substance that covered Mr. Dabrowskis hair, face, and hands. It was
never formally identified as chocolate sauce, though the parties agreed the
substance looked like chocolate sauce, and the CFS determined that it contained
carbohydrates and starches.
[30]
The Crown introduced a series of photographs of dark
stains, alleging they formed a trail running from Mr. Dabrowskis second floor apartment
up to the respondents apartment on the fifth floor:
(1)
The first stain was in the hallway outside Mr. Dabrowskis
apartment;
(2)
The second stain was in the north stairwell, on the third-floor
landing;
(3)
The third stain was in the north stairwell, on the fourth-floor landing,
near the door;
(4)
The fourth stain was on the inside door handle in fifth-floor
stairwell; and
(5)
The fifth stain was on the hallway floor just outside the
respondents apartment.
[31]
Both the fourth and fifth stains shared some
similar features and properties with the brown substance found in Mr. Dabrowskis
apartment. The CFS confirmed that the fourth and fifth stains contained
carbohydrates and possibly proteins, but no starches. There was no evidence that
the carbohydrates in either sample matched the other, nor that they matched the
substance covering Mr. Dabrowski.
[32]
As already mentioned, the respondent admitted that
Mr. Cameron noted a sticky, brown, molasses-type substance on the second-floor
door handle leading to the north stairwell immediately after a male ran past
him and into the stairwell.
C.
the trial judges essential findings
Time
of Death
[33]
The trial judge found that Mr. Dabrowski was
killed between 5:32 p.m. and 6:43 p.m. She narrowed this time frame futher, based
on video footage showing the respondent wearing the jacket on which the blood
stain was found. At 6:40:45, he was seen walking in the direction of Mr.
Dabrowskis apartment. At 6:43:40, he is seen leaving the complex on the
second-floor walkway when he drops a letter addressed to Mr. Dabrowski. Both
times he is wearing the green jacket. This led the trial judge to conclude, at
para. 86:
I am satisfied, based on this evidence, that
Mr. Scott had been inside and was coming directly from Mr. Dabrowskis
apartment when he dropped the envelope at 6:43:45. I am further satisfied that
it was during his attendance inside Mr. Dabrowskis apartment that Mr. Scott
left the foot impression and got the stain on his jacket.
Based on these
findings, the only logical conclusion is that Mr. Dabrowski had been stabbed
certainly by the time Mr. Scott left his apartment just prior to 6:43:45 p.m.
[Emphasis added.]
Opportunity
[34]
The trial judge found that the respondent did
not have the exclusive opportunity to commit the murder. She found that,
although he may have had a two to three-minute opportunity to kill Mr.
Dabrowski when he was inside the apartment, I am unable to exclude the
possibility that others may also have had opportunity prior to Mr. Scotts
attendance. The trial judge pointed to the 48 minutes prior to Mr. Scotts attendance
that she said were completely unaccounted for.
The Respondents Movements
[35]
The trial judge found the respondents movements
and interactions in the aftermath of the killing to be somewhat curious and
unusual; however, they were not necessarily indicative of guilt. Although his
face was covered at times, the respondent traveled in public areas and had seemingly
uneventful interactions with others. At other times, his face was not covered.
The White Cloth
[36]
The trial judge declined to find that the
respondent was concealing a weapon under the white cloth that was captured on
video. She further rejected the Crowns submission that the respondent had a
cloth in his hand because he had injured himself while stabbing Mr. Dabrowski.
As the trial judge observed, at para. 96, Mr. Scott is seen repeatedly on the
video with the white cloth wrapped around his right hand, both before and after
entering Mr. Dabrowskis apartment. There is no evidence on the video footage
that the cloth is stained.
Blood on the Respondents Jacket
[37]
The trial judge found that the minimal amount of
blood found on the respondents jacket was not indicative of the respondent
killing Mr. Dabrowski as opposed to merely being inside his apartment. As this
forms the basis for one of the grounds of appeal, I address this evidence in
more detail below.
The Trail of Brown Substance and
Stains
[38]
At trial and on appeal, the Crown contends that
there was an identifiable trail of the brown substance, thought to be
chocolate sauce, from Mr. Dabrowskis apartment to the respondents apartment.
The trial judge dealt with this evidence in great detail. She found the
photographs of the location of the stains to be problematic and not adequately
explained. Ultimately, she was unable to find the trail the Crown attempted
to demonstrate. The trial judge, however, did find that the respondent did
transfer two of the stains, which is consistent with Mr. Scotts position that
he was present inside the apartment at some time contemporaneous to the stabbing.
The finding, however, does not assist me in finding that Mr. Scott was the
stabber. The trial judges finding in relation to what Mr. Cameron noted
about the substance on the second floor door handle is discussed below.
Motive
[39]
Based on the respondents conversation with Mr.
Ramsay in the elevator, the Crown suggested that the retention of electronics by
Mr. Dabrowski may have been a motive for the killing. The trial judge rejected
this theory as speculative, noting that there is absolutely no evidence of
motive.
Conclusion
[40]
Based on the above, the trial judge concluded
that she was not satisfied beyond a reasonable doubt that the respondent was
responsible for the stabbing of Mr. Dabrowski. Accordingly, she acquitted the
respondent.
D.
analysis
[41]
The Crown advances three grounds of appeal:
1.
The trial judge misapprehended the
evidence of Mr. Cameron, causing her to fail to consider the totality of
evidence on the ultimate issue;
2.
The trial judge erred in how she
approached a formal admission that Mr. Cameron observed a sticky substance on a
second floor door handle after a man ran past him and went through the door;
and
3.
The trial judge erred in speculating about
the amount of blood that would have been on the killer as a result of the
stabbing.
[42]
The Crown submits that the trial judge committed
legal errors in her analysis of the evidence that undermined a legally
appropriate approach to the evidence and resulted in an unlawful acquittal. The
respondent claims that the Crowns attempts to undermine the trial judges
factual findings, including her credibility assessment of the Crowns main
witness, Mr. Cameron, are nothing more than thinly veiled attempts to contrive
questions of law. In effect, the Crown attacks the reasonableness of the
acquittal.
[43]
Section 676(1)(a) of
Criminal Code
limits
an appellate courts ability to set aside an acquittal. The Crown must
establish an error based on a question of law alone; errors of fact or mixed
errors of fact and law are not sufficient:
R. v. Rudge
, 2011 ONCA 791,
108 O.R. (3d) 161, at para. 35;
R. v. Palmer
, 2021 ONCA 348, at para.
60;
R. v. J.M.H.
, 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 24.
[44]
Short of a legally flawed approach to the
evidence, the Crown is precluded from arguing that an acquittal is
unreasonable. Section 686(1)(a)(i) furnishes appellate courts with the power to
set aside a conviction when it is determined that it is unreasonable or cannot
be supported by the evidence; there is no corresponding power to set aside an acquittal
on this basis. This is not simply a matter of textual asymmetry. There is a
more fundamental principle at stake. In
R. v. Biniaris
, 2000 SCC 15,
[2000] 1 S.C.R. 381, at para. 33, Arbour J. said, as a matter of law, the
concept of unreasonable acquittal is incompatible with the presumption of
innocence and the burden which rests on the prosecution to prove its case
beyond a reasonable doubt. See also
J.M.H.
, at para. 27.
[45]
Further, identifying an error of law is only the
first step in the analysis. In order to succeed in overturning an acquittal,
the Crown must also establish, with a reasonable degree of certainty, that the
error of law might reasonably be thought, in the concrete reality of the case
at hand, to have had a material bearing on the acquittal:
R. v. Graveline
,
2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 14-16;
R. v. Goldfinch
, 2019
SCC 38, 89 Alta. L.R. (6th) 1, at para. 135;
R. v. Barton
, 2019 SCC 33,
[2019] 2 S.C.R. 579, at para. 160;
R. v. Button
, 2019 ONCA 1024, at
para. 15;
Palmer
, at para. 62.
[46]
The Crown has not identified any legal errors in
the trial judges reasons. The Crown essentially challenges the reasonableness
of the acquittal and asks us to engage in our own weighing of the evidence and
to reach our own conclusion on the ultimate issue of guilt. The contested
findings were open to the trial judge to make on the record before her.
(1)
Misapprehension of Evidence
(a)
Introduction
[47]
The core of the Crowns submission is that the
trial judge failed to consider all of the evidence in relation to the issue of
guilt and innocence, a recognized error of law:
J.M.H.
, at para. 31.
This error is most typically seen when a trial judge subjects individual pieces
of evidence to the standard of proof beyond a reasonable doubt, failing to the
evaluate the cumulative effect of all of the evidence:
R. v. B.(G.)
,
[1990] 2 S.C.R. 57.
[48]
This case rests on a different footing. The
Crown submits that the trial judge misapprehended the evidence of the main
Crown witness, Mr. Cameron, concerning what the respondent was carrying in his
hand. This mistake, in turn, was instrumental in the trial judges negative
assessment of Mr. Camerons credibility. It prevented the trial judge from
considering the whole of the evidence. I disagree.
(b)
The Disputed Evidence
[49]
This ground of appeal focuses on a narrow issue
concerning the interpretation of Mr. Camerons evidence. Specifically, at issue
is his description of what the respondent may have been carrying when Mr.
Cameron saw him for the second time that evening, at 6:40 p.m.
[50]
The respondent was carrying something in his
hand that was longer than his hand and was wrapped in a white cloth. He said
that the respondent had something in [his] hand wrapped up in either a towel,
or like a bag, that was sticking out, like, straight, like as if youre holding
like a pipe or, like, a bat or something
or a knife. The import of his
evidence was that whatever protruded from his hand was covered by the towel
whatever part of it he was holding in his hand, and the part that wasnt in his
hand was wrapped in something white.
[51]
The dispute that arose at trial, and on appeal,
was whether Mr. Cameron was describing something protruding from the
respondents hand that was covered by the towel, or something protruding from
the towel.
(c)
The Trial Judges reasons
[52]
During Mr. Camerons cross-examination, it is
clear that the trial judge believed Mr. Cameron said that the object in the
respondents hand was not completely covered by the towel. The trial judge was
corrected on this point by the Crown. It is clear from the various exchanges
with counsel throughout the rest of the trial that the trial judge understood
the main import of Mr. Camerons evidence (i.e., that there was an object that
was completely covered by the towel). Moreover, the trial judge advised counsel
that she had ordered a transcript of Mr. Camerons evidence and that she would
re-read it.
[53]
The trial judge addressed this evidence in her
reasons for judgment on more than one occasion. On the first occasion, at para.
66, she said the following:
Mr. Cameron said he saw this individual again
two or three minutes later when he got on the elevator on the first floor. He
said this individual was getting off the elevator. He said the only difference
was his face was covered and
he had something in his hand that was wrapped
up in a white towel or a bag. He said something was sticking straight out like
a pipe or bat or something. Later, Mr. Cameron said the object was sticking
straight out and it could have been a bat, a pipe, a knife or a chair leg.
[Emphasis added.]
[54]
The Crown submits that this passage demonstrates
that the trial judge persisted in her belief that Mr. Cameron said the object
was not completely covered by the towel. I disagree. This passage reveals an
accurate understanding of Mr. Camerons evidence on this point. This becomes
clear when other passages from the trial judges reasons are considered.
[55]
To frame the first passage relied upon by the
Crown, it is necessary to take a step back to consider Mr. Camerons evidence
more generally. Mr. Cameron purported to identify the respondent on three
occasions that night. He volunteered information about how good he is at eyewitness
identification. In cross-examination, when he was confronted with the fact that
the respondent was wearing a mask, he changed his testimony and acknowledged
the respondents face was covered on one occasion. However, the evidence
demonstrated that the respondent was masked on two occasions. This led the
trial judge to make the following findings and credibility assessment, at paras.
72-74:
In cross-examination, Mr. Cameron was
questioned about his evidence that the male had something wrapped in his hand
. Mr. Cameron would not even entertain the possibility that he was
wrong on this point. He said he was certain that the male was not holding a gun
because he had fired firearms before.
He later added that the object
protruded about five inches out from his wrapped hand and guessed that the
object was close to 10 inches long including the handle
.
Later, he testified it could have been four
different things and without any prompt said, if you really want to know what
I think, it was probably a knife. He said he knows this because he was going
to go into the knife business at point in his life and gave some details about
that. He was adamant on this point.
I do not accept Mr. Camerons evidence that he
saw
something protruding from the white cloth that was wrapped around Mr.
Scotts hand.
I have viewed the compilation video contained in Exhibit 4
multiple times. It provides a clear view of Mr. Scotts wrapped hand from a
variety of angles and
I am unable to see anything protruding from that hand
.
[Emphasis added.]
[56]
In my view the trial judge did not misapprehend
the evidence. Taken together, the trial judge understood that Mr. Cameron said
that whatever the respondent had in his hand was covered by a white cloth.
During the course of his testimony, the object grew in size, as did Mr.
Camerons apparent clarity.
[57]
Ultimately, having reviewed the videotape
evidence, the trial judge was unable to see anything protruding from the
respondents wrapped hand, whether wrapped or not. It was open to her to make
this finding.
[58]
For the sake of completeness, I will address the
Crowns further arguments on this issue. The Crown submits that the trial
judges misapprehension of the hand/towel evidence caused her to unfairly
assess Mr. Camerons evidence, resulting in a skewed assessment of the case as
a whole, and a failure to consider the totality of the evidence bearing on the
ultimate issue. In making this submission, the Crown relies on
R. v. Curry
,
2014 ONCA 174, 317 O.A.C. 329, leave to appeal refused, [2014] S.C.C.A. No.
185, in which Tulloch J.A. held that the trial judge was blinded by what he
mistakenly believed to be the evidence of a Crown witness, causing him to
ignore other important evidence: at para. 51.
[59]
This case is different from
Curry
. In
that case, the trial judge misunderstood the evidence of a key witness on the
identification of the driver in a fatal driving case, resulting in an
acquittal. It distorted his assessment of other evidence led by the Crown that
was indicative of guilt. Here, the evidence of Mr. Cameron on the hand/towel
issue was far from central to the Crowns case. The trial judges rejection of
the hand/towel evidence did not lead her to ignore or devalue other evidence
supporting the Crowns theory.
[60]
Moreover, the trial judges finding on this
aspect of the evidence did not overwhelm her assessment of Mr. Camerons
credibility. There were many reasons to reject Mr. Camerons evidence, separate
and apart from the hand/towel evidence. In her submissions, the trial Crown
acknowledged that Mr. Cameron became frustrated and combative during his
cross-examination. On appeal, the Crown asserts in its factum, Mr. Cameron is
not the kind of witness who is likely to endear himself to a trial judge. The
trial judge made the following observations of Mr. Cameron, at paras. 75-77:
Mr. Cameron was
prone to exaggeration and
eager to share details that had no relevance to this case
. His testimony
had
a stream of consciousness quality to it
. Layered on top of all of this was
a
tendency towards theatrics on his behalf.
More than once he stood up or
came out of the witness box to demonstrate things without being asked to do so.
If Mr. Cameron interpreted a question as being confrontational,
he had a
tendency to dig in and overstate
.
Overall, Mr. Cameron was
argumentative and
combative
.
His answers were often non-responsive. He did not seem to
appreciate the difference between an actual observation and speculation, and he
was quick to exaggerate whenever the opportunity presented itself.
For
these reasons, I am cautious about relying on the testimony of Mr. Cameron
unless corroborated by other evidence.
To that end, I am prepared to accept the
portions of his evidence that are consistent with the video surveillance
evidence. [Emphasis added.]
[61]
I do not accept the Crowns submission that the
trial judge was led to these conclusions because she failed to appreciate Mr.
Camerons evidence on the hand/towel issue. The trial judges assessment of his
credibility is broad and wide-ranging, transcending the hand/towel evidence. Even
if she did err in her interpretation of this evidence, which she did not, it
was only part of her analysis. It did not drive a skewed approach to Mr.
Camerons evidence, the assessment of which is a question of fact:
R. v.
R.P.
, 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10.
[62]
Moreover, the trial judge had the videotape
evidence to assist her. While it did confirm that one of the respondents hands
was covered with a towel, it did not reveal anything protruding neither from
his hand nor from under the towel.
[63]
In essence, the Crown asks us to dissect and
microscopically examine single passages from the trial judges reasons in
isolation and out of context and to improperly substitute [our] own
credibility assessments for those made by the trial judge:
R. v. Harris
,
2014 ONCA 746, at para. 16. See also
R. v. Stirling
, 2008 SCC 10, [2008]
1 S.C.R. 272, at para. 13. I would decline to do so and dismiss this ground of
appeal.
(2)
Improper Use of Admissions
[64]
As discussed at the outset, the trial was an
efficient one. A number of admissions were made under s. 655 of the
Criminal
Code
, which provides:
s. 655
Where an
accused is on trial for an indictable offence, he or his counsel may admit any
fact alleged against him for the purpose of dispensing with proof thereof.
[65]
The admission at issue was one of six admissions
in Exhibit #7
Admissions Re Scene
. Admissions #2 to #6 purport to
state objective facts about what the police did and what the CFS found, mostly
in relation to the presence, location, and properties of the brown substance.
The contentious admission, #1, is different. It reads as follows:
While taking out his garbage William
Cameron noted a sticky brown molasses type substance on the door handle leading
to the North Exit stairwell
. This happened when Mr.
Cameron followed the person that had ran past him into the north exit
stairwell. The person went up the stairs and Mr. Cameron went down the stairs
to take out his garbage. [Emphasis added.]
[66]
This admission does not purport to state an
objective fact: rather, it records the observations Mr. Cameron said that he
made. It was an admission that, if asked about the matter during his testimony,
Mr. Cameron would have provided that information. Exhibit #8 contained further
admissions along these same lines.
[67]
This type of admission has been called an informal
admission: see
R. v. Stennett
, 2021 ONCA 258, at para. 57;
R. v.
Korski
, 2009 MBCA 37, 236 Man. R. (2d) 259, at paras. 114-128, 137;
R.
v. Falconer
, 2016 NSCA 22, 372 N.S.R. (2d) 186, at para. 49. Discussing the
difference between admissions as to objective facts (formal admissions) and
admissions as to the anticipated evidence of a witness (informal admissions),
Watt J.A. said in
Stennett
, at para. 58, An agreement about what a
witness could say or would have said is not an agreement that what they say is
true:
Korski
, at para. 125.
[68]
When Exhibit #7 was entered, Mr. Cameron had
already testified. It is not apparent from the record why he was not asked
about this issue when he gave evidence. Moreover, a police officer also
testified about the brown substance and stains but said nothing about the door
handle on the second floor.
[69]
The trial judge inquired of counsel whether the
admission in question was a formal admission. The parties agreed that it was.
It would appear that they were mistaken. As Watt J.A. said in
Stennett
,
at para. 58, Those that recite what a witness would say retain their true
character, however they may be styled.
[70]
The trial judge discussed this evidence at para.
36 of her reasons:
The final stain for consideration comes in the
form of an admitted fact pursuant to s. 655 of the
Criminal Code
.
It
is an admitted fact that Mr. Cameron noted a sticky brown molasses type
substance on the second-floor door handle leading to the north stairwell.
The evidence is that Mr. Cameron felt the sticky substance on the door handle
immediately after a male had run into the stairwell. There is no evidence that
the substance was tested or photographed by the police.
There is no evidence
that this door handle formed part of the police investigation regarding the
substance trail from Mr. Dabrowskis apartment to Mr. Scotts apartment. Surely
if the handle had been covered in a brown sticky substance, the police would
have noted it. They did not. Accordingly, I am cautious about the weight I am
prepared to attach to this evidence
. [Emphasis added.]
[71]
The Crown submits that, notwithstanding how the admission
is characterized, the trial judge committed an error of law by failing to act
on the admission because her rejection was based on speculation about the
police investigation. The Crown contends that this admission was critical
because, according to the combined force of Mr. Camerons evidence and the
admission, the brown substance was deposited onto the door handle at 6:37:20 p.m.
by the respondent. The Crown submits that this moves the time of the murder
forward by three minutes, contrary to the trial judges findings on this issue.
I have a number of problems with the Crowns submissions on this issue.
[72]
First, the trial judge did not fail to give
effect to the admission. This assertion is simply incorrect. She merely
expressed caution about how much weight she was prepared to attach to it. The
trial judge was entitlted to take this approach. The Crown offers no authority
to support its position that a trial judge is required to assign any particular
weight to admitted facts simply because they are admitted, or to find they
assist the Crown in discharging its burden. Essentially, the Crown submits that
the trial judge should have regarded this admission as more significant than
she did. For the same reasons given in relation to the first ground of appeal,
this court is not empowered to engage in this fact-finding exercise.
[73]
Second, while it might be said that there is a
degree of speculation involved in the trial judges treatment of this evidence,
it may also be viewed as a valid observation about a lack of evidence on this
point. Moreover, it must be considered in conjuction with the trial judges
more general findings about the evidence concerning the brown substance.
[74]
Third, it is difficult to accept the submission
that this evidence was crucial, let alone important, to the Crowns case. After
all, police witnesses were not asked about this evidence, nor was Mr. Cameron
when he testified.
[75]
Fourth, the Crowns submission on appeal ignores
the trial judges rejection of Mr. Camerons evidence that it was the
respondent who ran past him to enter the north stairwell at 6:37 p.m. She did
so because Mr. Cameron was unreliable, and the video footage was fleeting and
blurry. This critical finding rendered the informal admission about the door
handle insignificant.
[76]
Lastly, it is unclear how the Crowns case would
have been strengthened by moving the time of death forward to 6:37 p.m. Mr. Dabrowski
was last seen alive at 5:32 p.m., leaving a lengthy period of time unaccounted.
[77]
I would dismiss this ground of appeal.
(3)
Improper Speculation
[78]
This ground of appeal relates to the testing of
items seized from the respondents apartment four days after Mr. Dabrowski was
killed. The green jacket worn by the respondent had a blood stain inside the
right sleeve that was admitted to be Mr. Dabrowskis blood.
[79]
The Crown submits that the trial judge erred in
finding that these items were seized the day after the murder. This error is
insignificant. The trial judge was aware of the possibility that the items
could have been washed by the respondent following the murder.
[80]
The Crown submits that the trial judge
improperly speculated about the blood staining evidence on the inner sleeve of
the jacket. She addressed this aspect of the evidence at paras. 98 and 100 of
her reasons:
I turn now to the blood on Mr. Scotts jacket.
The evidence before me is that blood, identified as coming from Mr. Dabrowski,
was found on the inside sleeve of Mr. Scotts jacket. There is no evidence as
to the exact location of the stain or the quantity of blood on the jacket. I do
know that Mr. Dabrowski was stabbed 23 times and the amount of blood in and
around his body in the photographs is significant.
Common sense would
suggest the killer would have been covered in blood. There is no evidence,
aside from the stain on the jacket and the footwear impression, that Mr. Scott
was covered in blood. The amount of blood depicted in the photographic evidence
suggests that it would have been unavoidlable for anyone who attended inside
that apartment to not have gotten some blood on their person.
Given the substantial amount of blood and
brown substance at the crime scene, one would expect anyone who went inside to
have some blood transferred onto their person.
To that end, one would expect
the stabber, after 23 stabs, to be covered in blood. There is no evidence that
Mr. Scott was covered in blood. Quite the opposite, my impression was that the amount
of blood and brown substance attached to Mr. Scott was minimal.
[Emphasis
added.]
[81]
The Crown took a different view of the blood on
the respondents items found in the bathtub. It was her theory that the
respondent washed these items. She further took the view that the presence of
blood on his clothing explained why he changed his appearance later in the
evening. As she submitted during her closing argument:
Hes completely, one hour and ten minutes
after hes seen leaving the building with his hand covered, hes completely
changed his appearance, and in my respectful submission
thats because his
clothing was covered in the victims blood.
And we know from the forensic
evidence that the victims DNA and his blood was found on the jacket Mr. Scott
had been wearing. [Emphasis added.]
[82]
The trial Crown asked the trial judge to find
that the respondents clothing would have been covered in the victims blood.
The Crown can hardly complain now, on appeal, that the trial judge erred in
following the trial Crowns sensible lead. Moreover, the trial judges reasons
demonstrate that she was aware that the respondent had changed his clothes on
the night of the murder, and the possibility that the respondent had washed the
items found in his bathtub.
[83]
I would dismiss this ground of appeal.
E.
Disposition
[84]
I would dismiss the Crowns appeal from
acquittal.
Released: MT September 17, 2021
Gary Trotter J.A.
I agree. M. Tulloch J.A.
I agree. L.B. Roberts J.A.
[1]
This summary is taken largely from para. 39 of the reasons
for judgment.
[2]
After
Mr. Cameron testified, the respondent made a number of admissions, one of which
was that Mr. Cameron noted a sticky brown substance on the door handle. I will
return to this issue below when considering how the trial judge dealt with this
admission in her reasons.
|
COURT OF APPEAL FOR ONTARIO
CITATION: South Beach Street Development
Ltd. v. US Income Partners LLC, 2021 ONCA 624
DATE: 20210917
DOCKET: C69126
Strathy C.J.O., Pepall and Pardu
JJ.A.
BETWEEN
South Beach Street Development
Ltd.,
Amaryco Inc. and Fabrizio Lucchese
Defendants (
Appellants
)
and
US Income Partners LLC
Plaintiff (Respondent)
Matthew R. Harris, for the appellants
Amaryco Inc. and Fabrizio Lucchese
Yeganeh Pejman, for the respondent
Heard: September 13, 2021 by
video conference
On appeal from the judgment of Justice Sean
F. Dunphy of the Superior Court of Justice, dated February 5, 2021.
REASONS FOR DECISION
[1]
The appellants Amaryco Inc. and Fabrizio
Lucchese were indebted to the respondent as a result of an investment in
Florida.
[2]
Following default in payment, the parties
entered into a Settlement Agreement. The appellants had U.S. counsel for the
purposes of negotiating the Settlement Agreement.
[3]
The Settlement Agreement provided:
-
for a monthly repayment schedule;
-
for a consent to an Ontario judgment that would be released from escrow
in the event that there was a default in the repayment schedule. It constituted
an absolute estoppel and bar to any defence or counterclaim with respect to the
consent judgment; and
-
an attached form of judgment for US$2,750,000 plus stipulated interest
and legal costs.
[4]
Failure to make any of the required payments
entitled the respondent to register a warranty deed on some of the appellants vacant
land in Florida, and to reduce the balance due on the appellants outstanding
settlement debt by US$1,500,000.
[5]
Each of the parties represented that they had
made such investigation as deemed necessary or desirable.
[6]
The appellants defaulted on a payment required
by the Settlement Agreement. The respondent successfully moved for judgment
relying on the consent to judgment. It provided a credit to the appellants on
account of the warranty deed on the vacant land in Florida.
[7]
The appellants appeal from that judgment.
[8]
Although the appellants raised three arguments
in their factum, before us they only pressed one. They argued that the consent
was ineffective because the statement of claim had not been issued beforehand,
and in granting judgment the motion judge improperly relied on Rule 1.04 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194
.
[9]
The appellants did not contest the defaults
under the Settlement Agreement. The Settlement Agreement clearly identified the
substance of the claim contained in the statement of claim that was ultimately
issued. By providing the consent to judgment, the appellants plainly intended
to create a legal obligation based on the contents of that claim. They had the
benefit of advice from their U.S. attorney and could not point to any matters
that required the expertise of an Ontario lawyer. Indeed, they represented that
they had made all necessary investigations.
[10]
The full record was before the motion judge and
reliance on r. 1.04 did not result in any prejudice to the appellants. The
motion judge was legitimately satisfied that he had all he needed to do justice
between the parties, and that reconstituting the proceedings under a different
rule would reflect the triumph of form over substance.
[11]
For these reasons, the appeal is dismissed. As
agreed by the parties, the appellants are to pay the respondent its costs fixed
in the amount of $7,500 inclusive of disbursements and tax.
G.R. Strathy
C.J.O.
S.E. Pepall
J.A.
G. Pardu J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v.
Wawatie, 2021 ONCA 609
DATE: 20210913
DOCKET: C68256
Feldman, Paciocco and
Nordheimer JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Jerry Wawatie
Appellant
Jessica Smith Joy, counsel for the respondent
Amy J. Ohler, counsel for the appellant
Heard: September 2, 2021 by video conference
On appeal from the sentence
imposed on August 8, 2019 by Justice Peter K. Doody of the Ontario
Court of Justice.
REASONS
FOR DECISION
[1]
Mr. Wawatie pleaded guilty to aggravated assault and breach of probation
arising out of a June 4, 2019 attack on his former intimate partner, an Indigenous
woman. The attack occurred after Mr. Wawatie attended at her place of residence
in violation of two separate court orders. He punched the complainant in the
face, knocking her to the ground. He then held his knee on her neck,
endangering her life by restricting her ability to breathe. She began to see
spots and involuntarily urinated before the attack ended. She was left with
multiple injuries.
[2]
This was not Mr. Wawaties first offence relating to the complainant. He
had repeatedly been convicted of breaching court orders prohibiting him from
contacting her and attending her residence. He had also previously been
convicted of being unlawfully in her dwelling house, causing mischief to her
property, assaulting her, and assaulting her causing her bodily harm by
breaking her wrist. Mr. Wawatie was convicted of the assault causing bodily
harm only nine months prior to the June 4, 2019 offences.
[3]
Mr. Wawatie has a long history of alcohol and substance abuse and he has
serious mental health issues. Soon after his arrest his counsel concluded that
his mental health was deteriorating. He sought a swift resolution of the
charges, with a view to achieving a rehabilitative sentence for Mr. Wawatie at
the St. Lawrence Valley Correctional and Treatment Centre. On June 19, 2019, he
successfully arranged for Mr. Wawatie to enter a guilty plea in Ottawas
Indigenous Peoples Court with a view to securing a report pursuant to s. 21 of
the
Mental Health Act
, R.S.O. 1990, c. M-7,
that would assist
in securing the rehabilitative sentence he sought. After the s. 21 report was
completed, that plea was struck and a new plea was entered before the trial
judge, also in the Indigenous Peoples Court. After a plea inquiry, Mr. Wawatie
was found guilty of both the aggravated assault and the breach of probation
charges. On August 8, 2019, the trial judge rejected the defence submission for
a reformatory sentence and sentenced Mr. Wawatie to 30 months
imprisonment.
[4]
Mr. Wawatie seeks leave to appeal that sentence. He argues that the
trial judge erred by failing to apply the
Gladue
principles as required
when sentencing Indigenous offenders. Those principles require a trial judge to
consider not only the impact of an Indigenous offenders unique systemic or
background factors on their degree of responsibility, but also restorative and
rehabilitative sanctions that may be appropriate because of the offenders Indigenous
heritage:
R. v. Gladue
, [1999] 1 S.C.R. 688, at para. 66. Mr. Wawatie submits
that the trial judge failed to give due consideration to either of these
required inquiries.
[5]
We do not agree. Although the trial judge did not have a
Gladue
report
before him, the s. 21 report included extensive, highly specific biographical information
about Mr. Wawaties experience as an Indigenous man, including his connection
to his culture, his traumatic and abusive upbringing, its link to intergenerational
trauma, and the profound mental health and addiction challenges that have
plagued Mr. Wawaties life. The report described how the significant trauma Mr.
Wawatie had experienced, the behaviour he was exposed to, and his addictions, contributed
to his low frustration tolerance and his inability to maintain control over his
emotions. Commendably, the s. 21 report also expressed Mr. Wawaties
desire for a culturally appropriate rehabilitative sentence and outlined the available
options.
[6]
Armed with this information, both Mr. Wawaties counsel and the Crown
made submissions on the impact that the
Gladue
principles should have
on sentencing. The trial judge inquired how he was to resolve the interplay
between those principles and s. 718.04 of the
Criminal Code
. Section
718.04 requires sentencing judges to give primary consideration to denunciation
and deterrence if the offence involved the abuse of a person who is vulnerable
because of personal circumstances, including because the person is Aboriginal and
female. The trial judge said, I would have thought I had to take both into
account in the particular circumstances of this offence and this offender.
[7]
It is clear from his sentencing reasons that the trial judge did so. He
said explicitly that he had considered the
Gladue
principles. He also identified
the role those principles play in identifying the moral culpability of the
offender, and in encouraging alternative sanctions which may more effectively
achieve the objectives of sentencing in the offenders Indigenous community. Although
he did not overtly address each of the relevant features of Mr. Wawaties
background, or speak directly to the alternative sentencing options, he did not
have to. This was an experienced trial judge sitting in a specialized
Indigenous Peoples Court in a heavily burdened court system. Although he could
have been more explicit, the reasons he provided were sufficient. There is no
basis for concluding that he failed to give due consideration to the
Gladue
principles.
[8]
Moreover, the trial judge was entitled to conclude that the
Gladue
principles
that he had considered did not require a lesser sentence than would otherwise
be the case, or a sentence more focused on rehabilitation. Mr. Wawatie had
consistently terrorized the complainant. Prior efforts at his rehabilitation
had failed, as had prior efforts to protect the complainant from Mr. Wawatie. The
aggravated assault, in particular, was a grave offence and Mr. Wawaties level
of violence was escalating in each assault. The sentence was fit and not unduly
harsh.
[9]
We grant Mr. Wawatie leave to appeal his sentence, but we dismiss his
appeal.
K. Feldman J.A.
David M. Paciocco
J.A.
I.V.B. Nordheimer
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: McFarlane (Re), 2021 ONCA 632
DATE: 20210920
DOCKET: C69015
Tulloch, van Rensburg
and Nordheimer JJ.A.
IN THE MATTER OF: Odean
McFarlane
AN APPEAL UNDER PART
XX.1 OF THE
CODE
Anita Szigeti and Maya Kotob, for the appellant
Elena Middelkamp, for the respondent, Attorney General
of Ontario
James P. Thomson, for the respondent, Person in Charge of
St. Josephs Healthcare Hamilton
Heard: September 10, 2021 by video conference
On appeal from the disposition of the Ontario Review
Board, dated December 2, 2020, with reasons dated January 5, 2021.
REASONS FOR DECISION
[1]
The appellant appeals the disposition of the Ontario Review Board
(ORB), dated January 5, 2021, ordering his detention at the Forensic
Psychiatry Program of the St. Josephs Healthcare Hamilton (the Hospital), with
provision for certain privileges, including that he be permitted to live in the
community in accommodation approved by the Person in Charge of the Hospital.
[2]
The appellant argues that the Board erred by refusing his request to
continue his previous disposition of a conditional discharge. The appellant
also argues, in oral submissions, that a detention order and being subjected to
the continued jurisdiction of the ORB exacerbates his mental condition by
making him more anxious, which leads to further deterioration to his mental
health.
[3]
At the conclusion of the hearing, we dismissed the appeal with reasons
to follow. We now provide our reasons.
Background
[4]
The appellant has a lengthy history under the ORB. We include here only
the aspects of this history that are pertinent to this appeal.
[5]
The appellant has been diagnosed with schizophrenia, which is now in
remission; substance use disorder, which is currently in early remission in a
controlled environment; and anti-social personality traits.
[6]
The appellant has been the subject of a range of dispositions under the
ORB since 2008, after he was found not criminally responsible on account of a
mental disorder for a charge of assault.
[7]
In recent years, the appellants mental condition significantly
improved, and he commenced living with his long-time partner, who is now his
fiancée. After showing considerable progress in his treatment and relative
stability in his condition, on February 5, 2020, the Board granted the
appellant a conditional discharge.
[8]
While in the community, the appellant worked with a treatment team.
After some challenges with his initial case manager, his case was re-assigned.
He met with his treatment team twice per week, provided negative urine samples,
and showed no thought disorders.
[9]
Since being discharged, the appellant has resided in an apartment with
his fiancée in Hamilton. Unfortunately, the couple began experiencing
challenges in their relationship, which has resulted in them taking time apart
from one another. The appellants fiancée commenced living in Brampton during
the week and returned to the apartment on weekends, both to accommodate her
commute to work in the Peel area, and due to the discord in their relationship.
The appellant has questioned his fiancées fidelity, which has resulted in
increased stress in their relationship. On one occasion, the appellant
voluntarily admitted himself to hospital, as he was having difficulty coping
with these relationship challenges.
[10]
In
September 2020, the appellant reported that his relationship with his fiancée
was undergoing an increased level of stress. During the same month, the
appellant approached two 15-year-old boys and demanded their cell phones and
backpacks, which were given to him. The appellant returned to his apartment and
discarded the stolen items. The appellants treatment team determined that
there was no change in the appellants mental status, and his toxicology
screens returned negative. Consequently, he could not be admitted to hospital under
the
Mental Health Act
.
[11]
On
October 29, 2020, the appellant was charged with two counts of mischief, after
which he was taken to the Hospital by police and admitted into seclusion.
Earlier that day, around 2:45 a.m., the appellant had driven to a home and
asked the occupant if he could park his car in their driveway to sleep. He was
refused. The appellant attended at another home and threw a rock through a
window of the home. He explained he had been trying to get the attention of the
houses occupants. At the Hospital, the appellant tested positive for THC and,
when asked, he admitted to having consumed a cannabis edible.
[12]
On
November 27, 2020, an early review hearing was held. In a disposition dated
December 2, 2020, the appellants previous conditional discharge was vacated,
and a detention order was imposed. The appellant now appeals this disposition.
Discussion
[13]
We
see no error with the Boards disposition. At the hearing before the Board, the
appellants treating psychiatrist, Dr. Nagari, gave evidence that a detention
order was necessary and appropriate as the appellants mental state had
deteriorated. Dr. Nagari based his conclusions on the appellants unexplained
actions in which he exhibited concerning behaviours on two separate occasions
during September and October 2020, which resulted in police intervention.
[14]
The
Board also heard evidence from Dr. Mamak who conducted a Psychological Risk
Assessment on the appellant and found him to be at a moderate to moderate-high
risk to reoffend.
[15]
Finally,
the Board considered whether the appellants request for the inclusion of a
Young clause within a conditional discharge order would mitigate the risk, as
it would require the appellant to attend at the Hospital for the purposes of
assessment and re-admission, if requested by the Hospital. The Board concluded
that based on the evidence, it would not sufficiently mitigate the risk.
[16]
In
the end, the Board concluded that based on all the evidence before it, a
conditional discharge was no longer appropriate to manage the appellants
apparent state of decompensation, and that the appellant continued to pose a
risk to the safety of the public.
[17]
In
our view, the evidence provided a reasonable basis for the imposition of a disposition
that would permit the Hospital to approve the appellants accommodation. As has
been held in previous decisions of this court, giving the Board the power to
require the hospitals approval of accommodation is only possible under a
detention order: see
Runnalls (Re),
2012 ONCA 295; 2013 ONCA 386.
[18]
We
see no error in the Boards decision, as there was ample evidence to support
its finding that the appellant continues to pose a significant risk to the
community (which is not contested), and the disposition that was imposed. As
the appellants counsel acknowledged, although the disposition may be
disappointing to him, and may contribute to his anxiety, this is not a basis to
interfere.
[19]
We
encourage the appellant to continue his treatment to improve his condition. We also
encourage the treatment team to continue in its efforts to work towards the
appellants full reintegration into the community when that is possible.
[20]
As
we were satisfied that the Boards disposition was both reasonable and
consistent with a need to achieve a disposition that is the least onerous and
least restrictive, the appeal was dismissed.
M. Tulloch J.A.
K. van Rensburg J.A.
I.V.B. Nordheimer
J.A.
|
Corrected decision: The text of
the original judgment was corrected on October 29, 2021 and the description of
the correction is appended.
COURT OF APPEAL
FOR ONTARIO
CITATION: R. v. Alekozai, 2021 ONCA 633
DATE: 20210920
DOCKET: C68292
Watt, Benotto and Jamal JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Sakhi Alekozai
Appellant
Andrew Burgess, for the appellant
Rebecca De Filippis, for the respondent
Heard: March 5, 2021 by videoconference
On
appeal from the conviction entered on February 5, 2019 by Justice Victor
Giourgas of the Ontario Court of Justice.
Watt J.A.:
[1]
An advertisement appeared in the Escorts section of Backpages.com. Its
title: BACK only for the Afternoon Tight Brand New girl in richmond hill
today only waiting 18.
[2]
A picture accompanied the advertisement. A woman in a bedroom. Her face
not visible. And a text from Kathy. A telephone number and an email address.
[3]
The appellant sent a text to Kathy. He asked about rates and services.
An exchange of messages followed. They made arrangements about all the
essentials. Price. Services. Location.
[4]
The appellant knocked on the hotel room door. Kathy said she would be
there, waiting. But Kathy was not there. A police officer answered the door.
He arrested the appellant on charges of internet child luring and communicating
with a person to obtain sexual services for consideration from a person under
18.
[5]
The appellant was convicted of both charges after a trial before a judge
of the Ontario Court of Justice. He appeals his convictions.
[6]
In these reasons, I explain why I conclude that the appeal fails.
The Background
[7]
Like many others, this case arises of Project Raphael, a York Region
Police Services (YRPS) sting operation aimed at combatting internet child
luring. The project involved placing an advertisement in the Escorts section of
Backpages.com. A police officer, posing as an underage female, would exchange
messages with those who responded to the advertisement. Arrangements for sexual
services would be concluded. When the respondent arrived at the designated
location, he would be arrested.
The Advertisement
[8]
The advertisement posted in the Escorts section of Backpages.com
included a title, a picture, and some text. A disclaimer in this section of the
website advises about its sexual content and that it is to be accessed only by
those who are 18 or older and not considered minors in their state of
residence. Anyone who agrees to the condition gets access to the website.
[9]
The title and accompanying text are composed in language designed to
appeal to those interested in purchasing sex from underage girls. The specific
age of the underage girl is not stated in the advertisement.
[10]
In
this case, the posted title read:
BACK only for the Afternoon, Tight Brand-New girl in richmond
hill today waiting 18
followed by some symbols and 18. The accompanying
photograph was of a female police officer in her 30s. Her face was not visible
in the photograph.
[11]
In
addition to the title and photograph, the advertisement contained some further
text,
Sexy, new and hot. Hi guys, Im Kathy and Im a girl who is
sexy and young with a tight body, looking for fun. Im only here today just
visiting from out of town, in-calls only. Dont miss this, youll be sorry.
Text or e-mails only.
Contact information was a telephone number and an email
address of KathyBlunt16@gmail.com.
The Response
[12]
Within
half an hour of its posting, the appellant responded to the advertisement. He
proposed a specific type of sexual activity for one-half hour for which he
would pay $80. He and Kathy exchanged messages for almost four hours.
The Discussion about Age
[13]
Early
in their exchange of messages, Kathy asked the appellant his age. He
responded and asked for her address to book an appointment. She asked him to
text her when he arrived at Leslie and Highway 7. She then added:
but Im a little younger than 18 ok?
The appellant responded:
Thats ur business hun I wouldnt have id u. But Ill text when
Im at Leslie and highway 7 thanks.
[14]
The
appellant advised Kathy that he had arrived at the intersection. Kathy
responded:
Im avail now but I just want to be honest so ur not mad when u
see me
i turn 17 soon but I look 18
The appellant answered twice in 20 seconds ok and
thats fine babe but Kathy did not receive the second message.
[15]
The
exchange of messages continued. The appellant asked why Kathy kept insisting
ur age and added Im not into young girls. I would only look at u as an
escort nothing personal. Later, the appellant sent a message:
Dont text back.
The Exchange Resumes
[16]
About
four minutes later, Kathy sent two texts well u worry me and u want to see
me or no. The appellant agreed sure just be serious plz. Kathy provided
the name of the hotel, its address, and her room number.
The Arrest
[17]
The
appellant knocked on the door of the room where he agreed to meet Kathy. A
police officer answered and arrested the appellant.
The Positions of the Parties at Trial
[18]
The
case for the Crown consisted of the text messages exchanged between the
appellant and Kathy, print-outs of Backpages.com, including the advertisement
posted by the undercover police officer and the testimony of the undercover
police officer, and a civilian member of YRPS. The Crown contended that the
evidence established that the appellant believed Kathy was underage. His
interest was to purchase sex and he was indifferent about the age of his sexual
partner. In addition, the Crown argued that the appellants evidence that he
believed Kathy was over 18 was unworthy of belief, and at all events, the
appellant took no reasonable steps to determine her true age.
[19]
The
appellant testified as the only defence witness. He admitted exchanging text
messages with Kathy to arrange sexual services for money. He always believed Kathy
was over 18 and assumed her texts to the contrary were simply a ploy to get
more money from him.
The Reasons of the Trial Judge
[20]
The
trial judge identified two issues that required decision:
i.
whether
Crown counsel had proven beyond a reasonable doubt that the appellant believed
his collocutor was under 18; and
ii.
whether
the Crown had proven beyond a reasonable doubt that the appellant had not taken
the reasonable steps required to ascertain the collocutors true age.
[21]
The
essence of the trial judges reasons concluding that the appellants guilt had
been established beyond a reasonable doubt appears in three paragraphs of his
written reasons:
The texts are powerful evidence that Mr. Alekozai was
indifferent to the age of the undercover. The phrases Thats ur business hun I
wouldnt have id u, Thats fine babe and Ok but why do you keep insisting
ur age if u fucked older men before what different would I make and its a turn
off Im not into young girls I would only look at u as an escort nothing
personal clearly indicate along with all of the other evidence that Mr.
Alekozai wished to purchase sex from this escort and did not mind that she was
underaged. The fact that he became annoyed with her for repeatedly raising the
issue of being underaged serves to reinforce his indifference. He was trying to
tell her that he didnt care what her age was and that she shouldnt keep
raising the issue.
Mr. Alekozais explanation that he said these things because he
was trying to deflect her asking for more money does not make sense. The issue
of increasing the price was never raised. Nothing in the texts suggests that it
was even contemplated. I reject Mr. Alekozais explanation in this regard. His
intent and belief was clear. I find that the Crown has established that Mr.
Alekozai believed that he was dealing with an underaged escort and that he
showed up at the hotel room in order to exchange money for sexual services from
that escort.
Even if I had a reasonable doubt about Mr. Alekozais belief as
to the age of the escort, the Crown has established beyond a reasonable doubt
that Mr. Alekozai did not take reasonable steps to determine that she was an
adult. Despite the factors at play in paragraph 20, more was required of Mr.
Alekozai in circumstances where the undercover repeatedly stated that she was
underaged and that she was trying to be honest and that she never wavered from
that position. Faced with these assertions, Mr. Alekozai was required to take
reasonable steps to satisfy himself that
this escorts
age was at 18
years. [Emphasis in original.]
The Grounds of Appeal
[22]
The
appellant advances two grounds of appeal. He says that the trial judge erred:
i.
in conflating
the standards of recklessness and belief in determining the
mens rea
of the luring offence; and
ii.
in failing
to consider whether the evidence as a whole raised a reasonable doubt about the
appellants guilt.
Ground #1: Proof of the Fault Element in Child Luring
[23]
Although
the appellant was convicted of offences under both sections 172.1(1)(a) and
286.1(2) of the
Criminal Code
, the principal focus of this ground of
appeal is the child luring conviction under s. 172.1(1)(a).
[24]
The
circumstances of the offences, as well as the essence of the trial judges
reasons for finding guilt established, appear in earlier paragraphs and require
no repetition. A brief recapture of the arguments advanced will provide a
suitable framework for the discussion that follows.
The Arguments on Appeal
[25]
The
appellant contends that developments in the jurisprudence since the trial judge
rendered his decision require a new trial.
[26]
At
the time of trial, the appellant reminds us, the appellants indifference to
his collocutors age was sufficient to establish his guilt in light of the
presumptive belief for which s. 172.1(3) provided and the absence of reasonable
steps. Two pathways to conviction existed. Proof of actual belief in the
collocutors underage status. Or proof of unreasonable indifference to the
possibility that the collocutor was underage as evidenced by the failure to
take the necessary reasonable steps to determine that age.
[27]
But
then the law changed in
R. v. Morrisson
, 2019 SCC 15. Indifference to
the collocutors age was not enough. The Crown now must prove beyond a
reasonable doubt that the accused believed the collocutor was underage. Proof
that an accused did not take reasonable steps simply precludes the trier of fact
from considering the defence that the accused honestly believed the collocutor
was of legal age. It does
not
provide an alternative pathway to
prove guilt.
[28]
In
this case, the appellant acknowledges, the trial judge did find that the
appellant believed that the collocutor was underage. But this conclusion was
grounded on recklessness or indifference to the collocutors age neither of
which is the equivalent of what is required an actual belief. In addition,
the trial judge concluded that the appellant had failed to take reasonable
steps, thus under the then applicable law, the appellant was guilty
irrespective of whether he was merely indifferent to Kathys age or actually believed
her to be 18. As in
Morrison
, a new trial is required.
[29]
The
respondent says that the appellant was not convicted because he was reckless as
to Kathys age, or because he failed to take reasonable steps to determine
her age. He was convicted because the trial judge was satisfied that the
appellant subjectively believed Kathy was underage.
[30]
Read
as a whole, the trial judges reasons demonstrate that he was satisfied beyond
a reasonable doubt that the Crown had proven that the appellant believed
Kathy was underage. The trial judge emphasized that the burden was on the
Crown to prove that the appellant believed Kathy was underage and that he did
not take such reasonable steps as required into consideration in forming his
mistaken belief in her age. The trial judge found that the appellant believed
that he was dealing with an underaged escort and that he showed up at the hotel
room in order to exchange money for sexual services from that underaged escort.
[31]
In
his oral ruling, the trial judge described the case for the Crown as
overwhelming. The appellants evidence did not raise a reasonable doubt. But
even if that evidence were to have raised a reasonable doubt, the appellant had
failed to meet the evidentiary burden that he took reasonable steps in order to
put the mistaken belief in age defence in play.
[32]
The
respondent says that the trial judges statement that the appellant was
indifferent to Kathys age does not amount to a finding that the appellant
was reckless about whether she was underage. An accused who is reckless never
turns their mind to the collocutors age. In other words, recklessness is about
the absence of knowledge. Indifference, on the other hand, refers to a person
who is marked by a lack of interest, enthusiasm, or concern for something, or
by no special liking for or dislike of something. Indifference is about the
absence of interest. Lack of interest in Kathys young age is not the
equivalent of lack of awareness of that age.
[33]
The
trial judges finding that the appellant was indifferent to Kathys underage
status was responsive to the arguments advanced at trial. Trial counsel
submitted that the appellants text that he was not into young girls
demonstrated his belief that Kathy was over 18. The Crown did not contest
that the appellant was not specifically interested in underaged partners, but
argued that the appellant believed Kathy was not 18, a fact that did not
matter to him since this was simply a business transaction cash for sexual
services. The finding of indifference was a rejection of the accuseds argument
that his stated disinterest should raise a reasonable doubt about his belief in
Kathys age.
[34]
In
this case, the respondent concludes, the trial judge was well aware of the
difference between subjective belief and recklessness. He specifically
described belief and reasonable steps as distinct inquiries. He was satisfied
that the appellant believed Kathy was underage and did not rely on the lack
of reasonable steps to reach that conclusion.
The Governing Principles
[35]
As I
have said, the principal focus of the appellants submissions has been on the
conviction of child luring under s. 172.1(1)(a), not that under s. 286.1(2).
Although the elements of each offence differ, each has a common requirement
that an accused believe in the underage status of the escort and a reasonable
steps (s. 172.1(4)) or all reasonable steps (s. 150.1(4)) requirement to
engage a mistaken belief in age defence. The principles that follow are those
that apply to the child luring offence under s. 172.1.
[36]
The
essential elements of child luring under s. 172.1 may be briefly described as:
·
communication
·
age
·
purpose
The age element refers to the actual age of the person
with whom the communication takes place or the accuseds belief in that
persons age. See,
R. v. Levigne
, 2010 SCC 25, at para. 23;
Morrisson
,
at para. 43;
R. v. Carbone
, 2020 ONCA 394, at para. 80.
[37]
When
the constitutionality of ss. 172.1(3) and (4) had not been in issue or finally
determined, two pathways were available to the Crown to establish guilt where,
as here, there was no underage collocutor. The Crown could prove that the
accused believed that the collocutor was underage, or that the accused had
failed to take reasonable steps to ascertain the collocutors actual age:
R.
v. Morrison
, 2019 SCC 15, at para. 49;
Carbone
, at para. 75.
[38]
In
Morrison
,
also a case of child luring arising out of a police sting operation, the
Supreme Court confirmed this courts decision that s. 172.1(3) was
unconstitutional, but not s. 172.1(4):
Morrison
, at paras. 73, 92.
However, the Supreme Court differed with the courts below about the reasonable
steps requirement in s. 172.1(4). That provision does
not
, in the
absence of the presumption under s. 172.1(3), provide a second pathway to
conviction, rather it simply limits the availability of the mistaken belief in
age defence:
Morrison
, at para. 80.
[39]
After
the decision of the Supreme Court in
Morrison
, to prove the fault
element in cases involving a police sting with no underage participant, the
Crown must prove beyond a reasonable doubt that the accused:
i.
believed
the other person or collocutor was underage; or
ii.
was
wilfully
blind
whether the other person was underage.
Recklessness as to the other persons age is not
sufficient to prove the fault element:
Morrison
, at para. 102;
Carbone
,
at para. 89.
[40]
After
Morrison
, an accused charged with communicating with a person believed
to be under 18 must be acquitted, regardless of whether he took any reasonable
steps to determine the age of his collocutor even if he suspected that person
was under 18 but decided to proceed in any event, or if he never turned his
mind to the collocutors age. Prior to
Morrison
, the reckless or
negligent accused would be convicted so long as the Crown proved that the
accused did not take the reasonable steps required to determine the
collocutors true age:
Carbone
, at para. 91.
[41]
After
Morrison
, where the Crown proves beyond a reasonable doubt that an
accused failed to take reasonable steps to ascertain the collocutors age, s.
172.1(4) forecloses an accuseds reliance on the defence that they believed the
collocutor was of legal age. But this falls short of what is necessary to
establish guilt. This is so because the reasonable steps requirement under s.
172.1(4) does not provide an independent pathway to conviction. Once the trier
of fact is satisfied that the Crown has proven that the accused did not take
reasonable steps, the trier of fact must consider the whole of the evidence,
including evidence about the accuseds failure to take reasonable steps, to
decide whether the Crown has discharged its legal burden of proving that the
accused believed the other person was underage:
Morrison
, at para.
129.
[42]
Recklessness
is a state of mind. It is the state of mind of a person who is aware that their
conduct might bring about the result prohibited by the criminal law, but who
persists in the conduct despite the risk. Recklessness is subjective. It
entails an appreciation of some level of risk and the decision to take that
risk. In most cases, an accused who never turns their mind to the age of the
other person is properly characterized as reckless. Reckless indifference also
describes a subjective state of mind, a choice to treat age as irrelevant and
to assume the risk associated with that choice:
Morrison
, at para. 100
citing
R. v. Sansregret
,
[1985] 1 S.C.R. 570, at p. 582;
Carbone
, at paras. 125-127.
[43]
On
the other hand, wilful blindness, sometimes referred to as deliberate
ignorance, is established where a person who becomes aware of the need for some
inquiry declines to make the inquiry because they do not wish to know the
truth, rather prefer to remain ignorant:
Morrison
, at para. 100;
Sansregret
,
at p. 584.
[44]
The
mistaken belief in age defences for which ss. 172.1(4) and 150.1(4) impose an
evidentiary burden on the accused to put the defence in play, and a persuasive
burden on the Crown, once in play, to negate it:
R. v. W.G
.,
2021
ONCA 578, at paras. 54-56. The Crown may negate these defences in either of two
ways. The Crown may prove that the accused did not honestly believe that the
other person was at least 18 years old at the time of the offence. Or the Crown
may prove that, despite the accuseds claim that they honestly believed that
the other person was at least 18, the accused did not take reasonable (s.
172.1(4)) or all reasonable (s. 150.1(4)) steps to ascertain the other persons
age:
Morrison
, at para. 88;
Carbone
, at para. 116;
W.G
.
,
at para. 57.
[45]
The
analysis of reasonable steps or all reasonable steps is highly contextual
and fact-specific. Reasonable steps are steps that a reasonable person would
take, in the same circumstances known to the accused at the time, to find out
the other persons age. The reasonable steps requirement includes objective as
well as subjective elements. Viewed objectively, the steps must be reasonable.
The reasonableness of the steps must be assessed in the circumstances known to
the accused:
W.G
.
, at para. 60, citing
Morrison
, at
para. 105.
[46]
To
be reasonable steps, the steps must be meaningful. They must be steps that
provide information reasonably capable of supporting an accuseds belief that
the other person is of legal age. Relevant factors include not only the nature
of the steps themselves, but also the information those steps solicit:
W.G
.
,
at para. 61.
The Principles Applied
[47]
I
would not give effect to this ground of appeal. I reach this conclusion even
though the trial judge did not have the benefit of the Supreme Courts decision
in
Morrison
to guide him in his analysis.
[48]
The
appellant was charged with offences under ss. 172.1(1)(a) and 286.1(2). No
dispute arose about proof of many of the essential elements of each offence.
Under s. 172.1(1)(a), there was no controversy about the fact or manner of the
appellants communication or about his purpose in doing so. Likewise, under s.
286.1(2), communication and purpose were unchallenged.
[49]
The
contested ground had to do with the fault element and the availability of the
mistaken belief in age defence in ss. 172.1(4) and 150.1(4). The trial judge
identified these as the issues to be determined at the outset of his written
reasons.
[50]
The
trial judge considered first whether the Crown had proven beyond a reasonable
doubt that the appellant believed Kathy was under 18. He reviewed the
evidence on the issue, principally the text exchanges, and the appellants
testimony about his state of belief. He rejected the appellants explanation
that he did not believe Kathy was underaged. From previous experience, the
appellant had generally found that escorts were always older than advertised.
He considered that Kathy was trying to get more money for her services by
portraying herself as a child. No such discussion ever occurred during their
exchange.
[51]
The
trial judge specifically found that the Crown had proven that the appellant
believed that he was dealing with an underaged escort. He showed up at the
designated hotel room with the agreed upon funds to exchange money for the sexual
services from that underaged escort. This finding is firmly grounded in the
evidence adduced at trial. It was not cumbered by any misapprehension of the
evidence, impermissible use of the unconstitutional presumption in s. 172.1(3),
or error about the state of mind required to establish the fault element of the
offences charged.
[52]
Nor
am I persuaded that the trial judges periodic reference to the appellants
indifference to Kathys age tainted his finding that the appellant actually
believed Kathy was underage, or amounted to finding guilt established on an
impermissible standard of recklessness, rather than actual belief or wilful
blindness as to underage status. Belief in underage status and indifference
about its significance in pursuit of sexual services are not incompatible.
[53]
Once
having found the fault element established, the trial judge then examined
whether the mistaken belief in age defence was available to the appellant. He
correctly identified the incidence of the evidentiary and persuasive burdens of
proof on the defence and Crown respectively.
[54]
The
trial judge concluded that the appellant had failed to meet the evidentiary
burden necessary to put the defence of mistaken belief in age in play. This
finding was available on the evidence adduced at trial. Whether the standard be
reasonable steps (s. 172.1(4)) or all reasonable steps (s. 150.1(4)) is of
no real moment here. The appellants invocation of the disclaimer on the
Backpages.com website (restricted to those 18 and over), the stated age of 18
in the advertisement (with the email address including a reference to 16), and
the apparent age of the person depicted in the photo included in the
advertisement, in combination, are insufficient to invoke the defence. The
trial judge did not err in rejecting the mistaken belief in age defence, nor
did he use its rejection as an independent pathway to find the appellants
guilt established.
Ground #2: Failure to Consider the Totality of the Evidence
[55]
The
second ground of appeal is related to the first. Once again, a brief review of
the arguments advanced will provide an appropriate setting for the discussion
that follows.
The Arguments on Appeal
[56]
The
appellant submits that, as a general rule, a judge who has rejected the
evidence of an accused must then consider whether the totality of the evidence
satisfies them, as the trier of fact, of the guilt of the accused. This is the
third step in the analysis under
R. v. W(D)
, [1991] 1 S.C.R. 742. This
principle applies to the offences with which the appellant was charged.
However, when the appellant was tried, this step was not necessary because an
accuseds failure to take reasonable or all reasonable steps to ascertain the
collocutors age afforded a second pathway to conviction.
[57]
In
this case, in accordance with what was when the law, the trial judge did not
engage in any real analysis of the totality of the evidence or assess whether
the cumulative force of the evidence satisfied the standard of proof required.
The trial judge failed to carefully analyze the messages exchanged between the
appellant and Kathy, especially those showing skepticism about the
collocutors report of her age.
[58]
In
addition, the appellant says, the trial judge failed to engage with the
undercover officers testimony about the type of person who might claim to be
under 18 on the Internet. Rejection of the appellants testimony did not end
the trial judges inquiry to determine whether the appellants guilt had been
proven beyond a reasonable doubt. A further examination of the evidence was
necessary, but not done. A new trial is required.
[59]
The
focus of this ground of appeal, the respondent begins, is on the failure of the
trial judge to properly apply the third step of the
W(D
)
analysis. No such failure occurred. The trial judge expressly found that the
appellant subjectively believed Kathy was underage. This finding was recorded
on the evidence as a whole and is untainted by any reference to the appellants
failure to take reasonable steps.
[60]
As
the respondent sees it, the appellants complaint is twofold. The first aspect
that an analysis of the messages does not support the conclusion that the
appellant actually believed that Kathy was underage is neither more nor
less than an invitation to redo the factual findings made by the trial judge.
The appellant does not say that the finding of guilt is unreasonable, only that
different findings of fact should have been made. The trial judge carefully
scrutinized the evidence. His findings of fact are entitled to deference here.
[61]
The
second prong of the appellants argument is that the trial judge failed to
consider whether the undercover officers evidence could raise a reasonable
doubt about the appellants guilt. The failure to mention this evidence does
not amount to reversible error. This evidence had nothing to do with proof of
the fault element or disproof of the honest but mistaken belief in age defence.
This evidence formed no part of the defence submissions at trial. A trial judge
is not required to consider every piece of evidence adduced at trial or to
respond to arguments not put forward there.
The Governing Principles
[62]
The
principles that assist in resolution of this claim of error are commonplace and
in no need of painstaking recital.
[63]
The
jury instructions suggested in
W(D)
, the familiar three steps, are
well known. Equally well established is its purpose: to make it clear that the
principle of reasonable doubt applies to credibility and to ensure that the
verdict rendered at trial is not the product of a simple choice between the
case for the Crown, on the one hand, and that of the defence, on the other:
R.
v. Y. (C.L.)
, [2008] 1 S.C.R. 5, at para. 8.
[64]
Equally
fundamental and stated first in
W(D
)
itself is the principle
that the steps of
W(D)
need not be religiously followed or articulated
as if a catechism. Substance matters, not form:
W(D)
, at p. 758;
Y.
(C.L.)
, at para. 7. What matters is whether the correct burden and
standard of proof were applied, not the language used in their application:
Y.
(C.L.)
, at para. 7.
[65]
The
final point concerns the obligation of a trial judge in their capacity as trier
of fact to discuss the evidence and the arguments advanced by counsel. A trial
judge is not required to discuss all the evidence related to a particular point
or to answer each and every argument advanced by counsel:
R. v. Vuradin
,
2013 SCC 38, at para. 17, citing
R. v. M. (R.E.),
[2008] 3 S.C.R. 3, at
paras. 32, 64 and
R. v. Dinardo
, [2008] 1 S.C.R. 788, at para. 30.
The Principles Applied
[66]
In
my respectful view, this ground lacks persuasive force.
[67]
The
reasons of the trial judge demonstrate his awareness of the principles
articulated in
W(D
)
which he included in their pristine form in
his reasons. The only live issue at trial had to do with proof of the fault
element. The other elements, communication and purpose, were not only not in
dispute, but also plainly established on the evidence.
[68]
The
appellant testified. He said he believed Kathy was over 18. The trial judge
did not believe the appellants evidence. Nor did the appellants evidence
raise a reasonable doubt about the only contested issue at trial, whether the
appellant believed, as he said, that Kathy was over 18. A trial judge made it
clear that the burden was on the Crown to prove beyond a reasonable doubt:
i.
that the
appellant believed Kathy was underage; and
ii.
that the
appellant did not take reasonable steps in reaching his belief that Kathy was
over 18.
Further, the trial judge was satisfied that the Crown
had proven the appellant actually believed that Kathy was under 18
and
that he had taken no reasonable steps to ascertain her true age. The
complaint that the trial judge did not consider all the evidence in reaching
his conclusion fails.
[69]
Nor
can the submission that the trial judge erred in concluding, from his analysis
of the message traffic, that the appellant believed that Kathy was under 18
succeed. Absent a specific claim of misapprehension of evidence or unreasonable
verdict, the argument is but a thinly-veneered invitation for a re-weighing of
the evidence and re-calibration of where the balance settles. This exceeds the
scope of our authority.
[70]
That
the trial judge failed to rehearse the evidence of the undercover officer in
deciding whether the appellants guilt had been established affords no basis
for our intervention. Defence counsel did not advance this argument at trial.
The evidence in issue consisted largely of generalities unmoored from the
evidence at trial and, in some respects at least, of doubtful relevance and
admissibility.
Disposition
[71]
For these reasons, I would dismiss the appeal.
Released:
D.W. September 20, 2021
David
Watt J.A.
I
agree. M.L. Benotto J.A.
I
agree. M. Jamal J.A.
Erratum
Correction
made October 29, 2021: The word is in the first sentence of paragraph 63 was
replaced with the word are.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Shuman, 2021 ONCA 638
DATE: 20210920
DOCKET: C66257
Doherty, Gillese and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Jeffrey Shuman
Appellant
Stephen
Proudlove, for the appellant
Gregory Furmaniuk, for the respondent
Heard: September 17, 2021 by video conference
On appeal from the sentence imposed on July 25, 2017, by
Justice Cynthia Johnston of the Ontario Court of Justice.
REASONS FOR DECISION
[1]
The appellant pleaded guilty to seven counts of robbery with a firearm arising
from bank robberies he committed in Ontario between 2010 and 2015. At the
sentencing hearing, the parties agreed that the sentences should run
concurrently because otherwise the appellant would have been sentenced to 28
years, given the four-year mandatory minimum. He was sentenced to 15 years in
prison, less credit for pre-sentence custody.
[2]
The appellant raises two issues on his sentence appeal and argues that a
global sentence of 12-13 years is appropriate. He submits that:
1.
the 15-year sentence is outside the sentencing range for these offences
and demonstrably unfit; and
2.
the reasons for sentence are insufficient because the sentencing judge
did not (a) explain why 15 years was the appropriate sentence, (b) explain how
she apportioned the 15 years, or (c) mention the totality principle.
[3]
We accept neither submission. We see no error on the part of the sentencing
judge.
[4]
In respect of the submission that the sentence is demonstrably unfit, we
begin by noting that it is not far off that sought by the appellant on appeal.
In any event, the sentence is fit. Deterrence and denunciation were paramount
for these serious offences that traumatized innocent, vulnerable and unsuspecting
bank employees, and the community more broadly.
[5]
Nor do we accept the complaints levied against the adequacy of the reasons
for sentence. Those reasons leave no room for doubt as to how and why the sentencing
judge arrived at the 15-year sentence. She carefully set out the facts, applicable
legal principles, nature of the offences, and the appellants circumstances. She
then noted the following aggravating factors: the robberies were sophisticated,
planned and premeditated; the appellant used intimidation and threats of
violence against vulnerable bank employees; he brandished a handgun on each
occasion; in some of the robberies, he confined bank employees to locked rooms
or bank vaults after he fled; and, he had a history of committing bank
robberies, having been convicted in the United States of 14 bank robberies in
Florida and Tennessee, for which he was sentenced to 12 years imprisonment.
The sentencing judge also expressed significant doubt that the appellant was
remorseful or appreciated the gravity of his actions and their significant impact
on the victims and community. The sentencing judge also identified the
mitigating factors: the appellant pleaded guilty on the eve of trial; he used a
pellet gun not a handgun in the commission of the offences; he did not use
gratuitous violence in committing the robberies; on occasion, he waited until
civilians left the bank before robbing it; and, he agreed that 100,000 Euros
seized from his apartment were robbery proceeds and should be used toward
restitution.
[6]
Further, the sentencing judge was clearly alive to the totality
principle. While the Crown sought a penitentiary sentence of 17 ½ years and the
defence sought a sentence of 10 years, both parties asked for concurrent
sentences to avoid a 28-year sentence given the four-year mandatory minimum. There
was no need for the sentencing judge to break down the global sentence because,
as the defence conceded at the time of sentencing, all counts were identical
and the appropriate outcome was concurrent sentences.
DISPOSITION
[7]
Accordingly, leave to appeal sentence is granted but the appeal
is dismissed.
Doherty J.A.
E.E. Gillese J.A.
Grant Huscroft J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Public
Guardian and Trustee v. Zammit, 2021 ONCA 648
DATE: 20210921
DOCKET: M52761 (C69730)
Lauwers J.A. (Motion
Judge)
BETWEEN
The Public Guardian
and Trustee
Applicant
(Respondent/Responding
Party)
and
Mary Zammit and
Patricia Zammit
Respondents
(Appellants/Moving Parties)
Patricia Zammit, acting in person
Matthew Tubie, for the moving party Mary Zammit
Philippa Geddie, for the responding party
Heard: September 7, 2021 by video conference
REASONS FOR DECISION
[1]
The moving party Mary Zammit seeks a stay of the order of
Dietrich J. dated July 20, 2021 in which she declared that Mary Zammit is
incapable of making decisions respecting her property, ordering the termination
of the power of attorney in favour of her daughter Patricia Zammit, and
appointing the Public Guardian and Trustee (PGT) as the guardian of Mary
Zammits property.
[2]
The parties agree that the governing precedent is the Supreme Courts
decision in
RJR-MacDonald Inc. v. Canada (Attorney General)
,
[1994]
1 S.C.R. 311. The elements of the test are that there is a serious issue
to be tried, the applicant will suffer irreparable harm if the relief is not
granted, and the balance of convenience favours the granting of relief.
[3]
This court has put a gloss on the application of the test in
RJR-MacDonald
where a stay is sought pending appeal. In
Ogden Entertainment Services v.
United Steelworkers of America, Local 440
(1998), 38 O.R. (3d) 448, [1998]
O.J. No. 1824 (C.A.) Robins J.A. said, at para. 5:
In determining whether a stay should be granted, regard must be
had to the judgment under appeal and a strong case in favour of a stay must be
made out. The court must proceed on the assumption that the judgment is correct
and that the relief ordered was properly granted. The court is not engaged in a
determination of the merits of the appeal on a stay application.
[4]
In this case, there were three prior judicial processes leading to the
order under appeal. The first was the order of Koehnen J. on February 23, 2021
directing a capacity assessment of Mary Zammit on the application of the PGT.
The certified capacity assessor met with Mary Zammit twice and gave the opinion
that she lacked capacity to manage her property due to an underlying cognitive
impairment. Further, during the first meeting, Mary Zammit had no memory of having
made the power of attorney in favour of her daughter Patricia Zammit, although
she recalled the power of attorney in the second meeting. Based in part on the
capacity assessment, the motion judge made an interim appointment of the PGT
for guardianship of Mary Zammit on June 30, 2021. In the decision under appeal,
the motion judge made the appointment permanent.
[5]
The core of the motion judges decision is set out in paras. 22-23:
Based on the evidence, Patricia continued to use Ms. Zammit's
funds for her own benefit and the benefit of her children after she was appointed
as Ms. Zammit's attorney for property. This conduct is contrary to Patricia's
fiduciary duty to exercise her powers and duties diligently, with honesty and
integrity and in good faith, for the incapable person's benefit:
SDA,
s.
32(1) and s. 38(1). A core duty of an attorney for property is the duty to
act exclusively for the benefit of the grantor, relinquishing the attorney's
own self-interest.
It is apparent that Patricia has breached her fiduciary duties
to Ms. Zammit both before and after she was appointed as Ms. Zammit's attorney for
property. Even with the restrictions on the CIBC account, thousands of dollars
have been withdrawn from the CIBC account following the execution of the Power
of Attorney. Between March and June 2020, $5,592.29 was debited from Ms.
Zammit's TD Bank chequing account, which is a joint account in the names of Ms.
Zammit and Patricia. These debits include purchases from retailers, at least some
of which were not likely for Ms. Zammit's benefit or exclusive benefit (e.g.,
Apple.com, numerous fast food restaurants, LCBO, Netflix, and gas stations). In
February 2020, Ms. Zammit paid $3,200 for a car for Patricia, and months later,
in September 2020, Ms. Zammit paid $3,700 for a replacement car when the
first was rendered inoperable following an accident. Between June 2020 and January
2021, there were $13,710 in unexplained ATM withdrawals from Ms. Zammit's
TD Bank chequing account. Patricia conceded that she, personally, had made only
a few modest contributions to the TD Bank chequing account. Most of the
deposits to the account came from Ms. Zammit's property.
[6]
At the first step of the
RJR-MacDonald
test that there is a
serious issue to be tried the moving party states in an affidavit that the
purchases made by her daughter Patricia Zammit were for Mary Zammits benefit
and were in line with her intentions or with her consent. The motion judge
found that Mary Zammits lack of capacity was fatal to the argument based on
her consent.
[7]
Counsels second argument is that the CIBC disregarded the power of
attorney in favour of Patricia Zammit when it made the report that resulted in
an investigation. Mary Zammits incapacity affects the validity of the power of
attorney.
[8]
On the issue of irreparable harm, Patricia Zammit argues that there are
bills that must be paid, to which Mary Zammit cannot attend because she is in a
hospital following a fall that occurred after the order was made. Counsel
points out that there is no evidence that the PGT is attending to these day-to-day
expenses so that it would be preferable in the circumstances for the stay to be
granted in order to allow Patricia Zammit to resume daily care for her mother.
It is not clear why a temporary, if any, delay in bill payments would constitute
irreparable harm, assuming that the PGT staff are not yet fully engaged with
Mary Zammit.
[9]
On the balance of convenience, counsel submits that if a stay is not
granted then the PGT will take over Mary Zammits bank accounts and daily
financial activities. This will drastically change the status quo thereby
impacting her daily activities with her family. Again, it is not clear why the
order protecting Mary Zammits assets would have such an effect on her daily
activities with her family.
[10]
The
complaints made by the moving partys counsel essentially turn on the facts. Counsel
has not pointed to any palpable and overriding errors of fact made by the
motion judge. The motion judges reasons are thorough and comprehensively
address all of the issues raised by counsel in argument. The grounds of appeal
are not frivolous, but they are not likely to be successful. As noted, the
basis for a stay has not been established.
[11]
The
motion is dismissed with costs reserved, as agreed, to the panel hearing the
merits of the appeal.
P. Lauwers 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 complainants 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. Simpson-Fry, 2021 ONCA 647
DATE: 20210921
DOCKET: C63212
Doherty, Gillese and Huscroft
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Jamie Simpson-Fry
Appellant
Chris Rudnicki and Mark C.
Halfyard, for the appellant
Craig Harper, for the
respondent
Heard: September 17, 2021 by
video conference
On appeal from the sentence imposed on
August 30, 2016, by Justice Joseph A. De Filippis of the Ontario Court of
Justice, with reasons reported at 2016 ONCJ 532.
REASONS FOR DECISION
[1]
The appellant was designated a dangerous
offender, on consent, following his convictions stemming from his brutal sexual
assault of a young woman he did not know. He was 30 years old
[1]
at the time of the
offence and extremely intoxicated. He was given an indeterminate sentence.
[2]
The appellant appeals against sentence. He
contends that his risk in the community can be managed and asks this court to
set aside the indeterminate sentence and impose a determinate sentence,
followed by a 10-year supervision order with appropriate conditions.
BACKGROUND
[3]
In October of 2013, while extremely intoxicated,
the appellant grabbed the complainant, a young woman walking home from a
friends house. He said if she screamed, he would break her neck. He dragged
her into a yard shielded from the street view by tall trees, forcibly confined
her on the ground for two hours, and brutally sexually assaulted her twice.
When they left the scene, he told the complainant he would kill her if she told
anyone about what had happened.
[4]
The appellant was convicted of sexual assault,
forcible confinement, and threatening death. It was his first conviction for a
sexual offence. However, he had a long criminal record which began in April
2000 when he was a youth. It contains more than fifty entries, including
robbery with violence, forcible confinement, assault, assault with a weapon,
and assault with the intent to resist arrest. There are also multiple
convictions for acts of domestic violence, failures to attend court, and
breaches of probation. Alcohol was related to many but not all of the
offences. For example, when he was 19, he committed a home invasion robbery
with an imitation firearm while sober. He threatened the occupants of the home,
including a countdown, after which he threatened to shoot an 82-year-old
grandmother. He committed this offence for drug money.
[5]
The Crown sought a dangerous offender
designation under s. 753 of the
Criminal Code
, R.S.C. 1985, c. C-34 and
an indeterminate sentence. The defence conceded that the appellant met the
criteria for a dangerous offender but contended that a determinate sentence
followed by a ten-year long-term supervision order (LTSO) could reasonably be
expected to control his risk in the community.
[6]
Dr. Pearce prepared the court-ordered
psychiatric assessment and Dr. Gojer prepared an assessment for the
defence. These experts agreed on much of the information leading to their
respective opinions. They concurred in their diagnosis: the appellant has an
antisocial personality disorder and a poly-substance use disorder. Their risk
assessment tools and test results were also consistent.
[7]
Dr. Pearce found the appellant was at high risk
of violent re-offence. He considered the effect of an Antabuse prescription on
the appellants risk. Antabuse renders a person violently ill if they drink
alcohol. To be effective, Antabuse must be taken daily. Given the appellants
history of non-compliance with court orders, Dr. Pearce did not believe that
the appellant could be trusted to reliably report having taken his medication
so conditions would have to be imposed such as urinalysis twice per week, and a
staff member or medical professional watching to ensure the appellant actually
swallowed the medication. In any event, however, Dr. Pearce found no reasonable
prospect of control of the appellant on an LTSO, even if the appellant complied
with anti-alcohol medication and counselling. He noted that the appellants
risk could not be managed even under the strict conditions in a medium-security
correctional facility where the appellant had previously been incarcerated and
in which he had violently re-offended. Dr. Pearce also opined that the proposed
conditions would not address the appellants substance abuse disorder nor his
very severe, treatment-resistant antisocial personality disorder.
[8]
Dr. Gojer also viewed the appellant as a high
risk of violent re-offence. He observed that the appellants history of
compliance while on judicial release and in custody has been problematic.
However, in his opinion, there was a reasonable possibility of eventual control
under an LTSO with a term to take anti-alcohol medication and under significant
supervision. In reaching his conclusion on the appellants amenability to
treatment, he adopted the opinion of Dr. Kalia who interviewed the appellant
and was impressed with his insight and promise to reform. Dr. Gojer also spoke
to the appellant and believed that he now accepts he has an alcohol problem.
[9]
The appellant did not testify at the sentencing
hearing.
[10]
In his reasons, the sentencing judge describes
the shocking nature of the index offences and summarizes the appellants
background and extensive criminal record. Among other things, his criminal
record shows an abysmal record of non-compliance with court orders the
appellant has been placed on probation 15 times and breached those orders every
time. The sentencing judge also thoroughly canvassed the expert evidence and
the evidence on management of LTSO by Correctional Service of Canada. Further,
he accepted Dr. Pearces expert opinion that the proposed anti-alcohol
treatment plan could not manage the appellants risk because it did not address
the appellants dependence on other drugs or his antisocial personality
disorder.
[11]
At para. 71 of his reasons, the sentencing judge
considered the appellants stated promises to seek professional help and abide
by the terms of any release plan, including taking medication to deal with his
alcohol dependence. He then made the following statement which is central to this
appeal (the Impugned Statement):
I note that [the appellant] made these
promises indirectly, to the doctors, without subjecting himself to
cross-examination. This, in itself, does not mean I refuse to trust him;
however, it does point to the additional significance of the evidence about the
[appellants] background, the expert opinions about his prognosis, and the
feasibility of managing his risk in the community.
[12]
The sentencing judge declared the appellant a
dangerous offender and sentenced him to an indeterminate custodial term. At
para. 92 of his reasons, he concluded he was not satisfied there was a
reasonable expectation that a fixed sentence, with or without an LTSO, would
adequately protect the public against the appellants commission of a serious
personal injury offence. He explained that in reaching this conclusion, he
considered the appellants past performance as a predictor of future behaviour,
his abysmal record of non-compliance, the expert opinions, the voluntary nature
of treatment inside the penitentiary and in the community, the limitations
inherent in a LTSO, the absence of treatment for all aspects of the
poly-substance use disorder, and the substantial difficulty in addressing the
appellants antisocial personality disorder.
THE ISSUE
[13]
The issue on appeal flows from the Impugned
Statement in para. 71 of the sentencing judges reasons. In his factum, the
appellant says the issue is whether the sentencing judge violated his s. 7
Charter
right to silence by, in effect, refusing to trust him because he declined
to testify on his sentencing. In his oral submissions, the appellant says the
Impugned Statement raises the question whether, in a dangerous offender
hearing, the accused must testify before their statements to a psychiatric
expert can be relied on for the truth of their contents.
ANALYSIS
[14]
We do not view the Impugned Statement as raising
either of the issues articulated by the appellant. The sentencing judge did not
rule the statements inadmissible or draw an adverse inference against the
appellant because he did not testify. Nor did the sentencing judge refuse to
accept the truth of the appellants statements. Rather, as the sentencing judge
explained in the Impugned Statement itself, he considered those statements in
light of the entire evidentiary record and, in part because the appellant had
not been cross-examined on his statements, afforded them less weight than other
pieces of evidence when determining the feasibility of managing the appellants
risk to the community.
[15]
The sentencing judge made no error in his
treatment of the appellants statements. There is no basis for this court to
interfere with the sentence imposed.
DISPOSITION
[16]
Accordingly, the appeal is dismissed.
Doherty J.A.
E.E. Gillese
J.A.
Grant Huscroft
J.A.
[1]
In some of the documents, the appellant is said to have been
29 years old at the time of these offences. However, this appears incorrect as
his date of birth is September 29, 1983, and the offences took place in October
2013.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Markham (City) v. AIG Insurance Company of Canada,
2021 ONCA 649
DATE: 20210921
DOCKET: M52381 (C67455)
Doherty, Brown and Thorburn JJ.A.
BETWEEN
The Corporation of the City of Markham
Applicant (Respondent in Appeal)
and
AIG Insurance Company of
Canada
Respondent (Main Application/Appellant)
BETWEEN
AIG Insurance Company of
Canada
Applicant (Appellant)
and
Lloyds Underwriters and
The Corporation of the City of Markham
Respondents (Counter-Application/Respondents in Appeal)
David G. Boghosian and Shaneka Shaw Taylor, for the
Corporation of the City of Markham and Lloyds Underwriters
Marcus B. Snowden and Sébastien A. Kamayah, for AIG
Insurance Company of Canada
Heard: In writing
ENDORSEMENT
[1]
The court released a costs endorsement on the latest motion in this
matter on July 27, 2021. The court indicated that the moving party (respondents
in appeal) had not filed any written submissions on costs. It turns out counsel
for the moving party did file costs submissions, although those submissions
were filed after the deadline and were not forwarded to the panel. Counsel for
the moving party has asked us to reconsider our costs disposition in light of
those submissions. We have.
[2]
We see no reason to vary our costs order made on July 27, 2021. The
order stands.
Doherty J.A.
David Brown J.A.
J.A. Thorburn J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Coore, 2021 ONCA 645
DATE: 20210922
DOCKET: C68384
Doherty, Gillese and Huscroft
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Oral Coore
Appellant
Andrew Furgiuele, for the appellant
Geoffrey Roy, for the respondent
Heard: In writing
On appeal from the conviction entered by
Justice ODonnell of the Ontario Court of Justice, dated October 3, 2018.
REASONS FOR DECISION
[1]
The Crown concedes the appeal must be allowed.
[2]
The appellant pled guilty to possession of a
narcotic for the purposes of trafficking. Unfortunately, trial counsel (not Mr.
Furgiuele) unintentionally misled the appellant as to the immigration
consequences of his guilty plea. Those consequences were of central importance
to the appellant. The guilty plea cannot stand and must be set aside.
[3]
The appeal is allowed, the guilty plea is set
aside, the conviction is quashed, and a new trial is ordered.
Doherty J.A.
E.E. Gillese J.A.
Grant Huscroft 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 complainants 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. Safieh, 2021 ONCA 643
DATE: 20210922
DOCKET: C65769
Doherty, Gillese and Huscroft
JJ.A.
BETWEEN
Her Majesty the Queen
Applicant (Appellant)
and
Boutros Safieh
Respondent
Stacey Taraniuk, for the appellant
Deborah Krick, for the respondent
Heard: September 13, 2021 by
video conference
An application for leave to appeal and,
if leave is granted, an appeal from an order made on July 20, 2018 by Justice
M. McKelvey of the Superior Court of Justice, declaring s. 286.3(2)
unconstitutional, reported at 2018 ONSC 4486; and from the sentence imposed on
January 14, 2019, reported at 2019 ONSC 287.
REASONS FOR DECISION
[1]
The respondent was convicted of two counts of
procuring a prostitute under age 18, contrary to s. 286.3(2) and two counts of
making child pornography, contrary to s. 163.1(2) of the
Criminal Code
.
Convictions under s. 286.3(2) carry a mandatory minimum of five years
imprisonment.
[2]
The respondent challenged the constitutionality
of the mandatory minimum, alleging it amounted to cruel and unusual punishment.
On July 20, 2018, the trial judge held the section contravened s. 12 and was of
no force and effect:
R. v. Safieh
, 2018 ONSC 4468.
[3]
Although the respondent was not sentenced on
that date, the Crown immediately purported to appeal the sentence imposed,
seeking an order setting aside the declaration of invalidity. The Crown filed a
factum shortly thereafter, seeking the same relief.
[4]
The trial judge sentenced the respondent in
January 2019 to a global sentence of six years:
R. v. Safieh
, 2019
ONSC 287. The trial judge imposed the following sentences:
·
Procuring (count one) two years;
·
Procuring (count two) two years consecutive;
·
Making child pornography (count three) one
year consecutive; and
·
Making child pornography (count four) one year
consecutive.
[5]
The Crown appeal and an appeal brought by the respondent
from the convictions (C66003) did not come before the court until September
2021. The Crown continued to rely on the Notice of Appeal filed in July 2018
and the factum filed shortly thereafter. That material sought only an order
setting aside the trial judges declaration of invalidity.
A Preliminary Point
[6]
The Crowns Notice of Appeal and factum do not
ask the court to vary the sentence imposed. Indeed, they could not have sought
that relief, as both were filed long before any sentence was imposed.
[7]
The Crown appears to have been under the misapprehension
that it had a right of appeal under Part XXI of the
Criminal Code
from
the finding that the mandatory minimum sentence was unconstitutional. The Crown
has no such right of appeal. The Crowns right of appeal is from the sentence imposed
and not from any ruling that may have been made in the course of the sentencing
proceedings:
Criminal Code
, s. 687.
[8]
The Notice of Appeal filed in the summer of 2018
was a nullity. The Crowns right to seek leave to appeal the sentence imposed
at trial crystallized only when the sentence was imposed in January 2019. After
the sentence was imposed, the Crown should have filed a proper Notice of Appeal
and factum, setting out the arguments in support of the constitutionality of
the mandatory minimum and the variation sought by the Crown in the sentences
imposed by the trial judge in January 2019.
[9]
Although the appeal was not properly commenced
and a new Notice of appeal and factum should have been filed after sentencing,
we are satisfied the respondent was not prejudiced. The appellant had timely
notice of the Crowns intention to challenge the trial judges ruling on the
constitutionality of the mandatory minimum. The Crown has also made it clear that
it does not seek to increase the total sentence imposed on the respondent at
trial. The Crown seeks, first and foremost, a determination by this court that
the mandatory minimum is constitutional. The Crown also seeks a reconfiguring
of the sentences imposed at trial to give effect to the five-year mandatory
minimum required under s. 286.3(2). To achieve that end, the Crown proposed
concurrent five-year sentences on each of the procuring charges, a consecutive
sentence of one year on one of the making child pornography charges, and a
further concurrent sentence of one year on the other making child pornography
charge. This reconfiguration would produce the same total sentence as was
imposed by the trial judge.
The Merits
[10]
It is unnecessary to set out the facts of the
case. Those facts can be found in the trial judges ruling on the
constitutionality of s. 286.3(2) (
R. v. Safieh
, 2018 ONSC 4486 and his
reasons for sentence (
R. v. Safieh
, 2019 ONSC 287).
[11]
The trial judge followed the s. 12 methodology
laid down in
R. v. Nur
, 2015 SCC 15, at para. 46, and recently applied
in
R. v. Morrison
, 2019 SCC 15, at paras. 143-54. No one argued the
mandatory minimum was unconstitutional, as applied to the respondent. The
constitutional arguments focused on the reasonable hypotheticals presented to
the trial judge. The Crown agreed that the hypotheticals were properly
considered.
[12]
In finding the section unconstitutional, the
trial judge focused on the second hypothetical:
After having begun negotiating with a pimp via
text messaging in order to work for him so she can pay off her drug debts, an
18-year-old prostitute, at the behest of her pimp, approaches her 17-year-old
friend to see if she also wants to act as a prostitute for the pimp. The older
girl is aware that the younger girl also has drug debts of her own. The younger
girl jumps at the opportunity. The 18-year-old then brings the 17-year-old girl
along with her for a face-to-face meeting with the pimp with the knowledge that
the purpose of the meeting is for the pimp to continue recruiting herself and
to recruit the 17-year-old. During the meeting, the pimp addresses the nature
of the working relationship he will have with both girls. The pimp himself has
no direct contact with the 17-year-old until they actually meet in person. As
such, the 18-year-old directly assisted the pimp in recruiting the 17-year-old.
The 18-year-old prostitute expects no financial gain or any other benefit from
bringing the younger girl to the meeting. The 18-year-old prostitute is the
product of the group home system and has been manipulated, exploited and
prostituted by a pimp when she was a minor.
[13]
The facts used in the hypothetical outlined
above are similar to the facts in
R. v. Robataille
, 2017 ONCJ 768, a
case involving a charge of obtaining a benefit from sexual services provided by
a person under 18, contrary to s. 286.2(2) of the
Criminal Code
. That
provision provides for a two-year mandatory minimum.
[14]
On the facts in the hypothetical, the offender
is herself a victim of the same crime. Her choices are significantly
constrained by her circumstances, including her addiction, background, and
ongoing relationship with her pimp. In addition, her offence involves no
coercion or threats targeting the victim. Nor does the offender in the
hypothetical gain any monetary advantage from her actions.
[15]
Following
Nur
, the trial judge
considered, having regard to the applicable principles of sentencing, but
excluding the mandatory five-year minimum, the appropriate sentencing range for
the offender described in the hypothetical:
Nur
, at para. 46. The trial
judge acknowledged that the offence, as described in the hypothetical, remained
a serious offence for which denunciation and general deterrence were primary
considerations. The trial judge further held, however, that on the facts of the
hypothetical, the offenders moral culpability was substantially reduced. He
said, at para. 46:
While the court must still recognize that the
principal factors to consider on sentencing are denunciation and general
deterrence, the circumstances in a case like
Robataille
would in my
view constitute exceptional circumstances
and would serve to reduce the
appropriate sentence to well below the normal range. The failure to take these special
circumstances into account would serve only to revictimize the offender and
punish her based on her prior sexual abuse as a child.
[16]
The trial judge concluded that the appropriate
sentence for the hypothetical offender was between 2 and 2 ½ years. The trial
judge recognized that the mandatory minimum sentence of five years amounted to
cruel and unusual punishment only if a five-year sentence was grossly
disproportionate to the sentence that would have been imposed on the
hypothetical offender, but for the mandatory minimum. Although the concept of gross
disproportionality is probably incapable of precise definition, there can be no
doubt that it describes a high threshold. Sentences which are sufficiently
excessive to merit appellate intervention are not necessarily grossly
disproportionate for the purposes of s. 12 of the
Charter
:
Nur
,
at para. 39. The trial judge was satisfied that a sentence of five years
imposed on a person for whom two years would have been an appropriate sentence,
crossed over the grossly disproportionate threshold: Reasons, at para. 47.
[17]
The trial judges ruling striking down s.
286.3(2) has been followed in at least two other decisions in the Superior
Court:
R. v. J.G.
, 2021 ONSC 1095, at para. 5;
R. v. Boohoo
,
2018 ONSC 7207, at para. 13.
[18]
This courts decision in
R. v. Joseph
,
2020 ONCA 733, at paras. 143-55, striking down the two-year minimum in s.
286.2(2), also provides support for the trial judges conclusion. While the
procuring offence in this case is more serious than the receiving of a benefit
offence described in s. 286.2(2), the offences are closely related and raise
very similar reasonable hypotheticals for consideration. The victim/offender
hypothetical can apply to both.
[19]
The analysis in
Joseph
also provides some assistance
with the question of when a mandatory minimum sentence will be regarded as grossly
disproportionate.
Joseph
clearly contemplates that differences of significantly
less than three years between a mandatory minimum sentence and the appropriate sentence
can, in some circumstances, provide a basis for a finding that the mandatory
minimum is grossly disproportionate. The reasoning and conclusion reached in
Joseph
offers support for the trial judges analysis.
[20]
We agree with the trial judges analysis of the
significantly reduced moral culpability of the offender described in the
hypothetical. Assuming, without deciding, that a sentence of two years, as
opposed to a sentence of something less than two years, would have been an
appropriate sentence for the offender described in the hypothetical, we agree
that a sentence of five years two and one-half times the length of the
appropriate sentence would be grossly disproportionate. We note that although
the Crown argued in her factum that a sentence of five years would not
necessarily be grossly disproportionate, she did not pursue that argument in
her oral submissions.
Disposition
[21]
The trial judge correctly held that s. 286.3(2)
is inconsistent with s. 12 of the
Charter
and therefore of no force
and effect. The Crown appeal is dismissed.
Doherty J.A.
E.E. Gillese J.A.
Grant Huscroft J.A.
|