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COURT OF APPEAL FOR ONTARIO CITATION: R. v. Barrett, 2022 ONCA 143 DATE: 20220216 DOCKET: C69516 Miller, Trotter and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Bismark Barrett Appellant Bismark Barrett, acting in person Andrew Furgiuele, appearing as duty counsel David Morlog, for the respondent Heard: February 8, 2022 by video conference On appeal from the sentence imposed on October 29, 2020 by Justice Joseph A. De Filippis of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant pleaded guilty to possession of cocaine for the purpose of trafficking and was ultimately sentenced to incarceration for a period of 30 months. [2] After the sentencing judge prepared his initial reasons for sentence, he agreed to receive supplementary submissions from the defence. On the supplementary submissions, the defence revised its initial position and sought a conditional sentence. The basis for seeking a conditional sentence was (1) this court’s judgment in R. v. Sharma , 2020 ONCA 48, (leave to appeal to the SCC granted 2021-01-14), which greatly expanded the court’s ability to impose conditional sentences, and (2) worsening developments in the Covid-19 pandemic, which the defence argued weighed heavily in favour of a conditional sentence. The trial Crown argued that the risk of contracting Covid-19 while incarcerated was not any higher than the risk of infection the appellant faced by residing in Toronto, and in any event that a conditional sentence was not appropriate. [3] The sentencing judge received the submissions and issued his reasons for sentence. He provided his original reasons, prepared prior to hearing the supplementary submissions, with the supplementary reasons appended. The original reasons provided for a custodial sentence of 30 months. The supplementary reasons explained that he was not persuaded by the supplementary submissions to depart from the original sentence. [4] On appeal, Mr. Furgiuele (acting as duty counsel), advanced the argument that although the sentencing judge did not accept the trial Crown’s questionable submissions on relative rates of risk, the sentencing judge nevertheless took an unduly narrow view of the impact of Covid on inmates. The sentencing judge’s focus, Mr. Furgiuele argued, ought not to have been restricted to the risk of infection faced by the appellant, and should have also included the negative impact of the measures that penal institutions were imposing to reduce the risk of Covid spread – particularly the widespread use of lockdowns and suspension of programs. [5] Despite Mr. Furgiuele ’s able submissions, we do not agree that the sentencing judge made any errors. The sentencing judge considered the submissions about the appellant’s risk from Covid-19 in the institutional setting and determined, that at that point in the pandemic, it did not justify a reduction in sentence below what he originally contemplated. It was within the discretion of the sentencing judge whether to reduce the appellant’s sentence to compensate for the deprivations that could be expected to result from the institution’s response to Covid-19. He chose not to do so. This was a discretionary decision, and we are not persuaded that there is any basis to interfere with it. DISPOSITION [6] The appeal is dismissed. “B.W. Miller J.A.” “Gary Trotter J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Fanshawe College of Applied Arts and Technology v. Hitachi, Ltd., 2022 ONCA 144 DATE: 20220216 DOCKET: M52987 (C70009) Lauwers, Huscroft and Coroza JJ.A. BETWEEN The Fanshawe College of Applied Arts and Technology Plaintiff (Respondent/Moving Party) and Hitachi, Ltd., Hitachi Asia, Ltd., Hitachi America, Ltd., Hitachi Displays Ltd, Hitachi Electronic Devices (USA), Shenzhen SEG Hitachi Color Display Devices, Ltd., Hitachi Canada, Ltd., Irico Group Corporation, Irico Group Electronics Co, Ltd., Irico Display Devices Co., Ltd., LG Electronics, Inc., LG Electronics Taiwan Taipei Co. Ltd., LG Electronics USA, Inc., LG Electronics Canada, Panasonic Corporation F/K/A Matsushita Electric Industrial Co. Ltd., Panasonic Corporation of North America, Panasonic Canada Inc., Koninklijke Philips Electronics N.V., Philips Electronics Industries (Taiwan) Ltd., Philips Da Amazonia Industria Electronica LTDA, Philips Electronics North America Corporation, Philips Electronics Ltd., Samsung Electronics Co. Ltd., Samsung Electronics America Inc., Samsung Electronics Canada Inc., Samsung SDI Co., Ltd. (F/K/A Samsung Display Device Co.), Samsung SDI Brasil LTDA, Samsung SDI America, Inc., Samsung SDI Mexico S.A. De C.V., Shenzhen Samsung SDI Co. Ltd., Tianjin Samsung SDI Co., Ltd., Toshiba Corporation, Toshiba America Electronic Components Inc., Toshiba America Information Systems Inc., Toshiba of Canada Limited, Beijing Matsushita Color CRT Company, Ltd., Samtel Color, Ltd and MT Picture Display Co., Ltd Defendants Bridget Moran, Linda Visser and Katherine Shapiro, for the moving party Brett Harrison, Paola Ramirez and Anthony Labib, for the responding party Class Action Capital Recovery LLC Heard: January 25, 2022 by video conference Lauwers J.A.: I. OVERVIEW [1] This is a motion to quash in the context of a class action for price-fixing related to the sale of cathode ray tube (“CRT”) products by various electronics manufacturers. The action is currently in the settlement administration phase. A court-approved Distribution Protocol is in place, which sets out a claims process for distributing settlement funds to class members. The Protocol provides claimants with a right of appeal against the decisions of the Claims Administrator to the Superior Court or its designate. However, the Protocol purports to prevent any further appeals. [2] Class Action Capital Recovery LLC (“CAC”) acted as a third-party filer for some claimants, but it is not itself a party to the class action. CAC seeks to appeal a decision of the motion judge relating to the claim reconsideration process. [3] Class Counsel move to quash the appeal on several bases, focusing on the grounds that the limit on further appeals in the Protocol binds this court to quash the appeal under s. 134(3) of the Courts of Justice Act , R.S.O. 1990, c. C.43, and that CAC does not have standing to bring an appeal. [4] I would dismiss the motion to quash. This court has jurisdiction to hear the appeal from the motion judge’s order. CAC has standing to appeal, and its appeal is not time-barred. II. The Background [5] After a succession of litigation battles, the claims were settled and the settlements were approved by the Superior Court of Justice under s. 27.1 of the Class Proceedings Act, 1992 , S.O. 1992, c. 6. RicePoint Administration Inc. was appointed as the Claims Administrator. [6] On April 20, 2018, the motion judge approved the Distribution Protocol and Notice of Claims Process for the settlement funds. As he described in his endorsement of January 6, 2021, the Protocol requires claimants to submit Claims Forms detailing their CRT product purchases. They were permitted to use a third-party filer for this purpose. A claimant was not required to provide supporting documentation for a claim unless selected by the Claims Administrator for audit. [7] The Claims Administrator was required, under para. 43 of the Protocol, to identify deficiencies in a claim and give the claimant a chance to address them. The Claims Administrator could then deny all or part of the claim. The Protocol gave claimants, under paras. 48-55, a limited right of appeal to the Superior Court or its designate for claims over $100,000. Paragraph 55 of the Protocol provides that the decision on appeal is “final and binding and shall not be subject to any further appeal or review whatsoever.” [8] CAC filed claims on behalf of many large, institutional claimants. The Claims Administrator decided to select all claims filed by third parties for audit. Because of the time that had elapsed since the claimants’ purchases of the CRT products, the operation of the institutional claimants’ document retention policies meant that many were unable to produce documentary proof of purchase. The Claims Administrator denied the claims, using the same generic notice for each claimant whose claim was rejected in its entirety: “We are rejecting your claim because you failed to provide adequate proof of purchase.” [9] CAC and the other third-party filers whose claims were denied on that basis appealed under the Protocol by way of a motion for directions to the Superior Court. Acting in his capacity to hear appeals under the Protocol, the motion judge allowed the appeals in part on January 6, 2021. He held that the Claims Administrator had interpreted “documentary proof” too narrowly and had not given sufficient reasons for denying the claims. He remitted to the Claims Administrator every claim in which a declaration attesting to the purchase of CRT products and supporting documentation were submitted, provided that these documents were submitted on time or that the filers should have been given additional time to submit such documentation. The other appeals were dismissed. [10] CAC and the Claims Administrator then argued about the process to be followed for assessing the remitted claims. The Claims Administrator took the position that it was only required to reconsider the claims on the basis of the documentation in accordance with the motion judge’s directions, and then send out revised decision notices. However, CAC maintained that the January 6th order required the Claims Administrator to restart the deficiency process as set out at para. 43 of the Protocol, that is, by identifying deficiencies in the submitted materials and then giving the claimants a chance to correct the deficiencies. [11] Both the Claims Administrator and CAC wrote to the motion judge seeking guidance. The trial coordinator responded by email on May 11, 2021 stating: Justice Grace believes his January 6, 2021 reasons are clear. Paragraph 75 provides that the allowed appeals are remitted “for reconsideration and decision in accordance with paras. 45 through 47 of the Distribution Protocol…’ Para. 75 does not refer to para. 43. That should resolve the dispute concerning deficiency notices. [12] On June 25, 2021, the Claims Administrator sent reconsideration notices for 115 of the claims submitted by CAC that had previously been denied in full. Of these, 55 claims were partially approved and 60 were rejected. CAC brought another motion for directions on the basis that the Claims Administrator had failed to follow the deficiency process ordered by the motion judge. [13] On September 21, 2021, the motion judge provided a brief endorsement declining to revisit the issue. He found that there was no evidence that the Claims Administrator had not acted in accordance with his January 6th instructions, which spoke for themselves. [14] CAC filed its notice of appeal to this court on October 21, 2021. Class Counsel now seeks to quash CAC’s appeal. III. the Issues: [15] The issues raised on this motion to quash are: 1. Does this court have jurisdiction to hear the appeal? 2. Does CAC have standing? 3. Is the appeal out of time? 4. Is the appeal a collateral attack on the January 6, 2021 order? I address each issue in turn. IV. Analysis (1) Does this court have jurisdiction to hear the appeal? [16] When he took up his responsibility under the Protocol, the motion judge did not cease acting in his capacity as a Superior Court judge. This is the plain ratio of this court’s decision in Fontaine v. Duboff Edwards Haight & Schachter , 2012 ONCA 471, 111 O.R. (3d) 461, which involved an appeal from a decision of Winkler C.J.O. sitting in his capacity as an administrative judge under the Court Administration Protocol for the Indian Residential Schools Settlement Agreement. This court dismissed the respondent’s motion to quash the appeal because the Settlement Agreement was incorporated into a series of court orders, and the orders implementing the Settlement Agreement stated that the courts would supervise its implementation. The administrative judge’s directions finally determined the issue in question (i.e., whether legal fee review decisions of the Chief Adjudicator were subject to any further appeal or review). His directions were incorporated as a final order of a judge of the Superior Court of Justice. Therefore, his decision was appealable to the Court of Appeal under s. 6(1)(b) of the Courts of Justice Act . [17] The legislature knows how to oust or modify this court’s jurisdiction in cognate areas. I point to two examples. The first is the Arbitration Act , 1991 , S.O. 1991, c. 17, which permits rights of appeal to the courts to be limited by an arbitration agreement under s. 45. The second is the International Commercial Arbitration Act , 2017 , S.O. 2017, c. 2, Sch. 5, s. 11 (“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, which has the force of law in Ontario under s. 5 of the ICAA, subject to any modifications set out in the Act. This court’s usual jurisdiction to hear appeals from orders of Superior Court judges can only be displaced by virtue of an agreement if doing so is permitted by statute. [18] There is no language in the Class Proceedings Act or in any other Ontario statute ousting this court’s jurisdiction. Paragraph 55 of the Protocol is not sufficient, on its own, to oust the appellate jurisdiction this court would otherwise have under the Courts of Justice Act . This fact might counsel caution in the future design of class action distribution protocols. [19] The consequence is that the appeal rights under s. 6(1) of the Courts of Justice Act presumptively apply. Section 6(1) provides: An appeal lies to the Court of Appeal from, (b) a final order of a judge of the Superior Court of Justice, except, (i) an order referred to in clause 19(1)(a) or (a.1), or (ii) an order from which an appeal lies to the Divisional Court under another Act; [20] Does s. 6(1) direct the appeal under the Protocol to this court or, under s. 6(1)(b)(ii), to the Divisional Court by reason of s. 30 of the Class Proceedings Act ? The Protocol is a settlement and is not a decision on the merits to which s. 24 (aggregate damages) or s. 25 (individual issues) would apply to lead to an appeal governed by s. 30. Section 30 is silent on the appellate route from an order made on a motion for directions brought under the terms of a court-approved settlement agreement: Parsons v. Ontario , 2015 ONCA 158, 125 O.R. (3d) 168, at para. 39, rev’d on other grounds, 2016 SCC 42, [2016] 2 S.C.R. 162. This court has held that “[w]here s. 30 does not specifically address the appeal route for a particular type of order or judgment, s. 6(1)(b) of the Courts of Justice Act will govern whether an appeal lies to this court or to Divisional Court”: Bancroft-Snell v. Visa Canada Corporation , 2019 ONCA 822, 148 O.R. (3d) 139, at para. 16, leave to appeal refused, [2019] S.C.C.A. No. 500 ( Wal-Mart Canada Corp. ) and [2019] S.C.C.A. No. 501 ( Home Depot of Canada Inc. ). Because s. 30 does not specifically address the appeal route for this type of order, appeals to this court are governed by s. 6(1) of the Courts of Justice Act . Under s. 6(1)(b), CAC’s appeal lies to this court. (2) Does CAC have standing? [21] Class Counsel argue that because CAC is not a party, this court’s decisions in Dabbs v. Sun Life Assurance Co. of Canada (1998), 41 O.R. (3d) 97 (C.A.), leave to appeal refused, [1998] S.C.C.A. No. 372 and Bancroft-Snell deprive it of standing. In Bancroft-Snell , this court affirmed Dabbs and held that class members’ appeal rights under the Class Proceedings Act are not supplemented by the general appeal rights under s. 6(1)(b) of the Courts of Justice Act . [22] In response, CAC submits that Bancroft-Snell is distinguishable. It argues that, unlike the situation in Bancroft-Snell , it is not seeking to appeal an order approving a settlement agreement, but is instead seeking to uphold the deficiency process in the Protocol. CAC notes that class members did not object to the Protocol because it contained the deficiency process. In addition, CAC emphasizes that class members have a direct interest in the subject matter of the proceeding, and that the technical distinction in the Class Proceedings Act between class members and parties should not be used to “part way with the rights of class members.” [23] It is too late for Class Counsel to credibly dispute CAC’s standing to advance the interests of its claimant clients, because CAC represented them without objection before the motion judge. CAC must be understood as having the status of an agent for its clients in this phase of the class proceeding. A more formalistic approach would only undermine the goals of class proceedings by, for example, requiring each claimant inefficiently and expensively to advance its own appeal. (3) Is the appeal out of time? [24] Rule 61.04 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 requires an appellant to serve a notice of appeal within 30 days of the order appealed from and then to file it within an additional 10 days. However, under r. 3.02, t he court can extend the time for serving and filing a notice of appeal. On a motion for an extension of time, the overarching question is whether the justice of the case requires that an extension be given. Relevant considerations include: (a) whether the moving party formed a bona fide intention to appeal within the relevant time period; (b) the length of, and explanation for, the delay; (c) any prejudice to the responding parties; and (d) the merits of the proposed appeal: Enbridge Gas Distribution Inc. v. Froese , 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. [25] When does the appeal period start to run? In Fontaine v. Canada (Attorney General) , 2012 ONCA 206, 289 O.A.C. 190, Watt J.A. stated, at para. 57: “As a general rule, the time period within which a notice of appeal is to be delivered begins to run on the date the order under appeal is pronounced by oral or written reasons”. He added a caveat that where clarification is required because the judgment is uncertain on an issue, “the time runs from entry, not pronouncement”: at para. 59, citing Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc. (2003), 62 O.R. (3d) 647 (C.A.). [26] An appeal lies from a judgment or order, not from the reasons for it: Ross v. Canada Trust Company , 2021 ONCA 161, 458 D.L.R. (4th) 39, at para. 53. But where the precise import of the reasons is not clear until the judgment is settled, it is reasonable to treat that date as the date from which the appeal period begins to run. Further, in determining whether to quash an appeal on the basis that it is out of time, a panel can consider the factors that inform a decision to extend time: see Gefen v. Gaertner , 2021 ONCA 631, at para. 11. [27] In considering the application of these principles, I observe that no formal order was ever entered from the January 6, 2021 decision. Perhaps that is because the parties could not agree on the terms. The letters that the parties sent to the motion judge seeking to clarify the meaning of the January 6th decision demonstrate their persistent disagreement that was only resolved on September 21, 2021, when the motion judge’s subsequent endorsement was released. [28] As noted above, after the Claims Administrator adjusted the claims, CAC appealed again on the basis that the Claims Administrator had failed to follow the deficiency process ordered by the motion judge. That motion was heard on September 21, 2021. The motion judge determined that his previous instructions in the January 6th reasons had been clear and that the Claims Administrator had complied with them. [29] At one level, the determination of when time began to run for appeal purposes depends on whether it was clear from para. 75 of the January 6th reasons that the full deficiency process was not to be followed for the remitted claims. That paragraph states: “The allowed appeals are remitted to RicePoint for reconsideration and decision in accordance with paras. 45 through 47 of the Distribution Protocol and these reasons.” As noted above, the clarifying email sent by the trial coordinator on behalf of the motion judge stated: “Para. 75 does not refer to para. 43. That should resolve the dispute concerning deficiency notices.” [30] Paragraph 43 of the Protocol, to which the motion judge did not refer in his January 6th reasons, provides: If the Claims Administrator finds that deficiencies exist in a Claim Form or other required information, the Claims Administrator shall notify the Settlement Class Member, by email or regular mail, of the deficiencies. The Claims Administrator shall allow the Settlement Class Member thirty (30) days from the date of such notice to correct the deficiencies. If the deficiencies are not corrected within the thirty (30) day period, the Claims Administrator may reject the Claim Form. The Online Claim Portal shall be designed so as to minimize the possibility of deficient Claim Forms. [31] The appeal will be argued so I am reluctant to weigh in, but I am not surprised that CAC viewed the appeal judge’s trenchant criticism of the Class Administrator’s process in the January 6th reasons at paras. 55-57 and 68-75 as implying that the Claims Administrator would conduct a broader reconsideration of the claims than the appeal judge stipulated in the final endorsement. [32] Given the continued dispute about the meaning of the January 6th decision, I view the date on which the judgment exhibited sufficient certainty for appeal purposes as September 21, 2021, when the motion judge’s subsequent endorsement was released. As a result, the appeal was commenced in time. [33] Even if I am mistaken, the court has the discretion to extend time based on the Enbridge factors. CAC was obviously forceful in arguing its position throughout. The delay is fully explained. There is no prejudice beyond a delay in disbursing the settlement funds. The appeal is not frivolous and the justice of the case warrants it being argued. (4) Is the appeal a collateral attack on the January 6, 2021 order? [34] I agree with CAC that a collateral attack argument is a defence, not a reason to quash an appeal for want of jurisdiction : Gratton-Masuy Environmental Technologies Inc. v. Ontario , 2010 ONCA 501, 101 O.R. (3d) 321, at para. 74, leave to appeal requested but appeal discontinued, [2010] S.C.C.A. No. 397. This issue must be left to the panel hearing the appeal. V. Disposition [35] I would dismiss the motion to quash with costs payable to CAC. If the parties are unable to agree on costs, then CAC may file a written submission no more than three pages in length within ten days of the date of the release of these reasons; Class Counsel may file a written submission no more than three pages in length within ten days of the date CAC’s submission is due. [36] Class Counsel advised that this appeal is preventing the disbursement of settlement funds because any remaining funds will be distributed pro rata , so all entitlements must be finalized before the distribution can occur. Accepting this submission, I would direct that the appeal be heard on an expedited basis. Released: February 16, 2022 “P.L.” “P. Lauwers J.A.” “I agree. Grant Huscroft J.A.” “I agree. S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: White v. Upper Thames River Conservation Authority, 2022 ONCA 146 DATE: 20220216 DOCKET: C69475 Lauwers, Huscroft and Coroza JJ.A. BETWEEN John White, Sarah White, Garth Williams, Paul Stubbens, Elaine Stubbens, Linda Adams, Steve Ward, Kevin Prust, Theresa Prust, James Osmar, Carol Tracy, Barry Nash, Judy Nash, Brent Poley, Thane Ulrich, Brian Hanlon, Nancy Hanlon, John Conlon, Joan Conlon, Doug Mellor, Norma Mellor, Susan Dawtrey, Claude Guitard, Jamie Mackay, Cindi Davis, Rick Brydon, Roy Bissonnette, Dennis Froese, Dave Farnham, Mike Landry, Pat Warren, George Clemens, Marilyn Greer, Patrick Kelly, Barb Kelly, Lynn Daly, Frank Vandiepenbeek, Frank Sinasac, Gerald Trainor, David Bobier and Leslie Putnam Applicants (Appellants) and Upper Thames River Conservation Authority Respondent Vedran Simkic and Matthew Helfand, for the appellants Ian Wright, for the respondent Eli Fellman and Katia Snukal, for the intervener Landlord and Tenant Board Karen Andrews, for the intervener Advocacy Centre for Tenants Ontario Heard: January 28, 2022 by video conference On appeal from the order of the Divisional Court (Justices Harriet E. Sachs, Brian W. Abrams and Michelle O’Bonsawin), dated December 16, 2020, with reasons reported at 2020 ONSC 7822, 154 O.R. (3d) 133, allowing an appeal from the order of the Landlord and Tenant Board, dated June 5, 2018. Huscroft J.A.: OVERVIEW [1] The appellant tenants own homes that sit on land leased from the respondent. The homes are the primary residences of many, though not all of them. [2] The appellants have long-term leases with the respondent, first entered in 1983. The leases limit occupancy to weekends during the three-month winter period. In other words, for three months out of the year, the appellants are not permitted to reside in their homes Monday through Friday. The leases were amended in 2004 to permit tenants to choose the winter dates when their occupancy limitation runs, but the substance of the limitation remains: the appellants are not permitted to occupy their homes year-round. Occupancy outside the permitted period is expressly stated to be “a violation of the terms of this lease and will result in delivery of Notice of Lease Termination”. [3] Despite the clear terms of the lease, the respondent has never strictly enforced the occupancy limitation and as a result, many tenants live in their homes year-round. The parties were in the midst of renegotiating their leases and the enforceability of the occupancy limitation became the subject of a dispute. The appellants applied to the Landlord and Tenant Board (the “Board”) for an order that the Residential Tenancies Act , 2006 , S.O. 2006, c. 17 applies to their tenancies, and an order requiring the respondent to allow them unfettered access to and occupation of their homes, year-round. [4] The Board held that the Act applies to the parties’ lease and it followed that the tenants ought to have unrestricted access to the rental units. The Board added that restricting tenants’ access would amount to substantial interference with their reasonable enjoyment of their rental units, in violation of s. 22 of the Act . The Divisional Court allowed the respondent’s appeal, holding that s. 22 does not render illegal provisions landlords and tenants have agreed upon. [5] The application of the Act to the parties’ lease is no longer contested. The sole issue on appeal is the legality of the occupancy limitation in the lease. [6] In my view, the occupancy limitation is inconsistent with the Act and as a result is void. I would allow the appeal for the reasons that follow. BACKGROUND The standard of review [7] This is an appeal from the decision of the Board on a question of law pursuant to s. 210(1) of the Act. As such, the presumption of reasonableness review is rebutted and the standard of review is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 37. It follows that neither the decision of the Board nor the decision of the Divisional Court is entitled to deference. Whereas reasonableness review focuses on the decision made and the reasons proffered for that decision, under correctness review this court must make the decision for itself. The Residential Tenancies Act [8] The purpose of the Act, as set out in s. 1, is to "provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes." [9] The Act governs more than the rental of apartments in apartment buildings. It also governs situations in which tenants own the homes in which they live but rent the land on which those homes sit – the situation in this case. The Act defines a “land lease home” as a dwelling that is “a permanent structure where the owner of the dwelling leases the land used or intended for use as the site for the dwelling”. The general terms of the Act apply to land lease homes along with a number of specific provisions that cover land lease homes and communities, none of which are germane to this appeal. [10] The Act is remedial legislation designed to redress the imbalance of power between landlords and tenants. It removes leases from the ordinary contract law principles that would otherwise govern and establishes extensive statutory rights for tenants. The Act enjoys primacy over all other legislation, save the Ontario Human Rights Code , and the parties are prohibited from waiving or limiting the protection the Act provides. The key legislative provisions in this regard are ss. 3 and 4: 3 (1) This Act, except Part V.1, applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary. (4) If a provision of this Act conflicts with a provision of another Act, other than the Human Rights Code , the provision of this Act applies. 4 (1) Subject to subsection 12.1(11) and section 194, a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void. The impugned lease provisions [11] The occupancy limitation is set out in para. 3 of the lease, which provides: The lease and license permits the Tenant, the Tenant's family and guests to occupy the dwelling house and other improvements constructed on the lot only at the following times: (a) From the first day of March to the 30th day of November in each and every year during the term hereof; (b) During the months of January, February and December, occupancy shall be weekends only commencing on Friday at 1:00 p.m. and concluding on Sunday at 9:00 p.m. Where Friday or Monday is a public holiday, such shall be included in the weekend with the times so enlarged. Occupancy of the dwelling house other than at the times as herein provided, shall be a violation of the terms of this lease and licence and the lease and license shall at the option of the Authority become forfeited and such option may be exercised by delivery of notice of termination hereunder. [12] Appendix B, added in 2004, permits limited choice of the winter dates in which the occupancy limitation runs. During that period, tenants may occupy their units only from Sunday night at 9:00 p.m. to Monday morning at 9:00 a.m. Violation of the occupancy limit is a serious matter. The appendix states: “Occupancy of the dwelling other than at the times provided, is a violation of the terms of this lease and will result in delivery of Notice of Lease Termination.” DISCUSSION [13] The parties have a longstanding rental relationship that has always included occupancy limitations. It is unclear why the limitations were established. The respondent can suggest no purpose for them, nor does anything in the record indicate the practice at other conservation authorities in the province. The respondent is attempting to establish the legality of occupancy limitations it has chosen not to enforce for decades. [14] Regardless of the provenance or utility of the occupancy limitations, the operation of the Act is clear: if the limitations are inconsistent with the Act they are rendered void by operation of s. 4. [15] Plainly, occupancy limitations are not specifically permitted by the Act, but nor are they specifically prohibited. The Divisional Court considered that the absence of a specific prohibition was determinative, given the parties’ agreement to the limitations. In an apparent application of the expressio unius est exclusio alterius maxim, the court reasoned that because the Act includes some specific prohibitions – for example, the Act prohibits “no pet” provisions – the absence of a specific prohibition of occupancy limitations means that they must be permitted. The court reasoned that “[i]f there was a limitation regarding limiting access or occupation of a residential unit, the court would expect there to be a specific section of the Act dealing with this issue.” The court added: “It can hardly be said that when a party voluntarily agrees to a provision of the residential agreement that is not specifically provided for by the Act , this leads to a determination that the provision is inconsistent with the Act .” [16] This reasoning is untenable. It does not necessarily follow from the specific prohibition of some things in an act that other things not specifically prohibited must be permitted. Whether this sort of negative implication can be drawn depends on context and common sense – as Scalia and Garner note, whether the thing specified “can reasonably be thought to be an expression of all that shares in the grant or prohibition involved: see Reading Law: The Interpretation of Legal Texts ( St. Paul, MN: Thompson/West, 2012), at pp. 107-111. In this case, there is no reason to suppose that the Legislature’s decision to prohibit “no pet” provisions has anything to do with tenants’ right to occupy the units they rent. [17] The Divisional Court’s reasoning begs the question at issue. Voluntary agreement to a provision is irrelevant if that provision is not otherwise permitted. In the absence of specific authorization or prohibition, the legality of occupancy limitations must be determined by consideration of the provisions of the Act as a whole. [18] This is simply an application of the modern approach to statutory interpretation. The purpose of statutory interpretation is uncontroversial: it is to determine the intention of the legislature. The Supreme Court summarized the modern approach recently in Vavilov , at para. 117: A court interpreting a statutory provision does so by applying the “modern principle” of statutory interpretation, that is, that the words of a statute must 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, and Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. Parliament and the provincial legislatures have also provided guidance by way of statutory rules that explicitly govern the interpretation of statutes and regulations: see, e.g., Interpretation Act , R.S.C. 1985, c. I-21. [19] The modern approach to statutory interpretation is now referred to as “text, context, and purpose”: see the helpful discussion by Miller J.A. (dissenting) in R. v. Walsh , 2021 ONCA 43, 154 O.R. (3d) 263, at paras. 133-150. In my view, the text, context, and purpose of the Act confirm that it contemplates only non-temporary, non-conditional, unlimited occupancy arrangements. In short, occupancy limitations in residential leases are not permitted. The security of tenure [20] The intervener Advocacy Centre for Tenants Ontario and the Board made helpful submissions highlighting the security of tenure provisions of the Act – provisions that the Divisional Court failed to consider. These provisions are premised on the notion that the Act establishes ongoing tenancies that may be renewed following completion of the initial fixed term. The circumstances in which a landlord may take possession of a rental unit from a tenant are strictly limited to lawful termination, abandonment, death, assignment, eviction, or a Board order – in other words, the end of a tenancy in accordance with the Act. Nothing in the Act authorizes a landlord to take possession of a residential unit during an ongoing tenancy or assists the landlord in doing so. [21] None of this is surprising in the context of an Act that is designed to redress the imbalance in bargaining power between landlords and tenants. Occupancy limitations are at odds with the very scheme of the Act. This is confirmed by the core concepts in the Act – tenant and tenancy agreement – both of which are defined in s. 2(1) in terms of tenants’ right to occupy the units they rent. [22] The respondent sought to defend occupancy limitations by drawing a distinction between tenants’ right to occupy their rental units, on one hand, and the right of the landlord to take possession of those units on the other, asserting that the landlord does not take possession of the rental units or occupy them itself during the term in which occupation by the tenant is not permitted. This purported distinction is illusory. The denial of a tenant’s right to occupy the unit he or she has leased is the problem, and it is irrelevant whether the landlord has in some sense taken possession of the unit or simply denied the tenant access to it; in either case, the continuity of the tenancy has been broken in a manner inconsistent with the Act. [23] The Act specifically enumerates the forms of living accommodation that are exempt from the Act on the basis of seasonal or temporary occupation, and it is common ground that the land lease situation in this case is not included. Section 5(1) provides: 5 This Act does not apply with respect to, (a) living accommodation intended to be provided to the travelling or vacationing public or occupied for a seasonal or temporary period in a hotel, motel or motor hotel, resort, lodge, tourist camp, cottage or cabin establishment, inn, campground, trailer park, tourist home, bed and breakfast vacation establishment or vacation home; [24] In other words, rather than address seasonal or temporary accommodation arrangements in the context of leases covered by the Act, the Legislature exempted them all together. [25] Thus, the Divisional Court’s concern that the Board’s order would preclude the owner of a cottage and a tenant from including a term in a lease permitting the owner to occupy the cottage during certain limited times of the year, such as at Christmas, is misplaced. Cottage rentals are exempt from the Act by virtue of s. 5. Put another way, there is no need to interpret the Act to protect seasonal or temporary arrangements for living accommodations. The Legislature has adverted to the matter and determined the sorts of seasonal and temporary arrangements that are not covered by the Act. [26] In summary, the Act establishes security of tenure. Occupancy limitations are inconsistent with the Act and are rendered void by s. 4. The parties’ agreement to such limitations is simply irrelevant: freedom of contract values cannot be invoked to limit the protection the Act provides. [27] This is sufficient to dispose of the appeal, but because of the way in which the matter was argued, both before the Board and Divisional Court, I will discuss briefly the concept of reasonable enjoyment under s. 22 of the Act. The right to reasonable enjoyment [28] Section 22 of the Act provides as follows: A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household. [29] The Act does not define either the concept of reasonable enjoyment or substantial interference with it. These are vague terms that must be fleshed out by Board decisions in particular contexts, and a large body of Board case law has developed in this regard. In this case, the Board stated that the restriction of tenants’ access to rental units would be a “substantial interference with the reasonable enjoyment of the rental units”. The Divisional Court disagreed, stating as follows: A reading of the ordinary sense of s. 22 of the Act does not lead to a determination that Upper Thames substantially interfered with the reasonable enjoyment of the Tenants’ rental units when these Tenants voluntarily agreed to the provision in the lease. To be clear, s. 22 of the Act cannot be read as to indicate that any limitation to access to a rental unit during certain periods of time, agreed upon by both landlord and tenant, equates to a substantial interference by the landlord with the reasonable enjoyment of the rental units. To find otherwise would be to unnecessarily limit the ability of landlords and tenants to enter into flexible arrangements regarding the leasing of premises. [30] As I have explained, it was unnecessary for the Board to rely on s. 22. For its part, the Divisional Court erred by assuming occupancy limitations to be proper by virtue of the absence of a specific prohibition in the Act and tenants’ agreement to include them in their leases. This led the court to conclude that s. 22 was at the heart of the appeal, and it had to be interpreted in accordance with the parties’ freedom of contract. [31] The outcome in this case does not depend on the tenants’ right of reasonable enjoyment. The occupancy limitation in the leases is void because it is inconsistent with the Act as a whole and the nature of the tenancies it establishes and protects. Disposition [32] I would allow the appeal and set aside the order of the Divisional Court. [33] The appellant is entitled to costs of the appeal in the agreed amount of $10,000, all inclusive. The costs in the Divisional Court are reversed. The interveners are not entitled to costs. Released: February 16, 2022 “P.L.” “Grant Huscroft J.A.” “I agree. P. Lauwers J.A.” “I agree. S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Trivedi v. Hudd, 2022 ONCA 147 DATE: 20220214 DOCKET: M53120 (C68672) Thorburn J.A. (Motions Judge) BETWEEN Jayesh Kumar Trivedi Plaintiff (Appellant/Moving Party) and Anthony Hudd and Ash Payment Solution Inc. Defendants (Respondents/Responding Parties) Jayesh Kumar Trivedi, acting in person William W. N. Fawcett, for the responding parties Heard: February 11, 2022 by video conference ENDORSEMENT [1] The appellant and moving party, Jayesh Kumar Trivedi, seeks to set aside the Registrar’s order dismissing the appeal for delay and to extend the time to perfect his appeal. [2] On July 22, 2018, the appellant began an action for claims arising out of a business dispute between the parties. The respondents brought a motion for summary judgment to dismiss the action on multiple grounds, including that it was statute-barred by virtue of s. 4 of the Limitations Act, 2002 , S.O. 2002, c. 24, Sched. B, which provides that no proceeding shall be commenced after the second anniversary of the day the claim was discovered. [3] On August 5, 2020, summary judgment was granted, dismissing the action on the grounds that the appellant had failed to commence his proceeding within the two-year limitation period and the claim was therefore statute barred. [4] The appellant filed his notice of appeal to this court on time but failed to perfect his appeal within the required time. His appeal was dismissed for delay on December 15, 2020. Prior to the dismissal of his appeal, the Registrar of this court informed the appellant that the deadline for perfecting his appeal had passed and that if he needed further time to perfect his appeal, he could obtain consent of the opposing party or bring a motion for an extension of time. [5] In January 2022, over a year after his appeal was dismissed, the appellant filed a motion to set aside the dismissal and extend the time to perfect his appeal. [6] The overarching principle for determining whether an extension of time ought to be granted is whether the “justice of the case” requires it. This includes consideration of: (i) whether the moving party formed a bona fide intention to appeal within the relevant time; (ii) the length of and explanation for the delay; (iii) prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and (iv) the merits of the proposed appeal: Enbridge Gas Distribution Inc v. Froese , 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15; Reid v. College of Chiropractors of Ontario , 2016 ONCA 779, at para. 14. Lack of merit alone can be a sufficient basis to deny an extension of time: Enbridge , at para. 16; Reid , at para. 15. [7] It is agreed that the appellant intended to appeal within the time for bringing an appeal. [8] The delay is lengthy. The appellant explains the delay on the basis that due to COVID-19, he lost his job and was on benefits, he was not able to seek the assistance of counsel because “most of them were not meeting the clients for consultations”, and family members died overseas as a result of the pandemic. The appellant’s mother, brother-in-law and cousin died in 2021. He claims that “Now I am again regaining my mental and financial strength and therefore I want to pursue this appeal matter.” [9] While the appellant has undoubtedly experienced hardship during this period, there is no evidence of any attempts to contact counsel or indeed any steps taken at all to pursue the appeal since December 2020 when the appeal was dismissed. [10] More importantly, the appeal has little chance of success. The motion judge’s conclusion that the limitation period expired prior to the issuance of a statement of claim is a finding of mixed fact and law for which the standard of review is palpable and overriding error: Longo v. MacLaren Art Centre , 2014 ONCA 526, 323 O.A.C. 246, at para. 38. [11] The appellant’s statement of claim asserted that when money went missing from the business for reasons unknown in July of 2015, the appellant injected his own funds to get the business back up and running. [12] The appellant wrote the respondent an email on January 28, 2016 stating that if the respondent had a lawyer draw up documents, “I don’t have to take legal action”. If not, he would prove that the respondent committed negligence. He claimed that he had lost $56,000 and another $13,000 in residuals that had not been paid. The $56,000 is the subject of this claim (while the $13,000 related to an earlier Small Claims Court action that was dismissed). The respondent replied on the same day, “Do what you have to do Jay but remember every action has an equal or greater reaction”. The motion judge held that this exchange left “no doubt about the time of discovery” and that the “email exchange is the equivalent of a smoking gun for the purposes of the Limitation Act, 2002 .” [13] At this point, the relationship had broken down and the appellant knew the respondent would not accede to his demand. [14] In his oral submissions, the appellant advised that in early 2016, his father passed away and he was suffering depression for three months. [15] In his grounds of appeal, the appellant claims he did not file a claim as he was seeking to settle the dispute through mutual friends. He claims that the motion judge failed to consider that the wording in his email to the respondent, stating “I do not have to take legal action”, suggested he would try to settle the matter through friends. However, the motion judge considered the appellant’s email to the respondent, including that he told the respondent that if the respondent had a lawyer draw up documents then he would not have to take legal action. The motion judge found that the respondent’s response indicated “as counsel paraphrased, ‘Come get me.’” Therefore, the motion judge found the claim was discovered in the legal sense at the latest on the date of the email correspondence, on January 28, 2016. [16] I see no error in the motion judge’s conclusion that the email correspondence made it clear that a legal remedy would be appropriate. Given the email correspondence, trying to settle the matter through friends or negotiation did not stop the limitation period from running. A party cannot rely on his own tactical reasons for delaying the commencement of legal proceedings: Markel Insurance Company of Canada v. ING Company of Canada , 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34; Davies v. Davies Smith Developments Partnership , 2018 ONCA 550, at para. 13. [17] In sum, although the claim was discovered by January 28, 2016, the appellant did not bring this claim until June 22, 2018, two years and six months later, and after the two-year limitation period had expired. I can see no palpable and overriding error in the motion judge’s conclusion that would allow this court to interfere with the decision of the motion judge, and therefore see no potential merit to this appeal: see Sutherland Lofts Inc. v. Peck , 2017 ONCA 803, at para. 12. [18] Moreover, the justice of the case does not require the granting of leave. The dispute began in 2016. When the appellant did not perfect his appeal in compliance with the rules in December 2020, and his appeal was dismissed for delay, he did not act promptly to file this notice of motion: see Monteith v. Monteith , 2010 ONCA 78, at para. 21. Instead, he filed the notice of motion over a year later. In these circumstances, the appellant has not established that the balancing of the factors and the justice of the case require an extension of time. [19] For these reasons, I find that the appellant has not satisfied the test for an extension of time and established that the justice of the case requires an extension of time. The motion to set aside the order dismissing the appeal for delay and to extend the time to perfect this appeal is therefore denied. The respondents seek $1,250 in partial indemnity costs. The moving party suggests he is impecunious. Under the circumstances, I make no order as to costs. “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Graham v. Toronto (City), 2022 ONCA 149 DATE: 20220216 DOCKET: C69418 Simmons, Pardu and Brown JJ.A. BETWEEN Robyn Graham and David Mitchell Plaintiffs (Respondents) and City of Toronto Defendant (Appellant) Edona C. Vila, for the appellant Joel P. McCoy and Alan C. Preyra, for the respondents Heard: February 10, 2022 by video conference On appeal from the order of Justice Eugenia Papageorgiou of the Superior Court of Justice, dated April 6, 2021, with reasons reported at 2021 ONSC 2278, 15 M.P.L.R. (6th) 293. REASONS FOR DECISION Overview [1] On January 2, 2018 the respondent, Robyn Graham, tripped on a pothole in a pedestrian crosswalk in mid-town Toronto. As a result of the injuries she suffered, Ms. Graham and her husband, the respondent David Mitchell, sued the appellant, the City of Toronto. [2] Section 42(6) of the City of Toronto Act, 2006 , S.O. 2006, c. 11, Sched. A (the “Act”) provides that no action shall be brought for the recovery of damages against the City for its failure to maintain a highway in a reasonable state of repair unless the claimant provides the City with written notice of the claim and the injury complained of within 10 days after the occurrence of the injury. Ms. Graham did not give the City notice of her claim until March 22, 2018, just short of three months after her trip and fall. [3] The City moved for summary judgment dismissing the action by reason of Ms. Graham’s failure to provide timely notice. [4] The motion judge dismissed the City’s motion, holding that Ms. Graham’s failure to provide the 10-day notice did not bar her action as there was a reasonable excuse for the want or sufficiency of the notice and the City was not prejudiced in its defence: s. 42(8) of the Act. As well, notwithstanding the absence of a cross-motion by Ms. Graham and Mr. Mitchell, the motion judge granted them summary judgment dismissing the City’s statutory notice defence and declaring that the respondents’ action was not statute-barred by s. 42(6) of the Act, a form of the so-called boomerang or reverse summary judgment. [5] The City appeals. At the hearing, we dismissed the appeal, with reasons to follow. These are those reasons. [6] The City advances two grounds of appeal. First ground: The summary judgment was the product of an unfair process [7] The City submits that the motion judge acted in a procedurally unfair manner by granting the respondents reverse summary judgment in the absence of a notice of cross-motion seeking such relief or notice to the City of the motion judge’s intention to grant such a judgment. [8] We are not persuaded by this submission. [9] As this court observed in Drummond v. Cadillac Fairview Corporation Limited , 2019 ONCA 447, at paras. 11-12, summary judgment motions are intended, in part, to achieve fair and just results. Consequently, where a responding party has not filed a notice of cross-motion that seeks summary judgment against the moving party yet the motion judge intends to grant judgment against the moving party, the court must give the moving party some notice of that litigation risk so that the moving party can address it. The lack of such notice may render any resulting reverse summary judgment unfair. [10] There are numerous ways by which a court can ensure that, in the absence of a formal cross-motion, a moving party has notice of the litigation risk of a reverse summary judgment, including: (i) in those judicial regions where scheduling a summary judgment motion must pass through some form of triage or practice court, the motion scheduling request form can inquire whether the responding party intends to ask for a reverse summary judgment; (ii) at the start of a motion hearing, the judge can inquire whether a reverse summary judgment will be sought; (iii) if, during the course of the hearing, the judge forms the view that he or she might grant a reverse summary judgment, the judge should so inform the parties to allow them to respond; or (iv) if, during the course of preparing reasons disposing of the motion the presiding judge forms the view that granting a reverse summary judgment might be appropriate in the circumstances, the judge should so inform the parties and afford them an opportunity to make further submissions. [11] In the present case, the motion judge adopted the latter approach. While her decision was under reserve, the motion judge emailed counsel to advise that she usually referred to “some well-established precedents in my summary judgment decisions.” She identified four decisions, providing pinpoint cites to specific paragraphs in each. The motion judge requested that counsel inform her if they wished to make submissions on the cases. Counsel advised that they did not wish to make submissions. [12] One of the four cases identified by the motion judge was Meridian Credit Union Limited v. Baig , 2016 ONCA 150, 394 D.L.R. (4th) 601, leave to appeal refused, [2016] S.C.C.A. No. 173, with a pinpoint citation to para. 17, where LaForme J.A. wrote: [17] I pause to note that Meridian had not brought a cross-motion asking for summary judgment in its favour. However, the motion judge did not err by granting summary judgment. Counsel for the appellant submitted that all of the relevant evidence was before the court and explicitly invited the motion judge to render a decision in favour of either party. Two recent decisions from this court make it clear that it is permissible for a motion judge to grant judgment in favour of the responding party, even in the absence of a cross-motion for such relief: King Lofts Toronto I Ltd. v. Emmons , 2014 ONCA 215, 40 R.P.R. (5th) 26, at paras. 14-15; and Kassburg v. Sun Life Assurance Company of Canada , 2014 ONCA 922, 124 O.R. (3d) 171, at paras. 50-52. [13] The motion judge was communicating with counsel for parties, not a self-represented litigant. Her reference to para. 17 of the Meridian Credit Union case clearly put counsel on notice that she was considering granting a reverse summary judgment; there was no other possible reason for the reference. By so doing, the motion judge put the parties on notice of the litigation risk of a reverse summary judgment and afforded them an opportunity to make submissions, which they declined. In those circumstances, we see no unfairness in the procedure followed by the motion judge. Second ground: The motion judge erred in not finding the respondents’ action barred by s. 42(6) of the Act [14] The City submits that the motion judge erred in applying the twofold requirements of s. 42(8) of the Act: reasonable excuse and no prejudice to the City. Reasonable excuse [15] As to the motion judge’s conclusion that Ms. Graham had demonstrated a reasonable excuse for not providing earlier notice, the City contends her analysis was tainted by several errors: misinterpreting s. 42(6); effectively changing the two-prong legal test contained in the Act; and improperly considering Ms. Graham’s subjective awareness of the significance of her injury rather than merely the fact of her injury, thereby wrongfully elongating the 10-day notice period. [16] We are not persuaded by these submissions. [17] As to the first alleged error, the motion judge’s reasons disclose that she identified and applied the prevailing jurisprudence of this court concerning ss. 42(6) and 42(8) of the Act. Her references to the interpretative principle of reasonableness and the notion of a “modest excuse” were both taken from recent jurisprudence of this court ( Azzeh v. Legendre , 2017 ONCA 385, 135 O.R. (3d) 721, at fn. 4 and para. 75, leave to appeal refused, [2017] S.C.C.A. No. 289). In any event, the reasons clearly indicate that the motion judge never lost sight of the statutory obligation on Ms. Graham to demonstrate a “reasonable excuse”. [18] The other two errors alleged by the City essentially amount to asking this court to reweigh the various factors and evidence that led the motion judge to conclude Ms. Graham had demonstrated a reasonable excuse. We see no basis for this court to do so. To determine whether a plaintiff has demonstrated a reasonable excuse, a court must ascertain whether, in all of the circumstances of the case, it was reasonable for the plaintiff not to give notice until she did: Seif v. Toronto (City) , 2015 ONCA 321, 125 O.R. (3d) 481, at para. 26, per Hoy A.C.J.O. (dissenting in part, but not on this point). The motion judge’s reasons disclose that she took into account all the circumstances, did not fail to appreciate relevant evidence, did not misapprehend the evidence, and did not draw any unreasonable inferences. In those circumstances, we see no basis for appellate intervention with her finding that Ms. Graham had demonstrated a reasonable excuse. No prejudice [19] The City further submits that the motion judge erred in concluding that no genuine issue requiring a trial exists on the issue of whether the City would not be prejudiced in its defence by Ms. Graham’s failure to give the 10-day notice. We are not persuaded by this submission. [20] The motion judge noted that the City’s affiant admitted that the alleged prejudice rested solely on the fact that the City did not take measurements of the pothole before it was repaired. Such measurements would be relevant to any defence by the City that it was not liable for keeping the crosswalk in a reasonable state of repair because at the time of Ms. Graham’s fall it had met the minimum regulatory maintenance standards: Act, s. 42(3)(c). The motion judge identified a large body of evidence that led her to conclude that the delay in giving notice would not prejudice the City in its defence: (i) Ms. Graham took clear photos of the pothole within the 10-day period; (ii) Mr. Mitchell gave evidence that he inspected the pothole on the day of the incident and estimated its depth at six inches; (iii) the City took photos of the pothole on January 19, 2018, seventeen days after Ms. Graham’s fall, in response to a complaint about the hole by another person; (iv) the City field investigator who took the photos determined the pothole required repair, which was quickly done; (v) the City did not adduce any evidence explaining why the field investigator did not measure the dimensions of the pothole, although it had the opportunity to do so; and (vi) the respondents filed an expert report that opined on the dimensions of the pothole using the various January 2018 photos, yet the City did not cross-examine the expert. [21] Accordingly, ample evidence supported the motion judge’s conclusion that Ms. Graham had satisfied the “no prejudice to the City in its defence” element of s. 42(8) of the Act. We see no reversible error in that conclusion. [22] Finally, we do not accept the City’s argument that the motion judge’s decision somehow gives rise to the spectre of an inconsistent finding being made at trial. The motion judge did not make a finding about the dimensions of the pothole. Her decision does not preclude the City from advancing a defence that the crosswalk was in a state of proper repair based on the minimum standards for pothole repair set out in s. 6 of Minimum Maintenance Standards for Highways in the City of Toronto , O. Reg. 612/06. Nor does it preclude the trial judge from rejecting the respondents’ expert’s evidence concerning the dimensions of the pothole. DISPOSITION [23] For the reasons set out above, the appeal is dismissed. [24] The City shall pay the respondents their costs of the appeal fixed in the amount of $17,500, inclusive of disbursements and applicable taxes. “Janet Simmons J.A.” “G. Pardu J.A.” “David Brown J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Feltz Design Build Ltd. v. Larson, 2022 ONCA 150 DATE: 20220216 DOCKET: C69360 Strathy C.J.O., Roberts and Sossin JJ.A. BETWEEN Feltz Design Build Ltd. Plaintiff (Respondent) and Kevin Gary Larson a.k.a. Kevin Larson, Larson Properties Partnership Group , Bennington Financial Corp., Cosman Mortgage Capital Corporation and Olympia Trust Company Defendants ( Appellants ) Eric Kerson, for the appellants Martha Cook, for the respondent Heard: February 14, 2022 by video conference On appeal from the judgment of Justice A. Duncan Grace of the Superior Court of Justice, dated April 1, 2021, with reasons reported at 2021 ONSC 2469. REASONS FOR DECISION OVERVIEW [1] This appeal arises from a decision granting partial summary judgment arising out of a construction lien dispute. The appellant Larson Properties Partnership Group (“LPPG”) had retained the respondent Feltz Design Build Limited (“Feltz”) to provide construction services in relation to a property in Stratford, Ontario. [2] A dispute between the parties arose over alleged deficiencies in the construction work undertaken by Feltz and LPPG’s refusal to provide payment for the work done. [3] In September 2019, Feltz registered a lien against the property for the unpaid fees. In January 2020, Feltz brought an action against the defendants for damages due to breach of contract and breach of trust. In October 2020, Feltz moved for summary judgment against the defendants LPPG and its principal, Mr. Larson under r. 20 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 but not as against the other defendants. [4] The motion was heard in January 2021. In an endorsement dated April 1, 2021, the motion judge granted summary judgment to Feltz against LPPG and Mr. Larson and ordered, inter alia , LPPG and Mr. Larson to pay Feltz $530,764.88 for breach of contract and breach of trust. [5] Subsequent to the decision on the summary judgment motion, in January 2022, on consent of the appellants, the remaining aspects of the action against two of the other three defendants (Bennington Financial Corp. and Cosman Mortgage Capital Corporation) were resolved by order of Rady J., including the lien enforcement proceedings. The third defendant, Olympia Trust Company, has been noted in default. ANALYSIS [6] The appellants raise two grounds of appeal. First, the appellants argue that the motion judge erred in failing to find a genuine issue requiring a trial. Second, the appellants argue that the motion judge erred in finding that this matter was appropriate for partial summary judgment. The motion judge did not err in finding no genuine issue requiring a trial [7] We would not give effect to the first ground of appeal. [8] The motion judge identified the proper standard on a motion for summary judgment under r. 20 of the Rules of Civil Procedure , citing Hryniak v. Mauldin , 2014 SCC 7, [2014] 1 S.C.R. 87 and stating, at para. 22, “[i]f the record assembled by the parties allows the motion judge to make necessary findings of fact, apply the law and reach a fair and just determination on the merits, there will be no need for a trial.” [9] The motion judge explained his finding that summary judgment was appropriate by reference to the evidentiary record, at paras. 23-26: [23] A substantial evidentiary record was compiled by the parties for the purposes of this motion. The affidavits of Hainsley Bailey, the project manager of Feltz and of Mr. Larson conflicted in various respects. When faced with allegations of delay, substandard work and unjustified billings, it is difficult to avoid an initial impression that the matter is unlikely to be ripe for a summary determination. [24] However, the record did not end with the initial exchange of affidavit material. The plaintiff filed a supplementary motion record that contained an affidavit of the Consultant’s representative, Robert Ritz. That affidavit provided important context for the payment certificates and the certificate of substantial completion. [25] Cross-examinations were conducted. A transcript of the lengthy cross-examination of Mr. Larson was filed. The plaintiff’s solicitor filed a helpful factum. That was the only one the court received. [26] Based on the totality of the record, I am of the view this case can be decided justly at this interlocutory stage. [Footnote omitted.] [10] On the record before him, the motion judge found that the defendants accepted that they owed Feltz money for the work completed under the contract but disputed the quantum. [11] The motion judge did not accept the defendant’s basis for disputing the quantum. The motion judge stated that counsel for the defendants had conceded the weakness of the defendants’ argument that Feltz had offered an “all in” contract and then charged more than had been quoted. The motion judge specifically rejected LPPC’s submission that the agreement with Feltz was a fixed price contract, noting that the contract provided for an hourly rate for Feltz employees. [12] Having rejected LPPC’s submission on that issue, the motion judge found that the contract required payment to be made on the certification of LPPC’s consultant architect, who was to determine the amount owing by LPPC and to issue certificates of payment. After the dispute arose between the parties, the architect became involved and certified that Feltz’s work had been substantially performed and Feltz was entitled to payment of the balance of the contract price. [13] The motion judge concluded his review of the record on the breach of contract claim by finding that “LPPC owes Feltz the unpaid balance but is simply unwilling or unable to pay”: at para. 39. [14] With respect to the breach of trust claim, the motion judge found that LPPC received funds impressed with a trust for the benefit of Feltz and failed to account for and remit those amounts notwithstanding certificates of substantial completion of Feltz’s work, contrary to the trust obligation established under s. 7 of the Construction Act , R.S.O. 1990, c. C.30. [15] The motion judge found LPPC liable for breach of trust for the full amount of the outstanding debt, and that Mr. Larson was jointly liable given his knowledge and control over LPPC’s operations. [16] The motion judge’s findings are entitled to deference and clearly were available on the record. We find no error in the motion judge’s analysis or conclusion. There is no basis for appellate intervention on the partial summary judgment issue [17] With respect to the second ground of appeal, the granting of summary judgment was not “partial” with respect to the appellants. Rather, the judgment addressed the liability of the appellants and Feltz’s claims against them in their entirety. The partial nature of the summary judgment, to the extent it can be characterized as such, related to the fact that other parties had encumbrances against the property as well and were included as defendants. [18] The appellants argue that in granting judgment for Feltz against the appellants, the motion judge did not address the narrow circumstances in which partial summary judgment will be warranted: see Baywood Homes Partnership v. Haditaghi , 2014 ONCA 450, 120 O.R. (3d) 438, at para. 34; Butera v. Chown, Cairns LLP , 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34; and Heliotrope Investment Corporation v. 1324789 Ontario Inc. , 2021 ONCA 589, at para. 32. The factors to be considered in such a determination include whether the matter to be resolved by summary judgment could be bifurcated from the remaining litigation, dealt with in an expeditious and cost-effective manner, and whether the possibility of inconsistent findings by different courts could be avoided: Butera , at para. 34; Malik v. Attia , 2020 ONCA 787, at para. 62. [19] In this case, however, the respondent argues that the appropriateness of the partial summary judgment is no longer a live issue. [20] As set out above, subsequent to the motion judge’s decision, the parties have resolved the outstanding aspects of the litigation, with the exception of Olympia Trust Company, which has been noted in default. Consequently, the respondent takes the position that the partial summary judgment is now a full summary judgment decision. [21] The respondent relies on Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819 , 2008 ONCA 265, 90 O.R. (3d) 451, where this court held an appeal to be moot where the underlying basis for the appeal had fallen away as a result of post-judgment developments: at para. 28. [22] The appellants accept that there remains no concern regarding partial summary judgment with respect to the two defendants where the action by Feltz has been dismissed, but contend that since the action with respect to Olympia Trust Company remains alive, the partial summary judgment ground of appeal remains live as well. [23] In the alternative, the respondent contends that the motion judge’s granting of partial summary judgment was appropriate in the circumstances under the standard set out in Hryniak . [24] In our view, there is no basis for appellate intervention on this issue in this case. The concerns set out in Baywood Homes , Butera and Heliotrope do not arise in this case. No aspect of the liability toward Feltz remained in doubt following the judgment granted by the motion judge. The issue of any remedies for or against the other encumbrancers was a separate and discrete question, and one which for all intents and purposes is no longer extant. DISPOSITION [25] For these reasons, we dismiss the appeal. [26] Feltz is entitled to costs, which are set at $12,500 all inclusive. “G.R. Strathy C.J.O.” “L.B. Roberts J.A.” “L. Sossin J.A.”

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. Wright, 2022 ONCA 151 DATE: 20220216 DOCKET: M53129 Fairburn A.C.J.O. (Motion Judge) BETWEEN Her Majesty the Queen Respondent and Robert Steven Wright Applicant Michael Lacy and Bryan Badali, for the applicant Jeremy D. Tatum, for the respondent Heard: February 11, 2022 by video conference [1] A non-publication order under ss. 517 of the Criminal Code , R.S.C. 1985, c. C-46, was imposed in this matter at the bail hearing in the court below. That order precludes the publication, broadcast, or transmission of any evidence taken, information given, representations made, and reasons given. [2] The decision in R. v. Wright , 2022 ONCA 151 , contains information covered by that order. [3] Accordingly, the decision will be available on the Court of Appeal for Ontario’s website once the non-publication order ceases to be in effect. [4] In the interim, a copy of the full decision is available at the Registry of the Court of Appeal for Ontario at 130 Queen Street West, Toronto.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Young, 2022 ONCA 153 DATE: 20220217 DOCKET: C67437 Fairburn A.C.J.O., Doherty and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Alexander Young Appellant Enje Daniels and Isaac Heo, for the appellant Erica Whitford, for the respondent Heard: February 10, 2022 by video conference On appeal from the convictions entered by Justice Lucy C. Glenn of the Ontario Court of Justice on January 8, 2019. REASONS FOR DECISION [1] This is an appeal from three convictions for sexual assault with a weapon. [1] The weapons were a belt, a cane, a folded piece of plastic siding, and a broken coat hanger. The complainant was the appellant’s wife. [2] [2] The appeal rests solely on an ineffective assistance of counsel claim. We dismissed the appeal with written reasons to follow. These are our reasons. [3] The appellant focused upon two issues during oral argument. Although the factum referred to other issues, all ultimately turned on the credibility of the affidavit filed by the appellant as fresh evidence. As will be explained below, that affidavit is not credible. We see no need in these reasons to address the arguments raised in the factum but not addressed in oral argument. [4] First, the appellant claims that the trial was unfair because counsel failed to inform him about the available modes of trial and, more specifically, about his right to a preliminary inquiry. Second, he claims that the verdict was unreliable because counsel failed to lead evidence that the complainant had a potential motive to fabricate. [5] To succeed on a claim of ineffective assistance of counsel, an appellant holds the onus of establishing three things: (1) the facts upon which the claim rests (the factual component); (2) that the facts reveal ineffective representation (the performance component); and (3) that a miscarriage of justice has resulted from the ineffective representation (the prejudice component). See R. v. Girn , 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91. [6] Turning to the first issue, whether the trial was rendered unfair because trial counsel failed to adequately inform the appellant about the different modes of trial, we are unpersuaded. [7] As is typical in appeals involving ineffective assistance claims, the fresh evidence includes an affidavit from the appellant and a transcript of his cross-examination. That transcript reveals that the appellant’s complaint morphed between examination-in-chief and cross-examination. He initially suggested that his counsel did not inform him about the various modes of trial. That position changed during cross-examination, where he acknowledged that he in fact knew that he could have a trial in the Ontario Court of Justice or the Superior Court of Justice, and that one of his options in the Superior Court of Justice was to be tried by a judge and jury. [8] Having acknowledged that fact, the appellant’s complaint seemed to become that he did not actually make a choice, but rather “wanted whatever [his] lawyer suggested would be … better”. At the same time, he acknowledged that his primary concern was to obtain an expeditious trial. Trial counsel’s evidence demonstrates that he clearly understood the appellant’s concern about a speedy trial and, therefore, recommended the matter be tried in the Ontario Court of Justice. [9] We are satisfied that the appellant clearly understood the various modes of trial and that he was prepared to accede to counsel’s suggestion as to how to obtain the most expeditious trial. [10] As for the appellant’s suggestion that he was not informed about his entitlement to a preliminary inquiry, he has failed to meet his onus. [11] Trial counsel candidly admits that he has no specific recollection of informing the appellant about the potential for a preliminary inquiry. While it is trial counsel’s normal practice to explain this to his clients, he acknowledges that he has no specific note or recollection of having done so in this case. Therefore, he cannot definitively say that he followed his usual practice. [12] What counsel does very clearly recall is that he told his client about the various modes of trial and was given unequivocal instructions about getting the matter to trial as quickly as possible. In his view, that meant a trial in the Ontario Court of Justice. [13] Counsel’s lack of memory on this point does not tip the scales toward proof that the claim has been made out. This is particularly true in the face of a strong presumption of counsel’s competence: see R. v. G.D.B. , 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27. Even assuming that information about a potential preliminary inquiry properly falls under the rubric of “modes of trial”, the onus remains squarely on the appellant to prove that he was not given this information. In our view, the appellant’s evidence falls well short of establishing this fact. [14] For a number of reasons, we do not accept his evidence on this point because he lacks credibility. In our view, the appellant’s commitment to the truth is undetectable. For instance, the appellant admitted during cross-examination on his affidavit, which was filed in this court as fresh evidence, that he lied under oath at trial. Those lies included having testified at trial that he would never strike anyone with anything, explaining that he had an aversion to doing so because he was hit with a belt as a child. Yet, in the fresh evidence filed in this court, the appellant has admitted that he struck his wife with objects, including a belt, because she asked him to do so, and that he was afraid that he would get a “good beating” if he did not do as she asked. There is no indication in the record that the appellant in any way appreciates the fact that his sworn evidence on appeal belies his sworn evidence at trial. [15] In addition, read as a whole, the appellant’s evidence is entirely self-serving, internally inconsistent, and reflective of either intentional lies or memory issues. In our view, his evidence simply cannot be trusted. [16] In these circumstances, we decide this ground of appeal on the basis that the appellant has failed to demonstrate his claim that he was not told about the possibility of a preliminary inquiry. This conclusion should not be taken as suggesting that a failure to tell a client about the possibility for a preliminary inquiry would necessarily result in a miscarriage of justice. We leave for another day whether imperfections in the manner that a client is told about possible modes of trial are all necessarily equal and have the same impact on the fairness of the subsequent trial. [17] In this case, though, we need not get into the legal consequences arising from such a failure because we are not satisfied that the appellant was not told about the preliminary inquiry. [18] As to the second issue, the appellant argues that the verdict is unreliable because trial counsel failed to lead evidence that the complainant had a potential motive to fabricate. That motive to fabricate is said to arise from the fact that immediately prior to the police complaint being made, the appellant advised the complainant that he would be seeking custody of their children. The purported motive to fabricate, then, is said to arise from the complainant’s desire to obtain an advantage in the custody dispute. [19] We are unable to accept this submission. While there was in fact an active custody dispute at the time that the complainant reported this matter to the police, the fact is that she had previously made those allegations to others long before the matter was reported to the police or the custody dispute commenced. Among those she reported to was the appellant’s mother, who confirmed that fact in her evidence at trial. [20] In these circumstances, raising motive would have had no impact on the result of this case and, therefore, at a minimum, the appellant falls short on proving the prejudice component of the test. [21] These are the reasons we dismissed the conviction appeal. [22] The sentence appeal was abandoned. “Fairburn A.C.J.O.” “Doherty J.A.” “David M. Paciocco J.A.” [1] While the appellant originally sought leave to appeal his sentence, he has since served his full sentence and therefore abandoned his sentence appeal. [2] While this matter was initially subject to a publication ban under s. 486.4 of the Criminal Code , R.S.C., 1985, c. C-46, that ban was removed at the request of the complainant on April 25, 2019. We have asked for and received confirmation of this fact.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. A.M., 2022 ONCA 154 DATE: 20220223 DOCKET: C69973 van Rensburg, Nordheimer and George JJ.A. BETWEEN Her Majesty the Queen Appellant and A.M. Respondent Andrew Hotke, for the appellant Wayne Cunningham, for the respondent Heard: February 4, 2022 by video conference On appeal from the judgment of Justice Kathleen E. Cullin of the Superior Court of Justice, dated May 13, 2021, with reasons reported at 2021 ONSC 3515, allowing an appeal from the conviction entered by Justice Vanessa V. Christie of the Ontario Court of Justice, dated May 13, 2019. Nordheimer J.A.: [1] The Crown appeals, with leave, from the judgment of the summary conviction appeal judge, who allowed an appeal and set aside a conviction on a single count of sexual assault. For the following reasons, I would allow the appeal, set aside the judgment below and restore the conviction. A. Background [2] The complainant was 22 years old at the time of the offence. She testified that the respondent, who was 54 years old at the time of the offence, was a close friend of her family and like an uncle to her. He attended her family’s Christmas dinners and would speak to and visit her parents regularly. She first met him when she was 15 or 16 years old. [3] The complainant explained that on December 19, 2017, she agreed to go to the respondent’s home to listen to music and help him decorate his Christmas tree for an upcoming Christmas party. The respondent picked her up around 1:30 p.m. They made a couple of stops on the way to his home, including at the LCBO where the respondent purchased vodka and rum. They arrived at the respondent’s home around 2:30 p.m. Soon after their arrival, the respondent began mixing drinks for the two of them. The complainant had not consumed any alcohol or drugs before arriving at the respondent’s home, save for a painkiller she had taken earlier that afternoon for her back pain. [4] The respondent continued to mix drinks for them throughout the evening. The complainant believed she had between six and eight drinks in total. She was not aware of how much alcohol was put in her drinks. She felt “buzzed but … nothing out of the ordinary”. Two visitors stopped in for short visits but largely the respondent and the complainant were alone. The complainant remembered these visitors stopping in, and remembered decorating the tree, listening to music and having drinks, but at some point, her memory of the evening stops. At trial, she could not say with precision when the gap began. She believed it was likely around 10 p.m. What she could recall distinctly, however, was her next memory, which was waking up from sleep around 1:00 or 1:30 a.m. to find herself face down on the respondent’s bed, her pants and underwear removed, and the respondent touching her vagina with his mouth and fingers. He said to her that she was beautiful. The complainant was shocked and scared. She lay still for a moment, unsure what to do, then she moved his hand away, told him to stop, and got up. [5] After she got up, the complainant gathered her clothes from the floor and went to the bathroom to put them on. Then she went to the kitchen and collected her jacket and bag. The respondent asked her if she was mad at him, and she said that she was. He asked her to wait and said he would call a taxi, but she refused and left. She immediately called a friend and made her way to the friend’s house on foot. The friend convinced her to call her mother to tell her what had happened. The police were contacted. After attending the police station, the complainant was taken to Sudbury Hospital for the administration of a sexual assault kit. [6] The Crown called a forensic scientist from the Centre of Forensic Sciences to give expert opinion evidence about the presence of alcohol and drugs found in the complainant’s blood and urine samples taken the morning of December 20, 2017. With respect to alcohol, the expert testified that alcohol was detected in the complainant’s blood at a concentration of 59 milligrams of alcohol in 100 millilitres of blood, and in her urine at a concentration of 92 milligrams of alcohol in 100 millilitres of blood. The expert was asked to calculate, based on these figures, what the estimated blood alcohol concentration (“BAC”) would have been at the time of the offence, between 10 p.m. and 1:30 a.m. The expert testified that the complainant’s BAC would have been between 119 and 249 milligrams of alcohol in 100 millilitres of blood. [7] The expert provided a description of the possible effects of a BAC of 59 milligrams of alcohol in 100 millilitres of blood, and the possible effects of the projected BAC range at the time of the offence of 119-249 milligrams of alcohol per 100 millilitres of blood. She said that a BAC of 59 per 100 could have minimal effects, depending on tolerance. However, a BAC of between 119 and 249 per 100 could have dramatic effects. Effects at the lower end of the range could include slurred speech, motor incoordination, increased sociability and talkativeness. Toward the higher end of the range, effects would become more and more dramatic, including significant instability in one’s ability to walk, vomiting, nausea and even unconsciousness. Again, a person’s tolerance would have a bearing on the effects. A person with low tolerance could experience such dramatic effects at a lower BAC. [8] The complainant testified that she was an experienced drinker. While she said that she was not a heavy drinker, she also said that it was not unusual for her to have eight to ten drinks. The complainant also acknowledged that she had blacked out a handful of times since she turned 19 years old, and that these black outs came over her abruptly. [9] The expert also provided an opinion on the three substances that were detected in the complainant’s urine: codeine glucuronide, morphine metabolite and acetaminophen. The expert described the effects of these substances and offered the opinion that the effects of alcohol can be increased by codeine and/or morphine, leading to increased sedation, increased drowsiness, motor skill impairment and possible memory impairment. [10] The Crown also filed biology reports from the Centre of Forensic Sciences. The reports established overwhelmingly that the respondent’s DNA was found on the complainant’s genitals after the assault. B. The decisions below (1) The Trial [11] The trial judge acknowledged that the critical issue was consent. Sexual contact was admitted, and the DNA evidence left “[n]o question that sexual activity occurred”. On the issue of consent, the trial judge concluded, based on the whole of the evidence, that the complainant was both unable to consent to the sexual activity that occurred and did not in fact consent to the sexual activity that occurred. [12] The trial judge referred to certain principles that she drew from the decision of R. v. J.R. (2006), 40 C.R. (6th) 97 (Ont. S.C.), aff’d 2008 ONCA 200, 59 C.R. (6th) 158, leave to appeal refused, [2008] S.C.C.A. No. 189 ( Daigle ), and [2008] S.C.C.A. No. 231 ( Roberts ). The trial judge went on to address the concepts of “blacking out” and “passing out”. The trial judge noted that while people often use the terms as being synonymous, they are not. She said: Passing out is a deep state of sleep or unconsciousness, whereas a blackout is a conscious person, a somewhat conscious person who may still be doing and saying things, but afterwards have no memory. [13] The trial judge concluded that the complainant “was unable to and did not consent to the sexual activity that occurred”. The trial judge gave a number of reasons for that conclusion which largely turned on her review of the evidence. The trial judge also found that the complainant was “an extremely credible witness”. The trial judge ultimately concluded that the complainant was unconscious when the sexual activity occurred. She appeared to find some additional support for this conclusion from the fact that the respondent had asked the complainant, before she left his home, whether she was mad at him. The trial judge found that this indicated that the respondent knew that the complainant had not consented to the sexual activity. (2) The Summary Conviction Appeal [14] On appeal by the respondent, the summary conviction appeal judge (“SCAJ”) set aside the conviction and ordered a new trial. In reaching her conclusion, the SCAJ was critical of the trial judge’s reasons. In particular, the SCAJ said that the trial judge had failed to address, in her reasons, (i) when the complainant became unconscious and (ii) whether the complainant consented to the sexual activity before she became unconscious. [15] The SCAJ said that it was impossible to know with certainty what happened on the night in question. She said that it was possible that the respondent took liberties with the complainant while she was unconscious, but it was also possible that the complainant had consented to the sexual activity while she was blacked out and conscious. The SCAJ said that the trial judge had failed to “grapple with” both possibilities. [16] The SCAJ further criticized the trial judge for her failure to address the expert evidence of the toxicologist. The SCAJ said, at para. 36: In short, the record disclosed no reliable lay witness evidence and no expert evidence establishing the complainant’s level of alcohol consumption or level of intoxication at any point during the evening. There was no foundation upon which to establish when or whether the complainant was rendered unconscious. There was no foundation upon which to establish the absence of consent or the [respondent]’s knowledge of the absence of consent. If the trial judge observed a pathway in the evidence to reach these conclusions, she did not disclose it in her reasons. [17] The SCAJ then referred to this court’s decision in R. v. Garciacruz , 2015 ONCA 27, 320 C.C.C. (3d) 414, and said that the trial judge’s reasons did not “meet the functional needs of reasons for decision”. [18] The SCAJ returned to the trial judge’s failure to mention the evidence of the toxicologist. She was especially critical of the trial judge’s failure to address the expert’s evidence “that an experienced drinker may have demonstrated no visible effects of intoxication”. [19] Having made that remark, the SCAJ then criticized Crown counsel for failing to provide the toxicologist with information that might have permitted the toxicologist to render a conclusive opinion. The SCAJ said, at para. 44: The Crown’s failure to fully arm their expert and the court with the facts suggests that those facts may not have supported the Crown’s theory regarding the complainant’s capacity to consent or the [respondent]’s knowledge of any lack of capacity. [20] The SCAJ continued on this point at para. 45: Given the complainant’s memory lapse and the absence of other witnesses, evidence of the complainant’s level and appearance of intoxication between 10:00 p.m. and 1:30 a.m. was critical to understanding her capacity to consent, the [respondent]’s knowledge regarding her capacity to consent, and the likelihood of her loss of consciousness due to alcohol consumption. [21] Finally, the SCAJ dealt with the issue of post-offence conduct, that is, the fact that the respondent had asked the complainant whether she was mad at him. The SCAJ said, at para. 50: The trial judge’s perfunctory conclusion that the [respondent]’s inquiry about whether the complainant was “mad” demonstrated his knowledge of her lack of consent flies in the face of all appellate court guidance about the treatment of post-effect conduct evidence. [22] The SCAJ found that this evidence was equivocal and “did not demonstrate actions inconsistent with that of an innocent person”. [23] The SCAJ concluded that “the trial judge’s errors of law were fatal to her decision to convict”. She allowed the appeal and ordered a new trial. C. Analysis [24] The appellant raises four grounds of appeal: 1) Did the SCAJ err in finding the trial judge’s reasons insufficient? 2) Did the SCAJ err in finding the trial judge had erred by failing to address perceived deficiencies in the expert evidence? 3) Did the SCAJ err in holding that there was a basis for the trial judge to draw an adverse inference against the Crown for failing to elicit certain evidence from the complainant that was deemed by the SCAJ to be necessary to evaluate the expert evidence? 4) Did the SCAJ err in finding that the trial judge had erred by not giving a reasoned explanation for her use of the post-offence conduct evidence? [25] In my view, there is merit to at least the first three of these grounds of appeal. I will deal with each of them in turn. (1) Sufficiency of reasons [26] In my view, the SCAJ was unduly critical of the trial judge’s reasons. This was largely a fact driven case. The trial judge reviewed the facts and reached certain conclusions regarding them. She also explained the reasons for her conclusions. The trial judge’s reasons permitted appellate review, as is evident from the review undertaken by the SCAJ. While there may be opposing views on the conclusions reached by the trial judge, that fact does not render the reasons insufficient. In approaching the trial judge’s reasons as she did, the SCAJ committed the error in appellate review described in R. v G.F. , 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 76, that is, a search for error arrived at by “parsing imperfect or summary expression on the part of the trial judge”. [27] One of the particular criticisms of the trial judge’s reasons offered by the SCAJ is her failure to mention the evidence of the toxicologist. I make two points in response to that criticism. First, a trial judge is not required to refer to every piece of evidence that is presented. This basic principle applies equally to expert evidence as it does to factual evidence. The evidence of the toxicologist was not definitive on the issue of consent, nor could it have been. It was up to the trial judge to decide whether it provided assistance to her. Because the expert evidence was not definitive, I can understand why the trial judge did not mention it. Second, I would note, on this point, that the trial judge said, at the outset of her reasons, that she had considered “the totality of the evidence” in coming to her conclusion. There is no reason, on the record, to conclude that she did not do so. (2) Deficiencies in the expert evidence [28] The SCAJ appears to be critical of the expert evidence, and Crown counsel’s presentation of it, on the basis that it did not provide a definitive explanation. I reject that criticism. Experts are often unable to provide definitive opinions or explanations because those definitive opinions require established facts and, as is often the case in a criminal prosecution, those facts are not established at the time when the expert renders their opinion. [29] The SCAJ is also wrong to criticize the trial judge for accepting “the toxicologist’s most dire estimation of the complainant’s state of mind at the time of the incident”. The trial judge did no such thing. I would also note that the SCAJ’s finding on this point is entirely inconsistent with the SCAJ’s criticism that the trial judge failed to refer to the evidence of the toxicologist. [30] The toxicologist’s evidence would have provided some support for the complainant’s account, including the reliability of her evidence that she lost consciousness and awoke to find the respondent performing sexual acts on her. To the degree that the trial judge may have found the toxicologist’s evidence of assistance to her in assessing the complainant’s evidence, she was entitled to rely on it in reaching her conclusions. However, as I have already mentioned, the trial judge was not required to rely on this evidence nor, if she did, was she required to enunciate the details of that reliance. The fact of the matter is that the expert evidence did not stand in the way of the conclusions that the trial judge reached. In fact, it provided some support for the complainant’s evidence that she had passed out as a result of her consumption of alcohol provided at the hands of the respondent. Had the expert evidence presented an obstacle to that conclusion, it would then have been necessary for the trial judge to explain why that evidence did not preclude her conclusions. That is not what occurred in this case, however. [31] I would add, on this point, that this case is entirely different from what was dealt with in Garciacruz . In that case, there were inconsistencies in the complainant’s evidence that the trial judge had not addressed or explained. There were no such inconsistencies here. Indeed, as I have noted, the trial judge found the complainant to be an extremely credible witness. The trial judge was entitled to accept the complainant’s evidence and to reach the conclusion that she did on the issue of consent. (3) Availability of an adverse inference [32] The SCAJ found that Crown counsel had failed to arm their expert and the court with certain facts. She went on to suggest that those facts may not have supported the Crown’s theory regarding the complainant’s capacity to consent or the respondent’s knowledge of any lack of capacity. The SCAJ then said it would have been appropriate for the trial judge to draw an adverse inference against the Crown arising from its failure to elicit those facts. [33] The SCAJ’s conclusion on this point is unprecedented and it is wrong in law. It unnecessarily extends the principles underlying the law on when it is appropriate to draw an adverse inference. That extension, in this case, also treads heavily on prosecutorial discretion. Neither side has produced a single case where an adverse inference was properly drawn from the failure of a party to provide certain facts to an expert. Rather, the failure of an expert to be provided with relevant facts, or the failure of an expert to consider relevant facts, are normally matters that go to the reliability of the expert opinion and the weight to be given to it: see, e.g., R. v. Gibson , 2021 ONCA 530, 157 O.R. (3d) 597, at para. 203. The failure of an expert to advert to certain facts is very often fodder for effective cross-examination of the expert’s opinion. [34] Two principles relating to adverse inferences are important. First, the drawing of adverse inferences is to be approached with great caution: R. v. Zehr (1980), 54 C.C.C. 2d 65 (Ont. C.A.), at p. 68. Second, an adverse inference normally arises from either a failure to call a material witness or a failure to produce material evidence: R. v. Ellis , 2013 ONCA 9, 113 O.R. (3d) 641, at para. 45. The SCAJ does not appear to have considered or applied either of these principles before rendering her criticism of Crown counsel and of the trial judge. [35] I would also observe, on this point, that there are problems with the three deficiencies that the SCAJ identified in the information that she says was not given to the toxicologist. Those deficiencies were identified by the SCAJ as: (i) when or whether the complainant consumed any substances containing codeine or morphine in the 12 to 48 hours prior to her urine sample; (ii) whether the complainant consumed any substances containing codeine or morphine with a frequency that would have caused her to develop a tolerance to them; and (iii) how often the complainant consumed alcohol and how much she typically consumed. [36] The first two of these asserted deficiencies deal with any consumption of codeine or morphine. That was not the central issue in this case. The central issue was the consumption of alcohol. In any event, Crown counsel did ask the complainant about her consumption of drugs, both prescription and non‑prescription, during the complainant’s examination in chief. That information was before the court and, indeed, the toxicologist was asked about it. The third alleged deficiency dealt with alcohol but, contrary to the findings of the SCAJ, that evidence was also before the court. As noted in para. 8 above, the complainant gave evidence of her drinking habits during the course of her cross-examination. If either party wished to put that evidence to the expert, they could have. And, of course, if there was other evidence that the respondent considered relevant to the evaluation of the toxicologist’s evidence, he had full opportunity to elicit it. [37] A further concern with the SCAJ’s reasoning, on this point, is that it unfairly criticizes Crown counsel for the manner in which she decided to present her case. The Supreme Court has directed that “courts should be careful before they attempt to ‘second-guess’ the prosecutor’s motives when he or she makes a decision”: R. v. Power , [1994] 1 S.C.R. 601, at p. 616. Indeed, in this case, the SCAJ goes so far as to suggest that what she thought was missing evidence would, if it had been provided to the expert, have led to a different opinion, one that would have been contrary to the Crown’s position and might have possibly undermined the complainant’s evidence. [38] There is no basis for such an assertion. While, contrary to the SCAJ’s conclusion, there was evidence on each of these three points, even if more evidence had been adduced — and it is hard to see how much more such evidence could have been adduced — there is no basis for finding that it would have impacted on the expert’s opinion. It must be kept in mind, in considering this issue, that there were at least three hours (10:00 p.m. to 1:00 a.m.) during which there was no evidence of what had occurred. Only two people could have provided that evidence directly. One was the complainant, who had no memory of that time, and the other was the respondent, who did not give evidence as he was fully entitled not to do. [39] Given that gap in the evidence, the expert was never going to be in a position to provide a definitive opinion because the expert could not know what had happened during those three hours. The SCAJ’s finding that evidence of the complainant’s level, and appearance, of intoxication during these three hours “was critical to understanding her capacity to consent” ignores the reality that the evidence was unobtainable. It is also decidedly unfair to use the absence of that evidence as a justification for finding that there was “a gaping hole” in the trial judge’s reasons. (4) Post-offence conduct [40] As was observed by this court in R. v. Hall , 2010 ONCA 724, 263 C.C.C. (3d) 5, at para. 131, leave to appeal refused, [2010] S.C.C.A. No. 499: “the problem with post-offence conduct evidence is that it is often at best equivocal”. I accept that the question by the respondent to the complainant as to whether she was mad at him is equivocal on the question of consent. I do not accept the appellant’s position that the content of the question, and the fact that the respondent asked this question in the context that he did, can only reasonably support the inference that he knew that the complainant had not consented to the sexual activity. It is equally possible that the respondent was confused as to why the complainant had suddenly stopped what might have been consensual sexual activity and he wanted to know the reason. [41] However, the trial judge’s use of this post-offence conduct is not fatal in this case for at least two reasons. One is that it forms a very small part of the trial judge’s analysis. Indeed, it appears to be almost an obiter comment. It is addressed at the very end of her reasons where she simply says that the respondent’s question “demonstrates to this court that he knew she was not conscious”. The other reason is that this was a judge-alone trial. The concerns about the potential misuse of post-offence conduct evidence are greatly reduced from what they would be in a jury case: see R. v. S.B.1 , 2018 ONCA 807, 143 O.R. (3d) 81, at paras. 118-120. [42] I would add that the trial judge’s handling of this evidence did not warrant the degree of criticism that was levelled by the SCAJ. In particular, it was unfair to say that the trial judge’s mentioning of the evidence “flies in the face of all appellate court guidance”. It does not. (5) Summary [43] The SCAJ did not take the proper approach to appellate review of the trial judge’s reasons. Rather, it is clear that the SCAJ decided to retry the case and to substitute her view of the evidence, and its cogency, for that of the trial judge. That is not the appellate role. Nor is it the appellate role to go on a hunt for error: R. v. G.F. , at para. 69. [44] The SCAJ herself fell into error in her analysis by not considering the principles enunciated in R. v. J.A. , 2011 SCC 28, [2011] 2 S.C.R. 440. In considering the issue of consent in that case, the court made the following point, at para. 66, which is particularly apt to the facts of this case: The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code . [Emphasis added.] [45] The respondent acknowledges that there is a period of at least three hours during which there is no evidence of what was occurring between the complainant and the respondent, especially on the issue of consent. Even if one was prepared to accept that the complainant initially consented to the sexual activity, but does not remember because she had “blacked out”, it is readily apparent that, at some later point, she became unconscious. The fact that she “woke up”, as the trial judge accepted, leaves no doubt about that fact. [46] The trial judge was entitled, on the evidence, to conclude that the complainant awoke from her unconscious state to find the respondent engaging in sexual activity with her. The trial judge was therefore also entitled to conclude that the Crown had proved an absence of consent at that time and in the time period immediately prior to that happening. On the principle established by J.A. , there could not be consent, given that the complainant was unconscious. The respondent must have known of that, as the trial judge found. A finding of guilt properly followed from those findings. [47] The SCAJ erred in setting aside the conviction. D. Conclusion [48] I would allow the appeal, set aside the judgment below, and reinstate the conviction and the sentence imposed on the respondent. If appropriate arrangements cannot be made for the surrender of the respondent, a warrant for his arrest may issue. Released: February 23, 2022 “K.M.v.R.” “I.V.B. Nordheimer J.A.” “I agree. K. van Rensburg J.A.” “I agree. J. George J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Doxtator, 2022 ONCA 155 DATE: 20220222 DOCKET: C66291 & C66431 MacPherson, Roberts and Miller JJ.A. BETWEEN Her Majesty the Queen Respondent and Jasmine Doxtator Appellant and AND BETWEEN Her Majesty the Queen Respondent and Richard Doxtator Appellant Richard Litkowski, for the appellant, Jasmine Doxtator Jessica Zita, for the appellant, Richard Doxtator Andreea Baiasu, for the respondent Heard: September 27 and October 20, 2021 by video conference On appeal from the convictions entered by Justice James A. Ramsay of the Superior Court of Justice, sitting with a jury, on September 21, 2017. L.B. Roberts J.A.: A. Overview [1] The appellants appeal their respective convictions for the first degree murder of Joseph Caputo, committed on June 19, 2015. [2] The appellants request a new trial. Their principal submission is that the trial judge erred in failing to leave for the jury’s consideration for Jasmine Doxtator the included offences of second degree murder and manslaughter. Since their cases are intertwined, the appellants argue, if a new trial is ordered for Ms. Doxtator, Richard Doxtator should also have a new trial. [3] For the reasons that follow, I agree that the included offences of second degree murder and manslaughter should have been left with the jury for Ms. Doxtator and would order a new trial. As a result, I do not need to address Ms. Doxtator’s grounds of appeal concerning the trial judge’s instructions on party liability. I would also order a new trial for Mr. Doxtator. B. Factual Background (a) The death of Mr. Caputo [4] Except as otherwise indicated, the following is a summary taken from Ms. Doxtator’s testimony and concessions at trial, as well as the unchallenged forensic evidence. Mr. Doxtator did not testify at trial but relied on Ms. Doxtator’s testimony. As I would order a new trial, I make no findings regarding the ultimate credibility and reliability of this evidence. I take it at its most favourable for the appellants for the purposes of assessing whether, on the totality of the evidence, the jury could have had a reasonable doubt with respect to whether Mr. Caputo’s murder was planned and deliberate or whether Ms. Doxtator had murderous intent: R. v. Ronald , 2019 ONCA 971, at paras. 46-48, 59; R. v. Tenthorey , 2021 ONCA 324, at paras. 70-71, 75. [5] The appellants are cousins. They lived in Hamilton, Ontario. Mr. Caputo was Ms. Doxtator’s former drug dealer and friend whom she had known for many years before his death. She was familiar with Mr. Caputo’s apartment in Niagara Falls, where his death occurred, because she had visited him often. A day or two prior to Mr. Caputo’s death, Ms. Doxtator told Mr. Doxtator that the last time she saw Mr. Caputo he had drugged and raped her and that he was stalking her teenaged daughter. Up until that point, Ms. Doxtator had kept this information from Mr. Doxtator because she was concerned it would make him upset. [6] On June 18, 2015, the appellants borrowed Ms. Doxtator’s cousin’s Jeep and attended a drive-in movie theatre. There, Ms. Doxtator and Mr. Doxtator talked about the problems she was having with Mr. Caputo. Ms. Doxtator became very upset. The appellants left the theatre without seeing the movie. Ms. Doxtator called Mr. Caputo and arranged to meet him. The appellants then drove to Niagara Falls, Ontario, to confront Mr. Caputo about his behaviour and tell him to stay away from Ms. Doxtator’s daughter. Mr. Doxtator was to lend support and protection. Ms. Doxtator was concerned about going alone because of what had happened the last time she saw Mr. Caputo. [7] In cross-examination, the Crown suggested to Ms. Doxtator that her description of events made it sound like the appellants were going to threaten Mr. Caputo. Ms. Doxtator disagreed that it sounded like she was going to threaten him. [8] Once in Niagara Falls, Ms. Doxtator met up with Mr. Caputo at a McDonald’s restaurant. They did not stay at the restaurant but went to Mr. Caputo’s apartment. While Ms. Doxtator initially testified the restaurant was closed, the parties later agreed it was open. Ms. Doxtator’s evidence was that Mr. Caputo drove back in his car and Mr. Doxtator and Ms. Doxtator drove in the borrowed Jeep. The Crown maintained Mr. Caputo drove Ms. Doxtator back to his apartment and Mr. Doxtator followed them, without Mr. Caputo’s knowledge, in the borrowed Jeep. The apartment’s security camera showed only Mr. Caputo and Ms. Doxtator passing together through the lobby at around 12:57 a.m. Mr. Caputo’s apartment was on the first floor and had a back door to a patio. Mr. Doxtator waited outside by the back door. Mr. Doxtator ultimately gained entrance into Mr. Caputo’s apartment through the back door. Ms. Doxtator maintained that Mr. Caputo opened the door when Mr. Doxtator knocked; the Crown contended that Mr. Doxtator hid on the patio and Ms. Doxtator unlocked the back door so Mr. Doxtator could enter. [9] Ms. Doxtator and Mr. Caputo argued in his apartment. A neighbour testified hearing what he thought sounded like a domestic dispute between a husband and wife. Ms. Doxtator and Mr. Caputo became upset when she confronted Mr. Caputo about his raping her and his harassment of her daughter. Mr. Doxtator told Mr. Caputo to let her speak. Mr. Caputo became enraged. He grabbed a kitchen knife, told them both “to get the ‘F’ out of his house”, and started moving toward Mr. Doxtator. Mr. Doxtator held Mr. Caputo off with his hand on Mr. Caputo’s forehead but a struggle ensued. It was at this point that Ms. Doxtator left through the back door, closing her eyes and putting her hands over her ears. She did not see Mr. Doxtator stab Mr. Caputo but on re-entering the apartment, she saw blood everywhere and Mr. Doxtator cleaning his hands. Ms. Doxtator did not see or know if Mr. Doxtator brought a knife with him. The appellants conceded at trial that Mr. Doxtator caused Mr. Caputo’s death. [10] The appellants left the apartment and locked the front door with Mr. Caputo’s keys. At about 1:22 a.m., the apartment’s video footage showed Ms. Doxtator leaving the apartment building with Mr. Doxtator. The appellants began driving back to Hamilton. However, about an hour later they returned to Mr. Caputo’s apartment to retrieve Ms. Doxtator’s cup that she had left behind, as witnessed by a neighbour. [11] The Crown suggested Mr. Caputo’s apartment had been ransacked and that some money had been taken. Mr. Doxtator’s bloodied footprints were found throughout the apartment. Ms. Doxtator maintained they did not take any money or drugs from the apartment, although she testified that she knew where Mr. Caputo kept drugs. The police later found on the Niagara bound side of the highway items belonging to Mr. Caputo that may normally be kept in a wallet, including various pieces of Mr. Caputo’s identification, insurance cards, and his vehicle ownership card. Mr. Caputo’s cell phone was also found on the side of Valley Way Road in Niagara Falls. [12] On their return to Hamilton, the appellants threw away the kitchen knife used in the stabbing and Ms. Doxtator’s bloodied shoes into a grocery store garbage bin. The kitchen knife was never recovered. Video footage at Mr. Doxtator’s father’s apartment shows the appellants putting items into the dumpster at the rear of the building. [13] The appellants returned the Jeep to Ms. Doxtator’s cousin the following day and then spent the next several days moving around and living transiently until they were arrested by the police. One witness testified that prior to the appellants’ arrest, Mr. Doxtator had asked if he knew anyone who could forge documents and indicated that he was trying to go to Awkesasne, which borders New York State. Mr. Doxtator sent text messages that read, “I’m in a jam and I needed a place to recoup, gather my thoughts and figure shit out”; “I fucked up”; and “[c]an we set up our tent in house your backyard for a week til I figure out the next move. Me and my girl and her daughter need to leave Canada soon”. Ms. Doxtator texted a friend that she was in “big trouble” and she was scared. [14] According to the forensic evidence, Mr. Caputo’s blood was found in the inside back door area of his apartment, which continued through the living room, along the corridor and into the hallway area where his body was found. Mr. Caputo had sustained 18 individual sharp force injuries, which were cutting and stabbing wounds, and had superficial defensive wounds on his hands and the back of his arms. Three of the stab wounds to his upper back area that punctured his lungs could have been fatal; one stab wound to the front of his chest pierced his heart and killed him. According to the expert forensic pathologist, Dr. John Fernandes, the stab wound to the heart required a good deal of force, as it cut a bone entirely in two. The defensive injuries that he found on Mr. Caputo were indicative of a struggle. He agreed that the injuries were caused in rapid succession and that Mr. Caputo could have continued to stagger for a very short period of time after the fatal wound was inflicted. [15] Traces of Mr. Caputo’s blood were found on and near the borrowed Jeep’s gear lever and on a bag seized from the place where the appellants were staying on their arrest. The police seized from the borrowed Jeep a hunting knife belonging to Mr. Doxtator. Mr. Doxtator’s DNA was found on the knife. There was blood on Mr. Doxtator’s hunting knife that was in too small a quantity to analyze. According to Dr. Fernandes, the knife that killed Mr. Caputo would have had a cutting edge with no serrations. He opined that the hunting knife could be of the type of knife responsible for Mr. Caputo’s injuries or it could have been a larger knife, such as a chef’s knife. (b) Trial proceedings (i) Parties’ Trial Positions [16] At trial, the Crown’s primary theory was that the appellants carried out the planned and deliberated murder of Mr. Caputo in retaliation for his rape of Ms. Doxtator and to protect her daughter. The Crown argued that Ms. Doxtator planned and facilitated the murder with Mr. Doxtator who did not know Mr. Caputo or where he lived: she called Mr. Caputo to arrange a meeting, lured him back to his apartment, and then opened the door to Mr. Doxtator who immediately stabbed Mr. Caputo to death with the hunting knife he had brought for that purpose. The Crown argued that following the murder, the appellants stole Mr. Caputo’s wallet and ransacked the apartment for anything of value. [17] While not part of the Crown’s final submissions, in his charge to the jury the trial judge also stated that another possible motive derived from the evidence was that the appellants planned to carry out a robbery of drugs and money that Ms. Doxtator knew Mr. Caputo kept at his apartment. [18] The appellants’ defence depended on Ms. Doxtator’s evidence that although they intended to confront Mr. Caputo, the appellants never intended or planned to kill or physically hurt him. The appellants’ position was that Mr. Doxtator stabbed Mr. Caputo in self-defense in response to Mr. Caputo attacking him with a kitchen knife. Alternatively, it was argued that Mr. Doxtator acted instinctively and so lacked the intent for murder and should therefore be found guilty of the lesser included offence of manslaughter. (ii) Pre-charge conference and rulings [19] At the pre-charge conference, the trial judge initially ruled that manslaughter would be left to the jury for Ms. Doxtator but that there was no air of reality to self-defense for Mr. Doxtator. His ruling was very brief: I have decided that I do not think there is an air of reality to self-defence. I have also decided that I think there is an air of reality to manslaughter for Jasmine Doxtator. I have given you the bare bones of what I plan to tell the jury in law about these offences. [20] After hearing further submissions, defence counsel persuaded the trial judge that only first degree murder or acquittal would be the verdicts left with the jury for Ms. Doxtator, and that for Mr. Doxator, self-defense, along with the potential verdicts of second degree murder and manslaughter, would be left with the jury. He stated: “Okay, it is all or nothing for Jasmine and I will leave self-defence for Richard. But do not spend too much time on that.” (iii) Verdicts [21] The jury returned in under six hours, rendering verdicts of first degree murder for both appellants. Both appellants were sentenced to life imprisonment without eligibility of parole for 25 years. C. Issues and the Parties’ Positions on Appeal [22] The appellants submit that the trial judge erred in his jury instructions by failing to leave with the jury the included offences of second degree murder and manslaughter as potential verdicts for Ms. Doxtator, notwithstanding the insistence of her trial counsel that only first degree murder should be left with the jury. They assert that it was open to the jury on the evidence to have a reasonable doubt as to whether Ms. Doxtator had the requisite intent for murder or whether the murder was planned and deliberate. As a result, they argue, the jury was pushed into the stark binary choice between a first degree murder verdict or an acquittal for Ms. Doxtator and, by extension, for Mr. Doxtator. According to the appellants, the failure to leave second degree murder and manslaughter for Ms. Doxtator undermined Mr. Doxtator’s defence and tainted the verdict of first degree murder: having returned a first degree murder verdict for Ms. Doxtator, the jury would not have come to a verdict of less than first degree murder for Mr. Doxtator who stabbed Mr. Caputo. [23] The Crown submits that the trial judge did not err in acceding to defence counsel’s adamant request that only first degree murder should be left with the jury for Ms. Doxtator because there was no air of reality to the included offences. There is no reasonable view of the evidence, on the Crown’s submission, on which a jury would have doubt of planning and deliberation but convict Ms. Doxtator of second degree murder or manslaughter. Moreover, the structure of the jury instructions ensured that the jury would consider a separate verdict for each accused and reach a verdict for Mr. Doxtator before turning to consider the charge against Ms. Doxtator. There was no complaint about the charge that left first degree murder, second degree murder and manslaughter for Mr. Doxtator. As a result, the Crown argues, the appellants suffered no prejudice and received a fair trial. The Crown submits that given the appellants’ plan to confront Mr. Caputo and the forensic evidence of the ferocity of the stabbings from the moment Mr. Doxtator was let into the apartment, a verdict of first degree murder was inevitable for both appellants. The Crown contends that if there was an error in the jury instructions, this court should apply the curative proviso . D. Analysis (i) General principles [24] There is no question that trial judges have a broad discretion in fashioning jury charges. Their decision about how much evidence to review, what structure to use and how to organize the charge falls within that discretion and, absent reversible error, is owed deference on appeal: R. v. Newton , 2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 11. [25] However, a failure to leave with the jury a possible verdict that arises on the evidence is an error of law to which no appellate deference is owed. It is well established that “a trial judge has a duty to instruct the jury on all bases of liability that are available on the evidence”: R. v. Kostyk , 2014 ONCA 447, 312 C.C.C. (3d) 101, at para. 40. [26] In first degree murder cases, where there is any air of reality on the evidence, the included offences of manslaughter and second degree murder should be left with the jury: Ronald , at para. 41; R. v. Romano , 2017 ONCA 837, 41 C.R. (7th) 305, at paras. 13-14; R. v. Babinski (2005), 193 C.C.C. (3d) 172 (Ont. C.A.), at para. 45, leave to appeal refused, [2005] S.C.C.A. No. 201; R. v. Aalders , [1993] 2 S.C.R. 482, at p. 504; and R. v. Luciano , 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 75. [27] In some cases, like here, the trial judge’s instructions will not accord with the position advanced by counsel for the Crown or the defence; however, this is not dispositive of the issue because it is the trial judge’s role to charge the jury on all relevant questions of law that arise from the evidence: R. v. Pickton , 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 27. As this court instructed in R. v. Polimac , 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 97, leave to appeal refused, [2010] S.C.C.A. No. 263: Counsel’s position at trial is of course not determinative when misdirection or non-direction is raised as a ground of appeal. A legal error remains a legal error even if counsel does not object or even supports the erroneous instruction . [Citations omitted.] [28] By the same token, the law “is sensible”: a trial judge should not leave verdict options that a reasonable jury, properly instructed, could not arrive at. This would create “a breeding ground for confusion and compromise” and give the jury the option to make an unreasonable decision: Romano , at paras. 14-16; R. v. Wong (2006), 211 O.A.C. 201 (C.A.), at para. 12. [29] As this court stated in Ronald , at para. 43, the purpose of the “air of reality” test is “to focus the jury’s attention on the live issues actually raised by the evidence.” This reduces the risks of unreasonable verdicts, juror confusion, or improper compromise by jurors. [30] The overarching consideration for the trial judge in determining whether to leave included offences as verdict options for the jury is, as this court directed in Ronald , at para. 46, whether, on the totality of the evidence, the jury could reasonably be left in doubt with respect to an element of the main charge that distinguishes that charge from an included offence. This court reiterated in Ronald , at para. 42: There should be no instruction on potential liability for an included offence only when , on a consideration of the totality of the evidence and having due regard to the position of the parties and the proper application of the burden of proof, there is no realistic possibility of an acquittal on the main charge and a conviction on an included offence. [Citations omitted; emphasis added.] [31] Importantly, unlike positive defences, there is no evidentiary burden placed on the defence or Crown “to put the possibility of a conviction for the included offence … “in play””: Ronald , at para. 47. In other words, the appellants do not need point to evidence that supports inferences inconsistent with first degree murder. Rather, the trial judge must consider whether the jury could draw inferences, or not draw inferences from certain evidence, that could “open the door to a doubt” on an element such as planning and deliberation or murderous intent: Ronald , at para. 48. (ii) Did the trial judge err by not leaving the included offences of second degree murder and manslaughter to the jury? [32] In assessing whether the included offence of second degree murder should have been left to the jury, the question is whether “on the totality of the evidence, a reasonable jury could be left unconvinced, beyond a reasonable doubt, that the murder was planned and deliberate”: Ronald , at para. 47. Similarly, in assessing whether the included offence of manslaughter should have been left to the jury, the question is “if on all of the evidence there is an air of reality to a finding that the Crown had not proved beyond a reasonable doubt that the killer had either of the requisite intents required for murder”: Babinski , at paras. 45. [33] In my view, on the totality of the evidence, a reasonable jury could have been left in doubt on whether Mr. Caputo’s murder was planned and deliberate or whether Ms. Doxtator had the requisite intent required for murder. [34] In his charge to the jury, the trial judge set out the possible verdicts for Ms. Doxtator: guilty of first degree murder or not guilty of first degree murder. He reviewed the elements of the offence of first degree murder that the Crown was obliged to establish beyond a reasonable doubt. He related in detail circumstantial evidence that he instructed the jury might be relevant to planning and deliberation, as follows: · Jasmine and Richard Doxtator were in Joe Caputo’s apartment for twenty-five minutes, during which time blood was let from one end of the apartment to the other. · Jasmine had Joe pick her up at McDonald’s instead of going straight to his apartment. · Jasmine wanted to speak to Joe at his apartment instead of in a public place like McDonald’s. She testified that McDonald’s was closed, but it was not. · Richard did not enter the apartment with Jasmine. · Richard entered through the back door rather than the front. · After Joe was dead or dying, Richard and Jasmine stayed in the apartment for a few minutes to remove some items, and they locked the front door behind them. · They took some items that one might find in a wallet and returned for Jasmine’s cup and Joe’s cell phone. · They threw away the items from Joe’s apartment. · Richard Doxtator did not know Joe Caputo. · They drove from Hamilton, not staying to watch the movie they told [Ms. Doxtator’s cousin] about, and drove to Niagara Falls at a time when Jasmine had a beef with Joe Caputo, which Richard knew about. Jasmine says that they left the movie because it turned out not to be the one they expected. · Jasmine seems to be talking to Joe in a normal manner as they enter the apartment, if that is what you think it looks like – it is up to you of course. [35] The trial judge further instructed that another piece of circumstantial evidence related to planning and deliberation was the knife found in the borrowed Jeep and stated that “if Richard brought a knife with him to Joe’s, that is a factor that could be used when deciding whether planning and deliberation took place.” He went on to compare the size of the wound in Mr. Caputo’s heart to the width of the hunting knife found in the Jeep with Mr. Doxtator’s DNA on the handle. He referenced Dr. Fernandes’s testimony that “it is not likely that a knife of this width would cause such an injury, but he could not rule it out. The chest is compressible.” He noted that while the blood on the blade could not be profiled for DNA “Joe Caputo’s blood was not far away, in the same vehicle near the gearshift.” [36] The trial judge’s summary of the evidence contrary to planning and deliberation appears in the following short paragraph of the charge: The evidence contrary to planning and deliberation is found in Jasmine’s testimony. She said that she and [Richard] went to Joe’s so that she could tell Joe to stay away from her daughter. There was no plan for [Richard] to come in and kill Joe. There was no plan for [Richard] even to come in. He just knocked at the gate after she had been in the apartment for 15 or 20 minutes and Joe let him in. [37] The jury was not obliged to accept the Crown’s theory or the trial judge’s suggestions about the use that they could make of the circumstantial evidence to assess the elements of planning and deliberation. However, the jury was not instructed that it could also reasonably take the view that this evidence, considered with the rest of the evidence, in particular, Ms. Doxtator’s evidence, did not support the assertion that the murder was the product of a careful and considered scheme of the sort required to establish planning and deliberation. As this court reiterated in Ronald , at para. 50, “Not every act indicative of some preparation prior to the murder, or some degree of planning, points only to a finding that the murder was planned and deliberate, as that phrase is defined in the case law.” And there was the reasonable possibility that the jury would not draw any inference from some of the evidence that the trial judge suggested may be relevant to planning and deliberation: Ronald , at para. 46. [38] Similarly, with respect to the included offence of manslaughter, a properly instructed jury could have reasonable doubt whether Ms. Doxtator had the requisite intent for murder. A person may be convicted of manslaughter who lacks the requisite mens rea for murder but “aids and abets another person in the offence of murder, where a reasonable person in all the circumstances would have appreciated that bodily harm was the foreseeable consequence of the dangerous act which was being undertaken”: R. v. Jackson , [1993] 4 S.C.R. 573, at pp. 583. A reasonable view of the evidence could have led to the inference that while the appellants may have planned a violent physical encounter with Mr. Caputo, the appellants lacked murderous intent, and instead planned to assault or rob him. [39] Ms. Doxtator’s evidence, together with the forensic evidence, permitted the reasonable inferences that although the appellants previously did not plan and deliberate on killing Mr. Caputo, once in the apartment and embroiled in a conflict with him, Mr. Doxtator developed the intent to kill Mr. Caputo, which was shared by Ms. Doxtator, or that the planned physical confrontation escalated and led to his death. [40] Ms. Doxtator’s evidence was that she wanted to confront Mr. Caputo and tell him to stop stalking her daughter and that their friendship was over. She brought Mr. Doxtator along for security and support. A witness testified hearing a man raise his voice and something that reminded him of an argument between a husband and a wife. This is consistent with Ms. Doxtator’s evidence that she and Mr. Caputo became involved in a heated argument prior to the beginning of the physical altercation between Mr. Doxtator and Mr. Caputo. Ms. Doxtator said she left the apartment once the physical confrontation between Mr. Caputo and Mr. Doxtator began. There is no suggestion that she stabbed Mr. Caputo or that she provided the murder weapon. She testified she did not see Mr. Doxtator with the hunting knife. She said she ran out of the apartment with her hands over her ears and shutting her eyes. [41] The jury was entitled to accept some, none, or all of Ms. Doxtator’s evidence. The jury could have accepted Ms. Doxtator’s testimony that the appellants did not plan or deliberate on the murder of Mr. Caputo, while still rejecting Ms. Doxtator’s version of events of what happened once the appellants were at Mr. Caputo’s apartment or her claims that they were not planning to threaten him. As this court stated in Tenthorey , at para. 96: “The air of reality test does not include consideration of the reasonableness of a jury’s choices about what evidence to believe.” [42] Furthermore, the following evidence, some of which was referenced by the trial judge as supportive of planning and deliberation, is equally consistent with a panicked and desperate reaction to an unexpected killing: i. The apparent ransacking and bloodied footsteps all over the apartment. ii. The appellants leaving behind Ms. Doxtator’s cup and then returning to Mr. Caputo’s apartment. iii. The clumsy disposition of clothing in dumpsters close to premises where the appellants had recently stayed. iv. Mr. Doxtator’s increasingly desperate text messages that suggested he was looking for places to hide and to eventually leave the country. In particular, his text to Matt that, “I fucked up,” and his text to Harvey, “I’m in a jam and I needed a place to recoup, gather my thoughts and figure shit out….”. may be suggestive of someone who unintentionally committed a killing and are not suggestive only of someone who had committed a planned and deliberate killing. [43] The evidence related to the knife was also equivocal. While Dr. Fernandes did agree that the hunting knife could not be ruled out as the murder weapon, he recommended checking for other knives and agreed that the murder weapon could have been a larger kitchen knife, like a chef’s knife. He only ruled out a serrated knife. I also note that the trial judge appears to have misstated Dr. Fernandes’s evidence about the dimensions of the murder weapon. The trial judge stated: “According to Dr. Fernandes, it is not likely that a knife of this width would cause such an injury, but he could not rule it out. The chest is compressible.” While the compression of the chest was relevant to the length of the knife, such that Dr. Fernandes could not rule out a knife of the length of the hunting knife, it was not relevant to its width. As the trial judge correctly stated, Dr. Fernandes was of the view that because of its width, it was unlikely the hunting knife caused the fatal injury. [44] As in Ronald , at para. 58, the nature, speed and ferocity of the attack on the victim could equally suggest that the killer acted in a frenzied rage consistent with second degree murder. [45] The evidence outlined above does not exclude the reasonable inference that Mr. Caputo’s murder was planned and deliberate. That inference was available on the evidence. However, the question is not whether the evidence points more strongly to second degree murder or manslaughter than planning and deliberation. As I have stated, the correct question is whether a reasonable jury, properly instructed, could have a doubt as to whether Ms. Doxtator had planned and deliberated the murder of Mr. Caputo or had the requisite murderous intent: Ronald , at para. 59. [46] If the jury had a reasonable doubt about planning and deliberation for Mr. Caputo’s murder and even the presence of a murderous intent for Ms. Doxtator, but had no doubt about her participation in an unlawful act – assault or robbery – they were faced with only one option: an outright acquittal. This left the jury with a stark choice. Given the defence concession that Mr. Doxtator stabbed Mr. Caputo, as the Nova Scotia Court of Appeal suggested in R. v. MacLeod , 2014 NSCA 63, 346 N.S.R. (2d) 222, at para. 89, aff’d 2014 SCC 76, [2014] 3 S.C.R. 619, the jury “may have considered an outright acquittal not only quite unpalatable in the circumstances, but contrary to a considerable body of evidence suggesting that [the appellants knew they] had engaged in a blameworthy act”. [47] To be fair to the trial judge, his initial instinct that there was an air of reality to manslaughter for Ms. Doxtator was correct. Ms. Doxtator’s defence counsel was adamant that the evidence did not support the verdicts of second degree murder or manslaughter. However, the insistence of defence counsel was not determinative in the circumstances of this case where the evidence gave rise to other reasonable inferences than planning and deliberation or murderous intent. As this court reiterated in R. v. Chambers , 2016 ONCA 684, 342 C.C.C. (3d) 285, at para. 70, citing Polimac , at para. 97: “A legal error remains a legal error irrespective of trial counsel’s position”. See also Kostyk , at paras. 40 and 42. [48] This is not to say that defence counsel’s position at trial is irrelevant. As this court instructed in R. v. Chalmers , 2009 ONCA 268, 243 C.C.C. (3d) 338, at para. 52, the question of whether included offences should have been left with the jury “must be assessed in light of both the strength of the evidence relied on and the concessions made and position taken by the defence ” at trial (emphasis added). However, the present case is not like Chalmers (and other similar cases), where this court, at para. 66, found the air of reality of the verdict of manslaughter to be “marginal at best” and did not permit the appellant “to paddle downstream on appeal when one has paddled vigorously upstream at trial”: at para. 51. In Chalmers , the position of the appellant, who was convicted of the second degree murder of his wife, was that he did not cause his wife’s death but it was caused by accident or a third party. His counsel approved the charge that if the jury found Mr. Chalmers had caused his wife’s death, murderous intent was conceded. In the present case, for the reasons stated above, there was an air of reality to the potential verdicts of manslaughter and second degree murder. Further, the appellants only conceded that Mr. Doxtator stabbed Mr. Caputo, causing his death. Importantly, there was no concession that if Ms. Doxtator was somehow involved in the killing of Mr. Caputo, it was a planned and deliberate murder. [49] In my view, on the totality of this evidence, a reasonable jury could have been left unconvinced, beyond a reasonable doubt, that the murder was planned and deliberate or that Ms. Doxtator had the requisite intent to kill Mr. Caputo. As a result of this potential uncertainty, in addition to an acquittal, the jury could have returned a verdict of not guilty of first degree murder, but guilty on the included offences of either manslaughter or second degree murder. (iii) Does the curative proviso apply? [50] The Crown submits that the curative proviso found in s. 686(1)(b)(iii) of the Criminal Code , R.S.C., 1985, c. C-46, should be applied to correct any errors the trial judge made. I do not agree. [51] This court in Ronald , at para. 65, recently explained the availability of the proviso in the context of an erroneous failure to leave with the jury a possible verdict that arises on the evidence: Section 686(1)(b)(iii) of the Criminal Code provides that this court may dismiss an appeal despite an error in law if satisfied that the error caused no substantial wrong or miscarriage of justice. The burden is on the Crown to show either that the legal error was so minor as to be “harmless”, or the evidence was so overwhelming as to satisfy the court that the verdict would necessarily have been the same had the error not been committed. [Citations omitted.] [52] The curative proviso will generally not be available in cases where included offences (in this case, lesser offences) are not left with the jury and the jury convicts of a more serious offence. This is because a failure to leave included offences that have an air of reality can seldom be said to be harmless or to have caused no substantial wrong or miscarriage of justice. As this court in Ronald explained, a determination that the included offences should have been left with the jury because there was a realistic possibility of an acquittal on the full offence is incompatible with a determination that the evidence supporting the conviction on the full offence was “overwhelming”. Further, the verdict may have been different if the jury had been presented with “the full menu of legally available verdicts”: Ronald , at paras. 66-67. See also R. v. Sarrazin , 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 31. [53] That is not to say that courts never apply the curative proviso to the erroneous failure to leave a possible verdict on an included offence. For example, in Chalmers , this court found there was no substantial wrong or miscarriage of justice when the trial judge did not leave the included offence of manslaughter with the jury and the jury convicted Mr. Chalmers of second degree murder. However, as the court noted, the argument that the trial judge made a reversible error “is only as strong as the air of reality relating to the defence sought to be raised”: at para. 58. The omission in Chalmers was found to be harmless in the circumstances of that case because the air of reality to manslaughter was “marginal at best” and the defence had conceded the issue of intent: at paras. 64-66. Those are not the circumstances of the present case. [54] I do not accept Crown counsel’s submission that this is an appropriate case where the court can take into account findings of fact implicit in the jury’s verdict of first degree murder to cure any error to leave with the jury the possible verdicts of the lesser and included offences. Specifically, the Crown argues that the jury’s verdict of first degree murder for the appellants demonstrates that the jury rejected Ms. Doxtator’s evidence that the appellants did not plan and deliberate to kill Mr. Caputo. As this court noted in Ronald , at para. 68, the court can account for “findings of fact implicit in the verdict or verdicts returned by the jury as long as those verdicts are not tainted by the legal error , and those findings are unambiguously revealed by the verdict ” (emphasis added).The difficulty is that in this case the jury’s verdict is tainted by the erroneous omission of the included offences for Ms. Doxtator. If the included offences had been left to the jury, the trial judge would have provided appropriate instructions about the evidence that could have given rise to reasonable doubt in the jury’s minds about planning and deliberation. [55] Nor am I persuaded by Crown counsel’s submission that the structure of the charge made any difference. While the trial judge reviewed in his instructions the offences alleged against Mr. Doxtator first before turning to those charged against Ms. Doxtator, and the jury was properly instructed to consider and render separate verdicts for each appellant, the evidence in relation to the charges was the same for both of them. It would be artificial to suggest that the jury would not have reviewed the evidence as a whole in considering the respective verdicts for each accused. [56] In my view, the Crown cannot satisfy its burden in the circumstances of this case. The Crown’s case on planning and deliberation and murderous intent was not overwhelming and, as I earlier explained, the supporting evidence was potentially equivocal. The failure to leave the other verdicts could not be said to be harmless. The jury instructions wrongly narrowed the proper scope of the jury’s deliberations. Not all verdicts reasonably available on the evidence were left with the jury for its consideration. [57] There is a real likelihood that the jury, left only with the choice of convicting Ms. Doxtator of first degree murder or declaring her not guilty, would opt for the verdict that attributed some responsibility to her for Mr. Caputo’s death. It cannot be said that, had the jury been left with other possible verdicts that would have held her accountable, either manslaughter or second degree murder, the jury would necessarily have still convicted her of first degree murder: Ronald , at paras. 66-67; R. v. Haughton , [1994] 3 S.C.R. 516, at pp. 516-17; Sarrazin , at para. 31. [58] As a result, I would not accede to Crown’s counsel request that we apply the curative proviso found in s. 686(1)(b)(iii) of the Criminal Code . The trial judge’s failure in this case to leave the potential verdicts of second degree murder and manslaughter with the jury for Ms. Doxtator led to “a substantial wrong or miscarriage of justice”. [59] I would therefore order a new trial for Ms. Doxtator. (iv) Should Mr. Doxtator also be granted a new trial? [60] In my view, Mr. Doxtator should also have a new trial. [61] That there were no objections to, or errors identified in, the trial judge’s instructions to the jury with respect to the offences against Mr. Doxtator is not dispositive of this issue. As Crown counsel frankly acknowledged during oral argument, if the included offences of second degree murder and manslaughter had been left to the jury for Ms. Doxtator, the trial judge’s instructions would have been different with respect to Mr. Doxtator. [62] The Crown’s case against the appellants for first degree murder was structured and presented to the jury as a package. There was no theory put forward that Mr. Doxtator planned and deliberated on the murder of Mr. Caputo without Ms. Doxtator or vice versa . Mr. Doxtator’s defence relied on Ms. Doxtator’s evidence and her acquittal. If she were convicted of first degree murder, his conviction for first degree murder would inevitably follow. The jury was not left with instructions to consider the alternative possibility that Mr. Doxtator killed Mr. Caputo in the heat of the moment rather than in self-defence. If the jury rejected self-defence for Mr. Doxtator, given the way the charge was left for Ms. Doxtator, there was only a straight line to first degree murder for him and no other pathways to the lesser and included offences of second degree murder and manslaughter. [63] If the trial judge had left to the jury the included offences of manslaughter and second degree murder for Ms. Doxtator, the charge for Mr. Doxtator would have been much broader than the focus on self-defence in terms of the possible routes to manslaughter or second degree murder. The charge could have included another view of the evidence that the appellants had planned a violent encounter with the purpose of assaulting or robbing Mr. Caputo that ended in his stabbing. With this broader instruction, at the very least, the jury could have had a reasonable doubt of Mr. Doxtator’s planning and deliberation of Mr. Caputo’s killing. [64] This situation is similar to that in Ronald , where this court found that the failure to leave second degree murder with the jury for one appellant tainted the verdict of the other. In that case, by not leaving second degree murder for the principal, the trial judge effectively removed a basis upon which the appellant alleged of aiding and abetting was asking the jury to find that the principal acted alone: at paras. 73-74. While the present appeal deals with the inverse factual scenario because all routes of liability were left with Mr. Doxtator, the person who caused Mr. Caputo’s death, the effect of the error in Ms. Doxtator’s instruction was similar. The failure to leave second degree murder and manslaughter for Ms. Doxtator narrowed the instructions for Mr. Doxtator and weakened his position that he was not guilty of first degree murder. [65] As a result, it cannot be said the verdict for Mr. Doxtator would have been the same. At the very least, a properly instructed jury could have reasonably returned a verdict of second degree murder for Mr. Doxtator. The interests of justice therefore dictate that Mr. Doxtator have a new trial. Disposition [66] For these reasons, I would allow the appeals and order a new trial for both appellants. “L.B. Roberts J.A.” “I agree. B.W. Miller J.A.” MacPherson J.A. (dissenting): [67] I have had the opportunity to review the reasons prepared by my colleague in this appeal. She would allow the appeal and order a new trial for both Mr. Doxtator and Ms. Doxtator on the basis that the trial judge erred by not putting second degree murder and manslaughter to the jury for Ms. Doxtator and that this failure affected Mr. Doxtator’s charge as well. [68] I will consider Mr. Doxtator’s appeal first and then will consider Ms. Doxtator’s appeal. I would dismiss Mr. Doxtator’s appeal and allow Ms. Doxtator’s appeal. Mr. Doxtator’s appeal [69] With respect, I do not agree with my colleague’s conclusion that the trial judge’s failure to put second degree murder and manslaughter to the jury for Ms. Doxtator negatively impacted Mr. Doxtator’s charge. My colleague states her conclusion for Mr. Doxtator as follows: The failure to leave second degree murder and manslaughter for Ms. Doxtator narrowed the instructions for Mr. Doxtator and weakened his position that he was not guilty of first degree murder. [70] For two reasons, I do not agree with this conclusion. [71] First, the trial judge instructed the jury that Ms. Doxtator’s culpability should be considered separately from Ms. Doxtator’s and that the verdict for each need not be the same. He instructed that what Ms. Doxtator said to the police is evidence for and against her and “is not evidence against Richard Doxtator”. He instructed that Ms. Doxtator’s statement was not to be considered when deciding Mr. Doxtator’s case. He laid out the available verdicts for Mr. Doxtator and then separately laid out the available verdicts for Ms. Doxtator. [72] Second, and crucially, the charge in relation to Ms. Doxtator did not narrow the instructions for Mr. Doxtator or weaken his position because the trial judge instructed the jury to consider Mr. Doxtator’s charges of first degree murder, second degree murder and manslaughter before considering Ms. Doxtator’s charge of first degree murder. [73] The trial judge in his charge told the jury that they “must consider each accused person separately” and that in the charge he would “deal with Richard and Jasmine Doxtator separately, starting with Richard”. The trial judge instructed the jury on the available verdicts for Mr. Doxtator first, before saying that “[i]f Jasmine Doxtator agreed with Richard Doxtator to go to Niagara Falls and kill Joe Caputo, and took time to deliberate on that plan and carried out her role … she, too, is guilty of first degree murder.” [74] This language clearly indicates that Mr. Doxtator’s conviction was to be decided before Ms. Doxtator’s. For Ms. Doxtator to be convicted of first degree murder, the jury must have accepted that the Crown proved beyond a reasonable doubt that Mr. Doxtator caused Mr. Caputo’s death and that the death was unlawful. Only after making these determinations was the jury instructed to consider Ms. Doxtator’s involvement. [75] The factual scenario is similar to that in R. v. Campbell , 2020 ONCA 221, where this court found that a new trial need not be ordered because of errors in the jury charge because “the jury would only have reached consideration of whether the shooting was planned and deliberate after concluding that the appellants caused [the] death and had the requisite intent for murder”: at para. 52. In the case at bar, the jury would have reached consideration of whether Ms. Doxtator was guilty of first degree murder only after concluding that Mr. Doxtator was guilty of first degree murder. We know this because that is what the jury charge instructed. [76] Accordingly, my colleague’s conclusion that if Ms. Doxtator was convicted of first degree murder, Mr. Doxtator’s conviction for first degree murder would inevitably follow is, in a word, backwards. The fact that the instruction required the jury to decide on Mr. Doxtator’s guilt before considering Ms. Doxtator’s means that Mr. Doxtator’s conviction could not have been influenced by Ms. Doxtator’s conviction. [77] The structure of my colleague’s reasons is antithetical to the way the jury charge was structured at trial. Instead of considering Mr. Doxtator’s case first, as the trial judge instructed the jury, my colleague devotes 59 paragraphs to considering Ms. Doxtator’s case first. In very brief reasons (six paragraphs), she then allows those reasons to influence her assessment of Mr. Doxtator’s case. This is the inverse of how the trial judge instructed the jury. [78] My colleague does not take issue with any wording in Mr. Doxtator’s jury charge. While she says that Mr. Doxtator’s charge could have been broader and could have included another view of the evidence, there is no error identified. Indeed, there is no such error in Mr. Doxtator’s jury charge. Accused persons are entitled to a proper jury charge, not a perfect one: R. v. Jacquard , [1997] S.C.R. 134, at para. 2; R. v. Alvarez , 2021 ONCA 851, at para. 80. This court has also held that appellate courts “are not forensic pathologists dissecting the corpus of a charge in search of a disease process … [o]ur task is to administer justice, to deal with valid objections and to determine whether those claims have led to a miscarriage of justice”: R. v. Luciano , 2011 ONCA 89, at para. 71. In this case, there was no miscarriage of justice. The jury was instructed to consider Mr. Doxtator’s charges and Ms. Doxtator’s charges separately. Ms. Doxtator’s instructions were not to play a role in Mr. Doxtator’s conviction. Mr. Doxtator’s conviction for first degree murder would not inevitably follow Ms. Doxtator’s conviction – and would not follow her conviction at all – because his conviction was to be considered before Ms. Doxtator’s and because there was no error in his charge. [79] Given the jury instruction was proper for Mr. Doxtator, it does not matter that Mr. Doxtator and Ms. Doxtator were tried as co-accused, even if the Crown presented the case against the appellants to the jury as a package. This court has held that “[a]n accused’s right to a fair trial does not … entitle that accused to exactly the same trial when tried jointly as the accused would have had had he been tried alone” so long as each joint accused is afforded “the constitutional protections inherent in the right to a fair trial”: see R. v. Suzack (2000), 128 O.A.C. 140 (C.A.), at para. 111. The Crown presenting the case as a package did not affect the co-accused’s fair trial rights, even if the case may have been presented differently were the co-accused tried separately. This is because the trial judge properly instructed the jury and did not present the co-accused’s case to the jury as a package in his instructions. [80] I do not agree that this situation is similar to that in R. v. Ronald , 2019 ONCA 971. As my colleague notes, the present appeal deals with the inverse factual scenario because all routes to liability were left with Mr. Doxtator. In cases where a party to a crime has received a new trial, it is when there was an error in the jury charge of the co-accused who caused the death (the “prime mover”): see Ronald ; R. v. Nygaard , [1989] 2 S.C.R. 1074. In this case, Mr. Doxtator was the prime mover because he caused Mr. Caputo’s death. In Ronald and Nygaard , courts were avoiding an incongruous result: that the non-moving party, absent a new trial, would risk receiving a greater conviction than the moving party who was entitled to a new trial. Here, there was no issue with the prime mover, Mr. Doxtator’s, jury charge. There is no risk that Ms. Doxtator – even if she were to receive a new trial – would receive a greater conviction than Mr. Doxtator. Therefore, the principles in Ronald do not apply. [81] The assumption must be that the jury correctly followed the proper instruction absent evidence to the contrary. This court has instructed that “courts must proceed on the basis that juries accept and follow the instructions given to them by the trial judge”: Suzack , at para. 128. Given that the instruction properly indicated to the jury that Mr. Doxtator’s charge was to be considered before moving on to Ms. Doxtator’s charge, it must be assumed that the jury correctly followed the instructions and considered Mr. Doxtator’s charge first. Ms. Doxtator’s appeal [82] I agree with my colleague that Ms. Doxtator deserves a new trial. As my colleague outlines, there is an air of reality that Ms. Doxtator committed second degree murder or manslaughter. The trial judge erred by failing to put this charge to the jury. I agree with my colleague’s reasons on this issue. Disposition [83] I would dismiss Mr. Doxtator’s appeal and allow Ms. Doxtator’s appeal. I would order a new trial for Ms. Doxtator. Released: February 22, 2022 “J.C.M.” “J.C. MacPherson J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Isaac, 2022 ONCA 156 DATE: 20220217 DOCKET: M53203 (C68663) Paciocco J.A. (Motions Judge) BETWEEN Her Majesty the Queen Respondent and Joshua Isaac Applicant/Appellant Margaret Bojanowska, for the applicant/appellant Jennifer Conroy, for the respondent Heard: February 16, 2022 by video conference REASONS FOR DECISION [1] On February 28, 2017, Mr. Joshua Isaac was arrested and charged with offences arising from an investigation into narcotics trafficking. He was released pending trial and complied with the terms of his release. On January 20, 2020, Mr. Isaac was convicted of two counts of possession of Schedule I narcotics for the purpose of trafficking, and one count of possession of the proceeds of crime, arising from the February 28, 2017 charges. The narcotics consisted of cocaine and a heroin/fentanyl mix. On October 2, 2020, Mr. Isaac was sentenced to 6 years imprisonment less three months pre-sentence custody for those offences, which for ease of reference I will call “the drug trafficking charges”. The Crown consented to Mr. Isaac’s bail release pending his appeal of those convictions and he was released that day. [2] On June 24, 2021, the police searched an apartment, locating two firearms. On October 2, 2021, having been instructed by police to do so, Mr. Isaac surrendered into custody and was charged with three firearms offences relating to one of those firearms. He was also charged with possession of property obtained by an indictable offence over $5,000 and failing to comply with his bail release order described in paragraph 1. For ease of reference, I will describe these charges against Mr. Isaac as “the firearms charges”. [3] Mr. Isaac has now secured bail release in connection with the firearms charges. Due to the firearms charges, however, his bail release pending appeal on the drug trafficking charges was not renewed after it expired. He now applies for bail release pending appeal on the drug trafficking charges. He bears the onus on this application. [4] The Crown strongly contests Mr. Isaac’s release. The Crown does not rely directly on the primary or secondary ground, but urges that lingering concerns relating to whether Mr. Isaac would attend court as required, and whether he would commit further offences if released, are relevant to the tertiary grounds which is the focus of the Crown’s concern. The Crown does not suggest that the public safety leg of the tertiary ground requires his detention on its own, but argues that, in all the circumstances, Mr. Isaac’s detention is necessary to maintain confidence in the administration of justice. It submits that the grounds of appeal Mr. Isaac offers are not strong enough for the reviewability interest to overcome the enforcement interest. [5] To assist in their submissions, both Mr. Isaac and the Crown have made liberal mention of a decision I rendered denying bail pending appeal to Mr. Jamal Daye. Mr. Daye was one of two men who was also convicted alongside Mr. Isaac of drug trafficking charges arising from the investigation that led to Mr. Isaac’s drug trafficking convictions, which are the subject of the instant appeal: R. v. Daye , 2021 ONCA 671. There are parallels between the two bail pending appeal applications because Mr. Daye was also arrested and charged with firearms offences in connection with the June 24, 2021 search that led to the firearms charges against Mr. Isaac. Mr. Daye’s bail pending appeal, which had also been initially granted on consent, was revoked as the result of Mr. Daye’s firearms charges. When he applied again to be released pending appeal, I denied his application. The Crown argues that the decision in Daye resolves most of the issues raised by Mr. Isaac in his application to be released pending appeal and therefore points the way. Mr. Isaac submits that his case is materially different than Mr. Daye’s case because his appeal relating to the drug trafficking charges is stronger than Mr. Daye’s is, and the case against him on the firearms charges is weak, whereas the case against Mr. Daye on the firearms charges is overwhelming. [6] I want to make clear that there is only limited utility that arises from my decision in Daye . I will determine Mr. Isaac’s bail application on its own right in its own circumstances, based on the legal considerations that apply. [7] With respect to the reviewability interest, Mr. Isaac raises grounds of appeal relating to the drug trafficking charge that clearly surpass the “not frivolous” criterion. His contention that the trial judge erred in failing to conduct a s. 24(2) analysis after finding a s.10(b) breach is certainly a credible ground of appeal, although Mr. Isaac does face the prospect that an appeal panel, even if persuaded that there has been an error, could find that the evidence was properly admitted. Mr. Isaac also presents credible grounds of appeal relating to s. 11(b), which could, if successful, require the drug trafficking charges against him to be stayed. His grounds of appeal relating to sentence clearly surpass the minimal standard of not frivolous. Once again, however, even if errors of law or principle or law are identified, the sentence imposed could still be affirmed. Put simply, Mr. Isaac’s grounds of appeal are clearly not frivolous, but the success of those grounds of appeal is far from certain. [8] The parties agree that this appeal can be perfected promptly and heard without long delay. This reduces to some degree the risk that Mr. Isaac could languish in custody pending what could be a successful and dispositive appeal, but I must bear in mind that it is a matter of concern whenever any time is spent in custody before potentially successful grounds of appeal can be reviewed. [9] In terms of the enforceability interest, the drug trafficking charges are serious and generally carry a significant sentence. These factors can require that a premium be placed on the enforceability interest, but not always. A more subtle evaluation is required, lest bail pending appeal always be denied for serious charges. In R. v. Oland , [2017], 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 50, Moldaver J. noted that where crimes are serious “the public interest in enforceability will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear to be weak”. However, he observed, at para. 66, that “where there are no public safety or flight concerns and the grounds of appeal clearly surpass the “not frivolous” criterion, a court may well conclude that the reviewability interest overshadows the enforceability interest such that detention will not be necessary in the public interest”. [10] I have already made plain that Mr. Isaac’s grounds of appeal are not weak, but nor are they strong. The factors requiring closer examination relating to the public confidence evaluation are concerned with whether there are lingering flight and public safety concerns, and if so, how intense those concerns are. [11] The Crown grounds its submissions about a lingering flight concern on Mr. Isaac’s 2016 “fail to attend court” conviction, and the delay that occurred when he was asked to surrender on the firearm charges. A fail to attend court conviction is always concerning, but it is evident that Mr. Isaac’s conviction did not involve flight. He received one day in jail for the offence, consistent with a failure to attend on a set date. The impact of the failure by Mr. Isaac to surrender immediately on the firearms charges is blunted by the Crown’s appropriate concession in accepting Mr. Isaac’s counsel’s assurance that she was negotiating and arranging Mr. Isaac’s terms of surrender during this period, hence the delay in surrendering. Moreover, the fact that Mr. Isaac did surrender materially reduces any concern I have that he might flee pending his appeal. Therefore, flight concerns play only a minimal role in my ultimate determination. [12] However, there are lingering public safety concerns. There is evidence of Mr. Isaac’s readiness to engage in drug trafficking, based on his prior trafficking conviction in 2016 and the fact that he is no longer presumed innocent of the trafficking charges that are the subject of this appeal. Those public safety concerns are aggravated by the firearms charges Mr. Isaac now faces, which are alleged to have occurred in breach of this court’s prior bail pending appeal order. [13] I agree with Mr. Isaac that the firearms charges against Mr. Isaac are circumstantial and not as strong as the firearms charges that Mr. Daye faces. But I do not share Mr. Isaac’s contention that the firearms charges are weak. It is not my role to conduct a minitrial on those charges, but I must look realistically and in a broad way at the strength of the charges. In this case, there is real reason to be concerned that the alleged firearms offences may well have occurred. The Crown has evidence that Mr. Isaac was connected to the apartment where the firearm was found and that the firearm was discovered in a satchel that can be circumstantially tied to Mr. Isaac. Although Mr. Isaac is presumed to be innocent of the firearms charges, there is a rational and real basis for concern that he may well have committed a serious firearms offence while on bail pending appeal. [14] Moreover, although Mr. Isaac’s surety is suitable and prepared to pledge her entire savings to assist Mr. Isaac, I have concerns about the position she will be put in if Mr. Isaac breaches his terms of release. The surety is Mr. Isaac’s girlfriend’s mother. It is proposed that Mr. Isaac live in her residence, where his girlfriend also resides. This is the same residence he was required to live at under the terms of his previous bail pending appeal release order that he is alleged to have breached. Moreover, Mr. Isaac’s girlfriend was a surety for Mr. Isaac on that previous bail pending appeal order, and there is evidence before me that when the police were seeking Mr. Isaac in September 2021 at a time of day when he was required to be at that residence, he was not there. This information not only provides additional evidence that Mr. Isaac breached the terms of  his prior release pending appeal, it is also evidence that his girlfriend, despite being a surety, refused to provide the police with contact information. I appreciate that the girlfriend’s mother – the proposed surety – bore no legal responsibility at the time for controlling Mr. Isaac, and I do not wish to be taken as suggesting that she did anything wrong. I do have concerns, however, that given the girlfriend’s demonstrated loyalty to Mr. Isaac and given her presence in the residence where Mr. Isaac will be supervised, the dynamic may not be conducive to effective supervision on the proposed surety’s part. [15] I have considered the strict bail release terms that have been proposed, including the ankle monitoring plan, with both its strengths and limitations. However, the ultimate focus in this application is on the impact of my decision on public confidence in the administration of justice, in the eyes of a reasonable person who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values. In my view, the spectre of disrepute looms large when an appellant who has already been released on bail pending appeal and who is no longer presumed to be innocent of the charges under appeal, seeks to be re-released after being arrested based on credible evidence that he committed a serious offence despite being on conditions of bail. [16] In my view, a reasonable person would be seriously troubled by the re‑release of Mr. Isaac, a prior drug trafficking offender, pending appeal from conviction of a serious drug trafficking charge given the following circumstances: the appeal, though credible, is not particularly strong; there is reason to believe that Mr. Isaac violated the curfew condition of his prior terms of release; Mr. Isaac has been rearrested while on bail release on credible firearms charges; and Mr. Isaac’s bail release plan depends on supervision by his girlfriend’s mother in a residence where his girlfriend resides, and his girlfriend has demonstrated greater loyalty to Mr. Isaac than she did to her oath as a surety. In my view, a reasonable person would conclude that re-release pending appeal in such circumstances is ill-advised. Mr. Isaac has not met his onus in the circumstances of showing that his release pending appeal would not diminish public confidence in the administration of justice. [17] Mr. Isaac’s application for bail pending appeal is denied. “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Martin, 2022 ONCA 157 DATE: 20220218 DOCKET: C69776 Fairburn A.C.J.O., Miller and George JJ.A. BETWEEN Her Majesty the Queen Respondent and Malcolm Martin Appellant Marianne Salih and Jeffery Couse, for the appellant Stephanie A. Lewis, for the respondent Heard: In writing On appeal from the sentence imposed by Justice Kofi N. Barnes of the Superior Court of Justice on June 30, 2021, with reasons reported at 2021 ONSC 4711. REASONS FOR DECISION [1] The appellant and a co-accused were alleged to have committed a serious aggravated assault. After a preliminary inquiry, the co-accused pleaded guilty and received a 13-month custodial term. The appellant continued to trial. The appellant was convicted after a three-day, judge-alone trial in the Superior Court of Justice. He was then sentenced to a 21-month custodial term, which reflected a three month reduction from an otherwise fit sentence to account for what the sentencing judge described as onerous bail conditions. [2] This is an appeal from sentence predicated on a single issue: did the sentencing judge err in his application of the parity principle? [3] As described by the sentencing judge, in an entirely unprovoked attack, the appellant and his co-accused beat a defenceless man outside of a bar. That attack included sucker punching the victim and stomping on him with their feet. The victim suffered serious injuries, including a fractured orbital bone and bleeding to the brain. Not only was he hospitalized for four days, but his injuries were long lasting, with serious professional and personal implications. [4] At the sentencing proceeding, the court was informed through oral submissions that the appellant’s co-accused, who apparently has a “criminal record”, the content of which is unknown, received a 13-month sentence. The co-accused’s guilty plea was entered after the preliminary inquiry. [5] The appellant argues that the sentencing judge erred by failing to give effect to the parity principle when imposing the sentence. While the appellant acknowledges that the sentencing judge properly adverted to and described the parity principle, he contends that, on the face of the sentences imposed and the purported gulf between them, there is a clear misapplication of that principle. Given their almost identical roles in the crime, the appellant maintains that his sentence should not have been almost twice that of his co-accused, particularly since his co-accused has a criminal record and he does not. Therefore, he asks this court to set aside his sentence and impose a sentence of 15-months in duration. We decline to do so. [6] The sentencing judge’s reasons are lengthy. Those reasons demonstrate a good grasp of the parity principle. They also demonstrate that the sentencing judge was aware of the sentence imposed on the co-accused and alert to its relevance in the context of his sentencing decision. The sentencing judge’s reasons also demonstrate that he understood that the fact that the appellant chose to have a trial, as was his right, could not be used as an aggravating factor on sentence. The sentencing judge made clear that the absence of a guilty plea simply meant that the appellant did not have access to an otherwise mitigating factor that his co-accused could lay claim to. [7] Accordingly, the issue on this appeal comes down to whether the sentence imposed, when compared with that of the co-accused, offends the principle of parity. It does not. [8] The parity principle required the sentencing judge to consider both the sentence imposed upon the co-accused, as well as sentences imposed on others in like circumstances. He also had to take into account all other sentencing factors operative in this case, including the predominant sentencing principles of denunciation and deterrence. [9] In our view, after engaging in a lengthy discussion of all the operative sentencing principles, the sentencing judge reached a conclusion that he was entitled to arrive upon: This attack was unprovoked, violent and vicious. The victim continues to suffer from his injuries. [The appellant’s] excellent prospects for rehabilitation and crime free record while on bail is not discounted; however, the paramount sentencing principle in this case is denunciation and deterrence. Upon considering all of the circumstances of [the appellant] and the offence, which of necessity includes the aggravating and mitigating factors in this case, including the sentence received by his co principal after a guilty plea , I conclude that the appropriate sentence is one of two years in the penitentiary. Had the sentence qualified for consideration as a conditional sentence, such an order would have been inconsistent with the principles of denunciation and deterrence. [The appellant] shall receive credit of three months for a lengthy crime-free and emotionally onerous time spent on bail. In effect, he shall serve an additional sentence of 21 months in custody. [Emphasis added.] [10] It was open to the sentencing judge to reach this conclusion. We see no error in principle and the sentence is not demonstrably unfit. Deference is operative. [11] Leave to appeal sentence is granted, but the appeal is dismissed. “Fairburn A.C.J.O.” “B.W. Miller J.A.” “J. George J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Carvalho v. Amorim, 2022 ONCA 158 DATE: 20220218 DOCKET: C69476 Trotter, Coroza and Favreau JJ.A. BETWEEN Daniel Carvalho Applicant (Respondent) and Maria Amorim and The Labourers’ Pension Fund of Central and Eastern Canada Respondents ( Appellant / Respondent ) Patrick Di Monte, for the appellant Eli Smolarcik, for the respondent Daniel Carvalho Demetrios Yiokaris, for the respondent The Labourers’ Pension Fund of Central and Eastern Canada Heard: February 14, 2022 by video conference On appeal from the judgment of Justice William S. Chalmers of the Superior Court of Justice, dated April 16, 2021. REASONS FOR DECISION [1] After hearing submissions on behalf of the appellant, Maria Amorim, we advised the parties that the appeal would be dismissed with reasons to follow. These are our reasons. [2] Ms. Amorim appeals a judgment declaring that she does not meet the eligibility requirements of a “spouse” under s. 44 of the Pension Benefits Act , R.S.O. 1990, c. P.8. The application judge based his decision on a finding that Ms. Amorim and the respondent, Daniel Carvalho, were living “separate and apart” at the time Mr. Carvalho started receiving disability benefits from the respondent, The Labourers’ Pension Fund of Central and Eastern Canada (the “Pension Fund”). [1] The effect of this finding is that Ms. Amorim is not entitled to survivor pension benefits and that Mr. Carvalho is entitled to “life-only” benefits, which are paid out at a higher rate than “joint and survivor” benefits. [3] We see no error in the application judge’s decision. [4] Mr. Carvalho and Ms. Amorim married in 1980. At the time, they were both residents of Portugal. They had one child together. Mr. Carvalho moved to Canada in 1985. Ms. Amorim joined Mr. Carvalho in Canada in 1990, but she returned to Portugal two months later. Mr. Carvalho traveled to Portugal from time to time, but he worked and lived in Canada while Ms. Amorim lived in Portugal. The couple commenced divorce proceedings in Portugal during 2007-2008, and they were formally divorced on July 14, 2009. [5] In August 2002, Mr. Carvalho applied to the Pension Fund for a disability pension. At the time, he advised the Pension Fund that he was legally married, but provided a waiver allegedly signed by Ms. Amorim waiving her right to a spousal survivor pension. [6] In 2008, at the time of the divorce proceedings, Ms. Amorim appointed her brother, Leonel Amorim, as her attorney for property in Canada. Mr. Amorim contacted the Pension Fund to enquire about whether Mr. Carvalho had applied for a pension. In the context of those communications, Mr. Amorim advised the Pension Fund that Ms. Amorim had never signed a spousal waiver. The Pension Fund subsequently reduced Mr. Carvalho’s monthly payments to the joint and survivor benefit rate and notified him that he would be required to repay the overpayment unless he could prove that Ms. Amorim signed the waiver or that he and Ms. Amorim were living separate and apart when his pension began. [7] Mr. Carvalho brought an application to the Superior Court. The two issues to be decided on the application were 1) whether Mr. Carvalho and Ms. Amorim had been living separate and apart at the time Mr. Carvalho started receiving his pension and, alternatively, 2) whether Ms. Amorim signed the spousal waiver. [8] On the first issue, the application judge found, based on the evidence before him, that Mr. Carvalho and Ms. Amorim were living separate and apart at the time Mr. Carvalho started receiving pension benefits. On the second issue, the application judge found that Ms. Amorim did not sign the waiver. Nevertheless, given his finding that Mr. Carvalho and Ms. Amorim were living separate and apart at the relevant time, the application judge made declarations that Ms. Amorim did not meet the eligibility requirements of a spouse under the Pension Benefits Act and that Mr. Carvalho was entitled to pension benefits on a “life-only” basis. On the issue of costs, the application judge found that this was an appropriate case for an order of no costs, given that Mr. Carvalho misrepresented to the Pension Fund that Ms. Amorim had signed the spousal waiver. [9] In seeking to appeal the application judge’s decision, Ms. Amorim argues that the application judge erred in finding that she and Mr. Carvalho were living separate and apart in 2002. [10] On appeal, errors of law are to be reviewed on a standard of correctness. Factual findings and issues of mixed fact and law are owed deference and are only to be overturned if the application judge made a palpable and overring error: Housen v. Nikolaisen , 2002 SCC 33, at paras. 8, 10. [11] As conceded by Ms. Amorim, the application judge started with the correct legal test. Section 44(1) of the Pension Benefits Act provides that every pension paid to a member who has a spouse is to be paid out on a “joint and survivor pension” basis unless, pursuant to s. 44(4)(b), the member and his or her spouse are living “separate and apart” on the date that the first pension payment is due. [2] In determining whether Mr. Carvalho and Ms. Amorim were living “separate and apart” at the relevant time, the application judge turned to the case law under s. 8 of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.). He described the following indicia, derived from Greaves v. Greaves (2004), 4 R.F.L. (6th) 1 (Ont. S.C.), at para. 34, as relevant to his determination of whether the parties were living separate and apart: a. Physical separation, however, this is not the deciding factor as spouses may remain together for economic reasons; b. A withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the marital relationship; c. the absence of sexual relations however this is not a conclusive factor; d. discussions of family problems and communications between the spouses; e. presence or absence of joint social activities; and f. the true intent of a spouse as opposed to a spouse’s stated intent. [12] The application judge went on to review the evidence from both parties about their living arrangements at the relevant time. Ultimately, he summarized his factual findings as follows: I conclude that at the time Mr. Carvalho first began receiving his disability pension he and Ms. Amorim were “living separate and apart”. They were physically separated. From 1990, Mr. Carvalho lived in Canada and Ms. Amorim lived in Portugal. After 1990, Ms. Amorim did not travel to Toronto. There is also no evidence that they participated in each other’s lives in any meaningful way. I acknowledge that parties can be in a marital relationship even if they live in separate locations: Greaves v. Greaves , at para. 34. It is my view, however, that there must be evidence of a common purpose, involvement in each other’s lives, and communication either in-person or by letters, texts, e-mails or phone. Here, there is no evidence of any sustained or significant interaction between the parties at the time Mr. Carvalho began receiving the disability pension in August 2002. [13] We see no reviewable errors in the application judge’s findings of fact. They are supported by the record and, as set out above, his factual findings are entitled to deference. [14] Ms. Amorim takes issue with some of the application judge’s factual findings. For example, she argues that he did not consider the contradictions in Mr. Carvalho’s evidence regarding when the parties stopped having sexual relations. However, it is evident from the application judge’s conclusions that he based his decision on the overall circumstances of the relationship between the parties. He considered the fact that the parties had not lived in the same location for many years and that they had little regular ongoing contact. This uncontradicted evidence supported his conclusion that the parties did not participate in each other’s lives “in any meaningful way”. [15] Ms. Amorim also argues that there was no change in the parties’ relationship from the mid-1990s to 2007-2008, when Mr. Carvalho initiated divorce proceedings, thereby suggesting that they were not living separate and apart in 2002. However, the issue for the application judge was not whether there had been any change in the relationship prior to 2002, but whether the parties were living separate and apart at that time. [16] The list of indicia for determining whether parties are living separate and apart is not formulaic and no individual factor is determinative. In this case, the application judge considered the totality of the evidence. He was aware that there were contradictions between the parties’ evidence. However, looking at all the circumstances, he found that they were living separate and apart in 2002. His conclusion is entitled to deference and is supported by the record. [17] The appeal is therefore dismissed. [18] Despite being unsuccessful on the appeal, Ms. Amorim asks that no costs be awarded against her. She argues that she did not choose to become involved in the litigation and that the only reason this matter went to court was because of Mr. Carvalho’s misrepresentation that she signed a spousal waiver. While the application judge’s decision to award no costs was justified given Mr. Carvalho’s conduct, the same rationale does not apply to the costs of the appeal. It was Ms. Amorim who chose to pursue the appeal. Therefore, in our view, there is no reason for the court to depart from the usual principle that the unsuccessful party is to pay costs to the successful party. [19] Ms. Amorim is to pay costs of $7,500.00, all inclusive, to Mr. Carvalho. No costs are awarded to or against the Pension Fund. “Gary Trotter J.A.” “S. Coroza J.A.” “L. Favreau J.A. ” [1] The Pension Fund took no position on the merits of the appeal. [2] The Pension Benefits Act has since been amended and the “living separate and apart” exception to the definition of “spouse” is now found in s. 44(1.1).

COURT OF APPEAL FOR ONTARIO CITATION: Corvello v. Colucci, 2022 ONCA 159 DATE: 20220218 DOCKET: C68475 Strathy C.J.O., Roberts and Sossin JJ.A. BETWEEN Tony Corvello and Gino Colucci Plaintiffs (Respondents) and Arthur Colucci Defendant (Appellant) Bradley Phillips, for the appellant Fredrick R. Schumann, for the respondents Heard: February 15, 2022 by videoconference On appeal from the judgment of Justice Tracey Nieckarz of the Superior Court of Justice, dated June 11, 2020, with reasons reported at 2020 ONSC 3679. REASONS FOR DECISION [1] The appellant, Arthur Colucci, appeals the judgment granting the motion brought by the respondents, Tony Corvello and Gino Colucci, for a declaration that the appellant holds a land use permit in trust for himself and the respondents as beneficial owners. [2] At the conclusion of the appellant’s submissions, we dismissed the appeal with reasons to follow. These are those reasons. [3] Arthur and Gino Colucci are brothers. Tony Corvello is Arthur’s brother-in-law. At issue is the ownership of a land use permit which was obtained from the Ontario government in 1974 (“the permit”). The permit allows the holders to build on and use the property for recreational purposes. The permit does not confer any rights of ownership over the land or any interest in the land to which it applies. [4] Since obtaining the permit, the parties and their families had harmoniously enjoyed the use of a recreational property on Lac Seul in the District of Kenora, Ontario (“the property”). As the trial judge noted, the parties described the property as a place “where their families gathered to build, work, relax and enjoy each other’s company”. Sadly, these “happier times” came to an end in 2016 when Arthur took the position that the permit belonged to him alone and he locked out the respondents and their families from the property. Litigation ensued. [5] After a meticulous review of the evidence from the three-day trial of this matter, the trial judge determined that Arthur held the permit in trust for himself and the respondents as beneficial owners. She declined to award the general damages sought by the respondents. [6] Arthur raises the following single issue on appeal: Did the trial judge err in law and in fact in determining that an undocumented trust agreement existed when the alleged settlor provided an alternate explanation as to what his intention was? [7] It is well established that the creation of a valid trust requires “three essential characteristics” or three certainties: certainty of intention to create a trust; certainty of subject matter; and certainty of objects: Byers v. Foley (1993), 16 O.R. (3d) 641 (Gen. Div.), at para. 13, citing D.M.W. Waters, Law of Trusts in Canada , 2nd ed. (Toronto: Carswell, 1984), at p. 107. [8] Arthur does not dispute that there was certainty of subject matter and object, but he submits that there was no certainty of intention to create a trust. He bases his submission on the argument that, in the absence of documentation evidencing a trust agreement among the parties and the fact that the permit was in his name alone, his evidence that he never intended to create a trust and that he alone owned the permit should have been given primary consideration and accepted by the trial judge. He argues that the trial judge’s analysis was flawed because she determined Arthur’s intention as settlor of the trust through the lens of the other parties’ intentions and therefore misapprehended the evidence supporting Arthur’s intention not to create a trust. [9] We do not agree. [10] It was open to the trial judge to accept some, all, or none of any witness’s evidence. Certainly, she was not obliged to accept all or any of Arthur’s evidence. Nor was the absence of a formal trust agreement or the fact that the permit was in Arthur’s name alone determinative. Rather, to ascertain certainty of intention in the absence of a written trust agreement, the trial judge was required to look at “the surrounding circumstances and the evidence as to what the parties intended, as to what was actually agreed, and as to how the parties conducted themselves”: Byers , at para. 15. She was also required to make findings based on her assessment of the credibility and reliability of the evidence presented at trial. Findings open to the judge based on the evidentiary record and credibility findings attract deference from this court: Chechui v. Nieman , 2017 ONCA 669, 136 O.R. (3d) 705, at para. 33. [11] We disagree that the focus of the trial judge’s inquiry should have been on Arthur’s subjective intentions. Rather, she was required to apply an objective standard to ascertain the certainty of intention not just from Arthur’s own acts, but also from the acts of the other parties: Ontario (Training, Colleges and Universities) v. Two Feathers Forest Products LP , 2013 ONCA 598, 368 D.L.R. (4th) 714, at para. 24. Nor did she misapprehend the evidence. The trial judge was not limited to considering Arthur’s denials, but was entitled to consider the “evidence as a whole” from which she could infer Arthur’s intention and the common intention of the parties to hold the permit in trust for himself and the respondents: Byers , at para. 26. [12] This is precisely what the trial judge did. The only three witnesses at trial were Arthur, Gino and Tony. The trial judge reviewed the evidence of each at some length. She gave detailed reasons for her acceptance of Gino and Tony’s evidence and her conclusion that “from the beginning it was intended that they were ‘partners’ in and ‘co-owners’ of the [permit].” She made comprehensive findings based on a thorough review of all the evidence. The evidence supported her conclusion that Arthur held the permit in trust for himself and the respondents as beneficial owners. Deference is owed to her findings of fact. [13] The trial judge’s findings support the existence of a trust. She found that the permit was in Arthur’s name because the government at the time of issuance would not permit it to be put into more than one name. She also found that Arthur, Gino and Tony had all contributed to the property, that all costs of the property were shared three ways, and the three of them discussed and agreed on any improvements to the property. Once it was permitted by the government to do so, they agreed to put the permit in their three names and Arthur wrote to the government asking for this change. All three referred to themselves as owners of the property, are named insureds on the insurance for the property, and had use of the property without asking Arthur for permission. Until 2016, Arthur never asserted ownership of the property to the exclusion of Tony and Gino. [14] All the trial judge’s findings were open to her. Her findings support her conclusion that Arthur held the permit in trust for himself, Tony and Gino. Arthur has not persuaded us that the trial judge made any error in her findings and analysis. We see no basis to intervene. DISPOSITION [15] For these reasons, we dismissed the appeal. [16] The respondents are entitled to their costs from the appellant in the agreed upon amount of $6,000, inclusive of disbursements and applicable taxes. “G.R. Strathy C.J.O.” “L.B. Roberts J.A.” “L. Sossin J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. 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., 2022 ONCA 160 DATE: 20220224 DOCKET: C69437 Hoy, Coroza and Sossin JJ.A. BETWEEN Her Majesty the Queen Appellant and N.S. Respondent Deborah Krick, Michael Dunn and Jeremy Tatum, for the appellant Marianne Salih and Carlos Rippell, for the respondent Michael Rosenberg, Alana Robert and Holly Kallmeyer, for the interveners The Canadian Alliance for Sex Work Law Reform, Monica Forrester, Valerie Scott, Lanna Moon Perrin, Jane X and Alessa Mason Tara Santini, for the intervener The Canadian Alliance for Sex Work Law Reform James Lockyer, for the intervener Tiffany Anwar Matthew Gourlay and Brandon Chung, for the intervener Deshon Boodhoo Heard: November 19, 2021 On appeal from the acquittals entered by Justice Phillip Sutherland of the Superior Court of Justice, on May 17, 2021. Hoy J.A.: I. INTRODUCTION [1] In 2014, Parliament enacted Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts , 2nd Sess., 41st Parl., 2014 (assented to 6 November 2014), S.C. 2014, c. 25, in response to the Supreme Court’s decision in Canada (Attorney General) v. Bedford , 2013 SCC 72, [2013] 3 S.C.R. 1101, declaring three Criminal Code [1] offences addressing prostitution-related conduct unconstitutional. [2] The respondent was charged with several offences relating to his sale of the complainant’s sexual services. He successfully challenged the constitutionality of three of the new provisions of the Criminal Code enacted by Bill C-36 – s. 286.2 (material benefit), s. 286.3 (procuring), and s. 286.4 (advertising) – on the basis that they infringe the rights of a hypothetical person to security of the person and, in some cases, to liberty under s. 7 of the Canadian Charter of Rights and Freedoms : R. v. N.S. , 2021 ONSC 1628. The application judge found that the infringements were not a justifiable limit under s. 1 and struck down the impugned provisions. [3] The Crown appeals. [4] For the following reasons, I would allow the appeal, set aside the respondent’s acquittals, and order a new trial. [5] The Supreme Court’s decision in Bedford provides important context for the issues on this appeal. Below, I first review Bedford . Next, I outline the scheme of Bill C-36 and set out the provisions relevant on this appeal, and then provide a brief overview of the reasons of the judge below. I then consider the purposes of Bill C-36 before addressing, in turn, each of the impugned provisions. I consider the reasons of the application judge in more detail in my analysis. Finally, I address the respondent’s arguments – renewed on appeal – that the impugned provisions infringe the right to freedom of expression under s. 2(b) and the right to freedom of association under s. 2(d) of the Charter and are not justifiable limits under s. 1. II. BEDFORD [6] In Bedford , the Supreme Court agreed with the application judge that three provisions of the Criminal Code violated the security of the person interests under s. 7 of the Charter and were unconstitutional: to be an inmate of or found without lawful excuse in, or to be the owner, landlord, lessor, tenant or occupier of a bawdy-house (s. 210); living on the avails of another’s prostitution (s. 212(1)(j)); and communicating in public with respect to a proposed act of prostitution (s. 213(1)(c)). [7] The applicants in Bedford were all current or former prostitutes. [2] They filed an extensive record as part of a civil application. They did not rely on hypotheticals. The application judge made extensive findings of fact, including with respect to social and legislative facts, which the court held were entitled to deference: Bedford , at para. 49. [8] The court explained that the first question is whether the impugned laws negatively impact or limit the applicants’ security of the person, thus bringing them within the ambit of, or engaging, s. 7 of the Charter . It concluded that they did: they imposed “dangerous conditions on prostitution: they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risks”: at para. 60. [9] The practical effect of the bawdy-house provision was to confine lawful prostitution to two categories: street prostitution and out-calls. The application judge found that the safest form of prostitution was working independently from a fixed indoor location. The bawdy-house prohibition prevented prostitutes from doing so. Working from a fixed indoor location would permit prostitutes to have a regular clientele and set up safeguards. [10] As interpreted by the courts, the living on the avails provision prevented prostitutes from hiring bodyguards, drivers and receptionists – safeguards that could increase the prostitutes’ safety. [11] The prohibition on communicating in public prevented prostitutes from screening clients and setting terms on the use of condoms or safe houses, thereby significantly increasing the risks they faced. [12] The court then considered whether the impugned provisions respected the principles of fundamental justice: in particular, the basic values against arbitrariness, overbreadth and gross disproportionality. I provide more detail later in these reasons about what the court said about these principles and how compliance with them is to be assessed. [13] It found that the objective of the bawdy-house provision, which had been essentially unchanged since the 1953-54 revision to the Criminal Code , had long been identified as preventing community harms in the nature of nuisance and that the harms identified by the application judge were grossly disproportionate to that object. [14] The court had previously determined that the purpose of the living on the avails provision was to target pimps and the parasitic, exploitative conduct in which they engage. It agreed with the courts below that the provision was overbroad, at para. 142: The law punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes (for example, controlling and abusive pimps) and those who could increase the safety and security of prostitutes (for example, legitimate drivers, managers, or bodyguards). It also includes anyone involved in business with a prostitute, such as accountants or receptionists. In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails provision is therefore overbroad. [15] The object of the communicating provision had been explained in the Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.) , [1990] 1 S.C.R. 1123 (the “ Prostitution Reference ”), at pp. 146-7: to take prostitution off the streets and out of public view in order to prevent the associated nuisances. The court agreed with the application judge that the negative impact on the safety and lives of street prostitutes was grossly disproportionate to the possibility of nuisance caused by street prostitution. [16] The court noted that the Attorney General had not seriously argued that the laws, if found to infringe s. 7, could be justified under s. 1 of the Charter . Therefore, the court found that the impugned laws were not saved by s. 1. [17] While it declared the impugned provisions unconstitutional, the court carefully added this, at para. 165: That does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted… The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime. [18] The court suspended its declaration of invalidity for one year. III. THE PCEPA [19] Before the one-year suspension elapsed, Parliament enacted Bill C-36 . The Act’s short tile is the Protection of Communities and Exploited Persons Act (the “PCEPA”). [20] The PCEPA amended or repealed the provisions which the Supreme Court had declared unconstitutional in Bedford and enacted four new offences in Part VIII of the Criminal Code – “Offences Against the Person and Reputation” – under a new heading: “Commodification of Sexual Activity”. [21] At the time of Bedford , it was not illegal to exchange sex for money. The PCEPA changed that. While some advocated for the decriminalization and regulation of the sex trade, Parliament adopted a variant of the so-called “Nordic Model”, which had been adopted in several other countries. The Nordic Model views the sex trade as a form of sexual exploitation. It targets those who create the demand for prostitution and those who capitalize on it. Parliament did not accept that persons who provide sexual services for consideration should be viewed as “workers” and that prostitution should be legal sex “work”: see the comments of Minister of Justice and Attorney General of Canada Peter MacKay in House of Commons, Standing Committee on Justice and Human Rights, Evidence , 41st Parl., 2nd Sess., No. 32 (7 July 2014), at pp. 9-10. It was concerned that prostitution was linked to human trafficking. As the Minister of Justice put it in debate at second reading, “[D]ecriminalization and legalization [of prostitution] lead to increased human trafficking for the purpose of sexual exploitation”; see also comments of Mr. Royal Galipeau (Ottawa-Orléans), House of Commons, Debates (Hansard) , 41st Parl., 2nd Sess., Vol. 147, No. 117 (26 September 2014), at p. 7885. [22] Section 286.1(1) now provides that everyone who obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person is guilty of an offence. [3] While buying sex is now a criminal offence, the PCEPA does not criminalize the sale of sexual services. Further, under s. 286.5, set out later in this part of these reasons, the PCEPA provides immunity from prosecution to persons who aid or abet an offence under s. 286.1 in relation to the provision of their own sexual services. The PCEPA views those who provide sexual services for consideration as exploited persons. Whether Parliament could or should have criminalized obtaining sexual services for consideration is not before this court. Section 286.1 is not challenged in this case. [4] [23] This appeal concerns the other three offences created by Parliament. [24] The PCEPA created a new “material benefit” offence in s. 286.2(1). [5] This provision modernizes the living on the avails of prostitution offence which was found unconstitutional in Bedford . It provides that every person who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under s. 286.1(1), is guilty of an offence. [25] Section 286.2(4) creates exceptions to the general prohibition in s. 286.2(1). Two of those exceptions permit a person who provides sexual services for consideration, on certain terms, to hire bodyguards, drivers and receptionists. The provisions found unconstitutional in Bedford did not permit such safeguards. Section 286.2(5), meanwhile, provides exceptions to those exceptions. Material benefit from sexual services 286.2 (1) Every person who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1), is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or (b) an offence punishable on summary conviction. Exception (4) Subject to subsection (5), subsections (1) and (2) do not apply to a person who receives the benefit (a) in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived; (b) as a result of a legal or moral obligation of the person from whose sexual services the benefit is derived; (c) in consideration for a service or good that they offer, on the same terms and conditions, to the general public; or (d) in consideration for a service or good that they do not offer to the general public but that they offered or provided to the person from whose sexual services the benefit is derived, if they did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service or good. No exception (5) Subsection (4) does not apply to a person who commits an offence under subsection (1) or (2) if that person (a) used, threatened to use or attempted to use violence, intimidation or coercion in relation to the person from whose sexual services the benefit is derived; (b) abused a position of trust, power or authority in relation to the person from whose sexual services the benefit is derived; (c) provided a drug, alcohol or any other intoxicating substance to the person from whose sexual services the benefit is derived for the purpose of aiding or abetting that person to offer or provide sexual services for consideration; (d) engaged in conduct, in relation to any person, that would constitute an offence under section 286.3; or (e) received the benefit in the context of a commercial enterprise that offers sexual services for consideration. [26] The PCEPA also modernized and reformulated the prior procuring offence in s. 212(1) by enacting s. 286.3(1) [6] : Procuring 286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years. [27] And, in s. 286.4, Parliament created an entirely new offence prohibiting the advertising of an offer to provide sexual services: Advertising sexual services 286.4 Everyone who knowingly advertises an offer to provide sexual services for consideration is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than five years; or (b) an offence punishable on summary conviction. [28] In addition to creating the four new offences, the PCEPA provides immunity from prosecution for persons who provide their own sexual services for consideration in s. 286.5: Immunity — material benefit and advertising 286.5 (1) No person shall be prosecuted for (a) an offence under section 286.2 if the benefit is derived from the provision of their own sexual services; or (b) an offence under section 286.4 in relation to the advertisement of their own sexual services. Immunity — aiding, abetting, etc. (2) No person shall be prosecuted for aiding, abetting, conspiring or attempting to commit an offence under any of sections 286.1 to 286.4 or being an accessory after the fact or counselling a person to be a party to such an offence, if the offence relates to the offering or provision of their own sexual services. [29] For ease of reference, a copy of these provisions is set out in Appendix “A” to these reasons. [30] In response to Bedford , Parliament also replaced the communicating offence in s. 213(1)(c) of the Criminal Code . Now, except for communications in public places that impede traffic or take place in or next to school grounds, playgrounds or day care centres, communications by a person selling their own sexual services for consideration are no longer criminalized. Section 213 is not at issue on this appeal. [31] With this framework, I turn to the reasons of the application judge. IV. AN OVERVIEW OF THE REASONS OF THE APPLICATION JUDGE [32] The respondent was charged with offences under ss. 286.1(1), 286.2(1), 286.3(1) and 286.4. He did not assert that s. 7 was engaged on the facts of his case. Rather, he challenged the constitutionality of ss. 286.2(1), 286.3(1) and 286.4 based on four “reasonable hypotheticals”. The application judge found that two of them would engage the impugned provisions in a manner that infringed s. 7: Hypothetical 2: Students Deciding to Do Sex Work Two or more 21-year old students at the University of Western Ontario are unable to afford their tuition and living expenses at university. They decide to become sex workers, a profession with which they are entirely unfamiliar. They approach a known sex worker for assistance and advice. She facilitates their plan by helping them set up, including helping them find rental premises out of which to operate, helping them hire security and a receptionist, and arranging for a professional photographer and website designer to facilitate their advertising on the internet. The two or more students then lease premises, hire security, a receptionist and a bookkeeper, and commence to sell sexual services. Hypothetical 4: Male Sex Worker in Rented Residence The sex worker is male. He is a student is his final year. He decides to lease premises, a room with the same students in hypothetical two. He uses the premises to conduct his commercial sex work. He makes his own money. He pays rent for the use of the premises for his living residence and where he conducts his commercial sex work. [33] The application judge directed himself that the first issue to be considered was the purpose of the PCEPA and the impugned provisions. [34] He found that the purpose of the PCEPA “is to immunise from prosecution any individual sex worker who performs sex work, and to allow the assistance of third parties in limited circumstances, while making all other aspects of commercial sex work illegal”: at para. 52. [35] Next, the application judge determined that the sex workers in the hypotheticals would be caught by the material benefit and procuring provisions, triggering their s. 7 right to liberty. The students, in working cooperatively, would constitute a “commercial enterprise” and therefore could not benefit from the exception to s. 286.2(1). Nor would they benefit from the immunity in s. 286.5. By assisting each other in conducting commercial sex and advertising and in providing accommodation, they would also be guilty of procuring, harbouring or concealing for the purpose of facilitating commercial sex work and directing, controlling, or influencing the movements of someone for the purpose of facilitating commercial sex work. The experienced sex worker who gives the students advice would also be guilty of procuring. [36] The sex workers’ right to security of the person would also be engaged. Because they would be caught by the material benefit and procuring provisions, they would not be able to hire security or take other steps to protect themselves. They could also not receive advice from the experienced sex worker, because she would be guilty of procuring. Finally, the application judge concluded that while the students would not be caught by the advertising prohibition because of the immunity in s. 286.5, their security of the person was engaged because they could not communicate frankly with their customers. [37] Assessed against the objectives of the legislation, the application judge found all three provisions to be overbroad. Parliament had indicated that one of the objectives is to protect sex workers from violence, abuse and exploitation to protect the health and safety of sex workers. The impugned provisions limit or prevent some means of protection and safety for some, if not all, sex workers. [38] Further, their impact is grossly disproportionate. The application judge held that “[t]he objective of eliminating or lessening commercial sex work through the banning of advertising cannot be made at the safety and security of commercial sex workers”: at para. 177. Parliament cannot allow sex work to continue and then grossly limit or prevent sex workers’ ability to protect their safety. [39] He concluded that the infringements of s. 7 were not saved by s. 1. As in Bedford , the Crown had not seriously addressed the s. 1 issue in its factum. In any event, it would be very difficult to justify an infringement of s. 7 under s. 1. [40] Having found that s. 7 had been infringed and was not a justifiable limit under s. 1, the application judge declined to address the alleged infringement under s. 2(d) of the Charter . He also found that he was bound by this court’s decision in Bedford [7] with respect to the advertising provision (s. 286.4), and therefore was compelled to find that it was not an unjustified infringement of s. 2(b) of the Charter . [41] He declared the impugned provisions of no force and effect, with immediate effect: R. v. N.S. , 2021 ONSC 2920. This court granted the Crown’s application to stay the declaration, pending this appeal: R. v. N.S. , 2021 ONCA 694. With the consent of the parties, at the hearing of this appeal, the court extended the stay pending the release of these reasons. V. SECTION 7 AND THE PURPOSE OF THE PCEPA [42] Section 7 provides: 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. [43] As explained in Bedford , a law’s compliance with s. 7 of the Charter turns on a proper assessment of the law’s objective. When an impugned provision engages s. 7, its purpose must be identified to determine whether the impairment of the s. 7 right is in accordance with the principles of fundamental justice. Does it respect the basic values against arbitrariness, overbreadth and gross disproportionality? [44] The Supreme Court explained in Bedford that the basic values against arbitrariness and overbreadth target the absence of connection between the impugned law’s purpose and the s. 7 deprivation. A law is arbitrary if there is no connection between the effect and object of the law. A provision suffers from overbreadth when it is so broad in scope that it includes some conduct that bears no connection to its objective: i.e., the law is rational in some cases, but overreaches in its effect in others. The overbreadth analysis does not evaluate the appropriateness of the objective: R. v. Moriarity , 2015 SCC 55, [2015] 3 S.C.R. 485, at paras. 30-31. [45] A law offends the value against gross disproportionality when it deprives a person of life, liberty or security of the person in a manner that is grossly disproportionate to the law’s objective. The rule against gross disproportionality only applies in extreme cases, where the seriousness of the deprivation is totally out of sync with the objective of the measure: e.g., a law intended to keep streets clean that imposes life imprisonment for spitting on the sidewalk; see Bedford , at para. 120. [46] It is clear from Bedford that the s. 7 analysis turns on the purpose of the particular provision that is impugned. In Bedford , the purpose of each provision had previously been determined and the court assessed overbreadth and gross disproportionality against those purposes. Here, in the absence of binding authority, the application judge had to assess the purpose of each provision. [47] The purposes of the PCEPA are relevant in determining the purpose and scope of the impugned provisions. I therefore address the purposes of the PCEPA as a whole before turning to each of the impugned provisions. [48] A law’s purpose can be inferred from explicit legislative statements, the text of the law read in its context, extrinsic evidence such as legislative history and evolution, as well as prior judicial interpretations: R. v. Safarzadeh-Markhali , 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 31; see also Hamish Stewart, Fundamental Justice: Section 7 of the Charter of Rights and Freedoms , 2nd ed. (Toronto: Irwin Law, 2019), at p. 157, citing R. v. Downey , [1992] 2 S.C.R. 10, at paras. 30-35. Although legislative debates cannot override specific text in legislation, they may still inform the interpretation process: MediaQMI v. Kamel , 2021 SCC 23, at para. 37. [49] The then Minister of Justice, Peter MacKay, described the PCEPA as making prostitution itself illegal and a “fundamental paradigm shift in approach.” He stated before the House of Commons Standing Committee on Justice and Human Rights that the goal of the PCEPA “is to reduce the demand for prostitution with a view to discouraging entry into it, deterring participation in it, and ultimately abolishing it to the extent possible.” He reiterated this, almost word for word, before the Standing Senate Committee on Legal and Constitutional Affairs, describing prostitution as an “inherently degrading and dangerous activity”: Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs , 41st Parl., 2nd Sess., No. 15 (9 September 2014) at p. 12. At the Senate Committee, he explained that the PCEPA would not only help reduce prostitution itself, “but will create the climate in which prostitutes can take certain specific measures , steps to further protect themselves or insulate themselves from violence” (emphasis added): at p. 22. At the debates at the second reading of the PCEPA, Minister MacKay stated that prostitution “disproportionately impacts on society’s most marginalized and vulnerable” and that “[a]n additional objective is to reduce the likelihood of third parties facilitating exploitation through prostitution for their gain, and the key and operative word here is ‘exploitation’”: at p. 6653. [50] Typically, legislative history comes from parliamentary speeches and debates or statements by ministers or members of Parliament. Other acceptable documentary sources of legislative history include government policy papers such as a white paper, green paper, budget paper and even reports or studies produced outside government which existed at the time of the enactment and were relied on by the government that introduced the legislation: P.W. Hogg and Wade Wright, Constitutional Law of Canada , loose-leaf (2021-Rel. 1) 5th ed. (Toronto: Carswell, 2007), at s. 60:1; see also Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed. (Markham: LexisNexis, 2014), at para. 9.48. For example, the Supreme Court referred to the Technical Paper on the Federal Carbon Pricing Backstop in its review of legislative history to discern the pith and substance of the Greenhouse Gas Pollution Act in Reference re Greenhouse Gas Pollution Act , 2021 SCC 11, 455 D.L.R. (4th) 1, per Wagner C.J. [51] In this case, the legislative history includes the Technical Paper produced by the Department of Justice on the new prostitution-related offences, which was tabled before and adverted to at the parliamentary committees tasked with reviewing the legislation. The Technical Paper describes the purpose of the PCEPA as follows: [The PCEPA] seeks to denounce and prohibit the demand for prostitution and to continue to denounce and prohibit the exploitation of the prostitution of others by third parties, the development of economic interests in the exploitation of the prostitution of others and the institutionalization of prostitution through commercial enterprises, such as strip clubs, massage parlours and escort agencies in which prostitution takes place. It also seeks to encourage those who sell their own sexual services to report incidents of violence and leave prostitution. [52] The Technical Paper goes on to describe the PCEPA’s “overall objective” as reducing the demand for prostitution with a view to discouraging entry into it, deterring participation in it and ultimately abolishing it to the greatest extent possible: Technical Paper, at p. 3. [53] The Technical Paper, at p. 7, describes the PCEPA as seeking “to ensure the safety of all by reducing the demand for prostitution, with a view to deterring it and ultimately abolishing it to the greatest extent possible” (emphasis added). It adds that the PCEPA recognizes that this paradigm shift will take time and therefore “does not prohibit individuals from taking certain measures to protect themselves when selling their own sexual services” (emphasis added). It describes Parliament as balancing the need to protect those subjected to prostitution from violence and exploitation with “the need to protect communities from prostitution’s harmful effects, including exposure of children; and, the need to protect society itself from the normalization of a gendered and exploitative practice.” [54] Available intrinsic evidence of parliamentary intent includes the lengthy preamble to the PCEPA: Whereas the Parliament of Canada has grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it; Whereas the Parliament of Canada recognizes the social harm caused by the objectification of the human body and the commodification of sexual activity; Whereas it is important to protect human dignity and the equality of all Canadians by discouraging prostitution, which has a disproportionate impact on women and children; Whereas it is important to denounce and prohibit the purchase of sexual services because it creates a demand for prostitution; Whereas it is important to continue to denounce and prohibit the procurement of persons for the purpose of prostitution and the development of economic interests in the exploitation of the prostitution of others as well as the commercialization and institutionalization of prostitution; Whereas the Parliament of Canada wishes to encourage those who engage in prostitution to report incidents of violence and to leave prostitution; And whereas the Parliament of Canada is committed to protecting communities from the harms associated with prostitution; [55] The preamble reflects that Parliament has fundamentally changed the lens through which it views prostitution. Rather than viewing prostitution as a nuisance, it views prostitution as inherently exploitative and something that must be denounced and discouraged. [56] Available intrinsic evidence also includes the short title of the PCEPA (the Protection of Communities and Exploited Persons Act) , which indicates that, as stated in the Technical Paper, Parliament considered the safety of “all” in enacting the legislation. It also includes the heading which prefaces all these offences: “Commodification of Sexual Activity”. The preamble describes the commodification of sexual activity as causing social harm. [57] There is some prior appellate judicial interpretation of the purpose of the PCEPA. In R. v. Gallone , 2019 ONCA 663, 147 O.R. (3d) 225, this court accepted the statement in the Technical Paper that the overall objective of the PCEPA is to reduce the demand for prostitution with a view to discouraging entry into it, deterring participation in it and ultimately abolishing it to the greatest extent possible: Gallone , at para. 92. And in the context of a Crown appeal from a sentence for purchasing the sexual services of a child, the Manitoba Court of Appeal described the purpose of the PCEPA as “to discourage, denounce and prohibit the demand for prostitution in order to protect communities, human dignity and equality, and to encourage victims to report violence and leave prostitution”: R. v. Alcorn , 2021 MBCA 101, at para. 14. [58] As noted above, the application judge found that the purpose of the PCEPA is “to immunise from prosecution any individual sex worker who performs sex work, and to allow the assistance of third parties in limited circumstances, while making all other aspects of commercial sex work illegal”: at para. 52. He found that a second purpose was “to protect sex workers from violence, abuse and exploitation to protect the health and safety [of] sex workers, namely women and girls”: at para. 165. [59] I would describe the purposes of the PCEPA differently from the application judge. In my view, the PCEPA has three purposes: first, to reduce the demand for prostitution with a view to discouraging entry into it, deterring participation in it and ultimately abolishing it to the greatest extent possible, in order to protect communities, human dignity and equality; second, to prohibit the promotion of the prostitution of others, the development of economic interests in the exploitation of the prostitution of others, and the institutionalization of prostitution through commercial enterprises in order to protect communities, human dignity and equality; and, third, to mitigate some of the dangers associated with the continued, unlawful provision of sexual services for consideration. In particular, Parliament’s latter objective is to ensure that, as much as possible, persons who continue to provide their sexual services for consideration, contrary to law, can avail themselves of the safety-enhancing measures identified in Bedford and report incidents of violence, without fear of prosecution. [60] The main difference between the parties is how they would describe the PCEPA’s purpose in relation to protection or safety. The Crown argues that the PCEPA permits some measures to enhance safety as an “ancillary objective”. The respondent and the interveners argue that the application judge correctly described one of the purposes of the PCEPA as to protect sex workers from violence, abuse and exploitation to protect the health and safety of sex workers. As is apparent from my articulation of the purposes of the PCEPA, I disagree with that latter characterization. [61] There is no doubt that Parliament was concerned about the safety of those who engage in the provision of sexual services for consideration. There was express discussion about this issue during the parliamentary debates. The short title of the PCEPA (the Protection of Communities and Exploited Persons Act ), the recognition in the preamble of “the risks of violence posed to those who engage in [prostitution]”, the statements in the Technical Paper and the fact that the PCEPA permits those who provide their sexual services for consideration to employ the safety measures identified in Bedford further indicate that the safety of those who provide sexual services for consideration was a concern of Parliament. [62] The PCEPA, however, was an explicit response to Bedford . While Parliament addressed the specific safety issues which were the focus in Bedford – working from a fixed indoor location, hiring persons who may enhance safety, and the ability to negotiate conditions for the sale of sexual services in a public place – it also chose to criminalize prostitution by prohibiting the demand and reinforcing the prohibition on the exploitation of others by third parties. As noted above, Minister MacKay was clear that Parliament sought to “create the climate in which prostitutes can take certain specific measures , steps to further protect themselves or insulate themselves from violence.” He was also clear, however, that the best way to protect them was to reduce prostitution itself. This is reflected in the scheme of the PCEPA as a whole. [63] It is for these reasons that I characterize the safety-related purpose of the PCEPA (beyond the protection of communities, human dignity and equality, through its first and second purposes) as being limited to ensuring that persons who continue to provide their sexual services for consideration, contrary to law, can avail themselves of the safety-enhancing measures identified in Bedford and report incidents of violence. [64] With these purposes in mind, I turn to the first of the impugned provisions. VI. SECTION 286.2 (MATERIAL BENEFIT) The application judge’s reasons [65] The application judge found that the goal of s. 286.2 is to “denounce and prohibit economic interests and the commercialization of sexual services for consideration”: at para. 82. He then considered whether a sex worker who shares space or expenses with other sex workers would be subject to prosecution under s. 286.2. [66] Neither “benefit” nor “commercial enterprise” is defined in the Code . He concluded that, “in the context of commodification of sexual activity, benefit has an ordinary meaning of any profit, advantage or acquired right or privilege and commercial enterprise means any enterprise or business entered into for profit”: at para. 105. He in turn concluded that, by sharing expenses, the students in the two hypotheticals received a financial benefit from each other which increases their respective profits, and that their respective sex work enterprises were “commercial enterprises” and thus within the exception to the exception in s. 286.2(5)(e). Further, each sex worker did not qualify for immunity under s. 285.5(1)(a) and (2) “because each sex worker would be receiving a benefit which is not “derived from the provisions of their own sexual services”: at para. 110. Because they do not qualify for immunity, their respective rights to liberty are infringed. [67] Their respective security of the person is also infringed because they would not be able to hire third parties in a cooperative or cost sharing arrangement to assist with their security. The application judge continued, at para. 113, as the evidence indicated, not all sex workers make on their own the amounts of money required to fund solely the expenses of third parties to provide goods and services for their protection and health or accommodation where they are not subject to being discharged. For these sex workers who require benefits from a cooperative cost sharing arrangement, the legislative schemes prevent them from doing so. Analysis [68] The application judge’s finding that s. 286.2 engages s. 7 is rooted in his interpretation of “commercial enterprise” in s. 286.2(5)(e) and his conclusion that the hypothetical sex workers would not enjoy immunity under s. 286.5(1). [69] The governing modern principle of statutory interpretation is 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; R. v. Hutchinson , 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 16. [70] Applying those principles, I do not agree with the application judge that the cooperative arrangement in the hypotheticals constitutes a “commercial enterprise” within the meaning of s. 286.2(5). [8] [71] In the hypothetical cooperative arrangement, each person who provides sexual services for consideration derives a benefit: she receives security services that she may not have been able to afford on her own. Although the hypothetical also describes the sharing of other services, I will focus on the sharing of security both as most relevant to the security of the person interest in s. 7 and because this was the aspect that the application judge focused on. [72] Section 286.2(4) provides that, subject to s. 286.2(5), s. 286.2(1) does not apply to certain persons who receive a benefit. The parties agree, and I accept, that subject to s. 286.2(5), s. 286.2(4)(d) is applicable. The sex workers in the hypothetical cooperative arrangement receive the benefit of the cooperative arrangement “in consideration for a service or good that they do not offer to the general public but that they offered or provided to the person from whose sexual services the benefit is derived” and “they did not counsel or encourage that person to provide the sexual services and the benefit is proportionate to the value of the service or good”. [73] The application judge turned to the Oxford Canadian Dictionary for assistance, noting that it defines commercial as “engaged in or concerned with profit and enterprise as a business or businesses collectively”. That is a useful starting point, but it is not determinative. [74] The hypothetical describes a cooperative: an arrangement where sex workers cooperate to obtain premises and services related to their respective sales of sexual services. The cost of the premises and services is shared; each sex worker pays their share out of their earnings from the sale of their sexual services. The cooperative is not engaged in or concerned with profit. It operates on a shared cost basis. It is the opposite of an enterprise concerned with profit. Each individual sex worker, not the cooperative, is concerned with profit. [75] As the application judge noted, the term “commercial enterprise” is not defined in, or for the purposes of, s. 286.2: at paras. 102-3. As he also noted, the Technical Paper comments on the meaning of “commercial enterprise”. It says this, at p. 5: Although “commercial enterprise” is not defined, the phrase has been interpreted in sentencing cases under the Controlled Drugs and Substances Act . Courts apply a contextual analysis to determine whether a particular enterprise is commercial in nature which provides flexibility to the courts to find different types of enterprises, including informal ones, to be “commercial”. In the context of [the PCEPA], a “commercial enterprise” necessarily involves third party profiteering. Courts would likely take into account considerations such as the number of persons involved, the duration of the activities and the level of organization surrounding the activities. The only type of enterprise that this phrase cannot capture is one involving individuals who sell their own sexual services, whether independently or cooperatively , from a particular location or from different locations. [The PCEPA] does not allow for prosecution in these circumstances… [Emphasis added.] [76] The word “profiteering” used in the Technical Paper does not simply mean “profits from”. It has a pejorative sense. The Oxford Canadian Dictionary , 2nd ed. (Toronto: Oxford University Press, 2006) defines profiteering as “make or seek to make excessive profits, esp. illegally or in black market conditions”. In this context, the word correctly captures that a “commercial enterprise” in s. 286.2(5)(e) necessarily involves the making of a profit derived from third party exploitation of the sex worker. In other words, it involves the making of a profit from the commodification of sexual activity by a third party. [77] This interpretation finds support when the words “commercial enterprise” are considered in the context of s. 286.2 as a whole. In enacting the PCEPA, Parliament carefully crafted exceptions to the offences in ss. 286.2(1) and (2) to ensure that criminal liability would not result where there was not an exploitative relationship. As Minister MacKay said, “Legislated exceptions clarify that the [material benefit] offence does not apply to non-exploitative relationships”: House of Commons, Debates (Hansard) , 41st Parl., 2nd Sess., Vol. 147, No. 101 (11 June 2014), at p. 6654. The Technical Paper explains that the exceptions in ss. 286.2(5)(a) through (d) remove the availability of the exceptions in s. 286.2(4) if any exploitative circumstance develops. Section 286.2(5)(e) shares that purpose. It removes the availability of the exceptions if a third party commodifies and commercializes another’s sexual activity, e.g., as Minister MacKay explained at p. 6654, when the person received the benefit in the context of a brothel. Similarly, Parliamentary Secretary Bob Dechert said this in reference to s. 286.2(5)(e) in the course of the parliamentary debates: The bill would also criminalize where a person procures another person’s prostitution or if the benefit is received in the context of a commercial enterprise that offers sexual services for sale, such as a strip club, a massage parlour, or an escort agency in which prostitution takes place. We know those types of businesses are often run by criminal organizations, such as gangs and the Mafia. That is the kind of behaviour we want to criminalize. It is not what the women who are exploited are doing, but the people who are actually exploiting them. [Emphasis added.] (House of Commons, Debates (Hansard) , 41st Parl., 2nd Sess., Vol. 147, No. 102 (12 June 2014), at p. 6756). [78] This interpretation is also consistent with the scheme of the PCEPA, the objects of the PCEPA and the intention of Parliament. [79] The cooperative sharing of security in the hypothetical does not involve third party exploitation of the sex workers by the commodification of their sexual services. The sex worker controls the sale of her own sexual services. The third parties who receive a financial benefit from providing the security services do not exploit the sex workers (assuming that they provide the services in compliance with ss. 286.2(4)(c) or (d) and the exceptions in s. 286.2(5)(a) through (d) do not remove the availability of those exceptions.) And, in the hypothetical, the sex workers do not exploit each other. [80] My interpretation of “commercial enterprise” is dispositive of the respondent’s constitutional challenge to s. 286.2. I conclude that the hypothetical sex worker’s right to security of the person under s. 7 is not engaged because – contrary to the application judge’s conclusion – she can obtain security services on a shared, cooperative basis. The sex worker’s liberty interest is not engaged because she has not committed an offence under s. 286.2. [81] I will add this regarding the application judge’s interpretation of the immunity provision in s. 286.5(1). Section 286.5(1) provides immunity if the benefit is derived from the provision of a person’s own sexual services. The application judge concluded that each sex worker did not qualify for immunity under s. 285.5(1)(a) and (2) “because each sex worker would be receiving a benefit which is not ‘derived from the provisions of their own sexual services’”: at para. 110. [82] I do not agree. If the cooperative arrangement were a “commercial enterprise” (and in my view it is not), properly construed, s. 286.5(1) would provide immunity to the sex worker who receives security services through a cooperative arrangement. To receive the benefit – the shared security service – the sex worker must pay her share of the cost. Presumably, the funds to pay for the shared security service are derived from the provision of the sex worker’s own sexual services. Thus, the benefit is derived from the provision of the sex worker’s own sexual services. [83] This interpretation is consistent with the purpose of s. 286.5. As Minister MacKay stated, the PCEPA “recognizes the vulnerability of those who sell their own sexual services by immunizing them from prosecution for any part they may play in the purchasing, material benefit, procuring, or advertising offences vis-à-vis their own sexual services”: House of Commons, Debates (Hansard) , 41st Parl., 2nd Sess., Vol. 147, No. 101 (11 June 2014), at p. 6654. And as the Technical Paper notes, the immunities provided for in s. 286.5 “mean that individuals cannot be prosecuted for selling their own sexual services, whether independently or cooperatively , from fixed indoor or other locations, as long as the only benefit received is derived from the sale of their own sexual services” (emphasis added). [84] Ms. Nathalie Levman, Counsel in the Criminal Law Policy Section at the Department of Justice, echoed this intention. Answering questions from opposition MPs at the House Standing Committee on Justice and Human Rights, Ms. Levman responded as follows: You're talking about working cooperatively together whereby the only benefit received results from the sale of one's own sexual services. The answer is that Bill C-36 does not criminalize that scenario. I think we have to be careful to read the bill with all of its component parts. We have a legislative exception that would apply to a person who offers, let's say, protective services. If people were working cooperatively together and they all contributed a portion towards the protective services that were provided, at a fair value, and that person wasn't at all involved in the prostitution other than acting as a body guard, Bill C-36 would not apply to that scenario. (House of Commons, Standing Committee on Justice and Human Rights, Evidence , 41st Parl., 2nd Sess., No. 32 (7 July 2014), at p. 16.) [85] I turn next to the challenge under s. 7 to the procuring provision. VII. SECTION 286.3 (PROCURING) The application judge’s reasons [86] The application judge described the goal of s. 286.3 [9] as to “prohibit third parties who make money from commercial sex work from being involved”: at para. 159. [87] He concluded that both the students and the experienced sex worker who provides advice on how to set up, advertise and conduct oneself could be prosecuted under s. 286.3(1). While the hypotheticals do not clearly indicate the requisite mens rea , the application judge inferred that it had been met. The liberty of the students was therefore infringed because they are subject to prosecution for procuring. Their respective security of the person had also been infringed for two reasons: first, because the inability to receive advice from an experienced sex worker who is not acting in an exploitative manner compromises their ability to protect themselves from danger, and; second, because the joint use of an accommodation by multiple sex workers for their own protection and safety is prohibited. [88] Further, the provision infringed s. 7: it is overbroad and its impact grossly disproportionate. It was overbroad because one of the objectives is to protect sex workers from violence, abuse and exploitation and it limits or prevents some means of protection and safety for some, if not all, sex workers. The application judge concluded that this and the other impugned provisions were disproportionate to the provision’s objective because their effect of “preventing sex workers from taking measures that would increase their safety, and possibly save their lives, outweigh[ed] the law’s positive effect of protecting sex workers from exploitative relationships and the objective of Parliament to decrease or eliminate commercial sex work”: at para. 71. Mr. Boodhoo’s hypotheticals [89] Deshon Boodhoo was granted leave to intervene on this appeal: R. v. N.S. (5 November 2021), M52912. He was convicted under ss. 286.2(2) and 286.3(2). These are largely the same as ss. 286.2(1) and 286.3(1), except that they pertain to persons under the age of 18 years. He was also convicted under s. 286.4. Because of the overlap in the constitutional issues raised, his appeal was to be heard together with this appeal. This appeal was ordered expedited after a stay was entered, however, and Mr. Boodhoo’s appeal could not be argued on that expedited timetable. [90] One of the hypotheticals Mr. Boodhoo proposed involves a person already providing sexual services for consideration “reaching out” to a young friend who is homeless and surviving by panhandling and pick pocketing. She proposes that her young, homeless friend engage in the provision of sexual services for consideration, and that they rent an apartment, share expenses and work together. She is having difficulty paying for her apartment on her own. If she loses it, she will be forced to return to riskier forms of prostitution. The hypothetical also posits that providing sexual services for consideration, living in an apartment and working in a cooperative fashion, is a safer option for the young, homeless friend. The young homeless friend accepts the offer and begins selling her sexual services for consideration. Whether s. 7 is engaged [91] I agree with the Crown that the application judge interpreted the scope of the procuring provision too broadly. As I will explain below, properly interpreted, s. 286.3 does not prohibit the students from working cooperatively in the manner described in Hypothetical 2 or leasing a room to the third student in Hypothetical 4. Nor does it prohibit the hypothetical sex worker who was sought out to provide advice from providing advice, without compensation, to students who had already decided to engage in the provision of sexual services for consideration on how best to do so. Thus, the students’ liberty and security interests would not be engaged. [92] I do agree with counsel for Mr. Boodhoo, however, that the conduct in his hypothetical would offend the procuring provision. The liberty interest of the person who proposed that her young homeless friend engage in prostitution is engaged: she is liable to imprisonment, if convicted of procuring. [93] On this hypothetical, it is not clear that her security of the person interest is also engaged. She cannot afford her apartment because she does not earn enough income. It is not clear that the link between her inability to pay rent and the impugned law prohibiting procuring constitutes a “sufficient causal connection”, as required by Bedford , at para. 75. Nor is it clear how the provision engages the security of the person interest of the young vulnerable person. As noted above and as further explored below, there is nothing in the PCEPA that prevents her from joining cooperatively with others selling their own sexual services, or from approaching someone more experienced for advice. I doubt whether the assertion in the hypothetical that she did not believe she had any other options can meet the threshold set out in Bedford . [94] Assuming, however, without determining, that their security of the person is engaged, I reject Mr. Boodhoo’s argument, and the application judge’s conclusion, that the procuring provision is contrary to the principles of fundamental justice because it is overbroad and its impact grossly disproportionate. [95] Below, I first address the scope of s. 286.3. Then I explain why the procuring provision does not violate s. 7. The scope of s. 286.3 [96] As this court explained in Gallone , at para. 59, there are two modes of committing the actus reus of the procuring offence: 1. The accused person “procures a person to offer or provide sexual services for consideration”; or 2. The accused “recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person.” [97] “Procuring” means to cause, or to induce, or to have a persuasive effect on the conduct that is alleged: Gallone , at para. 61. [98] To prove mens rea for the first mode, the Crown must prove that the accused intended to procure a person to offer or provide sexual services for consideration. [99] For the second mode, the Crown must prove that the accused intended to do anything that satisfies the actus reus for this mode in relation to the person who offers or provides sexual services for consideration, and that the accused acted with the purpose of facilitating an offence under s. 286.1(1): Gallone , at para. 63. [100] A “purpose” requirement imposes a “high” “specific intent” mens rea : R. v. Khawaja , 2012 SCC 69, [2012] 3 S.C.R. 555, at paras. 45-47; R. v. Legare , 2009 SCC 56, [2009] 3 S.C.R. 551, at paras. 32-33; R. v. Joseph , 2020 ONCA 733, 153 O.R. (3d) 145, at para. 88. More than knowing facilitation is required: the accused must specifically intend his actions to have the effect of facilitating the offence: Khawaja , at para. 46; R. v. Briscoe , 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 16-18; Joseph , at para. 88. The intention of the accused must be determined subjectively: Legare , at paras. 32, 35. [101] Turning first to the students in the hypotheticals before the application judge, the application judge found that they committed the second mode of the actus reus of the procuring offence: by assisting each other in conducting commercial sex, in assisting in advertising, in obtaining clients and in providing accommodation to conduct commercial sex work, each concealed, harboured and exercised control, direction and influence. Further, each did so for the purpose of facilitating commercial sex work. [102] The application judge did not explain how the students’ conduct constituted concealing, harbouring or exercising control, direction or influence, within the meaning of those terms in s. 286.3. I do not understand how, on the hypotheticals before him, the students “concealed” one another. On my reading of the hypotheticals, the students did not hide one another. [103] Nor is it clear that the students harboured each other, within the meaning of that term in s. 286.3. In R. v. Joseph , at para. 86, this court clarified that “harbour” includes the provision of shelter, whether secretly or not. In Joseph , the accused arranged for the complainants to sell sexual services from his apartment. The court did not consider whether two persons leasing premises together that both will use to sell their sexual services (Hypothetical 2) or leasing a room to a person who provides sexual services for consideration (Hypothetical 4) constitutes “harbouring”. Arguably, in Hypothetical 2, each student secured her own shelter by joining in the lease for the apartment. And when, in Hypothetical 4, the third student leased a room in the apartment from them, he similarly secured his own shelter. I note that in R. v. Y.S. , 2021 ONSC 4010, at para. 188, LeMay J. held that the accused did not harbour the complainant when he shared a hotel room with her for which she paid with her earnings from selling her sexual services. Further, given that legitimate rental arrangements are exempted from the material benefits offence, it would make little sense to find that they violated the procuring offence, which provides for a longer maximum term of imprisonment. This, however, is an issue for another day, with the benefit of full argument. [104] “Exercising influence” over a person’s movements has been broadly defined and is less coercive than exercising control or direction. For that reason, I will focus on it. “Exercising influence” over a person’s movements means doing anything to affect the person’s movements. It includes anything done to induce, alter, sway or affect the will of the person. It is like proposing an idea and persuading the person to adopt it: Gallone , at para. 47. [105] In determining whether what each student did amounted to exercising influence over the movements of another student or students, the application judge was required to consider the nature of the relationship between them and the impact of the alleged influencing student’s conduct on the allegedly influenced student: R. v. Ochrym , 2021 ONCA 48, 69 C.R. (7th) 285, leave to appeal ref’d, [2021] S.C.C.A. No. 106. He did not do so, and, on these hypotheticals, it is not clear that what each student did amounted to “exercising influence” over the movements of another student. [106] Further, as noted above in para. 99, exercising influence is only an offence if the accused intended to exercise influence over the movements of the person who offers or provides sexual services for consideration. The hypotheticals are bereft of facts that support the inference that each of the students intended to exercise influence over the movements of the others. [107] The scope of all the conduct captured in the second mode of the actus reus of the procuring offence is significantly narrowed by their purpose requirement. As discussed above, the conduct captured in the second mode is only an offence if it is done for the purpose of facilitating an offence under s. 286.1. While earlier in his reasons, the application judge correctly identified this as the relevant mens rea , he later equated the purpose of “facilitating commercial sex work” with that of facilitating an offence under s. 286.1. Even if the students’ conduct constituted “concealing”, “harbouring” or “exercising influence”, and the students intended that conduct, the application judge erred by equating the purpose of “facilitating commercial sex work” with the purpose of facilitating an offence under s. 286.1. Facilitating an offence under s. 286.1 is narrower than facilitating commercial sex work. [108] The offence in s. 286.1 is obtaining for consideration or communicating with anyone for the purpose of obtaining for consideration the sexual services of a person. The offence is not providing sexual services for consideration. The purpose requirement in s. 286.3 is therefore tied directly to the asymmetrical scheme of the PCEPA. The Crown must prove that the accused intended to assist the principal in the commission of the offence in s. 286.1: Briscoe , at para. 16. [109] If the students concealed or harboured each other, or exercised influence, the hypotheticals do not support a finding that they subjectively intended to assist a buyer in obtaining for consideration or communicating with anyone for the purpose of obtaining for consideration the sexual services of another of those students. Any concealing, harbouring or exercising influence was for the purpose of facilitating the sale by the student who was concealed, harboured or influenced of their own sexual services for consideration and not for facilitating the obtaining of their sexual services for consideration by others. This may seem like a fine point of logic, but it flows directly from the wording of s. 286.3 and the scheme of the PCEPA. [110] Turning to the advising sex worker in Hypothetical 2, the application judge concluded that providing advice on safety issues did not offend s. 286.3 because the purpose of the advice was not to facilitate an offence. He concluded, however, that in providing advice on how to set up, advertise and conduct oneself, the advising sex worker exercised control, direction or influence over the movements of the students and inferred that she did so for the purpose of facilitating commercial sex work. [111] Again, the application judge did not explain why he found that the conduct amounted to the exercise of control, direction or influence, taking into account the nature of the relationship between the students and the advisor. And, again, the application judge erred by equating facilitating commercial sex work with facilitating an offence under s. 286.1. [112] Here, if the provision of the advice amounted to the exercise of influence over the movements of the students, and it can be inferred from the nature of the actions and the knowledge of the advisor that she intended to exercise influence over their movements, it was not for the purpose of facilitating an offence under s. 286.1. [113] The scenario cannot support the inference that the advisor subjectively intended to assist the buyer in obtaining for consideration or communicating with any person for the purpose of obtaining for consideration the sexual services of a person. The advice was provided to the students for the purpose of facilitating the sale by them of their own sexual services for consideration – in particular, in the safest manner possible – and not to facilitate the obtaining of their sexual services for consideration by others. [114] The criminal law is familiar with asymmetrical offences, and trial judges are adept at inferring which side of the transaction an accused intended to facilitate: R. v. Greyeyes , [1997] 2 S.C.R. 825, at para. 8. Depending on the facts in a given case, a person may intend to assist the buyer, the seller or both. Each case will turn on the specific facts from which such an intention could be inferred. For example, consider someone who harbours another person who provides sexual services for consideration. He rents a hotel room, arranges for both buyer and seller to use it for the sale of sexual services, and expects to derive a financial benefit from the sale of sexual services. While the harbouring person’s actions may incidentally benefit the seller, it is chiefly designed to assist the buyer, who is the prospective source of the financial benefit, and the harbouring person would be quite rightly subject to prosecution. The hypotheticals before the application judge do not contain sufficient facts to infer that intention. [115] Finally, turning to the woman in Mr. Boodhoo’s hypothetical who recruits her friend, as indicated above, I agree that she is guilty of procuring. She commits the first mode of the actus reus: she causes, induces or has a persuasive effect on her friend providing her sexual service for consideration. The mens rea for this first mode is also made out. On the hypothetical, she intended to procure her friend to offer or provide sexual services for consideration. Accordingly, I must go on to assess whether the deprivation of her liberty and security of the person violates s. 7. Section 286.3 does not violate s. 7 [116] As explained above, whether an impugned provision violates s. 7 requires identifying the provision’s purpose. [117] The application judge said this, at para. 159, regarding the purpose of s. 286.3(1): [It] denounces and prohibits the procuring and facilitating by third parties in commercial sex work. Its goal is to prohibit third parties’ who make money from commercial sex work from being involved. [118] Having determined the purpose of s. 286.3, however, he appears to have assessed overbreadth and gross disproportionality against what he viewed as one of the purposes of the PCEPA (to protect sex workers from violence, abuse and exploitation to protect the health and safety of sex workers), rather than against the objective of s. 286.3, as he was required to do. The application judge found that the procuring provision was overbroad because it limits or prevents some means of protection and safety for some, if not all sex workers, contrary to the goal of protecting their health and safety. Counsel for Mr. Boodhoo also rests his argument that the procuring provision is overbroad on his view that one of the objectives of the PCEPA is to “protect sex workers”. [119] While the purposes of the broader scheme can inform the purpose of an individual provision, a provision need not conform to each and every purpose of the statute. For example, in R. v. Appulonappa , 2015 SCC 59, [2015] 3 S.C.R. 754, although the Immigration and Refugee Protection Act , S.C. 2001, c. 27, had multiple purposes, the impugned provision was found to have only a single purpose. Similarly, in Canada (Attorney General) v. PHS Community Services Society , 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 110, the Supreme Court held the Controlled Drugs and Substances Act , S.C. 1996, c. 19, had two purposes: public health and public safety. In considering the individual provisions of the Act, however, McLachlin C.J. found that some provisions supported the public health objective, while others supported both public safety and public health. See also R. v. Meads , 2018 ONCA 146, at para. 32, in which Sharpe J.A. held that two provisions in the same section of the Criminal Code could have different purposes. Moreover, as explained earlier in these reasons, I would not characterize the safety-related objectives of the PCEPA in the same manner as the application judge. [120] I do not agree with Mr. Boodhoo that R. v. Michaud , 2015 ONCA 585, 127 O.R. (3d) 81, leave to appeal ref’d, [2015] S.C.C.A. No. 450, is of assistance here. In Michaud , Lauwers J.A. accepted the trial judge’s finding that one section of the Highway Traffic Act , R.S.O. 1990, c. H.8, had three purposes: reducing greenhouse gas emissions, reducing the severity of collisions, and preventing accidents. The expert evidence in that case established that the section did not, in some instances, prevent accidents, although it met the other two purposes. Lauwers J.A. held that on the reasoning of Bedford , the provision was overbroad because it did not fulfill one of its own three purposes. Here, in contrast, we are not dealing with a provision with multiple purposes. [121] I would characterize the purpose of s. 286.3 slightly differently from the application judge. I would describe its purpose as to denounce and prohibit the promotion of the prostitution of others in order to protect communities, human dignity and equality. Promoting prostitution encourages an activity that Parliament considers inherently exploitative. Section 286.3 gives effect to this purpose by prohibiting a wide range of conduct intended to procure a person to offer or provide sexual services for consideration and conduct engaged in for the purpose of facilitating an offence under s. 286.1(1). [122] The purpose of the procuring offence does not include giving effect to the safety-related objective of the PCEPA with respect to those who continue to sell their sexual services for consideration. This makes sense. The aim of s. 286.3 is to prohibit the promotion of the prostitution of others . Section 286.3 is concerned with their safety by discouraging entry into and deterring participation in an activity that Parliament views as inherently exploitative and exposing risks of violence to those who engage in it. [123] As discussed above, the safety-related objective of the PCEPA with respect to those who continue to sell their sexual services for consideration is given effect by other provisions: in particular, the exceptions to the material benefit offence, the exceptions to the exceptions, and the provision of immunity from prosecution where the offence relates to the offering or provision of a person’s own sexual services. This, as the preamble notes, is “to encourage those who engage in prostitution to report incidents of violence and to leave prostitution.” Section 286.3 contains no such exception because it does not target the provision of a person’s own sexual services, but targets those who promote the prostitution of others. [124] The procuring offence is not overbroad. The prohibited conduct – a wide range of conduct intended to procure a person to offer or provide sexual services for consideration or engaged in for the purpose of facilitating an offence under s. 286.1 – is directly and rationally related to the purpose of the provision. [125] Nor is its impact on Mr. Boodhoo’s hypothetical procuring sex worker grossly disproportionate. The specific nature of the right interfered with, and the nature of that interference, are relevant to the gross disproportionality analysis. As to the hypothetical procuring sex worker’s liberty interest, as was the case in R. v. Malmo-Levine , 2003 SCC 74, [2003] 3 S.C.R. 571, her potential imprisonment falls “within the broad latitude within which the Constitution permits legislative action”: at para. 175. [126] Meanwhile, the security of the person interest advanced in Mr. Boodhoo’s hypothetical is that the procuring sex worker continues to engage in an illegal activity, but in a manner more dangerous to her. This harm is not grossly disproportionate to the objective of denouncing and prohibiting the promotion of that illegal activity. Recall that, as the preamble to the PCEPA illustrates, Parliament views prostitution as inherently exploitative, entailing risks of violence to those who engage in it, causing social harm by the objectification of the human body and commodification of sexual activity and an affront to human dignity. Given this, the alleged impact on the procured person’s security of the person is even more justified. [127] The application judge found that s. 286.3 (and the other impugned provisions) were grossly disproportionate because, “Parliament cannot allow sex work to continue and then grossly limit or prevent the sex worker’s ability to protect their security”: at para. 178. He rejected the Crown’s argument that conduct in relation to which a person enjoys immunity under s. 286.5 is unlawful and, therefore, this case is different from Bedford . In concluding that in Bedford there was a sufficient causal connection between the impugned provisions and the prejudice suffered to engage s. 7, McLachlin C.J. wrote, at para. 89, that, “[t]he impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against those risks.” The application judge characterized conduct in respect of which a person is immune from prosecution under s. 286.5 as “statutorily allowed”. He held, at para. 175, that “the impugned provisions cannot make an allowed activity more dangerous” (emphasis added). In so doing, he equated “allowed” activity to the “lawful” activity in Bedford . [128] It is clear that Parliament views prostitution in a fundamentally different way than it did prior to the enactment of the PCEPA. As this court said in Gallone , at para. 94, the immunity provision does not “legalize” the conduct in relation to which a person enjoys immunity under s. 286.5. It simply exempts persons from prosecution in relation to that conduct. Parliament could have, but did not, provide that the conduct that enjoys immunity from prosecution does not constitute an offence: see comments of Minister MacKay and Mr. Donald Piragoff (Senior Assistant Deputy Minister, Policy Sector, Department of Justice), Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs , 41st Parl., 2nd Sess., No. 15 (9 September 2014), at pp. 12, 15-16, 25-26, and 36-37. [129] I acknowledge that in PHS Community Services , McLachlin C.J., writing for the court, stated at para. 102 that “[t]he morality of the activity the law regulates is irrelevant at the initial stage of determining whether the law engages a s. 7 right.” Yet the application judge did not consider whether prostitution was illegal at the initial stage of determining whether the s. 7 rights of the students were engaged. He did so in his analysis of whether the impugned provisions were grossly disproportionate. The fact that an activity is unlawful is relevant in considering the weightiness of a provision’s objective and whether an impugned provision deprives a person of the rights protected by s. 7 in a manner that is grossly disproportionate to that objective. [130] I will add this. The application judge accepted that research indicates individuals who provide sexual services for consideration are not necessarily exploited: while there are situations where sex workers are exploited by third parties, many sex workers reported a conscious decision to provide sexual services in the context of “the socio-economic realities of their lives” (at paras. 30 and 89). The evidence before the application judge stated that some sex workers cited factors such as the need for money, independence, flexibility, and the nature of the work. [131] Even accepting this evidence, it is clear from the preamble to the PCEPA and Minister MacKay’s description of prostitution as “inherently degrading” before the Senate Committee on Legal and Constitutional Affairs (at p. 12), that Parliament views prostitution as inherently exploitative, even where the person providing the sexual services for consideration made a conscious decision to do so. VIII. SECTION 286.4 (ADVERTISING) The application judge’s reasons [132] The application judge found that post-PCEPA, the digital world is used more frequently to facilitate contact, communication and the providing of information. Sex workers who advertise in newspapers, online classifieds or on commercial sex work websites are more likely to communicate with potential clients before meeting in person: at paras. 89(j) and (k). [133] He further found that the effect of the prohibition on advertising in s. 286.4 was that sex workers who attempt to advertise must do so surreptitiously and use coded language. The evidence before him, and in Bedford , was that communication is critical to the safety and security of the sex worker. He found that the “security of the students in the hypotheticals would be infringed by the inability of frank and detailed information and communication in their advertisement of the sexual services offered and expectations for such sexual services”: at para. 121. [134] The application judge held that the provision was overbroad for the same reason as the procuring offence: Parliament had indicated that one of the objectives is to protect sex workers and the impugned provision limits or prevents some means of protection and safety for some, if not all, sex workers. [135] Further, its impact is grossly disproportionate. At para. 177, the application judge held that “[t]he objective of eliminating or lessening commercial sex work through the banning of advertising cannot be made at the safety and security of commercial sex workers.” Parliament cannot allow sex work to continue and then grossly limit or prevent sex workers’ ability to protect their safety. Analysis [136] First, I review the evidence before the application judge, and what Bedford said on the issue of communication. Then I consider whether s. 7 is engaged. Next I consider the purpose of s. 286.4 and whether, having regard to that purpose, s. 286.4 deprives the hypothetical sex worker of security of the person in a manner that is overbroad or grossly disproportionate. [10] The evidence before the application judge [137] The respondent relied on the evidence of Chris Atchison. [11] Mr. Atchison has a Master’s in Criminology from Simon Fraser University and has published numerous academic articles and research studies on sex work in Canada. He was among those who provided testimony to the House of Commons and Senate standing committees on Bill C-36. [12] [138] The application judge qualified Mr. Atchison to provide expert evidence on the field of social sciences research, theory and findings on the structure, operation and composition of commercial sex work in Canada and other jurisdictions and the legal regime concerning commercial sex work in Canada and other jurisdictions. [139] The application judge rejected the Crown’s argument that Mr. Atchison was biased. He accepted that Mr. Atchison’s evidence was not statistically based but found the evidence of Mr. Atchison “credible and compelling”. [140] Mr. Atchison testified that advertisement was a fundamental initial way for sex workers and people who owned and operated commercial sex establishments to clearly relay the boundaries and the services offered to prospective clientele. It sets the stage for the initial interaction between sex workers and prospective clients. The more capacity there is to exchange information, the less likely sex workers or their clients were to report that there was any form of conflict in their actual physical exchanges. Restricted capacity to communicate or unclear communications were frequently associated with higher levels of conflict. [141] According to Mr. Atchison, following the passage of the PCEPA, advertisement migrated to off-shore locations. Advertisements on third-party sites began using vague language in order not to be flagged or trigger a complaint and be taken down by site administrators: e.g., talking about 2 or 3 roses for a certain kind of date [13] , or saying “safe only” to mean that condoms must be used. He testified that there is empirical evidence that a lack of clarity between buyer and seller leads to physical conflict. [142] Mr. Atchison also agreed that through the ads the sellers make it possible for the buyers to contact them, in some forum – text, email, or phone call. Mr. Atchison testified that the average number of communications before a physical encounter was 4 to 4.2. It is open to the seller to disengage if they are not happy with the communications or are not getting sufficient information. What Bedford said on the subject of communication [143] Recall that Bedford was not about advertising. Bedford was about the ability of prostitutes to communicate in public for the purpose of prostitution. [144] In Bedford , the application judge found that face-to-face communication was an “essential tool” in enhancing street prostitutes’ safety. Such communication allows prostitutes to screen prospective clients for intoxication or a propensity for violence, which can reduce the risks that they face. The Supreme Court agreed with the application judge, at para. 71, that this evidence engaged security of the person under s. 7: By prohibiting communication in public for the purpose of prostitution, the law prevents prostitutes from screening clients and setting terms for the use of condoms or safe houses. In these ways, it significantly increases the risks they face. [145] As indicated above, in response to Bedford , Parliament also replaced the communicating offence in s. 213(1)(c) of the Criminal Code . Now, except for communications in public places that impede traffic or take place in or next to school grounds, playgrounds or day care centres, communications in public by a sex worker are no longer criminalized. [146] Further, a provider of her own sexual services for consideration who sends texts or emails to or phones a prospective client in follow up to a response to an advertisement for the provision of sexual services enjoys immunity from prosecution under s. 286.5(2). Is s. 7 engaged? [147] The evidence before the application judge was not , and the application judge did not find, that because advertising is unlawful, persons who previously advertised their provision of sexual services for consideration are instead resorting to attracting new clients by riskier means, such as in-person, street-level solicitations. Rather, the evidence was that they continue to advertise but employ vaguer language, depriving the hypothetical provider of sexual services of security of the person: at para. 121. [148] Bedford instructs that trivial impairments on security of the person do not engage s. 7: at para. 91. While an advertisement which, up-front, clearly sets out the terms and conditions for the provision of sexual services, may reduce the need for, or improve, further communications between the provider and the prospective client, the provider necessarily communicates further with the prospective client before an in-person encounter. The prohibition on advertising does not affect the ability of the provider to communicate frankly and in a detailed manner before an in-person encounter. The provider benefits from immunity from prosecution under s. 286.5. [149] Mr. Atchison’s evidence was that prospective purchasers of sexual services fear arrest, and that fear affects the effectiveness of the communications between the provider of the sexual services and the purchaser. Any vague language in subsequent texts, emails or phone calls between the provider and the prospective client presumably arises because of the prospective client’s concern about liability under s. 286.1, and not because of the prohibition on advertising. As stated before, that section is not at issue on this appeal. [14] [150] In any event, any impairment of security of the person because, as a result of s. 286.4, providers of sexual services for consideration use vaguer language in their advertisements is, on this record, trivial. [151] While that conclusion is dispositive in relation to the application judge’s finding, I will nonetheless address the application judge’s characterization of the purpose of s. 286.4 and his findings that the section is overbroad and its impact grossly disproportionate. The purpose of s. 286.4 [152] The application judge identified the objective, or one of the objectives, of s. 286.4 as eliminating or lessening commercial sex work. In my view, s. 286.4 has a single purpose: to reduce the demand for the provision of sexual services for consideration in order to protect communities, human dignity and equality. Other provisions, including those discussed earlier in these reasons, are animated by Parliament’s safety-related objective in relation to those who continue to provide their sexual services for consideration. Section 286.4 is not overbroad nor grossly disproportionate [153] In my view, s. 286.4 is not overbroad. As noted above, a provision suffers from overbreadth when it is so broad in scope that it includes some conduct that bears no connection to its objective. The purpose of s. 286.4 is to reduce demand for unlawful conduct – the provision of sexual services for consideration. The prohibited conduct – advertising – is directly and rationally connected to this objective. The purpose of advertising is to obtain clients, that is, to increase demand for an unlawful service. Advertising also promotes the objectification of the human body and the commodification of sexual activity: social harms identified by Parliament in the preamble to the PCEPA. [154] Nor is s. 286.4 grossly disproportionate. This is not one of those “extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure”: Bedford , at para. 120. The effects of s. 286.4 do not grossly outweigh its benefits. On this record, the prohibition on advertising does not prevent the provider from communicating frankly and in a detailed manner before an in-person encounter. IX. SECTION 2(b) OF THE CHARTER [155] The application judge rejected the respondent’s argument that the advertising prohibition was an unjustified infringement of s. 2(b). He held that he was bound by this court’s decision in Bedford , which held that the Supreme Court had definitively decided this issue in the Prostitution Reference and only that court may revisit it. Because of that decision, and the reasoning in the Prostitution Reference , he concluded that s. 286.4 is a reasonable limit, demonstrably justified in a free and democratic society. [156] The respondent renews his argument that s. 286.4 violates s. 2(b) of the Charter . The appellant properly concedes that the advertising provision engages the right to freedom of expression in s. 2(b) of the Charter . The issue is whether it is justified under s. 1 of the Charter . [157] The Supreme Court in the Prostitution Reference and this court in Bedford considered the prohibition on communicating in public in s. 213(1)(c) and not a prohibition on advertising. Further, the prohibition on communicating in public had a different purpose than s. 286.4. I agree with the application judge, however, that s. 286.4 is justified under s. 1 of the Charter . That conclusion is more readily compelled in this case than in the Prostitution Reference . [158] Section 1 provides: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [159] Reasonable limits on rights will be demonstrably justified when (a) they have a pressing and substantial objective and (b) the means chosen to advance the objective do not disproportionately limit the right. Proportionality requires that the means be rationally connected to the objective, be minimally impairing, and have benefits that outweigh their negative effects: Carter v. Canada (Attorney General) , 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 94. [160] The legislative objective of the prohibition on communicating in public accepted by Dickson C.J. in the Prostitution Reference and upheld in Bedford was to take “solicitation for the purposes of prostitution off the streets and out of public view”. The objective of s. 286.4 is more pressing and substantial. Obtaining sexual services for consideration is now unlawful. The purpose of s. 286.4 is to reduce the demand for an unlawful activity. [161] Section 286.4 addresses itself precisely to that objective by prohibiting advertising, which increases demand. It is therefore rationally connected to its objective. [162] The prohibition on advertising is reasonably tailored to the provision’s objective of reducing the demand for the provision of sexual services for consideration in order to protect communities, human dignity and equality. It does not prevent providers of sexual services from communicating with prospective clients before an in-person encounter by text, email or phone. It cannot be said that the prohibition on advertising is unduly intrusive. [163] Finally, the provision’s harms are not disproportionate to its benefits. As in the Prostitution Reference , the prohibited expression is directed at an economic interest. As Dickson C.J. stated in the Prostitution Reference , “It can hardly be said that communications regarding an economic transaction of sex for money lie at, or even near, the core of the guarantee of freedom of expression.” And the record does not establish serious harms: providers of sexual services for consideration continue to advertise and communicate with clients, and are protected by the immunity provisions. Meanwhile, Parliament has identified an array of serious social harms caused by prostitution, including harms to the community and exposure to children, which s. 286.4 aims to curb. There is no disproportionality here. X. SECTION 2(d) OF THE CHARTER [164] The respondent renews his position on appeal that the material benefit, procuring and advertising provisions violate the right to freedom of association under s. 2(d). He relies on Health Services and Support - Facilities Subsector Bargaining Assn v. British Columbia , 2007 SCC 27, [2007] 2 S.C.R. 391, at para. 35: Government measures that substantially interfere with the ability of individuals to associate with a view to promoting work-related interests violate the guarantee of freedom of association under s. 2(d) of the Charter. [165] He argues that by criminalizing cooperative arrangements and the retention of third party advisors, the material benefit and procuring provisions substantially interfere with the ability of those who provide sexual services for consideration to associate with others with a view to promoting their work-related interests – in particular, the pursuit of improved personal and workplace health and safety. He further argues that s. 286.4 prevents persons who provide sexual services for consideration from associating with those who assist with advertising, which could ensure clear communications with prospective clients. [166] I reject these arguments. [167] This case is very different from Health Services . Health Services held that s. 2(d) protects collective bargaining rights. Accordingly, provisions in the British Columbia law that gave health care employers greater flexibility to organize their relationships with their employees in a way that invalidated provisions of a collective bargaining agreement and precluded meaningful collective bargaining on a number of issues violated s. 2(d). [168] This case is not about unionized employees and the impact on collective bargaining; nor is it about persons engaging in lawful work. It is about persons who are providing sexual service for consideration, contrary to law. In adopting a variant of the Nordic model, Parliament rejected an approach that would characterize persons who provide sexual services for consideration as “workers” and prostitution as legal sex “work”. [169] Moreover, s. 2(d) will only be infringed where the state precludes activity because of its associational nature: Harper v. Canada (Attorney General) , 2004 SCC 33, [2004] 1 S.C.R. 827, at para. 125. Only the associational aspect of the activity is protected. The PCEPA does not prevent individuals from joining or forming an association in the pursuit of a collective goal. Rather, it precludes both individuals and groups from undertaking certain activities, subject to the exceptions and immunities already described in these reasons. XI. DISPOSITION [170] For these reasons, I would allow the appeal, set aside the respondent’s acquittals, and order a new trial. Released: February 24, 2022 “A.H.” “Alexandra Hoy J.A.” “I agree. S. Coroza J.A.” “I agree. Sossin J.A.” APPENDIX A Commodification of Sexual Activity Obtaining sexual services for consideration 286.1 (1) Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than five years and a minimum punishment of, (i) in the case where the offence is committed in a public place, or in any place open to public view, that is or is next to a park or the grounds of a school or religious institution or that is or is next to any other place where persons under the age of 18 can reasonably be expected to be present, (A) for a first offence, a fine of $2,000, and (B) for each subsequent offence, a fine of $4,000, or (ii) in any other case, (A) for a first offence, a fine of $1,000, and (B) for each subsequent offence, a fine of $2,000; or (b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to a minimum punishment of, (i) in the case referred to in subparagraph (a)(i), (A) for a first offence, a fine of $1,000, and (B) for each subsequent offence, a fine of $2,000, or (ii) in any other case, (A) for a first offence, a fine of $500, and (B) for each subsequent offence, a fine of $1,000. Obtaining sexual services for consideration from person under 18 years (2) Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person under the age of 18 years is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of (a) for a first offence, six months; and (b) for each subsequent offence, one year. Subsequent offences (3) In determining, for the purpose of subsection (2), whether a convicted person has committed a subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence: (a) an offence under that subsection; or (b) an offence under subsection 212(4) of this Act, as it read from time to time before the day on which this subsection comes into force. Sequence of convictions only (4) In determining, for the purposes of this section, whether a convicted person has committed a subsequent offence, the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences, whether any offence occurred before or after any conviction or whether offences were prosecuted by indictment or by way of summary conviction proceedings. Definitions of place and public place (5) For the purposes of this section, place and public place have the same meaning as in subsection 197(1). Material benefit from sexual services 286.2 (1) Every person who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1), is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or (b) an offence punishable on summary conviction. Presumption (3) For the purposes of subsections (1) and (2), evidence that a person lives with or is habitually in the company of a person who offers or provides sexual services for consideration is, in the absence of evidence to the contrary, proof that the person received a financial or other material benefit from those services. Exception (4) Subject to subsection (5), subsections (1) and (2) do not apply to a person who receives the benefit (a) in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived; (b) as a result of a legal or moral obligation of the person from whose sexual services the benefit is derived; (c) in consideration for a service or good that they offer, on the same terms and conditions, to the general public; or (d) in consideration for a service or good that they do not offer to the general public but that they offered or provided to the person from whose sexual services the benefit is derived, if they did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service or good. No exception (5) Subsection (4) does not apply to a person who commits an offence under subsection (1) or (2) if that person (a) used, threatened to use or attempted to use violence, intimidation or coercion in relation to the person from whose sexual services the benefit is derived; (b) abused a position of trust, power or authority in relation to the person from whose sexual services the benefit is derived; (c) provided a drug, alcohol or any other intoxicating substance to the person from whose sexual services the benefit is derived for the purpose of aiding or abetting that person to offer or provide sexual services for consideration; (d) engaged in conduct, in relation to any person, that would constitute an offence under section 286.3; or (e) received the benefit in the context of a commercial enterprise that offers sexual services for consideration. Procuring 286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years. Advertising sexual services 286.4 Everyone who knowingly advertises an offer to provide sexual services for consideration is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than five years; or (b) an offence punishable on summary conviction. Immunity — material benefit and advertising 286.5 (1) No person shall be prosecuted for (a) an offence under section 286.2 if the benefit is derived from the provision of their own sexual services; or (b) an offence under section 286.4 in relation to the advertisement of their own sexual services. Immunity — aiding, abetting, etc. (2) No person shall be prosecuted for aiding, abetting, conspiring or attempting to commit an offence under any of sections 286.1 to 286.4 or being an accessory after the fact or counselling a person to be a party to such an offence, if the offence relates to the offering or provision of their own sexual services. [1] R.S.C. 1985, c. C-46. [2] The Supreme Court used the term “prostitutes” in Bedford . The new legislation refers to someone who provides sexual services for consideration in the body but refers to prostitution in the preamble. The application judge used the term “sex worker”. I will use the terms that Bedford used when discussing Bedford , the terms used in the legislation where appropriate and the terms the application judge used when discussing his reasons. [3] Section 286.1(2) creates a separate offence, with more severe punishment, in the case of the sexual services of a person under the age of 18 years. [4] The Canadian Alliance for Sex Work Law Reform (a coalition of 25 sex workers’ rights organizations), a number of current and former sex workers, and Tiffany Anwar were granted leave to intervene on this appeal: R. v. N.S. , 2021 ONCA 605. Ms. Anwar ran an escort agency and was charged with offences under ss. 286.2(1), 286.3(1), and 286.4 of the Criminal Code . She was acquitted in 2020 after McKay J. found the provisions to be unconstitutional: R. v. Anwar , 2020 ONCJ 103, 62 C.R. (7th) 402. Although they were represented by different counsel, these interveners delivered a joint factum and Mr. Lockyer and Mr. Rosenberg made oral submissions on behalf of them all. These interveners offer the perspective of a subset of those who provide sexual services for consideration as a freely chosen occupation: sex workers. The heart of their submission is that the premise underlying the PCEPA – that exploitation is inherent in prostitution – is flawed and not supported by the evidence; the Nordic model is not effective; and, by criminalizing prostitution, the PCEPA subjects sex workers to danger and violates their rights under s. 7 of the Charter . These are issues for another day. [5] Section 286.2(2) creates a separate offence, with more severe punishment, in the case of a material benefit derived directly or indirectly from the commission of an offence under s. 286.1(2). [6] Section 286.3(2) creates a separate offence, with more severe punishment, for procuring a person under the age of 18 years. [7] 2012 ONCA 186, 128 O.R. (3d) 385 . In Bedford , the Supreme Court did not consider whether it could depart from its s. 2(b) conclusion in the Prostitution Reference because it resolved the appeal on s. 7 grounds. [8] As discussed below, Deshon Boodhoo was also granted leave to intervene on this appeal and proposed hypotheticals for the court’s consideration. One involves persons working in a cooperative arrangement. It does not differ from the respondent’s hypothetical in any material respect. Accordingly, I do not address it in these reasons. [9] I n his reasons, the application judge refers to s. 286.2(3). I have assumed that this is a typo, and his intended reference was to s. 286.3 as the phrase in which the quoted passage appears addresses procuring. [10] Hypothetical 2 before the application judge involved the students retaining the services of a website designer. Because the hypothetical did not state that the website was jointly used by the students, he concluded that the students would enjoy the immunity under s. 286.5. The respondent takes no issue with that conclusion. Mr. Boodhoo’s hypothetical raises the possibility of the two cooperating sex workers being caught by the advertising provision for advertising “together”, such that they could not benefit from the immunity for advertising their own sexual services. Hypotheticals must contain sufficient details to permit the court to properly analyze the constitutional claim. In the absence of further details, I decline to address this issue further. Simply stating that the sex workers are advertising “together” is not sufficient for this purpose. [11] Much of Mr. Atchison’s evidence addressed the impact of the criminalization of obtaining sexual services for consideration, which is not an issue on this appeal. [12] Mr. Atchison was among those who opposed the Nordic Model. See House of Commons, Standing Committee on Justice and Human Rights, Evidence , 41st Parl., 2nd Sess., No. 39 (9 July 2014) at pp. 2-4 (Chris Atchison). [13] Mr. Atchison said that three hearts would mean $300. Some of the sample advertisements in the record are less opaque. They refer to 200 or 300 roses, and, in the context, mean $200 or $300. [14] The Alliance also argues that sex workers’ ability to consent to sexual activity, and therefore their personal autonomy, is compromised by their need to use vague language in advertisements and clients’ use of vague language in communications with the sex worker. The Alliance’s argument about the consequences of the use of vague language in the advertisements is addressed above. Its argument that s. 286.1 impairs sex workers’ right to consent to sexual activity is for another day.

COURT OF APPEAL FOR ONTARIO CITATION: Krause v. Bougrine, 2022 ONCA 161 DATE: 20220224 DOCKET: C69816 MacPherson, van Rensburg and Roberts JJ.A. BETWEEN Interjurisdictional Support Orders Unit Director, Family Responsibility Office for the benefit of Catarina Elisabet Krause Applicant/Respondent (Appellant) and Hassan Bougrine Respondent/Appellant (Respondent) and Catarina Elisabet Krause Respondent/Respondent (Respondent) Heather Puchala and Michelle Douglas-Cummings, for the appellant Dhiren R. Chohan and Matthieu M. Butler, for the respondent Catarina Krause, acting in person Heard: January 27, 2022 by video conference On appeal from the judgment of Justice R. Dan Cornell of the Superior Court of Justice, dated August 10, 2021 and reported at 2021 ONSC 5269, allowing the appeal from the judgment of Justice Andre L. Guay of the Ontario Court of Justice dated May 29, 2019 and the final order dated October 19, 2020. MacPherson J.A.: A. introduction [1] This appeal involves a payor (or, more accurately, a non-payor) who resides in Ontario, a recipient of child support for her two children who resides in Finland, and the Interjurisdictional Support Orders Unit (“the ISO Unit”) which is pursuing the appeal for the benefit of the support recipients. [2] The ISO Unit of the Family Responsibility Office administers Ontario’s Interjurisdictional Support Orders Act, 2002 , S.O. 2002, c. 13 (“ ISO Act ”), which streamlines the process for obtaining, varying and enforcing support orders involving one party who lives in Ontario and one party in a reciprocating jurisdiction. Once an order has been registered, established, or varied using the ISO Act , it can be filed with the Family Responsibility Office (“FRO”) for enforcement. The FRO will then enforce such an order the same way it would enforce an Ontario order. [3] The central issue on the appeal is whether an Ontario court can make a support order when one already exists in Finland. More specifically, the appeal concerns the jurisdiction of the Ontario Court of Justice to hear a support application and make a support order pursuant to the ISO Act in circumstances where the registration for enforcement of a foreign support order from a reciprocating jurisdiction (Finland) has been set aside by an Ontario court. B. facts (1) The parties and events [4] Hassan Bougrine and Catarina Krause were married in Finland in 2003. They divorced in 2004. There are two children from their relationship, a son and a daughter. [5] Bougrine has resided in Ontario since 2007. He has been a professor at Laurentian University and was Chair of the Commerce Department. [6] Krause has resided in Finland and raised the two children there except for a 14-month period in 2012-2014 when Bougrine abducted the children to Morocco. [7] In 2010, the District Court of Varsinais-Suomi in Finland awarded custody of the two children to Krause and made a support order requiring Bougrine to pay child support of 350 Euros per month per child (the “Finnish Order”). In 2011, the Finland Turku Court of Appeal dismissed Bougrine’s appeal from this decision. [8] For a brief period in 2009 and 2010, Bougrine paid child support of 260 Euros per month per child. From 2010 until a temporary support order was made in Ontario in June 2019, he paid no child support. [9] Finland is a reciprocating jurisdiction for the reciprocal enforcement of support orders with Ontario, pursuant to the ISO Act and Ont. Reg. 53/03 – Reciprocating Jurisdictions . Consequently, Finnish support orders can be registered for enforcement in Ontario pursuant to Part III of the ISO Act . [10] In 2014, the ISO Unit received a letter from the Minister of Justice in Finland requesting the registration of the Finnish Order and the 2011 appeal Order in Ontario for enforcement against Bougrine and claiming support arrears of 32,929.32 Euros as of September 17, 2014. [11] The ISO Unit sent the orders to the Ontario Court of Justice for registration for enforcement in Ontario under s. 18 of the ISO Act . The orders were registered on December 24, 2014 and a Notice of Registration of Order was served on Bougrine. [12] Pursuant to s. 20(2) of the ISO Act , Bougrine brought a motion in the Ontario Court of Justice to set aside the registration for enforcement in Ontario of the 2010 and 2011 Finnish Orders. [13] In support of his motion, Bougrine deposed in his affidavit that he intended to move to Morocco soon and that he had not received notice of the Finnish proceedings that led to the 2010 Finnish Order. On March 9, 2015, the motion judge set aside the registration of the Finnish Order on the basis that Bougrine did not have proper notice or a reasonable opportunity to be heard in relation to the foreign proceedings that led to the Finnish Order. [14] As it turns out, much of the material in the Bougrine affidavit submitted on the motion was false. As explained by Cornell J. six years later in his decision in these proceedings: Mr. Bougrine was personally served with the originating Finnish application, was present during those proceedings and had the benefit of legal counsel. Unhappy with the result of those proceedings, Mr. Bougrine appealed. His appeal was unsuccessful. How could it possibly lie in the mouth of Mr. Bougrine to allege that he had no notice of those proceedings when he filed an appeal? It is also clear that Mr. Bougrine misled the court by suggesting that he obtained custody of the children on February 10, 2009, from a court in Morocco. The record before me discloses that no such order was ever made. Mr. Bougrine further misled the court by suggesting that he was “temporarily in Sudbury for employment and that his permanent residence was in Morocco”. This is patently false. Mr. Bougrine had worked at Laurentian University as a full-time professor since 2007. He was the Chair of the University’s Commerce Department. The record before me indicates that Mr. Bougrine has had a driver’s licence in Canada since 2007 and that he owns real property in Canada. Given this background, it is clear that the order made by Lische J. to set aside the registration was based upon an incomplete record and the misleading information that was provided by Mr. Bougrine. Had the correct information been before the court, it is clear that Mr. Bougrine’s efforts to set aside the registration would have failed. [15] In 2018, the ISO Unit learned that Bougrine in fact continued to live and work in Ontario. The ISO Unit commenced proceedings in the Ontario Court of Justice seeking support for the children in accordance with s. 21 of the ISO Act . (2) The court proceedings and judicial decisions (a) Ontario Court of Justice [16] The ISO Unit’s motion for child support for Krause came before Guay J. in 2019. Because the registration of the Finnish Order had been set aside, the motion was brought under s. 21 of the ISO Act , which provides: 21(1) If the registration of an order made in a reciprocating jurisdiction outside Canada is set aside under section 20, the order shall be dealt with under this Act as if it were a document corresponding to a support application received under paragraph 2 of section 9 or a support variation application received under paragraph 2 of section 32. [17] The motion judge addressed the circumstances that led to the registration of the Finnish Order being set aside on a motion brought by Bougrine in 2015: As it turned out, the information given to the court by the respondents was misleading. There was nothing transitory about his employment at Laurentian University. The respondent had actually worked there as a full-time professor since 2007. The evidence indicated that not only was the respondent a full-time professor at Laurentian University, but further that he was actually the Chair of the University’s Commerce Department. It is reasonable to infer from what the respondent told the court on the motion to set aside registration that his arguments were designed to mislead the court and to defeat the applicant's claim to enforcement of her child support order years after that order had been made. [18] The motion judge then moved on to explain how s. 21 would operate, after the Ontario registration of the Finnish Order was set aside. He stated: Notwithstanding these facts and what can be reasonably deduced from them, it is clear that the registration of the June 8, 2010 Finnish order was set aside by the Ontario Court in Sudbury on March 9, 2015. This court is not an appeal court. The order setting aside registration was not appealed by the Director of Family Responsibility. As a result, the decision of the Ontario Court must stand. By virtue of section 21(1) of the ISO Act, 2002, S.O. 2002, c.13, when an order of a reciprocating jurisdiction has been set aside under section 20 of the Act, the order shall be treated as a support application under section 9 of the Act. This is what triggered the Director's motion for enforcement to be returned to this court. The enforcement procedures brought on behalf of the applicant by the Director of Family Responsibility/lSOA Unit had only been allowed to lapse because of the false information provided to this court respecting his permanent departure from Canada. This court was entitled to revisit the matter anew upon being requested by the Director to do so on information the Director had received presumably from the Finnish authorities. [Emphasis in original.] [19] The motion judge continued, specifically rejecting the argument that the setting aside of the registration in Ontario invalidated the Finnish Order: I do not read section 21 of the ISOA as invalidating the order whose registration has been set aside. Rather, I interpret this section of the Act as creating a mechanism for avoiding the need to commence a new child support application . Setting aside registration of a foreign child support order for reasons of alleged improper service on a party or because a party alleges that he has not been given a reasonable opportunity to respond to the application giving rise to the order should not mean that the order is thereby rendered invalid, particularly when there is no reliable proof that such allegations are true and where, as in this case, that order has been upheld by an appeal court in the jurisdiction where it was made. It seems all too easy for a person opposed to registration of a foreign child support order to throw up meritless obstacles to its enforcement as seems to have happened in the present case. The ability to set aside [registration of] a presumptively valid foreign support order (ISOA operates on this basis) on the uncorroborated evidence of a person whose financial interests are likely adversely affected by that order is, I believe, a weakness in the enforcement procedure established by ISOA. [Emphasis added.] [20] Finally, with respect to Bougrine’s argument that, in the absence of an existing Ontario court order, the matter should be returned to the Finnish courts where the original 2010 support order was made and is still operative, the motion judge said: It is illogical to argue that the applicant should be made to bring enforcement proceedings in Finland where the order was first issued and subsequently never complied with. If the respondent finds the present matter before this court, it is because he has worked in Ontario for many years and is still working here. Proceedings related to the enforcement of a valid support order ought logically to take place where the income of a payor can be attached and not in a jurisdiction where his income and assets cannot be attached. [21] Following the hearing, the motion judge made a temporary support order in June 2019. Then in October 2019, he made a final order with two components: (1) payment of child support of $2,463 per month for the two children commencing in June 2019, based on Bougrine’s Child Support Guideline income of $181,558; and (2) payment of child support arrears fixed at $179,667.20 as of May 1, 2019, payable at $300 per month. [22] Pursuant to this Order, the FRO assisted with enforcement through a support deduction notice to Laurentian University, Bougrine’s employer, and collected support payments that were then sent to Finland. (b) Superior Court of Justice [23] Bougrine appealed the motion judge’s decision to the Superior Court of Justice. Relying heavily on a decision of this court, Cheng v. Liu , 2017 ONCA 104, the appeal judge allowed the appeal and quashed the motion judge’s decision for “want of jurisdiction”. [24] The core of the appeal judge’s reasoning is: Section 21 of the ISO Act is, in my opinion, a curious provision in that the court “ must treat the foreign order as if it were an application for support ”. The learned judge did what the section mandates and proceeded to assess Mr. Bougrine’s total outstanding child support arrears as of May 1, 2019, to be $179,667.20. This was to be repaid at the rate of $300 per month. Based upon an imputed 2019 gross annual income of $181,558, Mr. Bougrine was ordered to pay the sum of $2,463 Canadian for the support of the two children, such payments to commence on June 1, 2019. In doing so, the court avoids addressing the issue that the result is that there are now two child support orders in existence, one in Finland and one in Canada. The court acknowledges that s. 21 of the ISO Act does not invalidate the Finnish order and proceeds with the application saying in para. 24 “because section 21 of the ISO has the effect of converting the original foreign order of 2010 into an application going forward”. The Ontario proceedings, as the court correctly pointed out, have no bearing whatsoever on the existence and validity of the Finnish court order for child support. In my opinion, the existence of two valid court orders for support is quite problematic. [25] Following a reference to Cheng v. Liu , a case involving the relationship between the federal Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.) and the Ontario Family Law Act , R.S.O. 1990, c. F.3, the appeal judge continued: In this case, both children were born in Finland and, with the exception of the period of time that they were abducted and taken to Morocco, have always lived in Finland with their mother. The parties were divorced by a Finnish court order. The Finnish court also made an order granting Ms. Krause custody of the children and awarding her child support. As previously set out, Mr. Bougrine’s appeal from this order was dismissed. According to Cheng , this means that the Finnish court has exclusive jurisdiction over child support because such court granted the divorce and issued an order for child support. According to Pageau [ Pageau v. Szabo , [1986] O.J. No. 1675], a court acting under a provincial statute would be barred from dealing with the issue of child support in these circumstances. On the facts of this case, Cheng would also preclude the situation that we have here, namely the existence of two valid child support orders. The ISO Act was created to establish a uniform method and system for the parties seeking to obtain, to challenge or to vary child support orders issued where the parties reside in different jurisdictions. The chaos created by competing child support orders is surely inconsistent with these objectives and can hardly be said to be part of a “uniform system”. C. issue [26] There is a single issue on the appeal: does an Ontario court have jurisdiction under s. 21 of the ISO Act to order child support in the face of a valid but unenforceable (in Ontario) foreign child support order? D. analysis [27] The ISO Act allows for the establishment, variation and enforcement of support orders where one party resides in Ontario and the other party resides in a reciprocating jurisdiction. [1] Support recipients can register domestic or foreign support orders in order to enforce them against residents of Ontario or those who have income or assets in the province. Support recipients can also apply to obtain or vary support orders in Ontario that can then be enforced against the resident of Ontario. [28] A principal purpose of the ISO Act is to facilitate the enforcement of the support obligations of persons resident in one jurisdiction whose dependants (spousal or child) are resident in another jurisdiction. Reciprocal support enforcement statutes are enacted because of historical difficulties encountered by parties seeking to obtain, vary or enforce a family support order when one party is no longer residing in the jurisdiction where the original order was made. The core scheme of the ISO Act is to establish a fair and workable system for providing support for children and spouses who have a parent or former partner living in a different jurisdiction. [29] As explained by Attorney General David Young when he introduced the proposed ISO Act in the Ontario Legislature in 2002: The proposed bill is further proof that we are committed to ensuring that children and families who rely on support payments receive every cent of the amount they are entitled to. Failure to pay child support and spousal support is a social problem; there should be no doubt about that. It is a problem that should and does concern us all. Thousands of families rely on support payments to buy food and other basic necessities, including rent. Without those payments, some families may be forced to live in poverty. They may be forced to turn to food banks and, in some cases, social assistance. This simply shouldn’t be happening. It is simply unacceptable. When children and families do not receive money, or do not receive money in a timely fashion, we all suffer. Ontario Legislative Assembly, Official Report of Debates (Hansard), 37 th Parl., 3rd Sess, No. 30 (23 September 2002), at p. 1497. [30] Against this backdrop, I turn to consider s. 21 of the ISO Act . [31] In statutory interpretation, the language of a statutory provision must be interpreted in light of the purpose of the provision and the entire relevant context: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, at para. 118. [32] In my view, the precise language of s. 21 of the ISO Act was triggered by Bougrine’s conduct in this case. He took steps to set aside the Ontario registration of the Finnish support order for his children. He did this under s. 20 of the ISO Act and he was successful; the Ontario registration was set aside, thus removing his obligation, enforceable in Ontario, to provide support to his children. [33] This result elicited a response from the appellant Interjurisdictional Support Orders Unit. When it became aware that the registration of a valid court support order of a reciprocal jurisdiction (Finland) had been set aside and that the non-paying father still lived and worked in Ontario, contrary to his submission to the Ontario court, it invoked s. 21 of the ISO Act in an attempt to remedy an egregious situation – dishonest obtaining of an Ontario court order and concomitant non-compliance with a valid Finnish court order. [34] In my view, the steps taken by the Unit were appropriate and the initial decision by Justice Guay granting the relief sought by the Unit was correct. Section 21 of the ISO Act specifically empowers an Ontario court to hear a new support application that takes into account the unenforceable foreign order as well as other information the court considers necessary and to make a new support order. [35] On appeal, the appeal judge disagreed with Justice Guay’s analysis and conclusion. Central to his reasoning was his view that the decision of this court in Cheng v. Liu , compelled a different answer. I have set out the key passages of the appeal judge’s discussion of Cheng v. Liu in the Facts portion of this judgment. [36] In my view, Cheng v. Liu does not support the respondent’s position or the appeal judge’s analysis. The issue in Cheng v. Liu was whether an Ontario court had jurisdiction to adjudicate a claim for corollary relief under the federal Divorce Act despite the fact that the parties’ divorce had been validly granted by a foreign court, without providing  for corollary relief. The division of powers between the federal and provincial governments was at issue in that case. That is, while the federal government has jurisdiction over marriage and divorce, the province governs matters of property. In this way, the power to award support under the federal Divorce Act is limited to cases where the support is a corollary to the divorce. This court concluded that since the foreign divorce was silent on support, support could be awarded under the Ontario Family Law Act. [37] Cheng v. Liu recognizes the jurisdiction of the province to legislate in matters of property. After considering, and rejecting, the jurisdiction of Ontario courts to grant corollary relief under the federal Divorce Act after a foreign court has validly issued a divorce decree, the court went on to consider whether an Ontario court had jurisdiction under a provincial law, the Family Law Act , to determine the issue of child support after a foreign court has issued a divorce decree without providing for child support. The court answered this question in the affirmative and said, at paras. 45 and 52: There is also no statutory prohibition against utilizing the FLA in such circumstances. Indeed, the use of the FLA to provide a remedy is entirely consistent with the statutory objective of ensuring that parents provide support for their dependent children. Ontario courts have authority to award child support under s. 33 of the FLA . There is nothing in the legislation that restricts that authority in situations where a divorce order has been granted outside of Canada. The use of the FLA in circumstances where relief under the Divorce Act is unavailable does not engage the paramountcy doctrine, as there is no operational incompatibility between the federal and provincial statutes. To the contrary, the two statutes are operating harmoniously to ensure that a remedy for child support is available. [38] In this case, a different provincial statute, the ISO Act , that is coincident in intent and purpose, explicitly provides for the exact remedy sought.  Absent a finding that the specific provisions relied on were unconstitutional, which would have required notice to the Attorney General, it simply was not open to the appeal judge to quash the Order of the Ontario Court of Justice for want of jurisdiction. [39] I make a final observation. The appeal judge mentioned “the potential for double recovery” as a danger that might arise if the Ontario court had jurisdiction to make a support order in the face of an existing Finnish support order. [40] For two reasons, with respect, I do not think this is a compelling point. [41] First, the international support order regime is grounded in cooperation between knowledgeable governments and their agencies that administer the governing laws, treaties and intergovernmental agreements. Under the umbrella of international agreements between cooperating governments, there are government support systems and personnel dedicated to, and experienced in, providing high quality assistance to the enforcement of valid foreign orders, sharing information and avoiding duplication. In short, the potential for double recovery is a red herring. [42] Second, this case and the vast majority of similar cases point to the real problem. It is not potential double recovery; it is no recovery. The ISO Act , and the people who administer it, are an important provincial, national and international vehicle in the attempt to ameliorate this real problem. E. disposition [43] I would allow the appeal, set aside the Order of the Superior Court of Justice dated August 10, 2021, and restore the Order of the Ontario Court of Justice dated October 19, 2020. [44] I would award the appellant costs of the appeal fixed at $25,000, inclusive of disbursements and HST. Released: February 24, 2022 “J.C.M.” “J.C. MacPherson J.A.” “I agree. K. van Rensburg J.A.” “I agree. L.B. Roberts J.A.” [1] There are substantially similar statutes across Canadian provinces and territories that include a provision the same or similar to s. 21 of the ISO Act .

COURT OF APPEAL FOR ONTARIO CITATION: Johnson v. Ontario, 2022 ONCA 162 DATE: 20220222 DOCKET: M53210 (C69417) Paciocco J.A. (Motion Judge) Proceeding under The Class Proceedings Act, 1992, S.O. 1992, Chapter 6 BETWEEN Glen Johnson, Michael Smith, Timothy Hayne Plaintiffs (Respondents) and Her Majesty the Queen in the Right of Ontario Defendant (Respondent) Mirilyn Sharp and Nancy Sarmento Barkhordari, for the appellant Rita Bambers and Lisa Brost, for the respondent Her Majesty the Queen in right of Ontario Chelsea Smith, for the respondents Glen Johnson, Michael Smith and Timothy Hayne Andrew Eckart, for the proposed intervener The Class Action Clinic, University of Windsor, Faculty of Law Heard: February 18, 2022 by video conference Paciocco J.A.: [1] This motion for intervention as a friend of the court by The Class Action Clinic, University of Windsor, Faculty of Law (the “Clinic”) relates to an appeal by Donald Parker of an unsuccessful motion for extension of time to opt out of a class action. That class action has been certified on behalf of persons incarcerated at the Elgin Middlesex Detention Centre between January 1, 2010 and May 18, 2017, against Her Majesty the Queen in the Right of Ontario (“Ontario”), and alleges a failure to provide medical care for inmates. [2] After the opt-out date for the class action had passed, Mr. Parker filed a lawsuit against Ontario for delay in providing him with medical care while an inmate at the Elgin Middlesex Detention Centre, including during the period encompassed by the class action. In a letter accompanying its notice to defend, Ontario referred to the class action and suggested that Mr. Parker should discontinue his claim or limit it to the period outside of the class action. Mr. Parker has deposed that he was unaware of the class action when he instituted the action and upon learning about it, he brought a motion to extend the time to opt out of the class action. On April 16, 2021, the motion judge refused the motion and on May 10, 2021, ordered costs against Mr. Parker. [3] Mr. Parker’s appeal of that decision is scheduled to be heard by this court on March 30, 2022 at 12:00 p.m. In this motion the Clinic seeks to intervene as a friend of the court in that appeal, on terms that permit the Clinic to file a factum not exceeding 20 pages in length, and to make oral argument at the hearing of the appeal of no more than 15 minutes. None of the parties oppose this motion but disagree relating to the timing of the delivery of responding facta, and the time for oral argument. Mr. Parker’s consent is contingent on an intervention order not delaying the scheduled appeal. Ontario’s consent is contingent on the Clinic’s intervention being without prejudice to Ontario’s argument that if the adequacy of notice is recognized to be a factor to be considered in applications for extension of time to opt-out, that factor should not be applied during Mr. Parker’s appeal because the adequacy of notice was not an issue before the motion judge, and is not an issue properly raised on appeal. Mr. Parker disputes Ontario’s position, but does not take issue with a neutral recital being made in the intervention order alerting the panel to the fact that this is an open issue. Ontario also seeks a condition prohibiting the Clinic from presenting additional evidence, although the Clinic has disclaimed any intention to do so. [4] I would grant the Clinic’s motion to intervene, on terms provided below. I am persuaded in the circumstances that the Clinic will be able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. , (1990), 74 O.R. (2d) 164 (C.A.), at p. 167; Foster v. West , 2021 ONCA 263, 55 R.F.L. (8th) 270, at para. 10. I make the following findings in that regard. [5] First, the nature of the case and the issues that arise support this outcome. The legal considerations relevant in determining whether a class member can secure an extension of time to opt out of a class action are not settled and arise in this appeal. The Clinic proposes to offer a framework, derived from a principled analysis of the role of courts as guardians of related rules, that will focus on the factors that a judge should consider when adjudicating a class member’s motion for an extended opt-out. The Clinic will argue that those factors will enable a balanced assessment of the rights of class members against the objective of class actions. These issues transcend the interests of the parties in this public dispute and the proposed submissions do not simply repeat submissions that will be made by the parties. [6] Second, the Clinic has the experience and expertise to provide useful submissions. It is a non-profit legal service that, under the direction of a legal scholar with recognized expertise in class actions and with the contribution of University of Windsor law students, provides public legal education, assistance in serving the rights and needs of class members, and policy analysis and empirical research on various class action issues. [7] Third, granting the intervention will not cause injustice to the parties. The parties received advance notice of the Clinic’s intention to seek intervention and have been provided with a draft factum reflecting the essence of the submissions the Clinic proposes to make. As indicated, none of the parties oppose the intervention. Nor will granting this motion delay the impending appeal. The Clinic has undertaken that if granted leave, they will abide by any timelines imposed or ordered by the court. The intervention will not prejudice Ontario’s right to make the argument it chooses relating to adequacy of notice, and the Clinic will not be at liberty to apply for the admission of additional evidence. [8] In order to facilitate its intervention, the Clinic seeks leave to file a 20-page factum, to be served electronically, and 15 minutes for oral submissions at the hearing. The Clinic provided a draft factum, reserving the right to make further editorial, non-substantive changes. The draft factum is 15 pages, apart from the cover sheets, style of cause, and schedules. It is a concise and clear document that does not appear to require supplementation. The factum will be limited to 15 pages. Given the quality of the factum, I am also satisfied that oral submissions can be made expeditiously and efficiently on behalf of the Clinic at the hearing, in 10 minutes. [9] The parties to the appeal do not agree on the terms that should accompany the intervention order. Ontario and Mr. Parker have requested leave to file factums in response to the Clinic’s factum. All parties should each be entitled to file a 10-page responding factum. Mr. Parker wishes to file his factum one week after the delivery of Ontario’s responding factum. Ontario wants Mr. Parker to file his responding factum the same date that Ontario does. I agree with Ontario. I see no basis for granting Mr. Parker what would, in effect, be a reply factum. [10] Mr. Parker seeks an additional 10 minutes of oral argument to respond to arguments made by the intervenor. Ontario seeks the same 10 minutes, as well as an additional 15 minutes of oral argument, on top of the 45 minutes it has already been allocated. In support of its request for an additional 15 minutes Ontario argues that its time allocation was set before its time estimate was provided, and it requires additional time to address affidavit evidence that Mr. Parker intends to present to the appeal panel. I am not persuaded that this additional 15 minutes is required to enable Ontario to make its oral submissions and, given the scheduling of this appeal, it will inconvenience the court. [11] I therefore grant the Clinic’s motion to intervene on the following terms: 1. The Clinic’s intervention is without prejudice to Ontario’s right to argue that the adequacy of the notice of the class action is not appropriate for consideration in determining Mr. Parker’s appeal. 2. The Clinic shall not bring a motion for the admission of additional evidence or otherwise seek to augment the record. 3. The Clinic shall file a factum not exceeding 15 pages in length. 4. The Clinic’s factum shall consist of an edited version of the draft factum filed in the context of this motion and will not expand on the issues to be addressed by the clinic or alter materially the arguments presented in the draft. 5. The Clinic’s factum is to be served and filed no later than February 25, 2022 and may be served electronically. 6. Mr Parker, and Ontario may file a factum not exceeding 10 pages in length in response to the Clinic’s factum. Each factum is to be served and filed no later than March 16, 2022. 7. The Clinic is permitted to make oral arguments at the hearing of this appeal of no more than 10 minutes. 8. Mr. Parker and Ontario are each granted 10 additional minutes for oral argument. 9. The Clinic will consent to service of all materially electronically. 10. The Clinic shall not seek costs in the intervention, nor will costs be awarded against it. Released: February 22, 2022 “D.M.P.” “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 complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)      two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)      In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)      at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)      on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)      In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)      An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. C.T., 2022 ONCA 163 DATE: 20220225 DOCKET: C67631 Miller, Trotter and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and C.T. Appellant C.T., acting in person Andrew Furgiuele, appearing as duty counsel Jeffrey Wyngaarden, for the respondent Heard: February 7, 2022 by video conference On appeal from the convictions entered on April 21, 2017 and the sentence imposed on October 30, 2019 by Justice Sean F. Dunphy of the Superior Court of Justice. REASONS FOR DECISION [1] It is an error of law for a trial judge to discount the credibility of an accused’s evidence on the basis that it was tailored to fit Crown disclosure, or evidence or argument heard in court prior to the accused testifying. Drawing the inference that advance notice of the case against the accused has allowed the tailoring of evidence and thus made it suspect, though a natural temptation, is impermissible. It would create a constitutional trap, turning the right to be present at trial under s. 650(1) of the Criminal Code , R.S.C. 1985, c. C-46 and the rights to full answer and defence under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms against the accused : R. v. White (1999), 132 C.C.C. (3d) (Ont. C.A.), at para. 20; R. v. Schell (2000), 148 C.C.C. (3d) 219 (Ont. C.A.); R. v. Thain , 2009 ONCA 223, 243 C.C.C. (3d) 230; R. v. Jorgge , 2013 ONCA 485, 4 C.R. (7th) 170, at para. 12; R. v. M.D. , 2020 ONCA 290,392 C.C.C. (3d) 29; R. v. G.V ., 2020 ONCA 291, 392 C.C.C. (3d) 14; R. v. B.L. , 2021 ONCA 373, at paras. 44-47. [2] The trial judge committed exactly that error in this case. [3] The trial judge convicted the appellant of one count of sexual assault under s. 271 of the Code relating to events in December of 2013. He convicted the appellant of a second count of sexual assault and one count of assault under s. 266 relating to events in March of 2014. Finally, he convicted the appellant of one count of criminal harassment under s. 264(1) relating to events in April of 2014. [4] The complainant on each of the charges was J.S., with whom the appellant had been in a romantic and sexually intimate relationship. [5] J.S. and her mother were the only Crown witnesses. The appellant testified in his own defence. The trial judge noted, at the outset of his reasons: “There were stark contrasts between the evidence of these events related by the two Crown witnesses and the accused. Accordingly, credibility required very careful examination”. He also observed that the appellant’s evidence was exculpatory and accepting it, or finding it raised a reasonable doubt, would require acquittal on all charges. [6] The trial judge’s analysis of the credibility of the appellant’s evidence, his rejection of it and his finding it raised no reasonable doubt, leaned heavily and repeatedly on the trial judge’s inference that his evidence had been tailored to fit disclosure or prior evidence. [7] In the introductory portion of his reasons, the trial judge stated: I found the evidence of the accused was fundamentally unreliable and tainted by fantasy, insincerity or both in many instances. Insincerity, once detected, becomes like the thirteenth chime of a clock. It cast doubt upon the twelve that preceded it. There were aspects of his evidence that I did accept but only if adequately corroborated by other sources. On the whole, I concluded that he told the truth only where it suited his purpose while the remainder of his evidence was carefully tailored to fit, however awkwardly, the evidence of which he was aware . [Emphasis added.] [8] In the section of his reasons entitled “General Comments on Credibility”, the trial judge returned to the same impermissible reasoning. He stated: While smoothly recounted and never lacking in complete confidence as to the smallest of details recalled in the most vivid terms three years after the fact, the tale that [the appellant] spun became increasingly implausible as layer upon layer of detail was added. At length, I reached the conclusion that [the appellant] could not be relied upon to tell the truth at all. He appeared to be looking to fit his evidence to the disclosure he had received rather than to be recalling things from his own lived experience . [Emphasis added.] [9] In addition to these general comments, applicable to the credibility assessment in relation to all of the charges, the trial judge used this reasoning when dealing with specific events. In rejecting the appellant’s version of what occurred in relation to the December 2013 offences, the trial judge stated: “ This was one instance and not the only one where I formed the view that [the appellant] sought to tailor his evidence to suit ” (emphasis added). When dealing with the offences in March 2014, the trial judge took the same approach: “ Once again I found [the appellant’s] version of these events to be a product of fantasy or a deliberate fabrication to fit disclosed evidence. I am unable to afford any credence at all ” (emphasis added). [10] The Crown argues that the trial judge’s error was harmless, as his reasons make it clear that he had numerous grounds for rejecting the credibility of the appellant’s evidence. The comments about the appellant tailoring his evidence should, in the Crown’s submission, be viewed as a mere afterthought and the curative proviso in s. 686(1)(b)(iii) of the Code should be applied. [11] We are not persuaded by this argument. The trial judge made his inference of tailoring to fit disclosure a feature of his credibility assessment at the outset of his reasons. He returned to it as an important consideration in his general findings on credibility, and then repeated its importance in his more granular analysis of important events. The proviso will not be applied where the impermissible tailoring inference “appears to have played a large role in the trial judge’s rejection of the appellant’s version of what occurred”, even if there were other reasons for that rejection: B.L. , at para. 50. [12] [13] Jorgge , The context for these three cases [ White , Schell and Thain ] differs from the case before us, but the underlying principle is the same. In those other cases, either the Crown or the trial judge improperly used an accused’s right to disclosure to discredit the accused’s testimony. In the present case, the trial judge improperly used the appellant’s right to be present at his trial to discredit his testimony. She erred in doing so. This error figured prominently in the trial judge’s adverse assessment of the appellant’s credibility. Credibility was the significant issue at trial, in the light of the differing versions of events given by the appellant and the complainant. In Thain , at para. 38, Sharpe J.A. said “[t]he appellant was entitled to have his credibility fairly assessed without being trapped by the exercise of his constitutional rights”. Similarly, Mr. Jorgge was entitled to have his credibility fairly assessed without being trapped by the exercise of his statutory right to be present at his trial. Thus, his convictions cannot stand. [14] The same approach is required here. The appeal is allowed, and a new trial is ordered. Accordingly, we do not reach the sentence appeal. “B.W. Miller J.A.” “Gary Trotter J.A.” “ B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Lamba v. Mitchell , 2022 ONCA 164 DATE: 20220223 DOCKET: M53161 Thorburn J.A. (Motions Judge) BETWEEN Amarjot Lamba and Chand Lamba Moving Parties and Michael Mitchell and Richard Bowring Responding Parties James R. D. Clark, for the appellants Monica Unger Peters, for the respondents Heard: in writing ENDORSEMENT Relief Sought [1] The moving party, Amarjot Lamba, is a real estate agent; the moving party, Chand Lamba, is his spouse. They seek an order to extend the time to seek leave to appeal by additional ten days. The Dispute Between the Parties [2] The moving parties put an offer on a house and entered into an agreement of purchase and sale but failed to close the transaction. They sought an extension of the closing date. [3] The responding parties refused to extend the closing and instead, delivered their closing documents. [4] Following the aborted closing, the moving parties commenced an action claiming specific performance with an abatement and moved unsuccessfully for a certificate of pending litigation. [5] The responding parties counterclaimed for damages and an order that the purchasers’ deposit be forfeited. The responding parties re-sold the home and moved for summary judgment, requesting forfeiture of the moving parties’ deposit. [6] The moving parties argued that they were entitled to rescission of the agreement of purchase and sale and damages, because of the “misrepresentation with respect to the square footage of the home” and because the responding parties had not satisfied them that the renovation had been completed in accordance with the applicable building permit. The Decision on the Responding Parties’ Motion for Summary Judgment [7] On May 18, 2021, the motion judge granted the responding parties’ motion for summary judgment and declared the moving parties’ $20,000 deposit forfeited to the responding parties. [8] The motion judge acknowledged that the Multiple Listing Service (“MLS”) listing for the home misstated the main floor area of the home to be 2,500 – 3,000 sq. ft., when in fact the main floor area was 2,155 sq. ft. However, he found that the moving parties had personally attended the property to view the house and “were well-aware of its actual size and layout before they decided to buy what they had seen.” Further, he found that “Mr. Lamba could access materials with the correct area” as he had “access to a brochure and floor plan with the home’s correct area” which accompanied the MLS listing for the property. [9] As such, the motion judge concluded that the discrepancy between the actual and misstated area in the MLS listing did not constitute a material misrepresentation that would have affected the moving parties’ decision to make an offer, and did not entitle the moving parties to rescind the agreement. He also held that the moving parties did not requisition a valid objection to title in respect of their concern with a building permit, and were not entitled to rescind the agreement on that basis. Finally, he held that the $20,000 deposit was not disproportionate to the purchase price, and it would not be unconscionable for the responding parties to keep the deposit given that the moving parties breached the agreement. [10] The motion judge ordered that the moving parties’ $20,000 deposit be forfeited to the responding parties and he ordered costs against the moving parties in the amount of $10,856.48 inclusive of HST and disbursements, bearing interest of 2 percent per annum commencing April 1, 2021. The Decision of the Divisional Court on Appeal [11] The moving parties appealed to the Divisional Court on the issue of rescission for misrepresentation. On December 7, 2021, the Divisional Court dismissed their appeal. The Divisional Court held that, The purchasers accept that the motion judge correctly set out the legal test with respect to rescission for misrepresentation. However, they take issue with the findings of fact, and application of the law to the facts, on the issue of reliance on the misrepresentation, as an inducement to purchase. [T]he issue on this appeal is whether the purchasers … relied upon the square footage set out in the MLS listing, as they argue; or whether, as found by the motion judge, they relied upon the area and size of the home gleaned from their inspection. The latter was an inference of fact. [T]he purchasers, through their solicitor, repeatedly affirmed their intention to complete the transaction, notwithstanding their discovery of the actual square footage of the home. While they evidently felt entitled to some compensation for the deficiency, the fact that they were intent on completing the purchase suggests that they based their decision to purchase on their satisfaction with the area and layout of the home, as observed during their inspection, and not on the representation of square footage contained in the listing agreement. [12] The Divisional Court further held that, The purchasers were aware of the actual square footage of the home at the time the affidavit was sworn. If their satisfaction with the area of the home at the time of purchase was based upon the represented square footage rather than the area and size of the home gleaned from their inspection, it is a reasonable inference that they would not have tried to prevent the home from being sold to others, and that Mr. Lamba would not have sworn that the property was “unique and exactly what we were looking for [in his affidavit sworn in support of the motion for a certificate of pending litigation]” [13] The Divisional Court concluded that “the findings of the motion judge were reasonable and available to him on the evidence”. [14] The Divisional Court dismissed the appeal and ordered costs against the moving parties in the amount of $8,000. [15] The Notice of Motion for Leave to Appeal must be filed within 15 days of the decision of the Divisional Court on December 7, 2021. In light of the holiday period, the deadline for submitting a notice for leave to appeal was December 30, 2021. The moving parties failed to meet that deadline despite being represented by counsel. The moving parties claim that they intended to appeal within the requisite period and “thought they had more time than they did.” They claim they contacted three or four law offices before meeting their current counsel via Zoom on January 7, 2022 and signing a retainer agreement on January 11, 2022. [16] The moving parties seek an order to extend the time to seek leave to appeal the Divisional Court decision. The Test for Leave to Appeal [17] An appeal lies to this court, with leave, from an order of the Divisional Court: Courts of Justice Act , R.S.O., c. C.43, s. 6(1)(a). A notice of motion for leave to appeal must be served within 15 days after the making of the order from which leave to appeal is sought: Rules of Civil Procedure , R.R.O. 1990, Reg. 194, r. 61.03.1(3). [18] Pursuant to r. 3.02(1) of the Rules of Civil Procedure , this court may extend the time to seek leave to appeal “on such terms as are just”. The overarching principle is whether the “justice of the case” requires that an extension be given: Enbridge Gas Distribution Inc. v. Froese , 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. The court must take into account (i) whether the moving party formed an intention to appeal within the relevant period, (ii) the length of, and explanation for, the delay, (iii) any prejudice to the responding party, and (iv) the merits of the proposed appeal: Enbridge , at para. 15 ; Reid v. College of Chiropractors of Ontario , 2016 ONCA 779, at para. 14; and Krawczynski v. Ralph Culp and Associates Inc. , 2019 ONCA 399, 69 C.B.R. (6th) 163, at para 9. [19] The proposed appeal arises out of a decision of the Divisional Court exercising its appellate jurisdiction. I am mindful that appellate decisions of the Divisional Court are intended to be final: Sault Dock Co. v. Sault Ste. Marie (City) (1973) , 34 D.L.R. (3d) 327 (Ont. C.A.), at p. 328. A further appeal to this court is exceptional: Enbridge , at para. 19. Analysis and Conclusion [20] Before granting leave, this court must be satisfied that the proposed appeal presents an arguable question of law, or mixed fact and law, requiring consideration of matters such as the interpretation of legislation; the interpretation, clarification or propounding of some general rule or principle of law; or the interpretation of an agreement or by-law where the point in issue involves a question of public importance. This court will also grant leave when the interests of justice require it, for matters of public importance, and to correct clear errors in a judgment below: Sault Dock Co. , at p. 329; Enbridge , at paras. 20-22. [21] The only issue on appeal to the Divisional Court was whether the purchasers relied on the square footage in the MLS listing or whether, as the motion judge found, they relied on the square footage gleaned from their inspection. That, as noted by the Divisional Court was an inference of fact. As noted by the Divisional Court, The purchasers accept that the motion judge correctly set out the legal test with respect to rescission for misrepresentation. However, they take issue with the findings of fact, and application of the law to the facts, on the issue of reliance on the misrepresentation, as an inducement to purchase. [22] Given that the moving parties reaffirmed their intention to complete the transaction after discovering the actual square footage, the Divisional Court found no error in the motion judge’s finding of fact that this was demonstrative of their decision to purchase knowing the actual square footage. Instead, the Divisional Court concluded that “the findings of the motion judge were reasonable and available to him on the evidence”. [23] Like the motion judge, the Divisional Court concluded that, The purchasers were aware of the actual square footage of the home at the time the affidavit was sworn. If their satisfaction with the area of the home at the time of purchase was based upon the represented square footage rather than the area and size of the home gleaned from their inspection, it is a reasonable inference that they would not have tried to prevent the home from being sold to others, and that Mr. Lamba would not have sworn that the property was “unique and exactly what we were looking for [in his affidavit sworn in support of the motion for a certificate of pending litigation]” [24] The moving parties concede that the Divisional Court did not make an error of law. There was no apparent palpable and overriding factual error, and there was no error of law given the other factual findings. There is no reasonable possibility of success on appeal: Ravelston Corp. (Re) (2005), 24 C.B.R. (5th) 256, (Ont. C.A.) at paras. 29-31. Moreover, there is no issue of public importance. [25] A lack of merit alone is sufficient to dispose of a motion for an extension: Enbridge , at para. 16. For the above reasons, I conclude that the proposed appeal is highly unlikely to be granted if I allow an extension of time to file the leave application. [26] However, some other relevant considerations outlined in Enbridge also militate in favour of dismissing the motion. I find that the moving parties did not form an intention to appeal within the relevant period. The moving parties were represented by counsel throughout the fifteen day period to seek leave to appeal. While the moving parties’ counsel communicated with the responding party during the fifteen-day period, counsel did not communicate any intention to seek leave to appeal. The moving parties acknowledge that they did not do so but claim they intended to appeal within the requisite period and “thought they had more time than they did.” [27] I note that the moving parties have also failed to comply with two cost orders, without explanation: the costs ordered by the motion judge in the amount of $10,856.48 and the costs ordered by the Divisional Court in the amount of $8,000. There is no suggestion they are unable to pay. The responding parties note that they extended an offer to the moving parties to enable them to extend the time if the cost orders are paid, which offer was rejected by the moving parties. The moving parties’ failure to abide by two court orders without explanation is a consideration relevant to the justice of this case. [28] For these reasons, the request to extend the time to seek leave to appeal is denied. “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Hendriks v. Hendriks, 2022 ONCA 165 DATE: 20220225 DOCKET: C68822 Tulloch, Pardu and Roberts JJ.A. BETWEEN Stephen Harold Hendriks Respondent and Eleanor Dawn Hendriks Appellant Michael Ruhl and Ashley Timm, for the appellant Michael Stangarone and Stephen Kirby, for the respondent Heard: June 16, 2021 by video conference On appeal from the order of Justice Erika Chozik of the Ontario Superior Court of Justice, dated October 9, 2020. Tulloch J.A.: [1] The parties were married for 18 years and separated in 2010. During their marriage, they had three children: Tyas, Garett, and Corinne. Following their 2010 separation, they litigated until May 12, 2015, at which time they entered into a consent final order (“the Mossip Order”) that incorporated terms set out in minutes of settlement. The Mossip Order provided for child support and spousal support. [2] In August 2018, the respondent began new employment in Qatar and his income increased significantly from approximately $78,000 to approximately $214,000. Following the respondent’s post-separation increase in income, the appellant brought a motion to vary child support and spousal support, among other relief. The motion was dismissed in its entirety. [3] The appellant now appeals. She argues that the motion judge made several errors in her application of the law and apprehension of the evidence. [4] For the reasons that follow, the appeal is allowed in part. Background Facts [5] The relevant terms of the Mossip Order were as follows: · The respondent would pay ongoing child support for the three children in the amount of $1,506 per month, based on an income of $78,528. · The respondent was to make a one-time payment of $3,108 in retroactive child support. · The respondent would pay 75 percent of the children’s future s. 7 expenses. · The respondent would make a one-time payment of $4,000 for retroactive s. 7 expenses. · The respondent would contribute to s. 7 expenses in the amount of $33 per child per month. · The respondent was to make a one-time payment of $3,000 in retroactive spousal support. · The respondent would pay ongoing spousal support in the amount of $150 per month, based on an income of $78,528. [6] For clarity and ease of reference, I have set out below, a timeline of the relevant events that are the subject of the various support orders, and that were under consideration by the motion judge: Date Event August 15, 1992 The parties are married. During the marriage, the appellant operates a pottery business and teaches classes. September 2002 The respondent begins his Master’s degree in Social Work (“MSW”). 2005 The respondent completes his MSW. The family moves to accommodate the respondent’s new employment. December 27, 2010 The parties separate. The appellant finds employment outside the home. October 25, 2012 The parties are divorced. The children reside with the appellant. May 12, 2015 Divorce litigation is resolved by a Final Consent Order of Justice Mossip (“Mossip Order”), which incorporates minutes of settlement executed by the parties. November 2015 The respondent makes a lump sum payment in the amount of $22,066.22 (being $22,825 less notional disposition costs). The appellant delays acknowledging receipt with the Family Responsibility Office (“FRO”) until March 2018, resulting in continued payments for the eldest child after his support terminates on July 1, 2016. July 1, 2016 Child support is supposed to terminate for the eldest child. This is not confirmed until March 2018. 2016 to 2018 The respondent participates in ongoing training and development in his field. July 2017 The eldest child stops living with the appellant. December 2017 The appellant confirms with the FRO there were no arrears owing under the Mossip Order, following receipt of $22,066.22 from the respondent. February 2018 The middle child moves in with the respondent in Barrie. The appellant mother does not pay any child support for the middle child despite the change in residence. The respondent asks FRO to adjust child support only for the youngest child, but FRO is unable to confirm facts with the appellant. The respondent continues to pay child support for all three children. March 2018 The parties consent to the termination of child support for the eldest child. The parties agree to terminate child support for the middle child, since he no longer resides with the appellant. The appellant alleges that at this time, the respondent stopped paying all child and spousal support. The respondent claims that his overpayments in support effectively pre-paid support until February 2020. May 16, 2018 Child support for Garett, the middle child, ends when he moves in with the respondent. June 2018 The middle child graduates from high school. August 2018 The respondent and the middle child move to Qatar for the respondent’s new employment. The respondent’s income increases to approximately $214,000 (untaxed and subject to gross-up). August 7, 2018 The appellant files a motion to change, seeking a change in child support, sharing of s. 7 expenses, and a change in spousal support. The respondent seeks an order terminating spousal support and adjusting child support. The appellant mother’s motion is dismissed by Justice Chozik (“Chozik Order”). Spousal support is not terminated, and no retroactive child support is awarded to either party. February 2019 The middle child moves back in with the appellant. July 2019 The middle child finds full-time employment. February 2020 The respondent resumes paying child support for the youngest child, Corinne only, in the amount of $2,200 per month. March 31, 2020 The appellant’s employment is terminated by restructuring due to COVID-19. June 2020 The youngest child graduates from high school. September 2020 The youngest and middle child both commence full-time post-secondary studies. Both reside with their mother due to COVID-19. The youngest child maintains a part-time job, and the middle child receives the Canada Emergency Response Benefit. September 2020 The appellant commences full-time studies, working towards a Bachelor of Arts in Global Business and Digital Arts. October 2020 The appellant alleges the respondent stops paying child support for the youngest child. The respondent states that child support terminated under the Chozik Order. November 2020 The respondent resumes paying spousal support in accordance with the Mossip Order. Decision Below [7] In August 2018, the appellant filed a motion to change the Mossip Order, seeking: 1) the enforcement of amounts she claimed remained outstanding; 2) variation of spousal support; 3) variation of the child support termination date for both the older and middle children; 4) an order for payment of future s. 7 expenses for both the middle and youngest child; and Table amount child support commencing September 1, 2020 for the middle and youngest child. [8] The motion judge refused to grant any of the relief sought. [9] First, the motion judge found that the amounts the appellant claimed were outstanding were satisfied. The respondent had paid the appellant $18,435 in net proceeds from the sale of the matrimonial home, paid the appellant’s share of a joint line of credit in the amount of $2,520.60 and transferred $22,825.60 to the appellant from his RRSP. She determined that this was more than sufficient to cover the outstanding amounts, and that the appellant had previously confirmed with the FRO that all arrears were satisfied. [10] The motion judge refused to vary the spousal support. Because the Mossip Order incorporated minutes of settlement, she held that the appellant’s entitlement to spousal support was solely contractual in nature. Neither the Mossip Order nor the minutes of settlement contained terms that would permit a variation of support, and there was no finding that the appellant was entitled to compensatory or needs-based support. The motion judge further determined that the respondent’s increase in income was not a material change in circumstances because, on the appellant’s own affidavit evidence, it was in line with their expectations when the respondent began his MSW. Additionally, the increase in income was attributable to an intervening cause: the reorganization of his employment arrangements, his new marriage, and his lifestyle changes, including his move to Qatar. The appellant was therefore not entitled to share in the post-separation increase. [11] The motion judge also refused to vary the termination date of child support for the oldest child or the middle child. Child support for both children was terminated on consent, and there was no evidence that either child remained a child of the marriage beyond the termination dates. Moreover, the motion judge determined that the respondent overpaid child support because the FRO could not confirm with the appellant whether an adjustment of child support was needed. Because the appellant failed to communicate promptly with the FRO, the respondent had continued to pay child support for three children until March 2018. The appellant also continued to collect child support while the middle child was no longer living with her. [12] With respect to the request that the respondent pay s. 7 expenses as of September 1, 2020, the motion judge noted that the Mossip Order also provides for these expenses to be shared between the parties, but that the appellant must provide an accounting of these expenses and has never done so. There was no reason to change the Mossip Order in this regard. [13] Lastly, the motion judge declined to order Table amount child support for the middle child or the youngest child. The motion judge reviewed the jurisprudence on determining child support for a child of majority age who is attending post-secondary school. Due to a lack of evidence regarding the children’s financial circumstances and the appellant’s means and needs, the motion judge declined to order Table amount child support. The motion judge again noted that the Mossip Order already provides for sharing of s. 7 expenses. Issues [14] The appellant argues that the motion judge erred in several respects, both in determining the child support issues and the spousal support issues. [15] The issues with respect to child support are the following: 1. Did the motion judge err in finding that the respondent overpaid child support? 2. Did the motion judge err by failing to consider whether child support arrears were owing for Corinne between August 2018 and February 2020? 3. Did the motion judge err by failing to apply the Child Support Guidelines for Garett and Corinne? [16] The spousal support issues are the following: 1. Did the motion judge err by finding the respondent’s post-separation increase was not causally connected to the appellant’s contributions to the marriage? 2. Did the motion judge err by finding that the appellant’s spousal support entitlement was contractual, and no further inquiry was required? Standard of Review [17] At the outset, it is important to note that the decision of a motion judge is owed a very high degree of deference. I am guided by the instructions of the Supreme Court in Hickey v. Hickey , [1999] 2 S.C.R. 518, at paras. 11-12: Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong. 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 . [Emphasis added.] [18] In this case, however, I am satisfied that the motion judge significantly misapprehended the evidence of child support overpayments, which in turn affected her analysis on whether arrears were owing. I am also satisfied that the motion judge erred in law in her analysis of the appellant’s spousal support entitlement and whether there was a material change in circumstances. Analysis (1) Child Support Issues (a) Did the Motion Judge Err in Finding the Respondent Overpaid Child Support? [19] The motion judge made findings that there was an overpayment in child support in the amount of $36,000: [O]n the evidence before me, I am satisfied that the Applicant overpaid child support significantly. The Applicant puts the amount of his overpayment at $36,000. This amount is not disputed by the Respondent. The overpayment resulted in part from the Respondent’s delay of more than 20 months in confirming to FRO that the RRSP transfer had been made. I also find that the Applicant overpaid child support. In February, 2018 the Applicant asked FRO to adjust the child support to be for one child. FRO attempted to confirm with the Respondent that an adjustment of child support was needed because Tyas had graduated from high school almost two years earlier and Garrett was no longer living with her. The Respondent failed to respond promptly to FRO. This resulted in a significant overpayment by the Applicant of child support. The Respondent continued to collect child support for three children until March, 2018 – well after Tyas had graduated from high school. She did not pay any child support for Garrett for a year knowing that she should be because he was not living with her. She continued to collect child support for Garrett until May 2018, even though he moved to live with the Applicant in February 2018. There was an overpayment of child support as a result. [20] The appellant mother argues the motion judge erred in finding that the respondent father overpaid $36,000 in child support. The appellant argues the motion judge misapprehended the FRO statement of account which showed a $36,000 credit applied on March 19, 2018. The appellant contends that the subsequent adjustments on March 19 and 20, 2018, resulted in no overpayment of support. The amounts credited to the respondent by the FRO were for amounts owing to the appellant in accordance with the Mossip Order. The appellant further argues that the respondent admitted that any perceived overpayment was “dealt with through FRO”. [21] The respondent disputes that the motion judge erred and states that the he did in fact overpay. [22] I agree with the appellant that the motion judge misapprehended the evidence in finding an overpayment of $36,000. The statement of accounts from the FRO shows that beginning November 1, 2015, monthly payments were made to the FRO in the amount of $1,755, which total comprises child support for the three children, spousal support, and monthly s. 7 expenses as ordered in the Mossip Order. These payments continue until March 1, 2018. As noted above, March 2018 was when the parties confirmed with the FRO that support for the oldest child should have ended in July 2016 when he graduated high school, and that support for the other two children should have changed in February 2018 when the middle child moved in with the respondent. [23] On my calculation based on the statement of accounts, the respondent paid a total of $36,855 between July 2016 and March 2018, which is equivalent to $1,755 per month. However, the monthly rate of $1,755 was based on child support and s. 7 expenses for three children. When child support ended for the eldest in June 2016, the monthly payments should have changed. [24] The credits applied by the FRO reflect that these monthly payments were incorrect. Between July 2016 and January 2018, the respondent should have only been paying child support for two children. Between February 2018, when Garett moved in with the respondent father, and May 2018, when support for Garett ended, the respondent father should have been paying child support for only the youngest child. The monthly payments for these obligations would almost certainly have been less than $1,755 per month. Therefore, it is true that there was an overpayment; however, the motion judge misperceived its quantum. [25] The $36,855 the respondent paid between July 2016 and March 2018 was not over and above what he was required to pay; only a portion of the $36,855 was an overpayment, because the respondent was still obligated to pay child support for his two other children and pay spousal support. Based on a review of the statement of accounts, from July 2016 to January 2018, the period of time when support was owing for the appellant and for two children, the respondent should have paid $1,396 per month. From February 2018 to May 2018, when support was owing for the appellant and only one child (because the middle child began residing with the respondent in February 2018 and then his child support entitlement terminated in May 2018), the respondent should have paid $896 per month. In total, this amounts to $29,595 the appellant should have actually paid, leaving an overpayment of $7,260. [26] The last adjustment made by the FRO is in May 2018, when support for the middle child would have ended. From then on, the statement of accounts shows regular debits for $896, presumably the support cost for one child and for spousal support. The monthly payments are taken from the $7,260 credit remaining on the account; this credit runs out by the end of January 2019. Therefore, beginning in February 2019, the respondent should have resumed making payments for child support for the youngest child and for spousal support. He did not: the parties agree that payments did not resume until February 2020. [27] This misapprehension of the statement of accounts affected the motion judge’s analysis on whether child support arrears were owing, which I address next. (b) Did the motion judge err by failing to consider whether child support arrears were owing for the youngest? [28] The motion judge did not address the issue of child support for the period between March 2018 and February 2020. [29] The appellant argues that the youngest child was entitled to child support between March 2018 and January 2020, but that the respondent did not make any such payments. The respondent takes a somewhat internally inconsistent position: he acknowledges that the overpayment credit was exhausted by 2019 but also argues that the $36,000 overpayment covered March 2018 to February 2020, and therefore it was not the case that the respondent did not make payments during this period. [30] The last payment made by the respondent was in March 2018. Between April 2018 and January 2020, the youngest child was still a minor residing at home with the appellant and attending high school. There is no evidence that any payments were received for this time period, aside from the credits applied from the overpayment which were exhausted by the end of January 2019, as described above. [31] The parties agree that the respondent recommenced making payments in the amount of $2,200 in February 2020. This amount roughly corresponds to monthly Table support for one child and the $150 per month required by the Mossip Order. This leaves a period of 12 months during which the respondent did not pay spousal or child support for the youngest child, then in high school and living with the appellant. [32] I would fix the arrears of child and spousal support owed for this period at $26,400. (c) Did the motion judge err by incorrectly applying the Child Support Guidelines to the youngest and to the middle child? [33] On the motion, the appellant sought $4,000 per month in Table support, since both the middle and youngest children would be residing with her while they attended full-time post-secondary studies beginning in September 2020. The respondent argued that while the children should be supported, the evidence demonstrated that their expenses would be covered by grants and scholarships available to them. [34] The motion judge declined to order Table support, citing a lack of evidence regarding the children’s and appellant’s financial means and needs. She also stated it would be preferable to employ “an approach [presumably under either s. 3(2)(b) or s. 7] that takes into account the children’s expenses and incomes, as well as the means of each parent and puts into place an appropriate budget to be shared by the parties”. The motion judge further noted that the Mossip Order provides for the sharing of s. 7 expenses, and that the appellant is required to provide an accounting to the respondent under the Mossip Order. [35] In my view, the motion judge did not err in not ordering ongoing child support. The onus is on the party seeking support to demonstrate that the adult child requires educational support: see Rebenchuk v. Rebenchuk , 2007 MBCA 22, at para. 63. This consideration arises even before the judge must determine whether the presumptive amount or an amount determining by a different approach applies. The insufficient evidence provided by the appellant failed to discharge that onus. [36] The motion judge concluded that there was inadequate evidence to order support beyond the sharing of the s. 7 expenses. I agree with the motion judge that the Mossip Order already accounts for the children’s post-secondary expenses to be shared by the parties. [37] In all the circumstances, I find that the motion judge did not err here. [38] However, a child of the marriage should not be prejudiced by the self-represented appellant’s inability to master the intricacies of litigation. If the youngest child, in particular, continues to reside with the appellant, the appellant likely incurs costs for her shelter and food. The appellant would be at liberty to apply for support in addition to the s. 7 expenses, upon presentation of adequate evidence, described by the motion judge for the period accruing after the October 9, 2020 order, if so advised. (2) Spousal Support Issues (a) Did the Motion Judge err by Finding the Post-Separation Increase was not Causally Connected to the Appellant? [39] The motion judge determined that the respondent’s increase in income was attributable to intervening causes: The increase in the Applicant’s income is attributable to an intervening cause, unrelated to the parties’ marriage or the roles they adopted during the marriage. The Applicant’s increase in income is as a result of the reorganization of his employment arrangements, with new responsibilities, a new marriage, and as a result of significant lifestyle changes he has made since the separation including moving to Qatar. The passage of time alone–eight years–indicates that the Respondent’s contributions during the marriage are not causally related to the Applicant’s post-separation income increases. [Citation omitted.] [40] These are all factual findings which the motion judge was entitled to make. In my view, there is no indication that the motion judge misapplied the law or misapprehended evidence, and there is no basis to interfere with the conclusion reached. This aspect of the decision is owed deference. (b) Did the Motion Judge Err in Finding the Appellant’s Spousal Support Entitlement was Contractual and No Further Inquiry was Required? [41] There are three bases for entitlement to support, as explained by the Supreme Court in Bracklow v. Bracklow , [1999] 1 S.C.R. 420: contractual, compensatory, and non-compensatory (also called “needs-based”). The contractual entitlement to support reflects “the idea that parties’ agreements on support should influence their rights and obligations during the marriage and upon its breakup”: Bracklow , at para. 18. Under s. 15.2(4) of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), a court must have regard to any “order, agreement or arrangement relating to support of either spouse”. [42] The compensatory basis for entitlement applies “where it would be just to compensate a spouse for his or her contributions to the marriage or for sacrifices made or hardships suffered as a result of the marriage”: Bracklow , at para. 18. The court in Bracklow , at para. 39, further notes: Under the Divorce Act , compensation arguments can be grounded in the need to consider the “condition” of the spouse; the “means, needs and other circumstances” of the spouse, which may encompass lack of ability to support oneself due to foregoing career opportunities during the marriage; and “the functions performed by each spouse during cohabitation”, which may support the same argument. [43] Lastly, the court in Bracklow , at paras. 40-41, describes the non-compensatory basis for entitlement. This requires: [T]he court consider the “condition, means, needs and other circumstances of each spouse”. To be sure, these factors may support arguments based on compensation for what happened during the marriage and its breakdown. But they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused that would not have been suffered but for the marriage. But even where loss in this sense cannot be established, the breakup may cause economic hardship in a larger, non-compensatory sense [44] These bases for spousal support are complemented by the objectives of variation orders for spousal support set out in s. 17(7) of the Divorce Act : 17 (7) A variation order varying a spousal support order should (a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. [45] It is with these policy objectives in mind that the appellant’s motion for a variation in spousal support must be assessed. [46] The motion judge made the following finding as to the nature of the appellant’s entitlement to spousal support: I am satisfied that the Respondent’s [mother] entitlement to support is contractual in nature. The Minutes of Settlement and the Final Order do not contain any terms permitting the Respondent to seek increased spousal support in the future. There was no finding as to her entitlement to compensatory or needs based support. While she may have had a claim in this regard at the time, it is not the basis upon which the Final Order was made. [47] The appellant argues that an entitlement to spousal support is not contractual simply because an order for support incorporates minutes of settlement, and that such an order does not erase any underlying bases for entitlement to support. The motion judge erred by failing to determine whether the support order should be varied on another basis. [48] The respondent submits that the minutes of settlement create an entitlement to support that is only contractual, and the support available to the appellant was therefore circumscribed by the terms set out in the Mossip Order. Additionally, unlike a judge on an initial application for spousal support, the motion judge did not have the discretion to change the terms of the spousal support, because once an initial court approves a support order, there is a presumption that the terms of the order comply with the Divorce Act . [49] The motion judge also concluded that the respondent’s increase in income did not constitute a material change in circumstances: Furthermore, the Respondent’s [appellant on appeal] own evidence in her sworn affidavit dated March 2, 2020 contradicts her submissions that the Applicant’s increase should be regarded as a material change in circumstances. In her affidavit, the Respondent states that the Applicant’s new position is exactly in line with what they had discussed when he undertook a master’s degree program in social work. It cannot therefore be said that the change was not contemplated by the parties at the time they entered into the Minutes of Settlement that led to the Final Order. [50] In my view, it was an error for the motion judge to hold that the appellant’s spousal support could not be varied because the Mossip Order did not contain a term permitting variation. While s. 15.2(4)(c) of the Divorce Act provides that the court shall consider “any order, agreement or arrangement relating to the support of either spouse”, this does not end the inquiry required. The appellant’s motion would have been an application under s. 17 of the Divorce Act to vary her spousal support. The Supreme Court in L.M.P. v. L.S. , 2011 SCC 64, [2011] 3 S.C.R. 775 stated, at para. 41, “even where an agreement incorporated into an order includes a term providing that it is final, the court’s jurisdiction under s. 17 cannot be ousted”. [51] While the motion judge was entitled to make a factual finding that the evidence regarding the respondent’s income increase did not support a finding that there was a material change in circumstances, her analysis fails to ask whether the appellant faced a material change in circumstances. The court in L.M.P ., at para. 29, is clear that the question of a material change applies to both parties: In determining whether the conditions for variation exist, the threshold that must be met before a court may vary a prior spousal support order is articulated in s. 17(4.1). A court must consider whether there has been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the spousal support order . [Italics in original; underlining added.] [52] Therefore, despite the existence of an order incorporating an agreement, a judge retains jurisdiction to consider whether a variation in support should be granted based on whether there has been a material change in the circumstances of either former spouse, and having regard to any existing agreement. [53] The Spousal Support Advisory Guidelines provide for differing amounts of spousal support, depending on whether child support is or is not payable. The motion judge declined to order ongoing Table amount child support for the middle and youngest children. The reduction or termination of child support constitutes a change in circumstances for the purposes of seeking a variation in spousal support: Divorce Act , s. 15.3(3). Therefore, after child support obligations are reduced or cease, a spousal support award may increase: see as examples Gray v. Gray , 2014 ONCA 659, 122 O.R. (3d) 337, at para. 43; Slongo v. Slongo , 2017 ONCA 272, 137 O.R. (3d) 654 at para. 114; and Wharry v. Wharry , 2016 ONCA 930, 408 D.L.R. (4th) 548, at paras. 90-92. [54] Although the trial judge found that the changes in the respondent’s circumstances were sufficiently disconnected from the marriage so as to not qualify as a material change in his circumstances, the respondent’s means may still be relevant to the determination of the extent to which he is now able to temper any continuing economic disadvantage resulting from the marriage still suffered by the appellant. [55] It was an error for the motion judge not to undertake this analysis, especially in light of her recognition that the appellant may have had compensatory or needs-based entitlements when the Mossip Order was made. This is an error that warrants correction. [56] When spousal support was set at $150 per month, the respondent was paying the Table amount of support for three children, plus s. 7 expenses. That he is no longer paying Table support for three children constitutes a change in circumstances for the purpose of seeking a variation order under s. 15.3(3) of the Divorce Act , and therefore satisfies the threshold for variation. The question then becomes, what is the appropriate variation? The court in L.M.P . provides guidance on the analysis required, at paras. 47 and 50: If the s. 17 threshold for variation of a spousal support order has been met, a court must determine what variation to the order needs to be made in light of the change in circumstances. The court then takes into account the material change, and should limit itself to making only the variation justified by that change. As Justice L’Heureux-Dubé, concurring in Willick , observed: “A variation under the Act is neither an appeal of the original order nor a de novo hearing” (p. 739). As earlier stated, as Bastarache and Arbour JJ. said in Miglin , “judges making variation orders under s. 17 limit themselves to making the appropriate variation, but do not weigh all the factors to make a fresh order unrelated to the existing one, unless the circumstances require the rescission, rather than a mere variation of the order”. In short, once a material change in circumstances has been established, the variation order should “properly reflec[t] the objectives set out in s. 17(7), . . . [take] account of the material changes in circumstances, [and] conside[r] the existence of the separation agreement and its terms as a relevant factor” (Hickey, at para. 27). A court should limit itself to making the variation which is appropriate in light of the change. The task should not be approached as if it were an initial application for support under s. 15.2 of the Divorce Act . [57] The court must first consider the impact of the respondent’s post-separation increase in income, which is a complicating factor: see Gray , at para. 45. As explained above, the motion judge’s finding that the appellant is not entitled to share in the respondent’s post-separation increase in income is owed deference. Therefore, the assessment of the appropriate variation should proceed using the respondent’s income at the time of the Mossip Order, which was $78,528. [58] The appropriate variation is one that will remedy the economic disadvantage suffered by the appellant from the roles the parties adopted during the marriage. On review of the record, I am satisfied that while both parents contributed to household and childcare responsibilities, the majority of these responsibilities fell to the appellant and had an impact on her ability to pursue her business and career. The respondent completed his MSW over three years, during which time he worked two jobs. This would have required the appellant to take on increased childcare responsibilities. The respondent’s MSW was funded by himself, through his RRSPs and student loans. Though she continued to work in pottery in some capacity, the appellant was not able to advance her career, unlike the respondent. After the separation, the children also resided primarily with the appellant, which continued her disadvantage. [59] The Guidelines, while not binding, are recognized for their utility in determining the quantum and measure of spousal support. On my calculation, at the time of the Mossip Order, the range for spousal support under the Guidelines, without child support would have been between $1,356 and $1,808 per month. Pursuant to the Mossip Order, the appellant received $150 per month. I find that an appropriate amount of varied spousal support is in the mid-range, at $1,500. [60] As to duration, the Mossip Order did not time-limit the spousal support that would be paid to the appellant. However, I find it appropriate to limit the varied spousal support payments to 108 months, which is at the low end for what the appellant would have received under the without-child formula at the time of the Mossip Order. The record demonstrates that the appellant has been able to attain higher income levels since the time of the Mossip Order, and she has managed to save money. The appellant is also currently pursuing her Bachelor of Arts. Given the appellant’s means and optimistic future, indefinite spousal support would not be appropriate. [61] I am satisfied that this variation is appropriate: it reflects the economic disadvantages the appellant suffered as the primary, though not sole, caregiver for the family. In my view, it will also promote the appellant’s self-sufficiency by providing her the financial security she needs to complete her education and make herself competitive in the job market. Disposition [62] In conclusion, the appeal is allowed in part. [63] I find that the motion judge misapprehended the evidence regarding an overpayment of child support, and this affected her analysis of whether there was support owing for the youngest child between February 2019 and January 2020. With respect to the children’s post-secondary education expenses, I do not find that the motion judge made a palpable and overriding error that warrants appellate interference. [64] With respect to the motion judge’s findings on the respondent’s post-separation increase in income, I do not find that the reasons disclose any reversible error; as such, deference is owed to the motion judge’s findings on this ground. However, in my view, the motion judge erred by failing to assess whether the spousal support order could be varied simply because the order incorporated minutes of settlement. I would therefore vary spousal support to $1,500 per month for 108 months, retroactive to July 1, 2020. [65] Each of the parties may make brief written submissions as to the costs of the motion to vary, and the costs of the appeal, due from the appellant within 15 days after the date of the release of these reasons, and due from the respondent within 7 days after he receives the appellant’s costs submissions. Released: February 25, 2022 “M.T.” “M. Tulloch J.A.” “I agree. G. Pardu J.A.” “I agree. L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Inniss v. Blackett, 2022 ONCA 166 DATE: 20220224 DOCKET: C68681 Strathy C.J.O., Roberts and Sossin JJ.A. BETWEEN Paul Inniss Plaintiff (Respondent) and Celestine Blackett Defendant (Appellant) Edward J. Babin and Brendan Monahan, for the appellant Yan David Payne and James R. D. Clark, for the respondent Heard: February 18, 2022 by video conference On appeal from the judgment of Justice Mario D. Faieta of the Superior Court of Justice, dated July 6, 2020. REASONS FOR DECISION OVERVIEW [1] This appeal arises from a dispute over the ownership of a property as between the respondent, Paul Inniss, and his grandmother, the appellant, Celestine Blackett. [2] In 2002, following the purchase of the house at 470 Donlands Ave. in Toronto (“the house”), both parties were listed on title as joint tenants. The parties lived in the house between 2002 and 2008. In 2008, the relationship between the parties deteriorated, and the respondent moved out of the house. [3] On March 1, 2016, the respondent brought this action for partition and sale. The appellant defended against the action and counterclaimed on the basis that the home was always hers alone. [4] The trial judge accepted the respondent’s evidence over the appellant’s evidence with respect to the shared nature of contributions to the purchase, mortgage and maintenance of the house during the period the parties lived there together. [5] The trial judge also accepted that the respondent’s attempt to sell his interest in the property was reasonable and rejected the appellant’s evidence that a sale of the property would result in hardship. [6] The trial judge found that the appellant’s contribution was greater than that of the respondent (with the appellant holding an 89.93% interest in the house and the respondent holding the remaining 10.17%). The trial judge provided the appellant with an opportunity to buy out the respondent or else the property could be sold pursuant to s. 2 of the Partition Act, R.S.O. 1990, c. P.4. [7] On October 6, 2020, the appellant filed her notice of appeal. [8] We dismissed the appeal at the hearing with reasons to follow. These are those reasons. ANALYSIS [9] The appellant raises four grounds of appeal: 1) The trial judge failed to find that the respondent’s interest in the house is subject to a resulting trust (or, alternatively, a constructive trust) in favour of the appellant; 2) The trial judge erred by finding that the respondent contributed $51,200 towards the carrying costs of the house and that such contributions entitled him to a beneficial ownership interest in the house; 3) The trial judge erred by finding that the house should be sold pursuant to s. 2 of the Partition Act ; and 4) The trial judge erred in awarding trial costs to the respondent. [10] We address each ground of appeal below. [11] Before turning to the grounds of appeal, however, it is important to emphasize the standard of review. This case involves findings of fact and findings of mixed fact and law. These findings are entitled to deference, absent a palpable and overriding error: Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10. The trial judge did not err in rejecting that the respondent’s interest in the house is subject to a resulting or constructive trust [12] Applying the principles set out by the Supreme Court in Pecore v. Pecore , 2017 SCC 17, the trial judge rejected the argument that a presumption of a resulting trust applied in these circumstances, as he found that the respondent gave value for the property. The trial judge found that the respondent paid $3,275.13 toward the closing costs of the house. The respondent also contributed to the purchase by becoming liable on the mortgage. [13] The appellant argues that the payments toward the closing costs and becoming a co-signatory to the mortgage were insufficient to meet the threshold of adding value to the property for purposes of the resulting trust analysis, citing Karen Patterson et al. v. Nadeen Patterson and The Estate of Barbara Patrick , 2018 ONSC 6884, at para. 49. We do not accept this submission. Taken together in the context of the house purchase, both the respondent’s contribution to the closing costs and assumption of risk in co-signing the mortgage made the house purchase possible. As the trial judge concluded, the parties each played a necessary role in making their shared goal of home ownership possible: at para. 64. [14] The appellant also argues no financial contributions to the closing costs by the respondent were documented and that corroborating evidence is required to rebut a presumption of a resulting trust. [15] The trial judge preferred the evidence of the respondent to the evidence of the appellant. The trial judge’s factual findings include findings of credibility. The trial judge stated, at para. 65, “The Defendant’s evidence was wildly inconsistent, self-serving and simply not credible”. [16] The finding that the presumption of a resulting trust did not apply was available to the trial judge on the record. The trial judge considered the respondent’s testimony in the context of his bank statements and other evidence. [17] The trial judge similarly rejected the argument that a constructive trust had been established. He found no basis for the appellant’s unjust enrichment claim. [18] We see no error in these findings by the trial judge. The trial judge did not err by finding that the respondent’s contributions toward the carrying costs of the house entitled him to an ownership interest [19] The trial judge made a finding of fact that the respondent contributed $800 per month toward the mortgage payments and maintenance of the house during a 64-month period, for a total of $51,200. As a result, the trial judge calculated that the respondent was entitled to a 10.17% interest in the house. [20] The trial judge conceded that there was a “dearth” of evidence to support these payments by the respondent but concluded that it would not have been possible for the appellant to carry the house over this period without the respondent’s assistance. [21] The appellant argues there was indeed an alternative explanation for how the appellant could meet her financial obligations. [22] Again, the trial judge’s finding was open to him on the record and is entitled to deference. There is no basis to interfere with this finding. The trial judge did not err in ordering that the house should be sold by virtue of the Partition Act [23] Joint tenants have a prima facie right to force a sale of a property under s. 2 of the Partition Act : Davis v. Davis , [1954] O.R. 23 (C.A.), at p. 29. The onus is on the party resisting the sale of the property to demonstrate that the property should not be sold. To exercise its discretion not to approve a sale, a court must be satisfied that the party seeking the sale is acting in a malicious, vexatious or oppressive fashion: Brienza v. Brienza , 2014 ONSC 6942, at para. 25. [24] The trial judge concluded that the respondent’s desire to sell his interest in the house was reasonable and was not malicious, vexatious or oppressive. The trial judge also rejected the appellant’s argument that her age and illness justified refusing the partition and sale. [25] The trial judge did not err in ordering the sale of the house if the appellant is unable or unwilling to purchase the respondent’s interest. The trial judge did not err in awarding costs to the respondent [26] The trial judge found the respondent to be the successful party at trial and we would not interfere with this determination. [27] The plaintiff’s actual costs were close to $70,000, and, inclusive of taxes and disbursements, his costs were nearly $85,000. [28] In the context of this four-day trial, the trial judge found a costs award against the appellant of $35,000 to be reasonable, proportionate and fair. [29] This issue was not pursued in oral argument by the appellant, but, in any event, we see no basis to interfere with the trial judge’s exercise of discretion with respect to costs. DISPOSITION [30] For these reasons, the appeal was dismissed. [31] The respondent is entitled to his costs, which are set at $9,500, all-inclusive. “G.R. Strathy C.J.O.” “L.B. Roberts J.A.” “L. Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Issa, 2022 ONCA 167 DATE: 20220225 DOCKET: C65394 van Rensburg, Nordheimer and George JJ.A. BETWEEN Her Majesty the Queen Respondent and Joseph Issa Appellant David M. Humphrey and Jared L. Greenspan, for the appellant Samuel G. Walker, for the respondent Heard: January 31, 2022 by video conference On appeal from the conviction entered on February 9, 2018, and the sentence imposed on April 20, 2018, by Justice James W. Sloan of the Superior Court of Justice, sitting without a jury. George J.A.: OVERVIEW [1] The appellant was convicted of one count of assault in relation to his wife, A.B. This one count encompassed four separate incidents of assaultive conduct. He was found not guilty on several other counts including allegations that he threatened A.B., assaulted their daughter, possessed a prohibited weapon, and possessed a firearm while prohibited from doing so. The appellant was sentenced to eight months in jail, reduced by the time spent in pre-trial custody, followed by a period of probation. Three ancillary orders were made (i.e., DNA, further weapons prohibition, and forfeiture of property). [2] The appellant appealed against both conviction and sentence, but he did not pursue his sentence appeal. On the conviction appeal, he advances these two grounds: i.) The verdict is unreasonable; and ii.) The trial judge provided insufficient reasons. [3] In brief, the appellant’s argument is that the trial judge arrived at an illogical result by making and relying upon incompatible findings. In other words, having concluded that the complainant was not credible in relation to her allegation that the appellant possessed firearms, it then made no sense to rely upon her evidence to ground a conviction for assault. The appellant submits that the trial judge’s reasons on the assault charge were insufficient because they do not explain how he resolved his concerns about the complainant’s testimony. [4] These reasons explain why I would reject that argument and dismiss the appeal. facts Evidence of A.B. [5] The appellant and A.B. met shortly after A.B.’s arrival in Canada in 2010 on a student visa. They promptly moved in with each other; had a daughter; and remained together until separating in 2016. A.B. testified that during their relationship the appellant assaulted her four times and that, on one occasion, he assaulted their child. She further alleged that he routinely threatened to kill her. Before this complaint, she had not reported his assaultive behaviour to police. [6] A.B. testified that on January 8, 2016, while cleaning the main floor washroom of their residence, she located under the sink a duffle bag with three firearms, some ammunition, and foreign currency. She acknowledged knowing the appellant had guns, and that guns had been in the home before, but had not previously brought it to the attention of the authorities. On her account, this time was different because she found them in a location that was easily accessible to their young child. [7] On the same day she found these items, she spoke on the phone with the clerk of a family lawyer. She was interested in exploring her options and, possibly, pursuing a divorce. She met with the lawyer on January 11, 2016. On January 13, 2016, she attended at the police station to file her complaint. While there, she was joined by the lawyer who had her review and swear an affidavit in support of her claims for divorce, custody, support, and exclusive possession of the matrimonial home. [8] At trial, several date-stamped photographs were tendered which showed injuries to A.B. that she said were inflicted by the appellant, as well as photographs depicting damage to a lamp, TV, and drywall. One screenshot of a text message was filed, which the complainant testified was sent by the appellant in which he apologized for threatening her with deportation and taking their child. However, this message was not a threat itself. Apart from the screenshot of the text apology, there was no independent evidence confirming A.B.’s allegation that the appellant threatened her. There was no independent evidence confirming her allegation that the appellant assaulted the child. Her evidence was that while the appellant had left a red mark on the child’s face, she did not think to take a photograph as she was more concerned with comforting her. [9] Cross-examination focused on whether she was aware of allegations levelled against the appellant by his ex-wife, and of the nature of the financial settlement his ex-wife had received upon the breakdown of their relationship. It was suggested that A.B. was following that template to secure something similar for herself. She acknowledged being aware of the settlement, the appellant’s assaultive behaviour towards his ex-wife and their child, and of his prior convictions for assault and possessing a firearm. She denied any suggestion that this informed her decision to come forward. She denied planting the firearms. Police Evidence [10] On the strength of a warrant, two police officers searched the appellant’s home where they located, in the place A.B. said they would find them, a black duffle bag which contained a dark silver handgun with a black handle and unloaded magazine (located inside of a sock); rounds of ammunition (located inside of another sock); a red cardboard box containing a loaded handgun; and yet another handgun wrapped inside a white shirt (loaded with a fifteen round magazine). The bag also contained $2,344 USD and 50 Israeli new shekels. No DNA profile or fingerprints were developed on any of the seized items. Evidence of Ed Said [11] Ed Said was a business tenant at a property owned by the appellant. He testified that the appellant had once told him that he would “love to put … a fucking bullet in [A.B.’s] head”, and that he had “a few guns” in his home. He testified to seeing a gun taped under a toilet tank in one of the appellant’s bathrooms. He testified that, after the appellant was charged and taken into custody, the appellant called him from jail “about a hundred times” to see if he would convince A.B. to drop the charges. [12] Mr. Said testified about his deteriorating relationship with the appellant which, according to him, had to do with the state of his rental unit. Apparently, there were issues over a proposed rate hike and questions over who would bear the cost of renovations. He did not provide a statement to the police at the time of the events, nor even after the appellant was charged. In fact, he did not reach out to provide this information until well after the preliminary inquiry and after he had demanded from the appellant $47,000 as reimbursement for upgrades to the unit he had already undertaken. POSITIONS AT TRIAL Defence [13] The appellant’s position at trial was that A.B. had fabricated her allegations and planted the guns to match what his ex-wife said about him as their relationship came to an end, to secure a similar divorce settlement. He argued that she was not credible and should not be believed. Although he did not challenge the authenticity or approximate dates of the photographs, in his view, the photographs were not corroborative as they were not truly independent pieces of evidence, but rather were “entirely reliant on [A.B.’s] evidence that the marks in those photographs [were] the result of assaults as opposed to innocent falls or bumps.” Crown [14] The Crown argued that A.B. was both credible and reliable and ought to be believed. It argued that the photographs corroborated A.B.’s assault allegations, as did the location of the guns and money on the firearm related counts. It argued that, were A.B. intent on framing the appellant by planting a firearm, it would have made no sense to plant three of them when one would have done the job. decision below [15] The trial judge made these findings: i.) Both the complainant and Mr. Said had a motive to testify as they did. For her part, A.B. wanted to bolster her family law claims; Mr. Said to exact revenge for what he perceived to be the appellant’s unfair business practices. ii.) Given his concerns with A.B.’s testimony on the firearm counts, and significant concerns with Mr. Said’s testimony, he was unable to conclude beyond a reasonable doubt that the appellant was guilty of the firearm offences. He did not find as a fact that she had planted them. In his reasons for judgment, he said this: Objectively, both the complainant and Ed had a motive to testify as they did: the complainant to further her Family Law claim, and for Ed to seek revenge for what he perceived were unfair business dealings at the hand of his former friend and landlord. The Crown has raised interesting questions in her submissions, asking: (a) How would the complainant know where to purchase a gun? (b) Why would the complainant plant three guns, when one would have been sufficient? and, (c) Why would the complainant plant over $2,000.00 in American and Israeli funds in a duffle bag, along with the guns? Unfortunately, from an evidentiary point of view, no DNA was found on the handguns, the magazines, or the ammunition. The Identification Officer testified that because of the level of the alleged offence – the Court assumes he meant possession as opposed to something more sinister – he was restricted to swabbing the objects and sending the swabs to the Centre of Forensic Sciences for testimony. His testimony was that when more serious crimes are alleged, the actual objects are sent to the Centre of Forensic Sciences, and that they have the ability, when the[y] have the actual object, to test for incredibly minute quantities of DNA. Although submissions posed by the Crown with respect to the three-guns-versus-one and the cash caused the Court some concern, overall, for the reasons given above, I am unable to conclude beyond a reasonable doubt, that the accused is guilty of counts 4, 5, 6, 7, 8 or 9, and, therefore, a finding of not guilty shall be entered with respect to those counts. iii.) Although A.B.’s testimony on the firearm charges could not be relied upon, in respect of the assault charge, the date-stamped photographs she took supported her evidence that the appellant assaulted her, and on the dates and in the manner she described. In his reasons for judgment, the trial judge said this: Exhibit 2 shows numerous marks on the complainant’s body, and at the same time and date, pictures were taken of a broken TV, holes in the drywall and a broken lamp. The Court can come to no other conclusion, based on the evidence before it, that the complainant was assaulted just before the pictures were taken and that the accused, in what appears to have been an uncontrollable rage, threw a bedroom lamp at the wall, smashing the lamp and causing moderate damage to the drywall, after which he smashed a TV. Although based on the evidence before the Court, it does not appear that the accused threw the lamp in an attempt to hit the complainant, it would have hit the wall within a few feet of her, certainly terrifying her. Based on the evidence of the complainant, corroborated by the photographic evidence in Exhibits 2, 3, 4 and 5, the Court is satisfied beyond a reasonable doubt that the accused assaulted the complainant on the dates in question and conviction shall be registered with respect to count 1. iv.) As there was no similar date-stamped photographic corroborative evidence in respect of A.B.’s allegation that the appellant threatened her and struck the child, he found the appellant not guilty on those counts. issues [16] On this appeal, two issues arise: i.) Did the trial judge arrive at an unreasonable verdict? ii.) Were his reasons sufficient? analysis Introduction [17] The presenting issues are related and can, therefore, be addressed together. [18] Let me start by saying that the trial result is somewhat odd as, at least on a first read, it would seem that the trial judge’s comments about A.B.’s motive to lie, and the issues he identified with her evidence on the firearm counts – and how that gave rise to a reasonable doubt – might well have applied equally to his analysis of the assault. Which is to say, the appellant’s position is at least arguable. [19] However, though arguable, I do not agree. While I understand the appellant’s submission about “demonstrable logical incompatibility” and his position that the trial judge’s reasons reveal fundamental flaws, these were distinct counts, with different evidence, and as such it was open to the trial judge to conclude as he did. [20] It remains the fact, however, that the reasons of the trial judge are unsatisfactory. He fails to articulate why his credibility findings regarding the guns, which he concluded raised a reasonable doubt, did not lead to a similar conclusion regarding the assault. While the trial judge may not have made a positive finding that the complainant planted, or otherwise orchestrated the presence of, the guns, that conclusion is really the only one that reasonably arises on the judge’s findings. Given that reality, the trial judge ought to have better explained why his conclusion on those counts did not suggest a similar conclusion on the assault count. [21] Nevertheless, it seems evident that the trial judge found that the photographs confirmed the complainant’s allegation that she was assaulted, in large part because they were date-stamped – aligning them with her unshaken trial testimony that she was assaulted. The defence did not object to their provenance. [22] It is, of course, open to a trial judge to believe none, some, or all of any witness’ evidence. The appellant’s argument that the result is logically incompatible ignores that principle. The trial judge had a reasonable doubt on one set of charges (i.e., firearms), for reasons he articulated, although not particularly well. He had concerns with the appellant’s testimony on these counts, and he had serious concerns with Mr. Said’s testimony. Therefore, he was unable to conclude beyond a reasonable doubt that the appellant was guilty. He did not have a reasonable doubt on the assault count because, while he may have had concerns with A.B.’s credibility, he found there to be evidence, namely the photographs, that confirmed her testimony. Considered in that light, the apparent inconsistency in the trial judge’s reasons is explained. Beaudry / Sinclair [23] That being the case, this is not an unreasonable verdict according to the principles set out in R. v. Beaudry , 2007 SCC 5, [2007] 1 S.C.R. 190, and R. v. Sinclair , 2011 SCC 40, [2011] 3 S.C.R. 3; see also R. v. C.P., 2021 SCC 19, for more recent guidance. According to that line of authority, a court can intervene under s. 686(1)(a)(i) of the Criminal Code , R.S.C. 1985, c. C-46, where a verdict is unreasonable because it is reached “illogically or irrationally”: C.P. , at para. 29, per Abella J., citing Beaudry , at paras. 96-97, per Fish J. (dissenting in the result). This may occur where the trial judge makes a finding, or draws an inference, essential to the verdict that is unsupported by or plainly contradicted by the evidence, or is shown to be demonstrably incompatible with evidence that has neither been contradicted by other evidence nor rejected by the trial judge: C.P. , at para. 29, per Abella J.; Sinclair , at paras. 4, 16, 19-21, per Fish J. Under the second type of unreasonable verdict, “an essential inference that appears compatible with the evidence from which it is drawn implodes on contextual scrutiny”: Sinclair , at para. 22, per Fish J. Both types of unreasonable verdict are “exceedingly rare”: Sinclair , at para. 22, per Fish J. When determining whether the verdict was reasonable, an appellate court cannot interfere with the trial judge’s assessments of credibility unless those assessments cannot be supported on any reasonable view of the evidence: C.P. , at para. 30, per Abella J. It is not this court’s role on appeal to substitute our preferred findings and credibility assessments for those made and undertaken by the trial judge. [24] In Sinclair , Charron J., in a concurring opinion, writes that: The Beaudry test may apply in exceptional cases where the reasoning process of the trial judge is so irrational, or so at odds with the evidence, that it vitiates the verdict – even though that verdict is available on the evidence as a whole. In these rare cases, an appellate court will be justified in concluding that the verdict itself is unreasonable. [25] This is not one of those exceptional cases. While the trial judge’s reasoning could have been much better explained, it is not “so irrational, or so at odds with the evidence” as to satisfy the Beaudry test. When read in the context of the reasons as a whole, one is able to discern what the trial judge did and why he did it. He found that the concerns he had with A.B.’s credibility were overcome by the photographs, which then led to different results across the counts. He was entitled to reach that result. [26] While there are issues surrounding the taking of the photographs that the trial judge perhaps should have addressed, and while his reasons for finding a reasonable doubt on the firearm counts could have been more fully explained, to give effect to the appellant’s argument would be to measure these reasons against a standard of perfection, which of course we cannot do. Additional Comments [27] I would make these two additional points. First, while an accused person is never required to testify, and while no negative inference can be drawn from the decision not to, the fact remains that the appellant did not, so there was no other evidence advanced for how A.B.’s injuries were incurred, other than the invitation to speculate that they could have been the result of, as trial counsel put it, “innocent falls or bumps”. On a fair and complete reading of the reasons, the trial judge rejected that as a reasonable alternative explanation. [28] Second, this case illustrates the potential risks associated with conflating independent corroboration with confirmatory evidence, which is yet another instance where the trial judge might have been a bit clearer. What I mean is, while he used the term “corroborated” when describing the photographs, it would have been better, and far more accurate, to refer to them as confirmatory or “evidence in support”. For evidence to be corroborative, it must be independent. Here, of course, the photographs were not independent in that A.B. herself took them. However, when placed in their proper context, the photographs were capable of removing any doubt one might have and of tipping the balance in favour of conviction. Again, no issues were raised as to their provenance. This was undisputed evidence of injuries, incurred at or near the time A.B. said she was assaulted by the appellant, and evidence of property damage which was consistent with the events she described. DISPOSITION [29] The verdict was not unreasonable, and the reasons are sufficient. I would, therefore, dismiss the conviction appeal. [30] As the appellant did not pursue his sentence appeal, I would treat it as abandoned. Released: February 25, 2022 “K.M.v.R.” “J. George J.A.” “I agree. K. van Rensburg J.A.” “I agree. I.V.B. Nordheimer 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. 672.501(1), (2), or (3) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 672.501 (1) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in subsection 486.4(1), the Review Board shall make an order directing that any information that could identify a victim, or a witness who is under the age of eighteen years, shall not be published in any document or broadcast or transmitted in any way. (2) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in section 163.1, a Review Board 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 section 163.1, shall not be published in any document or broadcast or transmitted in any way. (3) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence other than the offences referred to in subsection (1) or (2), on application of the prosecutor, a victim or a witness, the Review Board may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the Review Board is satisfied that the order is necessary for the proper administration of justice. Subsections 672.501(11) and (12) provide: (11) Every person who fails to comply with an order made under any of subsections (1) to (3) is guilty of an offence punishable on summary conviction. (12) For greater certainty, an order referred to in subsection (11) also prohibits, 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 or witness whose identity is protected by the order. COURT OF APPEAL FOR ONTARIO CITATION: K.S. (Re), 2022 ONCA 170 DATE: 20220301 DOCKET: C69397 Fairburn A.C.J.O., Miller and George JJ.A. IN THE MATTER OF: K.S. AN APPEAL UNDER PART XX.1 OF THE CODE Erin Dann, for the appellant Mark Luimes, for the respondent Attorney General for Ontario Julia Lefebvre, for the respondent, Person in Charge of North Bay Regional Health Care Heard: February 18, 2022 by video conference On appeal against the disposition of the Ontario Review Board, dated March 15, 2021, with reasons dated April 13, 2021. REASONS FOR DECISION [1] The appellant was found not criminally responsible by reason of mental disorder. The index offence involved threatening his cousin with a knife. When the police located the appellant, he threatened to cut their throats. [2] The appellant has been under the jurisdiction of the Ontario Review Board (the “Board”) since November 2011. He is diagnosed with schizophrenia, alcohol use disorder (in sustained remission), cannabis use disorder, and avoidant personality traits. At his most recent hearing in March 2021, the Board rejected the appellant’s position that he is entitled to be absolutely discharged. Rather, based on “all of the evidence” and submissions of the parties, which were detailed in its reasons, the Board concluded that the appellant continues to represent a significant threat to the safety of the public. [3] Accordingly, the Board continued the conditional discharge imposed in 2020. At the same time, the Board turned its attention to what conditions should attach to the disposition to ensure they meet the statutory criteria of being necessary and appropriate. In doing so, the Board concluded that two conditions that had been imposed in the previous disposition could be removed: (a) a condition that the appellant “abstain absolutely from the non-medical use of alcohol or drugs or any other intoxicant”; and (b) a condition that the appellant, “on his consent, agree to take treatment/medication as prescribed by the person in charge”. [4] The appellant argues that the Board’s disposition is unreasonable because it lacks evidentiary support. The treating psychiatrist opined that if the appellant were to take substances he would decompensate, and that the decompensation would lead to a lack of insight and medication non-compliance, resulting in a significant threat to the safety of the public. [5] The appellant argues that this is an unsupported opinion. While the appellant acknowledges that there is evidence to support the opinion that he would use substances if absolutely discharged, there is nothing in the record to support the opinion that he would then decompensate and stop taking medication. Indeed, the appellant argues that the evidentiary record points in the opposite direction, including support for the fact that when the appellant has used drugs in the past, it has not had this profound decompensating effect. The appellant further emphasizes that the Board’s reasons suggest it did not come to grips with this evidence that is said to undermine the threadbare opinion as testified to by the treating psychiatrist. [6] Despite the very capable argument, we do not agree that the Board was operating in a factual lacuna or that its reasons demonstrate a fundamental failure to appreciate the evidence before it. While the analysis portion of the Board’s reasons could have better explained how it arrived at the conclusion that the appellant remains a significant risk to public safety, perfection in the Board’s reasoning process is not required. Read contextually, the Board’s reasons demonstrate that it appreciated the evidence before it and arrived at a conclusion open to it. [7] The expert Board was entitled to and did accept the appellant’s expert treatment team’s opinion that he remains a significant threat to the safety of the public. That opinion was based upon years of experience with the appellant, as documented in the hospital report. Based upon all that information, which was before and reviewed by the Board, the treatment team and treating psychiatrist came to the opinion that, among other things: - If the appellant used substances, it would be “highly likely to result in a decompensation of his mental state”, precipitating an increase in the level of risk; - That substance use would lead to an “acute deterioration of [the appellant’s] mental health which would increase his risk significantly and put him at risk of offending to the same or similar degree as the index offence given the nature of the symptoms that he presents with when he’s ill”; and - Cannabis use could lead to a resurgence of acute symptoms of his mental illness, “including auditory hallucinations”. [8] One of the psychiatrist members of the Board asked the treating psychiatrist about the level of risk associated with the appellant “engaging in serious criminal conduct” should he resume substance abuse. The treating psychiatrist answered as follows: On balance, I think the steps would be … use of substances, decompensation, and then non-adherence with his medication when he’s very ill and loses more insight. And at that point the likelihood of him re-offending to the same degree would be high when he gets to that point. I don’t think it’s something that would happen immediately, I think there would definitely be a period of decompensation first which would obviously be concerning in itself. [9] The psychiatrist arrived at that conclusion through the application of his expert knowledge to the specific factors operative in this case, ones he knew about as the appellant’s treating psychiatrist. [10] In our view, contextually approached, the Board’s reasons explain why it arrived at the conclusion that the appellant remains a significant threat to public safety. This was a conclusion that was available on the evidence. [11] Despite concluding that the appellant remains a significant risk to public safety, as previously noted, the Board quite correctly turned its mind to the necessary and appropriate disposition, resulting in the removal of two conditions. The removal of the condition involving the abstention from alcohol and non-prescribed drugs rested on the strength of the appellant’s assurances not to consume those intoxicants. As the Board pointed out, the removal of the condition gave the appellant the opportunity to build trust with the hospital and his treatment team. We express our sincere hope that this has been achieved in the past year. It is a factor that will undoubtedly be taken into account at the next Board hearing. [12] The appeal is dismissed. “Fairburn A.C.J.O.” “B.W. Miller J.A.” “J. George J.A.”

MISE EN GARDE Le président du comité qui entend cet appel ordonne que l’ordonnance suivante soit jointe au dossier : L’ordonnance limitant la publication dans cette instance, en vertu des paragraphes 486.4 (1), (2), (2.1), (2.2), (3) ou (4) ou en vertu des paragraphes 486.6 (1) ou (2) du Code criminel , est maintenue. Ces dispositions du Code criminel prévoient ce qui suit : 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 d’établir l’identité de la victime ou d’un témoin dans les procédures relatives à : a) l’une des infractions suivantes; (i) une infraction prévue aux articles 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 ou 347, (ii) une infraction prévue par la présente loi, dans toute version antérieure à la date d’entrée en vigueur du présent sous-alinéa, dans le cas où l’acte reproché constituerait une infraction visée au sous-alinéa (i) s’il était commis à cette date ou par la suite , (iii) [Abrogé, 2014, ch. 25, art. 22(2).] b) deux infractions ou plus dans le cadre de la même procédure, dont l’une est une infraction visée à l’alinéa a ). (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 ) d’aviser dès que possible les témoins âgés de moins de dix-huit ans et la victime de leur droit de demander l’ordonnance; b ) de rendre l’ordonnance, si le poursuivant, la victime ou l’un de ces témoins lui en fait la demande. (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 d’établir l’identité de la victime âgée de moins de dix-huit ans dans les procédures relatives à toute infraction autre que celles visées au paragraphe (1). (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 ) d’aviser dans les meilleurs délais la victime de son droit de demander l’ordonnance; b ) de rendre l’ordonnance, si le poursuivant ou la victime lui en fait la demande. (3) Dans les procédures relatives à une infraction visée à l’article 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 d’établir l’identité d’un témoin âgé de moins de dix-huit ans ou d’une personne faisant l’objet d’une représentation, d’un écrit ou d’un enregistrement qui constitue de la pornographie juvénile au sens de cet article. (4) Les ordonnances rendues en vertu du présent article ne s’appliquent pas à la communication de renseignements dans le cours de l’administration de la justice si la communication ne vise pas à renseigner la collectivité. 486.6(1) Quiconque transgresse une ordonnance rendue conformément aux paragraphes 486.4(1), (2) ou (3) ou 486.5(1) ou (2) est coupable d’une infraction punissable sur déclaration de culpabilité par procédure sommaire. (2) Il est entendu que les ordonnances mentionnées au paragraphe (1) visent également l’interdiction, dans les procédures pour transgression de ces ordonnances, de diffuser ou de publier de quelque façon que ce soit tout renseignement qui permettrait d’établir l’identité de la victime, du témoin ou de la personne associée au système judiciaire que l’ordonnance vise à protéger. 2005, ch. 32, art. 15. COUR D’APPEL DE L’ONTARIO RÉFÉRENCE : R. c. S.B.C., 2022 ONCA 171 DATE : 20220301 DOSSIER : C68531 Les juges van Rensburg, Roberts et Tzimas ( ad hoc ) ENTRE Sa Majesté la Reine Intimée et S.B.C. Appelant Fernando Belton, pour l’appelant Vallery Bayly, pour l’intimée Date de l’audience : le 23 novembre 2021 En appel de la condamnation prononcée le 31 mai 2019 par le juge Robert N. Beaudoin de la Cour supérieure de justice. L.B. Roberts, j.c.a. : [1] L’appelant interjette appel de ses convictions qui découlent de l’effondrement de ses relations conjugales avec la plaignante. L’appelant se présentait au procès sans avocat. À la suite d’un procès devant juge seul, l’appelant a été reconnu coupable des infractions de distribution non consensuelle d’une image intime (art. 162.1 du Code criminel du Canada ), harcèlement criminel (art. 264), extorsion par libelle (art. 302), et méfait à l’égard de données informatiques (art. 430(5)). Les faits clés [2] L’appelant et la plaignante se sont rencontrés en 2012 et en quelques mois, ils étaient mariés. Peu après, la plaignante a découvert que l’appelant était déjà marié, et qu’il continuait de résider et d’élever une jeune fille avec sa première épouse. En novembre 2013, la plaignante a quitté le milieu domestique. Elle s’est officiellement séparée de l’appelant en 2015. Après leur séparation, la plaignante a continué de gérer une garderie sous l’agence Andrew Fleck dans le foyer conjugal. La garderie était sa seule source de revenus. [3] Les faits sous-tendant les condamnations sont les suivants. Après leur séparation, pendant plusieurs mois en 2015 et 2016, l’appelant harcelait la plaignante en lui envoyant des messages menaçants par courriel ou par la poste. Dans ses messages, l’appelant demandait que la plaignante lui remette de l’argent. Sinon, il enverrait des images intimes de la plaignante, porterait plainte contre la plaignante à la commission d’éthique et d’octroi des diplômes à l’Université d’Ottawa et menacerait sa demande de citoyenneté. En outre, dans ces messages, l’appelant a menacé le père de la plaignante. Il a fini par envoyer des photos intimes de la plaignante qu’il a prises sans autorité à une agente d’Andrew Fleck. Il a aussi porté plainte contre la plaignante de sorte que la garderie fût temporairement fermée lors d’une enquête qui a par la suite exonéré la plaignante. En ce qui concerne l’accusation de méfait, l’appelant a modifié la déclaration fiscale de la plaignante à son insu de sorte qu’elle ait dû payer des impôts supplémentaires. [4] L’appelant est sommé de comparaître le 12 août 2016 à l’égard des chefs d’accusation. Il a initialement retenu l’aide d’un avocat, mais l’a congédié après la tenue d’une enquête préliminaire. Le 28 mai 2018, la requête de son avocat pour cesser d’occuper dans le dossier de l’appelant fut accueillie. Dès cette date, le tribunal fit plusieurs mises à jour avec l’appelant concernant ses efforts d’engager un avocat pour son procès. Sa demande de transférer son certificat d’aide juridique n’a pas été réglée. Le 15 février 2019, le tribunal a nommé un avocat en vertu de l’article 486.3(2) du Code criminel pour contre-interroger la plaignante de la part de l’appelant. Le 25 mars 2019, le tribunal a clarifié l’obligation de l’appelant d’être présent à son procès et lui a indiqué qu’il devrait tâcher à préparer lui-même ses requêtes préalables au procès. Le 15 avril 2019, le juge du procès a rejeté la requête en arrêt des procédures présentée par l’appelant. [5] Le 13 mai 2019, soit la première journée du procès, l’appelant, ayant opté pour un procès devant juge seul, s’est présenté sans avocat. Au commencement du procès, l’appelant soulève, pour la première fois en trois ans, que la divulgation de la part de la Couronne était incomplète. Faute de preuve, le juge du procès n’en était pas convaincu, et a commencé le procès. Peu après, l’appelant a demandé un ajournement du procès parce qu’il prétendait être malade. Le juge du procès a rejeté sa requête en l’absence de preuve médicale suffisante. Il a ordonné que le procès continue. [6] Lors de son témoignage, la plaignante a fourni bien des détails qui appuyaient les chefs d’accusation contre l’appelant, dont les messages menaçants reçus de l’appelant sous son propre nom ainsi que sous un surnom connu, des photos intimes, des plaintes mal fondées contre elle à la société Andrew Fleck et des changements portés à sa déclaration fiscale. Elle a nié la suggestion, posée lors de son contre-interrogatoire, d’avoir orchestré un complot contre l’appelant avec l’ancienne épouse de l’appelant. [7] L’appelant a choisi de témoigner. Tout en prétendant que la plaignante a orchestré un complot contre lui, il a néanmoins admis avoir écrit trois des messages en cause, ainsi que quelques messages à l’agence Andrew Fleck. Il a également admis avoir pris les photos intimes de la plaignante sans autorité, mais a nié les avoir envoyées. L’appelant a admis avoir modifié la déclaration fiscale de la plaignante en utilisant à son insu son mot de passe pour avoir accès à son compte fiscal, mais a prétendu l’avoir fait pour révéler le revenu actuel de la plaignante. Ses admissions au procès repétènt celles faites lors de sa déclaration à la police qui fut reconnue comme volontaire par le juge de première instance. [8] Le 31 mai 2019, le juge de première instance a rendu ses motifs de vive voix. Il a conclu que les messages en question, y compris des photos intimes, furent créés et envoyés par l’appelant, et que ceux-ci satisfont aux éléments des chefs d’accusation. Il a également conclu que l’appelant a changé la déclaration fiscale de la plaignante. En conséquence, il a déclaré l’appelant coupable de tous les chefs d’accusation. [9] L’appelant en a interjeté appel. Questions en appel [10] L’appelant prétend que le juge de première instance n’a pas satisfait à ses obligations de l’assister lors du procès. Selon l’appelant, le juge de première instance a entraîné une erreur judiciaire en continuant le procès sans que l’appelant soit représenté par un avocat. En outre, il a négligé de donner des instructions suffisantes à l’appelant au cours du procès. Par conséquent, l’appelant argumente que ses droits à un procès équitable et de présenter une défense pleine et entière furent viciés. Analyse (a) Première question : Est-ce que le juge du procès a erré en continuant le procès bien que l’appelant se présentât sans avocat? [11] L’appelant prétend que le juge du procès a erré et a causé une injustice en permettant que le procès se déroule sans qu’il ait un avocat. Il était clair qu’il en avait besoin pour assurer un procès équitable. [12] Je ne souscris pas à ces arguments. Le juge de première instance n’a ni erré ni causé une injustice. Le procès de l’appelant était équitable bien que l’appelant se représentât seul. [13] L’historique du dossier ainsi que les actions de l’appelant remettent en question son désir et sa diligence de retenir un avocat, et suggèrent plutôt des efforts à retarder son procès. Il est à noter qu’après avoir congédié son ancien avocat, l’appelant a eu presque une année pour engager un nouvel avocat, mais il ne l’a pas fait. J’observe que le traitement de sa demande pour transférer le certificat d’aide juridique reste sans explication. En outre, bien que l’appelant ait soulevé les questions de divulgation et de maladie pour essayer de reporter le procès, l’appelant n’a pas demandé au juge de première instance de reporter le procès pour qu’il puisse engager un avocat ni de nommer un avocat pour le représenter. [14] Cela dit, l’absence d’une requête de l’appelant n’allégit pas l’obligation du juge de première instance de considérer s’il était nécessaire de nommer un avocat pour l’appelant ou un amicus curiae afin d’assurer l’équité ou l’apparence d’équité du procès : R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.), à la p. 67; R. v. Phillips , 2003 CSC 57, [2003] 2 R.C.S. 623, confirmant 2003 ABCA 4, 172 C.C.C. (3d) 285, au par. 10; Ontario v. Criminal Lawyers’ Association of Ontario , 2013 CSC 43, [2013] 3 R.C.S. 3, au par. 46; R. v. A.H. , 2018 ONCA 677, 366 C.C.C. (3d) 69, au par. 36. À mon avis, il n’était pas nécessaire en l’espèce. [15] Le procès n’était pas compliqué. Sa détermination reposait sur une analyse des questions factuelles et de crédibilité. Les questions factuelles principales à trancher étaient si l’appelant était l’auteur des messages menaçants et s’il avait changé des données informatiques fiscales de la plaignante. Selon les admissions faites par l’appelant, il a écrit et envoyé plusieurs des messages en question à la plaignante, et il a changé sa déclaration fiscale sans autorité. En ce qui concerne l’évaluation de la crédibilité, l’élément important du procès pour l’appelant était le contre-interrogatoire de la plaignante et le tribunal a nommé un avocat pour le faire à sa place. [16] Me Fréchette, nommé par la cour pour contre-interroger la plaignante, comparut lors de la première journée du procès, et l’appelant eut la chance de le consulter. Il est l’avocat que l’appelant voulait engager quand il avait demandé un ajournement presque neuf mois avant le procès. En outre, l’appelant a consulté Me Fréchette avant le procès. Par exemple, lors de son témoignage, l’appelant a mentionné une consultation et des « va-et-vient » avec Me Fréchette sur des questions à poser à la plaignante avant le début du procès. De plus, le juge du procès a accordé des pauses au début et au cours du procès à l’appelant pour consulter Me Fréchette. En effet, l’appelant a consulté Me Fréchette lors du contre-interrogatoire de la plaignante et celui-ci a posé des questions suggérées par l’appelant. [17] Dans ces circonstances, je ne peux pas conclure que le procès était inéquitable ou avait une apparence d’iniquité. (b) Deuxième question : Est-ce que le juge du procès a donné de l’aide suffisante à l’appelant au cours de son procès afin que le procès se déroulât d’une manière équitable? [18] L’appelant constate que dans les circonstances inéquitables créées par le juge en refusant de reporter le procès pour qu’il puisse engager un avocat, il incombait au juge d’assurer soigneusement que l’appelant ait de l’aide suffisante au cours du procès. Selon l’appelant, il ne s’est pas acquitté de son obligation. [19] Je n’accueille pas cet argument. [20] Il est vrai que les juges de première instance doivent offrir de l’aide suffisante aux parties non représentées lors des procédures judiciaires. Ces obligations comprennent la responsabilité de diriger les personnes non représentées quant aux étapes du procès et aux règles de procédure et de preuve, ainsi que de leur permettre de faire des choix cruciaux : Conseil canadien de la magistrature, Énoncé de principes concernant les plaideurs et les accusés non représentés par un avocat , septembre 2006 (en ligne : https://cjc-ccm.ca/fr/nouvelles/le-conseil-canadien-de-la-magistrature-publie-un-enonce-de-principes-concernant-les) cité dans Pintea c. Johns , 2017 CSC 23, [2017] 1 R.C.S. 470, au par. 4; Mazraani c. Industrielle Alliance, Assurance et services financiers inc. , 2018 CSC 50, [2018] 3 R.C.S. 261, au par. 39. [21] Cela dit, les juges ne sont pas les avocats pour les personnes non représentées. Le degré de leurs obligations d’offrir d’assistance est donc circonscrit par ce qui est raisonnable selon les circonstances en l’espèce. Voir : R. v. Chemama , 2016 ONCA 579, 351 O.A.C. 381, au par. 14; R. v. Forrester , 2019 ONCA 255, 375 C.C.C. (3d) 279, au para 16. En particulier, les obligations des juges envers les parties non représentées doivent co-exister avec leurs obligations d’assurer un procès efficace et juste: R. v. Ivall , 2018 ONCA 1026, 370 C.C.C. (3d) 179, au par. 166. [22] Cependant, toute négligence quelconque de la part des juges du procès de donner de l’aide suffisante aux personnes sans avocat ne constitue pas un motif d’appel indépendant d’erreur judiciaire. La question de la suffisance de l’aide fournie est une question de fait qui dépend des circonstances de chaque cause : R. v. Tran (2001), 55 O.R. (3d) 161 (C.A.), au par. 22. C’est au juge du procès d’évaluer comment aider l’accusé pour assurer que le procès soit équitable. Cela représente l’exercice du pouvoir discrétionnaire du juge du procès. [23] La question en appel est donc si la négligence judiciaire en question d’assister l’accusé non représenté avait indument gêné la position de la défense : R. v. Schell , 2013 ABCA 4, 293 C.C.C. (3d) 400, au par. 2; R. v. Hazout (2005), 199 C.C.C. (3d) 474 (Ont. C.A.) au par. 37, autorisation de pourvoi refusée, [2005] S.C.C.A. No. 412. [24] Je ne vois rien dans la transcription du procès en l’espèce qui s’élève à la négligence de la part du juge de première instance ou qui aboutit à un procès inéquitable ou à une erreur judiciaire. Le juge aidait l’appelant tout au long du procès. Le juge lui a expliqué le fardeau de la preuve, le principe de la présomption d’innocence, la nature des allégations, des procédures comme le voir dire pour déterminer le caractère volontaire de sa déclaration à la police, et le choix de présenter une preuve ou non, y compris le choix de témoigner. Le juge lui a aussi accordé plusieurs pauses et brefs ajournements au cours du procès pour qu’il puisse se préparer, parler avec Me Fréchette, prendre des décisions importantes, et organiser sa preuve et ses arguments. [25] Je n’accueille pas l’argument de l’appelant que le juge du procès manque d’impartialité. Le seuil d’intervention est très haut. Toute impatience démontrée de temps en temps par le juge de première instance au cours du procès de l’appelant ne l’atteint pas. La transcription du procès démontre que le juge a passé une bonne partie de chaque jour du procès en répondant aux questions de l’appelant et en lui expliquant le déroulement du procès. Certainement, l’appelant a participé au procès d’une façon très engagée. Il n’a pas hésité à poser des questions probantes au juge et à contester ses décisions procédurales au cours du procès. Il s’est montré capable de contre-interroger des témoins, et de présenter sa preuve et ses arguments d’une façon logique et complète. [26] Le juge de première instance n’a pas négligé de donner de l’aide suffisante à l’appelant. Le procès de l’appelant était équitable. La preuve présentée par la Couronne et les admissions faites par l’appelant étaient tellement fortes qu’un verdict de culpabilité était la seule issue probable. Disposition [27] Pour ces motifs, je rejetterais l’appel. Rendu le : 1 mars 2022 « K.M.v.R. » « L.B. Roberts j.c.a. » « Je souscris. K. van Rensburg j.c.a. » « Je souscris. E. Ria Tzimas J. (ad hoc) »

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Stojanovski, 2022 ONCA 172 DATE: 20220301 DOCKET: C67754 & C67755 Lauwers, Paciocco and Thorburn JJ.A. DOCKET: C67754 BETWEEN Her Majesty the Queen Respondent and Darko Stojanovski Appellant DOCKET: C67755 AND BETWEEN Her Majesty the Queen Respondent and Daniel Stojanovski Appellant Jennifer K. Penman, for the appellants Hannah Freeman, for the respondent Heard: December 8, 2021 On appeal from the convictions entered on May 30, 2018 and the sentences imposed on July 6, 2018 by Justice Tamarin M. Dunnet of the Superior Court of Justice, sitting with a jury, with reasons reported at 2018 ONSC 4243. Thorburn J.A.: INTRODUCTION [1] The appellants Darko Stojanovski (“Darko”) and Daniel Stojanovski (“Daniel”) each appeal their convictions for attempted murder. Each also seeks leave to appeal their 18-year sentences. For the reasons that follow, I would dismiss the conviction appeals, grant leave to appeal the sentences, but dismiss the sentence appeals. THE EVIDENCE AT TRIAL [2] On May 10, 2016, Darko and his twin brother Daniel met Nassundu Williams (“Nassundu”) to purchase marijuana. Darko, Daniel and Nassundu had known each other for years. [3] Darko and Nassundu began to argue about politics and the verbal altercation turned into a physical fight. Both men ended up on the ground in the parking lot. They were separated by others but continued to trade insults as Darko and Daniel walked back to their vehicle. There were at least seven people in the parking lot. [4] Moments later, Nassundu was shot in the shoulder and then the back in the parking lot. [5] Darko and Daniel were both charged with attempted murder and discharge of a firearm with the intent to endanger life. [6] The central issue at trial was the identity of the shooter(s). [7] The Crown’s theory was that both brothers shot Nassundu. The Crown’s alternative theory was that Darko aided his brother Daniel to shoot Nassundu. The appellants’ theory was that neither brother shot Nassundu and that someone else intervened to shoot him. [8] Nassundu testified that Darko and Daniel got into their vehicle after the altercation and pulled out of the parking spot. The vehicle then stopped. Nassundu said that the passenger side of the vehicle was closest to him and that Darko occupied the passenger seat. Daniel, whom Nassundu identified as the driver, stood over the car, while Darko rolled down the window and pointed a gun from the passenger seat. Nassundu said he believed that both brothers shot at him, but he was not sure if they shot at him with two guns, or if Darko shot first and then passed the gun to Daniel, who continued to shoot at him. Nassundu said the firearm looked like a “9 mm or police gun”. [9] Nassundu’s friend Junior Bailey (“Junior”) was also present at the scene. His testimony at the preliminary inquiry, which was entered into evidence at trial, was that after the group separated them, the “white guy, the chubby one” [Darko] lifted his shirt and showed Junior that he had a gun. Junior said “let’s not do this” and walked him to his car. The other “white guy” [Daniel] walked over and both got into the car. Junior said “the chubby one” [Darko] was in the passenger seat. [10] Junior said they drove up “towards where [Nassundu] was” and they were still “yelling back and forth”. After the yelling, Junior said “I seen the white guy pull out the gun and start shooting at [Nassundu].” Junior said that the first shooter was the driver, whom he identified as Daniel. Then the other guy, Darko “stretch over the car and start shooting”. The car was a silver or grey two-door Cadillac. Junior said he then went over to Nassundu “to see if he got hit”. Nassundu was face down on the ground and had been shot. [11] There was evidence at trial that within an hour of the shooting, the appellants went to their parents’ apartment building and exchanged the silver Cadillac they had been driving for a blue Mazda owned by their mother. [12] After the appellants’ arrest, police found four restricted firearms, six empty magazines, two scopes and four red bullets that were not live, in the appellants’ apartment. Because the barrel and slides had been removed from the two firearms, a firearms expert from the Centre of Forensic Sciences could not test whether any particular shell casing came from those firearms. [13] Darko testified that he was the driver. As he drove out of the parking lot with his brother Daniel in the passenger seat, he heard gunshots but continued driving. He denied firing any shots, or having any firearm. Daniel did not testify. The firearms expert from the Centre of Forensic Sciences confirmed that all four shell casings found at the scene were fired from the same gun and that the gun must have been a “.40 calibre”. [14] Swabs were taken of the interior of the appellants’ vehicle but they were never tested for gunshot residue. [15] A jury found each of the appellants guilty of attempted murder of Nassundu, and of discharging a firearm with intent to endanger Nassundu’s life. The sentencing judge stayed the discharge firearms convictions based on the principle from R. v. Kienapple , [1975] 1 S.C.R. 729 . The sentencing judge held that this shooting in a populated public place, which jeopardized the lives of others and resulted in Nassundu being confined to a wheelchair with no use of his legs, justified a sentence of 18 years for each appellant. THE ISSUES [16] The issues raised on this appeal are: 1. Whether the jury instruction on party liability (aiding), in respect of Darko, was adequate; 2. Whether the trial judge took reasonable steps to mitigate the prejudice caused to the appellants by the introduction, only in the Crown’s jury submissions of the alternative theory that Darko aided Daniel to commit the offence of attempted murder; 3. Whether the trial judge should have instructed the jury that Detective Constable Ditlof's hearsay evidence obtained from Nassundu in the hospital the morning after the shooting, could not be relied on for the truth of its contents; 4. Whether the trial judge erred in her instruction to the jury on Junior’s preliminary hearing evidence; and 5. Whether the sentencing judge erred in her analysis of the aggravating factors or failed to consider the appellants’ rehabilitative prospects such that the sentences should be reduced. ANALYSIS AND CONCLUSIONS The First Issue: The Jury Instruction on Party Liability [17] The appellants claim the trial judge’s instruction about aiding was deficient in that (1) it did not apply the evidence to the legal instruction on aiding, and (2) it did not connect the instruction on aiding to the essential elements of the offences. The appellants claim the trial judge therefore committed an error of law that adversely affected the deliberation process and verdict. Although the jury was only charged on party liability with respect to Darko, the appellant Daniel argues that this ground of appeal affects him as well because, had party liability been properly left with the jury for him, he could have been convicted of a lesser offence. The Law Respecting Jury Instructions and Party Liability [18] There are two means by which a party may be found liable for an offence: primary liability, which refers to the person who actually committed the offence, or secondary (or party) liability, which includes those who aid another to commit the offence. Both primary and secondary liability are set out in s. 21 of the Criminal Code . The accused can be convicted of the substantive offence either as the perpetrator or the aider: R. v. Cowan, 2021 SCC 45, at paras. 29-30; R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 51, per LeBel J. (concurring); R . v. Thatcher , [1987] 1 S.C.R. 652, at p. 694 . [19] A jury must be instructed as to the factual issues to be resolved, the law to be applied, the parties’ positions and the relevant evidence: R. v. Cadeddu , 2013 ONCA 729, 304 C.C.C. (3d) 96, at para. 63. The essential elements of aiding and abetting should be linked to the essential elements of the offence at issue: R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 64, leave to appeal refused, [2014] S.C.C.A. No. 13; R. v. Josipovic, 2019 ONCA 633, 147 O.R. (3d) 346, at para. 66. The distinction between liability as a perpetrator and liability as an aider must be clearly articulated: Josipovic, at para. 48. [20] Where there are two accused, the trial judge must instruct the jury that in addressing the liability of each accused, the jury must consider the case against each accused separately by reference to the evidence admissible against each: Josipovic , at paras. 47, 52. [21] On appeal, the standard of review of a jury charge is adequacy, not perfection: R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 13. The adequacy of a jury charge is assessed “not in isolation, but in the context of the trial as a whole”, including the closing submissions of counsel: R. v. Daley , 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58. The functional question an appellate court must ask is whether the jury was “left with a sufficient understanding of the facts as they relate to the relevant issues”: R. v. Jacquard , [1997] 1 S.C.R. 314, at para. 14; see also Newton , at para. 13 and whether the jury would “adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues”: R. v. Cooper , [1993] 1 S.C.R. 146, at p. 163; see also Newton , at para. 13. The Trial Judge’s Jury Instruction i. The Charges [22] The trial judge told the jury that because Darko and Daniel were each charged with attempted murder and discharging a handgun with intent to endanger life, a separate verdict must be rendered for each accused on each charge. ii. The Necessary Elements of Aiding Another to Commit an Offence [23] The trial judge then outlined the definition of aiding, telling the jury that, “A person may be found guilty of an offence because he helped somebody else to commit it.” [24] She explained the elements of aiding as follows: An aider may help another person commit an offence by doing something. It is not enough that what the aider does has the effect of or resulted in helping the other person commit the offence. The aider must intend to help the other person commit the offence. Actual assistance is necessary. This is the conduct requirement . It is not enough that the other person was simply there when the crime was committed by someone else. In other words, just being there does not make a person guilty as an aider. Sometimes, people are in the wrong place at the wrong time. On the other hand, if a person knows that someone intends to commit an offence and goes to or is present at a place where the offence is committed, to help the other person commit the offence , then that person is an aider of the other’s offence and he is equally guilty of it. Aiding relates to a specific offence. An a i der must do something or give assistance for the purpose of helping the other person commit the offence. The state of mind requirement expressed by the term “purpose”, requires Crown counsel to prove both intent and knowledge . For intent, Crown counsel must prove that Darko Stojanovski intended to help Daniel Stojanovski to commit the offences, although Crown counsel need not prove that Darko Stojanovski desired the successful commission of the offences . For knowledge, Crown counsel must prove that Darko Stojanovski knew that Daniel Stojanovski intended to commit the offences, although Crown counsel need not prove that Darko Stojanovski knew precisely how Daniel Stojanovski would commit the offences . [Emphasis added.] [25] Later in the charge, the trial judge advised the jury, “I remind you that Daniel Stojanovski and Darko Stojanovski are each entitled to have his case decided on the basis of his own conduct and state of mind and from the evidence that may apply to him.” iii. The Necessary Elements of Attempted Murder [26] Then, the trial judge outlined the necessary elements of the offence of attempted murder. She also applied those elements to each of the two appellants, because the only real issues were whether either or both of the appellants shot Nassundu and if so, whether either or both intended to kill Nassundu: For you to find Daniel Stojanovski and Darko Stojanovski guilty of attempted murder, Crown counsel must prove beyond a reasonable doubt: 1. that they meant to kill Mr. Williams by wounding him with a firearm; and 2. that they fired a gun to wound Mr. Williams. In dealing with each accused sep a rately, the first question is : Did Daniel Stojanovski mean to kill Mr. Williams? Did Darko Stojanovski mean to kill Mr. Williams? This element has to do with their state of mind at the time they fired the gun. The crime of attempted murder requires proof of a particular or specific state of mind. Crown counsel must satisfy you beyond a reasonable doubt that when they fired the gun, they meant to kill Mr. Williams . To determine whether Daniel Stojanovski and Darko Stojanovski meant to kill Mr. Williams, consider all the evidence, including what they did or did not do; how they did or did not do it; and what they said or did not say. Consider what they said and did before, at the time and after they fired the handgun. All these things and the circumstances in which they occurred may shed some light on their state of mind at the time. You may conclude that as a matter of common sense that a person usually knows what the predictable consequences of his actions are and means to bring them about. You may, but do not have to reach that conclusion. You must not do so if, on the evidence as a whole, you have a reasonable doubt whether Daniel Stojanovski and Darko Stojanovski meant to kill Mr. Williams. The second question is : Did Daniel Stojanovski fire the gun? Did Darko Stojanovski fire the gun? This element has to do with their conduct. They are alleged to have fired the gun to wound Mr. Williams . If you are satisfied beyond a reasonable doubt that Daniel Stojanovski fired the gun to wound Mr. Williams, this conduct amounts to an attempt to kill Mr. Williams. If you are satisfied beyond a reasonable doubt that Darko Stojanovski fired the gun to wound Mr. Williams, this conduct amounts to an attempt to kill Mr. Williams. [Emphasis added.] [27] After explaining the elements of attempted murder, the trial judge explained to the jury that, if they were not satisfied that either appellant had the requisite state of mind for attempted murder, they could convict the appellants of the lesser included offence of aggravated assault: After considering all of the evidence, if you are not satisfied beyond a reasonable doubt that Daniel Stojanovski meant to kill Mr. Williams, you must find him not guilty of attempted murder. If you are not satisfied beyond a reasonable doubt that Daniel Stojanovski meant to kill Mr. Williams, but you are satisfied beyond a reasonable doubt that he intended to shoot Mr. Williams, then you must find him not guilty of attempted murder, but guilty of aggravated assault. If you are satisfied beyond a reasonable doubt that Daniel Stojanovski meant to kill Mr. Williams, you must find him guilty of attempted murder on Count One. After considering all of the evidence, if you are not satisfied beyond a reasonable doubt that Darko Stojanovski meant to kill Mr. Williams, you must find him not guilty of attempted murder . If you are not satisfied beyond a reasonable doubt that Darko Stojanovski meant to kill Mr. Williams, but you are satisfied beyond a reasonable doubt that he intended to shoot Mr. Williams, then you must find him not guilty of attempted murder, but guilty of aggravated assault. If you are satisfied beyond a reasonable doubt that Darko Stojanovski meant to kill Mr. Williams, you must find him guilty of attempted murder on Count One. [Emphasis added.] iv. The Necessary Elements of Discharging a Firearm with Intent to Endanger Life [28] The trial judge then went through the same exercise with respect to the other charge faced by the appellants: discharging a firearm with intent to endanger life. She reminded the jury that they must decide the case regarding each appellant separately. She explained the essential elements of the offence, namely, (1) the intentional discharge of a firearm at Nassundu, (2) with the intent to endanger his life. Again, the trial judge posed questions to the jury for each element of the offence, asking the question separately for each appellant. She correctly articulated the intent requirement for this offence, including that the discharge of the firearm must be intentional and that there must have been intent to endanger Mr. Williams’s life, that is, the intent to put him at risk of losing his life. v. The Trial Judge’s Summary of the Evidence [29] This was followed by the trial judge’s summary of the evidence. [30] Among other things, she reminded the jury of the Crown’s evidence. She reminded them that Nassundu testified that he told police that both Darko and Daniel each fired two or three shots at him “even if they did not have two guns and they used one gun.” Nassundu testified that he told the police Darko shot him in the shoulder and then gave his brother the gun, and that Nassundu then began to run. He collapsed and was shot in the back. Nassundu testified that, “I know who shot me. I am not making an assumption.” [31] The trial judge also reminded the jury that Officer Nicholas Ditlof spoke to Nassundu at the hospital the morning after the shooting. Nassundu was in a lot of pain, his speech was muffled, and he was gasping for air. Officer Ditlof made notes of their conversation as follows, although they were not verbatim. Q. Who shot you? A. Darko, two twins, white, 20's, Croatian, look alike, one heavier than the other. […] Q. How did they leave? A. Drove a Cadillac CTS, silver, two-door, new. [32] The trial judge reminded the jury of Junior’s evidence. Junior said he saw Nassundu with two white guys, they got into an argument and one of them grabbed Nassundu from the back and they fell on the ground. After he and others separated the two men, the chubbier white guy lifted up his shirt, revealing a gun. The two white men got into their vehicle and drove to where Nassundu was standing. The chubbier white guy and Nassundu continued to yell at each other. The chubbier guy on the passenger side pulled out a gun and started shooting at Nassundu. The other white guy stood up and stretched over the car and started shooting. Then they drove onto Bergamot in a silver or grey two-door Cadillac. He said there was a rapid succession of shots. He was shown a photo lineup but was unable to identify Darko or Daniel. [33] The trial judge also reminded the jury of the evidence proffered by Darko. Darko testified that Nassundu had been his marijuana dealer for some time, and on the day in question, he and Nassundu started to argue and it became a physical fight. He said Nassundu lunged at him with a knife and, after being led away by someone else, Nassundu came at him with the knife and said he was going to kill him. Police found a knife near Nassundu when he was found. Darko said that when he got to his car, he looked for his brother and they both got into the car. He and Nassundu were still yelling and swearing at each other. Darko said he drove out of the parking lot and, as he turned onto Bergamot Avenue, he heard gunshots. He did not know where they were coming from and kept driving. (Daniel did not testify.) vi. The Trial Judge’s Repetition of the Necessary Elements of Aiding [34] After her reminder that it was the jury’s recollection of the evidence not hers that mattered, and her summary of the evidence, the trial judge repeated a second time, the elements of aiding in the commission of an offence: [I]f a person knows that someone intends to commit an offence and goes to or is present at a place where the offence is committed to help the other person commit the offence, then that person is an aider of the other’s offence and he is equally guilty of it. Aiding relates to a specific offence. An aider must do something or give assistance for the purpose of helping the other person commit the offence . The state of mind requirement expressed by the term “purpose” requires Crown counsel to prove both intent and knowledge. For intent, Crown counsel must prove that Darko Stojanovski intended to help Daniel Stojanovski to commit the offences, although Crown counsel need not prove that Darko Stojanovski desired the successful commission of the offences . For knowledge, the Crown must prove that Darko Stojanovski knew that Daniel Stojanovski intended to commit the offences, although Crown counsel need not prove that Darko Stojanovski knew precisely how Daniel Stojanovski would commit the offences . [Emphasis added] Analysis and Conclusion Respecting the Adequacy of the Charge [35] For the reasons that follow, I find the charge was adequate. [36] First, contrary to the appellants’ suggestion, the trial judge did not treat Daniel and Darko as a single entity throughout her instructions. She carefully and repeatedly instructed the jury to treat each appellant separately, and she framed the questions facing the jury in terms of each appellant. [37] The trial judge explained to them the requirements for aiding and that the aiding theory of liability related only to Darko. In this respect, this case is distinguishable from Josipovic , relied on by the appellants. The trial judge here did not treat the appellants as a single unit, and she clearly distinguished between liability as an aider and liability as a principal. [38] Neither did the trial judge lump together the charges faced by the appellants. Before her initial instruction on aiding, the trial judge instructed the jurors that the appellants were charged with attempted murder and discharge of a firearm with the intent to endanger life. She then informed the jury, “Aiding relates to a specific offence.” She defined the conduct requirement for aiding as follows: “An aider must do something or give assistance for the purpose of helping the other person commit the offence.” She then explained the purpose requirement for aiding being that Darko must have intended to assist Daniel in the commission of “the offences” and must have known that Daniel intended to commit “the offences”. Although the trial judge referred to “the offences” when discussing the purpose requirement for aiding, she was clear that aiding relates to a specific offence. Further, she correctly instructed the jury on the distinctions between the two charges they each faced. [39] Second, the jury would not have been confused as to how the legal instructions on aiding applied to the offence of attempted murder. The charge on aiding was not an afterthought, as submitted by the appellant. [40] Each of the two accused was charged with the same two offences. After reminding the jurors that the charges were attempted murder and discharge of a firearm with the intent to endanger life, she correctly explained the three necessary elements of party liability being (i) doing something to aid another to commit the offence, (ii) knowing the other meant to commit the offence; and (iii) intending to help the other commit the offence : R. v. Briscoe , 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 14-17. [41] The trial judge made it clear that liability as an aider relates to a specific offence, and that in order to find Darko guilty of aiding Daniel to commit an offence, the jury must find that Darko knew Daniel intended to commit the offence, that he intended to help Daniel commit the offence, and that he did something to further the commission of the offence. [42] The trial judge then correctly articulated the legal requirements to find Darko guilty of attempted murder, those being that, (1) he meant to kill Nassundu by wounding him with a firearm; and (2) he fired a gun to wound Nassundu. She also correctly articulated the intent required for the lesser included offence of aggravated assault and the essential elements of discharging a firearm with intent to endanger life. [43] The appellants acknowledge that her instructions on the elements of the offences are error-free. [44] Then, after providing her summary of the evidence presented at trial, the trial judge repeated the three required elements of party liability. [45] In her second instruction on aiding, she again instructed the jurors that liability as an aider relates to a specific offence. She advised that in order to find Darko guilty of aiding, the jury must find that Darko knew Daniel intended to commit the offence, that he intended to help Daniel commit “the offences”, and that he did something to further the commission of “the offences”. [46] I am reminded that o n appeal, the standard of review is adequacy, not perfection and that “[a]n appellate court’s approach is ‘functional’. It assesses the adequacy of the charge in the light of its purpose”: Newton, at para. 13. In this case, the trial judge (a) correctly explained the law of aiding, (b) she instructed the jury that aiding applies to a specific offence, (c) there were only two offences in this case one of which was attempted murder and, (d) in explaining the required elements of attempted murder, she instructed the jury that attempted murder requires an intention to kill . [47] Reading the charge as a whole, the jury would have understood that in considering Darko’s liability for aiding, they would have to relate aiding to one of the two specific offences and conclude that Darko knew that Daniel intended to commit that offence and intended to help him commit it. In the circumstances of this case, the main distinguishing feature between the offences charged was the intent element the Crown was required to prove. The same conduct, shooting Nassundu with a firearm, grounded each charge. It was in this context that the jury was asked to consider whether the Crown had proven beyond a reasonable doubt that Darko knew that Daniel intended to commit a specific offence, intended to help him commit it, and did something for the purpose of assisting him to commit that offence. [48] As the respondent submitted, the jury would have understood that to convict Darko of attempted murder as an aider, they would need to find that he did something to aid Daniel to commit the attempted murder, he knew that Daniel intended to kill Nassundu, and he intended to help Daniel commit the attempted murder. [49] While the trial judge could have provided a more detailed instruction, the jury was adequately equipped to understand the legal issues they were to consider in respect of aiding. [50] Third, the jury would not have been confused about the application of the evidence to the legal tests as the evidence in this case was not complicated. There was no dispute that: i. Darko and Nassundu knew one another; ii. Darko and Daniel went to the parking lot; iii. Darko got into a physical altercation with Nassundu; iv. Darko and Daniel went to their Cadillac and began to drive the vehicle; and moments later, v. Nassundu was shot multiple times at close range, causing him serious injury. [51] The live issues on the attempted murder charge were (1) who shot Nassundu and (2) whether the shooter intended to kill Nassundu, and relatedly, whether the person aiding the shooter knew that the shooter intended to kill Nassundu and intended to assist the shooter. The live issues on the charge of discharging a firearm with intent to wound were similarly (1) the identity of the shooter and (2) whether the shooter intended to endanger the life of Nassundu, and relatedly, whether anyone aiding the shooter knew that the shooter intended to endanger Nassundu’s life and intended to assist the shooter. [52] The exercise of applying the law that had been clearly articulated to the evidence was not a complex exercise for the jury to perform. [53] Fourth, the Crown’s failure to address the purpose element of aiding at one point in closing submissions and the trial judge’s repetition of the Crown’s position on aiding, when viewed in the context of the charge as a whole, do not render the charge inadequate warranting a retrial. [54] In closing submissions, the Crown articulated its alternate theory that Darko acted to aid Daniel to commit attempted murder but failed to address the knowledge and intent requirements that Darko knew Daniel intended to kill Nassundu and intended to assist him to commit the offence. The Crown said : [E]ven if Darko Stojanovski didn’t fire his gun, because he didn’t want to hit his brother, didn’t want to hit people who were around Mr. Williams, someone other than his target, you should still find that he aided his brother by driving his brother, Daniel Stojanovski, up to within feet of Mr. Williams and then stopping the car so that his brother could shoot Mr. Williams. In that scenario, you should still find both guilty of attempted murder. [55] In her summary of the Crown’s position, the trial judge also failed to address the purpose requirement for aiding. The trial judge summarized the Crown’s position on aiding as “even if Darko Stojanovski did not fire the gun because he did not want to hit his brother or anyone other than his target, he aided Daniel Stojanovski by driving him within feet of Mr. Williams and stopping his car so that his brother could shoot Mr. Williams.” [56] However, this was not a legal instruction, this was a summary of the Crown’s position. [57] The trial judge had twice given a clear legal instruction to the jury that in order to find an accused guilty of attempted murder, the perpetrator must have the intent to kill, and that for Darko to be convicted on the basis of aiding, he had to know that Daniel intended to commit the offence, he must have intended to help Daniel commit the offence, and he must have done something to help Daniel commit the offence. [58] Fifth, counsel’s failure to object to the instruction may be taken into account on appellate review: Daley, at para. 58; R. v. Flores, 2011 ONCA 155, 269 C.C.C. (3d) 194, at paras. 95, 100. Neither of the appellants’ trial counsel voiced any objection about these issues to the trial judge. [59] For these reasons, I find the charge, viewed as a whole : i. Correctly outlined the legal requirements for the charge of attempted murder and aiding another to commit attempted murder; ii. Adequately linked the essential elements of aiding to the essential elements of the offences at issue; iii. Distinguished between liability as a perpetrator and as an aider; iv. P rovided a sufficient understanding of the evidence that related to those issues; and v. Reminded the jury to consider the case against each appellant separately. [60] I therefore find the trial judge connected her instruction on aiding to the essential elements of attempted murder and outlined the evidence to enable the jury to apply the evidence to her legal instruction about aiding in the commission of an offence. As such, this ground of appeal fails. [61] In any event, this ground of appeal can have had no impact on the appellant Daniel, who was convicted by the jury as a principal. There is no basis to think that failing to leave the jury with aiding as a route to liability for Daniel had any impact on his conviction. The Second Issue: Whether the Trial Judge Erred in Her Approach to the Crown’s Alternative Theory [62] As noted above, the Crown’s primary theory of liability (based on the evidence of Nassundu and his friend Junior) was that both Daniel and Darko shot Nassundu. The Crown’s alternative theory was that Darko aided his brother Daniel to shoot Nassundu. [63] The appellants submit that they were not given the opportunity to respond to the alternative theory. They claim that the trial judge should have “made reasonable inquiries with counsel and implemented any course of action that would have remedied the prejudice created by the inability of the defence to properly respond to the Crown’s new alternative theory.” The appellants claim the trial judge could have allowed the defence to reply orally or make additional submissions in writing on the alternative theory, which could have been incorporated into the jury charge. The Law Regarding the Presentation of Alternative Theories [64] There is nothing unfair in the Crown relying on different or alternate theories of liability that satisfy the specific allegation made in the charge alleged, as long as each alternative theory is rooted in the evidence: R. v. Kelly, 2017 ONCA 920, 138 O.R. (3d) 241, at para. 31. However, this general rule is circumscribed by the overriding need to ensure trial fairness and, specifically, the accused's right to make full answer and defence: Kelly, at para. 31; R. v. Ranger ( 2003 ) , 67 O.R. (3d) 1 (C.A.), at para. 134; R. v. R.H. , 2022 ONCA 69, at paras. 23-24. [65] The Crown is entitled to rely on any basis of liability for the offence charged that is available on the evidence: Kelly, at para. 30; see also Pickton, at para. 19. In Kelly, at para. 34, Doherty J.A. held, “It is incumbent on the defence to demonstrate prejudice, justifying the limiting of the Crown's case to a particular theory.” If the defence intends to rely on the fact that the Crown's case is limited to the theory advanced by the Crown in shaping the defence, the defence must take steps to properly limit the Crown's case. This can be done through a request for formal particulars, or by seeking a clear and unqualified statement from the Crown that it is relying exclusively on the factual basis advanced in its theory of the case: Kelly , at para. 35. [66] That said, there can be circumstances in which the defence, based on particulars provided by the Crown, specific representations made by the Crown, or the conduct of the trial, is justifiably led to believe that the accused's potential liability is limited to a specific theory and conducts the defence accordingly. In those circumstances, the defence may be successful in arguing that any departure from the specific basis of liability advanced, especially after the evidence is complete, would unfairly prejudice the accused's ability to make full answer and defence: Kelly, at para. 32; R. v. Pawluk , 2017 ONCA 863, 357 C.C.C. (3d) 86, at para. 30. [67] In Ranger , for example, the defence had every reason to believe, up to the point of the jury charge, that the jury would be told that liability depended on the Crown proving that the accused was in the house when the murders occurred: at paras. 141-154, 162. However, the trial judge, in his instructions to the jury, put an additional theory of liability to the jury that did not require that the jury find that the accused was in the house: Ranger, at paras. 127, 155-162. This court concluded that the defence was materially prejudiced by the introduction of this new theory of liability in the trial judge's charge, without notice to counsel before closing submissions, and therefore allowed the appeal: Ranger, at para. 162. Analysis of the Issue of the Crown Presentation of an Alternative Theory [68] In this case, the appellants at trial did not ask for the opportunity to address the alternative Crown theory of aiding or to make additional submissions. Nor is there any suggestion of ineffective assistance of counsel. [69] Moreover, both of the Crown’s theories were consistent with the evidence adduced at trial. [70] The Crown’s primary theory was that both appellants had shot at Nassundu from their car. This theory was consistent with the evidence of Nassundu and Junior that both Daniel and Darko were shooting. Further, it was consistent with the fact that the appellants had removed and disposed of the barrels and slides from two firearms, one of which was registered to Daniel and the other to Darko. [71] However, only four shell casings were found at the scene and the firearm expert from the Centre of Forensic Sciences opined that all four had been shot by the same firearm. Darko agreed that he and his brother were present in the parking lot, he and Nassundu had fought, and he and his brother left in his Cadillac. Darko testified that he drove the Cadillac out of the parking lot, that it was his vehicle, and that he had keys to the vehicle. He was the registered owner according to a Ministry of Transportation license plate search. [72] As such, the Crown’s alternative theory arose from the evidence, including Darko’s own evidence. The Crown submitted that, in the alternative, Darko drove the vehicle, both brothers pulled their guns out, Daniel began firing but Darko did not have a clear shot to Nassundu and did not shoot because he did not want to hit his brother or other bystanders. [73] The jury could accept Darko’s evidence that he drove the vehicle but reject his evidence that neither he nor his brother were involved in the shooting. [74] Second, the appellants were aware of the alternative theory because the Crown gave notice of the alternative theory in the pre-charge conference, by flagging the need for an instruction on party liability. Crown counsel advised that: “It is a reasonable possibility that the jury can conclude that the two accused drove up, both pulled out their guns, but that only one ended up shooting, given that the four shell casings come from one gun. So, they need to be charged on the aiding portion of 21 – of Section 21, given that again it’s possible that Darko Stojanovski essentially delivered his brother to [Nassundu], his brother gets out and shoots [Nassundu]. So, I don’t expect that to be controversial, the party liability charge.” [75] Darko’s counsel submitted: “[W]ith respect to my friend’s request on the charge for party liability, I – I’m in agreement that the… aiding provisions would be most applicable here and would be what would – what would apply. That is – certainly would be consistent with my friend’s theory. That’s why I don’t – I don’t take any issue with that.” [76] Daniel’s counsel submitted, following Darko’s counsel’s submissions, “I have nothing to add to that.” This happened before any of the parties gave their closing submissions. [77] When the trial judge sought clarification from the Crown about the alternate theory, following Crown submissions, the appellants’ counsel did not object. The following morning, midway through the jury charge, the Crown sought to clarify the theory on aiding, as Crown counsel was concerned his earlier answers were not clear. The Crown pointed out that there were “only two possibilities, in the Crown’s submission and theory” that “either they’re both shooting and the shell casings from one gun are not found, or only Daniel is shooting.” [78] The trial judge confirmed the theory, stating “even if Darko did not fire his gun, he aided Daniel by driving him within feet of [Nassundu] and stopping his car so that his brother could shoot.” The Crown affirmed that this was correct. Darko’s counsel said that the Crown’s clarification on this issue had “alleviated my concerns” about the Crown’s articulation of the theory of aiding the previous day, and that it “accords with – with my memory as to how my friend presented his closing submission to the jury.” No further objection was raised. [79] In sum, the theories of liability presented to the jury were those outlined in the pre-charge conference: that either Darko and Daniel both shot Nassundu, or that Daniel shot Nassundu and Darko aided him. This is not a case like Ranger, where defence counsel was materially prejudiced by the introduction of a new ground of liability in the jury charge, without prior notice. [80] I therefore see no prejudice to the appellants’ right to make full answer and defence to the alternative theory that Darko aided Daniel. The Third Issue: Use of Officer Ditlof’s Note That Nassundu Identified the Appellants as the Shooters [81] In his trial testimony, Nassundu identified the appellants as the shooters. However, he was unable to confirm whether he had previously identified them as the shooters. Officer Ditlof was permitted to testify that on the day of the shooting, Nassundu told him that he was shot by “Darko, two twins”. [82] T he appellants claim the trial judge erred by not giving a limiting instruction that this statement by Nassundu to Officer Ditlof could not be relied on for the truth of its contents. The appellants submit that because Nassundu did not adopt his prior identification of the appellants, his statement to Officer Ditlof was not admissible as prior identification evidence. The appellants submit that a limiting instruction was important because the appellants alleged that Nassundu and Junior colluded and, absent such an instruction, Nassundu’s statement would serve to support the Crown’s assertion that Nassundu had identified the appellants before speaking with Junior. The Law Regarding Use of a Prior Consistent Statement to Help Identify an Accused [83] Evidence of out-of-court statements of identifications made by a witness constitute prior consistent statements made by that witness: R. v. Tat (1997) , 35 O.R. (3d) 641 (C.A.), at p. 656. [84] Generally, evidence of a prior consistent statement by a witness is excluded as irrelevant and self-serving: Tat, at p. 656. However, in Tat , at pp. 656-657, Doherty J.A. held that: If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions given will be central to that assessment. Where a witness identifies the accused at trial, evidence of prior identifications made and prior descriptions given by that witness do not have a hearsay purpose. In his influential article, Evidence of Past Identification , supra , Professor Libling explains the admissibility of the out-of-court statements where the witness makes an in-court identification in this way, at pp. 271-72: There is no hearsay problem with this kind of evidence. It is not admitted to prove the truth of the earlier identification, but to add cogency to the identification performed in court…. [E]vidence of previous identification strengthens the value of the identification in court by showing that the witness identified the accused before the sharpness of his recollection was dimmed by time. Furthermore it is important, in assessing the weight of the identification in Court, to know whether the identifying witness was able to identify the accused before he was aware that the accused was the person under suspicion by the police. Analysis of the Use of a Prior Consistent Statement to Help Identify an Accused [85] In this case, Nassundu’s statement was admissible to enhance the credibility of Nassundu’s in-dock identification. Nassundu identified the appellants at trial and his earlier identification to Officer Ditlof can be used to test the reliability of the identification of the appellants as the shooters at trial. [86] Although Nassundu did not recall making the statement to police when he testified at trial, he did testify that each time he spoke with the police, he was telling the truth, and the appellants’ counsel had the opportunity to cross-examine him about the basis for his identification, how and why he believed the appellants shot him, and whether he was influenced by others or making assumptions based on information from others. Moreover, Officer Ditlof testified and could be cross-examined about the circumstances in which the statement was made, the accuracy of his notes and the circumstances in which he found Nassundu when he gave the statement including the fact that he was in considerable pain. [87] This evidence was also relevant given the appellants’ assertion that Nassundu and Junior had colluded to identify the appellants as the shooters. (I note that although the appellants contended that Nassundu and Junior colluded, this is belied by the fact that Junior was unable to identify either of the appellants from the photo lineup.) [88] Moreover, trial counsel made no objection to this reference in the jury charge. [89] As such, I find this evidence of identification was properly left to the jury for consideration. The Fourth Issue: The Trial Judge’s Instruction About How Junior’s Evidence Could be Used [90] The appellants submit that the trial judge erred in her instructions to the jury regarding Junior’s evidence. The appellants claim the jury ought to have been cautioned about relying on evidence that might have been the result of collusion. Moreover, the appellants claim the trial judge should have given the jury an instruction regarding how Junior’s failure to testify as a witness at trial affected his credibility, particularly given the importance of his evidence. When summarizing Officer Ellis’ evidence, the trial judge did not summarize the evidence about his attempts at service . [91] The adequacy of a jury charge is assessed “in the context of the trial as a whole”, including the closing submissions of counsel: Daley, at para. 58. [92] The trial judge is not required to review all the evidence upon which the defence relies: R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 125, leave to appeal refused, [2010] S.C.C.A. No. 460 & [2011] S.C.C.A. No. 119. The trial judge’s role is to “decant and simplify”: Jacquard, at para. 13; Largie, at para. 125. This court held in Largie , at para. 125, “It can nearly always be said that a trial judge could have reviewed the evidence in greater detail. But that is not the test. The standard is adequacy, not perfection.” [93] In this case, the t rial judge did advert to the fact that Junior evaded service and the possibility that he colluded with Nassundu when she summarized the parties’ positions. [94] The trial judge summarized the Crown position that Junior evaded service because he did not want to have anything to do with the criminal justice system, and the defence position that Junior colluded with Nassundu and evaded service because he realized he made the wrong assumption about who shot Nassundu. The trial judge also noted Junior’s criminal record. [95] The Crown and both appellants’ counsel had reviewed the possibility of collusion and Junior’s evasion of service in their closing submissions. The Crown submitted that Junior evaded service because he did not want to participate in the justice system and that collusion was inconsistent with the evidence. The appellants’ counsel submitted that Junior colluded with Nassundu to identify the appellants as the shooters and that Junior evaded service because he did not want to get caught in his lies. [96] Darko’s counsel also noted Junior’s criminal record, Officer Ellis’ multiple efforts to serve Junior, and the frailties of Junior’s evidence given that he did not testify at trial. Therefore, by the conclusion of the charge, the jury would have been aware of the possibility of collusion, Junior’s criminal record, and Junior’s evasion of service. [97] Further, the appellants sought and obtained a mid-trial instruction, pursuant to R. v. Li, 2012 ONCA 291, 110 O.R. (3d) 321, at paras. 67-68, to explain that there might be tactical reasons why the defence might not attack the credibility of a witness at a preliminary inquiry, and therefore that the cross-examination at a preliminary inquiry might not have been as extensive as it would have been at trial. [98] The trial judge cautioned the jurors before they heard Junior’s preliminary inquiry evidence, to “remember that you have not had the benefit of observing [Junior] testify. Consider, as well, where there is any real dispute about what [Junior] said in his evidence. Issues at a preliminary hearing are different than at trial, including the issue of credibility. Credibility is only determined by you, the jury. There are tactical reasons why defence counsel may not have conducted a full cross-examination of [Junior] at the preliminary hearing.” She repeated this instruction in the final charge. [99] During the pre-charge conference, Darko’s counsel asked the trial judge to repeat her mid-trial instructions on Junior’s evidence in the final charge, which the trial judge indicated she would do. The appellants’ counsel did not seek further instruction or clarification on the issue, nor did the appellants’ counsel object to the instruction on Junior’s evidence in the final charge. [100] It is expected that trial counsel will assist the trial judge on the content of jury instructions and identify any concerns they have with the jury charge: Daley, at para. 58; Largie, at para. 113. Failure to assist may be indicative of the seriousness of what is later said to be an error on appeal: Daley, at para. 58; Largie, at para. 113. The absence of any request for further instructions, in the pre-charge conference or as an objection to the charge “says something about… the overall accuracy of the jury instructions”: Jacquard, at para. 38. Again, there is no allegation of ineffective assistance of counsel. [101] For these reasons, the trial judge did not err in her instructions in respect of Junior’s evidence, and this ground of appeal must fail. The Fifth Issue: The Appropriateness of the Sentences [102] The sentencing judge imposed an 18-year sentence on each of the two appellants. [103] The appellants submit that the sentencing judge (1) erred in her analysis of the aggravating factors and (2) failed to address the rehabilitative potential of both appellants. The appellants claim that these constituted errors in principle that had an adverse effect on the sentences imposed. [104] Sentencing judges are owed considerable deference in imposing sentences: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44, 48. An appellate court is only entitled to intervene where the sentence is demonstrably unfit, or where a sentencing judge erred in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor and this error had an impact on the sentence: Lacasse, at paras. 41-44, 48. [105] The sentencing judge considered the following aggravating factors in respect of each of the two appellants: i. Daniel and Darko were driving and walking in Toronto with loaded handguns and with obvious contempt for the lives and safety of others; ii. They fired their guns in a residential neighbourhood filled with families and children; iii. Before opening fire, they yelled at others to get out of the way; iv. There was a real possibility others would be hit and seriously wounded or killed; v. Their actions shattered the life of Mr. Williams; and vi. Daniel has a criminal record, albeit dated, for assault causing bodily harm. [106] The appellants claim the sentencing judge misstated Daniel’s criminal record, stating that he had a dated record for assault causing bodily harm when in fact his conviction was for criminal negligence causing bodily harm. In so doing, the appellants submit that she overstated the appellants’ moral blameworthiness. [107] I agree that the sentencing judge misstated the particulars of Daniel’s relatively minor criminal record, but this error did not have an impact on the sentence. The sentencing judge accorded little or no weight to this factor; she found that the fact Darko was a first offender was a mitigating factor, but then noted that, “given the gravity of the offence, the absence of a criminal record [for Darko] does not play a major role in his sentence.” [108] Second, the appellants claim the sentencing judge considered the same aggravating factor twice when she stated that, “They fired their guns in a residential neighbourhood filled with families and children” and “There was a real possibility for others to be hit and seriously wounded or killed”. The appellants submit that these two factors are duplicate entries, and the sentencing judge thus erred by overemphasizing this factor. [109] I disagree. The second factor considered that this daylight shooting in a residential neighbourhood violated community members’ sense of safety in the neighbourhood. The fourth factor, by contrast, considered that the other individuals present at the time of this shooting were put at risk of serious harm. As such, the factors are complementary, not duplicative. Both factors were relevant to sentencing. [110] Third, the appellants claim the sentencing judge erred by considering a factor that was not properly an aggravating factor. The sentencing judge considered the fact that “Before opening fire, they yelled at others to get out of the way” as an aggravating factor. The appellants submit that this fact, when juxtaposed against the real possibility that others could be hit, reflected their desire to mitigate the risk of harm to the bystanders. [111] I disagree. In listing this as an aggravating factor, the sentencing judge appreciated that the appellants chose to take the risk of firing in the direction of a group of bystanders. Thus, the appellants subjectively recognized the risk and took the risk nonetheless. This factor complemented the fact that there was an obvious possibility of inflicting harm, which recognized that the risk was objectively real. Therefore, the factor that the appellants yelled at others to get out of the way was appropriately considered an aggravating factor. [112] The appellants also submit that the sentencing judge failed to appreciate Darko and Daniel’s rehabilitative potential, which she is obliged to do: R. v. Disher , 2020 ONCA 710, 153 O.R. (3d) 88, at paras. 22, 25, 27 & 60. [113] However, unlike the case in Disher, the sentencing judge did consider the appellants’ rehabilitative prospects. The sentencing judge listed the programs each of the appellants completed while incarcerated. She noted that Darko obtained his high school diploma and started a course in business management. He completed anger management and employment programs, and Bible courses. He was promoted to head server and cleaned the range. Darko’s long-term goal is to operate a delivery truck company with Daniel. Similarly, Daniel completed high school credits, and participated in workshops and Bible courses. He was also a server and cleaned the range. [114] She noted that the appellants had taken “positive rehabilitative steps”, and she considered their “rehabilitative efforts”. However, she concluded that the “objectives of denunciation and deterrence are of primary importance in this case”, given that Daniel and Darko were convicted of firing guns in a populated public place, jeopardizing the lives of others, “out of rage and anger”, and with catastrophic consequences to the victim. This is consistent with this court’s comments in R. v. Danvers (2005) , 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 78, that “our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms”, particularly in the Toronto area. See also R. v. Brown, 2009 ONCA 563, at para. 33. [115] I see no error in principle in the sentencing judge’s consideration of the sentencing principles. Her conclusion is entitled to deference on appeal. I would therefore dismiss this ground of appeal. CONCLUSION [116] For the above reasons, as I noted at the outset, I would dismiss the conviction appeals, grant leave to appeal the sentences, but dismiss the sentence appeals. “J.A. Thorburn J.A.” “I agree. P. Lauwers J.A.” Paciocco J.A. (dissenting): OVERVIEW [117] I agree with most of what my colleague, Thorburn J.A. says. I cannot agree, however, that the trial judge provided an adequate instruction on party liability – aiding – in respect of Darko Stojanovski (“Darko”). Specifically, the charge did not provide the jury with a functional understanding that in order to convict Darko of attempted murder by aiding, the jury had to find that Darko knew not only that Daniel Stojanovski (“Daniel”) intended to shoot Mr. Williams but that Daniel intended to kill Mr. Williams. I would therefore allow Darko’s appeal of his attempted murder conviction. [118] The place to begin is in recognizing that a principal offender cannot be convicted of attempted murder unless he had a specific intent to kill. It is this intent, and nothing less, that furnishes the moral fault required for this offence: R. v. Ancio , [1984] 1 S.C.R. 225. Offenders may be convicted of murder based on constructive intention. But not of attempted murder. For attempted murder, the mens rea – the specific intention to kill – is “the principal ingredient of the crime”: Ancio , at p. 247. [119] In my view, this same principle applies to the offence of attempted murder by aiding or abetting. Put otherwise, where the victim of an attempted murder survives, the principal ingredient that warrants the kind of conviction and sentence that Darko received in this case, is intentionally aiding the assailant, with the knowledge that the assailant intends to cause the victim’s death . [120] When instructing the jury on the charge of attempted murder, this principal ingredient escaped mention. The trial judge never once directed the jury that they had to find that Darko knew that Daniel intended to kill Mr. Williams in order to convict him of attempted murder for having driven Daniel to the victim. In fact, when read as a whole, the charge erroneously suggests that Darko could be convicted of attempted murder by aiding even if he only intended to assist Daniel to shoot Mr. Williams. [121] My colleague effectively concludes that the jurors would have been able to glean the specific intent mens rea requirement for attempted murder by aiding, from what they were told about the elements of attempted murder that apply to the principal offender, and from the instructions they received relating to the mens rea requirement for aiding more generally. With respect, I cannot agree. [122] As I will detail below, on both occasions when the trial judge addressed criminal liability for aiding, the comments that she made were general and entirely susceptible to being interpreted to mean that if Darko drove the car to Mr. Williams knowing that Daniel was going to shoot Mr. Williams, and if Daniel committed attempted murder, Darko would also be guilty of attempted murder. [123] This, on its own, would have been enough to prevent me from concluding that the charge provided the jurors with a functional understanding of the principal ingredient in an attempted murder by aiding charge. What drives this outcome home, in my view, is that elsewhere in her charge the trial judge reinforced the misconception that if Darko drove the car to Mr. Williams knowing that Daniel was going to shoot Mr. Williams, and if Daniel committed attempted murder, Darko would also be guilty of attempted murder. Specifically, the trial judge recounted for the jury, without any qualification or correction, the Crown’s legally erroneous and misleading statement that Darko would be guilty of attempted murder if “he aided Daniel … by driving him within feet of Mr. Williams and stopping his car so that his brother could shoot Mr. Williams”. ANALYSIS [124] In elaborating on my position, I will first consider the trial judge’s charge on the elements of the offence of attempted murder, then I will examine the general comments the trial judge made about the elements of aiding, and then I will look more closely at the broader circumstances that require consideration on this appeal, including the trial judge’s direction relating to the Crown’s late-breaking theory of liability. The Charge on the Offence of Attempted Murder [125] In her jury charge, the trial judge correctly described the elements of attempted murder that apply to a principal of that offence. Of importance to the instant appeal, she explained that to be guilty of attempted murder, the assailant must have meant to kill the victim. This, of course, tells us what the mens rea requirement is for the assailant, but it tells us nothing about the mens rea requirement for an aider who assists the assailant in committing the offence of attempted murder. As McIntyre J. made clear in Ancio , at p. 247, “criminal attempt is itself an offence separate and distinct from the crime alleged to be attempted.” It follows, therefore, that the mens rea requirement for criminal attempt is necessarily separate and distinct from the crime alleged to be attempted. The Charge on Aiding [126] What, then, of the trial judge’s comments relating to the law of aiding? She directed the jury twice on the law of aiding, in identical terms. The material comments she made are as follows: An aider may help another person commit an offence by doing something. It is not enough that what the aider does has the effect of or resulted in helping the other person commit the offence. The aider must intend to help the other person commit the offence. Actual assistance is necessary. This is the conduct requirement. It is not enough that the other person was simply there when the crime was committed by someone else. In other words, just being there does not make a person guilty as an aider. Sometimes, people are in the wrong place at the wrong time. On the other hand, if a person knows that someone intends to commit an offence and goes to or is present at a place where the offence is committed, to help the other person commit the offence, then that person is an aider of the other’s offence and he is equally guilty of it . Aiding relates to a specific offence. An aider must do something or give assistance for the purpose of helping the other person commit the offence. The state of mind requirement expressed by the term “purpose” requires Crown counsel to prove both intent and knowledge. For intent, Crown counsel must prove that Darko Stojanovski intended to help Daniel Stojanovski to commit the offences, although Crown counsel need not prove that Darko Stojanovski desired the successful commission of the offences. For knowledge, Crown counsel must prove that Darko Stojanovski knew that Daniel Stojanovski intended to commit the offences, although Crown counsel need not prove that Darko Stojanovski knew precisely how Daniel Stojanovski would commit the offences”. [Emphasis added.] [127] I will make two observations about this instruction. First, the trial judge provided this direction without distinguishing between the charged offence of attempted murder by aiding and the charged offence of discharging a firearm with intent to endanger life by aiding, and without instructing the jury on how the evidence applied to the elements of each, or either, offence. As a result, her comments about the elements of aiding remained general throughout the instruction and provided no specification as to what exactly the Crown needed to prove to secure a conviction of attempted murder by aiding. [128] The trial judge was required to give that specification. As this court instructed in R. v. Huard , 2013 ONCA 650, 302 C.C.C. (3d) 469 at para. 64, leave to appeal refused, [2014] S.C.C.A. No. 13, a trial judge should link the essential elements to the offence at issue when instructing the jury. Yet nowhere does the trial judge do so in this case. Most critically, the trial judge’s direction gave no indication to the jurors that in order to be guilty of attempted murder by aiding, Darko would have to know when he aided Daniel that Daniel intended not just to shoot Mr. Williams, but to kill him. In my view, this was a non-direction amounting to a misdirection. [129] Second, the direction that was given speaks variously about “the offence”, “an offence” and Daniel’s “offences”. This general language, coupled with the failure by the trial judge to identify the specific charges she was referring to, created confusion about what Darko’s precise mental state must be in order to be convicted of attempted murder by aiding. Indeed, when the comments the trial judge made about aiding are read as a whole, there is a very real prospect that the jury may have understood that if Darko intended to help Daniel commit any offence, such as a shooting, he would be equally guilty of any offence that Daniel ultimately committed, namely attempted murder. This risk is particularly pronounced given that this is an entirely plausible understanding of what the trial judge said in the third paragraph quoted above, which I have emphasized, in which the jury is invited to convict the aider of “the other’s offence” if the aider knows that the principal offender intended to commit “an offence”. [130] My colleague finds solace in the trial judge’s instruction that “aiding relates to a specific offence”. With respect, I cannot agree. In my view, this general statement does not provide meaningful instruction about what Darko’s state of mind must be in order to be guilty of attempted murder as an aider. The trial judge does not explain the specific offence to which aiding must relate nor did she identify what kind of relationship she is referring to, or the significance of that relationship. [131] I appreciate that in determining whether a charge provides a functional understanding we can safely infer that juries will apply common sense in interpreting what the trial judge has said. It is important to remember, however, that specific intention is a mens rea concept, a technical legal device for ensuring appropriate restraint in the allocation of the moral blame that the criminal law requires. It is asking too much of common sense to expect that the jurors in this case could reinterpret what the trial judge said in order to understand that before they could find Darko guilty of attempted murder by aiding, they would have to find that Darko knew specifically that Daniel intended not only to shoot Mr. Williams, but to kill Mr. Williams. Indeed, it would not grate against common sense to erroneously believe that if Darko intended to help Daniel shoot Mr. Williams, and if Daniel committed the offence of attempted murder in doing so, then both Daniel and Darko would be guilty of that offence. As the following discussion will demonstrate, even despite legal training, the Crown at trial was certainly labouring under this misconception, and it appears likely that the trial judge was as well. Quite simply, I see no basis upon which it can safely be inferred that the jury acquired a functional understanding of the mens rea element of the offence of attempted murder by aiding from the trial judge’s generic and confusing charge on aiding, even bearing in mind that they would have understood the mens rea element of attempted murder that would apply to the principal offender. The Remaining Relevant Circumstances [132] As indicated above, any prospect, however remote, that the jury may have gained a functional understanding of the specific intent required for the offence of attempted murder by aiding was destroyed entirely by the trial judge recounting to the jury the Crown’s position relating to Darko’s party liability for attempted murder. My colleague reproduces, in para. 53 above, the Crown’s misleading and erroneous representation to the jury that it could convict Darko of attempted murder by aiding if Darko drove the car to Mr. Williams knowing that Daniel was going to shoot Mr. Williams. When recounting the Crown’s position, the trial judge said to the jury: The position of the Crown is that even if Darko Stojanovski did not fire the gun because he did not want to hit his brother or anyone other than his target, he aided Daniel Stojanovski by driving within feet of Mr. Williams and stopping his car so that his brother could shoot Mr. Williams. Thus, Daniel Stojanovski is guilty of attempted murder and Darko Stojanovski is equally liable of attempted murder. [133] That, of course, is a direct invitation to the jury to commit the very error that the trial judge’s charge on aiding left open; if Darko drove the car to Mr. Williams knowing that Daniel was going to shoot Mr. Williams, and if Daniel committed the offence of attempted murder in doing so, then both Daniel and Darko would be guilty of attempted murder. [134] Unlike my colleague, I take no solace in the fact that the trial judge was simply quoting the Crown’s position when she provided this misleading and erroneous description of the law to the jury. I say so for two reasons. First, if a party misstates the law, a trial judge should not repeat that mistaken position in the jury charge unless it is for the purpose of correcting the error. Quite naturally, a jury would infer absent such correction that the position being repeated before them by the trial judge is a correct one, available for them to accept. I have no doubt that the jury would have taken what the trial judge said when recounting the Crown position as an instruction that this is an acceptable path to conviction notwithstanding that this position is wrong in law. In my view, it was a misdirection. [135] Second, at no other point in her direction did the trial judge instruct the jury on the application of the evidence to the elements of the offence of attempted murder by aiding. The trial judge’s rehearsal for the jury of the Crown’s mistaken position was the only guidepost provided to the jury in the charge on how the law should be applied to the material evidence. I am convinced that this eradicated even the remote prospect that the jury might somehow have correctly patched together what the law requires from the general comments the trial judge made relating to aiding and what she said about the elements of attempted murder when committed by the principal offender. [136] My colleague relies in her decision on the fact that Darko’s trial counsel failed to object to the charge. In the circumstances of this case, the failure to object tells us nothing about the legal correctness of the charge, or its sufficiency, other than that Darko’s trial counsel may have been as unclear on what the law required as the Crown was and the trial judge appears to have been. There can be no suggestion that Darko’s trial counsel made a tactical decision not to seek an instruction on the principal ingredient of the crime of attempted murder by aiding. There would be nothing to gain by foregoing the benefit of this legal rule, and everything to lose. Nor can there be any realistic suggestion that Darko’s trial counsel’s failure to object amounts to an acknowledgement that the charge was legally correct and sufficient, or that any error it contained was unimportant. The trial judge’s inadequate and erroneous charge did not relate to a secondary consideration. It went to the core of what the law requires for conviction of attempted murder by aiding. In my view, the failure of Darko’s trial counsel to object to the fundamental errors that I have identified can have no bearing on the outcome of this appeal. That failure to object does not in any way relieve the trial judge of the obligation to correctly charge the jury. [137] In fairness to the trial judge, the Crown’s theory of liability that led to the insufficient and erroneous charge was a late-breaking development in the trial. At the outset of the case, the Crown’s only theory of liability was that both Darko and Daniel shot Mr. Williams. The prospect that Darko aided Daniel by driving the car to the victim to facilitate the shooting was not available because the evidence of the Crown witnesses, including Mr. Williams, was that Daniel was the driver, not Darko. It was only after Darko testified in his defence and admitted to being the driver that this alternative theory of liability became available. [138] The issue of party liability was raised, but only briefly, during the pre-charge conference prior to the jury submissions. In its jury submission, the Crown asked the jury to consider party liability, but the Crown’s submissions in that regard were unclear, and the trial judge subsequently told the Crown so. She then began to read her charge to the jury. [139] The next day, the Crown sought to clarify its position before the charge resumed, apologizing for the confusion. The Crown told the trial judge that its position was that either both men shot Mr. Williams or only Daniel did. Still unsatisfied, the trial judge attempted to gain a clear articulation of the Crown’s position by paraphrasing her understanding of what the Crown was saying: The Court: And then even if – even if Darko did not fire his gun, he aided Daniel by driving him within feet of [Mr.] Williams and stopping his car so that his brother could shoot. Mr. Arnold: Correct. The Court: That’s Daniel’s guilty of attempted murder and Darko is equally liable Mr. Arnold: Correct. The Court: … of attempted murder. Mr. Arnold: Correct. [140] Of course, it does not follow as a matter of law that if Darko drove Daniel within feet of Mr. Williams and stopped so that Darko could shoot him, that both Daniel and Darko would be equally guilty of attempted murder. Darko would not be guilty of attempted murder unless he drove Daniel within feet of Mr. Williams and stopped with the knowledge that Daniel intended to kill Mr. Williams. Hence the judge’s paraphrase, which she was later to repeat for the jury, is a dangerous misconception of the law. It is the fact that the trial judge twice uttered this inaccurate legal statement without correction or qualification that drives me to the conclusion that the trial judge does not appear to have understood what the law requires. [141] It is also noteworthy that no doubt because the Crown’s attempted murder by aiding theory of liability was a late-breaking development, the trial judge provided the jury with a decision tree for the elements of attempted murder that would apply to the shooter or shooters, but did not provide a decision tree that would apply to Darko’s potential liability for attempted murder by aiding. It is also probable that it was the late-breaking change in the Crown’s theory of liability that contributed to the failure by the trial judge to discharge her obligation to explain to the jury how the evidence or facts relate to the elements of attempted murder by aiding: R. v. Jacquard , [1997] 1 S.C.R. 314, at para. 14; R. v. Newton , 2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 13. [142] To be clear, I agree with my colleague that the Crown was entitled to raise this alternative theory of liability, and that Darko was not unfairly prejudiced by this late-breaking development. However, in my view, this case is a cautionary tale of the perils of late-breaking changes in theory. Where this occurs, the party initiating the change, and the trial judge, must find a way to ensure that they are properly prepared so that the kind of problems that I have identified in this jury charge do not arise. CONCLUSION [143] I have borne in mind that an appellant is not entitled to a perfect charge, only a functional and legally correct one that leaves the jury with a sufficient understanding of the facts as they relate to the relevant issues: Jacquard , at para. 14; Newton , at para. 13. But this charge was neither functional nor legally correct. As indicated, the trial judge failed to link the essential elements of aiding to the charged offence. And at no point did she tell the jury that to find Darko guilty of attempted murder by aiding they would have to find that he had specific knowledge that Daniel intended not only to commit an offence by shooting Mr. Williams, but that Daniel intended to kill Mr. Williams. Instead, she provided only general comments about the nature of aiding, employing variable references to “an offence”, “the offences” and Daniel’s “offences”. And she included a passage in her description of the law of aiding that, in its generality, would incorrectly support Darko’s guilt as an aider of attempted murder if he simply intended to help Daniel shoot Mr. Williams. Moreover, because of the late-breaking change in the Crown’s theory of liability, a decision-tree was not made available to assist the jury in understanding the elements of attempted murder by aiding. This alone would have been enough for me to find error. But, in my view, the inclusion by the trial judge in her charge of the Crown’s erroneous theory of liability was a complete coup de gras to any reasonable finding that a jury would be able to patch together an understanding of the specific intent requirement of attempted murder by aiding. [144] I am persuaded that the charge relating to the mens rea required for attempted murder by aiding was not only insufficient. By leaving it open to the jury to accept the erroneous Crown theory of liability, the charge constituted a material error of law. [145] I would allow Darko’s appeal and order a new trial. I agree with my colleague that Daniel’s appeal cannot be allowed. This error affected Darko alone. I would therefore dismiss Daniel’s appeal. Released: March 1, 2022 “P.L.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 173 DATE: 20220228 DOCKET: M53036, M53066 & M53084 (C69874) Strathy C.J.O. (Motions Judge) BETWEEN Ummugulsum Yatar Applicant (Appellant) and TD Insurance Meloche Monnex Respondent (Respondent) and Licence Appeal Tribunal Respondent (Respondent) Jillian Van Allen, for the appellant Derek R. Greenside, for the respondent TD Insurance Meloche Monnex Valerie Crystal and Trevor Guy, for the respondent Licence Appeal Tribunal Nabila F. Qureshi and Anu Bakshi, for the proposed intervener Income Security Advocacy Centre (M53036) Fabio Longo and Gerry Antman, for the proposed intervener Ontario Trial Lawyers Association (M53066) Ryan Hardy, for the proposed intervener Advocacy Centre for Tenants Ontario (M53084) Christopher P. Thompson, for the intervener the Attorney General of Ontario Heard: January 12, 2022 by video conference ENDORSEMENT [1] This proceeding is an appeal, with leave of this court, from the decision of the Divisional Court in Yatar v. TD Insurance Meloche Monnex , 2021 ONSC 2507. The moving parties seek leave to intervene in the appeal. [2] The Attorney General of Ontario has requested, and I have granted, leave to intervene pursuant to s. 9(4) of the Judicial Review Procedure Act , R.S.O. 1990, c. J.1. Pursuant to that provision, the Attorney General is entitled to be heard as of right on an application for judicial review. [3] On January 12, 2022, I granted leave to intervene to Advocacy Centre for Tenants Ontario (ACTO) and dismissed a motion for leave to intervene by Ontario Trial Lawyers Association (OTLA). I reserved my decision on a motion for leave to intervene by Income Security Advocacy Centre (ISAC) and subsequently advised counsel that ISAC’s motion would be granted. My dispositions indicated that reasons would follow, and these are my reasons. [4] The underlying proceeding is a claim by Ms. Yatar for statutory accident benefits under the Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996 , O. Reg. 403/96 (“ SABS ”). Her claim was rejected by the insurer and her benefits were terminated. After a failed mediation, she brought her claim before a Licence Appeal Tribunal (“LAT”) adjudicator. The adjudicator found that Ms. Yatar’s claim was time-barred. The same adjudicator dismissed her request for reconsideration. [5] Ms. Yatar appealed to the Divisional Court. She also brought an application for judicial review. As the Divisional Court explained, it has jurisdiction to hear a statutory appeal on a question of law under s. 11(6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G. Section 280(3) of the Insurance Act, R.S.O. 1990, c. I.8 and s. 2(1) of the Judicial Review Procedure Act preserve the right of judicial review, notwithstanding any right of appeal. [6] The Divisional Court dismissed Ms. Yatar’s appeal, finding that there was no error of law. The Divisional Court also dismissed the application for judicial review. It noted that judicial review is a discretionary remedy and it set out certain factors that it had considered in deciding whether to exercise its discretion to hear a judicial review of an application from a LAT SABS decision where there is no error of law. Having considered those factors, and taking them into consideration, the Divisional Court concluded, at para. 46: Taking all the above factors into consideration, I conclude that judicial review of a LAT SABS decision is only available, if at all, in exceptional circumstances . There are no exceptional circumstances here that would lead me to exercise my discretion to judicially review the questions of fact and mixed fact and law raised by the applicant in her judicial review application. [Emphasis added.] [7] The proposed interventions focus primarily on the Divisional Court’s observation that in cases where there is a limited statutory right of appeal, judicial review “is only available, if at all, in exceptional circumstances.” [8] I will summarize the basis on which the moving parties propose to intervene. [9] ACTO is a legal clinic, devoted to advocacy in a number of forums concerning housing issues. It is concerned about the impact of the Divisional Court’s decision on the ability of tenants to seek judicial review in the face of a limited right of appeal on a question of law under s. 210 of the Residential Tenancies Act, 2006 , S.O. 2006, c. 17. It submits that the Divisional Court’s decision is inconsistent with the Supreme Court’s guidance in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, 441 D.L.R. (4th) 1, which it says created space for concurrent or alternative judicial reviews for matters subject to a statutory right of appeal. [10] ISAC, like ACTO, is a specialized legal clinic. It focuses on advocacy related to income security, with an emphasis on social assistance and other government programs aimed at addressing poverty. Unlike ACTO, whose clients are generally seeking to retain a benefit, ISAC’s clients are generally seeking a benefit, such as social assistance or income support. Much of ISAC’s work takes place in administrative tribunals, such as the Social Benefits Tribunal. Its interest in the issue on appeal is because social benefits legislation generally contains a limited statutory right of appeal. If granted leave to intervene, its submissions will focus on two issues: the interpretation of statutory rights of appeal in the context of remedial legislation; and the impact on social assistance recipients of restricting judicial review to exceptional circumstances in the face of limited appeal rights. [11] OTLA is involved in advocacy on behalf of accident victims, among others. It submits it has “specialized knowledge and experience with accident benefits legislation and litigating accident benefit disputes on behalf of injured Ontarians.” Although OTLA set out a number of proposed arguments in its factum, in oral argument it limited its proposed submissions to three: (1) the LAT adjudicator made a legal error in failing to properly apply the legal principles in s. 33 of the SABS ; (2) the LAT’s decision that the appellant’s claim was time-barred was an error of law and inconsistent with this court’s decision in Tomec v. Economical Mutual Insurance Company , 2019 ONCA 882, 148 O.R. (3d) 438, leave to appeal refused, [2020] S.C.C.A. No. 7; and (3) the impact of the LAT decision for motor vehicle accident victims. [12] In granting leave to intervene, the court looks at the nature of the case, the issues that arise and the likelihood that the proposed intervener will be able to make a useful contribution to the resolution of the appeal without injustice to the immediate parties. Part of that assessment examines the experience and perspective the proposed intervener would bring to the table at the hearing of the appeal. The court also looks to whether granting leave to intervene would cause hardship or prejudice to the parties to the appeal. One concern, particularly in a case like this, which at its core is a civil dispute, is to ensure that the intervener(s) do not overwhelm the appeal, or “pile on” one of the parties. [13] In this case, there can be no serious dispute that each of ACTO, ISAC and OTLA is qualified to act as an intervener in a case of this kind. They are all well-recognized organizations, with special expertise and an identifiable interest in the subject-matter of these proceedings. They each have a strong track record as interveners in important cases. And they would bring to the appeal a somewhat broader perspective that is distinct from the immediate parties. [14] In resisting the motions for leave to intervene, the respondent on the appeal submits that this is primarily a private dispute, involving issues that are of importance only to the parties on the appeal, and that leave to intervene should not be granted. I do not accept that submission. [15] The issue raised on the appeal – the scope of judicial review in the context of a statutory right of appeal – is an important question of law that has implications well beyond the immediate parties to the appeal. This case, therefore, is well along the continuum between constitutional litigation on the one end, and a purely private dispute at the other end. The implications of the decision to other statutory schemes make this the kind of case in which the court would benefit from the perspectives offered by interveners. [16] I was satisfied that both ACTO and ISAC would bring a unique perspective to the appeal – a perspective that differs from the appellant’s but is not inconsistent with it. They would be able to assist the court in its appreciation of the implications of the decision of the Divisional Court in other contexts where there is a limited statutory right of appeal. [17] I concluded, however, that OTLA’s submissions were largely duplicative of the submissions of the appellant on the appeal. The appellant is represented by counsel experienced in personal injury and accident benefits litigation, who is well equipped to address the issues on the appeal. Moreover, OTLA’s submissions go directly to the merits of the appeal, something that should generally be left to the parties themselves. Finally, in light of my decision to grant leave to intervene to both ACTO and ISAC, I have concluded that granting leave to intervene to a third intervener would be unfair to the respondent in this case and unnecessary for the assistance of the court. [18] The motions of ACTO and ISAC were granted on the usual terms. OTLA’s motion is dismissed, without costs. “G.R. Strathy C.J.O.”

COURT OF APPEAL FOR ONTARIO CITATION: Gefen Estate v. Gefen, 2022 ONCA 174 DATE: 20220302 DOCKET: C67633, C67724 & C68850 Pepall, Tulloch and Roberts JJ.A. DOCKET: C67633 BETWEEN Lucia Saunders as Estate Trustee of the Estate of Yehuda Gefen, deceased Applicant (Respondent) and Henia Gefen , and Ronald Rutman as Estate Trustee During Litigation of the Estate of Elias Gefen, deceased Respondents ( Appellant ) DOCKET: C67724 AND BETWEEN Henia Gefen in her personal capacity and as Estate Trustee of the Estate of Elias Gefen Plaintiff 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 AND BETWEEN Harry Gefen Plaintiff by Counterclaim (Appellant) 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 ( Respondents ) AND BETWEEN Harry Gefen Third Party Plaintiff (Appellant) and Harvey Gefen Third Party Defendant (Respondent) DOCKET: C68850 AND BETWEEN Henia Gefen in her personal capacity and as Estate Trustee of the Estate of Elias Gefen Plaintiff ( Appellant ) 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 ) AND BETWEEN Harry Gefen Plaintiff by Counterclaim (Respondent) 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 ) Lionel Tupman and Arieh Bloom, for the appellant Harry Gefen Ronald Moldaver, for the respondents Henia, Harvey and Ashley Gefen Christopher Graham, for the respondent Lucia Saunders, as Estate Trustee of the Estate of Yehuda Gefen Heard: October 13, 2021 by video conference On appeal from the judgment of Justice Jessica Kimmel of the Superior Court of Justice, dated October 17, 2019, with reasons reported at 2019 ONSC 6015 and 2019 ONSC 6017. Pepall J.A.: Introduction [1] Elias and Henia Gefen were married for 65 years. They were Holocaust survivors from Poland who immigrated to Canada in 1951. They had very little when they started out. Elias was a roofer and Henia, a homemaker. They were a hard-working couple, and over the years they invested in real estate which became very valuable. The couple had three sons: Harvey, Harry, and Yehuda. During their lifetimes, the couple were very generous with each of their three sons. [2] Elias and Henia had mirror wills, and when Elias died on October 28, 2011, his estate passed absolutely to Henia, and she was named as his sole executor. [3] Two months before he died, Elias signed a document that is at the heart of this case. This document served as the anchor for Harry and Yehuda’s argument that there was a secret trust and a mutual wills agreement that operated to divide Elias’ Estate into equal shares for the three sons on Henia’s death. [4] The family dynamics were discordant and characterized by conflict. Henia did not feel that her two younger sons, Harry and Yehuda, should receive any of her or Elias’ money. Between 2011 and 2016, she made various inter vivos gifts to Harvey. In 2013, Henia sued Harry and Yehuda; counterclaims and third-party claims ensued, and since that time, they have all been embroiled in litigation: Henia, Harvey, and his daughter Ashley versus Harry and Yehuda. Yehuda died at the age of 65 on May 6, 2016, leaving no issue. His Estate is represented in the litigation by his partner who is also his estate trustee, Lucia Maria Saunders. [5] The trial took place in 2018 and 2019. It lasted six weeks and was hard fought. The parties called 22 witnesses and argued 21 fully briefed motions. It had been preceded by over 60 pre-trial motions. Henia effectively abandoned her main claims by electing not to call any evidence at the outset of the trial. As such, the trial involved various claims by Yehuda’s Estate and Harry against Henia, Harvey and Ashley, [1] and a claim by Henia relating to ownership of a condominium against Yehuda’s Estate. [6] The trial judge gave detailed and thoughtful reasons for decision. Before this court, Harry alone challenges her conclusion that he and Yehuda had failed to establish a mutual wills agreement or a secret trust, and by failing to void certain inter vivos transfers by Henia in favour of Harvey. Henia challenges the trial judge’s conclusion that the joint tenancy in the condominium was severed in favour of Yehuda’s Estate, and also takes issue with the trial judge’s factual finding on the real property encompassed by Elias’ Estate. For the reasons that follow, I would dismiss all of the appeals. Background Facts [7] At trial, Harry and Yehuda’s Estate sought a proportionate one-third share of the collective wealth and assets accumulated by Elias and Henia over their lifetimes, all of which was held by Henia following Elias’ death in 2011. She was a very wealthy woman after Elias died, with a fortune estimated to be in the $30 million range. By the time of the trial, Henia had transferred a significant portion of this wealth to Harvey and Ashley, and her net worth had been depleted by at least 50%. In addition, she had purported to confirm indebtedness and granted security over all her remaining assets in favour of Harvey and his family. Her physician, Dr. Shulman, was asked to undertake capacity assessments of Henia in 2012 and 2014, specifically with respect to her transfers to Harvey and Ashley. [8] Dr. Shulman concluded that Henia understood the nature of the wealth and assets she was transferring, as well as the value. Her rationale for these transfers was to reward her son Harvey, whom she considered to have been devoted and hardworking and to have helped her with her investments and property development. She felt that her other two sons had made no contribution. She also wanted to benefit her granddaughter Ashley, of whom she was extremely proud. Dr. Shulman concluded, both in 2012 and 2014, that Henia was competent. She remained completely lucid and aware of her current financial and personal circumstances and was capable of having made these substantial transfers to Harvey and Ashley. [9] Elias and Henia’s assets were comprised of cash, cash equivalents and holdings in commercial real estate. The couple’s assets also included a joint tenancy in a condominium at 11 Townsgate Drive in North York. It was Elias’s and Henia’s matrimonial home. In October 2010, Elias and Henia transferred the condominium into their joint names and that of Yehuda. When Elias died, Henia and Yehuda held the property as joint tenants. Yehuda’s death in 2016 led to a survivorship application by Henia, and questions over whether Yehuda’s joint tenancy had been severed prior to his death. If it had been severed, Henia and Lucia Saunders as Estate Trustee would hold the property as tenants in common. If not, it would be held by Henia alone. [10] In October 2007, Elias and Henia signed primary and secondary mirror wills. The wills granted to the surviving spouse the residue of the deceased spouse’s estate for his or her own use absolutely, with a gift over of the residue to their three sons if the other spouse did not survive for 30 days. The lawyer who prepared the wills, Noah Okell, is Henia’s nephew. At trial, he testified that neither Elias nor Henia ever told him that they had an agreement not to change their 2007 wills, nor did they give him any indication that they wanted to place any restrictions on the survivor’s ability to use or deal with the estate as they wished, nor that they desired any equalization or accounting of the gifts and property they had given to their sons during their lifetimes. [11] In 2011, Elias was ill with lymphoma and in care at Baycrest Hospital. In June 2011, he granted Yehuda power of attorney for his personal care. [12] Harvey had been managing Elias’ real estate assets. Elias became concerned and instructed a lawyer, Arie Gaertner, to investigate the status of the business interests that were being managed by Harvey and to take such legal steps as were necessary to protect Elias’ estate. Ultimately, on August 10, 2011, Stephen Greenberg was granted a power of attorney over Elias’ property to make inquiries and to look into whether Harvey had undertaken transactions involving Elias’ property that Elias was unaware of. No one suggested that Elias lacked the capacity to retain and instruct counsel, or to execute any of the legal documents in the timeframe prior to his death. Harvey and Henia were upset that Elias had retained and instructed counsel without their knowledge, and Henia was particularly upset about the Greenberg power of attorney. [13] On August 17, 2011, Elias and Harvey signed a document that is at the centre of the mutual wills and secret trust claims. Harry maintains that the document evidences a mutual wills agreement between Elias and Henia. The document was handwritten by Harvey and prepared without the assistance of counsel. Key paragraphs stated: I, Elias Gefen direct my son Harvey & my wife Henia to immediately get rid of & revoke the Power of Attorney over Property given to Mr. Greenberg whom I do not know whatsoever. I understand that this took away my wife’s P of Attorney over Property given by myself to my wife & prepared by my own lawyer Noah Okell. I did not intend to do this in any way. Only Henia has had or will have Power of Attorney I ask that my wife be given back the Power of Attorney over Property and only my wife as she and I both built up the estate and own it together jointly as one pocket. Only Noah and Noah alone will represent myself and or my wife with respect to any will & estate work & our properties. I further confirm that my latest will [2] as prepared by Noah has not knowingly been changed by myself to date nor will it be changed during my life. My wife Henia has told me that she also will not change the will either & that our intentions that the estate be divided equally between our 3 sons after our death stands. In my condition I am tired & confused & do not understand everything & I want only Noah to be my lawyer so this will not happen again, any legal documents notwithstanding. [14] That evening, in the presence of Harvey’s former lawyer and high school classmate, Nestor Wolicki, Elias signed a revocation of the Greenberg Power of Attorney and a new Power of Attorney for Property in favour of Henia. He also signed the handwritten document as did Harvey. Henia did not sign it, nor was she present when it was discussed, prepared, and signed. [15] Although Henia did not sign the August 17 document, she testified that it was consistent with certain testamentary intentions that she held both prior to and at that time, in that: a. it was her intention never to change her will during Elias’ lifetime, such that he would always inherit the residue of her estate if she died first. In her words “One will --- me and my husband --- me to my husband and my husband to me”; b. it was her intention that the residue of their estate be divided equally between their three sons after their deaths. [16] Elias’ interactions with each of his sons were tainted in the latter years of his life by their efforts to secure their respective financial positions. Elias was upset after visits from Harry and Yehuda during which they asked for, or about, the family finances. Meanwhile, on August 16 and October 15 (the day that Elias suffered his fatal cardiac arrest from which he never recovered consciousness and died two weeks later, on October 28, 2011), Harvey secretly made video recordings of Elias which display a tone of badgering by Harvey of Elias about legal and financial matters. The Baycrest Hospital records during the summer of 2011 provided insight into the negative effects of the family discord on Elias. Dr. Schwartz, Elias’ treating physician, testified on the family conflict that was greatly upsetting and distressing Elias. Mr. Gaertner testified on his concerns about the constant attempts of family members to influence Elias’ decisions and all the infighting that was wearing Elias out. That said, none succeeded in influencing Elias to make any changes to the status of the ownership of the real estate holdings or his testamentary dispositions. [17] Following a family meeting at Baycrest on August 30, 2011, family visits were restricted and supervised by personal care workers. Henia came to believe that Harry and Yehuda had embarked on a campaign to keep her away from Elias while he was dying, and that Mr. Gaertner and Baycrest facilitated this campaign. This animated her claims against all of them that were effectively abandoned at the outset of the trial. [18] In furtherance of his mandate to investigate, Mr. Gaertner reported to Elias on August 25, 2011 that Mr. Gaertner’s request to meet with Harvey and Henia’s lawyers had been ignored, and that Elias may have reason to suspect that Harvey and/or Henia may have something to hide. Mr. Gaertner recommended that Elias change his 2007 wills to provide for Henia in accordance with statutory obligations and to leave the rest to be divided equally among the three sons, with the inclusion of some mechanism for the trustee to be satisfied that monies or assets had not been taken without Elias’ knowledge or consent. Elias instructed him to prepare a new will in accordance with those recommendations, but Elias had not yet decided to sign it. Draft wills were never reviewed or considered by Elias. [19] On October 17, 2011, Mr. Gaertner wrote in a letter to the members of the Gefen family and their counsel advising that Elias would not change his will, “[b]ased on his firmly held belief, brought about by the repeated assurances from his wife and Harvey, that his wife will not change her current will (i.e., the one prepared by Mr. Okell concurrently with Mr. Gefen’s own will) nor transfer any of his or her assets during her lifetime, other than to her three sons equally.” Mr. Gaertner also testified at trial about assurances given by Henia that she would treat her sons equally and equally distribute the assets on her death; that based on Henia’s assurances, Elias was satisfied that everything would be distributed in accordance with his wishes; and that Elias trusted his wife to give effect to the common intention to have their estates divided equally among their three sons. Summary of Trial Judge’s Reasons [20] As mentioned, at trial, Harry and Yehuda’s Estate sought a proportionate one-third share of the collective wealth and assets accumulated by Elias and Henia over their lifetimes, all of which was held by Henia following Elias’ death, and much of which was then conveyed by Henia to Harvey and his children. Harry and Yehuda’s Estate sought an equalization of the gifts Harvey and his children received and sought to ensure an equal sharing of the residue of Henia’s estate under her will when she died. They primarily relied on the doctrine of mutual wills and in particular, argued that the August 17, 2011 note constituted evidence of a mutual wills agreement between Elias and Henia. They also relied, for further corroboration of an agreement, on statements made by Elias in Mr. Gaertner’s October 17, 2011 letter and admissions they attributed to Henia. In addition, they advanced an argument that Elias and Harvey entered into a secret trust agreement on August 17, 2011 under which all assets received by Harvey after that date from Elias or Elias’ holdings were to be held by Harvey in trust for his brothers. Lastly, they sought to rely on the principle of unconscionable procurement as an alternate means to hold Harvey accountable for assets he and his children received from Henia. [21] The trial judge was not satisfied on a balance of probabilities of the existence of a mutual wills agreement between Elias and Henia as alleged by Harry and Yehuda’s Estate. The evidence of any such agreement was not “clear, cogent and non-speculative”. Rather, she found that “the evidence against the existence of a [mutual wills agreement] overwhelms any evidence (or suggested inferences) in favour of it.” She observed that the statements from Elias in the August 17 document and Mr. Gaertner’s October 17, 2011 letter could not be read in isolation. She stated that, when considered in context: I am not satisfied that they constitute clear and cogent evidence of an agreement between Elias and Henia not to ever change or revoke their 2007 wills and to equally distribute the Gefen Family Assets to their three sons during the remainder of their lives and upon the death of the survivor of them. Accepting, as I do, that these documents accurately record what Elias understood and believed Henia told him at the time, they still do not amount to a binding an[d] enforceable agreement. [22] She was also not persuaded that admissions had been made by Henia or on her behalf that established a mutual wills agreement. [23] The trial judge also dismissed Harry and the Yehuda Estate’s claim that a secret trust was created on August 17 and crystallized, at the latest, on Elias’ death on October 28, 2011. She found that the August 17 document did not identify any grant of assets from Elias to Harvey. It also failed to contain any instructions to Harvey on how to deal with any assets received, nor was there any evidence that Harvey agreed to receive assets in trust for his brothers. The document only spoke to Elias’ general intentions, not to the creation of any binding trust obligations on Harvey. Given the history of animosity between Harvey and his brothers, it did not make sense that Elias intended to establish a trust on those terms. In addition, the certainties of trust had not been made out. [24] Relying on a concept of unconscionable procurement described in “Capacity and Undue Influence” by John E.S. Poyser, (Toronto: Carswell, 2014), the trial judge granted in part Harry’s unconscionable procurement claim against Harvey. In a nutshell, the trial judge described such a claim as requiring Harry and Yehuda to establish a significant benefit to Harvey and Harvey’s active involvement in procuring the benefit. If they were successful, there was a presumption that Henia did not truly understand what she was doing in effecting the transaction and the court would then determine whether it would be unconscionable to let the transaction stand. The trial judge noted that there was no need of proof of incapacity or undue influence. Her finding of unconscionable procurement resulted in an order that benefits transferred to Harvey, amounting to approximately $8.66 million, be held in trust for and returned to Henia or her estate. Harvey was permitted to keep other holdings that had been in issue. [25] With respect to Yehuda’s Estate’s claim to a 50% interest in the Townsgate condominium, the trial judge concluded that the joint tenancy between Henia and Yehuda had been severed before his death and that they held their interests as tenants in common. She therefore declared Henia’s survivorship application to be void and directed the Registrar to reflect that the Townsgate property was owned by Henia and Yehuda’s Estate as tenants in common. She also ordered that Yehuda’s Estate’s 50% interest was only to be liquidated once Henia had moved out of the condominium. [26] Subsequently, she awarded the parties their costs out of Elias’ Estate as follows (inclusive of HST): - Harvey and Ashley: $1,042,749.57; - Harry: $1,031,084.67; and - Yehuda Estate: $1,002,153.08. In addition, she ordered that Elias’ Estate pay various third-party witnesses in the total approximate amount of $40,000. The Appeals [27] Before this court, Harry appeals from the judgment; Yehuda’s Estate does not. Harry argues that the trial judge erred: (1) by imposing too heavy a burden of proof on Harry and Yehuda to establish that a mutual wills agreement existed; (2) by not finding a secret trust between Elias and Harvey; and (3) by failing to void certain inter vivos transfers that Harvey had unconscionably procured from Henia. [28] Henia also appeals from the judgment. First, Henia submits that the trial judge erred by identifying in para. 5 of the judgment Elias’ real property at the time of his death, even though their respective ownership interests were not the subject of pleadings at trial and the appellant could not meaningfully contribute to the issue of ownership because the trial record was insufficient. [29] Second, Henia argues that the trial judge erred by finding that Yehuda’s Estate owned a 50% interest in Townsgate. She accepts that Yehuda was a joint tenant in Townsgate, but submits that Yehuda’s joint tenancy was never severed and that when Yehuda died in 2016, she took sole ownership of Townsgate by survivorship. Yehuda’s Estate defends this appeal by Henia. Harry’s Appeal (i) No Mutual Wills Agreement [30] A mutual wills agreement is a binding contract not to revoke wills. A mutual wills agreement between two testators is designed to prevent either from changing their will without the other’s consent. [3] Cullity J. described the doctrine in Edell v. Sitzer (2001), 55 O.R. (3d) 198 (S.C.), aff’d 9 E.T.R. (3d) 1 (Ont. C.A.), leave to appeal refused, [2004] S.C.C.A. No. 372 , at para. 58: a. the agreement must satisfy the requirements for a binding contract and not be just some loose understanding or sense of moral obligation; b. it must be proven by clear and satisfactory evidence; and c. it must include an agreement not to revoke the wills. [31] The agreement may be proven from the words of the will itself or from extrinsic evidence: Albert H. Oosterhoff et al., Oosterhoff on Wills , 9th ed. (Toronto: Thomson Reuters, 2021), at p. 136. Thus, an agreement may be found on the basis of evidence outside the four corners of the will. That said, an agreement should not be inferred from the bare fact that mutual wills were made: Edell v. Sitzer , at para. 73. [32] In his appeal, Harry takes issue with the trial judge’s treatment of the burden of proof required to establish a mutual wills agreement. [33] The trial judge correctly noted at para. 85 of her reasons that the burden of proof lay with the party alleging the existence of a mutual wills agreement. She went on to state that “[t]he onus on the party alleging a [mutual wills agreement] is “heavy” in that there must be clear evidence of a mutual wills agreement.” She quoted from Bellinger v. Nuytten Estate , 2002 BCSC 571, 45 E.T.R. (2d) 10 that the plaintiff bears a “heavy onus” to establish a binding agreement, in the nature of a contract, in clear and unequivocal terms. She observed at para. 86 that the requirement of proof of an agreement by clear and cogent evidence was a function of the importance of testamentary autonomy and “the tension between that important value and a [mutual wills agreement] which encroaches upon it.” Citing Canada (Attorney General) v. Fairmont Hotels Inc. , 2016 SCC 56, [2016] 2 SCR 720, she stated that certain claims, including a claim of a mutual wills agreement, require “evidence exhibiting a high degree of clarity, persuasiveness and cogency”. At para. 118 of her reasons, she stated: I must be satisfied, on a balance of probabilities, of the existence of an agreement between Elias and Henia on the terms alleged by Harry and Yehuda’s estate that: a. The residue of their collective assets (estates) would pass to and be divided equally among their surviving sons (or their issue, if any); and b. The survivor of them would not revoke or change their 2007 wills or make inter-vivos gifts that would defeat this intended distribution of their estates; and c. Any inter-vivos gifts that were made by the survivor of them could be made only to their living sons in equal shares, based on evidence that is clear, cogent and non-speculative. I am not satisfied of this. The evidence against the existence of a [mutual wills agreement] overwhelms any evidence (or suggested inferences) in favour of it. [34] Harry submits that the trial judge improperly elevated the burden of proof required to establish a mutual wills agreement to something more than a balance of probabilities. [35] I am not persuaded that she did. [36] The only civil standard of proof is proof on a balance of probabilities: F.H. v. McDougall , 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 40. In all cases, the evidence adduced to meet this standard must be “sufficiently clear, convincing and cogent” to persuade the trier of fact of the merits of the claim on a balance of probabilities: McDougall , at para. 46. [37] The “quality” of the evidence required to meet the standard will vary according to the nature of the claim and the evidence capable of being adduced: Nelson (City) v. Mowatt , 2017 SCC 8, [2017] 1 S.C.R. 138, at para. 40. So, for example, as explained in Mowatt , in historical adverse possession claims, the quality of the supporting evidence might not be as robust as evidence of recent possession, but it must still be sufficient to meet the burden of proof. Or, as illustrated by Canada (Attorney General) v. Fairmont Hotels Inc. , 2016 SCC 56, [2016] 2 S.C.R. 720, the quality of the evidence to be adduced by a party seeking rectification is such that it must displace an instrument to which the party had previously subscribed. Cogent and convincing evidence will be needed to “counteract the inherent probability that the written instrument truly represents the parties’ intention because it is a document signed by the parties”: Fairmont Hotels Inc. , at para. 36. However, the party must nonetheless meet the standard of proof. Thus, the quality of the evidence may vary depending on the claim, but the standard of proof will always remain the same: proof on a balance of probabilities. [38] The trial judge reasoned that a mutual wills agreement must be proven by clear, cogent, and compelling evidence in part because a mutual will agreement interferes with the testamentary freedom of a testator, and testamentary freedom is very important. [4] The Supreme Court has explicitly rejected the notion that civil claims must be scrutinized with greater care because of their onerous consequences to one side: McDougall, at paras. 45-46. Accordingly, there is no principle that a mutual wills agreement demands a higher standard of proof due to its nature. So, to analogize with rectification claims, parties seeking to establish a mutual wills agreement often face a difficult task meeting the standard of proof because frequently they must displace strong evidence contained in a will that tends to negate a claim of a mutual wills agreement. [39] I do not read Fairmont Hotels Inc. to mean that a higher quality of evidence is required to prove a claim merely because of the claim’s importance or because of its importance to a value such as “testamentary freedom.” Nor, however, did the trial judge. Rather, as with rectification claims, “[a] court will typically require evidence exhibiting a high degree of clarity, persuasiveness and cogency before substituting the terms of a written instrument with those said to form the party’s true, if only orally expressed, intended course of action”: Fairmont Hotels Inc. , at para. 36. [40] Having set forth the dictates of the applicable jurisprudence, the trial judge stated at para. 88: Harry and Yehuda’s estate argue that this evidentiary burden cannot be interpreted as enhancing their civil burden of proof beyond the standard balance of probabilities. I agree, but I do not understand the opponents of the [mutual will agreement], Henia and Harvey, to be arguing for an enhanced burden in that sense. Rather, they have submitted that the evidentiary standard for proving [a mutual will agreement] is in line with the Supreme Court’s recent holding that, while there is only one civil standard of proof, certain claims require "evidence exhibiting a high degree of clarity, persuasiveness and cogency”. That is how I have approached the burden of proof in this case. [41] The trial judge was clearly alert to the governing law, namely that there is only one civil standard of proof and that to meet that standard, the quality of the evidence had to be sufficiently clear, persuasive and cogent to convince her of the merits of the mutual will agreement claim on a balance of probabilities. [42] Moreover, as the trial judge explained, the evidence clearly favoured a dismissal of the mutual wills agreement claim. To repeat, “the evidence against the existence of [a mutual wills agreement overwhelmed] any evidence (or suggested inferences) in favour of it.” Among other things, Henia did not sign, nor was she present, when the August 17, 2011 document was signed. There was no evidence from which to infer that Elias and Henia agreed to restrict the ability of the survivor to deal freely with the estate assets during her lifetime. Elias’ conduct in providing instructions for a possible new will was inconsistent with the alleged mutual wills agreement, and Mr. Gaertner’s willingness to take those instructions also feeds this inconsistency. [43] The trial judge was fully conversant with all the unhappy dynamics of this family. She fairly concluded based on the evidence before her that there was no mutual wills agreement between Elias and Henia. [44] I would reject this ground of appeal. (ii) No Secret Trust [45] Harry also challenges the trial judge’s conclusion that there was no secret trust. [46] A. H. Oosterhoff describes secret trusts in “Secret and Half-secret Trusts,” Ontario Bar Association Continuing Legal Education, Trusts, Trustees, Trusteeships – All You Need to Know and More…, September 18, 2006, at p. 3: A secret trust comes into existence when a testator leaves property to a person and that person secretly agrees with the testator to hold the property for the benefit of another person. There are two kinds of secret trust. With a fully-secret trust the testator leaves the property to a person apparently absolutely. In other words, the will discloses neither the existence of the trust, nor the name of the beneficiary. With a half-secret trust the will leaves the property to a person in trust, but the will does not disclose the beneficiary. If the requirements for the trust are satisfied, equity will enforce the trust and ensure that the property is given to the intended beneficiary of the trust. [47] Secret trusts do not comply with the formal requirements of statutes governing wills, but equity intervenes to enforce the trust. Traditionally, this was seen as a means to avoid fraud, as absent intervention by equity, the trustee who received property might keep it, rather than abiding by the terms of the trust. [48] The trust was secret for a variety of reasons. As explained by A.H. Oosterhoff, Robert Chambers & Mitchell McInnes, Oosterhoff on Trusts : Text, Commentary and Materials, 8th ed., (Toronto: Carswell, 2014), at p. 870: A testamentary gift that favours one sibling over another, or that reveals the existence of an illegitimate child or secret lover, may generate ill-will or hostility amongst family members and close friends. Better to postpone the storm until after one is gone. Alternatively, a testator may be motivated by a desire for secrecy even after death. Once admitted to probate, a will becomes a public document, available to anyone for a fee. A secret trust allows a testator to conceal the fact that property has been left to, say, a political organization with unpopular views. [49] In Champoise v. Prost , 2000 BCCA 426, 77 B.C.L.R. (3d) 228, the British Columbia Court of Appeal described the elements of a secret trust at paras. 15-16: A secret trust arises where a person gives property to another, communicating to that person an intention that the property be dealt with in a specific way upon the happening of an event, and the donee accepts the obligation. The essential elements are the intention of the donor, a communication of the intention to the donee and acceptance of the obligation by the donee: Sutherland Estate v. Nicoll Estate , [1944] S.C.R. 253 (sub nom. Hayman v. Nicoll ), [1944] 3 D.L.R. 552; Jankowski v. Pelek Estate , (1995), 131 D.L.R. (4th) 717 (Man. C.A.); Ottaway v. Norman , [1971] 3 All E.R. 1325 (Ch.D.); D.W.M. Waters, Law of Trusts in Canada , 2d ed. (Toronto: Carswell, 1984) at 215-217. In addition to these requirements for an enforceable secret trust, the three certainties necessary for any express trust must be exhibited; the words making the trust must be imperative, the subject of the trust must be certain, and the object or person intended to take the benefit of the trust must be certain. Further, those certainties must be exhibited at the time the trust is created: Re Beardmore Trusts , [1951] 1 D.L.R. 41; D.W.M. Waters, Law of Trusts in Canada , supra at 107. [50] As the trial judge noted, the courts distinguish between an intention to create a legally enforceable trust as opposed to a moral obligation intended to guide the recipient’s conscience: see, e.g., Re Snowden , [1979] Ch. 528. The latter cannot be the basis of a secret trust. Even if the donor’s intentions and wishes are made clear and acknowledged by the recipient, that alone is not enough to establish a secret trust: Milsom v. Holien , 2001 BCSC 868, 40 E.T.R. (2d) 77, at paras. 15, 35-36, and 42-43. [51] At trial, Harry and Yehuda’s Estate clarified that the trust only attached to the assets in Elias’ estate that ended up in Harvey’s hands through his instrumentality. They did not contend that the secret trust attached to Henia’s assets. They took the position that the secret trust was declared under the August 17, 2011 document and crystallized on Elias’ death on October 28, 2011. All assets received by Harvey from Elias were to be held by Harvey in trust for his brothers. The trial judge noted that the primary alleged breach of the secret trust was that Harvey facilitated Henia’s breach of the mutual wills agreement. Given that there was no mutual wills agreement, it followed that that argument had to be rejected. [52] Harry advances numerous arguments in support of his position that the trial judge erred in her secret trust analysis. He submits that: the three certainties were evident on the face of the August 17 document and as such, the trial judge erred in finding otherwise; she misapprehended certainty of subject matter; she failed to apply equitable principles to her analysis; she failed to consider that a legally binding contract was indicative of a trust; she erred in ruling that the secret trust claim failed because the mutual wills agreement failed; and lastly, she erred in ruling that if there had been a secret trust, it ended at Elias’ death. [53] There is no need to address all of these arguments as the trial judge’s factual findings on the elements required to establish a secret trust reveal no palpable and overriding error and are fatal to Harry’s secret trust appeal. [54] Most fundamentally, there was no transfer or grant from Elias to Harvey. Elias did not give anything to Harvey. On Elias’ death, his assets vested in Henia. Even if one could cobble together an argument that this was not the case, as stated in Oosterhoff on Trusts , at p. 874, if a gift is made to more than one person, but an agreement is made with one only, the others are not bound [5] . As Harry’s counsel stated in submissions on the alleged secret trust, the whole case turns on the August 17 document. The trial judge made a finding, available to her on the record, that Henia did not participate in the August 17, 2011 document which is the basis for Harry’s secret trust argument. Not only was there no transfer, that document does not contemplate any transfer or grant of Elias’ assets to Harvey. [55] Harry submits that the corpus of a trust may be a chose in action; the agreement between Elias and Harvey constituted a chose in action; and the agreement represented a legal right to compel that Elias’ assets be divided equally among the three sons. As such, Harry argues that the trial judge erred in concluding that the elements of a secret trust had not been satisfied. [56] I have difficulty with this argument. I accept that a chose in action may satisfy the subject matter requirement of the three certainties, but this does not address the absence of any transfer. To repeat, there was no transfer or grant pursuant to any alleged secret trust. There was no secret, and there was no trust. After Elias’ death, all his property was to go to Henia. [57] On the issue of any misappropriation of assets or proceeds from Elias by Harvey after August 17, as the trial judge stated, Harvey may be liable to account to Elias’ estate for those receipts. As noted in the aforementioned footnote 31 of the trial judge’s reasons, she was not directed to any evidence that would justify Harvey’s receipt of Elias’ share of the vendor take-back mortgage, proceeds that were to be distributed at the end of August 2011. Indeed, Elias had told Harvey that these vendor take-back proceeds should be paid to Elias and Henia, each as to their 50% share. [58] Nor do I see an inconsistency between the trial judge’s dismissal of the secret trust claim and, when dealing with the claim of unconscionable procurement, her rejection of Harvey’s contention that the August 17 document was not binding on him. As the trial judge found, Harvey set out to extract an agreement from Elias at that time not to change his 2007 will, and he succeeded. However, this did not affect the merits of the trial judge’s secret trust analysis. Fundamentally, while unquestionably Elias hoped that Henia would leave her estate, which would ultimately encompass his estate as well, to all three sons, ultimately that was her decision. As he said in the August 17 document, Henia and he “both built up the estate and own it together jointly as one pocket”. Harry’s argument effectively serves to disentitle Henia from her inheritance. There is no legitimate basis for such an outcome; it is up to Henia to decide what she will do with her holdings. [59] I see no error in the trial judge’s conclusion on the secret trust claim and would dismiss this ground of appeal. (iii) Henia’s Inter Vivos Transfers to Harvey [60] The trial judge found that Harvey had unconscionably procured from Henia assets of approximately $8.66 million after Elias died. The result of the trial judge’s determination on unconscionable procurement, coupled with the absence of both a mutual wills agreement and a secret trust, was that those assets reverted to Henia to deal with as she pleases. Henia has not appealed the finding of unconscionable procurement. She did not appeal the transactions that the trial judge found to have been unlawfully procured by Harvey because the result was nihil ad rem , to use her counsel’s terminology, or irrelevant; the assets reverted to her in any event. Nor have Harvey and Ashley appealed the trial judge’s ruling on unconscionable procurement. [61] The parties did not challenge the validity of the doctrine of unconscionable procurement. In the absence of full legal argument on the existence and desirability of any doctrine of unconscionable procurement, I do not propose to address the merits of any such doctrine and whether grounds to attack transactions beyond such traditional grounds as undue influence and incapacity should be endorsed. Thus, this decision should not be taken as approval or rejection of unconscionable procurement being part of the law of Ontario. [62] In light of my dismissal of the mutual wills agreement and the secret trust claims, the unconscionable procurement appeal can only be of benefit to Henia, not to Harry. Even if successful, as counsel for Harry candidly conceded, the assets would revert to Henia, not to him. For the purposes of the record, I will nonetheless address the appeal. [63] The trial judge found that Harry did have standing to pursue the unconscionable procurement claim as he could be a contingent beneficiary under Henia’s 2007 wills. Although Henia challenged Harry’s standing to advance such an argument at trial, there is no cross-appeal on the issue of standing. Given the parties’ respective positions, I will address the merits of Harry’s arguments on unconscionable procurement without deciding the issue of standing. [64] Henia’s transfers to Harvey and Ashley were considerable. In a June 27, 2011 document, Henia purported to transfer to Harvey mortgage proceeds from the sale of two properties. In April 2012, Henia signed documents in which she agreed to compensate Harvey for past and future property management services (the Compensation Agreement, valued at approximately $3.9 million, and the Services Agreement, valued at approximately $2 million). Also, in April 2012, she proceeded to forgive all past indebtedness owing from Harvey to Elias and Henia (valued at no less than $1 million). In security documents, Henia purported to secure past debts said to be owing from her to Harvey (the Security Documents). After Elias died, Henia transferred half interests in commercial real estate to Harvey and his daughter, Ashley, in 2013 and 2014 (valued at approximately $15 million). Since he died, Henia’s net worth has been depleted by at least 50% and she has purported to confirm indebtedness and has granted security over all her remaining assets in favour of Harvey and Ashley. [65] The trial judge declared the Services Agreement, the Compensation Agreement, the Security Documents, the June 27, 2011 document, a 2014 blank direction relating to the transfer of assets, and funds taken or received in respect of certain vendor take-back mortgage proceeds and a refinancing to be void, all steps taken in furtherance of these arrangements unwound, and benefits received returned to Henia. [66] The trial judge did not void the April 2012 debt forgiveness, nor the 2013 and 2014 inter vivos transfers of commercial real estate transferred from Henia to Harvey. Those that were not set aside are the subject matter of Harry’s appeal. [67] Harry argues that all transactions ought to have been set aside and advances two complaints about the trial judge’s unconscionable procurement analysis. [68] First, he submits that the findings of the trial judge were logically inconsistent in that she relied on Dr. Shulman’s evidence to rebut the presumption of unconscionable procurement with respect to certain transactions and then described it as being unreliable and misinformed with respect to others. [69] I do not agree with this complaint. [70] The trial judge laboriously went through each transaction and carefully considered whether the presumption of unconscionable procurement had been rebutted. For example, the trial judge found that the presumption arose from Harvey’s active involvement in procuring large transfers from Henia. She found that the presumption had been rebutted with respect to Henia’s forgiveness of Harvey’s loans in 2012. Henia signed an acknowledgement describing the past advances as gifts and in Dr. Shulman’s report, he recorded that Henia had told him that she had forgiven these loans to compensate Harvey for his past property management services. Henia discussed with Dr. Shulman her forgiveness of Harvey’s debts and the discharge of security in the context of her bona fide desire to compensate him for his past property management services. Based on the evidence before her, it was open to the trial judge to determine that the presumption of unconscionable procurement had been rebutted. [71] In contrast, the trial judge fairly found that Dr. Shulman was missing important information and documents to provide context to his discussions with Henia with respect to the voided transactions and therefore his assessments could not be relied upon to rebut the presumption. Moreover, there was an absence of other evidence to satisfy the trial judge that the presumption had been rebutted. The trial judge’s conclusions were not logically inconsistent as alleged. [72] Second, Harry submits that the trial judge erred in ruling that the large transfers in 2013 and 2014 from Henia to Ashley were simply gifts. He argues that some limits should have been applied to the extent of the gift-giving and the manner in which they were made. [73] I see no error. Again, it was open to the trial judge to reach the decision she did as it related to Ashley. The trial judge concluded at para. 211 that the conveyances to Ashley and Harvey appeared to be consistent with Henia’s theme of wanting to give Henia’s half of the Gefen family holdings to Harvey and his family. As the trial judge put it at para. 212: The rationale for the gifts to Ashley was confirmed in the trial testimony of both Henia and Ashley about Henia’s desire to provide a gift to a grandchild who she has a good relationship with and who she is proud of, and her desire to provide a source of financial assistance to Ashley, and through her to her disabled brother. This is consistent with the rationale for earlier gifts and financial assistance provided by Henia to Harvey’s children. [74] I see no basis on which to interfere with the trial judge’s findings on these transactions. [75] In conclusion, I would dismiss Harry’s appeal on all grounds. Henia’s Appeals [76] As mentioned, Henia advances two appeals from the judgment. I will first address the appeal relating to the trial judge’s identification of the Elias real property holdings as of the date of his death, and then her appeal relating to the severance of the joint tenancy. (i) Identification of Real Property [77] The trial judge’s reasons for decision were released on October 17, 2019, and her reasons for costs were released on February 14, 2020. [78] The parties were unable to agree on the form of judgment. The trial judge convened a case conference, received written and oral submissions, and settled the judgment. Her reasons for the settling of the judgment were released on October 13, 2020, and the judgment was signed on October 16, 2020. [79] At issue is para. 5 of that judgment. It states: THIS COURT ORDERS AND DECLARES THAT as of the date of his death, Elias Gefen, either directly or indirectly through holding companies, among other assets and interests and without limitation, owned: a. 50% of the property municipally known as 20-26 Kennedy Road, Brampton, Ontario (the “Eastown Plaza”); b. 50% of the property municipally known as 1095 Kingston Road, Pickering, Ontario held by a bare trustee corporation, 1585708 Ontario Limited; c. 50% of the property municipally known as 1540 Dundas Street East, Whitby, Ontario held by a bare trustee corporation, 1700434 Ontario Limited (also known as Dundas-Thickson Properties Ltd); d. 40% of the property municipally known as 1650 Dundas Street East, Whitby, Ontario held by a bare trustee corporation, 1393522 Ontario Ltd; e. 50% of a vendor-take-back mortgage granted by Elias and Henia Gefen over the property municipally known as 2421-23 Keele Street, Toronto, Ontario. [80] The trial judge was satisfied that the question of whether Elias owned interests in certain commercial properties said to have formed part of the Gefen Family assets at the time of Elias’ death was put “in play” by the counterclaims. In addition, para. 5 of the judgment corresponded with the express findings made in para. 172 of her reasons for judgment. They were linked to, and could inform, the interpretation and implementation of the orders contained in the remainder of the judgment with respect to the relief for unconscionable procurement. [81] The trial judge noted that Henia had not asked for an order that some or all of the assets owned by Elias at his date of death were held by him on behalf of himself and Henia beneficially as joint tenants, and no such order was made. She also observed that para. 234 of her reasons contemplated that there could be further proceedings to ascertain the assets that comprise Elias’ estate. [82] Henia argues that the issue of para. 5 of the judgment only became relevant once the costs order was made and parties were required to look to Elias’ Estate for payment. She submits that the trial judge erred in concluding that the issue was joined by the pleadings. Moreover, it was unnecessary for the purposes of the action to determine Elias’ assets as of the date of his death. Harry had consistently claimed that his entitlement was to a share of Elias’ and Henia’s assets together, and accordingly, the record was insufficient to allow Henia to have meaningful input into the question of Elias’ ownership. Indeed, the parties did not make submissions on whether Elias legally owned the commercial real estate, as is evident from the trial judge’s disposition description at para. 248 of her reasons, which is silent on this issue. In addition, the trial judge refers to “potential assets” in para. 234 of her judgment, all pointing to the beneficial ownership of assets as between Henia and Elias not being “in play”. Henia thus submits that the trial judge ought not to have ruled on the matter. [83] In her October 17, 2019 reasons for judgment at para. 2, the trial judge set out Harry and Yehuda’s Estate claims and defined “Gefen Family Assets” saying: “Harry and Yehuda’s estate seek a proportionate 1/3 share of the collective wealth and assets accumulated by Elias and Henia over their lifetimes, all of which was held by Henia following Elias’ death in 2011 (the “Gefen family Assets”)”. She stated that they were comprised of cash and other things and included the home of Elias and Henia at 11 Townsgate. [84] At para. 172, she stated: When Elias died, the Gefen Family Assets included the following corporate real estate holdings (these are the managed assets): a. Elias Gefen Properties' (or EGP's) ownership of 50 per cent of the shares of Dundas-Thickson Properties Ltd., the bare trustee owner of a property at 1540 Dundas Street East in Whitby, Ontario (the remaining shares being owned by Harvey, as to 40 per cent, and by a corporation controlled by Dr. Finkelstein as to the remaining 10 per cent); b. Elias' ownership of 50 per cent of the shares of 1585708 Ontario Limited, the bare trustee owner of a property at 1095 Kingston Road in Pickering, Ontario (the remaining shares being owned by a corporation controlled by Dr. Finkelstein); c. Elias' ownership of 40 per cent of the shares of 1393522 Ontario Ltd., the bare trustee owner of a property at 1650 Dundas Street West in Whitby, Ontario (the remaining shares being owned by a corporation controlled by Harvey, as to 20 per cent, and a corporation controlled by Dr. Finkelstein as to the remaining 40 per cent); d. Elias' direct holding of a 50 per cent interest in a plaza known as Eastown, at 20-26 Kennedy Road North, Brampton, Ontario (the other 50 per cent being owned by a corporation controlled by Henia's brother and/or his family members). [85] She explained at para. 173 and following that these ownership interests were consistent with what Mr. Gaertner recorded having been told by Elias before he died and they were confirmed from the documents made available to the expert, Ivor Gottschalk. [86] Harry moved for the appointment of an Estate Trustee During Litigation for Elias’ Estate. On January 27, 2015, Newbould J. granted the request. His order defined the assets of Elias’ Estate in terms comparable to those used in para. 172 of the trial judge’s reasons for decision and para. 5 of the settled judgment.  The Estate Trustee During Litigation was also authorized to prepare an inventory of Elias’ Estate. Newbould J. ordered that the costs of the Estate Trustee During Litigation were to be paid out of Elias’ Estate. [6] No one sought to appeal this order. The order noted that submissions were made by, amongst others, Henia and Harvey. [87] On June 27, 2016, Henia amended her Reply and Defence to the Counterclaim of Harry to state that at all times, all real estate was held in joint tenancy of Henia and Elias or on trust by Elias for himself and Henia. [88] Significantly, in Harry’s prayer for relief in his Amended, Amended, Amended Statement of Defence and Counterclaim dated June 30, 2017, he claimed: 48(e) a declaration that Elias’ sole beneficial ownership of co-tenancy interests in the following commercial assets never passed from his estate to Henia or any other party: (i) 50% co-tenancy interest in the property at 20-26 Kennedy Road in Brampton, Ontario (“Eastown Plaza”) (ii) 50% co-tenancy interest in the property at 1540 Dundas Street East, Whitby (held by Dundas-Thickson Properties Ltd., “DTP” as a nominee) (iii) 40% co-tenancy interest in the property at 1650 Dundas Street East, Whitby (held by 1393522 Ontario Ltd., “139” as a nominee) (iv) 50% co-tenancy interest in the property at 1095 Kingston Road, Pickering (held by 1585708 Ontario Ltd. “158” as a nominee) [89] Harvey, Ashley, and Henia denied those claims. In the light of the pleadings, it can hardly be said that the issue was not in play. [90] In addition to the pleadings, both Harry’s written opening and his closing submissions at trial reveal that the issue of ownership was in play. At para. 62 of his November 13, 2018 written opening, Harry wrote: Harvey asserted that Elias had no estate as everything was owned jointly by Henia and passed to her by right of survivorship. This is a live issue at trial. Harry will submit that the reliable and contemporaneous evidence strongly supports the conclusion that the commercial properties interests were held by solely Elias beneficially. This evidence, to be filed at trial, includes Elias’ tax returns on which the entirety of the income from each of the four commercial properties was declared annually from 2006 to his terminal 2011 return. [91] Similarly, Harry’s closing submissions make it obvious that the ownership issue was in play. At para. 5 of his written closing submissions, he stated that “Harry and the Estate of Yehuda Gefen seek a declaration that, among other things, Elias’ estate includes beneficial ownership of the following commercial properties,” followed by a list of the four properties found in para. 5 of the judgment. [92] Contrary to Henia’s submissions on appeal, para. 234 of the trial judge’s reasons is inconclusive. It simply states that “[t]o the extent that my judgment identifies potential assets that form part of the estate of Elias Gefen, the [Estate Trustee During Litigation] may decide to investigate them, including any that are in the hands of the beneficiary.” [93] In conclusion, the pleadings, the written opening and the closing submissions all support the trial judge’s conclusion that the issue of ownership was in play. Moreover, the issue was fully canvassed before the trial judge as is evident from her reasons at para. 172 and following. Although ultimately unsuccessful, the composition of Elias’ estate was also relevant to the secret trust claim and necessary to identify the property Harvey was required to relinquish due to the unconscionable procurement claim. The trial judge’s analysis supported inclusion of para. 5 in the judgment. [94] I would dismiss Henia’s appeal of para. 5 of the judgment. (ii) Severance of Joint Tenancy [95] Elias and Henia purchased the 11 Townsgate condominium as joint tenants in December 2006. Expecting that Yehuda would survive them, they transferred the property to him and themselves each as joint tenants on October 8, 2010. When Elias died on October 28, 2011, the rights of the two surviving joint tenants were enlarged and the property vested in them jointly. [96] As previously described, Henia sued Harry and Yehuda in 2013, and Yehuda counterclaimed on March 19, 2014. [97] Henia signed an acknowledgment and direction dated July 28, 2014, and instructed her lawyer, Nestor Wolicki, to sever her joint tenancy with Yehuda. Mr. Wolicki witnessed the document but failed to follow her instructions and the signed acknowledgment and direction document was never registered on title. It is not disputed that Henia authorized and signed the acknowledgment and direction. [98] Yehuda sought an order for temporary dependent’s support from his mother’s assets, as he alleged that she now had all of his late father’s assets under her control. The application was heard by Mesbur J. on November 23, 2015. Yehuda had polio since the age of two and suffered from various post-polio problems. He had a stroke in 2012, a heart attack in 2013, and had never worked for an arm’s length employer in his 64 years. His last employment was in the family carpet store 18 years prior to his application for support. [99] Mesbur J. decided that Yehuda was entitled to temporary support. At para. 61 of her reasons, she stated that Henia raised the issue of how the estate would be made whole if the trial judge ultimately determined that Yehuda was not a dependent or granted a lower support order than what she had ordered on a temporary basis. Mesbur J. determined that Yehuda’s interest in the condominium could be charged with the repayment obligation and authorized the order to be registered against Yehuda’s interest in order to secure any potential repayment. Under the heading ‘Disposition’ she wrote: For all these reasons, and without prejudice to the rights of any party to argue otherwise on the return of the application, I make the following order: *** c) If [Yehuda] is ultimately determined not to be dependent, any amounts paid to him pursuant to this order will be repaid to the payor forthwith. [Yehuda’s] interest in the property known municipally as Unit 605, 11 Townsgate Drive, Vaughan, Ontario may be charged with repayment. This order may be registered against [Yehuda’s] interest in the property in order to secure any ultimate repayment to the payor, if [Yehuda] is required to make a repayment. No one sought to challenge or appeal Mesbur J.’s decision. [100] Yehuda died on May 6, 2016. Either Henia, or Henia and Harvey, instructed Mr. Wolicki to register a survivorship application on title on the basis that Henia was now the sole surviving joint tenant. Yehuda’s Estate challenged this registration in court on the basis that the joint tenancy in Townsgate had been severed prior to Yehuda’s death. [101] The trial judge agreed with Yehuda’s Estate. She described the three ways in which a joint tenancy can be severed as set out in Hansen Estate v. Hansen , 2012 ONCA 112, 288 O.A.C. 116, at para. 34: Rule 1: unilaterally acting on one’s own share, such as selling or encumbering it; Rule 2: a mutual agreement between the co-owners to sever the joint tenancy; and Rule 3: any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. [102] The trial judge found that Rules 1 and 3 were met. She observed that Henia’s conduct in her unilateral execution of the acknowledgment and direction and in the concern she raised about security was the very type of conduct that equity raises as an estoppel. The trial judge determined that the joint tenancy had been severed by (i) the unilateral acts of Henia in authorizing and directing a severance of the joint tenancy in 2014; (ii) by those of Yehuda, in permitting his interest to be encumbered as security for any repayment obligation he may have in the future; and (iii) by their mutual course of dealings in connection with the order of Mesbur J. in 2015 which treated their interests as constituting a tenancy in common that neither of them challenged on appeal. The trial judge therefore declared Henia’s survivorship application to be void and directed the Registrar to correct the Registry to reflect that the Townsgate property was owned by Henia and Yehuda’s Estate as tenants in common. She also ordered that Yehuda’s Estate’s 50% interest was only to be liquidated when Henia moved out of the condominium. [103] Henia appeals from this judgment. She advances two arguments. [104] First, Henia submits that the acknowledgement and direction document was never registered nor delivered to Yehuda or anyone on his behalf. As such Yehuda died without any knowledge of the document. She submits that an uncommunicated intention is insufficient; absent communication, any severance was ineffective and the trial judge erred in finding otherwise. [105] Second, she submits that the trial judge erred in finding that Henia sought and was granted security on Yehuda’s interest. She maintains that a fair reading of Mesbur J.’s endorsement makes it manifest that Henia did not seek the protection given to her. Rather, it was given of the trial judge’s own volition and not at Henia’s request. Henia asserts that Yehuda’s proposal for protection was not tied to his interest in Townsgate but to his share, if successful, in the main action. [106] The parties do not dispute that the trial judge identified the correct legal test as set out in Hansen Estate . The application of this test is a fact-specific inquiry: Marley v. Salga , 2020 ONCA 104, 56 E.T.R. (4th) 1, at para. 2. [107] As I am of the view that the trial judge correctly determined that the joint tenancy was severed by Yehuda’s and Henia’s mutual course of dealing in connection with Mesbur J.’s order, there is no need to determine whether a declaration of unilateral intention is insufficient to sever a joint tenancy. As stated by this court in Jansen v. Niels Estate , 2017 ONCA 312, 137 O.R. (3d) 709, at para. 26, it is not clear that a unilateral expression of intention is sufficient to achieve severance. [108] Based on Mesbur J.’s reasons, it is not evident that Henia proposed the security that was the subject matter of Mesbur J.’s disposition but, contrary to Henia’s submissions, the trial judge did not make that finding. Rather, she correctly identified Henia’s stated concern before Mesbur J. Henia raised the issue of reimbursement if the trial judge ultimately decided that Yehuda was not a dependent or if the quantum of support were reduced. [109] Neither Henia nor Yehuda sought to oppose or challenge Mesbur J.’s disposition in any way. Clearly Yehuda permitted his interest to stand as security and neither he nor Henia took any steps to appeal Mesbur J.’s order. The requirement for mutual knowledge and intention was satisfied by the trial judge’s reference to Yehuda’s argument at para. 15: “they were each aware of the other's acceptance of this encumbrance, which necessarily would require their interests to be held as tenants in common since an encumbrance of Henia's own interest in the Townsgate Property would clearly not address the potential prejudice…”. [110] Moreover, the order would be consistent with Henia’s instructions to Mr. Wolicki that the joint tenancy be severed. Standing alone and in the absence of communication to Yehuda, it may be that this instruction was insufficient to sever. However, it certainly may serve to assist in informing Henia’s intentions in the 2014 to 2015 timeframe. Mutuality for the purposes of Rule 3 may be inferred from the course of dealing between the parties: Hansen , at para. 36. When the facts are examined in their totality, Henia’s and Yehuda’s course of dealing was sufficient to intimate that their interests were mutually treated as constituting a tenancy in common. [111] As stated at para. 35 of Hansen , severance under Rule 3 operates in equity: Rule 3 operates so as to prevent a party from asserting a right of survivorship where doing so would not do justice between the parties. In the words of Professor Ziff, at p. 345, “the best way to regard matters is to say that equity will intervene to estop the parties, because of their conduct, from attempting to assert a right of survivorship”. [7] What is determinative under this rule is the expression of intention by the co-owners as evidenced by their conduct. (citation omitted). [112] I am not persuaded that the trial judge erred in her conclusion that the joint tenancy was severed. I would dismiss Henia’s appeal. Disposition [113] In conclusion, for these reasons, I would dismiss Harry’s and Henia’s appeals in their entirety. [114] The parties asked to make written submissions on costs following the release of reasons for decision. Henia shall serve her submissions on Harry’s appeals by March 9, 2022; Harry shall serve his in response and those relating to his successful resistance of Henia’s appeal of para. 5 of the judgment by March 14, 2022; Lucia Saunders shall serve her submissions on the severance appeal by March 9, 2022; and Henia shall serve responding submissions on Henia’s appeals by March 14, 2022. The submissions of each party are not to exceed 10 pages in length. Released: March 2, 2022 “S.E.P.” “S.E. Pepall J.A.” “I agree. M. Tulloch J.A.” “I agree. L.B. Roberts J.A.” [1] This included a claim by Harry and Yehuda against Harvey for maintenance of Henia’s action against them. The trial judge dismissed this claim and it is not in issue on the appeal. [2] The October 2007 will. [3] As a will can always be revoked, if a party makes another will in spite of the agreement, that will, if valid, may still be probated, but the property will be subject to a constructive trust: Albert H. Oosterhoff et al . , Oosterhoff on Wills , 9th ed. (Toronto: Thomson Reuters, 2021), at p. 136. [4] There is no question that testamentary freedom is “ an important social interest that has long been recognized in our society as firmly rooted in our law”: Spence v. BMO Trust Co., 2016 ONCA 196, 129 O.R. (3d) 561, at para. 30 [5] Absent a joint tenancy, which was not present here. [6] Subsequently, Penny J. made an order on September 26, 2018, entitling the Estate Trustee During Litigation to claim from the “Property Interests” of Elias. [7] Bruce Ziff, Principles of Property Law , 5th ed. (Toronto: Carswell, 2010).

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Nazir, 2022 ONCA 176 DATE: 20220302 DOCKET: C69180 Tulloch, Huscroft and Miller JJ.A. BETWEEN Her Majesty the Queen Respondent and Mohamed Nazir Appellant Dan Stein, for the appellant Alexander Hrybinsky, for the respondent Heard: February 23, 2022 by video conference On appeal from the conviction entered on December 13, 2019 and the sentence imposed on September 3, 2020 by Justice Wailan Low of the Superior Court of Justice, sitting without a jury. REASONS FOR DECISION [1] The appellant was convicted of three counts of attempt murder, aggravated assault, two counts of uttering threats, and two counts of failure to comply with probation. He was sentenced to 13 years in prison, less credit for pretrial custody. He appeals against conviction and sentence. [2] The convictions arose out of the appellant’s knife attack on two of his sisters-in-law and his niece at the family home. One sister-in-law, Rakhee, was injured severely. The other sister-in-law, Wazila, protected herself and her daughter Alyssa from the attack by locking themselves in an upstairs bathroom until the police came to arrest the appellant. The issue at trial was whether the appellant formed the intent to kill. The voluntariness of his utterances to the police following the attacks was also in issue. [3] The appellant raises four issues on appeal: 1. Did the trial judge err by focusing exclusively on capacity to form intent rather than actual intent? 2. Did the trial judge err by admitting opinion evidence regarding the appellant’s credibility and demeanour? 3. Did the trial judge misapprehend the evidence as to the appellant’s intoxication and state of mind? 4. Did the trial judge err with respect to the use of the appellant’s out-of-court statement made to Officer Litster-MacLeod? [4] In addition, the appellant seeks leave to appeal sentence, arguing that the sentence is excessive. [5] The appeal is dismissed for the reasons that follow. The trial judge did not err by focusing exclusively on capacity to form intent rather than actual intent [6] The appellant’s argument focuses on the convictions for the attempted murder of Wazila and Alyssa Nazir. He says that the trial judge focused on capacity and failed to consider whether he had the actual intention required. [7] There is no merit to this argument. [8] The trial judge correctly framed the issue of whether the appellant had the intention to cause death. She fairly set out the appellant’s position and specifically responded to it, finding that it was an “inescapable” inference that the appellant had the intention to cause the death of Rakhee. In essence, this was a continuous series of events: the appellant’s intention to kill Rakhee was redirected to Wazila and Alyssa once Rakhee escaped. The trial judge found that the existence and contemporaneity of the verbal death threat, following them upstairs, bringing knives, and attempting to pry open the bathroom door with a screwdriver led only to the inference that the appellant intended to cause their death. These findings are amply supported by the record and there is no basis to impugn them. The trial judge did not err by admitting opinion evidence regarding the appellant’s credibility and demeanour [9] The appellant submits that Officer Lister-MacLeod was permitted to testify as to his demeanour, honesty, malingering, and other inappropriate matters, which infected the trial judge’s reasoning process. He acknowledges that trial counsel did not object to this evidence and that one of the most “egregious” comments was elicited in cross-examination of the officer. [10] There is no merit to this submission. This was a judge-alone trial, and it is apparent that the trial judge did not rely upon inadmissible opinion evidence in reaching her conclusion. The trial judge is presumed to know the law, and it cannot be assumed in the absence of a self-instruction that she improperly relied on the opinion evidence. There is no basis to suggest that she “implicitly embraced” this evidence or that there is an appearance of unfairness. The trial judge did not misapprehend the evidence [11] The appellant argues that the trial judge wrongly relied on the evidence of Officer Lister-MacLeod and failed to address inconsistent evidence concerning the appellant’s impairment, including the expert toxicology evidence of Dr. Mayer. [12] There is no merit to this argument. [13] The trial judge reviewed the degrees of intoxication set out by the Supreme Court in R. v. Daley , 2007 SCC 53, [2007] 3 S.C.R. 523 and carefully reviewed the toxicology evidence of Dr. Mayer. She noted that although Dr. Mayer calculated that the appellant had an estimated BAC level indicative of impairment, it was not possible to determine the precise nature of the impact of alcohol on an individual. Dr. Mayer also could not opine on the appellant’s actual level of impairment, his ability to form the requisite intent or his ability to foresee the consequences of his actions. [14] The trial judge reviewed the conduct of the appellant following his arrest and made findings that were open to her on the evidence. The appellant’s speech was not slurred, his gait was not impaired, and he related lucid, cogent, and detailed particulars to Officer Lister-MacLeod. This was indicative of an operating mind. So too was the appellant’s ability to respond to questions and requests, along with his compliance with Officer Lister-MacLeod’s admonition when he flirted with her and the hospital staff. It was open to the trial judge to find that he was able to appreciate the consequences of his actions despite a high BAC level. The trial judge’s use of the appellant’s out-of-court statements occasioned no prejudice [15] The appellant argues that the trial judge erred in characterizing his statements as an attempt to undermine the credibility of the complainants. The appellant submits that his statements demonstrated his inaccurate, confused recollection, suggesting a higher degree of impairment, which affected the mens rea for attempt murder. [16] The respondent argues that any mischaracterization of the defence position at trial was insignificant in the context of the trial and could not have affected the outcome. We agree. [17] There was ample evidence supporting the trial judge’s conclusion that the appellant’s memory was not impaired. Moreover, even if trial counsel’s submission was mischaracterized, the trial judge did not fail to apply even scrutiny to the appellant’s statement. She acknowledged exculpatory aspects of the appellant’s statement but based her decision on the evidence as a whole. This ground of appeal fails. The sentence was fit [18] We see no error in law or in principle, nor was the 13-year sentence imposed demonstrably unfit, having regard to the brutal and vicious nature of the attack. There is no basis for this court to interfere with the sentence imposed. Conclusion [19] The appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed. “M. Tulloch J.A.” “Grant Huscroft J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 2501306 Ontario Inc. v. Country Garden Academy Inc., 2022 ONCA 177 DATE: 20220228 DOCKET: C69561 Simmons, Harvison Young and Zarnett JJ.A. BETWEEN 2501306 Ontario Inc. Applicant (Respondent) and Country Garden Academy Inc., (o/a) Country Garden Montessori Academy Respondent (Appellant) Gwendolyn L. Adrian, for the appellant Sara Erskine, for the respondent Heard: February 22, 2022 by video conference On appeal from the judgment of Justice C.F. de Sa of the Superior Court of Justice, dated May 19, 2021. REASONS FOR DECISION [1] Following the oral hearing we dismissed this appeal for reasons to follow and denied the respondent’s request for leave to cross-appeal costs. These are our reasons. [2] The appellant operates a Montessori school in premises it rents from the respondent. On March 31, 2020, the appellant exercised its option to renew its lease for what would be a third three-year term running from December 1, 2020 to November 30, 2023. [3] Under the terms of the lease, the Minimum Rent during any renewal was to be negotiated 90 days prior to the commencement of the renewal term and "be based on the prevailing market rates at the time of renewal for comparable premises." [4] As the parties were unable to agree on the Minimum Rent during the renewal term, the respondent applied under rule 14.05 for a declaration that the Minimum Rent payable would be $23 per square foot per year. [5] The Minimum Rent payable during the original three-year term from November 27, 2014 to November 30, 2017 was $12.36 per square foot; during the second three-year term from December 1, 2017 to November 30, 2020 it was $13.28 per square foot. [6] The respondent was not the landlord when the lease was first negotiated. It acquired the property in early 2018, after the Minimum Rent for the second three‑year term had been negotiated. [7] Both parties filed expert evidence on the application as to the market rate that should be apply during the third renewal term. The appellant's expert filed two reports. The first report as of June 2020 estimated the market rate at $14 to $16 per square foot. The second report dated November 27, 2020 estimated the market rate at $12 to 14 per square foot. [8] The respondent's expert concluded that the market rate as of August 5, 2020 ranged from $20 to $25 per square foot and provided a best estimate of $23 per square foot. [9] In his reasons, the application judge reviewed the evidence adduced concerning the nature of the property, its history, the leasing history and the expert evidence. He began his analysis by observing that it was evident from the experts’ reports that “the determination of the appropriate rate for the Minimum Rent for a ‘comparable premise’ is hardly a science.” Location, surrounding neighbourhood, size, condition, amenities, demand, zoning and available uses were all relevant factors to be considered. [10] The application judge noted that the lease specified that the premises should be used as an educational facility. He accepted the respondent's position that use was an important factor in determining the prevailing market rate for comparable premises at the time of renewal. [11] Concerning the expert’s reports, the application judge observed that the appellant's expert referenced a number of comparables that lacked the amenities and improvements of the subject property. [12] However, the application judge also recognized that the property's zoning permitted limited uses, namely Parks & Open Space, with exceptions for only five uses: commercial recreational centre; banquet hall; place of assembly; day nursery; and elementary/secondary school. This was a factor that would require a downward adjustment from the rental rates on some of the comparables. He said: A property remotely located which is limited in uses cannot be fairly compared to properties located on busy traffic arteries that allow dozens of general uses without a “downward adjustment” which takes into account the superior attributes and leasing potential of the comparable property. [13] Based on the comparables put forward by both experts and the other evidence adduced on the application, the application judge concluded that the Minimum Rent for the renewal period should be $18 per square foot. [14] The appellant raises three issues on appeal. [15] First, the appellant submits that the application judge erred in law by failing to interpret the term “comparable premises” in a manner consistent with how the appellant and the original landlord previously interpreted that term. The appellant asserts that the application judge disregarded unchallenged evidence that when previously determining market rent for comparable premises, the original owner/former landlord did not focus on properties that could be used as an educational facility but rather focused on properties located in industrial parks and that were subject to zoning restrictions that had limited uses. [16] We did not accept this submission. Even assuming the parties’ conduct in determining previous Minimum Rent would be relevant to the determination of the “prevailing market rates at the time of renewal for comparable premises”, there was no evidence capable of supporting the appellant’s submission. The only evidence directed to the issue consisted of two paragraphs in the affidavit filed on the appellant’s behalf by Dan Hilsenteger. Mr. Hilsenteger asserted that he and the principal of the original landlord came to an agreement on the original rental rate “based on similar properties in the area which were also located in industrial parks.” Concerning the 2017 renewal, Mr. Hilsenteger deposed that he and the former landlord agreed on a rate “based on similar properties” or “similar properties in the area.” None of the similar properties used as comparables in the past were identified. There was no evidence of the rental rates for those properties at the time of the renewal in issue. The limited evidence adduced by the appellant concerning prior comparables that were used is simply not capable of supporting the position it advances. [17] The appellant’s second submission is that the application judge erred in law by failing to consider the very limited uses allowed by the property’s zoning. We rejected this submission. As we have said, the application judge described the permitted uses in his reasons and noted specifically that a downward adjustment from certain comparables would be required for a remotely located property with limited uses. [18] The appellant’s third submission is that the application judge made a palpable and overriding error by failing to consider evidence of bad faith/wrongful conduct on the part of the respondent demonstrating the respondent was motivated to force the appellant from the property by way of extortive pricing so he could have it for his own use. We rejected this submission. [19] The application judge’s decision concerning the Minimum Rent for the renewal period was based on evidence concerning the terms of the lease, the nature of the property and expert evidence concerning prevailing market rates for comparable premises. There was no evidence the respondent’s expert’s evidence was in any way influenced or tainted by alleged wrongful conduct or improper motivations on the part of the respondent. [20] As for the cross-appeal, in our view, this was not a case for granting leave to appeal costs. [21] Based on the foregoing reasons, we dismissed the appeal and denied the respondent’s request for leave to appeal costs. Costs of the appeal are to the respondent on a partial indemnity scale fixed in the agreed upon amount of $7,000 inclusive of disbursements and applicable taxes. “Janet Simmons J.A.” “Harvison Young J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Stamatopoulos v. Harris, 2022 ONCA 179 DATE: 20220303 DOCKET: C66776 Simmons, Harvison Young and Zarnett JJ.A. BETWEEN Stamatis (Steve) Stamatopoulos, Nikolaos Stamatopoulos, Christothea Stamatopoulos, Kyriakos Stamatopoulos and Stephanie Clarke Plaintiffs (Appellants) and Richard J. Harris, The Regional Municipality of Durham , Her Majesty the Queen in Right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario and State Farm Insurance Defendants ( Respondents ) Allan Rouben, for the appellants David G. Boghosian and Sachin Persaud, for the respondent, the Regional Municipality of Durham Brian M. Bangay, for the respondent, Richard J. Harris Heard: February 23, 2022 by video conference On appeal from the judgment of Justice J. Copeland of the Superior Court of Justice, dated March 6, 2019, with reasons at 2019 ONSC 603. REASONS FOR DECISION [1] This is an appeal from a judgment dismissing an action against the Regional Municipality of Durham pursuant to s. 44 of the Municipal Act, 2001, S.O. 2001, c. 25, on the basis that it had failed to keep a roadway in a reasonable state of repair. The appellants commenced an action against Durham and the respondent, Mr. Harris, following a motor vehicle accident in November 2004. The appellant, Mr. Stamatopoulos, was a front seat passenger in a vehicle driven by Mr. Harris. The two men were travelling on the road around 8:30 p.m. when Mr. Harris lost control of the vehicle while driving over a depression or dip in the roadway. The vehicle rotated, left the roadway and travelled across the shoulder and into a ditch, where it hit a hydro pole. The vehicle travelled a further distance and collided, passenger side, into a group of trees and an embankment. Mr. Stamatopoulos suffered life altering injuries. [2] Mr. Harris conceded that he was negligent and that his driving was a cause of the collision. He reached a settlement with the appellants in 2010. However, he and the appellants alleged that the road where the collision occurred was in a state of non-repair, due to the dip in the road, and that this was also a cause of the collision. Damages were settled before the trial. The sole issues at trial were whether the respondent Durham was liable in negligence and, if so, what the apportionment of damages should be. [3] The trial judge found that the roadway was not in a state of non-repair. The appellants appeal from that finding. Mr. Harris appealed initially, but has since abandoned his appeal. He filed a factum only in relation to the costs award in the event the appellants were successful. [4] The appellants argue that the trial judge committed an extricable error of law in analyzing the question of whether the road was in a state of non-repair. This was the result of two related errors. To begin with, the appellants submit that the trial judge erred by measuring Durham’s standard of care from the perspective of Mr. Harris rather than that of the ordinary reasonable driver. Second, she compounded this error by adopting too low a standard for conduct that takes a driver outside of the scope of an ordinary reasonable driver. They argue that Mr. Harris’ negligence was not of such a magnitude to take him outside the scope of an ordinary reasonable driver . Her approach, they submit, was contrary to the authorities, and distorted the proper analysis of the claim as set out in Fordham v Dutton-Dunwich (Municipality) , 2014 ONCA 891, 327 O.A.C. 302, by conflating the question of the driver’s manner of driving with the question of whether the road was in a state of non-repair. [5] We do not agree and dismiss the appeal for the following reasons. [6] There is no dispute that the applicable four-part test for establishing the statutory cause of action in negligence against a municipality was set out by this court in Fordham at para. 26: 1. Non-repair: The plaintiff must prove on a balance of probabilities that the municipality failed to keep the road in question in a reasonable state of repair. 2. Causation: The plaintiff must prove the “non-repair” caused the accident. 3. Statutory Defences: Proof of “non-repair” and causation establish a prima facie case of liability against a municipality. The municipality then has the onus of establishing that at least one of the three defences in s. 44(3) applies. 4. Contributory Negligence: A municipality that cannot establish any of the three defences in s. 44(3) will be found liable. The municipality can, however, show the plaintiff’s driving caused or contributed to the plaintiff’s injuries. [7] First, we do not agree that the trial judge conflated Mr. Harris’ negligence with her finding that the road was not in a state of non-repair such that it would have presented a hazard to an ordinary reasonable driver. She summarized the factors that she considered in determining whether the road was in such a state of non-repair that it would have presented a hazard to an ordinary reasonable driver at para. 483 of her reasons: In considering whether the dip in the road constituted a state of non-repair, I consider the following factors: the measurements of the length and depth of the dip, including the expert evidence that I accept (primarily that of Mr. Bigelow in terms of his survey, and Mr. Malone); the photos of the dip (primarily those taken by Mr. Bigelow, Mr. Morden, and Mr. Harris’ sister); the qualitative evidence of witnesses about driving over the dip, in particular the civilian witnesses and the police drive-throughs; the absence of an accident history at that location; and Mr. Harris’ manner of driving on the evening of the collision, including his excessive speed, and his distraction. [8] The trial judge then analyzed all of the factors other than Mr. Harris’ manner of driving. This included evidence that driving over the dip at and over the speed limit did not create problems. She concluded, at para. 495 of her reasons, on the basis of those factors that the road was not in a state of non-repair. She stated, “[t]aking these factors together, I find that the plaintiffs have failed to persuade me on a balance of probabilities that the dip in the road constituted a state of non-repair. I am not persuaded that the dip posed an unreasonable risk to an ordinary reasonable driver.” There was ample evidence to support this, including the qualitative evidence of witnesses who live in the area and knew the dip, the agreed fact that there had been no prior collisions identified at this site attributable to the depression since 1993, police evidence of “runs” conducted over the dip at various speeds up to 120 km per hour, applicable guidelines regarding road depressions, as well as guidelines regarding signage for road hazards. [9] Only after so concluding did the trial judge turn to Mr. Harris’ driving, and how his manner of driving related to whether the road was in a state of non-repair such as to create a risk to the ordinary reasonable driver. She made a finding of fact that Mr. Harris was driving 100 km per hour when he began to cross the dip, and that he was distracted as he had no hands on the wheel, having just opened a pop bottle. He was not an ordinary reasonable driver. [10] We do not accept the premise that, because the trial judge considered Mr. Harris’ manner of driving, she conflated the analysis. She did not reason that, because he was driving in a manner that was not that of an ordinary reasonable driver, the road was not in a state of non-repair. She began her analysis of this issue by setting out the Fordham test and focusing on the question of whether the dip in the road constituted a state of non-repair. Having found that it was not a risk to the ordinary reasonable driver, she considered Mr. Harris’ driving, and found that he was not driving as an ordinary reasonable driver, which was consistent with her finding on the state of the road. Had she found that Mr. Harris’ manner of driving was that of the ordinary reasonable driver, and an accident had still occurred, she would have had to reconsider whether the road posed a hazard to the ordinary reasonable driver. [11] We see no error in taking the manner of Mr. Harris’ driving into account as a part of the trial judge’s consideration of whether the road was in a state of non-repair. Read in context, this was simply one factor considered. [12] Nor do we do agree that the trial judge erred by adopting too low a standard (100 km) for conduct taking a driver beyond the scope of an ordinary reasonable driver. The appellants argue that this finding was unreasonable on the basis that a significant percentage of drivers travel the same stretch of road at speeds exceeding 90 km an hour and that this effectively immunizes the municipality from liability pursuant to s. 44 of the Act. [13] The trial judge found that the ordinary reasonable driver would not exceed the speed of 100 km per hour on that stretch of road. This was a finding of fact that she reached after a careful review of the evidence. We see no basis for interfering with this finding. [14] The appeal is dismissed. Costs are payable by the appellants to the respondent Durham in the amount of $40,000 inclusive of HST and disbursements. “Janet Simmons J.A.” “A. Harvison Young J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Turner, 2022 ONCA 180 DATE: 20220301 DOCKET: C68105 Tulloch, Huscroft and Miller JJ.A. BETWEEN Her Majesty the Queen Respondent and Jerome Turner Appellant Richard Litkowski, for the appellant Linda Shin, for the respondent Heard: February 22, 2022 by video conference On appeal from the conviction entered on October 31, 2019, and the sentence imposed on February 21, 2020 by Justice Susanne Boucher of the Superior Court of Justice, sitting with a jury. REASONS FOR DECISION [1] The appellant was found guilty following trial by jury on five counts of armed robbery arising out of the robbery of several convenience stores. He appeals conviction and sentence. [2] The appeal is dismissed for the reasons that follow. Background [3] The robberies occurred within a twelve-day period in 2017. All the robberies were committed by two people wearing face coverings, gloves, and hoodies. The taller of the two robbers threatened the clerk with a knife, while the shorter of the two took the money and goods. [4] After the fifth robbery, the police discovered a black Acura that matched the description of the car seen at the location of the fourth robbery. Items inside the car appeared connected to the robberies. The police seized the car and impounded it. They determined that the car belonged to Gornes Gittens, who was arrested shortly afterwards, and subsequently pleaded guilty to all five robberies. Cell phone records revealed calls and messages between the appellant and Gittens before and after two of the robberies. Personal items inside the car had the appellant’s DNA on them, and there was an ID with his personal information, including his name, Jerome Turner. [5] The sole issue at trial was the identity of the taller perpetrator. [6] The appellant raises several issues on appeal. We address each of them in turn. Similar fact ruling [7] The trial judge granted the Crown’s application to use the similar fact evidence across counts to prove identity. [8] The appellant argues that the trial judge erred in applying the test set out by the Supreme Court in R. v. Perrier , 2004 SCC 56, [2004] 3 S.C.R. 228. The appellant raises a number of dissimilarities between the robberies and submits that the facts common to the robberies were not sufficiently distinctive to suggest that the perpetrators were the same two individuals each time. He argues that the composition of the perpetrators was not always constant and one or more other persons could have been involved. [9] We disagree. [10] The trial judge carefully considered the similarities and differences. She found that both the general circumstantial and specific individualized factors established that it was highly likely that the same two people performed the individualized roles in committing all five robberies. [11] All of the robberies occurred within a twelve-day timespan in convenience stores late at night, in the southwestern part of the Greater Toronto/Hamilton area. The robbers always wore gloves, face coverings, and hoodies. The trial judge acknowledged that these factors would be meaningless on their own, but when considered with the specific factors, the general circumstantial factors were part of the unifying considerations supporting the probability that the same two individuals were involved in each robbery. The specific similarities were striking and included the following: · Every robbery was a two-person job; · The shorter person and the taller person played the same roles in each of the robberies; · The shorter person had a distinctive posture; · The shorter person entered each location after the taller person and acted as the bag man in every robbery; · The taller person controlled the store clerk and brandished the knife in every robbery; · The taller person had a distinctive posture; · The taller person performed a signature move in jumping the counter; and · The shorter person and the taller person wore clothing of the same size, shape, colour, and style in all of the robberies. [12] The trial judge considered the dissimilarities but concluded that they did not detract from the cogency of the similarities to any significant degree. Her conclusion that it was highly likely that the same two people committed all five robberies is reasonable and amply supported by the record. [13] The trial judge properly went on to conclude that there was evidence linking the appellant to the similar fact evidence, as required by Perrier . Among other things, the evidence linking the appellant included the appellant’s DNA on a blue rubber glove used in two of the robberies and found in the black Acura, which was identified as the getaway vehicle; video evidence from one of the robberies; and text messages placing the accused with Gittens at the relevant times or dates for the offences. [14] Finally, the trial judge considered the potential prejudice to the appellant and concluded that it was outweighed by the high degree of probative value she found in the evidence. Her analysis is clear and thorough and there is no basis for this court to interfere. The similar fact application was properly granted. We see no errors in the trial judge’s instructions to the jury concerning the use of the similar fact evidence. Post-offence conduct [15] The appellant argues that a text message sent from the appellant’s phone to Gittens shortly after Gittens’s arrest should not have been admitted as post-offence conduct evidence from which guilt could be inferred, because there was no independent evidence of fabrication. In that text, the appellant expressed concern that Gittens’s car had been stolen and said that he spent $55 on a cab to get home as a result of the theft. [16] There is no merit to this argument. [17] There was ample evidence of fabrication, and the trial judge properly applied the law in R. v. O’Connor (2002), 62 O.R. (3d) 263 (Ont. C.A.). This included evidence of a ten-minute phone call from Gittens to the appellant after his car had been seized by the police, and before Gittens reported that the car had been stolen. A subsequent phone call by Gittens to the appellant, followed by the arrest of Gittens, preceded the appellant’s text message to Gittens expressing concern that his car had been stolen. These were all circumstances surrounding the appellant’s text that afforded independent evidence of fabrication. The trial judge explained why it did not matter that the text was sent to Gittens rather than to the police. It was open to the jury to conclude that the appellant had an interest in the theft narrative because the car contained inculpatory evidence and fit the description of the car seen leaving the scene of the fourth robbery. [18] We see no error in the trial judge’s instructions to the jury on this point. Section 8 rulings [19] The trial judge made two s. 8 rulings. In the first, she ruled that a warrantless search of Gittens’s cell phone violated the appellant’s s. 8 rights and excluded two pieces of evidence as a result: the appellant’s contact information, and a statement from the appellant in which he told the police that Gittens picked him up, that they went to his sister’s house, that Gittens’s car was stolen, and that he had to take a cab home. This ruling is not challenged on appeal, but it informs the second ruling. [20] The appellant made a second s. 8 application to exclude his subscriber information, text messages and cellphone tower information, all of which was obtained from Gittens’s cellphone pursuant to a production order. The trial judge excised references to the search of Gittens’s cellphone and references naming the appellant as “Bounty”, but otherwise dismissed the application. [21] The appellant argues that the trial judge’s approach to excision was too narrow and that subsequent investigative steps taken by the police that yielded additional information were inextricably linked to the initial search of Gittens’s phone, which formed the basis for the first s. 8 ruling finding a breach. We disagree. [22] The court’s task on appeal is to determine whether the trial judge could have issued the production order, not whether this court would have done so. The trial judge acceded to most of the appellant’s requested excisions from the ITO and fully explained her reasons for denying the appellant’s other requests. In the absence of an error in principle, her decision is entitled to deference. We see no such error. The trial judge went on to conclude that, in the event she was wrong, the evidence should not be excluded under s. 24(2). We note that there is no challenge to her decision in this regard. Sentence [23] The appellant argues that his sentence – 21 months on each count less pre-trial custody – was too harsh. There is no basis to impugn the sentence in this case. The trial judge did not err in law or principle, nor can it be said that the sentence imposed was demonstrably unfit. On the contrary, in light of the appellant’s previous six-year sentence for ten similar robberies and the commission of the first of these offences only three days following the end of his parole period, the sentence imposed was at the low end of the range. Conclusion [24] The appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed. “M. Tulloch J.A.” “Grant Huscroft J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Urbancorp Toronto Management Inc. (Re), 2022 ONCA 181 DATE: 20220303 DOCKET: M52860 Strathy C.J.O., Roberts and Sossin JJ.A. In the Matter of the Companies’ Creditors Arrangement Act , R.S.C. 1985, c. C-36, as amended; And in the Matter of a Plan of Compromise or Arrangement of Urbancorp 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 Neil Rabinovitch and Kenneth Kraft, for the moving party, Guy Gissin, in his capacity as Foreign Representative of Urbancorp Inc. Robin B. Schwill, for the responding party, KSV Kofman Inc., in its capacity as Monitor Bobby Kofman, Noah Goldstein and Robert Harlang, for the responding party, KSV Restructuring Inc. Andrew Winton, for the responding party, Doreen Saskin Heard: in writing Motion for leave to appeal from the order of Chief Justice Geoffrey B. Morawetz of the Superior Court of Justice, dated September 16, 2021, with reasons at 2021 ONSC 5073. REASONS FOR DECISION [1] Pursuant to s. 13 of the Companies’ Creditors Arrangement Act , R.S.C. 1985, c. C-36 (the “ CCAA ”), the moving party, in his capacity as Foreign Representative of Urbancorp Inc., seeks leave to appeal from the distribution order of the Supervising Judge of the Superior Court of Justice (the “Supervising Judge”) dated September 16, 2021, authorizing the court-appointed Monitor of the applicants to make a distribution to King Towns North Inc. (“KTNI”). KTNI is the owner of certain lands known as the “Berm Lands” and the landlord under a lease of these lands to certain entities, described below. The Monitor does not join in the appeal. [2] Section 13 provides that any person dissatisfied with an order or decision made under the CCAA may appeal from the order or decision with leave. [3] In determining whether leave should be granted, this court considers whether: a. the proposed appeal is prima facie meritorious or frivolous; b. the points on the proposed appeal are of significance to the practice; c. the points on the proposed appeal are of significance to the action; and d. the proposed appeal will unduly hinder the progress of the action. See Stelco Inc. (Re) (2005), 75 O.R. (3d) 5 (C.A.), at para. 24; Nortel Networks Corporation (Re) , 2016 ONCA 332 , 130 O.R. (3d) 481, at para. 34, application for leave to appeal discontinued, [2016] S.C.C.A. No. 301; Timminco Limited (Re) , 2012 ONCA 552, 2 C.B.R. (6th) 332, at para. 2; DEL Equipment Inc. (Re) , 2020 ONCA 555, at para. 12. [4] Leave to appeal is granted sparingly and only where there are “serious and arguable grounds that are of real and significant interest to the parties”: Nortel Networks , at para. 34. Background [5] The facts are set out in detail in the reasons of the Supervising Judge. We summarize only those facts necessary to explain our decision. [6] CCAA proceedings of the Urbancorp group of companies (the “Urbancorp Group”) have been overseen by the Commercial List since 2016. In related proceedings, Urbancorp Renewable Power Inc. (“URPI”) has been in receivership since 2018. The Supervising Judge has been case managing both proceedings since 2019. Urbancorp’s Geothermal Assets [7] The Urbancorp Group owned certain assets, described as the “Geothermal Assets”, located in four condominium buildings in Toronto. These assets provided heating and air conditioning to each condominium and included, among other things, assets located within the condominium building itself, below-ground wells to supply water to the heating and air conditioning systems, supply agreements with the various condominium corporations and a management agreement between the manager of the Geothermal Assets and the owners of those assets. [8] In the course of these proceedings, the Geothermal Assets pertaining to three of the condominiums were sold to Enwave Geo Communities LP (“Enwave”) for $24 million. The Bridge Geothermal Assets [9] The assets at issue before the Supervising Judge (the “Bridge Geothermal Assets”) pertained to one of those condominiums, referred to as “Bridge”, located at 38 Joe Shuster Way in Toronto. At the time of the motion before the Supervising Judge, there was approximately $7.7 million available for distribution to stakeholders in relation to the Bridge Geothermal Assets. KTNI’s claim was one of seven claims against those funds. The Monitor admitted six claims totaling $5.086 million, but disallowed KTNI’s claim of $5.875 million. As noted above, the Supervising Judge rejected the Monitor’s disallowance and allowed KTNI’s claim. The Berm Lands [10] In the case of the Bridge Geothermal Assets, the majority of the wells were located on a parcel of land adjacent to the Bridge condominium, referred to as the Berm Lands. KTNI was the owner of the Berm Lands. The Berm Lease [11] Pursuant to a lease dated July 10, 2010 (the “Berm Lease”), the Berm Lands were leased by KTNI jointly to Vestaco Homes Inc. (“Vestaco Homes”), an Urbancorp-related entity which owned the Bridge Geothermal Assets, and URPI, which was the manager of the Geothermal Assets. The Berm Lease was set to expire on July 9, 2060, with provision for renewals, making its term consistent with the relevant geothermal energy supply agreement. [12] All parties to the Berm Lease – KTNI as landlord and Vestaco Homes and URPI as tenants – were beneficially owned or controlled by the Saskin family. Alan Saskin signed the lease on behalf of each party. Pursuant to a declaration of trust dated December 27, 2012, KTNI is declared to be holding all of its interests in the Berm Lands in trust for Urbancorp Management Inc. (“UMI”). The Saskin Family Trust is considered to be the sole shareholder of UMI. Doreen Saskin, Alan Saskin’s spouse, claims to be a secured creditor of UMI for approximately $2.8 million. [13] The tenants’ interest in the Berm Lease was one of the assets sold to Enwave. Enwave allocated a value of $2.049 million to the Berm Lease. The Supervising Judge found that this was an appropriate valuation. [14] The Berm Lease initially provided for an annual rent of $200,000, payable to KTNI. In 2015, Urbancorp Inc. was in the process of raising funds from the issuance of bonds in Israel. There was evidence that in order to increase the value of the Geothermal Assets for the purpose of the bond issuance, Alan Saskin amended the Berm Lease to provide a rental of $100 per annum, rather than $200,000, because a payment of rent to a related company outside the bond structure would reduce the net income and the net value of the Bridge geothermal system, made up of the Bridge Geothermal Assets. [1] [15] It was not disputed that $100 per annum was not a market rent for the Berm Lease. However, the Berm Lease provided that the lease could not be transferred or assigned without the consent of the landlord, KTNI. The effect was that a tenant that was not controlled or beneficially owned by the Saskin family could not benefit from a nominal rent at the expense of a Saskin-related landlord. [16] This brings us to the provision of the Berm Lease, referred to below as the “Transfer Provision”, which is at the heart of this dispute: 13.4(e) Where the Transferee pays or gives to the Transferor money or other value that is reasonably attributable to the desirability of the location of the Leased Premises or to leasehold improvements that are owned by the Landlord or for which the Landlord has paid in whole or in part, then at the Landlord’s option, the Transferor will pay to the Landlord such money or other value in addition to all Rent payable under this lease and such amounts shall be deemed to be further Additional Rent. [17] The effect of the Transfer Provision is that on a transfer of the lease, KTNI is entitled to the “value” of the lease. Doreen Saskin contended that the effect of this provision in the circumstances is that any amount of the proceeds of sale of the Geothermal Assets to Enwave that are attributable to the transfer of the Berm Lease should be allocated to KTNI. The Sale of the Bridge Geothermal Assets to Enwave [18] In December 2020, over the objection of KTNI, the Supervising Judge approved the sale of the Bridge Geothermal Assets to Enwave. The order provided that the assignment was free of any payment obligations to KTNI that might arise pursuant to s. 13.4 of the Berm Lease. The sale order also provided that the allocation of the proceeds of sale was to be determined at a later date. As noted earlier, all claims against the Bridge Geothermal Assets, other than those related to the Berm Lease, have been resolved. [19] The Monitor disallowed KTNI’s claim to a portion of the proceeds of sale of the Bridge Geothermal Assets to Enwave, giving the following reasons: The Berm Lease is an asset of Vestaco Homes and URPI, as tenants, to the extent it provides for under market rent. The Berm Provision has the effect of stripping this value away from Vestaco Homes and URPI for no consideration. While this would be of little concern if all parties were related parties and solvent, the fact is that Vestaco Homes and URPI are now insolvent and subject to CCAA and receivership proceedings, respectively. Accordingly, in the Court Officer’s view, a clause set up between related parties to manage inter-group asset allocations and tax consequences should not be enforceable under the circumstances as a matter of equity and fairness when doing so would deprive the estates of value that they possessed on the filing date, for no consideration, with the consequential beneficiary being the sole officer and director of the Urbancorp Group, Alan Saskin, or members of his family. The Court Officer believes that URPI was made a tenant under the Berm Lease as a matter of pure convenience as it was the manager of the Bridge Geothermal Assets for the benefit of Vestaco Homes, and the party who would be exercising access rights for repairs and maintenance. Commercially, as Vestaco Homes is the owner of the Bridge Geothermal Assets, which includes the geothermal piping located on the Berm Lands, it makes sense that the economic value of the Berm Lease would be allocated fully to it. [20] The Monitor moved before the Supervising Judge for directions concerning the distribution of the proceeds of the sale of the Geothermal Assets. The only contested issue related to which party was entitled to the funds reserved ($2.8 million) in relation to the Berm Lease. The Monitor recommended that the amount allocated to the Berm Lease be for the benefit of the tenant Vestaco Homes and that KTNI’s claim be disallowed. KTNI opposed this recommended proposal. The Decision of the Supervising Judge [21] The central issue on the motion below was the interpretation and application of the Transfer Provision of the “Berm Lease”, and specifically whether the provision offended either the “ pari passu ” rule or the “anti-deprivation” rule, both of which were discussed and explained in the decision of the Supreme Court of Canada in Chandos Construction Ltd. v. Deloitte Restructuring Inc. , 2020 SCC 25, 449 D.L.R. (4th) 293. [22] The Monitor, supported by the Foreign Representative of Urbancorp Inc., took the position that Vestaco Homes, one of the tenants, should receive the amount Enwave attributed to the Berm Lease. KTNI, supported by Doreen Saskin, opposed this proposal. [23] The Supervising Judge described the Monitor’s position as follows, at para. 17: The Monitor is of the view that the Berm Lease is an asset of Vestaco Homes and URPI, as Tenants, to the extent it provides for under market rent. The Berm Provision has the effect of stripping this value away from Vestaco Homes and URPI for no consideration. The Monitor is of the view that a clause set up between related parties to manage inter-group asset allocations and tax consequences should not be enforceable under the circumstances as a matter of equity and fairness when doing so would deprive the estates of value that they possessed on the filing date, for no consideration, with the consequential beneficiary being the sole officer and director of the Urbancorp group, Alan Saskin, or members of his family. [24] The Supervising Judge rejected evidence tendered by Urbancorp Inc. concerning the drafting of the Berm Lease, the purpose of s. 13.4 and the decision to reduce the annual rent. He found that the affiant, Mr. Mandell, had failed to disclose a cooperation and immunity agreement he had made with the Foreign Representative and that his evidence was unreliable and would be disregarded. [25] As a result, the Supervising Judge based his determination of the issues on the documentary record. Applying the principles of contract interpretation (referring to Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust , 2007 ONCA 205, 85 O.R. (3d) 254, at para. 24), he accepted the submission of Doreen Saskin concerning the interpretation of the Transfer Provision and found that, as a matter of contract interpretation, the portion of the distribution funds allocated to the Berm Lease was to be transferred to KTNI. He observed, at paras. 55-57: Counsel to Ms. Saskin submits that the starting point for the interpretation of the provision is the plain language in s. 13.4(e) of the Berm Lease, which expressly states that the Transferor is required to pay the proceeds of transfer of the lease to the Landlord. Counsel further submits that this provision needs to be read in the context of the objective factual matrix of the terms of the Berm Lease as a whole. This is a long-term lease between non-arm’s length parties for nominal rent and there is no dispute that the rent does not reflect the market value of the leasehold interest – which is precisely why EGC allocated $2 million in value to the lease. EGC paid URPI that sum to “buy” the right to pay $100 annual rent to KTNI for so long as the Berm Lands were being used to generate geothermal energy. Accordingly, this is precisely the circumstance contemplated by s. 13.4(e) of the Berm Lease, and there is a contractual obligation for the portion of the Distribution Funds allocated to the lease to be transferred to KTNI. I have been persuaded by the submissions of counsel to [Ms.] Saskin. In my view, the plain language of s. 13.4(e) of the Berm Lease establishes the basis for the claim of KTNI. [26] The Supervising Judge then turned to the Monitor’s submission that the Transfer Provision should be invalidated under either the pari passu rule or the anti-deprivation rule. The pari passu rule prohibits contractual provisions that allow creditors to obtain more than their fair share on the insolvency of the counterparty. The anti-deprivation rule, he said, “protects third party creditors, by rendering void contractual provisions that, upon insolvency, remove value that would otherwise have been available to a debtor’s creditors from their reach”: referring to Chandos . [27] In rejecting this submission, the Supervising Judge referred to and adopted the submissions made by counsel for Doreen Saskin. After setting out those submissions, the Supervising Judge observed, with respect to the pari passu rule, at para. 65: In my view, the submissions put forth by Doreen Saskin on this issue are a complete answer to the arguments raised by the Monitor. Specifically, the Berm Lease makes clear that Vestaco does not have an interest in the transfer value of the lease – that value was retained by the landlord, KTNI in accordance with s. 13.4(e). The Berm Lease reserved the transfer value to KTNI and, accordingly, the pari passu rule, which invalidates contractual terms that prefer one creditor ahead of the others, does not come into play on these facts, because KTNI’s interest in the Distribution Funds does not alter any scheme of distribution. [28] With respect to the anti-deprivation rule, counsel for Doreen Saskin submitted that “the anti-deprivation rule requires as a precondition that the impugned term of a contract is triggered by an event of insolvency or bankruptcy.” Counsel noted that the provision in the Berm Lease did not mention bankruptcy or insolvency and was “agnostic” as to whether the transfer occurs in the insolvency context or not. The Supervising Judge agreed, at para. 66: The anti-deprivation rule does not apply as the relevant clause does not mention insolvency or bankruptcy. Rather, it applies to all transfers of the lease. The clause is triggered by the transfer of the lease. [29] The Supervising Judge concluded that s. 13.4(e) of the Berm Lease was not invalidated under either the pari passu rule or the anti-deprivation rule. [30] The Supervising Judge therefore ordered the Monitor to distribute $2.049 million to KTNI from the funds available for distribution, with the proviso that there be no distribution to Doreen Saskin until such time as her claim in the bankruptcy of UMI, KTNI’s parent, had been fully and finally accepted by the trustee in bankruptcy of UMI. The Moving Party’s Submissions [31] The moving party submits that the proposed appeal is meritorious and is significant to the parties and the profession. He submits that it raises an issue of significance to bankruptcy practice concerning the application of the decision of the Supreme Court of Canada in Chandos , which he submits should be seen as a statement of first principles, rather than as a complete code. He submits that the practice needs to know whether the anti-deprivation rule can be excluded by drafting a provision that omits reference to the words “bankruptcy” or “insolvency”. [32] If granted leave to appeal, the moving party proposes to address the following issues: a. Whether the anti-deprivation rule applies in circumstances where an impugned provision is not expressly triggered by an event of insolvency, but the effect of the clause is to “strip value” from the insolvent debtor’s estate. The Supervising Judge elevated form over substance in the application of Chandos by finding that the anti-deprivation rule does not apply to provisions that do not expressly reference an event of insolvency. He failed to consider that, practically speaking, the only scenario in which s. 13.4(e) could apply would be an insolvency or bankruptcy. While the Supreme Court in Chandos held that the anti-deprivation rule does not apply to a provision that is not triggered by an event other than insolvency or bankruptcy, it did not find that the rule could be avoided by “clever drafting” where, as a practical matter, it could only apply in bankruptcy or insolvency; b. Whether the Supervising Judge failed to determine whether the value attributed to the Berm Lease is “reasonably attributable to the desirability of the location of the Leased Premises” within the meaning of the Transfer Provision; and c. Whether the Supervising Judge erred by failing to consider the evidence of both Mr. Mandell and Mr. Saskin concerning the factual matrix of the amendment of the lease. [33] The moving party submits that granting leave to appeal will not unduly delay the insolvency proceedings, which have been continuing since 2016. The asset has been monetized but there will be no distribution to Doreen Saskin until such time as her claim against UMI has been accepted by UMI’s trustee in bankruptcy. Discussion [34] The errors identified by the moving party are, at their highest, mixed questions of fact and law and will not be set aside in the absence of an extricable error of law or a palpable and overriding error in the assessment of the evidence. [35] In our view, the moving party has not satisfied the first branch of the test for leave. None of the alleged errors raise a prima facie meritorious issue for appeal. [36] As to the first proposed ground of appeal, we do not accept the moving party’s submission that the Supervising Judge erred in his application of Chandos . It bears noting, as the Supreme Court did, that the anti-deprivation rule has relatively ancient roots in Canadian law, dating to Watson v. Mason (1876), 22 Gr. 574 (Ont. C.A.) and Hobbs v. The Ontario Loan and Debenture Co. , (1890) 18 S.C.R. 483. The rule was referred to by Blair J., as he then was, in Canadian Imperial Bank of Commerce v. Bramalea Inc. (1995), 33 O.R. (3d) 692 (Gen. Div.), in which he adopted the following summary of the rule, at p. 694: A provision in an agreement which provides that upon an insolvency, value is removed from the reach of the insolvent person’s creditors to which would otherwise have been available to them, and places that value in the hands of others – presumably in a contract other than a valid secured transaction – is void on the basis that it violates the public policy of equitable and fair distribution amongst unsecured creditors in insolvency situations. [37] He added, at p. 695: I am satisfied that the principle which underlies the notion is the deprivation of the creditors’ interests in a bankruptcy as a result of a contractual provision that is triggered only in the event of bankruptcy or insolvency and which results in property that would otherwise be available to the bankrupt and the creditors, or its value, being diverted to which is in effect, a preferred unsecured creditor. [Citations omitted.] [38] In Chandos , the majority confirmed that the anti-deprivation rule exists in Canadian law and has not been judicially or statutorily eliminated. Referring to Bramalea , it described the rule as follows, at para. 31: As Bramalea described, the anti-deprivation rule renders void contractual provisions that, upon insolvency , remove value that would otherwise have been available to an insolvent person's creditors from their reach. This test has two parts: first, the relevant clause must be triggered by an event of insolvency or bankruptcy ; and second, the effect of the clause must be to remove value from the insolvent's estate. This has been rightly called an effects-based test. [Emphasis added.] [39] After stating that the focus of inquiry is on the effects of the provision rather than the intention of the parties in drafting it, the majority in the Supreme Court stated, at para. 35: The effects-based rule, as it stands, is clear. Courts (and commercial parties) do not need to look to anything other than the trigger for the clause and its effect . The effect of a clause can be far more readily determined in the event of bankruptcy than the intention of contracting parties. An effects-based approach also provides parties with the confidence that contractual agreements, absent a provision providing for the withdrawal of assets upon bankruptcy or insolvency, will generally be upheld . [Emphasis added.] [40] The Court added, at para. 40: All that said, we should recognize that there are nuances with the anti-deprivation rule as it stands. For example, contractual provisions that eliminate property from the estate, but do not eliminate value, may not offend the anti-deprivation rule (see Belmont , at para. 160, per Lord Mance; Borland’s Trustee v. Steel Brothers & Co. Limited , [1901] 1 Ch. 279; see also Coopérants ). Nor do provisions whose effect is triggered by an event other than insolvency or bankruptcy . Moreover, the anti-deprivation rule is not offended when commercial parties protect themselves against a contracting counterparty's insolvency by taking security, acquiring insurance, or requiring a third-party guarantee. [Emphasis added.] [41] The emphasized portions of the above extracts make it clear that the focus of the concern is (a) whether the provision in question is “triggered” by an event of bankruptcy or insolvency and (b) whether the effect of the contractual provision is to deprive the estate of assets upon bankruptcy : see Lloyd W. Houlden, Geoffrey B. Morawetz & Janis P. Sarra, The 2021 Annotated Bankruptcy and Insolvency Act (Toronto: Thomson Reuters, 2021), at F§108. The Supreme Court in Chandos was clearly aware of the commercial importance of the issue when it stated that “contractual agreements, absent a provision providing for the withdrawal of assets upon bankruptcy or insolvency, will generally be upheld.” [42] As counsel for Doreen Saskin submitted before the Supervising Judge and reiterated in their written submissions, the Supreme Court confirmed in Chandos that the anti-deprivation rule does not apply to provisions the effect of which is not triggered by bankruptcy or insolvency: Chandos , at para. 40. The Transfer Provision was triggered by the transfer of the lease, not the insolvency of the Urbancorp Group and its affiliates. [43] We do not accept the submission of the moving party that the Supervising Judge elevated form over substance because the only circumstance in which the Transfer Provision could apply was an insolvency proceeding. In confirming an effects-based approach, as opposed to an intention-based (or commercial reasonableness) test, the Supreme Court emphasized the need for commercial certainty, at para. 35: The effects-based rule, as it stands, is clear. Courts (and commercial parties) do not need to look to anything other than the trigger for the clause and its effect . The effect of a clause can be far more readily determined in the event of bankruptcy than the intention of contracting parties. An effects-based approach also provides parties with the confidence that contractual agreements, absent a provision providing for the withdrawal of assets upon bankruptcy or insolvency, will generally be upheld . [Emphasis added.] [44] It cannot possibly be said, in the case of a 50-year lease, with provision for renewals, that the Transfer Provision could only ever apply in the case of insolvency or bankruptcy. [45] The interpretation of the Transfer Provision and the application of the anti-deprivation rule to the circumstances of this case is a question of mixed fact and law and the Supervising Judge’s decision in that regard is entitled to deference. We therefore see little merit to the proposed appeal on the first ground. [46] Nor do the remaining proposed grounds raise prima facie meritorious issues. These grounds relate to the Supervising Judge’s interpretation of the agreement, including his assessment of the utility of the factual matrix in the interpretative exercise and his assessment of the evidence. Again, his interpretation is entitled to deference. While the Supervising Judge did not expressly consider whether the value of the Berm Lease was reasonably attributable to the location of the premises, it can be inferred that he did so. The proximity of the Berm Lands to the Bridge condominium, served by the wells on those lands, was undoubtedly a significant factor of its value. [47] In our view, none of the proposed grounds for appeal can be described as matters of importance to the practice. In the case of the application of the anti-deprivation rule, Chandos quite clearly lays out the framework, at para. 40: a contractual provision does not offend the anti-deprivation rule so long as it can be triggered by an event other than insolvency or bankruptcy. Further, the application of the rule will necessarily be fact-specific and dependent upon the interpretation of the particular terms of the contract in each individual case. For this reason, alleged interpretive errors by the Supervising Judge will be of limited assistance in future cases. [48] While the appeal may be of significance to this action, standing alone, this factor is insufficient to warrant granting leave to appeal in this case: Nortel Networks , at para. 95. [49] Having regard to these conclusions, the proposed appeal would unduly hinder the completion of the proceedings, which have been underway for nearly six years and are nearing completion. The allocation of the proceeds of the sale of the Bridge Geothermal Assets is one of the final steps. [50] Finally, we note that having completed his contractual analysis in the absence of any extricable error of law or palpable and overriding error, the Supervising Judge was entitled to make a discretionary decision as to the distribution of the sale proceeds. As the Supreme Court of Canada has recently noted, supervising judges in CCAA proceedings are entitled to “broad discretion” and appellate courts must “exercise particular caution before interfering with orders made in accordance with that discretion”: Canada v. Canada North Group Inc. , 2021 SCC 30, 460 D.L.R. (4th) 309, at para. 22. Intervention is only appropriate where the judge has erred in principle or exercised their discretion unreasonably: Grant Forest Products Inc. v. The Toronto-Dominion Bank , 2015 ONCA 570, 387 D.L.R. (4th) 426, at para. 98; Laurentian University of Sudbury (Re) , 2021 ONCA 199, 87 C.B.R. (6th) 243, at paras. 19-20; 9354-9186 Québec inc. v. Callidus Capital Corp. , 2020 SCC 10, 78 C.B.R. (6th) 1, at paras. 53-54. We see no error in principle or unreasonable exercise of discretion in the making of the distribution order. Disposition [51] For these reasons, the motion for leave to appeal is dismissed. [52] If not otherwise resolved, the parties may address the costs of this motion by written submissions. The responding party shall file its submissions within 15 days of the release of these reasons. The moving party shall have 15 days to reply. The submissions shall not exceed three pages in length, excluding the costs outlines. “G.R. Strathy C.J.O.” “L.B. Roberts J.A.” “L. Sossin J.A.” SCHEDULE "A" LIST OF NON APPLICANT AFFILIATES Urbancorp Power Holdings Inc. Vestaco Homes Inc. Vestaco Investments Inc. 228 Queen’s 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. [1] For further clarity, Vestaco Homes was added as a party to the Berm Lease at the time it was amended in 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 complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Williams, 2022 ONCA 182 DATE: 20220302 DOCKET: C66489 Rouleau, Nordheimer and George JJ.A. BETWEEN Her Majesty the Queen Respondent and Kirk Williams Appellant Richard Litkowski and Myles Anevich, for the appellant Jessica Smith Joy, for the respondent Heard: March 1, 2022 by video conference On appeal from the sentence imposed on April 6, 2018 by Justice S. Casey Hill of the Superior Court of Justice, with reasons reported at 2018 ONSC 2030. REASONS FOR DECISION [1] Mr. Williams seeks leave to appeal his sentence in which he was designated as a dangerous offender and an indeterminate sentence was imposed. He submits that the sentencing judge erred in concluding that one of the statutory pathways to a dangerous offender designation was available in his case, and that the sentencing judge also erred in his consideration of the future harm that the appellant posed. The appellant asks that the dangerous offender designation be set aside and that he be designated as a long-term offender instead. Alternatively, if the dangerous offender designation remains, the appellant asks that a determinate sentence, followed by a long-term supervision order, be imposed. At the conclusion of the hearing, we granted leave to appeal sentence, but dismissed the appeal for reasons to follow. We now provide our reasons. [2] On April 11, 2016, the appellant pleaded guilty to sexual assault causing bodily harm and choking with intent to commit sexual assault against a 24-year‑old female. On April 6, 2018, he was designated a dangerous offender and sentenced to an indeterminate sentence. [3] The evidence on the dangerous offender hearing was extensive. It included expert reports from Dr. Scott Woodside and Dr. Julian Gojer, both forensic psychiatrists, as well as Dr. Milan Pomichalek, a psychologist. Dr. Ainslie Heasman, a psychologist who had previously treated the appellant at the Centre for Addiction and Mental Health (CAMH), also testified as a qualified expert in forensic psychology regarding the appellant’s previous treatment. Additionally, an employee of the Parole Board of Canada, a Parole Officer Supervisor, the appellant’s parole officer in 2012 and 2013, and the appellant’s probation officer from September 2013 until his arrest on these charges all testified. [4] Both Dr. Woodside and Dr. Gojer agreed that the appellant was a high-risk offender. The disagreement between the two experts was whether a course of medication, supplemented by high-intensity psychiatric treatment, could sufficiently reduce the appellant’s risk of re-offending. [5] The sentencing judge gave lengthy reasons for his conclusion. He dismissed the treatment plan as insufficient to adequately protect the public. He noted that the appellant’s “psychiatric disorders, life-long and fixed, are either untreatable or at best difficult to treat.” [6] The appellant raises three grounds of appeal. In considering these grounds, we are cognizant of the applicable standard of review, namely, that “review of a dangerous offender designation is more robust than on a ‘regular’ sentence appeal”: R. v. Sawyer , 2015 ONCA 602, 127 O.R. (3d) 686, at para. 26. Thus, “[c]ourts can review the imposition of an indeterminate sentence for legal error and reasonableness, but should defer to the factual and credibility findings of the trier of fact”: Sawyer , at para. 29. [7] First, the appellant contends that the sentencing judge erred in concluding that the Crown had satisfied three of the four pathways for a person to be designated as a dangerous offender beyond a reasonable doubt. We do not agree. The sentencing judge concluded that each of the three pathways under s. 753(1)(a)(i), s. 753(1)(a)(ii), and s. 753(1)(b) had been satisfied. He gave detailed reasons for his conclusions. We do not see any error in those reasons. The appellant has a criminal record involving 25 prior convictions, not including his youth offences. A number of these offences involved acts of violence, and five of them involved sexual offences. The sexual offences all involved especially vulnerable victims. The appellant’s argument that there is a material difference in the offences, for this purpose, between the prior convictions that involved children, and the predicate offences that involved a young adult, and that the sentencing judge applied too general a level of similarity in reaching his conclusion, is unpersuasive. Nor do we accept that a 12-year gap between the earlier offences and the predicate offences means that the behaviour is not persistent. On that point, one must be cognizant of the fact that the appellant spent much of those 12 years in custody. [8] Second, the appellant contends that the sentencing judge failed to consider, at the designation stage, the effect that the antiandrogen therapy and SSRI medication would have when considering s. 753(1)(b). Again, we do not agree. A fair reading of the sentencing judge’s reasons demonstrates that he was fully aware of the evidence regarding the impacts that these medical treatments might have and that he considered them throughout his analysis. The fact is that the sentencing judge was not satisfied that these medications would have the necessary effect in terms of curbing the appellant’s potential conduct. [9] The third ground of appeal somewhat mirrors the second. The appellant contends that the sentencing judge misapprehended the future risk of recidivism, and therefore treatment prospects, at the penalty phase. This argument again relies on the aforementioned medical treatment. With respect to that treatment, the sentencing judge noted that the two experts disagreed on its effectiveness. The sentencing judge also questioned the willingness of the appellant to take the medication on a constant basis. Given those facts, the sentencing judge concluded that there was not a reasonable possibility of control of the appellant in the community. The appellant has failed to show that that conclusion is an unreasonable one. [10] Ultimately, the sentencing judge concluded, at para. 293 of his reasons: In any event, on the evidence accepted by the court, based upon the history of the offender's sexual crimes, the enduring character of his psychiatric disorders, his high risk for sexual reoffence, and the evidence including the inability of the psychiatric opinions to confidently conclude that the offender's risk will be reduced to a tolerably safe level within the definite period of a determinate sentence and [long-term supervision order], the imposition of an indeterminate preventative sentence is necessary as no lesser measure will adequately protect the public against the offender committing a further serious sexual offence. [11] We agree with that conclusion. [12] For these reasons, leave to appeal sentence was granted but the appeal was dismissed. “Paul Rouleau J.A.” “I.V.B. Nordheimer J.A.” “J. George J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ching, 2022 ONCA 183 DATE: 20220302 DOCKET: C69224 Tulloch, Huscroft and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Willy Palmes Ching Appellant Jolene Hansell, for the appellant Benita Wassenaar, for the respondent Heard: February 25, 2022 by video conference On appeal from the sentence imposed on January 24, 2020 by Justice Leonard Ricchetti of the Superior Court of Justice, sitting with a jury. REASONS FOR DECISION [1] Following the break-up of his 30-year marriage, the appellant formed the intent and plan to kill his ex-wife, Maria Ching. Maria had moved out of the matrimonial home and into the home of her uncle, Ernesto Agsaulio. [2] On October 24, 2009, the appellant attended at Canadian Tire and purchased a hatchet and knife. The next day, October 25, 2009, he rented a car, drove to the Agsaulio home, parked a block away, and removed the safety cover from the hatchet. On arrival at the home, the appellant was in possession of the unsheathed hatchet and the knife. He insisted on seeing his wife. Mr. Agsaulio attended at the door and indicated to the appellant that his wife did not wish to see him. The appellant then forced his way into the home and attacked Mr. Agsaulio in front of his family and children, mortally wounding him. He died subsequently from his injuries. [3] At trial, the appellant was convicted of first-degree murder, but on appeal this court substituted a conviction for second-degree murder and remitted the matter to the sentencing judge to set the appropriate parole ineligibility period. The sentencing judge set parole ineligibility at 21 years. [4] The appellant seeks leave to appeal his sentence. He argues, first, that the sentencing judge erred in principle by finding the appellant’s moral blameworthiness for second-degree murder was akin to that of an offender convicted of first-degree murder. Second, the appellant argues that the sentencing judge made a palpable error in finding the appellant’s mental illness played no contributing role in the murder. The appellant submits that his parole ineligibility period should be set at 15 years. [5] We do not accept these arguments. [6] The sentencing judge found that the appellant killed his ex-wife’s uncle in the course of carrying out his plan to kill his ex-wife. Counsel agreed that there were no similar cases dealing with parole ineligibility in these circumstances. The sentencing judge concluded that the range was 10-22 years, with 25 years available in rare or exceptional cases. [7] The sentencing judge was required to determine the appellant’s moral blameworthiness in determining the appropriate sentence. This court’s conclusion that a second-degree murder conviction was warranted, rather than a first-degree murder conviction, did not fetter the sentencing judge’s discretion. [8] In the absence of an error in law or in principle that affected the sentence, a sentencing judge’s decision is entitled to deference unless the appellant establishes that it is demonstrably unfit: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089. We see no such error. [9] The sentencing judge considered the relevant factors, including the appellant’s purchase of a hatchet and knife and the rental of a car as part of a plan to kill his ex-wife. That plan was made in the context of a history of spousal abuse. The appellant forced his way into Mr. Agsaulio’s home and assaulted him with the hatchet and knife when Mr. Agsaulio tried to keep the appellant away from his ex-wife. In these circumstances, the sentencing judge was entitled to consider that the appellant’s moral blameworthiness was at the high end in second-degree murder cases. [10] The sentencing judge acknowledged that the appellant need only establish that mental illness caused or contributed to the murder in order for mental illness to be a mitigating factor. He considered the evidence of two defence psychiatrists who gave evidence at trial on the appellant’s capacity to form the specific intention to commit murder. In doing so, the trial judge acknowledged that the question of capacity was separate from and not determinative of whether or not there was a causal connection of mental illness to the murder. [11] The sentencing judge found that the psychiatric evidence had several shortcomings, including reliance on the appellant’s false statement that he had gone to the Agsaulio home to commit suicide rather than to kill his ex-wife. The sentencing judge noted, further, that neither psychiatrist opined on whether the appellant’s depression caused or contributed to the killing. He reviewed Dr. Glancy’s testimony at length, ultimately finding that it was not clear on the relevant point. He criticized Dr. Gojer’s testimony on the basis that he attempted to justify his opinion rather than impartially consider the evidence and relied on incorrect and incomplete information. [12] Ultimately, the sentencing judge concluded that the appellant had failed to establish that the murder was caused by or contributed to by his depression. That was his call to make, and we see no basis to interfere. [13] In summary, the appellant has not established that the sentencing judge erred in law or in principle. Although the sentence is at the high end of the range, in all of the circumstances it is not demonstrably unfit. [14] Accordingly, leave to appeal sentence is granted, but the appeal is dismissed. “M. Tulloch J.A.” “Grant Huscroft J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Ever Fresh Direct Foods Inc. v. Jamia Islamia Canada Ltd., 2022 ONCA 185 DATE: 20220307 DOCKET: C69254 Simmons, Harvison Young and Zarnett JJ.A. BETWEEN Ever Fresh Direct Foods Inc. Plaintiff (Appellant) and Jamia Islamia Canada Ltd. Defendant (Respondent) Haider Bahadur and Yingjun Huang, for the appellant Anser Farooq and Shivani Balcharan, for the respondent Heard: February 25, 2022 by video conference On appeal from the order of Justice Peter A. Daley of the Superior Court of Justice, dated February 19, 2021. REASONS FOR DECISION [1] We see no basis on which to interfere with the motion judge's order declining to restore this action to the trial list, dismissing it for delay and discharging a certificate of pending litigation registered by the appellant. [2] The proceeding was commenced by notice of application issued in October 2012 and was converted to an action at the request of the respondent in March 2013. The proceeding related to an alleged loan facility granted by the appellant to the respondent in 2008. After commencing the application, the appellant obtained a certificate of pending litigation in November 2012 and registered it against property owned by the respondent. The parties exchanged pleadings in August and September 2013. [3] The appellant never served an affidavit of documents [1] and made no attempt to schedule discoveries until November 2017. The respondent declined to participate in discoveries, which the appellant scheduled for March 2018, among other reasons because of an unpaid costs order in a related proceeding between the parties for over $56,000 and because the appellant had not served an affidavit of documents. [4] The appellant responded by setting the action down for trial in April 2018. However, it was struck from the trial list in August 2018 as it was not trial ready, including because the appellant still wished to conduct discoveries. The appellant first advised the respondent of its intention to move to restore the action to the trial list in May 2019, and proposed a discovery plan in July 2019, but did not arrange to proceed with a motion until September 2019. The appellant’s motion and the respondent’s cross-motion to dismiss for delay were originally scheduled for May 2020 but were not heard until November 30, 2020 because of the Covid-19 pandemic. [5] The motion judge found that, apart from the relatively brief delay caused by the pandemic, the delay in the prosecution of the action was entirely the appellant’s responsibility, that the appellant had provided no reasonable explanation for its delay in moving the action forward and that such delay was both inordinate and inexcusable. He also concluded that an inference of prejudice arose from the lengthy delay. He said, “there is more than a reasonable likelihood that given the passage of time and its impact on witnesses’ memories, and the lack of documentary and oral discoveries, there is a substantial risk that a fair trial of the issues at stake will not be possible.” [6] We see no error in the motion judge’s conclusions that responsibility for the delay lay with the appellant and that such delay was unexplained, inordinate and inexcusable. The appellant offered no explanation for the complete failure to take any steps to move the action forward between delivery of its statement of claim in August 2013 and November 2017 or for the delay between August 2018 through to May and then September 2019 after the action was struck from the trial list. Given the litigation history between the parties and the then existing delay, the motion judge was entitled to treat as reasonable the respondent’s refusal to participate in discoveries post-November 2017 based on the unpaid costs order in related proceedings and the appellant’s failure to serve an affidavit of documents. [7] Concerning prejudice, as we have said, the action related to an alleged loan facility arranged in 2008. The disputed issues included the validity of the original agreement. We reject the appellant’s arguments that the motion judge should have concluded that cross-examinations on affidavits that occurred in relation to converting the application to an action and an unserved affidavit of documents lacking a lawyer’s certificate prepared in November 2013 could somehow ensure trial fairness. Simply put, they were not an adequate substitute for a proper discovery process. We see no basis for interfering with the trial judge’s conclusion that the appellant’s delay jeopardized the likelihood of a fair trial. [8] Based on the foregoing reasons, the appeal is dismissed with costs to the respondent on a partial indemnity scale fixed in the amount of $10,000 inclusive of disbursements and applicable taxes. “Janet Simmons J.A.” “Harvison Young J.A.” “B. Zarnett J.A.” [1] An affidavit of documents lacking a lawyer’s certificate sworn in November 2013 by the president of the appellant was included in the appellant’s material on the underlying motions. No proper affidavit of documents has ever been served.

COURT OF APPEAL FOR ONTARIO CITATION: Thermal Exchange Service Inc. v. Metropolitan Toronto Condominium Corporation No. 1289, 2022 ONCA 186 DATE: 20220307 DOCKET: C68529 Doherty, Miller and Sossin JJ.A. BETWEEN Thermal Exchange Service Inc. Plaintiff (Respondent) and Metropolitan Toronto Condominium Corporation No. 1289 Defendant (Appellant) Robert B. Cohen, for the appellant Neal H. Roth, for the respondent Heard: October 25, 2021 by video conference On appeal from the judgment of Justice Andra Pollak of the Superior Court of Justice, dated July 7, 2020, with reasons reported at 2020 ONSC 2977. REASONS FOR DECISION [1] This appeal concerns the application of s. 5(1)(a)(iv) of the Limitations Act , 2002 , S.O. 2002, c. 24, Sched. B, and specifically, when the respondent Thermal Exchange Service Inc. (“Thermal Exchange”) knew that a proceeding would be an appropriate means to seek to remedy a loss resulting from the appellant Metropolitan Condo Corp.’s (the “Condo Corp”) non-payment of its invoices. It is a question that can only be answered in the specific context of the parties’ legal relationship and their business dealings. [2] From 2002 to 2015, Thermal Exchange serviced the HVAC units in the Condo Corp.’s building at 168 Simcoe St. in Toronto. The Condo Corp. does not dispute that the work was done at its request, or that it was done satisfactorily. Neither does it dispute that many of Thermal Exchange’s invoices were not paid. Its sole defence at trial was that Thermal Exchange brought this action out of time, and the action is now barred by the Limitations Act . [3] Thermal Exchange’s understanding was that it was contracting with the Condo Corp. rather than the individual unit owners. At trial, the Condo Corp. conceded the contractual relationship, and accepted that but for the limitations defence, it would be liable to pay the invoices. However, at all relevant times the Condo Corp.’s property manager operated on a different understanding, which was only communicated to Thermal Exchange in 2016: that the Condo Corp. was not ultimately liable for paying the invoices, and was only obligated to pay if and when it was able to collect payment from the unit owners on whose behalf the work was done. [4] In August 2017, Thermal Exchange brought the action. [5] Following a hybrid summary trial, the trial judge held that Thermal Exchange had brought the action as soon as it knew that an action would be an appropriate means to remedy the Condo Corp.’s non-payment, even though many of the unpaid invoices had been issued many years before the action was brought – some going back as far as 2008. The action was therefore not barred by the Limitations Act . The trial judge found the Condo Corp. owed $86,055.49 to Thermal Exchange, arising from invoices issued between 2008 and 2015. For the reasons that follow, the Condo Corp.’s appeal is dismissed. Background [6] Thermal Exchange received work orders from the Condo Corp.’s property manager, Helen Da Ponte, performed the work she requested, and invoiced the Condo Corp. Each of Thermal Exchange’s invoices stated that payment was due within 30 days from the date of the invoice. However, the Condo Corp. typically made payment much later than this – often 300 days later. Thermal Exchange continued to provide services on request and tender fresh invoices. [7] The trial judge found that Thermal Exchange was operating on the basis that the Condo Corp. had “one running account, and whenever funds were received, they were credited to that one account”. This finding is central to the trial judge’s conclusion. The Condo Corp. challenges the finding as a palpable error. As we explain below, we do not agree. [8] There was conflicting evidence as to Thermal Exchange’s billing practices. From 2008 forward, Thermal Exchange stopped sending individual invoices to the Condo Corp. for each work order, and began sending a single, semi-annual “batch invoice”. Mr. Pintaric, the president of Thermal Exchange, testified this was done at the request of the property manager, Ms. Da Ponte. Ms. Da Ponte answered that not only was this not at her request, it created additional work for her, as it required her to assign the correct work orders to their respective unit owners. The trial judge made no findings as to who initiated the change in billing practice, but as stated above, found that the indebtedness of the Condo Corp. was in the nature of a running account. [9] At trial, Mr. Pintaric and Ms. Da Ponte each testified as to different understandings of how the Condo Corp. processed the invoices. Mr. Pintaric’s assumption was that the Condo Corp. paid the invoices out of its operating budget, and then sought reimbursement from the unit owners on whose behalf the work was done. But he had no knowledge of the Condo Corp.’s internal affairs. Ms. Da Ponte’s evidence was that the Condo Corp. received the invoices from Thermal Exchange and in turn invoiced the owner of the unit for which the work had been done. If the Condo Corp. received payment from the unit owner, it would in turn pay Thermal Exchange; if it didn’t, it wouldn’t. [10] As mentioned earlier, Ms. Da Ponte’s understanding of the nature of the Condo Corp.’s contractual obligation to Thermal Exchange was mistaken. Thermal Exchange first became aware of it on November 4, 2016, when Ms. Da Ponte advised Mr. Pintaric via email that the Condo Corp. was not responsible for paying the invoices, and that “the invoices are charge-backs to the unit owners for payment once they receive the copy of the invoice.” [11] There was conflicting evidence at trial as to what arrangements, if any, had been made between Thermal Exchange and Ms. Da Ponte regarding payment. The evidence of Mr. Pintaric was that he had several conversations with Ms. Da Ponte about the non-payment of invoices, and she would invariably tell him that she was terribly busy and unable to attend to the matter immediately, but was “working on” the invoices. The trial judge found that the assurances that she was “working on it” led Thermal Exchange “to the reasonable belief that [its] problem could and would be remedied without the need to have a recourse to the courts.” Prior to the November 4 email, Mr. Pintaric had believed – reasonably in the view of the trial judge – that payment was more or less a matter of encouraging Ms. Da Ponte to do her job and complete whatever paperwork was needed at her end. There had been no refusal to pay and no suggestion of inability to pay. [12] The trial judge accepted Mr. Pintaric’s evidence that by October 2015, he thought a demand letter from his lawyer might stir Ms. Da Ponte to process the invoices. In November 2016, Ms. Da Ponte unexpectedly informed Thermal Exchange that the Condo Corp. was not responsible for payment. In December 2016, Ms. Da Ponte made a concerted effort to bring the account up to date, mailing demand letters to each unit owner with a copy of the Thermal Exchange invoices for work specific to that unit. The Condo Corp. was able to recover a substantial sum from the unit owners from this effort, which it paid to Thermal Exchange. [13] On August 17, 2017 Thermal Exchange filed its statement of claim, seeking damages for services supplied, breach of agreement, and unjust enrichment in the amount of $122,105.34. By the time of trial, the amount outstanding had been reduced to $86,055.49. [14] The central issue at trial was discoverability: specifically, when Thermal Exchange first determined that a proceeding would be an appropriate means to remedy its claim, per s. 5 (1)(a)(iv) of the Limitations Act . [15] The trial judge concluded, relying upon Presley v. Van Dusen , 2019 ONCA 66, 144 O.R. (3d) 305, that Thermal Exchange would not have known a proceeding was an appropriate means to seek a remedy until October 2015, when it realized it would have to instruct its counsel to commence legal proceedings: the assurances made by the property manager and the superintendent of the [Condo Corp.] that they were “working on it” did lead the Plaintiff to the reasonable belief that his problems could and would be remedied without the need to have a recourse to the courts… I find that the Plaintiff did not know and that a person in its situation would not reasonably have known that a proceeding would be an appropriate means to seek a remedy until the time when he realized that [the Plaintiff] would have to instruct counsel for the Plaintiff to commence legal proceedings against the [Condo Corp.]. [16] Since the civil action was commenced within two years of the demand letter, the trial judge held, the limitations defence failed. Issues on appeal [17] The appellant submits that the trial judge: 1. Erred in her application of the legal principles in Presley v. Van Dusen ; 2. Erred in finding that the claim was first discoverable as of the date of the demand letter in October 2015; 3. Erred in finding that the running account suspended the commencement of the limitation period; 4. Applied the wrong standard to Thermal Exchange to rebut the presumption; and 5. Erred in not considering the defence of laches. Analysis (1) The application of s. 5(1)(a)(iv) of the Limitations Act [18] The Limitations Act provides: 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) . 5 (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). [19] The trial judge held that Thermal Exchange was obligated, pursuant to s. 5(2) of the Limitations Act , to rebut the statutory presumption that that the claim was discovered on the date that the act or omission on which the claim is based took place. To rebut the presumption, a plaintiff must establish that its claim was not discovered until some other date, employing the four cumulative criteria listed in s. 5(1)(a). [20] The trial judge found that the first three criteria of discoverability were satisfied as of the date Thermal Exchange first became aware that its invoices were unpaid. This would be 30 days after the invoices were rendered. For the trial judge, the only remaining issue was therefore when Thermal Exchange knew that “a proceeding would be an appropriate means to seek to remedy [the loss]”. She concluded that this was the date that Thermal Exchange instructed its lawyer to send the demand letter in October 2015. [21] Significantly, the trial judge found that the nature of the commercial relationship between the parties was that there was a single running account, and whenever Thermal received funds from the Condo Corp, it was credited to that account. The trial judge accepted the evidence of Mr. Pontaric that he sincerely believed the Condo Corp. had been dealing with him in good faith and that Ms. Da Ponte’s statements that she was “working on it”, meant that his invoices would eventually be paid. He did not realize until her email of November 4, 2015 that she was, on behalf of the Condo Corp., taking the position that payment by Condo Corp. would be contingent on payment by the unit owner. [22] The Condo Corp. argued on appeal that the trial judge erred in holding that the Ms. Da Ponte’s assurances were analogous to the class of cases summarized in Presley v. Van Dusen , drawing on Presidential MSH Corp. v. Marr, Foster & Co. LLP, 2017 ONCA 325, 135 O.R. (3d) 321, where a plaintiff postpones bringing an action because of assurances by a defendant – who has a superior understanding of the problem – that the defendant can remedy the matter, such that litigation would not be necessary. The Condo Corp. argues that this case is nothing like Van Dusen , given that: (1) Thermal Exchange was not relying on the Condo Corp. to fix a mechanical problem beyond the expertise of Thermal Exchange; (2) the Condo Corp. never promised unequivocally to pay the invoices, but was simply stringing a creditor along; and (3) Thermal Exchange waited substantially longer to begin a proceeding than the plaintiff in Van Dusen did. [23] We do not agree that the trial judge erred in her analysis. There is nothing in the reasoning in Van Dusen that would restrict its application to comparative expertise over mechanical problems. The salient aspect is that the defendant created a problem, the remedy for which was beyond the reach of the plaintiff’s understanding, and led the plaintiff to rely on it for the remedy. Analogous to the situation in Van Dusen , the Condo Corp. created a barrier to Thermal Exchange receiving payment (it would not pay unless it first received payment from the unit owners, and was not taking any steps to getting the unit owners to pay), prevented Thermal Exchange from understanding the nature of the problem, and led Thermal Exchange to believe that it would take care of the problem. [24] The second and third points of purported differentiation with Van Dusen have little traction given the trial judge’s finding that the juridical relation between Thermal Exchange and the Condo Corp. was that of a running account. In the context of a running account, it is significant that the Condo Corp. gave Thermal Exchange no reason to believe it was disputing the invoices, and that the delays in payment were the result of other demands on the property manager’s time. Given that the indebtedness was incurred in the course of a running account, the temporal period is of less significance than it was in circumstances such as in Van Dusen . (2) Date of the demand letter [25] The Condo Corp. argues that the trial judge erred in finding that the limitation period started in October 2015, when Thermal Exchange instructed its solicitor to send a demand letter threatening legal action. The Condo Corp. argues that this date was chosen randomly by the trial judge, and is inconsistent with the evidence of Mr. Pintaric as to when he actually believed he could sue, and when a reasonable person in the situation of Thermal Exchange would have known that the commencement of a proceeding would be appropriate. We agree that the trial judge erred in finding that the limitation period began to run when Mr. Pintaric instructed his lawyer to send the demand letter. Nevertheless, and as we explain below, this conclusion does not assist the Condo Corp. as we find that the limitation period began to run after this date. [26] Mr. Pintaric’s evidence was that the threat of litigation was more or less idle – it did not reflect a conviction that an action was appropriate, but was a means to encourage Ms. Da Ponte to reprioritize her time in favour of processing the Thermal Exchange invoices. On his evidence, it was not until the November 4, 2016 email from Ms. Da Ponte, in which she first communicated the position that the Condo Corp. was not obligated to pay, that he first became aware of the nature of the problem he was facing, and became conscious that a proceeding would be an appropriate means to seek to remedy that problem. From the evidence on the record, supported by the trial judge’s finding that the Condo Corp. was maintaining a running account, the “time when he realized that [he] would have to instruct counsel for the Plaintiff to commence legal proceedings” was not the time he first met with counsel, nor when the demand letter was issued, but only when Ms. Da Ponte advised in the email of November 4, 2016 that the Condo Corp.’s position was that it had no obligation to pay the invoices. The action was commenced within two years of this date and the limitations defence therefore fails. (3) The running account [27] The Condo Corp. argues that the trial judge’s finding that the account was a running account was a palpable and overriding error, contradicted by an Excel spreadsheet jointly tendered by the parties as an exhibit. The spreadsheet documents for each invoice rendered from December 31, 2008 to June 30, 2017, the invoice number, the amount, and whether payment had been received. The Condo Corp. submits that the spreadsheet contradicts the argument that there was a running account, as it demonstrates that payments were attributed to particular invoices. [28] The spreadsheet was not tendered as an accounting record of either party, although both parties agreed to its accuracy in terms of stating the accounts that were rendered and the payments that were made. It is not evidence of how Thermal Exchange understood the nature of the Condo Corp.’s account with it, and therefore does not contradict the trial judge’s finding. The trial judge’s finding that the Condo Corp. had a running account with Thermal Exchange was supported by the evidence of Mr. Pintaric and the practice of batch invoicing. The finding was open to her and we would not disturb it. (4) Did the trial judge apply the wrong standard? [29] The Condo Corp. submits that the trial judge erred in law by applying the wrong standard for Thermal Exchange to meet to rebut the presumption under s. 5(2). The trial judge described the onus as “very low”. The Condo Corp. points to case law from this Court which characterizes the onus as “relatively low”. [30] Nothing in this litigation turns on the distinction between these two modifiers. (5) Laches [31] The trial judge did not address the Condo Corp.’s defence of laches . However, the argument could not have succeeded given the trial judge’s factual findings with respect to the Limitations Act defence. She found that it was reasonable for a person in the position of Thermal to rely on the assurances of the property manager and hold off commencing an action. Having made that finding, a laches defence was not available. DISPOSITION [32] The appeal is dismissed. If the parties cannot agree on costs, they may make brief written submissions not exceeding 3 pages each, in addition to a bill of costs, within 14 days of the release of these reasons. “ Doherty J.A.” “B.W. Miller J.A.” “Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Crosslinx Transit Solutions General Partnership v. Ontario (Economic Development, Employment and Infrastructure), 2022 ONCA 187 DATE: 20220307 DOCKET: C69486 Rouleau, van Rensburg and Roberts JJ.A. BETWEEN Crosslinx Transit Solutions General Partnership and Crosslinx Transit Solutions Constructors Applicants (Respondents) and Ontario Infrastructure and Lands Corporation, as representative of the Minister of Economic Development, Employment and Infrastructure, as representative of Her Majesty the Queen in Right of Ontario and Metrolinx Respondents (Appellants) Sharon Vogel, Peter Wardle, Jesse Gardner and Cheryl Labiris, for the appellants Matthew Sammon, Andrea Wheeler and Jacqueline Chan, for the respondents Heard: January 6, 2022 by video conference On appeal from the judgment of Justice Markus Koehnen of the Superior Court of Justice dated May 17, 2021, with reasons reported at 2021 ONSC 3567. REASONS FOR DECISION Overview [1] This is an appeal of a judgment in application proceedings that involved the interpretation and allegations of the breach of a complex project agreement respecting the design, construction, and maintenance of a large-scale public infrastructure project, the Eglinton Crosstown Light Rapid Transit line (“Crosstown LRT”) in Toronto (“the Project Agreement”), in the context of the effects of the COVID-19 pandemic. The appellants represent agencies of the Crown who commissioned the project. The respondents are a consortium of four of Canada’s largest and most sophisticated construction companies that are building the project. The project is in its construction phase. [2] At issue in the appeal is whether the application judge erred in concluding that s. 62.1(c) of the Project Agreement was triggered such that the parties were required to engage in a Variation Enquiry, a procedure provided for under the Project Agreement that could result in an extension of the time the respondents have to substantially complete the Crosstown LRT. [3] The application judge granted judgment declaring that the COVID-19 pandemic was an “Emergency” under the relevant terms of the Project Agreement; that the appellants had required compliance with “additional or overriding procedures in response to the COVID-19 pandemic to protect public health and worker safety”; and that the appellants had a contractual obligation to provide the respondents with a Variation Enquiry. The application judge concluded that the appellants had notified the respondents by means of a March 25, 2020 email that they required compliance with additional and overriding COVID-19 health and safety procedures. [4] The appellants submit, among other things, that the application judge made a palpable and overriding error in finding that s. 62.1(c) had been triggered by the March 25, 2020 email, which was an internal email that was not directed to the respondents. They also assert that the application judge erred in his interpretation of the Project Agreement by failing to conclude that the respondents had assumed the risks of additional health and safety measures required by the pandemic in their contractual obligation to comply with “Applicable Laws”, a defined term in the Project Agreement; and in their obligation to prepare and to follow an Emergency Response Plan. [5] For their part, the respondents disagree that the application judge erred in finding that s. 62.1(c) was triggered. They say that there was no extricable error of law in the application judge’s interpretation of the Project Agreement, nor did the application judge make a palpable and overriding error of fact in concluding that s. 62.1(c) had been triggered by the appellants. The respondents submit that to the extent that the application judge erred in his characterization of the March 25 email, this was not an overriding error because there was other evidence to support this conclusion. The respondents argue that, in any event, if the appellants did not invoke s. 62.1(c), their failure to do so was in breach of their obligation to exercise their contractual discretion in good faith. In addition, they rely on the doctrine of indivisibility of the Crown to argue that government-mandated requirements constituted “additional and overriding requirements” of the appellants under the Project Agreement. [6] For the reasons that follow, we allow the appeal, set aside the judgment of the application judge and remit the application for a rehearing. Brief factual background [7] The Crosstown LRT project involves the construction and maintenance of a 19-kilometre light rapid transit line of which 10 kilometres will be underground. At the time of the application in the court below, the project was in its construction phase and employed 1,500 people. [8] The Project Agreement calls for the construction to be completed by a substantial completion date as defined in Schedule 1 to the Project Agreement (“Substantial Completion Date”). [1] There are significant penalties if the respondents do not meet the Substantial Completion Date. The Project Agreement contains provisions that allow the respondents in certain prescribed circumstances to claim extensions of time and compensation. [9] One of the prescribed circumstances is in the case of an “Emergency”, which is defined by the Project Agreement to include “any situation … (b) which gives rise to an emergency, as determined by any statutory body…”. Section 62.1 of the Project Agreement provides as follows: 62.1 Emergency (a) From Financial Close until Substantial Completion Date, upon the occurrence of an Emergency, Project Co shall comply with the Emergency Response Plan. (b) From and after Substantial Completion Date, upon the occurrence of an Emergency, Project Co shall comply with its Emergency Response Plan in accordance with the Output Specifications. (c) If, in respect of any Emergency, HMQ Entities notify Project Co that they require compliance with any additional or overriding procedures as may be determined by HMQ Entities or any other statutory body, then Project Co shall, subject to Schedule 22 - Variation Procedure (if compliance with such procedures constitutes a Variation), comply with such procedures (whether such procedures are specific to the particular Emergency or of general application and on the basis that such procedures shall take precedence to the extent that they overlap with the procedures mentioned in Section 62.1(a) or (b). [2] [10] The parties executed the Project Agreement in 2015. Delays ensued prior to the outbreak of the COVID-19 pandemic and the respondents invoked the processes under the Project Agreement to address the delays. By the time the Ontario government declared a state of emergency because of the global COVID-19 pandemic in March 2020, the project was already about a year behind schedule. [11] It is common ground that the Ontario government declared construction of public infrastructure projects to be an essential service that could continue to operate notwithstanding the wholesale shuttering of many businesses. However, significant health and safety procedures were imposed. These included social-distancing and limiting the number of workers who could attend at a worksite. [12] The respondents took the position in their correspondence with the appellants that the COVID-19 pandemic was an Emergency that required them to implement additional or overriding procedures that slowed down construction. They urged the appellants to declare an emergency pursuant to s. 62.1(c) of the Project Agreement, to direct the respondents to take “additional and overriding procedures” to protect health and safety pursuant to s. 62.1(c) of the Project Agreement, and thereby initiate a Variation Enquiry under Schedule 22 of the Project Agreement in connection with the additional and overriding procedures. [13] The appellants refused to declare an emergency. They took the position that declaring an emergency was unnecessary given that the province had already done so. The appellants advised the respondents in a letter dated April 21, 2020 that “[a]t this point, [the appellants] do not require that [the respondents] implement additional or overriding measures in addition to those presently being undertaken by [the respondents]” in order to comply with their obligations as a Constructor and Employer under the Occupational Health and Safety Act , R.S.O. 1990, c. O.1 . The appellants also reminded the respondents that they were “required to comply with all of [the respondents’] obligations under the Occupational Health and Safety Act and the guidance of public health authorities and local, provincial, and federal governments.” [14] The respondents invoked the dispute resolution procedures under Schedule 27 of the Project Agreement. They alleged that the appellants did not act in good faith in refusing to declare an emergency under s. 62.1(c) of the Project Agreement. They sought remedies, including a determination that the COVID-19 pandemic is an emergency under the Project Agreement and an order that the appellants direct the respondents to take additional or overriding procedures. The dispute resolution procedures did not resolve the dispute. [15] The respondents then commenced an application in the Superior Court seeking declarations regarding their rights under the Project Agreement, including that (i) the COVID-19 pandemic is an Emergency under the Project Agreement; (ii) the appellants had breached their contractual obligations including their obligation to exercise their contractual discretion reasonably and in good faith by (1) refusing to acknowledge that the pandemic is an Emergency and (2) failing to direct them to take additional and overriding procedures under s. 62.1(c) of the Project Agreement; and (iii) the appellants have a contractual obligation to provide them with a Variation Enquiry. Judgment [16] The appellants brought a preliminary motion seeking a stay of the application on the basis that the Project Agreement called for litigation to be postponed until after “Substantial Completion” [3] . The application judge refused the stay, and the appellants’ motion for leave to appeal this order was denied by the Divisional Court: Crosslinx Transit Solutions General Partnership v. Ontario Infrastructure and Lands Corporation , 2021 ONSC 5905. [17] There was considerable affidavit evidence filed on the application. The deponents were cross-examined, and documents were marked as exhibits, resulting in a record exceeding 5,000 pages. The application judge, after considering the evidence, granted a declaration that (i) the COVID-19 pandemic is an Emergency under the Project Agreement (although the appellants in their communications with the respondents had refused to declare an emergency, they ultimately conceded that this part of s. 62.1(c) was met); (ii) the appellants had required compliance with additional or overriding procedures in response to the pandemic to protect public health and worker safety; and (iii) the appellants had a contractual obligation to provide a Variation Enquiry under the Project Agreement. [18] The application judge did not consider it necessary to address the parties’ arguments respecting the principles of good faith and the indivisibility of the Crown. Rather, his conclusion was based on his finding that, by their email of March 25, 2020, the appellants had notified the respondents under s. 62.1(c) that they required compliance with anticipated government construction protocols. The application judge concluded that, when the Ontario government released a workplace health and safety protocol on March 29, 2020 (“the March 29 protocol”), its provisions constituted “additional and overriding procedures”. Responding to the appellants’ argument that such measures were part of the Applicable Law with which the respondents were bound to comply, the application judge concluded that the construction protocols, while issued by the government, were not legally binding. He found that it was “difficult” to hold that the protocols fell within the definition of “Applicable Law”. Issues and Analysis [19] The appellants raise several grounds of appeal. They assert that the application judge made a palpable and overriding error that the internal March 25, 2020 email notified the respondents under s. 62.1(c) that they required compliance with additional or overriding procedures. They also contend that the application judge erred in focusing on the March 29 protocol, which at its highest prescribed “best practices” and not mandatory measures. They argue that the application judge made several errors in his interpretation of the Project Agreement with respect to the parties’ contractual allocation of risk, and in failing to give effect to the respondents’ obligation to comply with Applicable Law. [20] In our view, to determine the appeal, it suffices to consider only the question of whether the application judge made a palpable and overriding error in finding that the appellants had, by their March 25, 2020 email, actually notified the respondents under s. 62.1(c) that they required compliance with additional or overriding procedures. For the reasons that follow, we conclude that he did commit such a reversible error and that the appeal must be allowed. [21] The standard of review for palpable and overriding error is well-established. In R. v. Clark , 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9, the Supreme Court, relying on a long line of decisions including Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, articulated the standard in the following way: Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm. [Citations omitted.] [22] It is common ground that the application judge’s error was palpable. Quite simply, he clearly and obviously erred in finding that the appellants’ March 25, 2020 email was sent to the respondents. There is no dispute that this email was an internal email that was never directed to or sent to the respondents. [23] The application judge’s error was also overriding. Central to the application judge’s determination that s. 62.1(c) had been triggered was his finding that the appellants, by the March 25 email, notified the respondents that they required compliance with additional or overriding procedures. [24] The respondents argue that the application judge’s finding that they were notified as required by s. 62.1(c) can be supported by substituting the March 25, 2020 internal email with the appellants’ April 21, 2020 letter that was sent to the respondents. [25] There are several difficulties with the respondents’ submission. [26] First and foremost, the April 21 letter is at best ambiguous. The appellants explain in the letter that they did not require any additional and overriding procedures in addition to those the respondents had already undertaken to comply with their health and safety obligations required by law. [27] Further and importantly, the respondents never stated in their contemporaneous correspondence with the appellants that the April 21, 2020 letter, or any other letter from the appellants, constituted actual notification under s. 62.1(c). Rather, the respondents repeatedly complained that the appellants should declare an emergency and direct them to implement additional or overriding procedures with respect to the project. This was the primary relief they sought under the Notice of Dispute sent to the appellants on May 11, 2020 and was the thrust of their application and argument before the application judge. [28] The respondents did not frame their application or arguments before the application judge on the basis that any communication from the appellants constituted actual notice under s. 62.1(c). Rather, the respondents maintained on the application that the appellants had effectively or should be deemed to have notified them because their actions as Crown agencies were indivisible from those of the provincial government that ordered the additional or overriding pandemic procedures or, in the alternative, that the appellants failed to exercise their contractual discretion in good faith. [29] Finally, the application judge did not consider, nor did the parties make any submissions before us, as to what constitutes notification as required by s. 62.1(c), and whether such notification would constitute notice under s. 61.1(a) of the Project Agreement. For example, no submissions were made before the application judge or before us regarding whether the April 21, 2020 letter (or any other communication) complies with the notice requirements under s. 61.1(a) of the Project Agreement. Section 61.1(a) of the Project Agreement states: All notices, requests, demands, instructions, certificates, consents and other communications ( each being a “ Notice ”) required or permitted under this Project Agreement shall be in writing (whether or not “written notice” or “notice in writing” is specifically required by the applicable provision of this Project Agreement) and served by sending the same by registered mail, facsimile transmission or by hand…. [ Emphasis in original and added .] [30] The parties’ correspondence contains references to “formal” notices and responses. A “Notice” under s. 61.1 of the Project Agreement must be in writing and delivered by registered mail, facsimile transmission followed by registered mail, or personal service. We have no evidence as to whether the April 21, 2020 letter met these requirements, nor did we have submissions on whether it was required to do so. In these circumstances, we reject the submission that the application judge’s finding that the appellant notified the respondents, as required by s. 62(1)(c), can be upheld by this court simply by substituting the April 21 letter for the March 25 email. [31] We therefore conclude that the application judge made a palpable and overriding error in determining that the appellants notified the respondents by means of their March 25, 2020 internal email that was never sent to the respondents. [32] Accordingly, the appeal is allowed, and the judgment is set aside. Next steps [33] We decline, however, to dismiss the application, as requested by the appellants. [34] As the application judge indicated at para. 39 of his reasons, “[t]he nub of the issue between the parties is whether [the appellants] asked or should have asked [the respondents] to implement additional or overriding procedures with respect to the project” (emphasis added), because, he reasoned, had they done so, this would have given the respondents the right to initiate a Variation Enquiry pursuant to s. 62.1(c) of the Project Agreement. Because he determined that by their March 25, 2020 internal email, the appellants had clearly “ asked ” the respondents to implement additional or overriding procedures, the application judge did not determine whether the appellants “ should have asked ” the respondents to do so. Specifically, the application judge did not carry out an analysis of the exchanges between the parties, including the April 21 letter, to determine whether s. 62.1(c) had, in effect, been triggered or, in the circumstances should be deemed to have been triggered. [35] As earlier noted, the respondents’ submission that s. 62.1(c) had effectively or should be deemed to have been triggered is premised on their arguments that the appellants did not act in good faith or that as Crown actors, their actions were the same as the provincial Crown that legislatively mandated the respondents’ compliance with the additional or overriding pandemic health and safety procedures. The application judge did not determine any of these issues but only the issue of actual notice based on the March 25 email. [36] It is not appropriate for this court to engage in the kind of fact-finding process that would be required to determine these issues. As this court recently observed in Carmichael v. GlaxoSmithKline Inc. , 2020 ONCA 447, 151 O.R. (3d) 609, at paras. 129-132, leave to appeal refused, [2020] S.C.C.A. No. 409, while appellate courts have fact-finding powers and the power to make any decision that the judge at first instance could have made under ss. 134(1) and (4) of the Courts of Justice Act , R.S.O. 1990, c. C.43, they are cautious about exercising them. Appellate courts will not make findings of fact if this requires the court to assess credibility, the evidentiary basis needed to draw the necessary inferences is inadequately developed in the record, or where the court cannot reach a fair and just determination of the merits. [37] With respect to the issues of good faith exercise of contractual discretion and Crown indivisibility, there could be issues of credibility including the reasons for the project delays and the appellants’ refusal to declare an emergency and invoke the Variation Enquiry pursuant to s. 62.1(c). The determination of these issues requires an interpretation of the Project Agreement and a deep dive into the factual matrix surrounding the Project Agreement and the circumstances leading up to the commencement of the present proceedings. [38] Accordingly, we remit the application for a rehearing. Disposition [39] In conclusion, we allow the appeal, set aside the application judge’s judgment and costs order, and remit the application to the Superior Court for directions, if considered necessary or advisable. [4] It will be up to the parties to decide whether they wish to proceed with the rehearing before another judge of the Superior Court or continue with the other previously invoked dispute resolution procedures under Schedule 27 of the Project Agreement. [40] As agreed, the appellants are entitled to their costs of the appeal in the amount of $60,000, inclusive of disbursements and applicable taxes. If the parties cannot agree on the disposition of the application costs, they may make brief written submissions of no more than two pages, plus costs outlines, within ten days of the release of these reasons. “Paul Rouleau J.A.” “K. van Rensburg J.A.” “L.B. Roberts J.A.” [1] Under s. 1.566 of Schedule 1 to the Project Agreement “Substantial Completion Date” is defined as “the date on which Substantial Completion is achieved as evidenced by the Substantial Completion Certificate, as such date shall be stated therein.” Section 1.528 of the Project Agreement defines “Scheduled Substantial Completion Date” as September 29, 2021, “as such date may be amended pursuant to s. 40 of the Project Agreement.” For the purposes of this appeal, nothing turns on these different definitions. [2] In the Project Agreement “Project Co” refers to the respondents, while “HMQ Entities” refers to the appellants. [3] “Substantial Completion” is defined in s. 1.564 of Schedule 1 to the Project Agreement. Nothing turns on it for the purposes of this appeal. [4] The proceedings were commenced by way of application under r. 14.05(3)(d) and (h) of the Rules of Civil Procedure. While the application judge, apparently without opposition from the appellants, proceeded to decide the application in a summary fashion, we do not express any view on whether the issues are capable of being determined in a summary procedure, or whether, under r. 38.10 any issue would require a trial. As such it may be appropriate for the parties to seek direction from the court.

COURT OF APPEAL FOR ONTARIO CITATION: Continental Casualty Company v. Chubb Insurance Company of Canada, 2022 ONCA 188 DATE: 20220307 DOCKET: C69057 MacPherson, Simmons and Nordheimer JJ.A. In the Matter of the Insurance Act, R.S.O. 1990, c. I.8 , as amended, and Ontario Regulation 283/95 made under the Insurance Act And in the Matter of the Arbitration Act, 1991, S.O. 1991, c. 17 , as amended And in the Matter of an Arbitration BETWEEN Continental Casualty Company Appellant (Respondent) and Chubb Insurance Company of Canada Respondent (Appellant) and Peter Ekstein Insured Person Jason R. Frost and Joseph Filice, for the appellant Mark Donaldson and Shelby Chung, for the respondent Heard: November 4, 2021 by video conference On appeal from the order of Justice David G. Stinson of the Superior Court of Justice, dated September 26, 2019, with reasons reported at 2019 ONSC 3773, allowing an appeal from a decision of Arbitrator Kenneth Bialkowski, dated April 4, 2018. Simmons J.A.: A. introduction [1] The issues on this appeal arise out of a priority dispute between insurers concerning liability for statutory accident benefits (“SABS”) where the SABS claimant had basic mandatory SABS coverage under one policy and both basic mandatory and optional enhanced SABS coverage under another policy. [2] In July 2015, Peter Ekstein, the owner, President and CEO of a forestry products company, suffered catastrophic injuries when he was hit by a pickup truck while jogging near his cottage. [3] Mr. Ekstein had basic mandatory SABS coverage under his personal automobile insurance policy issued by Chubb Insurance Company of Canada. In addition, his company had purchased optional enhanced SABS coverage under a fleet policy issued by Continental Casualty Company for his company’s vehicles. [4] Following Mr. Ekstein’s accident, Continental denied both that its policy provided optional enhanced SABS coverage and that Mr. Ekstein had coverage under its policy. [5] Mr. Ekstein accordingly claimed basic mandatory SABS from Chubb. Chubb subsequently initiated a priority dispute, claiming that Continental was the insurer liable to pay SABS to Mr. Ekstein. [6] Section 268 of the Insurance Act , R.S.O. 1990, c.I.8. (the “Act”) sets out priority of payment rules specifying the insurer against which a SABS claimant may have recourse for SABS in particular circumstances. Under ss. 268(5) and (5.2) of the Act, if a SABS claimant is a “named insured” under more than one policy, the SABS claimant may decide from which insurer to claim SABS . [7] Unless altered by the legislative scheme, within the insurance industry “named insured” generally refers to the person actually named in a contract of insurance, while an “insured” is a person who, whether by statute or by contract, has some or all of the rights of the named insured [1] . In the case of the Continental policy, Mr. Eckstein’s company was the “named insured”. However, s. 3(7)(f) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 , O. Reg. 34/10 (the “SABS Schedule”) expands the scope of the named insured for a “company car”. A person will be deemed to be the named insured under an automobile insurance policy at the time of an accident where the insured automobile “is being made available for the individual’s regular use by a corporation.” [8] In April 2018 an arbitrator found that Mr. Ekstein was the named insured under the Chubb policy and a “deemed named insured” under the Continental policy [2] because he met the “regular use” requirements in s. 3(7)(f). [9] The arbitrator held that absent misinformation provided by Continental, Mr. Ekstein would have elected to receive SABS from Continental, the optional enhanced SABS insurer, and that Mr. Ekstein was entitled to re-elect in the circumstances. Continental was therefore the priority insurer under the s. 268 priority of payment rules and obliged to pay Mr. Ekstein both basic mandatory and optional enhanced SABS. [10] Further, because the Continental policy included optional enhanced SABS benefits, the arbitrator found Continental should have issued to its insured an Ontario Policy Change Form 47 endorsement (“OPCF 47”) as required under s. 28 of the SABS Schedule. [11] Subject to a requirement that a person, to whom an optional enhanced SABS benefit is applicable, does not claim SABS under another policy, OPCF 47 allows that person to claim both basic mandatory and optional enhanced SABS under the optional enhanced SABS policy, even though the s. 268 priority of payment rules may require the person to claim SABS under another policy. [12] The arbitrator concluded that regardless of the s. 268 priority of payment rules [3] , Mr. Ekstein was “entitled to pursue the optional benefits from [Continental]”. [13] Continental appealed the arbitrator’s finding that Mr. Ekstein was a deemed named insured under its policy to the Superior Court. [14] The Superior Court Appeal judge (the “SCAJ”) found the arbitrator’s finding that Mr. Ekstein met the regular use requirements in s. 3(7)(f) of the SABS Schedule unreasonable. Although as a company executive Mr. Ekstein had access to and control over company vehicles, he had never used any of such vehicles. The SCAJ accordingly concluded Mr. Ekstein was not a deemed named insured under the Continental policy. Therefore he could not elect under the s. 268 priority of payment rules to claim SABS from Continental and Chubb was the priority insurer under those rules. [15] Nonetheless, the SCAJ found that Continental was obliged to pay both basic mandatory SABS and optional enhanced SABS to Mr. Ekstein under the terms of OPCF 47. [16] Over Chubb’s objections, the SCAJ went on to consider whether Chubb, as the priority insurer under the s. 268 priority of payment rules, was obliged to indemnify Continental for basic mandatory SABS payments Continental was required to make, an issue not raised in Continental’s notice of appeal. [17] Relying on an arbitrator’s decision, the SCAJ found that an OPCF 47 endorsement does not displace the s. 268 priority of payment rules. The SCAJ accordingly set aside the arbitrator’s order and declared that: · Continental must pay both basic mandatory SABS and optional enhanced SABS to the SABS claimant; · Continental is responsible for the cost of all optional benefits provided; · Continental is entitled to reimbursement from Chubb for the cost of basic mandatory SABS benefits paid to the SABS claimant by Continental and all expenses associated with administering those benefits. [18] Chubb was granted leave to appeal to this court on February 28, 2020. [19] Chubb raises a variety of procedural and substantive issues concerning the SCAJ’s decision. In my view, this appeal can properly be disposed of by answering the following questions: 1. Did the SCAJ err in overturning the arbitrator’s decision that Mr. Ekstein met the regular use requirement in s. 3(7)(f) of the SABS Schedule and was therefore a deemed named insured under the Continental policy? 2. Did the SCAJ err in holding that as the priority insurer under the s. 268 priority rules, Chubb was obliged to indemnify Continental for basic mandatory SABS payments Continental was obliged to pay to Mr. Ekstein under OPCF 47? [20] For the reasons, that follow, I would answer no to the first question and yes to the second. B. the sabs regime [21] To provide context for the issues on appeal, I will briefly review the SABS coverage regime and the s. 268 priority rules and related regulations. I will set out other relevant regulatory and contractual provisions when addressing the specific issues to which they relate. (i) SABS Coverage [22] Subsection 268(1) of the Act states that all motor vehicle liability insurance policies are deemed to provide for the SABS set out in the SABS Schedule: 268(1) Every contract evidenced by a motor vehicle liability policy … shall be deemed to provide for the statutory accident benefits set out in the [ Statutory Accident Benefits ] Schedule . [4] [23] Under the SABS Schedule, all insurance policies must provide stipulated basic mandatory SABS coverage and all insurers must offer stipulated optional enhanced SABS coverage: s. 2(1) and s. 28(1) of the SABS Schedule. [24] Sections 4-27 of the SABS Schedule set out the specified basic mandatory benefits that must be provided, including, for example, a maximum income replacement benefit of $400 per week: s. 7(1) of the SABS Schedule. [25] Section 28(1) of the SABS Schedule requires that every insurer offer specified optional enhanced SABS benefits. For example, s. 28(1)(1.) requires that the following optional enhanced benefit be offered: 1. An optional income replacement benefit that increases the maximum weekly amount of $400 referred to in the definition of “B” in subsection 7 (1) to $600, $800 or $1,000, as selected by the named insured under the policy. [26] Under s. 28(2) of the SABS Schedule, the optional benefits referred to in s. 28(1) are “applicable” only to: the named insured, the spouse of the named insured, their dependants and persons specified in the policy as drivers of the insured automobile. [27] Put another way, even if the s. 268 priority rules afford recourse against an insurer to a SABS claimant with no connection to the policy (for example, a pedestrian struck by the insured automobile where the pedestrian has no automobile insurance), any optional enhanced SABS coverage available under the policy would not be “applicable” to that claimant. (ii) The Section 268 Priority Rules and Related Regulations [28] Subsections 268(2)-(5.2) [5] of the Act set out the rules for determining the insurer against which a person has recourse for SABS and for determining the insurer liable to pay SABS. [29] Whether an occupant or non-occupant of an automobile at the time of an accident, a SABS claimant’s first avenue of recourse is against the insurer of an automobile in respect of which the person is an insured: s. 268(2)(1.)(i) and (2)(2.)(i) of the Act. As Mr. Ekstein was a pedestrian (“non-occupant”) when he was injured, s. 268(2)(2.) therefore applies: 268(2) The following rules apply for determining who is liable to pay statutory accident benefits: 2. In respect of non-occupants, i. the non-occupant has recourse against the insurer of an automobile in respect of which the non-occupant is an insured , ii. if recovery is unavailable under subparagraph i, the non-occupant has recourse against the insurer of the automobile that struck the non-occupant, iii. if recovery is unavailable under subparagraph i or ii, the non-occupant has recourse against the insurer of any automobile involved in the incident from which entitlement to statutory accident benefits arose, iv. if recovery is unavailable under subparagraph i, ii or iii, the non-occupant has recourse against the Motor Vehicle Accident Claims Fund. [Emphasis added.] [30] Where a person has recourse against more than one insurer under subparagraphs (i) or (iii) under paragraphs (1.) or (2.) of s. 268(2), the person may decide the insurer from which the person will claim benefits: s. 268(4) of the Act. [31] Despite s. 268(4), if a person is a named insured under a policy, the person must seek recourse for SABS under that policy: s. 268(5) of the Act. [32] However, subject to s. 268(5.2), if a person is a named insured under more than one policy providing SABS coverage, the person may choose the insurer against which the person will seek recourse: s. 268(5.1) of the Act. [6] [33] As noted, s. 3(7)(f) of the SABS Schedule expands the notion of a named insured if a SABS claimant can establish regular use of a company vehicle. It provides: 3(7)(f) an individual who is living and ordinarily present in Ontario is deemed to be the named insured under the policy insuring an automobile at the time of an accident if, at the time of the accident , (i) the insured automobile is being made available for the individual's regular use by a corporation…. [Emphasis added.] [34] Section 268(3) of the Act stipulates that the insurer against whom a person has recourse for SABS is liable to pay SABS: 268(3) An insurer against whom a person has recourse for the payment of statutory accident benefits is liable to pay the benefits. [Emphasis added.] [35] Further, s. 2(4) of the SABS Schedule states: 2(4) Benefits payable under this Regulation in respect of an insured person shall be paid by the insurer that is liable to pay under s. 268(2) of the Act. [36] Section 2.1(6) of O. Reg. 283/95 ( Disputes Between Insurers ) requires the first insurer that receives an application for SABS to pay SABS pending the resolution of any dispute as to which insurer is required to pay the benefits. This provision ensures SABS payments are not delayed by priority disputes between insurers. If the insurers cannot agree as to which insurer is required to pay benefits, the dispute must be resolved through an arbitration under the Arbitration Act, 1991 , S.O. 1991, c. 17: s. 7(1), O. Reg. 283/95. C. Analysis (1) Did the SCAJ err in overturning the arbitrator’s finding that Mr. Ekstein meets the regular use requirement in s. 3(7)(f) of the SABS Schedule and is therefore a deemed named insured under Continental’s policy? (a) The Arbitrator’s Decision [37] The arbitrator’s decision that Mr. Ekstein was a deemed named insured under the Continental policy was premised on a finding that Mr. Ekstein met the “regular use” requirement set out in s. 3(7)(f) of the SABS Schedule. [38] The evidence before the arbitrator was that Mr. Ekstein’s name appeared on a schedule of drivers attached to the Continental fleet policy. However, it was undisputed that he had never driven any of the corporate vehicles, most of which were tractor-trailers used in the forestry products business. Although Mr. Ekstein was involved in the day-to-day operations of the business, others were responsible for day-to-day decision-making concerning the fleet of vehicles and the assignment of vehicles to particular drivers. Nonetheless, Mr. Ekstein testified that he had access to the keys for the vehicle fleet, which were kept in the corporate business office, and had the power to take one of the lighter trucks out 24/7 if he chose to do so. He “called the shots”. [39] The arbitrator noted that there are two arbitration decisions that deal in particular with the control executives and owners have over vehicles used in their businesses and the impact of that control on the regular use issue: The Dominion of Canada General Insurance Company v. Federated Insurance Company of Canada (Arbitrator Densem – October 31, 2012) and The Dominion of Canada General Insurance Company v. Lombard Insurance Company (McLean) , 2013 CarswellOnt 19270, (Arbitrator Bialkowski – September 11, 2013). [40] Taking account of those decisions the arbitrator concluded that Mr. Ekstein had sufficient authority and control over the vehicles to meet the requisite standard. The arbitrator said: Mr. Ekstein had sufficient control over the vehicles insured by [Continental] to be found a deemed “named insured” by reason of s. 3(7)(f) of the SABS [Schedule]. As President and CEO, he had control and access to them whenever he wanted, as he stated, “I call the shots”. I find that Mr. Ekstein was a deemed named insured pursuant to s. 3(7)(f) of the SABS and his control of the corporate vehicles by reason of his ownership interest, ultimate control of the vehicles and accessibility to the keys . [Emphasis added.] (b) The SCAJ’s decision [41] Before the SCAJ, the parties agreed that the standard of review was reasonableness. The SCAJ distinguished the two cases on which the arbitrator relied by noting that, in each case, the SABS claimant made actual use of the vehicle that was the subject of the policy. [42] In Dominion v. Federated , the claimant was a dependant of a co-owner of a used car lot. [7] The used cars on the lot were insured under a garage policy issued by Federated. At the time of the accident, the claimant was a passenger in one of the used vehicles which was being driven by a third party with the father/co‑owner’s permission. There was no issue that the father/co-owner made regular use of the vehicles on the lot. The real issue was whether a company vehicle was being made available to the father at the time of the accident as the used car lot was closed when the accident occurred and there was no business purpose associated with the claimant’s travel. The issue turned on the father’s access to and control over vehicles on the lot such that they were being made available at the time of the accident. [43] In Dominion v. Lombard , the claimant was struck by a vehicle while riding a bicycle in Oregon. She was a team leader and highest-ranking person at an Ontario group home. She used the group home’s vehicle while working and was also responsible for assignment of, record keeping in relation to, and responsibility for the maintenance and repair of the vehicle. She claimed SABS under the group home fleet policy. The insurer conceded regular use. The issue as framed by the arbitrator was whether the vehicle was “available to the claimant at the time of the accident”. The arbitrator concluded that the claimant had sufficient residual control over the vehicle to be considered a deemed named insured. [44] In considering the application of those decisions to this case, the SCAJ stated, “while there was an element of so-called ‘residual control’ over the vehicles … what is missing … is any evidence of those vehicles ‘being made available for [Mr. Ekstein’s] regular use.’” Further, it was “unreasonable for the Arbitrator to impute regular usage to Mr. Ekstein when none existed.” [45] The SCAJ found that the arbitrator failed to consider Mr. Ekstein’s evidence that he never used a company vehicle prior to or at the time of the accident, or that a company vehicle was not being made available to him at the time of the accident. The SCAJ concluded: I conclude that the Arbitrator’s decision is unreasonable because he failed to carry out the proper analysis, it is inconsistent with underlying legal principles, and the outcome ignores or cannot be supported by the evidence. To the contrary, the evidence supports the finding that no automobiles that were subject to the [Continental] policy were made available for Mr. Ekstein’s regular use by the company . Since the outcome ignores that uncontroverted fact, I find it is unreasonable. [Emphasis added.] (c) Discussion [46] Chubb contends that, post- Vavilov [8] , the standard of review to be applied in this case is the appellate standard. I agree. [47] At para. 37 of the majority reasons in Vavilov , the court stated that it should be recognized that “where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision.” [48] The arbitration in this matter was conducted pursuant to the Arbitration Act, 1991 . Subsections 45(2) and (3) of that Act provide for an appeal on questions of law and mixed fact and law if permitted by the arbitration agreement. Paragraph 6 of the parties’ arbitration agreement provides for an appeal without leave to a Superior Court judge on questions of law or mixed fact and law. [49] Chubb submits that the SCAJ made a palpable and overring error in reversing the arbitrator’s finding that Mr. Ekstein met the regular use requirement. In particular, there was evidence before the arbitrator that Mr. Ekstein had control over and access to the company vehicles whenever he wanted. As noted by the arbitrator, Mr. Ekstein stated, “I call the shots”. Mr. Ekstein could have used, or directed the use of, any of the corporate vehicles at any time had he chosen to do so. Chubb submits that the SCAJ erred by effectively removing the phrase “available for” from the regular use definition. He further erred by failing to defer to the factual findings of the arbitrator when he concluded that no automobiles were being made available by the company for Mr. Ekstein’s regular use. [50] I would not accept these submissions. [51] As a starting point, I consider that the issue presented may be a question of law requiring a correctness standard of review. It is undisputed that although Mr. Ekstein could have driven at least some of the company vehicles at any time he wished, he never did so. Accordingly, the question arises, can the regular use requirement set out in s. 3(7)(f) of the SABS Schedule be met based on access to and control of a vehicle, standing alone, without any use? For reasons that I will explain, I would answer no. [52] However, even assuming that the standard of review is palpable and overriding error, I agree with the SCAJ that the arbitrator erred by focusing on the evidence concerning Mr. Ekstein’s potential access to and control over his company’s vehicles. In doing so, the arbitrator effectively ignored, or failed to give effect to, the evidence that, as of the date of the accident, Mr. Ekstein had never used any of the company vehicles insured under Continental’s policy. [53] I reach these conclusions for several reasons. I will begin by repeating the regular use requirement set out in s. 3(7)(f) of the SABS Schedule for ease of reference: 3(7)(f) an individual who is living and ordinarily present in Ontario is deemed to be the named insured under the policy insuring an automobile at the time of an accident if, at the time of the accident , (i) the insured automobile is being made available for the individual's regular use by a corporation…. [54] Read as a whole and in the context of the legislative history of the section, the language of s. 3(7)(f) makes the actual situation at the time of the accident the focus of the section rather than theoretical possibilities. [55] Belobaba J. made this point in ACE INA Insurance v. Co-operators General Insurance Company (2009), 79 M.V.R. (5th) 312 (Ont. S.C.), at paras. 25-26, when he compared the language of the current section (at the time, s. 66(1) of the SABS Schedule under the heading “Company Automobiles and Rental Automobiles”) to the language of the comparable section under the same heading in the immediately preceding insurance regime: Section 66(1) [now s. 3(7)(f)]: if, at the time of the accident , the insured automobile is being made available for the individual’s regular use by a corporation…. Former section (s. 91(4) under O. Reg. 776/93): if an insured automobile is made available for the regular use of an individual… [Emphasis added.]. [56] By focusing on the time of the accident and adding the phrase “ is being ”, the current requirement speaks to reality, not hypotheticals. [57] Thus, in ACE INA Insurance v. Co-operators , even though an employee of rental car company made regular use of rental car vehicles during working hours, he did not meet the regular use requirement because the accident did not happen during working hours. At para. 17, Belobaba J. said: The question is not whether the car would be available to the claimant when he went back to work the next day but was it being made available to him at the time of the accident, when he was off work and on his way downtown in a friend’s car. [58] In ACE INA Insurance v. Co-operators , there was no issue about regular use. The sole issue was whether a company vehicle was “being made available” at the time of the accident. The answer turned on whether the employee had access and control at the time of the accident – he did not. [59] In this case, the primary issue is regular use. Mr. Ekstein had never made any use of company vehicles. Accordingly, the primary issue was not whether a company vehicle was available to him at the time of the accident. Rather, it was whether a company vehicle was being made available for his regular use at the time of the accident. [60] Although Mr. Ekstein’s control over the fleet of corporate vehicles may mean that at least some of them were theoretically available for him to use [9] at the time of the accident, to hold that a company vehicle was being made available for his regular use at the time of the accident would amount to speculation. [61] Like the SCAJ, I fail to see how availability for regular use can be imputed in the absence of any use up to the point of the accident. [62] Second, in the decisions relied on by the arbitrator, regular use was not in issue. Rather, the main issue in each case was again whether a corporate vehicle was being made available to the SABS claimant (or to a person on whom the SABS claimant was dependent) at the time of the accident. Again, the issue turned on access and control. The term “available” obviated any requirement that the SABS claimant actually be using an insured vehicle at the time of the accident. The decisions held that access to and control over a vehicle can support a finding that a vehicle was “available” to a claimant at the time of an accident. However, in both decisions, the claimant (or the insured upon whom the claimant was dependent), had regular use of an insured company vehicle. Accordingly, these decisions do not address the question whether, absent any use, access to and control over a company vehicle, standing alone, is sufficient to meet the requirement that a company vehicle “ is being made available for [an] individual’s regular use” at the time of the accident. [63] Third, in Dominion v. Federated , at p. 4, Arbitrator Densem canvassed the meaning ascribed to “regular use” in the caselaw and noted the propositions set out below (footnotes omitted). Not all of the cases from which these propositions are derived were dealing with the regular use provision of the SABS Schedule. However, it is noteworthy that none of these cases contemplated that no use could amount to regular use: · “regular” is intended to describe “periodic, routine, ordinary or general” as opposed to “irregular, or out of the ordinary, or special”; · the language of s. 66(1)(a) (the predecessor to s. 3(7)(f)) does not require that the use be frequent, exclusive (in the case of fleets), or personal, to be regular; · “regular use” has been defined in several arbitration decisions as being use that is “habitual, normal and recurred uniformly according to a predictable time and manner.” However, the cases where the individuals have been found not to be regular users of the subject vehicles were only those cases where the characterization of the use was “irregular at best and out of the ordinary”; · “regular use” does not require that the person for whom the vehicle is being made available be driving or operating the vehicle being made available. The person could be a pedestrian or even a passenger in someone else’s car. [64] Fourth, with the introduction of the no-fault benefits regime, the legislature chose to make an individual’s own insurer in most cases the first avenue of recourse for SABS: see s. 268(2) of the Act. According to Arbitrator Samis, as quoted in Kingsway General Insurance Company v. Gore Mutual Insurance Company , 2012 ONCA 683, 112 O.R. (3d) 1, at para. 44, with the introduction of what was originally referred to as the “company car” provision, the legislature made a policy choice that the first avenue of recourse for a regular user of a company car would be the corporate insurer: The traditional “company car” scenario involves situations where a business purchases a vehicle, and insurance for the vehicle, and then makes that vehicle available for the regular, personal, and frequent use of its employees or officers. Given the known frequency of these types of transactions, the legislature attempted to address how the new priority rules would apply to these situations. The apparent purpose of the regulation provision is to deem the person, for whom a vehicle is made available for regular use, to be a “named insured”. This is clearly a recognition that in these types of transactions the regular user is in such a relationship with the vehicle and the vehicle insurer that that person should claim their benefits first from the insurer of the vehicle, rather than claim benefits from some other insurance company. [65] Given the apparent purpose of the company car or regular use provision, I find it difficult to conceive that the legislature intended to make the corporate insurer the customary first avenue of recourse for SABS for a corporate owner/executive who has never used a corporate vehicle. [66] I conclude that the arbitrator made at least a palpable and overriding error in failing to give effect to the evidence that Mr. Ekstein had never used any of the corporate vehicles and in finding that Mr. Ekstein met the regular use requirement in s. 3(7)(f) of the SABS Schedule and was therefore a named insured under Continental’s policy. (2) Did the SCAJ err in finding that, as the priority insurer under the s. 268 priority rules, Chubb is obliged to indemnify Continental for basic mandatory SABS payments made to Mr. Ekstein under OPCF 47? [67] To answer this question, it is necessary to review OPCF 47, s. 227 of the Act, Financial Services Commission of Ontario (“FSCO”) Bulletins A-17/96 and A‑10/97, and the SCAJ’s reasons. (a) OPCF 47 [68] Continental has acknowledged that, in addition to basic mandatory SABS coverage, Mr. Ekstein’s company purchased optional enhanced SABS coverage under Continental’s fleet policy. [69] Section 28(4) of the SABS Schedule provides that where an insured purchases optional enhanced SABS coverage the insurer shall issue an OPCF 47 endorsement as approved by the Commissioner of Insurance under s. 227 of the Act: 28(4) If a person purchases an optional benefit referred to in subsection (1), the insurer shall issue to the person the endorsement set out in Ontario Policy Change Form 47 (OPCF 47), as approved by the Commissioner of Insurance on December 3, 1996 under section 227 of the Act. [70] Subject to the requirement that the person not claim SABS under another policy, OPCF 47 allows a person with optional enhanced SABS coverage under a motor vehicle insurance liability policy to claim SABS under that policy even though the s. 268 priority of payment rules may require the person to claim SABS under another policy. The endorsement reads as follows: OPCF 47 Agreement Not to Rely on SABS Priority of Payment Rules 1. Purpose of This Endorsement This endorsement is part of your policy. It has been made because persons who are entitled to receive optional statutory accident benefits under this policy may, by the priority of payment rules in Section 268 of the Insurance Act , be required to claim under another policy that does not provide them with the optional statutory accident benefits that have purchased under this policy. This endorsement allows these persons to claim Statutory Accident Benefits (SABS) under this policy, including the optional statutory accident benefits provided by this policy, provided they do not make a claim for SABS under another policy. 2. What We Agree To If optional statutory accident benefits are purchased and are applicable to a person under this policy, and the person claims SABS under this policy as a result of an accident and agrees not to make a claim for SABS under another policy, we agree that we will not deny the claim, for both mandatory and optional statutory accident benefits coverage purchased, on the basis that the priority of payment rules in Section 268 of the Insurance Act may require that the person claim SABS under another insurance policy. All other terms and conditions of the policy remain the same. [Emphasis added.] (b) Section 227 of the Act [71] Section 227(2) of the Act permits the Chief Executive Officer to approve an endorsement where any provision of Part VI of the Act is inappropriate to the requirements of a contract with the result that the approved endorsement is effective in accordance with its terms even if its terms are inconsistent with or vary a provision of Part VI: 227(2) Where , in the opinion of the Chief Executive Officer, any provision of this Part , including any statutory condition, is wholly or partly inappropriate to the requirements of a contract or is inapplicable by reason of the requirements of any Act, he or she may approve a form of policy, or part thereof, or endorsement evidencing a contract sufficient or appropriate to insure the risks required or proposed to be insured , and the contract evidenced by the policy or endorsement in the form so approved is effective and binding according to its terms even if those terms are inconsistent with, vary , omit or add to any provision or condition of this Part . [Emphasis added.] [72] As noted above, OPCF 47 was approved in December 1996. (c) FSCO Bulletins A-17/96 and A-10/97 [73] FSCO Bulletin A-17/96 was issued soon after OPCF 47 was approved “to assist insurers in interpreting s. 268 of the [Act]”. The Bulletin notes that the insurance industry had expressed concern that certain interpretations of the Act could frustrate the objectives of optional statutory accident benefits. [74] Bulletin A-17/96 states, in part, that “a key objective of the Automobile Insurance Rate Stability Act, 1996 (Bill 59) [was] to lower the cost of compulsory automobile insurance by establishing” basic mandatory SABS coverage suitable for most consumers but allowing for the purchase of optional enhanced benefits for consumers who required such coverage. The optional enhanced coverage was intended to be portable, meaning it would apply to the consumer, their spouse and dependent(s) and any listed driver on the policy, whether the accident took place in the vehicle covered by the policy or any other vehicle. Further, the “rate filings of insurers for the optional statutory accident benefits reflects this portable aspect of the coverage.” [75] However, because certain interpretations of the Act may not reflect the intended portability, “endorsement form OPCF 47, Agreement Not to Rely on SABS Priority of Payment Rules” was developed to “protect purchasers of optional statutory accident benefits from different interpretations of the Act which may result in denial of coverage.” An example of this potential was explained as follows: An example is a consumer who has purchased his or her own policy with optional statutory accident benefits. The consumer is injured in an accident while occupying the vehicle of a spouse or dependent who is insured under a separate policy without optional statutory accident benefits. The Act can be interpreted, in this case, to require the consumer with optional statutory accident benefits, to claim under the spouse’s or dependent’s policy instead [under s. 268(5.2)]. As a result, the consumer who has purchased optional statutory accident benefits would not be able to claim these benefits. [76] FSCO Bulletin A-10/97 was issued on November 19, 1997 as a supplement to Bulletin A-17/96 because of “questions about how [OPCF 47] should be interpreted in certain situations.” Bulletin A-10/97 notes that OPCF 47 was mandated, in part, to ensure insured persons are able to access optional enhanced SABS regardless of how the priority of payment rules set out in subsections 268(2), (4), (5), (5.1) and (5.2) of the Act are interpreted. Under the heading “Effect of the Endorsement”, Bulletin A-10/97 states , in part, the following: The OPCF 47 provides that if optional accident benefits are purchased and are “ applicable ” to a person under the policy, the insurer will permit the insured person to claim both mandatory accident benefits and optional accident benefits under that policy . The insurer will not deny benefits on the basis that the priority of payment rules set out in section 268 of the Act provide that another insurer is liable to pay the mandatory accident benefits. The endorsement also provides that where an insured person claims both mandatory accident benefits and optional accident benefits from an insurer, the insured person agrees not to apply for SABS under another policy. This is to prevent double compensation. [Emphasis in original.] [77] Bulletin A-10/97 goes on to explain that an optional accident benefit would be “applicable” if the insured person was involved in an accident and met the eligibility criteria for the benefit as set out in the SABS [Schedule] and provides an example. (d) The SCAJ’s decision [78] On the arbitrator’s findings, Continental was both the s. 268 priority insurer and the OPCF 47 optional enhanced benefits insurer. However, because the SCAJ reversed the arbitrator’s finding that Mr. Ekstein was a deemed named insured under the Continental policy, Chubb became the priority insurer under s. 268(5) of the Act. [79] In the SCAJ’s view, this created a dichotomy between Mr. Ekstein’s right to SABS coverage, which was governed by contract, and the rights and obligations as between the two insurers for SABS, which, in his view, were governed by the Act. [80] In concluding that, as between the insurers, the statutory priority regime in s. 268 of the Act prevails, the SCAJ adopted the arbitrator’s reasoning in Echelon General Insurance Company v. Co-operators General Insurance Company, 2015 CarswellOnt 20908, at paras. 26-28, 43 and 45. [81] In Echelon , the claimant applied to Echelon for SABS under a policy for the automobile she was driving when the accident occurred, which included basic mandatory SABS coverage. Echelon initiated a priority dispute with Co-operators, which had issued a policy to the claimant’s father that included optional enhanced SABS coverage. The claimant was a listed driver under the Co-operators policy. Co-operators denied coverage on the basis that the claimant’s injuries appeared to fall within minor injury guidelines such that optional enhanced benefits would not be applicable. The dispute proceeded to arbitration under the Disputes Between Insurers regulation. [82] In his reasons, the Echelon arbitrator noted the evolution of the automobile insurance regime in Ontario, from a tort regime to a system with significant no-fault benefits to a more hybrid regime – and the corresponding evolution of the mandatory SABS scheme, from a broad and extensive scheme to a less extensive scheme coupled with the requirement in s. 28 of the SABS Schedule to offer optional enhanced benefits. [83] The arbitrator also noted that it became apparent that receipt of optional enhanced SABS might be jeopardized by the s. 268 priority rules, which could require a claimant to apply for SABS to an insurer other than their optional enhanced SABS insurer. But rather than revise the Act, the government responded with OPCF 47, which the arbitrator described as “an undertaking given solely in respect of a denial of the claim and [which] does not speak to priority dispute issues, between insurers.” [84] At paras. 26-28 and 45 of his reasons, the arbitrator considered what would have happened had the claimant applied to Co-operators for SABS. He concluded that, under OPCF 47, Co-operators would have been obliged to pay both basic mandatory and optional enhanced SABS. He was also of the view that there was nothing in OPCF 47, the Act or the SABS Schedule that would have precluded Co‑operators from seeking reimbursement, at least for basic mandatory SABS and any optional enhanced SABS that might be available under Echelon’s policy from Echelon, a higher ranking insurer under the s. 268 priority rules. To hold otherwise would be a windfall for the higher ranking insurer and “a dislocation of risk which would necessarily make optional benefits coverage inordinately expensive, far more expensive than the breadth of extended coverage obtained for the consumer.” Nonetheless, in his view, Co-operators would not have been entitled to off-load the continuing handling of the claim. [85] However, the claimant had applied to Echelon for SABS and the question before the arbitrator was whether Echelon could claim reimbursement for basic mandatory SABS from Co-operators. The issue whether OPCF 47 applied and made Co-operators responsible for SABS raised four questions: · had optional enhanced SABS been purchased?; · were the optional enhanced SABS applicable to the claimant?; · had or could the claimant claim SABS under the Co-operators policy?; and · had or could the claimant agree not to make a claim for SABS under another policy? [86] The first condition was obviously satisfied. Further, the arbitrator found the policy was applicable to the claimant because she fell within the category of persons to whom optional enhanced benefits were applicable under s. 28(2) of the SABS Schedule. [10] Without foreclosing the possibility that the claimant could, at some point in the future, successfully satisfy the third and fourth conditions and advance a claim for optional enhanced SABS directly against Co-operators, the arbitrator found that Echelon could not seek reimbursement from Co-operators for the basic mandatory SABS it had paid. The arbitrator reasoned that Echelon would not have had that right if optional enhanced SABS had not been purchased. Further, he saw nothing in OPCF 47 or the Disputes Between Insurers regulation that would permit Echelon to seek reimbursement from Co-operators. In his view, this outcome was consistent with what would have happened had the claimant applied to Co-operators for SABS. Either way, the s. 268 priority insurer would ultimately be responsible for basic mandatory SABS, a result which precluded unduly loading costs onto the optional benefits insurer: [T]he net result is that the obligation for the mandatory benefits ultimately rests with the insurer having the highest ranking under section 268 of the Insurance Act . This is entirely appropriate. It supports the legislative intention of making optional benefits available at reasonable cost. Any other interpretation would have the effect of unduly loading costs onto the optional benefit insurers and would discourage individuals from purchasing that coverage for their protection. [Emphasis added.] [87] The SCAJ adopted the arbitrator’s reasoning and held that while Continental must pay both standard and optional SABS to Mr. Ekstein under OPCF 47, Chubb must reimburse Continental for all basic mandatory SABS paid to Mr. Ekstein together with associated administrative expenses. (e) Discussion [88] Continental submits that the SCAJ reached the correct conclusion: nothing in OPCF 47, the Act or the SABS Schedule displaces the right of an insurer that provides optional enhanced SABS coverage to seek reimbursement for basic mandatory SABS from another insurer in accordance with the s. 268 priority rules. Further, optional enhanced SABS only come into play once basic mandatory SABS are exhausted. To hold otherwise could lead to the anomalous situation that persons who mistakenly apply to the “wrong” insurer (i.e., under the policy that does not provide optional enhanced SABS coverage) will be left without recourse against any insurer. [89] I would not accept this submission for four reasons. [90] First, OPCF 47 is clear in requiring the optional enhanced SABS insurer to pay both basic mandatory and optional enhanced SABS: OPCF 47 1. Purpose of This Endorsement This endorsement allows these persons to claim Statutory Accident Benefits ( SABS ) under this policy, including the optional statutory accident benefits provided by this policy, provided they do not make a claim for SABS under another policy. 2. What We Agree To If optional statutory accident benefits are purchased and are applicable to a person … and the person claims SABS under this policy … and agrees not to make a claim for SABS under another policy, we agree that we will not deny the claim, for both mandatory and optional statutory accident benefits coverage purchased, on the basis that the priority of payment rules in Section 268 of the Insurance Act may require that the person claim SABS under another insurance policy. [91] Second, contrary to the SCAJ’s conclusion and the Echelon arbitrator’s reasons, I conclude that OPCF 47 displaces the s. 268 priority rules. That is because OPCF 47 is inconsistent with those rules and because s. 227(2) of the Act makes OPCF 47 effective in accordance with its terms even though it may be inconsistent with the s. 268 priority rules. [92] Section 268(2) of the Act specifies the insurer against which a person may have recourse for SABS in particular circumstances. Section 268(3) requires that insurer to pay SABS: 268(3) An insurer against whom a person has recourse for the payment of statutory accident benefits is liable to pay the benefits. [93] Where applicable, on its face, OPCF 47 contradicts those provisions. If a claimant applies for SABS to an insurer providing optional enhanced SABS coverage, the coverage is applicable and the claimant agrees not to apply for SABS to another insurer, OPCF 47 requires the optional enhanced SABS coverage insurer, and not the s. 268 priority insurer, to pay both basic mandatory and optional enhanced SABS. When OPCF 47 was approved it 1996, it became effective in accordance with its terms: s. 227(2) of the Act. [94] Section 227(2) provides an apparently rarely used power to the Chief Executive Officer to make an endorsement that is inconsistent with the Act effective in accordance with its terms despite its inconsistency with the Act. In Prasad v. GAN Canada Insurance Co. (1997), 33 O.R. (3d) 481 (Ont. C.A.) appl. for leave to appeal to S.C.C. dismissed, [1997] S.C.C.A. No. 389, this court held that a territorial limitation in an approved policy could not limit the statutorily mandated coverage specified in the SABS Schedule and rejected an argument that policy approval meant that the territorial restriction overrode the SABS Schedule [11] . This court observed that there was no evidence that a decision had been made to approve a policy inconsistent with the Act. [95] However, in Prasad , the policy did not reference the regulation and the conflict was not apparent from the face of the document. Here, the conflict is identified in OPCF 47 and it cannot realistically be suggested that the Chief Executive Officer did not turn his/her mind to the conflict or to approving an endorsement inconsistent with the Act. [96] Fundamentally, both s. 268 of the Act and OPCF 47 address who must pay SABS in particular circumstances. They do not address reimbursement. Any right of reimbursement arises only where one insurer has paid SABS when another insurer has the obligation to pay. Where it applies, OPCF 47 obliges an insurer that provides optional enhanced coverage to pay both basic mandatory and optional enhanced SABS. An optional enhanced SABS coverage insurer cannot claim reimbursement from another insurer when the optional enhanced coverage insurer undertook the obligation to pay. [97] The FSCO Bulletins support the interpretation that the OPCF 47 insurer undertakes the obligation to pay both basic mandatory SABS and optional enhanced SABS; that the risk of doing so is built into the premiums; and that the ultimate intention of the legislature was to reduce the cost of compulsory automobile insurance. The Echelon arbitrator noted that the Bulletins address contractual rights between insured and insurer, not rights or reimbursement between insurers. However, this is because there is no independent right of reimbursement. The right only arises where one insurer, as the first insurer to receive a SABS application, is required to assume another insurer’s obligation to pay. By virtue of OPCF 47, the optional enhanced SABS insurer assumes the obligation to pay. [98] Third, on their face, the s. 268 priority rules and s. 268(3) of the Act (and s. 2(4) of the SABS Schedule) make an insurer liable to pay SABS; they do not make an insurer liable to pay basic mandatory SABS alone. Put another way, nothing in s. 268, the SABS Schedule, or the Disputes Between Insurers regulation, makes an insurer liable for only a portion of the SABS payable to a particular person or stipulates that SABS obligations can be bifurcated. [99] Fourth, two arbitration decisions, neither of which was brought to the SCAJ’s attention, have made comments critical of the Echelon arbitrator’s analysis and support the conclusion that OPCF 47 displaces the s. 268 priority rules: Jevco Insurance Company v. Chieftain Insurance Company (Arbitrator Samworth – March 11, 2016) and Co-operators General Insurance Company v. Certas Home & Auto Insurance Company (Arbitrator Cooper – April 2019). [100] Like Echelon , the comments in Jevco were obiter . However, in Co‑operators , the arbitrator refused an optional enhanced SABS insurer’s request for reimbursement for basic mandatory SABS payments from a s. 268 priority insurer largely on the basis of the Jevco analysis. [101] In Jevco , the claimant was injured while riding a motorcycle. He applied for SABS to his motorcycle insurer, Jevco. The Jevco policy did not include optional enhanced SABS but the claimant’s car insurance policy, issued by Chieftain, did. Jevco initiated a priority dispute with Chieftain. [102] The Jevco arbitrator expressed the view that the wording of OPCF 47, which speaks to an insurer not denying a claim for benefits on the basis of the s. 268 priority rules, is both “antiquated” and “meaningless”. Because of O. Reg. 34/10, which amended the Disputes Between Insurers regulation (O. Reg. 283/95) and developments in the caselaw, an insurer cannot deny SABS on the basis it is not the priority insurer: “[t]hat battle is left up to an inter-company dispute.” Accordingly, the only reasonable way to interpret OPCF-47 is that if the optional benefits insurer receives a SABS claim, “then they do not have the right to make a priority dispute claim under Regulation 34/10 for any of the benefits they are paying to their insured.” [103] Further, the Jevco arbitrator opined that claims for reimbursement for a portion of benefits paid is not permitted: I do not find the wording of the regulation, the OPCF-47 and Section 268 of the Insurance Act provides a basis for pursuing a portion of benefits paid. Clearly Chieftain could not pursue Jevco for the optional benefits as they did not provide for those benefits. [104] In addition, the Jevco arbitrator rejected the idea that a complex scheme of reimbursement such as that contemplated in Echelon was intended: I believe that the regulation and the endorsement was intended to simplify the process for the insured’s receipt of optional benefits … and to pre-empt private disputes between insurers on this issue and not set up a complex scheme for priority disputes, reimbursements between various insurers nor placing the administration of a [SABS] claim with an insurer who would not be actually making the payments. [105] In the result, the Jevco arbitrator concluded that, as between Jevco and Chieftain, Jevco was responsible to pay SABS to the claimant. As noted above, the SABS claimant had applied to Jevco for SABS. In the result, the SABS claimant did not have access to the optional enhanced benefits in the Chieftain policy. [106] The Co-operators arbitrator agreed with the Jevco arbitrator’s interpretation of OPCF 47. Co-operators also involved a motorcycle accident, a motorcycle policy including basic mandatory SABS only and a motor vehicle policy with optional enhanced SABS. However, in that case, the claimant applied to the optional enhanced SABS insurer, Co-operators, for SABS benefits. Relying on Echelon , Co‑operators subsequently initiated a priority dispute with the motorcycle insurer, Certas, seeking reimbursement for benefits paid. The Co-operators arbitrator said: The OPCF 47 endorsement changes everything and, provided that the claimant satisfies the four conditions present in the endorsement, the optional benefits insurer is required to administer both mandatory and optional benefits coverages without regard for the priority of payment rules in Section 268 of the Insurance Act . [Emphasis added.] [107] The Jevco arbitrator acknowledged that the result in that case was harsh because the SABS claimant was not afforded access to the optional enhanced SABS coverage he had purchased. However, the issue before her was obligations as between insurers. While she had commented that the SABS claimant was not entitled to re-elect from which insurer he wished to claim benefits, she was not purporting to decide the claimant’s options. That question was for another forum. [12] [108] I observe that potential unfairness arising from an insured’s errors when applying for SABS may, in some cases, be corrected by invoking relief from forfeiture as happened in this case. [109] I conclude that the SCAJ erred in holding that liability for SABS can be bifurcated under s. 268(2) of the Act. I would therefore set aside his order requiring Chubb to reimburse Continental for the cost of basic mandatory SABS payments and all expenses associated with administering those benefits. D. disposition [110] Based on the foregoing reasons, the appeal is allowed and paras. 1(c) and (d) of the SCAJ’s order requiring that Chubb reimburse Continental for the cost of basic mandatory SABS and related benefits are set aside. [111] Costs of the appeal are to Chubb on a partial indemnity scale fixed in the amount of $20,000 inclusive of disbursements and applicable HST. The parties may file brief written submissions within 21 days if further costs orders are required (14 days for initial submissions, 7 days for a response). Released: March 7, 2022 “J.C.M.” “Janet Simmons J.A.” “I agree. J.C. MacPherson J.A.” “I agree. I.V.B. Nordheimer J.A.” Appendix ‘A’ Liability to pay 268 (2) The following rules apply for determining who is liable to pay statutory accident benefits: 1.  In respect of an occupant of an automobile, i.  the occupant has recourse against the insurer of an automobile in respect of which the occupant is an insured, ii.  if recovery is unavailable under subparagraph i, the occupant has recourse against the insurer of the automobile in which he or she was an occupant, iii.  if recovery is unavailable under subparagraph i or ii, the occupant has recourse against the insurer of any other automobile involved in the incident from which the entitlement to statutory accident benefits arose, iv.  if recovery is unavailable under subparagraph i, ii or iii, the occupant has recourse against the Motor Vehicle Accident Claims Fund. 2.  In respect of non-occupants, i.  the non-occupant has recourse against the insurer of an automobile in respect of which the non-occupant is an insured, ii.  if recovery is unavailable under subparagraph i, the non-occupant has recourse against the insurer of the automobile that struck the non-occupant, iii.  if recovery is unavailable under subparagraph i or ii, the non-occupant has recourse against the insurer of any automobile involved in the incident from which the entitlement to statutory accident benefits arose, iv.  if recovery is unavailable under subparagraph i, ii or iii, the non-occupant has recourse against the Motor Vehicle Accident Claims Fund. Liability (3) An insurer against whom a person has recourse for the payment of statutory accident benefits is liable to pay the benefits. Choice of insurer (4) If, under subparagraph i or iii of paragraph 1 or subparagraph i or iii of paragraph 2 of subsection (2), a person has recourse against more than one insurer for the payment of statutory accident benefits, the person, in his or her absolute discretion, may decide the insurer from which he or she will claim the benefits Same (5) Despite subsection (4), if a person is a named insured under a contract evidenced by a motor vehicle liability policy or the person is the spouse or a dependant, as defined in the Statutory Accident Benefits Schedule , of a named insured, the person shall claim statutory accident benefits against the insurer under that policy. Same (5.1) Subject to subsection (5.2), if there is more than one insurer against which a person may claim benefits under subsection (5), the person, in his or her discretion, may decide the insurer from which he or she will claim the benefits. Same (5.2) If there is more than one insurer against which a person may claim benefits under subsection (5) and the person was, at the time of the incident, an occupant of an automobile in respect of which the person is the named insured or the spouse or a dependant of the named insured, the person shall claim statutory accident benefits against the insurer of the automobile in which the person was an occupant. [1] Axa Boreal Assurances v. Co-operators Insurance Co. (2000), 50 0.R. (3d) 395 (C.A.), at paras. 18 and 19. [2] The arbitrator also found that Mr. Ekstein was a listed driver and an insured under the Continental policy. [3] At para. 119 of his reasons, the arbitrator referred to the priority provisions of s. 268 of O. Reg. 283/95. However, it is obvious from the context that the arbitrator was referring to s. 268 of the Act. [4] Section 268(1.1) provides an exception concerning occupants of public transit vehicles. [5] The full text of these sections is set out in Appendix ‘A’. [6] Section 268(5.2) does not apply to the facts of this case. It stipulates that if a person is a named insured under more than one policy and was, at the time of the incident, an occupant of an automobile in respect of which the person is a named insured (or the spouse or a dependant of the named insured), the person must claim SABS against the insurer of the automobile in which the person was an occupant. As noted, Mr. Ekstein was a pedestrian, or “non-occupant”, when struck by the pick-up truck. [7] Access to the Federated policy depended on s. 268(5.2) of the Act which reads: If there is more than one insurer against which a person may claim benefits under subsection (5) and the person was, at the time of the incident, an occupant of an automobile in respect of which the person is the named insured or the spouse or a dependant of the named insured, the person shall claim statutory accident benefits against the insurer of the automobile in which the person was an occupant. [8] Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, 441 D.L.R. (4th) 1. [9] Continental disputes this factual point because the accident occurred on a weekend when Mr. Ekstein was at his cottage and the corporate office was closed. [10] This reasoning may not accord with FSCO Bulletin A10/97 concerning the meaning of “applicable”. The arbitrator said he found the Bulletin inconsistent in addressing the issue and, overall, “not helpful”. [11] In Prasad , this court also noted that the territorial limitation provision in the Act was amended after the date on which the events in that case occurred to encompass SABS benefits. Prasad has subsequently been distinguished on that basis but not in relation to the comments concerning s. 227 of the Act. [12] Unlike in this case, in Jevco , the claimant did not seek status on the arbitration.

COURT OF APPEAL FOR ONTARIO CITATION: IT Haven Inc. v. Certain Underwriters at Lloyd’s, London, 2022 ONCA 189 DATE: 20220303 DOCKET: C68990 Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J. ( ad hoc ) BETWEEN IT Haven Inc. and Ryan Hunt Applicants (Respondents) and Certain Underwriters at Lloyd’s, London Respondent (Appellant) Jamie Spotswood and Camille Beaudoin, for the appellant Rebecca Huang and Vincent DeMarco, for the respondents Heard: October 19, 2021 by video conference On appeal from the order of Justice Mark L. Edwards of the Superior Court of Justice, dated December 15, 2020, with reasons reported at 2020 ONSC 7835. COSTS ENDORSEMENT [1] Having considered the submissions of the parties, costs are awarded to the respondent in the appeal, fixed at $25,000, inclusive of disbursements and all applicable taxes. “G.R. Strathy C.J.O.” “B. Zarnett J.A.” “Wilton-Siegel J.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.5 (1)     Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. (2)     On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice. (2.1) The offences for the purposes of subsection (2) are (a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c). (3)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community. (4)     An applicant for an order shall (a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies. (5)     An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice. (6)     The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private. (7)     In determining whether to make an order, the judge or justice shall consider (a) the right to a fair and public hearing; (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; (c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation; (d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (f) the salutary and deleterious effects of the proposed order; (g) the impact of the proposed order on the freedom of expression of those affected by it; and (h) any other factor that the judge or justice considers relevant. (8)     An order may be subject to any conditions that the judge or justice thinks fit. (9)     Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (a) the contents of an application; (b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19 486.6 (1)  Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Henry, 2022 ONCA 191 DATE: 20220308 DOCKET: C67954 Rouleau, Nordheimer and George JJ.A. BETWEEN Her Majesty the Queen Respondent and Casey Matti Henry Appellant George (Knia) Singh, for the appellant Rebecca Schwartz, for the respondent Heard: March 2, 2022 by video conference On appeal from the conviction entered by Justice Sean F. Dunphy of the Superior Court of Justice on November 12, 2019, and from the sentence imposed on January 17, 2020. REASONS FOR DECISION [1] Mr. Henry appeals his conviction, and seeks leave to appeal his sentence, on one count of sexual assault. [2] The background facts may be stated simply. The appellant and the complainant met online. They made plans to meet up that same day. The appellant picked the complainant up in his car. He had a friend with him. The appellant eventually dropped the friend off in Brampton. The appellant and the complainant then went to the appellant’s place where he showered. He dressed in boxers and a t-shirt and lay on his bed. He invited the complainant to join him there. Sexual activity took place. The appellant believed it was consensual. The complainant says it was not. [3] The central issue at trial was consent. Credibility played an obvious role in the determination of that issue. The appellant raises three grounds of appeal: (i) the trial judge erred in dismissing an application under s. 276 of the Criminal Code , R.S.C. 1985, c. C-46; (ii) there was a reasonable apprehension of bias on the part of the trial judge; and (iii) the trial judge erred in his assessment of the credibility of the complainant. [4] We do not accept any of these challenges to the trial judge’s decision. In terms of the first ground, evidence of a complainant’s sexual activity extrinsic to the subject matter of the charge is presumptively inadmissible: Code , s. 276(2); R. v. Goldfinch , 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 40. The issue in this case was whether a text message that the complainant sent to the appellant regarding her experiences with Black men, along with evidence that the complainant had a history of going to bars and meeting men, satisfied the criteria for admissibility under s. 276. [1] In our view, the trial judge was correct in finding that they did not. In particular, we agree with the trial judge that the comments regarding Black men were sexual in nature and, considering the context in which they were made, including the fact that they were raised by the appellant, are not suggestive of any animus on the complainant’s part. We also agree with the trial judge that the contents of the text message regarding her prior experiences were not relevant to the issues in the trial and that the evidence about past conduct relating to bars was, at best, peripherally relevant. [5] On the second ground of appeal, we do not see anything in the record that would substantiate the assertion that the trial judge exhibited any bias. The fact that the trial judge interjected frequently during defence counsel’s argument of the s. 276 application does not evidence bias. It is clear that the trial judge was having some difficulty accepting the points that counsel was trying to make, and he made that clear to counsel in an effort to get a better explanation. While the trial judge might have been better to restrain the frequency of his interventions, in order to avoid creating a potential appearance of unfairness, his conduct does not rise to the very high level required for a conclusion of bias: R. v. Ibrahim , 2019 ONCA 631, 147 O.R. (3d) 272, at para. 84. [6] Further, the fact that the trial judge intervened on a few occasions in the course of the appellant’s cross-examination of the complainant but did not exercise more control over the complainant (who was a difficult witness) when she was being cross-examined does not demonstrate bias. It is up to each trial judge to decide how and how much they will intervene in those types of situations. Some judges will do more; some will do less. Bias does not necessarily arise from deciding one way as opposed to the other. It is worthy of note, on this point, that the trial judge took the same approach when the appellant was cross-examined and also proved to be difficult. [7] On the third ground of appeal, the appellant has not been able to point to anything in the record that undermines the conclusions that the trial judge reached regarding the credibility of either the complainant or the appellant. The trial judge explained why he believed the complainant and, in doing so, he addressed many of the inconsistencies and other issues that arose from her evidence. The trial judge also explained the difficulties he had with the appellant’s evidence. Ultimately, that was the trial judge’s call to make. The appellant has failed to identify a proper basis that would permit this court to interfere with those findings. [8] On the sentence appeal, the trial judge correctly identified the range of sentence for this offence as being between three and five years. He decided on a sentence of three and one-half years. In reaching his conclusion, the trial judge noted that the sexual assault involved forced fellatio and vaginal intercourse. He also found that the appellant’s behaviour towards the complainant was demeaning. The trial judge’s decision on sentence is entitled to deference. Absent an error in principle, or the failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor, an appellate court is not warranted in intervening: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. There are no such errors, or failures, in this case. [9] The conviction appeal is dismissed. Leave to appeal sentence is granted but the appeal is dismissed. “Paul Rouleau J.A.” “I.V.B. Nordheimer J.A.” “J. George J.A.” [1] We recognize that references to evidence relating to an application under s. 276 of the Criminal Code are covered by a publication ban pursuant to s. 278.95. However, we consider it appropriate, in this case, to exercise our discretion to publish our reasons: R. v. N.H. , 2021 ONCA 636, 158 O.R. (3d) 294 .

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. S.R., 2022 ONCA 192 DATE: 20220308 DOCKET: C68687 van Rensburg, Nordheimer and George JJ.A. BETWEEN Her Majesty the Queen Respondent and S.R. Appellant Maija Martin, for the appellant Mark Luimes, for the respondent Heard: January 31, 2022 by video conference On appeal from the conviction entered on January 16, 2020 by Justice Irving W. André of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant was found guilty of one count each of sexual assault, touching for a sexual purpose and invitation to touching for a sexual purpose. The trial judge conditionally stayed the sexual assault count under Kienapple , and entered convictions on the other two charges. The appellant appeals his convictions. [2] For the reasons that follow, we allow the appeal, set aside the convictions, and direct a new trial. [3] The events giving rise to the charges were alleged to have occurred in 2015 and 2016 when the complainant, M.B., was eight and nine years old. She had been attending karate classes at a martial arts gym or “dojo”. The appellant was 60 years old at the time, and had been her instructor for a couple of years. M.B. alleged several instances of inappropriate touching by the appellant at the gym. M.B. eventually complained to her father and reported the incidents to the police. The appellant was arrested and charged the same day. [4] M.B. was 12 years old at the time of the trial. Her police statement was introduced in evidence under s. 715.1 of the Criminal Code , and she testified. M.B.’s father and the appellant also testified. [5] M.B. testified that, when she and the appellant were alone, the appellant had on five or six occasions removed his pants and underwear and exposed his penis to her in the practice area, and on one occasion he told her to grab his penis in order to throw him. She testified that the appellant had reached under her top and tickled her breast while the other students were on a water break, and that, on another occasion, he had looked inside her pants in the girls’ change room during a water break. [6] The appellant testified through an interpreter. He denied that he had touched M.B. inappropriately, that he had ever taken off his clothes in front of her, or that he had exposed his penis and invited her to touch it. He testified that he was never alone with M.B., who was a member of a class with several students, and that there was a glass door, which was always open, but no curtain between the gym area and the room where parents would wait for their children. He also initially testified that he had a good relationship with M.B.’s father, but he went on to recount various disagreements they had, including a confrontation over M.B.’s sister eating candy in the dojo, which he claimed had taken place the day that M.B.’s father confronted him with M.B.’s allegations. [7] The trial judge stated that he disbelieved the appellant’s evidence and that it was “incapable of raising a reasonable doubt” in the Crown’s case. He found M.B.’s evidence both credible and reliable, and he concluded that, based on the totality of the evidence that he accepted, the Crown had proven the offences beyond a reasonable doubt. [8] The appellant raises three grounds of appeal, which he contends individually or together warrant a reversal of his convictions and a new trial: (1) the trial judge’s assessment of his credibility was based on material misapprehensions of his evidence; (2) the trial judge did not assess the credibility or reliability of the evidence of M.B.’s father, and did not consider whether parts of his evidence, together with the appellant’s evidence, were capable of raising a reasonable doubt; and (3) the trial judge erred in concluding that M.B. had no motive to lie, and in treating this as affirmative evidence that she was telling the truth. [9] We turn now to the first ground of appeal. The appellant asserts that the trial judge misapprehended his evidence in three respects. The first two misapprehensions, which are conceded by the Crown, are relevant to the appellant’s opportunity to commit the offences, which was a live issue at trial. [10] First, the trial judge wrongly believed that the Crown had established an inconsistency in the appellant’s evidence stemming from his statement to the police about whether there was a curtain separating the practice area from the waiting area. The trial judge stated: [The appellant] testified that he never had a curtain in the practice area that restricted the view of parents of the dojo. In cross-examination the Crown put to him that he told the police that there was a curtain. When confronted by this discrepancy, [the appellant] replied regarding his statement to the police that, “I was nervous. My brain shut down”. [11] In fact, there was no such exchange. The appellant testified that there was no curtain in the studio, which was inconsistent with M.B.’s evidence, but consistent with that of her father. While the appellant provided a statement to the police at the time of his arrest, there was no evidence that he spoke about a curtain. The appellant was not confronted with any apparent inconsistency on this point. He did state that he was nervous and that his brain shut down while speaking to police, but this was not in relation to comments made about a curtain. [12] The second misapprehension of the appellant’s evidence was in the trial judge’s statement that the appellant “testified in-chief that he did not keep track of which students did not attend his classes, but stated in cross-examination that he did”. Again, the trial judge was pointing to an inconsistency in the appellant’s evidence that did not exist. The appellant did not testify that he did not keep track of the students’ attendance: his evidence in chief was that the number of students in his classes fluctuated, and in cross-examination he testified that he knew how many students were there because he had papers for them. [13] The third alleged misapprehension of the appellant’s evidence was with respect to the appellant’s failure to inform the police about his disagreements with the complainant’s father. The trial judge stated that the appellant conceded that he never told the police about the problem he testified that he had with M.B.’s father concerning the father’s distribution of religious flyers at the gym, and “replied that the police never asked him about that”. The trial judge identified this as a significant omission given the appellant’s testimony that he had this problem with M.B.’s father for a long time. However, the appellant gave a number of reasons why he had not told the police about the problem he had with the flyers, including that his English was not good. In his re-examination, he was asked whether the police had asked him about his relationship with the father, and he responded “no”. [14] We agree that, in each of these instances, the trial judge’s misstatements of the appellant’s testimony reveal a misapprehension of the evidence. However, a mere misstatement or inaccuracy in a trial judge's treatment of the evidence does not constitute a reversible error. The test for concluding that a misapprehension of evidence has resulted in a miscarriage of justice, such as to warrant setting aside a conviction, is stringent. The court will interfere only where the misapprehension is of substance rather than detail, is materia l rather than peripheral to the trial judge’s reasoning, and the error plays an essential part in the reasoning process , not just of the narrative: R. v. Cloutier , 2011 ONCA 484, 272 C.C.C. (3d) 291, at para. 60. [15] Where the alleged misapprehension is respecting evidence used to assess credibility, the decision whether a miscarriage of justice has occurred turns on the extent to which the misapprehended evidence played a role in the trial judge’s credibility assessment: R. v. Alboukhari , 2013 ONCA 581, 310 O.A.C. 305, at paras. 36-37. If the trial judge mischaracterized parts of the accused’s evidence that were central to the assessment of credibility, there is more likely to be a miscarriage of justice: Alboukhari , at para. 38, citing R. v. C.L.Y. , 2008 SCC 2, [2008] 1 S.C.R. 5, and Whitehouse v. Reimer (1980), 34 A.R. 414 (C.A.). [16] The appellant submits that the trial judge’s misapprehensions of his evidence were substantial and material, in that they played a central role in his credibility assessment. The Crown contends that, while there were two errors, they were in respect of only secondary aspects of the trial judge’s credibility assessment, and that the trial judge’s rejection of the appellant’s evidence and his conclusion that it did not raise a reasonable doubt are firmly supported by other aspects of the trial judge’s analysis. [17] In our view, the trial judge’s misapprehensions of the appellant’s evidence, and in particular the first two, which are conceded by the Crown, were substantial errors that played a central role in the trial judge’s assessment of the appellant’s credibility, and as such in his reasoning process in finding the appellant guilty. Since this was a case that turned on credibility, the misapprehensions resulted in a miscarriage of justice. [18] In coming to this conclusion, we have considered and rejected the Crown’s submission that the misapprehensions of the appellant’s evidence were “minor”, and therefore not substantial. We also disagree with the Crown’s submission that the trial judge’s misapprehensions of the appellant’s evidence did not form part of his reasoning about the appellant’s credibility, that they were, according to the Crown, on a “secondary list”, and that the trial judge’s finding that the defence evidence was “incredible” was driven instead by his wholesale rejection of the appellant’s evidence about the actions of M.B.’s father (as being a possible motive for the allegations). [19] The misapprehensions of the appellant’s evidence did not involve peripheral or inconsequential matters, and they were central to the trial judge’s credibility analysis. The trial judge’s credibility assessment did not, as the Crown suggests, turn on the trial judge’s rejection of the appellant’s evidence about the actions of M.B.’s father. While the trial judge used the word “incredible” to describe the appellant’s evidence about the actions of M.B.’s father, this was not, as the Crown argues, the trial judge’s “rejection of the core defence narrative”. Rather, the trial judge rejected a specific aspect of the appellant’s evidence, that related to a possible motive for the complainant to have lied. [20] Indeed, after addressing this point, the trial judge immediately stated that there were other aspects of the appellant’s testimony that made him “seriously question his credibility”. After listing four such aspects, including the three misapprehensions identified above, the trial judge stated: Viewed in isolation, these concerns may not be regarded as significant. Cumulatively, however, they have led me to disbelieve [the appellant’s] testimony and to conclude that his testimony is incapable of raising a reasonable doubt in the Crown’s case. [21] Accordingly, the trial judge’s reasons make it clear that his assessment of the appellant’s credibility depended on all of the circumstances he identified, including the evidence he misapprehended, which suggested that the appellant had been impeached. This led the trial judge, in his W.(D.) analysis, to both reject the appellant’s evidence and to conclude that it was “incapable of” raising a reasonable doubt. For these reasons, we are satisfied that this ground of appeal has merit. [22] While this is sufficient to allow the appeal, we briefly address the remaining grounds of appeal. [23] The appellant’s second ground of appeal, that the trial judge failed to address the credibility and reliability of the evidence of M.B.’s father, has two parts. The first is that the trial judge failed to apply a W.(D.) analysis to an exculpatory utterance elicited as part of the Crown’s case: the evidence of M.B.’s father that, when he confronted the appellant with M.B.’s allegation, the appellant responded that “nothing happened”. [24] We see no error here. Because the general denial by the appellant lacked probative value, the trial judge was not required to link this evidence to his W.(D.) analysis: see R. v. P.S. , 2019 ONCA 637, at paras. 47 and 53. The minimal relevance of this exchange is underscored by defence counsel’s failure to mention it in closing submissions: see R. v. Frater , 2020 ONCA 624, at para. 22. [25] The second argument on the second ground of appeal is that the trial judge erred in not assessing the evidence of M.B.’s father, when there were contradictions between the evidence of the complainant and her father, and the father’s evidence was consistent in certain respects with that of the appellant. The trial judge failed to consider, as he was invited by the appellant’s trial counsel to do, whether the evidence of M.B.’s father, together with the appellant’s evidence, raised a reasonable doubt. [26] The Crown contends that the trial judge’s treatment of the evidence of M.B.’s father was sufficient and responsive to the issues in the trial. The trial judge reviewed the evidence of M.B.’s father in his reasons and adverted to it in his analysis of M.B.’s credibility. There was no obligation for the trial judge to resolve every discrepancy in the evidence. [27] The appellant points to aspects of the evidence of M.B.’s father that contradicted M.B.’s evidence and were consistent with his own: whether there was a curtain between the practice and waiting areas (M.B. said there was, while her father and the appellant said that there was not); whether the appellant had left M.B. with other parents when her father was late to pick her up (M.B. denied this had happened, while her father and the appellant agreed that it had happened occasionally); whether M.B.’s sister had been in the practice area (M.B. said she was never there, while her father and the appellant said she had been there and ran around); and whether M.B.’s father sometimes stayed to watch the lessons (M.B. said no, while her father and the appellant were consistent that this sometimes happened). [28] These aspects of the evidence of M.B.’s father might or might not have played a role in the credibility assessments of both the appellant and the complainant. In our view, however, it was an error for the trial judge to have failed to conduct such an assessment. Before rejecting the appellant’s evidence and concluding that it was “incapable of” raising a reasonable doubt, the trial judge ought to have referred to and assessed the credibility of the evidence of M.B.’s father. While a trial judge is not required to deal with every piece of evidence in a trial, where, as here, there are aspects of the evidence of a witness that contradict the complainant’s evidence and support the evidence of the accused, the trial judge should demonstrate that he has taken such evidence into account in his W.(D.) analysis: see R. v. Smith , 2020 ONCA 782, 69 C.R. (7th) 126, at paras. 12 and 26-28; R. v. C.G. , 2021 ONCA 809, 407 C.C.C. (3d) 552, at paras. 57-61; and R. v. Clouthier , 2012 ONCA 636, at paras. 12-16. [29] As for the third ground of appeal, the appellant contends that the trial judge, in convicting him, improperly relied on what he found to be a proven absence of motive for M.B. to have lied. The appellant points to two passages in the trial judge’s reasons: first, where the trial judge stated, “there is an absence of motive for M.B. to have lied about the allegations”, and later when he said, “I cannot identify any evidence that M.B. had a motive to lie”. At best, there was an absence of a proven motive, which could have been a factor in assessing her credibility, so long as it did not drive the analysis: R. v. Ignacio , 2021 ONCA 69, 400 C.C.C. (3d) 343, at para. 59, leave to appeal refused, [2021] S.C.C.A. No. 127. [30] However, a fair reading of the trial judge’s reasons suggests that he rejected the motive alleged by the defence, and he considered the apparent absence of M.B.’s motive to lie as a factor in assessing her credibility. This is apparent from his citation of R. v. L.L. , 2009 ONCA 413, 96 O.R. (3d) 412, immediately following the first impugned passage, and the acknowledgment later in his reasons that the complainant could have had “some hidden motivation”. As in Ignacio , at para. 35, the trial judge was required to consider motive to fabricate due to the defence allegation that the complainant had a motive to fabricate. In its closing submissions, Crown counsel argued that, although it had not proven an absence of motive beyond a reasonable doubt, the absence of evidence of motive was a factor to be considered in the overall assessment of the evidence. After looking at the evidence, and rejecting the appellant’s account of his confrontation with M.B.’s father over her sister eating candy in the dojo, the trial judge was entitled to conclude that there was no evidence of a motive to fabricate, and then to consider this as one factor in his assessment of the complainant’s credibility. Contrary to the appellant’s submission, the trial judge did not mistake a lack of evidence of a motive for a proven absence of motive to lie. [31] For these reasons we allow the appeal, set aside the appellant’s convictions, and direct a new trial on all of the charges. “K. van Rensburg J.A.” “I.V.B. Nordheimer J.A.” “J. George J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Crown Capital Private Credit Fund v. Mill Street & Co. Inc., 2022 ONCA 194 DATE: 20220308 DOCKET: C69450 Feldman, Tulloch and Miller JJ.A. BETWEEN Crown Capital Private Credit Fund, LP, by its general partner, Crown Capital Private Credit Management Inc. Applicant and Mill Street & Co. Inc. Respondent Micheal Simaan, for the appellants, 997322 Ontario Inc., Monica Murad and Aaron Murad Shayne Kukulowicz, Ted Frankel and Monique Sassi for the respondent, A. Farber & Partners Inc. Heard: February 28, 2022 by video conference, with further submissions filed in writing On appeal from the order of Justice Markus Koehnen of the Superior Court of Justice, dated May 5, 2021. REASONS FOR DECISION [1] The appellants are Monica Murad and Aaron Murad, two members of the Murad family, who together with the corporations they control, both individually and together, were referred to by the Receiver throughout the receivership of Mill Street & Co. Inc. as “the Murad Parties”. Mill Street and its subsidiaries are owned by members of the Murad family. [2] The motion judge found that the Murad Parties raised ongoing obstacles to the operation of the receivership and obstructed the Receiver, including by asserting a fraudulent licensing agreement purporting to license certain software by one Murad entity to another. They produced a forged document to make this claim. [3] In order to facilitate the sale of the debtor company’s interest in another Murad corporation, the motion judge made a non-competition order against all of the Murad Parties, including the appellants. Counsel at the hearing objected on behalf of the appellants because they were not specifically implicated in the obstruction or the fraudulent licensing agreement. [4] The motion judge determined that it was nevertheless appropriate to include the appellants in the order because the Murad companies are operated as family businesses with all members of the family involved. The Receiver referred to “the Murads” or “the Murad Parties” throughout its reports. [5] Section 193 of the Bankruptcy and Insolvency Act , R.S.C. 1985, c. B-3 sets out the jurisdiction for an appeal of an order made in a bankruptcy proceeding. The appellants submit that this court has jurisdiction under s. 193(a) or, in the alternative, that leave to appeal should be granted under s. 193(e). [6] Section 193(a) grants jurisdiction where “the point at issue involves future rights”. Caselaw has established that present rights altered by the order are not future rights: Ravelston Corp. (Re) (2005), 24 C.B.R. (5th) 256 (Ont. C.A.), at para. 18. The right to compete is a present right. Therefore, there is no right of appeal under s. 193(a). [7] The three-part test for granting leave to appeal under s. 193(e) was recently restated in James Henry Ting (Re) , 2021 ONCA 622, at para. 5: there must be an issue of general importance, that is prima facie meritorious, and the appeal would not unduly hinder the progress of the insolvency proceeding. [8] The appellants assert that the issue of making a non-competition order against a non-party is one of general importance. [9] However, that issue does not arise in this case because the appellants are “Murad Parties” in this receivership, so found by the motion judge, and have been treated as parties throughout the proceeding. [10] The appeal is therefore quashed, with costs payable to the respondent. If the parties are unable to agree on costs, the respondent may file a written submission of no more than two pages in length plus a bill of costs within four days of the date of the release of these reasons. The appellants may file a responding written submission of no more than two pages in length within seven days of the same date. “K. Feldman J.A.” “M. Tulloch J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 1250140 Ontario Inc. v. Bader, 2022 ONCA 197 DATE: 20220309 DOCKET: C69480 Trotter, Coroza and Favreau JJ.A. BETWEEN 1250140 Ontario Inc. Plaintiff (Respondent) and Parveneh Bader, also known as Pamela Bader Defendant (Appellant) Heath P.L. Whiteley, for the appellant Alexander Hora, for the respondent Heard: February 18, 2022 by videoconference On appeal from the order of Justice Frederick L. Myers of the Superior Court of Justice, dated April 15, 2021. REASONS FOR DECISION [1] The appellant, Pamela Bader, appeals an order finding her liable to pay 1250140 Ontario Inc. (“125”) $243,992.11 in respect of a mortgage debt assumed in 2008. [2] The motion judge found that the action was not barred by the 10-year limitation period in s. 23(1) of the Real Property Limitations Act , R.S.O. 1990, c. L.15 (“the RPLA ”) because Ms. Bader acknowledged the debt within this time frame. Finding that there was no genuine issue for trial, the motion judge granted summary judgment in favour of 125. [3] Ms. Bader challenges the motion judge’s conclusions on the applicability of the RPLA , and whether she acknowledged the debt. We do not accept her submissions and dismiss the appeal. Background [4] In 2008, 125 advanced a loan to Ms. Bader. She granted a seventh-ranking mortgage on her home as security. She defaulted on the loan that same year. [5] In 2010, a higher-ranking mortgagee commenced foreclosure proceedings. In that proceeding, on November 15, 2010, Ms. Bader swore an affidavit in which she said “a charge dated March 25, 2008 in the amount of $190,000 in favour of [125]” was registered on her property. She later indicated her understanding that “$243,992.11” was owing to 125 “in respect of the Seventh Mortgage”. Ms. Bader concluded her affidavit by stating: “Ultimately, I want [the property] sold at a fair price which enables payment of all bona fide debts owing on the Property and returns my equity and life savings in the Property to me.” [6] On November 15, 2010, 125 commenced a separate action against Ms. Bader on the covenant in the mortgage to recover the amount owing. However, that action was administratively dismissed for delay on July 15, 2011. [7] On March 29, 2011, the Superior Court approved the sale of the property in the foreclosure action. There were insufficient funds to satisfy Ms. Bader’s indebtedness to 125. [8] On December 2, 2019, 125 commenced another action, again seeking to recover the amount owning under the loan. It also sought to set aside the dismissal of its previous action. That motion was unsuccessful. [9] 125 moved for summary judgment on its 2019 action. The question before the motion judge was whether the claim was statute barred, given that Ms. Bader’s debt to 125 was incurred in 2008 (more than 10 years earlier). [10] The motion judge observed that neither party disputed that s. 23(1) of the RPLA applied. The section provides that a claim falling within the ambit of the RPLA expires after 10 years: 23(1) No action shall be brought to recover out of any land or rent any sum of money secured by any mortgage or lien, or otherwise charged upon or payable out of the land or rent, or to recover any legacy, whether it is or is not charged upon land, but within ten years next after a present right to receive it accrued to some person capable of giving a discharge for, or release of it, unless in the meantime some part of the principal money or some interest thereon has been paid, or some acknowledgment in writing of the right thereto signed by the person by whom it is payable , or the person’s agent, has been given to the person entitled thereto or that person’s agent, and in such case no action shall be brought but within ten years after the payment or acknowledgment, or the last of the payments or acknowledgments if more than one, was made or given. [Emphasis added.] [11] The motion judge found that Ms. Bader acknowledged the debt in her affidavit in the foreclosure proceedings, thereby extending the limitation under s. 23 of the RPLA . As he said in his reasons, “[t]his is not just any old acknowledgment in writing. It is sworn testimony before the court in a proceeding in which both the defendant and the plaintiff were named parties.” Discussion [12] The appellant submits that s. 23 of the RPLA did not apply in the circumstances of this case because, by the time 125 commenced its 2019 action, the property had been sold. The appellant submits that s. 23 applies only to actions for in rem remedies. In this case, because the property had already been sold, it was a proceeding for an in personam remedy. As such, the Limitations Act , 2002 , S.O. 2002, c. 24, Sched. B applied and the action was time barred. We do not accept this submission. [13] First, this submission was not made before the motion judge. Ms. Bader did not raise this issue in her Statement of Defence. Instead, she simply took the position that the 10-year limitation had expired. As discussed below, she disputed that she had acknowledged the debt in the interim. Moreover, Ms. Bader’s Notice of Appeal failed to raise this issue. It was first raised by new counsel (Mr. Whiteley) when he filed a Supplementary Notice of Appeal. [14] Raising a new issue for the first time on appeal undermines the important interest of finality in judicial proceedings. It leads to inefficiencies in the adjudicative process. It places this court in the role of a first instance decision-maker, rather than a reviewing court. No explanation was provided for this change in position on appeal. In these circumstances, an appellate court should be reluctant to entertain the new submission: see Albert Bloom Limited v. London Transit Commission , 2021 ONCA 74, at para. 46. [15] Nonetheless, we do not accept that s. 23 of the RPLA only applies when the mortgagor is still in the possession of the property or when the proceeds of the realization of the property have yet to be distributed. Section 23 makes no such distinction. No cases directly support Ms. Bader’s position. [16] Put simply, s. 23 of the RPLA governs actions about claims to real property: see Equitable Trust v. Marsig , 2012 ONCA 235, 109 O.R. (3d) 561, at para. 27. When Ms. Bader assumed her debt to 125, it was secured by a mortgage on the property. This was not a situation where the land was incidental to an action based in negligence, breach of contract, breach of fiduciary duty, or some other basis of liability: Zabanah v. Capital Direct Lending Corp. , 2014 ONCA 872, 123 O.R. (3d) 350. Rather, the claim for debt was based on a covenant in the mortgage, and the land, as security for the debt, was critical to that claim. [17] Ms. Bader has provided no support for the contention that a mortgagee becomes disentitled to the longer limitation period in the RPLA when the property in question has been disposed of in the meantime. While the land may be out of reach for enforcement purposes, there is no principled reason why a mortgagee should be prevented from pursuing an action for any money still owing, as long as the claim is commenced within the limitation period set out in the RPLA . The prospect of a shifting limitation period, tied to the disposition of the property in issue, would only foster uncertainty in the application of the RPLA . [18] This ground is dismissed. [19] We also dismiss Ms. Bader’s challenge to the motion judge’s finding that she had acknowledged the mortgage debt in her 2010 affidavit. It was open to the motion judge to conclude that Ms. Bader acknowledged the debt. There is no requirement that such an acknowledgment must reflect an awareness of the precise amount owing, nor must it be accompanied by a promise to pay. Disposition [20] The appeal is dismissed. The respondent is entitled to costs in the amount of $10,000, inclusive of taxes and disbursements. “Gary Trotter J.A.” “S. Coroza J.A.” “L. Favreau J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Iqbal v. Mansoor, 2022 ONCA 198 DATE: 20220308 DOCKET: M53119 (C65591) Fairburn A.C.J.O., Trotter and Thorburn JJ.A. BETWEEN Musharraf Iqbal Applicant (Appellant/Moving Party) and Sohail Khawaja Mansoor and Gold International Inc. Respondents (Respondents/Responding Parties) Musharraf Iqbal, acting in person No one appearing for the responding parties Heard: March 4, 2022 by video conference REASONS FOR DECISION [1] The applicant brought a motion for an order extending the time to pursue a motion to set aside the order of Coroza J.A., dated August 13, 2020. Coroza J.A. had refused a request for an extension of time to bring a motion for leave to appeal two costs orders. On December 22, 2021, Tulloch J.A. dismissed the motion for an extension of time. The applicant now seeks a review of Tulloch’s J.A.’s order and asks that it be set aside. [2] The decision on an application to extend time is a discretionary one and owed deference: Machado v. Ontario Hockey Association , 2019 ONCA 210, at para. 9. Therefore, a panel review of that decision is not a de novo hearing, but one that focusses upon whether the motion judge’s decision reflects legal error or a misapprehension of material evidence. The applicant seeks to set aside Tulloch J.A.’s decision on both these bases. [3] First, the applicant says that the impugned decision contains an error in principle in relation to the finding of prejudice. We do not agree. Read as a whole, the reasons do not suggest that prejudice was found solely on the basis that the respondents would incur legal expense were the matter allowed to proceed. In our view, the impugned reasons make clear that the prejudice is much wider in nature, including that, given the very lengthy delay at this point, it would be difficult for the respondents to meaningfully respond. This was a discretionary conclusion available to Tulloch J.A. [4] Second, the applicant suggests that Tulloch J.A. misapprehended the material evidence in relation to the merits of the appeal. The applicant says that Tulloch J.A. did not appreciate a piece of evidence establishing that the arbitrator refused to intervene because the arbitrator believed that he did not have jurisdiction to determine the issue of costs. [5] We see no error in Tulloch J.A.’s understanding of the record. As is clear from that record, the arbitrator made an award of costs based on the information that was placed before him at the time. The arbitrator simply noted that, after he issued his order based on the information available to him at that time and the requests made by the applicant for costs, it was no longer open to the arbitrator to consider another costs request. Accordingly, Tulloch J.A. did not misapprehend the evidence when he arrived at the conclusion that the applicant had only claimed for damages, “without factoring in the entire costs of the proceedings.” [6] As Tulloch J.A. did not make a legal error or misapprehend the evidence, the application to review the decision arising from this single judge motion is dismissed. The dismissal of the application arising from the Tulloch J.A. decision is necessarily dispositive of the attempt to have the decision of Coroza J.A. reviewed. “Fairburn A.C.J.O.” “G.T. Trotter J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Donovan v. Waterloo (Police Services Board), 2022 ONCA 199 DATE: 20220310 DOCKET: C69467 Strathy C.J.O., Roberts and Sossin JJ.A. BETWEEN Kelly Lynn Donovan Plaintiff/Responding Party (Appellant) and Waterloo Regional Police Services Board and Bryan Larkin Defendants/Moving Parties (Respondents) Kelly Lynn Donovan, acting in person Donald B. Jarvis and Clifton Yiu, for the respondents Heard: February 14, 2022 by video conference On appeal from the order of Justice Thomas A. Bielby of the Superior Court of Justice, dated April 19, 2021, with reasons reported at 2021 ONSC 2885, and from the costs order, dated May 28, 2021. REASONS FOR DECISION [1] This is an appeal from the motion judge’s order pursuant to r. 21.01(3)(a) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, dismissing this action for lack of jurisdiction. Background to the Appellant’s Resignation and this Action [2] The appellant is a former police officer, employed by the respondent Waterloo Regional Police Services Board (the “Board”). Her employment was subject to the terms of a collective agreement. The respondent Bryan Larkin (“Larkin”) was the Chief of Police. [3] The following is a brief summary of the events giving rise to these proceedings. [4] In May 2016, the Board gave the appellant notice of an investigation under the Police Services Act , R.S.O. 1990, c. P.15 (the “ PSA ”) related to her alleged disclosure of confidential information to the Board. On June 2, 2016, the appellant filed an application with the Human Rights Tribunal of Ontario (the “HRTO”), alleging that that Board had discriminated against her on the basis of sex and marital status. [5] In February 2017, the appellant took medical leave for post-traumatic stress disorder as a result of observing an accidental shooting while studying to become a police constable at the Ontario Police College in February 2011. [6] On June 8, 2017, the appellant entered into an agreement (the “Resignation Agreement”) with the Board. The appellant’s bargaining agent, the Waterloo Regional Police Association, was a party to the Resignation Agreement. That agreement expressly recognized that the appellant and the Board had an employee-employer relationship and that the appellant had notified the Board that she would be resigning her employment effective June 25, 2017. [7] The Resignation Agreement recited the parties’ desire to “fully resolve and settle” the outstanding matters between them, namely the appellant’s HRTO application and the Board’s investigation into the appellant and the potential charges she faced under the PSA . It stated that the parties agreed upon “full and final settlement of all matters related to [the appellant’s] employment with or cessation of employment with the Board, and all other outstanding matters between them”. It was a term of the Resignation Agreement that the terms and existence of the agreement would be kept confidential except as required by law, disclosure to immediate family, or disclosure to professional persons providing advice. The parties also agreed to exchange releases and the appellant signed a full and final release that was appended to the Resignation Agreement. [8] Although the Resignation Agreement is redacted, it is apparent that the appellant was paid some compensation in respect of her legal expenses incurred in connection with the HRTO proceedings and the potential PSA charges. She was also paid a lump sum payment, net of applicable deductions and remittances required by law, presumably as compensation for the termination of her employment. [9] In May 2018, the appellant commenced this action, alleging a breach of the Resignation Agreement, seeking monetary damages and reinstatement to employment. She pleaded that Larkin had breached the Resignation Agreement because he had sworn an affidavit in defence of a class action against the Board, in which he allegedly disclosed information capable of identifying her as having resigned from the police force. The affidavit was allegedly posted on a website maintained by plaintiffs’ counsel in the class action. [10] In June 2018, the Board filed an application for contravention of settlement with the HRTO, alleging that the appellant had repeatedly contravened the terms of the Resignation Agreement by stating that she had been constructively dismissed by the Board. The appellant filed a response and her own application for contravention of settlement in July 2018, alleging that Larkin breached the Resignation Agreement by swearing the affidavit in the class action. [11] On February 1, 2019, Favreau J., as she then was, dismissed a motion brought by the appellant to dismiss the Board’s application to the HRTO, finding that the Superior Court had no jurisdiction to do so: Donovan v. (Waterloo) Police Services Board , 2019 ONSC 818, 49 C.P.C. (8th) 141. At para. 56 of her reasons, Favreau J. observed that it would be open to the appellant to raise before the HRTO the issue of jurisdiction over the enforcement of the Resignation Agreement and to respond to the Board’s position concerning the effect of that agreement: during the hearing of this motion, I sought assurances from the Board that it would not impede Ms. Donovan’s ability to make substantive arguments before the Human Rights Tribunal despite the fact that she may have missed some deadlines. In response, the Board’s counsel gave an undertaking in court not to take the position before the Tribunal that Ms. Donovan is out of time to raise substantive arguments in response to the application. Therefore, subject to the Tribunal’s ability to control its own process, at the Tribunal hearing Ms. Donovan should be allowed to raise issues she may wish to address about the Tribunal’s jurisdiction over enforcement of the Resignation Agreement and to fully respond to the Board’s position that the Resignation Agreement precludes her from speaking publicly about the matters the Board claims are captured by the confidentiality provision of the agreement. The Motions in the Superior Court of Justice [12] The respondents originally brought a motion to strike this action on three grounds: (i) r. 21.01(1)(b) (no reasonable cause of action); (ii) r. 21.01(3)(a) (no jurisdiction over the subject matter); and (iii) r. 21.01(3)(d) (frivolous or vexatious or an abuse of process). Doi J. (the “original motion judge”) dismissed the action under r. 21.01(1)(b), without leave to amend. While the other two grounds were fully argued before the original motion judge, he did not rule on them. [13] On October 25, 2019, this court allowed the appellant’s appeal from the order of the original motion judge, set aside the order dismissing the action and granted the appellant leave to amend her statement of claim as against Larkin: Donovan v. Waterloo Regional Police Services Board , 2019 ONCA 845. No issues had been raised before this court with respect to the grounds that were not addressed by the original motion judge and this court did not address those grounds. [14] The statement of claim has gone through four iterations, the current being a Fresh as Amended Statement of Claim, discussed below. Pursuant to this court’s order, the appellant filed an Amended Amended Statement of Claim on January 29, 2020. [15] Shortly thereafter, counsel for the respondents sought directions from the original motion judge concerning the two issues that had not been addressed by his order. He determined that a fresh motion should be brought before another judge, pursuant to r. 59.06(1) of the Rules of Civil Procedure (sometimes referred to as the “slip rule”). [16] The appellant subsequently filed a Fresh as Amended Statement of Claim on November 23, 2020. The motion to dismiss the action for want of jurisdiction was heard by a different judge (the “second motion judge”) on February 23 and March 1, 2021. In reasons released April 19, 2021, the second motion judge dismissed the action on the ground that the essential character of the dispute involved the appellant’s employment, which had been covered by a collective agreement and was subject to the dispute resolution and arbitration provisions of that agreement: referring to Weber v. Ontario Hydro , [1995] 2 S.C.R. 929; and Desgrosseillers v. North Bay General Hospital , 2010 ONSC 142. This Appeal [17] The matter now comes to us on appeal. [18] The issue of jurisdiction calls for us to consider the pleading in the Fresh as Amended Statement of Claim. In her claim for relief, the appellant claims against both respondents, jointly and severally, for breach of contract, misfeasance in public office and negligence. She also claims separately against Larkin for damages for misfeasance in public office. [19] The appellant pleads that: · she entered into a Resignation Agreement on June 8, 2017, which contained a non-disclosure and confidentiality clause, requiring the parties to keep the existence and terms of the agreement confidential; · Larkin took retaliatory action against her as a result of her complaints to the respondent Board concerning his conduct; · Larkin swore an affidavit in defence of a class action lawsuit against the respondents that claimed damages for systemic and institutional gender-based discrimination and harassment; · attached to Larkin’s affidavit was a chart listing HRTO complaints commenced by female employees of the Board within the preceding five years, including their status or resolution; · the affidavit was published on the public website of the law firm advancing the class action lawsuit; · although the affidavit did not identify the claimants, the chart contained sufficient information to enable the appellant to be identified as someone who had filed a human rights complaint and had voluntarily resigned from the Board; · by swearing and delivering the affidavit, Larkin “used” her, “to attempt to stop the efforts of the [appellant’s] female colleagues in their fight for justice”; · the class action was dismissed as a result of a motion that relied on Larkin’s affidavit; · Larkin was aware of the terms of the Resignation Agreement, including that it was confidential; · by swearing the affidavit, Larkin deliberately involved her in the class action lawsuit and violated the terms of the Resignation Agreement, knowing that it would impede her recovery from post-traumatic stress disorder; · in January 2018, the Board appealed a WSIB claim she had made. Although she does not explicitly plead it, she is presumably asserting that the Board breached the Resignation Agreement by engaging in further legal proceedings against her; and · she “claims the relief as set out in paragraph 1 of the Statement of Claim for two distinct and separate breaches of the resignation agreement by the defendant Board and the individual defendant.” [20] The appellant raises five grounds of appeal, which we address in order. (1) Improper Procedure [21] The appellant submits that the motion was not properly before the second motion judge because it could have been addressed by way of a r. 59.06 motion brought before the original motion judge and prior to the appeal, by filing a cross-appeal to this court, or filing a r. 59.06 motion to this court. [22] We do not accept this submission. [23] As the issue of jurisdiction was not addressed by the original motion judge or by either party on the previous appeal to this court, there is no impediment to raising it on this appeal. [24] The matter was properly before the second motion judge, although not pursuant to the “slip rule”. Rather, a remedy was available under r. 59.06(1) of the Rules of Civil Procedure , “to ... obtain other relief than that originally awarded”. Alternatively, it was open to the respondents to bring a free-standing motion to raise the issue of the court’s jurisdiction, given the delivery of the Fresh as Amended Statement of Claim. (2) Jurisdiction [25] The appellant submits the Superior Court of Justice has jurisdiction over her claims and that jurisdiction has not been removed by arbitral agreement. She relies on Skof v. Bordeleau , 2020 ONCA 729, 456 D.L.R. (4th) 236, leave to appeal refused, [2021] S.C.C.A. No. 17. She argues that there is nothing in the applicable collective agreement to oust the court’s jurisdiction and that as a former member of the police force and no longer a member of the bargaining unit, she has no standing before the Ontario Police Arbitration Commission. She submits that, as in Skof , she is seeking a remedy for misfeasance in public office, which does not fall within the jurisdiction of an arbitrator. She submits that the principles in Weber and St. Anne Nackawic Pulp & Paper v. CPU , [1986] 1 S.C.R. 704, have no application. [26] Skof is plainly distinguishable because this court found, at para. 17, the dispute related to disciplinary proceedings in a regulatory context and did not fall within the collective agreement. This basis alone justified the second motion judge in distinguishing Skof . [27] The second motion judge did precisely what the authorities require. He searched for the “essential character” of the dispute and found, at para. 80, that the Resignation Agreement was executed in the ambit of the collective agreement and took its essential character from the collective agreement. It was the product of a negotiated agreement of all outstanding employment matters between the parties. We see no error in this characterization. [28] However, the motion judge did not grapple with the question of whether the appellant will be permitted, under the collective agreement or the Resignation Agreement, to invoke the grievance procedure now that she is no longer employed by the respondent. This affects the outcome. [29] In Skof , explicit provisions of the memorandum of agreement unequivocably provided that the collective agreement did not apply to the appellant in that case, other than with respect to his salary and benefits, while he was on a leave of absence as the president of the Ottawa Police Association. As a result, there was no question that the grievance procedure under the collective agreement was not available to him. [30] Here, there is no evidence that the appellant will be permitted to invoke the grievance procedure now that she is no longer an employee. The collective agreement is silent with respect to this issue. Moreover, the Resignation Agreement provides in para. 1 that upon her resignation, she ceases “to be an employee of the Board for any and all purposes at law whatsoever”. [31] The record does not permit us to decide this issue. An arbitrator is best placed to interpret the collective agreement and the Resignation Agreement and determine whether the appellant is precluded from invoking the grievance procedure to pursue her remedies. (3) Bad Faith [32] The appellant submits that in pursuing this matter, the respondents are acting in bad faith by failing to raise the issue of jurisdiction in a timely way and that they are using the court process for an improper purpose. As we find the respondents were entitled to have the issue of jurisdiction determined, this submission fails. (4) Apprehension of Bias [33] In her factum, the appellant makes an allegation of reasonable apprehension of bias against the second motion judge. [34] The motion occupied two days, February 23 and March 1, 2021. Due to the pandemic, the hearings were heard remotely. There was a “Zoom bombing” during the first hearing, when unknown persons viewing the hearing remotely displayed what has been described as sexually explicit and racist imagery on the screens of all viewers. [35] The appellant states that following the hearing, CBC news published an article that insinuated that she was to blame for the disruption, because she had shared the public Zoom link with her “followers”, presumably referring to her followers on social media. In her factum, she states that she had distributed the Zoom link and the court’s “Zoom User Guide for Remote Hearings” to her followers and pointed out to them the section that explains that court permission was required to share screens. She states that she believed her followers would only be able to observe the proceeding. [36] Subsequently, prior to the March 1, 2021 hearing, the Regional Senior Judge gave directions that the Zoom details of the March 1, 2021 hearing were not to be published or distributed without the prior written order of the presiding judge or the Regional Senior Judge. [37] On the basis of the foregoing, the appellant states that she “believes that she was wrongfully blamed for the ‘Zoom bombing’ incident”, and that this resulted in an apprehension of bias against her because the second motion judge decided in favour of the respondents, which was a “marked departure from established legal principles.” [38] The appellant did not pursue this issue in oral submissions, possibly because she had reached the end of her time allocation. However, she did not expressly withdraw the submission. Asserting that a judge has departed from the law because of bias against a litigant is a very serious allegation. Although the appellant is self-represented, her written materials and oral submissions demonstrated a high level of sophistication. She clearly appreciates the meaning and consequences of her words. In this case, there was no evidentiary basis for the allegation, and it can be described as “spurious”. Her submission therefore fails. (5) Litigation Efficiency [39] The appellant submits that the second motion judge erred in failing to convert the motion before him to a motion for judgment “as the best way to achieve the most just, most expeditious, and least expensive result”, in accordance with r. 37.13(2)(a) of the Rules of Civil Procedure . [40] The short answer to this submission is that this was not fully argued before the second motion judge, and it would not have been appropriate for him to grant it in these circumstances, nor would it be appropriate to grant on this appeal: see McCracken v. Canadian National Railway Company , 2012 ONCA 445, 111 O.R. (3d) 745, at para. 141. Conclusion [41] For these reasons, we agree with the respondents’ submission that the appellant’s claims are subject to determination pursuant to the procedures set out in the collective agreement and the PSA . To the extent that the claim seeks relief that is not available under the collective agreement or the PSA , it is subject to the jurisdiction of the HRTO, in which both parties have asserted claims that are currently outstanding. [42] We therefore dismiss the appeal. In the particular circumstances of this case, however, we vary the order of the Superior Court by staying this action until such time as the appellant’s remedies under the collective agreement and in the HRTO have been exhausted. [43] Only at that point will this court determine whether it should exercise any residual discretion it may have to grant relief that is not available under the statutory labour arbitration regime or in the HRTO. [44] In her supplementary notice of appeal, the appellant indicates that she also wishes to appeal from the costs award below. In light of our disposition of the appeal and given that the appellant made no arguments to support this position separately, we see no basis to overturn the costs award below. [45] We did not hear submissions on costs of the appeal. Costs may be addressed by written submissions. The respondents shall have 15 days within which to deliver their submissions. The appellant shall have 15 days after receipt of the respondents’ submissions to reply. The costs submissions shall be limited to five pages in length, excluding costs outlines. “G.R. Strathy C.J.O.” “L.B. Roberts J.A.” “L. Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Jeff Day Hospitality Inc. v. Heritage Conservation Holdings, Canada, Inc., 2022 ONCA 201 DATE: 20220311 DOCKET: C69601 Simmons, Harvison Young and Zarnett JJ.A. BETWEEN Jeff Day Hospitality Inc. Applicant (Respondent) and Heritage Preservation Holdings, Canada, Inc. Respondent (Appellant) Jonathan Chen and Aoife Quinn, for the appellant Charles Hammond, for the respondent Heard: February 24, 2022 by video conference On appeal from the judgment of Justice Robert F. Scott of the Superior Court of Justice, dated June 10, 2021. REASONS FOR DECISION [1] The appellant appeals from a judgment that requires it to perform its obligations under an Agreement of Purchase and Sale (“APS”) dated January 20, 2020. In the APS, the appellant agreed to sell a hotel property in Jones Falls, Ontario to the respondent for a purchase price of $1,375,000. The judgment requires the appellant to close the sale in accordance with the terms of the APS; it also authorizes the respondent to hold back $500,000 from the purchase price pending determination of the cost of rectifying certain deficiencies, which the application judge held were the responsibility of the appellant. [2] The appellant raises three grounds of appeal: (i) that the application judge erred in finding that the parties had actually concluded an agreement on all terms in the APS (the “contract formation issue”); (ii) that the application judge erred in failing to find the respondent was in breach of the APS on the agreed closing date because the first mortgage it had arranged exceeded a limit on such financing found in an implied term of the APS (the “implied term issue”) ; and (iii) that the application judge erred in finding the repair of certain deficiencies to be the appellant’s responsibility under the APS (the “deficiencies issue”). [3] For the reasons that follow, we allow the appeal as to an aspect of the deficiencies issue. Otherwise, we dismiss the appeal. (i) The Contract Formation Issue [4] Between January 8 and 20, 2020, the parties exchanged written offers relating to the purchase of the appellant’s hotel. [1] [5] The respondent first made an offer to purchase on January 8, 2020, which the appellant rejected. On January 10, 2020, the respondent made a revised offer; it made changes to its first offer and initialled them. On January 16, 2020, the appellant made a counteroffer; it made changes to the respondent’s revised offer and initialled those changes. On January 20, 2020, the respondent made a further revised offer, making certain changes to the terms proposed in the appellant’s January 16 counteroffer and initialling those changes. [6] On January 20, 2020, the appellant initialled the changes in the respondent’s further revised offer, except for the change to one term relating to the septic system. [7] The appellant argues that because it did not initial one of the respondent’s changes in the January 20, 2020 further revised offer, it did not accept all of the terms of that offer. It submits that the parties’ course of conduct indicates that changes were accepted by initialling. Accordingly, it submits that the application judge erred in finding that a binding agreement – namely the APS – had been reached on January 20, 2020 by the acceptance of the respondent’s further revised offer. [8] We disagree, and did not call on the respondent to address this issue in oral argument. [9] Although on January 20, 2020, the appellant did not initial one of the changes in the respondent’s further revised offer, the appellant did sign a “Confirmation of Acceptance” contained in it which stated: “Notwithstanding anything contained herein to the contrary, I confirm this Agreement with all changes both typed and written was finally accepted by all parties at 2:50 p.m. this 20th day of January, 2020”. [10] The application judge concluded that the appellant accepted the terms in the APS in their entirety. In our view, that finding was open to him. [11] Acceptance is constituted by conduct of the recipient that a reasonable person, in the position of the offeror, would consider constituted an acceptance: Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp. , 2020 SCC 29, 450 D.L.R. (4th) 105, at para. 33. [12] The “Confirmation of Acceptance” unequivocally communicated that all of the terms in the further revised offer presented on January 20, 2020 were accepted, thus forming the APS. [13] Moreover, both parties and their agents acted on the basis that a binding APS had been reached on January 20, 2020. For example, on June 16, 2020, the parties executed an amendment, which stated: “Per Agreement of Purchase and Sale mutually executed and accepted on January 20, 2020”. The position that no agreement had been reached on January 20, 2020 was not taken by the appellant until after there was a failure to close on February 3, 2021 and litigation had ensued. [14] We therefore reject this ground of appeal. (ii) The Implied Term Issue [15] The APS provided that the respondent would pay a purchase price of $1,375,000. As part of the purchase price, the appellant agreed to take back a second mortgage in the amount of $500,000. The APS provided: The Seller agrees to take back a 2nd Charge/Mortgage in the amount of Five Hundred Thousand Dollars ($500,000.00), bearing interest at the rate of 5.5% per annum, calculated semi-annually not in advance, repayable interest only, and run for a term of 2 years from the date of completion of this transaction. [16] The APS was silent on the amount of the first mortgage that could originally be placed on the property by the respondent ahead of the second mortgage to the appellant. It did contain terms about what would happen if that first mortgage were later replaced during the term of the second mortgage: This Charge/Mortgage [i.e. the second mortgage to be taken back by the appellant] shall contain a clause permitting the removal or replacement of the existing first Charge/Mortgage at any time, provided that any increase in the principal amount of the new first Charge/Mortgage over the amount of principal owning under the first Charge/Mortgage at the time of renewal or replacement shall be applied in reduction of the principal amount of this Charge/Mortgage; and the Chargee/Mortgagee hereunder shall execute and deliver to the Chargor/Mortgagor such postponement agreement, Charge/Mortgage Statement, or other documents as the new first Chargee/Mortgagee may reasonably require, forthwith upon request. [17] When the respondent tendered on February 3, 2021, it indicated that it proposed to place a first mortgage on the property of $1,000,000. The appellant argues that this constituted a breach of an implied term of the APS, the implied term being that the combined amount of the first and second mortgages could not exceed the purchase price as that would leave the second mortgage in part unsecured. In other words, there was an implied term that the first mortgage could not exceed $875,000. [18] The application judge refused to find such an implied term. As the Supreme Court affirmed in M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd. , [1999] 1 S.C.R. 619, at para. 27, courts may imply terms in a contract: (1) based on custom or usage; (2) as the legal incidents of a particular class or kind of contract; or (3) based on the presumed intention of the parties where the implied term must be necessary “to give business efficacy to a contract or as otherwise meeting the ‘officious bystander’ test as a term which the parties would say, if questioned, that they had obviously assumed”. The application judge considered the evidence led by each party as to whether there was a regular custom in mortgage and sale transactions to support such an implication. He concluded that this was not a case where the term could be implied based on custom or usage, nor to give business efficacy to the APS, nor based on the officious bystander test. Moreover, he noted that the APS contained an entire agreement clause limiting the agreement to the terms expressed in it. [19] We see no basis to interfere with the application judge’s conclusion. It was open to him to find on the evidence that no custom or usage supporting the implication of such a term had been established, and that no other basis for implying such a term existed. [20] The narrow circumstances under which terms may be implied based on business efficacy or the officious bystander test are concerned with the presumed intentions of the actual parties. They are not an invitation for a court to revise an agreement to make it accord with what reasonable parties might have done: M.J.B. Enterprises , at para. 29. Although it may have been wise for the appellant to have sought such a term before agreeing to the APS, it did not do so, despite having been professionally advised. The APS does not lack business efficacy without such a term, nor is it obvious that the respondent, if asked by the officious bystander, would have answered that such a term was included. The parties’ express terms indicate a contrary answer. The parties included specific provisions about the second mortgage and its relationship to the first without including the limit the appellant says should now be implied. [21] Nor do we see any error in the application judge having referred to the entire agreement clause as a factor in deciding whether the implied term contended for here accords with the presumed intentions of the parties, who stated that their entire agreement was to be found in the express terms of the APS: Perkins v. Sheikhtavi , 2019 ONCA 925, 16 R.P.R. (6th) 42, at para. 22. [22] We therefore reject this ground of appeal. (iii) The Deficiencies Issue [23] The application judge dealt with three main categories of deficiencies and held that each was the responsibility of the appellant under the APS. [24] The first category was a foundation wall below the kitchen that was in a state of disrepair. The application judge found this to be covered by para. 5(f) of the APS, which provided: To the best of the knowledge, information and belief of the Seller, all structural components of the Buildings and shoreline elements (Seawall, docks, etc) including any renovations/ additions/ improvements, are sound and in good and substantial repair, and meet all appropriate technical and safety codes; [25] The appellant does not contest that the wall was in a state of disrepair, and that this was known to the appellant. It argues that para. 5(f) only applies to matters within its “knowledge, information and belief”, and that this requires the appellant to have known, believed or been informed not only of the disrepair, but also that the wall was structural. The appellant submits that its principal gave evidence that it was not so aware, and that the application judge thus erred in finding that para. 5(f) applied. [26] We disagree. [27] The application judge described the wall as a “foundation wall”. He concluded, after reviewing photographs that the “collapsed wall is… structural”. Implicit in the application judge’s approach is that whether the wall was structural is an objective issue – the knowledge/belief/information limit in para. 5(f) pertains to the wall’s state of repair. That interpretation is free of any extricable error, is reasonable, and is entitled to deference. The application judge was entitled to find that the wall was structural, based on its location and the photographic evidence. Given the appellant’s knowledge that the wall was in a state of disrepair, the application judge was therefore entitled to find that para. 5(f) of the APS made it the appellant’s responsibility. [28] The second category of deficiency related to the dining room fire separation, the kitchen exhaust, and the fire suppression system in the kitchen. [29] The application judge held that the appellant was responsible for each of these items under para. 5(h) of the APS, which provides: The Seller has not received written notice of any work orders, deficiency notices or other similar notices from any municipality, public authority, or board of fire insurance underwriters, or from any tenant, or anyone else advising of any breach of any by-law, code regulation or standard or suggestion that any repair is necessary to the Properties or any part thereof (except as disclosed in writing to the Buyer within the Sellers Deliveries package and anything else prior to the end of the Buyer’s Inspection Period). The Seller agrees to remedy such items which currently exist or which may arise on or before the Close Date at the Seller’s sole expense; The buyer acknowledges there is a work order on the ventilation and fire suppression [2] system on the kitchen commercial stove issued by the Rideau Lakes Township. [30] More specifically, the application judge found that para. 5(h) applied because it stated that the appellant was aware of a work order that required each of these deficiencies to be corrected. [31] In our view, although the application judge’s interpretation of the APS must be reviewed on a deferential standard, he made palpable and overriding errors in forming his interpretation of para. 5(h) as it pertains to this category of deficiency, justifying appellate intervention. [32] First, the application judge appears to have read para. 5(h) as though it referred to a specific work order that addressed the dining room fire separation concern. However, the work order specifically referenced in the last sentence of para. 5(h) refers to the ventilation and fire suppression system, not to the dining room separation issue. The application judge did not identify any other basis upon which remedying this deficiency would be the appellant’s responsibility under the APS. Second, the application judge appears to have read the paragraph as saying that the appellant was aware of the work order referred to in its last sentence, but not to say that the respondent was aware of the order, which is what the last sentence expressly acknowledges. [33] The interpretive question raised by the paragraph is who bears responsibility for this disclosed and acknowledged work order. The application judge did not address that question. [34] Paragraph 5(h) begins by stating the appellant has not received notice of work orders, except those disclosed to the respondent. It then refers to the appellant’s obligation to remedy “such items”. And it contains the respondent’s express acknowledgment that it has been advised of the work order mentioned in the last sentence. To read the paragraph as the respondent suggests, that the appellant’s obligation to remedy “such items” refers to items required under any work order – whether undisclosed or disclosed and acknowledged in the paragraph itself – does not accord with the interpretive principle that all the words of the agreement must be given meaning. This reading would give no effect to the respondent’s acknowledgement of its awareness of the specific work order. In our view, the appellant’s obligation to remedy under para. 5(h) does not extend to the work order that the respondent acknowledged had been disclosed to it. The application judge erred in so concluding. [35] The final category of deficiency relates to work to be done on the septic system under a Director’s Order made by the Ministry of the Environment, Conservation and Parks on September 23, 2019. That Order virtually froze all sewage works at the hotel’s site and would have forced its closure until the system was brought into compliance with s. 53 of the Ontario Water Resources Act , R.S.O. 1990, c. O.40. The Director’s Order also required that the appellant register a Certificate of Requirement on title to alert any potential purchaser to the non-compliance issues. Despite receiving the Director’s Order in September 2019, the appellant did not register the Certificate of Requirement until February 25, 2020, after the parties had executed the APS, and never provided a copy of it to the respondent. [36] The application judge found that, on these facts, para. 5(h) applied to make this deficiency the appellant’s responsibility. We see no error in that conclusion. Conclusion [37] We allow the appeal in part, and vary the decision of the application judge to delete the requirement that the appellant is responsible for remedying deficiencies in the dining room fire separation and in the kitchen exhaust and fire suppression system under the work order acknowledged by the respondent in para. 5(h) of the APS, as noted above. The appeal is otherwise dismissed. Due to the limited nature of the variation of the application judge’s decision, we would not change the holdback requirement he imposed since only the actual repairs for which the appellant is responsible will be charged against it. [38] The respondent requested costs of the appeal if completely successful in the sum of $11,593. The respondent enjoyed the greater measure of, but not complete, success on the appeal. Costs of the appeal shall be to the respondent in the sum of $7,500, inclusive of disbursements and applicable taxes. “Janet Simmons J.A.” “Harvison Young J.A.” “B. Zarnett J.A.” [1] The buyer in the offers was “Jeff Day & Core Lee or Assignee”. On October 15, 2020, the APS was assigned to the respondent, and notice of the assignment was subsequently given to the appellant. For ease of reference, we refer to the respondent throughout, as each offer and the executed APS provided that upon assignment, “the Assignee shall be deemed to be the party hereinbefore originally named as the Buyer”. [2] This paragraph comprises typed text and handwritten additions. The paragraph has been reproduced above to reflect the way both parties interpret the handwriting.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Gilmour, 2022 ONCA 203 DATE: 20220309 DOCKET: C69634 Rouleau, Huscroft and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Katrina Mae Gilmour Appellant Chris Rudnicki, for the appellant Nicole Rivers, for the respondent Heard and released orally: March 7, 2022 by video conference On appeal from the sentence imposed on June 9, 2021 by Justice John M. Johnston of the Superior Court of Justice, sitting with a jury. REASONS FOR DECISION [1] The appellant seeks leave to appeal her sentence for fraud. Her appeal from conviction is proceeding as a solicitor appeal. [2] The appellant submits that the trial judge erred in principle by relying on her lack of remorse as an aggravating factor. We see no such error. [3] The appellant has proffered fresh evidence concerning the health of her four-year-old son, who underwent major surgery in January. He requires ongoing care and the appellant’s partner is unable to act as primary caregiver. The child is currently in the care of the appellant’s in-laws. [4] The appellant is entitled to statutory release on April 10, 2022. Although we are satisfied that the sentence imposed was fit, in the unusual circumstances of this case we would admit the fresh evidence and reduce the carceral portion of the sentence to time served. [5] Leave to appeal is granted and the appeal is allowed. The three-year probation order remains in place along with all of the additional orders. “Paul Rouleau J.A.” “Grant Huscroft J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 2651171 Ontario Inc. v. Brey, 2022 ONCA 205 DATE: 20220309 DOCKET: C69185 Rouleau, van Rensburg and Roberts JJ.A. BETWEEN 2651171 Ontario Inc. Plaintiff (Appellant) and Patrick Brey and Grapevine Realty Inc. Defendants (Respondents) J.F. Lalonde and Lauren Benoit, for the appellant Miriam Vale Peters and Matthew Miklaucic, for the respondent, Patrick Brey Michael Swindley, for the respondent, Grapevine Realty Inc. Heard: January 7, 2022 by video conference On appeal from the judgment of Justice Sally A. Gomery of the Superior Court of Justice dated March 1, 2021, with reasons reported at 2021 ONSC 1492. COSTS ENDORSEMENT [1] On February 17, 2022, this court allowed the appellant’s appeal, set aside the motion judge’s judgment, allowed the appellant’s claim for damages arising out of its failed real estate purchase in the amount of $4,632.10, and ordered the return of its $25,000 deposit held by the listing agent, the respondent, Grapevine Realty Inc. Grapevine took no position on the appeal and accordingly makes no claim for costs. [2] The appellant was also awarded its costs of the appeal in the all-inclusive amount of $15,000 and its costs of the motions for summary judgment and the action in an amount to be determined and subject to any offers to settle. The parties were unable to agree on the latter amount and have provided written submissions that we have reviewed. [3] The appellant requests costs of the motions for summary judgment and the action on a substantial indemnity scale in the amount of $ 40,572.04 . It bases its entitlement to an elevated scale of costs on its offer to settle dated October 17, 2019, made under r. 49.10(1) of the Rules of Civil Procedure [1] , which it served with its statement of claim. The appellant offered to settle the action in exchange for the return of the appellant’s $25,000 deposit plus costs. The offer provided that if it were accepted on or before November 1, 2019, the respondent, Patrick Brey, would pay the appellant its partial indemnity costs; if accepted thereafter, the respondent Brey would pay the appellant its costs on a partial indemnity basis up to the date of service, and its costs on a substantial indemnity basis following that date and up to the date of the acceptance of the offer. The offer remained open until one minute after the commencement of the trial. [4] The respondent Brey raises a number of objections to the appellant’s costs submissions and argues that the costs should be reduced. First, he submits that the docketed fees of appellant’s counsel between January 22 and 29, 2021, related to the leave motion that was settled by the parties on a no costs basis on January 29, 2021, must be deducted from the appellant’s claimed amount. Second, he says that the amount claimed by the appellant is “grossly disproportionate” to the result ultimately achieved by the appellant on appeal. Finally, the appellant’s unproven suggestions of fraud that it made in its reply factum and its oral submissions on the motions against the respondent Brey should be taken into account. The respondent Brey raises no objection to the appellant’s claimed disbursements. [5] We shall consider these submissions in turn. [6] First, there is no question that the appellant’s offer was made more than seven days before the hearing of the motions, not accepted by the respondent Brey, had not expired, and the result obtained by the appellant as a result of this appeal is more favourable than its offer to settle. As a result, the appellant is prima facie entitled to its costs on a partial indemnity basis to the date the offer was served and substantial indemnity costs from that date, “unless the court orders otherwise”: r. 49.10(1) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. [7] While a court retains the discretion to “order otherwise” under r. 49.10(1), this discretion has been very narrowly construed. As this court cautioned in Niagara Structural Steel (St. Catharines) Ltd. v. W.D. Laflamme Ltd. (1987), 58 O.R. (2d) 773 (C.A.), at para. 12 , “resort should only be had to the exception where, after giving proper weight to the policy of the general rule, and the importance of reasonable predictability and the even application of the rule, the interests of justice require a departure.” We do not see any circumstances here that would justify a departure from the general cost consequences stipulated under r. 49.10(1). Accordingly, the appellant is entitled to costs on a substantial indemnity basis. [8] With respect to the quantum of the appellant’s costs, we are not persuaded that the appellant has claimed any costs related to the settled leave motion. It is not clear from the dockets what time was expended on just the settled leave motion between January 22 and 29, 2021. We are therefore unable to conclude that the appellant’s claimed costs include any amounts related to the settled leave motion and decline to make any deduction. [9] Further, we do not accept the respondent Brey’s submission that the amount of costs claimed by the appellant is grossly disproportionate. The overarching consideration is whether the costs claimed are reasonable, fair, and proportionate in all the circumstances of the case, having regard to the factors set out in r. 57.01 and the reasonable expectations of the losing party: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.). The result achieved in the action is only one of the factors to be considered. [10] In our view, the appellant’s costs are reasonable, fair, and proportionate. They were incurred in relation to the appellant’s claim, the respondent Brey’s counterclaim and the two motions for judgment, which included cross-examination on affidavits. As the respondent Brey acknowledged in his written cost submissions before the motion judge, this was “a “moderately complex proceeding” and “not a routine breach of contract”. The appellant’s claimed costs are comparable with (indeed less than) the respondent Brey’s costs and the $50,000 in costs that the motion judge awarded, and thus within his reasonable contemplation if he lost the appeal and had to pay the appellant’s costs of the motions and the action. [11] Finally, we address the respondent Brey’s submission that the appellant’s costs should be reduced because of the appellant’s alternative submission on the motions that the respondent Brey fraudulently misrepresented that the property could be used as a fourplex. We agree there should be a reduction. [12] Regardless at what stage in the proceedings they are raised, unfounded allegations of fraud may attract serious cost consequences as a form of chastisement and a mark of the court’s disapproval because of their extraordinarily serious nature that go directly to the heart of a person’s very integrity: Bargman v. Rooney (1998), 30 C.P.C. (4th) 259 (Ont. Gen. Div.), at paras. 18-19. [13] In the present case, the appellant did not plead fraudulent misrepresentation. Rather, the issue of fraudulent misrepresentation was raised as an alternative argument to its main contention of negligent misrepresentation. The motion judge declined to determine this issue because it was not advanced in its statement of claim. She also stated that had the claim been properly advanced, she would have dismissed it “in the absence of any credible evidence that [the respondent] Brey intentionally misled [the appellant] and other potential purchasers about the lawful use of the Property or potential exposure as a result of the renovation of the Property forty-five years earlier.” [14] The appellant’s allegations of fraudulent misrepresentation occupied a small part of the proceedings and did not form the basis for the motion judge’s decision. Nevertheless, based on the motion judge’s reasons, they appear to have been proffered “without regard for the rule that fraud must be strictly pleaded and strictly proved”: Toronto Dominion Bank v. Leigh Instruments Ltd. (Trustee of) , [1998] O.J. No. 4221 (Gen. Div.), at para. 17. Moreover, while not all unsuccessful allegations of fraud and dishonesty lead inexorably to cost consequences, where, as here, a party makes such allegations unsuccessfully “with access to information sufficient to conclude that the other party was merely negligent and neither dishonest nor fraudulent”, costs sanctions may be appropriate: Hamilton v. Open Window Bakery Ltd. , 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 26. [15] As a result, we are of the view that a reduction of the appellant’s costs is appropriate as a reminder that “allegations of fraud and dishonesty are simply not to be made unless there is every reasonable likelihood that they can be proved”: Bargman , at para. 19. [16] Accordingly, we order that the respondent Brey shall pay to the appellant its costs of the motions and the action in the amount of $35,000, inclusive of disbursements and all applicable taxes. “Paul Rouleau J.A.” “K. van Rensburg J.A.” “L.B. Roberts J.A.” [1] As provided for under r. 49.02(2), r. 49.10(1) also applies to motions, with necessary modifications.

COURT OF APPEAL FOR ONTARIO CITATION: Ahmed v. DePaulis, 2022 ONCA 206 DATE: 20220310 DOCKET: C68321 van Rensburg, Nordheimer and Harvison Young JJ.A. BETWEEN Nisar Ahmed and 1492480 Ontario Inc. Plaintiffs (Respondents) and Albina DePaulis also known as Albina De Paulis, Claudio DePaulis also known as Claudio De Paulis and Washmax (Weston) Ltd. Defendants ( Appellants ) No one appearing for the appellants Eric Blau, former counsel for the appellants S. Michael Citak and Dara Hirbod, for the respondents Heard: March 8, 2022 by video conference On appeal from the judgment of Justice Lorne Sossin of the Superior Court of Justice, dated April 2, 2020, with reasons reported at 2020 ONSC 2550. REASONS FOR DECISION [1] The appellants appeal from the trial judgment that awarded the respondents damages for, among other things, illegal distress, conversion, and defamation. At the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons. [2] The appeal was scheduled to be heard on March 8, 2022. On March 4, 2022, the appellants’ former counsel obtained an order from Pardu J.A. removing them as the lawyers of record for the appellants. They had previously obtained an order removing them as lawyers of record from the Superior Court of Justice on February 23, 2022. The appellants had notice of and did not respond to the motions to remove their counsel. [3] We were advised that both orders were served on the appellants. The order of Pardu J.A. was sent by email, as she directed, and also by registered mail. We were also advised that the appellants’ former lawyers had previously advised the appellants of the hearing date of March 8 and then subsequently provided them with the link to the virtual hearing. At the hearing on March 8, neither of the appellants appeared nor did they communicate in any way with the court. The appellants also did not communicate with their former lawyers. [4] The respondents obtained their judgment almost two years ago. The appellants have not demonstrated any interest in proceeding with their appeal. In particular, knowing that their counsel was seeking removal from the record and had obtained orders in this regard, they did not appear to ask for an adjournment of the hearing or otherwise address the status of their appeal. In those circumstances, we determined that the appeal should be dismissed. [5] The respondents are entitled to their costs of the appeal which we fix in the amount requested, that is, $17,561.90, inclusive of disbursements and H.S.T. “K. van Rensburg J.A.” “I.V.B. Nordheimer J.A.” “Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Johnston (Re), 2022 ONCA 207 DATE: 20220314 DOCKET: C69623 Rouleau, Nordheimer and George JJ.A. IN THE MATTER OF:  Kelvin Johnston AN APPEAL UNDER PART XX.1 OF THE CODE Anita Szigeti and Tanner Blomme, for the appellant Andrew Hotke, for the respondent, Attorney General of Ontario Kate Deakon, for the respondent, Person in Charge of Royal Ottawa Mental Health Centre Heard: March 4, 2022 by video conference On appeal from the disposition of the Ontario Review Board, dated June 4, 2021, with reasons dated July 2, 2021. REASONS FOR DECISION [1] Mr. Johnston appeals from the disposition of the Ontario Review Board that continued the detention order against him. The appellant submits that the Board erred in continuing the detention order. In particular, he submits that the Board erred in finding that the appellant continues to pose a significant risk to the safety of the public. He asks that the detention order be set aside and that an absolute discharge be granted. Alternatively, the appellant asks for conditional discharge or a new hearing. For the following reasons, we dismiss the appeal. [2] The appellant has been under the auspices of the Board since February 2016 arising out of charges of uttering death threats, mischief and breach of probation. He was also under the auspices of the Board in 2008 arising out of charges of mischief, failure to comply and possession of drugs but he was absolutely discharged in 2010. His current detention arises out of the second NCR finding in 2016. [3] The Board found that the appellant continues to pose a significant risk to the safety of the public. The Board accepted the evidence of the attending psychiatrist, Dr. Gojer, that if left to his own devices, the appellant would resort to drugs and alcohol which would lead to a decompensation of his condition “with an increasing risk of violence”. The Board was entitled to accept and rely on that opinion: K.S. (Re) , 2022 ONCA 170, at para. 7. The Board also noted that this is exactly what happened when the appellant stopped taking one of his medications in 2020. [4] The appellant submits that the Board misunderstood Dr. Gojer’s evidence in coming to its conclusion that a serious risk to public safety was established. We do not agree. Dr. Gojer’s evidence was clear that the appellant would likely decompensate, if he was discharged, because he would stop taking his medication. Dr. Gojer also said that, if that occurred, the appellant would likely become violent, as he has in the past. We note that only Dr. Gojer testified before the Board on this issue. [5] The appellant quarrels with the Board’s finding that these consequences amount to a serious risk to public safety. The appellant says that, not only has his condition been stable for the past year, but there was insufficient evidence that he would commit a serious criminal offence if he did decompensate. We do not accept this contention. While the appellant’s condition has been stable for the past year, that results largely from the fact that he is under the control of the hospital and his compliance with his medications can be monitored. With respect to the requirement that there be evidence that a person will commit a serious criminal offence, this has to be understood in the context of what serious means. Serious in this context is described as “going beyond the merely trivial or annoying”: Winko v. British Columbia (Forensic Psychiatric Institute) , [1999] 2 S.C.R. 625, at para. 62. [6] Reasonable people might differ over which criminal offences are serious and which are not. Regardless, in our view, the appellant’s threats to kill people satisfies the seriousness requirement. Further, the evidence is that the appellant resorts to violence, if his condition deteriorates. While the appellant may consider that his prior assaultive behaviour did not involve serious physical attacks, others might take a different view. It is certainly clear that the appellant has the physical capability of inflicting serious harm. On that point, we reiterate that it is the potential harm that must be serious, not the actual harm caused. The fact that the appellant has not inflicted physical harm on any individual in the past is no assurance that he would not in the future. The purpose of the risk analysis is to identify and guard against significant risks to public safety, not to wait for the worst to occur. [7] It was open to the Board, on the evidence, to conclude that the appellant posed a significant risk to public safety. The appellant has failed to demonstrate that the Board’s conclusion is unreasonable. In our view, this case mirrors the situation described in R. v. Starson (2004), 183 C.C.C. (3d) 538 (Ont. C.A.) where Rosenberg J.A. said, at para. 24: Thus, the fact that, to date, the appellant has never physically harmed anyone does not render the Board's decision unreasonable. There was a body of evidence to support a finding that the appellant continued to represent a real risk of serious psychological harm to members of the public by his threatening behaviour, which in the past has included threats of death. [8] Finally, we also do not accept that the Board failed to consider the alternative of granting a conditional discharge. The Board accepted the evidence of the attending psychiatrist that the appellant would “deteriorate fairly quickly” if he relapsed. That rapid deterioration made control and management of the appellant on a conditional discharge problematic. Quick reaction was required if a relapse occurred. A detention order provides the ability to immediately respond. Again, that was a reasonable conclusion for the Board to reach. [9] The appeal is dismissed. “Paul Rouleau J.A.” “I.V.B. Nordheimer J.A.” “J. George J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Khorramshahi v. Iranpour, 2022 ONCA 210 DATE: 20220311 DOCKET: M53255 Roberts J.A. (Motions Judge) BETWEEN Farid Khorramshahi Moving Party and Shadab Iranpour Responding Party Farid Khorramshahi, acting in person Shadab Iranpour, acting in person Heard: March 8, 2022 by video conference REASONS FOR DECISION [1] Mr. Khorramshahi seeks an order extending the time to file his notice of appeal from the order of the motion judge Dennison J. dated December 8, 2021. The motion judge dismissed Mr. Khorramshahi’s motion to compel Ms. Iranpour, his former spouse, to attend to have a religious divorce signed and schedule a contempt hearing on a priority basis. She ordered him to pay $2,200 in costs to Ms. Iranpour. [2] Under r. 61.04(1) of the Rules of Civil Procedure , R.R.O. 1990 Reg. 194, an appeal to an appellate court shall be commenced by serving a notice of appeal and the required certificate within 30 days after the order appealed from was made. This means that Mr. Khorramshahi’s deadline to serve a notice of appeal on Ms. Iranpour was January 7, 2022. [3] Mr. Khorramshahi served Ms. Iranpour by email with his notice of appeal and certificate of evidence at 7:57 p.m. on January 7, 2022. In his notice of appeal, he mistakenly noted the date of the order under appeal as October 8, 2021. The court office rejected his filing without an order extending the time to file the notice of appeal. On February 25, 2022, at 4:23 p.m., Mr. Khorramshahi served Ms. Iranpour by email with his present motion to extend the time for filing. [4] Ms. Iranpour opposes the requested extension. [5] The overarching consideration on this motion is whether the justice of the case warrants the requested extension. Included in this consideration are the following well-established criteria: the length of and explanation for the delay; a bona fide intention to appeal formed within the 30-day appeal deadline under r. 61.04(1) of the Rules of Civil Procedure ; any prejudice caused by the delay; and the merits of the proposed appeal: see Enbridge Gas Distribution Inc. v. Froese , 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. [6] Mr. Khorramshahi’s affidavit in support of his motion is very brief. While he explained in his affidavit why his materials were rejected by the court office, he failed to provide any explanation for his delay in serving them past the January 7, 2022 deadline. Service by email after 4:00 p.m. is deemed under r. 16.01(4)(b)(iv) to be service on the next day; the next day in this case being a Saturday, service is deemed under r. 3.01(1)(d) to have taken place on Monday, January 10, 2022. [1] Similarly, there is no evidence that Mr. Khorramshahi formed an intention to appeal within the 30-day appeal period. I am not prepared to infer that Mr. Khorramshahi formed the requisite intention to appeal given that the notice of appeal and certificate of evidence were served out of time. There is also no explanation provided in Mr. Khorramshahi’s supporting affidavit for the delay in bringing this motion almost two months after his filing was rejected by the court office. While the delay in the commencement of the appeal is short, the delay in bringing this motion is not, especially in the context of family law litigation where finality is essential to allow families to move on with their lives. [7] The fact that Mr. Khorramshahi is self-represented on this motion does not excuse the delay or the absence of explanations for his delay. Mr. Khorramshahi was represented by counsel before the motion judge and he advised that he had assistance in preparing his appeal materials and on this motion. [8] I turn to the merits of the proposed appeal. Mr. Khorramshahi has only provided the reasons of the motion judge and his proposed notice of appeal. I do not have a copy of the motion judge’s formal order, nor do I have a copy of the appeal book or factum proposed to be filed, although Mr. Khorramshahi advised that they were prepared. The only reference to the merits of the appeal in Mr. Khorramshahi’s supporting affidavit is his statement that: “Without this extension, the appellant would lose the opportunity to appeal a decision which has fundamentally ignored the evidences [sic] which was open with the Superior Court of Justice on Dec. 2021”. [9] As indicated in his materials and submissions on this motion, his principal ground of appeal is that the motion judge erred in failing to accept the expert evidence proffered by his expert with respect to Iranian law. He also argues that the motion judge erred in preferring the expert evidence given by Ms. Iranpour’s expert that Ms. Iranpour could not release her Iranian dowry (“Mahrieh”) and that Iranian courts had jurisdiction over this matter. [10] Based on the materials provided, this ground has no prospect of success. It was open to the motion judge to prefer the evidence of Ms. Iranpour’s expert over the evidence of Mr. Khorramshahi’s expert. This evidence supported the motion judge’s determination that she had no jurisdiction to grant the order sought by Mr. Khorramshahi. Mr. Khorramshahi has not pointed to any arguable error apparent in her reasons or decision. [11] Finally, I consider whether there is any prejudice to Ms. Iranpour because of Mr. Khorramshahi’s delay. In my view, again in the context of family law litigation, it would be prejudicial to subject Ms. Iranpour to further costs in responding to an unmeritorious appeal: see Bobel v. Humecka , 2021 ONCA 757, at para. 6. [12] Mr. Khorramshahi has not met his onus on this motion. I am not persuaded that the justice of the case warrants an extension of time to appeal. Rather, the justice of the case warrants the refusal of the requested extension. [13] Accordingly, the motion is dismissed. Although self-represented on this motion, Ms. Iranpour consulted with her lawyer about Mr. Khorramshahi’s motion. She is therefore entitled to costs of this motion in the amount of $500 payable forthwith by Mr. Khorramshahi. “L.B. Roberts J.A.” [1] This is because, r. 3.01(1)(d) specifies that service of a document made after 4 p.m. or at any time on a holiday shall be deemed to have been made on the next day that is not a holiday. Under r. 1.03(1), “holiday” is defined as including any Saturday or Sunday.

COURT OF APPEAL FOR ONTARIO CITATION: Leonard v. Zychowicz, 2022 ONCA 212 DATE: 20220315 DOCKET: C68222 Strathy C.J.O., Roberts and Sossin JJ.A. BETWEEN Cheryl Leonard Moving Party (Appellant) and Zara Zychowicz Respondent (Respondent) Marc A. Munro, for the appellant Andrew L. Keesmaat and Simone A. Bilato, for the respondent Heard: February 15, 2022 by video conference On appeal from the order of Justice Paul R. Sweeny of the Superior Court of Justice, dated February 21, 2020, with reasons reported at 2020 ONSC 662, 56 E.T.R. (4th) 81, and from the costs order, dated March 23, 2020, with reasons at 2020 ONSC 1713. REASONS FOR DECISION [1] This appeal involves a dispute between two cousins concerning the will of their late aunt, Helene Polomock (the “Testatrix”), who died on April 4, 2011. The central issue on the application was whether the Testatrix had testamentary capacity when she executed a will on October 23, 2007 (the “Will”), approximately four years prior to her death. [2] The Will named the respondent, Zara Zychowicz, as estate trustee and sole beneficiary. The appellant, Cheryl Leonard, had been named as the estate trustee and sole beneficiary in an earlier will, made in 2002 (the “earlier Will”). [3] The appellant brought an application to declare the Will invalid and to require the respondent to surrender her appointment as estate trustee. She asserted that there were suspicious circumstances surrounding the execution of the Will, that the Testatrix lacked testamentary capacity as well as knowledge and approval of the Will’s contents, and that the Testatrix had been subjected to undue influence around the time she signed the Will. Decision Below [4] The application judge dismissed the application. After setting out the factual background and the issues, the application judge identified the relevant principles, summarized by Cullity J. in Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. S.C.), and extrapolated from the authorities, including Vout v. Hay , [1995] 2 S.C.R. 876. The appellant does not assert that the application judge erred in his statement of the applicable principles or that he erred in the application of those principles. As we explain below, the appellant’s submission is that the application judge made a finding of testamentary capacity in the absence of evidence. [5] The application judge acknowledged that the Testatrix had longstanding mental health issues and had been diagnosed with bipolar disorder. He found that the Will had been executed with the requisite formalities and concluded that it could be presumed that the Testatrix knew and approved of its contents. He also found there were no suspicious circumstances raised concerning the preparation of the Will, nor was there evidence of undue influence. However, he was prepared to accept that there was some evidence raised by the appellant of suspicious circumstances concerning the capacity of the Testatrix, so as to put an onus on the respondent to prove testamentary capacity. [6] Having considered the evidence on capacity, including the expert evidence, the application judge found that the respondent had discharged her onus and the Will was valid. In coming to that conclusion, he largely rejected the evidence of the appellant’s expert, Dr. Shulman. He found that Dr. Shulman’s evidence had been “tainted” by a summary of facts prepared by appellant’s counsel – a summary that had been admittedly created “with advocacy in mind”. [7] The application judge preferred instead the evidence of the respondent’s expert on capacity, Dr. Pachet, which he accepted. Dr. Pachet opined that there was no substantive or conclusive evidence that the Testatrix did not meet the test in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, at p. 565, when she executed the Will. There was no evidence to suggest that she did not know the nature and effect of a will, her natural beneficiaries, or the extent of her assets. There was no evidence that she was delusional when she executed the Will. In sum, in Dr. Pachet’s words, “[h]er cognitive impairment and degree of executive dysfunction would not have been viewed as a significant threat to her testamentary capacity.” The application judge found that Dr. Pachet’s evidence was consistent with other evidence, including medical evidence, which indicated that the Testatrix had been functioning well and was not subject to delusions when she executed the Will. [8] The application judge dismissed the application and awarded costs to the respondent in the amount of $75,175. Submissions on Appeal [9] First, the appellant submits that the application judge found that there were suspicious circumstances concerning the capacity of the Testatrix. He submits, however, that the application judge erred in relying on the presumption of capacity to make a determination of capacity in the absence of material evidence. The appellant submits that this was an error of law, and the standard of review is therefore correctness. She points to the fact that the solicitor had no notes or recollection as to the testamentary capacity of the Testatrix, and no contemporaneous record of her knowledge and approval of the Will. [10] Second, the appellant seeks leave to appeal the costs award. She notes that the appellant’s counsel did not render any accounts, did not keep dockets, and simply filed a bill of costs, which her counsel describes as “fabricated guestimates.” [11] We do not accept these submissions. Testamentary Capacity [12] We begin with the standard of review. The appellant submits the standard of review is correctness and that we are free to substitute our opinion on capacity for the application judge’s. We do not agree. [13] The determination of testamentary capacity involves the application of a legal standard – the test in Banks v. Goodfellow – to a set of facts. The question, therefore, is one of mixed fact and law. If the application judge has applied the correct standard, has considered the requisite elements of that standard and has made no error in principle, either in the application of the standard or otherwise, the decision will only be set aside if the judge has made a palpable and overriding error in the assessment of the evidence: Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 26, 36; see also Wilton v. Koestlmaier , 2019 BCCA 262, 48 E.T.R. (4th) 12, at paras. 22-23. [14] On the other hand, where the application judge has made an error in principle, for example, by failing to consider the requisite elements of the legal test or standard, or has erred in the application of that test or standard, the court is entitled to intervene. For a recent example of such intervention, see this court’s decision in McGrath v. Joy , 2022 ONCA 119. [15] The application judge correctly identified the Banks v. Goodfellow test with respect to testamentary capacity and considered its elements. [16] The appellant has not identified any palpable and overriding error in the application judge’s assessment of the evidence. [17] We disagree with the appellant’s submission that the application judge made a finding of suspicious circumstances concerning the capacity of the Testatrix. Rather, the application judge was prepared to accept that the appellant had adduced “some evidence of suspicious circumstances with respect to capacity such that [the respondent] has the onus of proving testamentary capacity.” He was satisfied, however, that the respondent had discharged that onus. [18] The application judge was entitled to discount the evidence of Dr. Shulman because his opinion was based on a summary of facts, prepared by counsel, that was patently neither objective nor fair. [19] As the application judge noted, the summary of the evidence provided to Dr. Shulman may well have affected his appreciation of the evidence. For example, Dr. Shulman stated in his report that “[t]he stark difference in the two Wills of 2002 and 2007 reflect radical changes in [the Testatrix’s] thinking about potential beneficiaries.” In fact, the only change of substance between the two wills was the substitution of one niece, the respondent, Zara Zychowicz, for another, the appellant, Cheryl Leonard. In light of the Testatrix’s circumstances, and the terms of her previous wills, this can hardly be described as a “radical” change. The Testatrix had no children, her husband had sufficient means and, as the application judge found, “the circumstances surrounding the preparation of her prior Wills shows that [the Testatrix] was ambivalent about her beneficiaries.” She had named her half-brother John, the respondent’s father, as the residual beneficiary of her will in 1989. When she gave instructions for the earlier Will, she initially wanted both the appellant and the respondent to be beneficiaries, but ultimately settled on the appellant alone. The Will subsequently identified the respondent alone as the sole beneficiary. As the application judge noted, this was not indicative of a radical change in her thinking so as to call her capacity into question. [20] In assessing the weight to be given to the expert evidence, having discounted the evidence of Dr. Shulman, the application judge was entitled to prefer the expert evidence of Dr. Pachet. He quoted Dr. Pachet’s evidence: Overall, based upon the documents reviewed there is no substantive or conclusive evidence to suggest that [the Testatrix] did not meet Banks vs. Goodfellow criteria when she executed the Will dated October 23, 2007. There is no evidence to suggest she would not have known the nature and effect of a Will, her natural beneficiaries, or the extent of her assets. Her cognitive impairment and degree of executive dysfunction would not have been viewed as a significant threat to her testamentary capacity. As well, there was no indication of a challenge to her decisional capacity in association with her personal matters or financial affairs prior to or at the time she changed her Will in 2007. ... based upon the documentation reviewed there is no substantive evidence that [the Testatrix] was delusional or paranoid when she executed the 2007 Will.... While the rationale regarding her choice of beneficiary in 2007 was not documented in a fulsome manner, there is no substantive information to argue that delusions or paranoid ideations were influencing her estate disposition at that time. [21] A judge’s findings of fact based on the acceptance of expert evidence and their preference of the evidence of one expert over another is entitled to deference and should not be disturbed in the absence of a palpable and overriding error in the assessment of the evidence. The appellant has demonstrated no such error. [22] The appellant’s core submission, however, is that having found that the presumption of capacity was not available, the application judge erred in finding testamentary capacity in the absence of affirmative evidence. She submits, for example, that the application judge erred in finding that the paucity of evidence of medical visits during the period of 2005 to 2009 was consistent with Dr. Pachet’s opinion and supported the view that the Testatrix was functioning well and was not under any delusions. [23] We do not accept the appellant’s submission that the application judge relied on the presumption of capacity to find capacity or that he found capacity in the absence of material evidence. The application judge’s findings of fact in relation to testamentary capacity were the product of his assessment of all the evidence . [24] In addition to Dr. Pachet’s evidence, there was ample evidence before the application judge to support the Testatrix’s testamentary capacity and the absence of undue influence. This included: · the evidence of the respondent’s father, the half-brother of the Testatrix, who held her power of attorney executed the same day as the Will and who described her as independent, capable of living alone and capable of making her own property, banking and financial decisions as well as her personal care decisions; · the evidence of a longstanding neighbour, who talked to the Testatrix almost every day, and described her as “very smart”, aware of what was going on around her, capable of making decisions in her best interests and showing no signs of hallucinations or paranoia; · the evidence of the solicitor who prepared the Will, who had a long-standing relationship with the Testatrix, who had obtained a satisfactory capacity assessment in relation to the earlier Will, and who did not recall or note any concerns about the Testatrix’s capacity in relation to the Will – his contemporaneous notes indicate the Testatrix was “upset” with the appellant and thus gave instructions to remove her from her will; · the evidence of the Testatrix’s family physician for more than 10 years prior to her death, to the effect that there had been no change in her testamentary capacity between January 2002 (when the original capacity assessment was performed by that same physician) and September 2007 or shortly thereafter (when the Will was prepared and executed) or even in psychiatric and geriatric notes up to 2010; and · the absence of any evidence, in the extensive medical record produced on the application, that the Testatrix lacked capacity, or had a mental illness that affected her capacity, at the time she gave instructions for the Will or signed the Will. [25] This evidence, together with the evidence of Dr. Pachet, which he accepted, fully supports the application judge’s conclusions on the issue of testamentary capacity. The appellant has identified no palpable and overriding error in his assessment of the evidence. Costs Awarded Below [26] We turn to the issue of costs. [27] In post-hearing costs submissions, the appellant submitted that no costs should be awarded because the respondent’s counsel had not rendered accounts, had not kept dockets, and had essentially copied the bill of costs of appellant’s counsel. [28] The application judge found that the absence of dockets did not preclude an award of costs, but it did make the determination of costs more challenging. He had before him, however, a bill of costs prepared by respondent’s counsel, setting out time spent and hourly rates charged. The respondent claimed costs on a partial indemnity basis of $190,000. [29] The application judge awarded the respondent costs of $55,175 in fees and $20,000 for disbursements, for a total of $75,175, inclusive of HST. Those costs were payable by the appellant, as opposed to payable out of the estate. [30] In this court, the appellant renews the following submissions: (a) awarding costs amounts to a “windfall” in this case and no costs should be payable because the respondent’s counsel sent no bills to the respondent and kept no dockets; (b) the respondent’s costs should be paid out of her own share of the estate; or (c) each party should bear her own costs. [31] A court should set aside a costs award on appeal only if the judge has made an error in principle or if the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. [32] We see no basis on which to interfere with the application judge’s decision on costs. He considered the principles applicable to the award of costs and how those principles apply in estates litigation. The appellant has failed to identify an error in principle or to establish that the award was plainly wrong. [33] The application judge did not err in requiring the appellant to pay costs, particularly having regard to his conclusion that there were no reasonable grounds upon which to question the execution of the Will or the capacity of the Testatrix. Furthermore, while it is certainly preferable to keep dockets, even where the client will not be billed until the completion of the matter, the fact that respondent’s counsel had not issued accounts, and had no dockets, was not an automatic bar to the recovery of costs. The application judge must do the best they can in such circumstances and this application judge did so. [34] In any event, and stepping back for a moment, we find the costs award reasonable. The claim related to a $500,000 estate; the application hearing lasted four and a half days; there was expert evidence on both sides, multiple affidavits, and a very substantial documentary record: in addition to the Appeal Book and Compendium, we have before us nine volumes of exhibits. The costs awarded were proportional and well within the appellant’s reasonable expectations. Disposition [35] For these reasons, the appeal is dismissed. We grant leave to appeal costs but dismiss the costs appeal. [36] Costs of the appeal to the respondent in the agreed amount of $15,000, inclusive of disbursements and all applicable taxes. “G.R. Strathy C.J.O.” “L.B. Roberts J.A.” “L. Sossin J.A.”

COUR D’APPEL DE L’ONTARIO RÉFÉRENCE : 1750738 Ontario Inc. c. 1750714 Ontario Inc., 2022 ONCA 215 DATE : 20220314 DOSSIER : C67079 Les juges van Rensburg, Benotto et Thorburn ENTRE 1750738 Ontario Inc. Demanderesse (Intimée) et 1750714 Ontario Inc., 1751917 Ontario Inc., 6888631 Canada Inc. et 1750739 Ontario Inc. Défenderesses (Appelantes) Jeff G. Saikaley, Gabriel Poliquin et Marie-Pier Dupont, pour les appelantes Sophie C. Reitano, pour l’intimée Date de l’audience : par écrit En appel du jugement du juge Michel Z. Charbonneau de la Cour supérieure de justice , en date du 14 mai 2019, dont les motifs figurent à 2019 ONSC 2879. INSCRIPTION SUR LES DÉPENS [1] L’appel concerne un désaccord parmi les investisseurs dans un lotissement d’environ 100 lots résidentiels. Les quatre investisseurs sont : 1750714 Ontario Inc. (« 714 »), 1751917 Ontario Inc. (« 917 »), 6888631 Canada Inc. (« 631 ») et 1750738 Ontario Inc. (« 738 »). [2] Il y a eu désaccord sur la question si un contrat verbal a été conclu et, si oui, les termes du contrat ; l’effet de la convention parmi actionnaires sur le pr é sum é contrat oral ; l’effet de la clause de résiliation des ententes antérieures sur le contrat verbal, l’ordonnance de l’exécution en nature du contrat ; et l’application de l’ordonnance. [3] Le tribunal de première instance a décidé qu’un contrat verbal a été conclu, que la condition de l’investissement est qu’un nombre de lots égaux à la participation du dirigeant de 738, M. Lacroix, dans le projet serait construit, que 738 pouvait poursuivre l’action de sa part, et que le deuxième contrat ne nie pas l’effet du premier. Le tribunal a ordonné l’exécution en nature du contrat liant 714, 917 et 631 aux ordonnances. [4] Les appelantes, 714, 917, 631 et 739, ont interjeté appel à la décision du tribunal. Les questions en litige furent : 1. Est-ce que le tribunal a erré en droit en concluant qu’il y avait un contrat oral alors que les termes matériaux de ce présumé contrat étaient trop incertains et/ou en ajoutant des conditions implicites au contrat ? 2. Est-ce que le tribunal a erré en droit en n’interprétant pas la clause de résiliation dans la convention pour conclure que la clause a pour effet de résilier le contrat antérieur, et ordonnant l’exécution en nature du contrat ? 3. Est-ce que le tribunal a commis une erreur de droit en ordonnant l’exécution en nature du contrat ? 4. Est-ce que le tribunal a commis une erreur de droit quant à l’application des ordonnances à 714, 917 et 631 ? et 5. Dans l’alternative, est-ce que l’autorisation de faire appel de l’ordonnance de dépens doit être accordée, et l’ordonnance modifiée ? [5] Cette cour a décidé que le tribunal n’a pas commis d’erreur, car : 1. Les termes essentiels du contrat verbal étaient précis et certains ; 2. Le tribunal avait raison de conclure que la clause d’exclusion aurait pour effet d’écarter l’élément de substance de l’entente contractuelle préexistante ; 3. Le tribunal n’a pas erré en concluant à l’exécution en nature du contrat, car c’est le seul remède qui permet de remettre 738 dans la position qu’elle aurait été sans la rupture de contrat, des dommages-intérêts sont inadéquats pour l’entente unique, et il serait difficile de quantifier les dommages-intérêts avec exactitude ; 4. Tous les investisseurs ont accepté d’être liés par le contrat verbal ; et dans l’alternative ; et 5. 738 a présenté une offre de transaction aux appelantes en offrant que l’action soit réglée, mais les appelantes ont refusé l’offre et n’ont présenté aucune offre de règlement à 738. 738 n’avait donc aucun choix que de procéder avec le procès et 738 a connu un jugement plus favorable que les conditions de son offre. Le Tribunal n’a commis aucune erreur révisable en appel en concluant que les dépens représentaient une « somme substantielle » et en appliquant la règle 49.10. [6] L’appel a donc été rejeté avec dépens. La cour demanda des soumissions écrites concernant le quantum des dépens, et ces motifs tranchent ces soumissions. [7] Le tribunal dispose d’un large pouvoir discrétionnaire d’accorder des dépens en appel : l’art. 131(1) de la Loi sur les tribunaux judiciaires , L.R.O. 1990, c. C.43. Le tribunal peut considérer les facteurs énumérés dans la r. 57.01(1) des Règles de procédure civile , R.R.O. 1990, Reg. 194, pour le guider dans l’exercice de sa discrétion, y compris les suivants : · le principe d’indemnisation, y compris les taux facturés et les heures consacrées par les avocats ; · le montant de dépens raisonnables ; · le degré de complexité de l’instance ; · l’importance des questions en litige ; et · la conduite des parties. [8] Pour déterminer les dépens raisonnables que les parties pourraient s’attendre à payer, une comparaison entre les dépens encourus par chaque partie peut être utile : TransCanada Pipelines Ltd. v. Potter Station Power Ltd. Partnership , (2002), 20 C.P.C. (5th) 382 (S.C.J.), au para. 8 ; City Front Developments Inc. v. Toronto District School Board (2007), 285 D.L.R. (4th) 187 (Ont. S.C.), au para. 9 ; Loreto v. Little (costs) , 2010 ONSC 5993, aux paras. 33-34. [9] Le principe directeur et fondamental est de savoir si les coûts sont justes et raisonnables dans les circonstances : Boucher c. Conseil des experts-comptables de la province de l’Ontario (2004), 71 O.R (3d) 291, (Ont. C.A.). [10] Le sommaire des dépens de l’Intimée pour l’appel se résume comme suit : Détails Indemnité réelle Indemnité partielle (60%) Indemnité substantielle (90%) Honoraires (incluant la TVH) 44 250,24 $ 26 550,14 $ 39 825,21 $ Débours (incluant la TVH) 15 185,63 $ 9 214,51 $ 13 681,60 $ TOTAUX : 59 435,87 $ 35 764,65 $ 53 506,81 $ [11] Les sommes dépensées par les appelantes pour l’appel se résument comme suit : Détails Indemnité réelle Indemnité partielle (60%) Indemnité substantielle (90%) Honoraires (incluant la TVH) 36 969,08 $ 22 181,45 $ 33 272,17 $ Débours (incluant la TVH) 4 549,77 $ 4 549,77 $ 4 549,77 $ TOTAUX : 41 518,85 $ 26 731,22 $ 37 821,94 $ [12] Les appelantes n’ont pas abusé du processus judiciaire, donc nous octroyons des dépens sur une base d’indemnité partielle. [13] Le degré de complexité de l’instance et l’importance des questions en litige sont d’une importance moyenne et la conduite des deux parties est acceptable. [14] L’Intimée a encouru de grands déboursés à la hausse après avoir engagé un cabinet d’avocat externe pour réviser son mémoire d’appel. Ces débours constituent une certaine duplication des services rendus par l’avocate au dossier. [15] Pour toutes ces raisons, nous octroyons à l’Intimée un montant global de 32 000 $ pour tous ses dépens y compris la taxe. Ces dépens sont sur une base d’indemnisation partielle pour la durée de l’instance d’appel et un montant réduit pour les débours. « K. van Rensburg j.c.a. » « M.L. Benotto j.c.a. » « J.A. Thorburn j.c.a. »

COURT OF APPEAL FOR ONTARIO CITATION: Richards (Re), 2022 ONCA 216 DATE: 20220314 DOCKET: C69537 van Rensburg, Nordheimer and Harvison Young JJ.A. In the Matter of the Bankruptcy of Michael Paul Richards, of the City of Toronto, in the Province of Ontario Ian J. Klaiman, for the appellant, Michael Paul Richards Catherine Francis, for the respondent, Royal Bank of Canada Heard: March 11, 2022 by video conference On appeal from the order of Justice Barbara A. Conway of the Superior Court of Justice, dated June 3, 2021. REASONS FOR DECISION [1] Michael Richards appeals from the order of the bankruptcy judge that involved the interpretation of a trust of which he is the beneficiary (the “Trust”). At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons. [2] The appellant is an undischarged bankrupt. Royal Bank of Canada (“RBC”) has an outstanding judgment against him for $987,613 plus costs and interest. On September 16, 2019, RBC filed a bankruptcy application against the appellant, which was issued the same day. [3] The appellant is the beneficiary of a property at 61 St. Clair Avenue West (the “Property”) pursuant to a Trust that was settled by his father in 2001. The Trust was set up to hold the Property during the lives of the appellant’s parents, with a life interest permitting them to live in the Property. The appellant’s father, George, died in 2010. His mother, Patricia, continued to live in the Property. She died in July 2020. According to the terms of the Trust, the date of death of the second of the appellant’s parents is called the “Time of Division”. [4] At the Time of Division, the trustees are required to distribute the Trust Fund (including the Property and any Chattels) to the appellant, if he is then alive. Section 5.2.2 of the Trust reads: On the Time of Division the Trustees shall: if George Richards is not then alive, the Trust Fund, including, for greater certainty, the Real Property and the Chattels … shall be paid and transferred to Michael Paul Richards, if he is then alive [5] Prior to Patricia’s death, the trustees of the Trust sold the Property. The proceeds of sale ($1,172,120.90) are being held in trust. [6] In October 2020, RBC obtained an order under s. 38 of the Bankruptcy and Insolvency Act , R.S.C. 1985, c. B-3 (“ BIA ”), taking an assignment of rights of the appellant’s Trustee in Bankruptcy to make a claim against the sale proceeds of the Property. The Bankruptcy Trustee had not wanted to pursue the claim due to lack of funding. RBC now stands in the shoes of the Bankruptcy Trustee with respect to the sale proceeds of the Property. [7] RBC brought a motion to recover the sale proceeds up to the amount owing to RBC. It sought a declaration that the appellant was the beneficiary of the Trust and had an interest in the Property under the terms of the Trust. RBC argued that the sale proceeds constituted property of the bankrupt, pursuant to the broad definition in s. 67(1)(c) of the BIA , which vested in his Bankruptcy Trustee and formed part of his estate. [8] The appellant responded that his interest in the Property was suspended while he is a bankrupt, pursuant to the provisions of s. 4.2 of the Trust. That provision is somewhat unusual. It reads: Any right of a Beneficiary to receive any income or capital of the Trust Fund as a result of a mandatory direction to the Trustees to make such a distribution, including, for greater certainty, a mandatory entitlement of a Beneficiary to the exclusive use, occupation and enjoyment of the Real Property and the Chattels …. shall be enforceable only until such Beneficiary shall become bankrupt … whereupon and so long as the effect or operation thereof shall continue, the Beneficiary’s Interest shall cease until the cause of the Beneficiary’s Interest becoming vested in or belonging to or being payable to a person other than such Beneficiary shall have ceased to exist … and then the Beneficiary’s Interest shall again be allocated to such Beneficiary as aforesaid unless and until a like or similar event shall happen whereupon the Beneficiary’s Interest of such Beneficiary shall again cease and so on from time to time. [9] The appellant submitted that his interest in the Property could not vest in his Bankruptcy Trustee as he had no rights to the Property, pursuant to s. 4.2, until such time as he was discharged from bankruptcy. The appellant contended that, during his bankruptcy, any rights he had were suspended. It is only on his discharge from bankruptcy that the Property will vest in him pursuant to s. 5.2.2 and he will own it outright. [10] The bankruptcy judge rejected that contention, as do we. She found that the mandatory distribution provision contained in s. 5.2.2 of the Trust overrode s. 4.2. In particular, the bankruptcy judge held that the provisions of the Trust (Part IV), which contained s. 4.2, applied to the Property during the lifetimes of the appellant’s parents, but the provisions of the Trust (Part V) that contained s. 5.2.2 applied to the Property after the death of his parents. The bankruptcy judge noted that the mandatory division of the Property contained in Part V was not made subject to s. 4.2 nor did it otherwise reference that provision. She further found that, had the intent been as the appellant contends it to be, she would have expected there to have been express language in the mandatory distribution provision to that effect. As she said, at para. 18: “I simply cannot conclude that the Settlor intended to override the mandatory mechanism of s. 5.2.2 by an oblique reference to capital in s. 4.2.” [11] As a result, the bankruptcy judge concluded that the Property vested in the appellant at the Time of Division. The Property thus constituted property of the appellant and vested in his Trustee in Bankruptcy. Since the Trustee in Bankruptcy had transferred its rights in the appellant’s Property to RBC, RBC was entitled to receive the proceeds of sale up to the amount that the appellant owes to RBC. [12] The appellant has failed to demonstrate any error in the bankruptcy judge’s decision. Her decision involves an interpretation of the Trust document and is entitled to deference on review: Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50-52. The fact is that we agree with her interpretation. It is consistent with the plain wording of the relevant section and is also consistent with the stated purpose of the Trust. [13] We would also observe that, if the interpretation of the Trust is as contended by the appellant, it would offend the public policy that underlies the BIA by allowing persons to place assets out of the reach of their creditors. As Rowe J. said in Chandos Construction Ltd. v. Deloitte Restructuring Inc. , 2020 SCC 25, 449 D.L.R. (4th) 293, at para. 31, “the anti-deprivation rule renders void contractual provisions that, upon insolvency, remove value that would otherwise have been available to an insolvent person’s creditors from their reach.” [14] The appeal is dismissed. The respondent is entitled to its costs of the appeal in the amount of $17,500, inclusive of disbursements and H.S.T. “K. van Rensburg J.A.” “I.V.B. Nordheimer J.A.” “Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Hategan v. Frederiksen, 2022 ONCA 217 DATE: 20220314 DOCKET: M53145 (C69160) Pardu J.A. (Motion Judge) BETWEEN Elisa Romero Hategan Plaintiff (Appellant) and Elizabeth Moore Frederiksen and Bernie Farber Defendants (Respondents) Joseph Kary, for the appellant Alexi Wood and Lillianne Cadieux-Shaw, for the respondent Elizabeth Moore Frederiksen Mark Freiman, for the respondent Bernie Farber Heard: February 28, 2022, by video conference ENDORSEMENT [1] The appellant moves for an order setting aside the Registrar’s dismissal of her appeal and asks for extra time to perfect the appeal. [2] The respondents ask that the motion be dismissed. They submit that the appeal has no merit, and that the appellant has not adequately explained the delay. The Judgment below [3] On February 3, 2021, the motion judge dismissed the appellant’s claims on a summary judgment motion, awarded judgment for damages for defamation against her and granted a permanent injunction against her. The terms of the injunction restrained the appellant from making or publishing any statement referring to the respondent Elizabeth Moore Frederiksen [1] and required her to remove all online statements she has made about Frederiksen, release all domain names she had created using Frederiksen’s name and refrain from using any online identifier containing that name. The appellant served a Notice of Appeal on March 3, 2021, and filed it two days later. On March 26, 2021, the motion judge ordered her to pay costs and confirmed the permanent injunction. The nature of the action [4] Both the appellant Elisa Romero Hategan and the respondent Frederiksen are former active members of Heritage Front, an extremist neo-Nazi group. Each says that they had a difficult childhood or adolescence. They both became disillusioned with the group and left. After leaving, both women have spoken publicly against extremism and hate groups. The appellant feels that Frederiksen’s public persona amounts to an appropriation of the appellant’s own identity as an anti-hate speaker. The appellant feels that Frederiksen’s appearance and her religious and sexual identity have been assumed to steal the appellant’s “life and accomplishments”. [5] The appellant relied upon a public statement made by the respondent Bernie Farber for the foundation of her action against him. On September 19, 2017, Farber appeared on a television show, The Agenda , and made the following statement: By the way [Frederiksen] was one of a couple women that were involved in the Heritage Front, both of whom, actually, [Frederiksen] and another young woman by the name of [Hategan], both of them ended up being heroes in terms of how they were able to take themselves out, how they were able to work the system, to basically shut down the Heritage Front. And so in this particular case, its’s [sic] kind of interesting that the women were the heroes in shutting this down. There were others involved as well, the Bristol Affair, he was the mole. All of this came together as a result of the women who full timely took a stand and said, we’re not going to deal with this anymore. [6] The appellant sued both respondents for damages for the torts of wrongful appropriation of personality, civil conspiracy, injurious falsehood, negligence and unlawful interference with economic interests. She did not sue for defamation. Positions of the parties before the motion judge (1) The appellant’s position [7] The appellant took the position that summary judgment was not appropriate because there were “major credibility issues” that required a trial to resolve the many inconsistencies and contradictions in the voluminous evidence filed on the motion. The legal issues were complex and it would be unfair to proceed by way of summary judgment before documentary production. The appellant asserted that Frederiksen lifted facts, storylines and key pieces of the appellant’s life story and falsely passed them off as her own “lived experience” for commercial profit. The appellant believes that she was the “only young woman who played any role whatsoever in the collapse of the Heritage Front”. [8] The appellant asserted that Farber and Frederiksen worked together to cultivate the latter’s brand, thereby appropriating the appellant’s life story. The appellant argued that since Farber filed no evidence on the motion, his motion for summary judgment should be dismissed. [9] The appellant argued that the respondent Frederiksen’s motion for summary judgment on the counterclaim for defamation should be dismissed for the same reasons. [10] The appellant asserted that there were genuine issues requiring a trial of these claims, including whether limitation periods barred any of the claims and other defences. (2) The respondents’ positions [11] The respondents took the position that a credibility assessment was not required. Even if the appellant’s evidence was accepted as true, which they denied, the evidence did not support any actionable claim. They took the position that the appellant’s claim was based on “speculation, unfounded allegations, and conspiracy theories.” They argued that the elements of the causes of action asserted by the appellant were not supported by evidence. They argued that Frederiksen was entitled to speak about her own life experiences. There was no evidence that Frederiksen had misrepresented her own life experiences in any material respect. The claim for civil conspiracy was similarly based on an allegation that the respondents had “made and endorsed false representations” that Frederiksen had undergone experiences with the Heritage Front like those asserted by the appellant. They argued there was no evidence of any agreement between the respondents that could amount to a conspiracy and no evidence of any unlawful act against a third party which was intended to target the appellant. They argued that there was no duty of care owed that could found a claim in negligence, nor any standard of care nor breach nor damages identified. [12] The respondent Farber reiterated that his comments on the television broadcast were incapable of supporting the causes of action alleged. There was no other evidence capable of supporting any of the pleaded torts and no evidence of any damages arising from any alleged acts by him. There was no evidence of false statements by Farber or any agreement that could amount to a conspiracy. [13] On the counterclaim, the respondents argued that it was uncontestable that the statements were defamatory, that they had been published by the appellant and that they would tend to lower the reputation of the respondents in the eyes of a reasonable person. They argued that the defence of justification was not available because the appellant failed to provide any evidence that the defamatory statements were true. They submitted that the defence of fair comment was not available as the statements were clearly published with malice. Frederiksen argued that the appellant had appropriated her identity by registering multiple names for website and social media groups using Frederiksen’s name and further that the appellant had threatened to sue others who proposed to engage Frederiksen to speak. [14] Frederiksen argued that a permanent injunction was necessary to end the appellant’s long running campaign to ruin her reputation, which did not lessen even after the counterclaim was brought and continued after a consent interim order restraining her from defaming Frederiksen was made. The appellant stated she had nothing left to lose, no assets to lose in a libel case, and that she would continue to speak. The motion judge’s decision [15] The motion judge rejected the arguments advanced by the appellant and found for the respondents on the counterclaim. She ruled that summary judgment in favour of the respondents was appropriate. (1) The claims against Farber [16] She concluded that Farber’s opinion expressed in the television broadcast was not untrue and was incapable of supporting the torts alleged and that there was no evidence of damage. She held there was no evidence of an agreement that could amount to a conspiracy. The opinions expressed about events in the past in the broadcast could not be construed as appropriation of the appellant’s name or image for commercial purposes. Similarly, the claim of unlawful interference with economic interests was based on allegations of false public statements about Frederiksen’s life, said to amount to appropriations of the appellant’s life. There was no duty of care owed to support a claim in negligence. She concluded that the claim against Farber was frivolous and vexatious. (2) The claims against Frederiksen [17] The motion judge held that Frederiksen was entitled to speak about her own life experiences and that this was not an actionable wrong. The evidence was that Frederiksen had only ever spoken truthfully about her own life. This did not amount to “unauthorized use of a name or likeness of a person as a symbol of [her] identity”. Even taking the appellant’s evidence at its highest, there was no evidence of false statements by Frederiksen which underlay the claims for injurious falsehood and civil conspiracy, no evidence of an agreement to support the allegation of conspiracy, and no evidence of an unlawful act directed at a third party to support the claim on interference with economic relations. There was no basis to find a duty in negligence, no standard of care or breach identified, and no evidence of any loss. [18] The motion judge held that the defamatory statements the appellant made about the respondent Frederiksen were not true, and that they were made maliciously and with abusive intent. The motion judge awarded global damages of $100,000 together with $50,000 for aggravated damages and $50,000 for punitive damages to Frederiksen for defamation, breach of confidence, appropriation of Frederiksen’s name on websites and social media sites and interference with her economic relations. She agreed that a permanent injunction was necessary to restrain the appellant’s behaviour and invited counsel to make submissions as to the form of the order. The delay following the summary judgment [19] The appellant submits that she manifested an intention to appeal by serving and filing a notice of appeal from the summary judgment on March 3, 2021 and March 5, 2021 respectively. She says that she mistakenly thought she had 60 days after the receipt of the transcripts of the summary judgment hearing to perfect the appeal. There was no transcript of the hearing; it proceeded on a written record. Pursuant to Rule 61.09(1)(a) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, she was required to perfect her appeal within 30 days from March 5, 2021. On April 6, 2021, the Registrar of this court gave notice to the appellant of an intention to dismiss the appeal for delay, pursuant to Rule 61.13 (2.1). The notice gave her an extension to April 28, 2021, to perfect the appeal and explained how to obtain a further extension if requested before that date. She was warned that the Registrar intended to dismiss the appeal if it was not perfected or the time was not otherwise extended. [20] On April 8, 2021, counsel emailed the appellant to advise her of the rules to perfect her appeal, and warning that unless perfected there would be a motion to dismiss the appeal for delay. On cross examination on the appellant’s affidavit on this motion, the respondents learned that the appellant had retained Mr. Kary as her fourth counsel in mid-April, close to the date of the email, although that was not communicated to the respondents until May 12, 2021. [21] Counsel for Frederiksen wrote to the court on April 16, 2021, to ask for an opportunity to make submissions if the appellant asked for a further extension to perfect the appeal. [22] Nothing happened over the following weeks and on May 3, 2021, counsel for Frederiksen wrote to the court to ask if the matter had been dismissed for delay, copying the appellant on that correspondence. [23] On May 12, 2021, Mr. Kary wrote to advise that he was now acting for the appellant and asked for more time to perfect the appeal. Frederiksen’s counsel advised that the respondents would not consent. [24] Mr. Kary did not respond. On May 26, 2021, counsel for Frederiksen wrote to the court inquiring about the dismissal for delay, and followed up with another letter on July 1, 2021, with copies to both Mr. Kary and the appellant. There was no response indicating that they intended to pursue the appeal. [25] On July 21, 2021, the Registrar dismissed the appeal for delay because it had not been perfected. On August 18, 2021, the appellant’s counsel advised that he was bringing a motion to set aside the administrative dismissal. He still had not filed a notice confirming that he was now counsel of record. Counsel on both sides initially agreed to a motion date of October 1, 2021. Frederiksen’s counsel suggested a timetable for various steps to ensure that date could be met. The appellant’s counsel did not provide his motion materials until October 8, 2021. [26] Cross examinations were initially set for October 20, 2021, however the appellant’s counsel indicated that he intended to file a further affidavit in reply which had not been contemplated by the initial timetable. Counsel for the Frederiksen asked that the affidavit be delivered by October 25, 2021, so that cross examinations could deal with all of the appellant’s evidence. Cross examinations were conducted on October 27, 2021. [27] I admit the fresh evidence proffered by the respondents consisting of correspondence between counsel to illustrate how events unfolded after cross examinations. On November 4, 2021, counsel for Frederiksen wrote to appellant’s counsel to ask if he had arranged for a date for argument of the motion. She provided him with transcripts of the cross examination the next day and extended the timetable to give the appellant’s counsel until November 12, 2021, to deliver his factum, still hoping that the motion could be heard before the end of the year. [28] On November 12, 2021, counsel for the appellant advised his factum was not yet complete and that he had not yet secured the motion date. He delivered his factum on November 15, 2021. On December 10, 2021, he advised that he would not be able to bring the motion before the end of the year. [29] Counsel for the appellant advised that he had obtained a date for the motion of January 11, 2022, but that this was intended to be a placeholder date only and that it was not his “intent to file the material with the Court any time in the immediate future. I am neither confirming or agreeing to the date at this time”. He was hopeful that if another matter requiring Frederiksen’s counsel’s attention settled, the motion could still be argued in December 2021, but later indicated that personal issues on his part and his client’s absence meant that the motion could not proceed in December. [30] On December 7, 2021, the respondents offered to amend the terms of the injunction to allow the appellant to communicate with her medical and mental health advisors, to respond to concerns about the breadth of the injunction. They asked the appellant’s counsel to provide a draft document to reflect their acceptance of his proposal to effect this by way of agreement, rather than an amendment to the judgment. No such document was ever forthcoming. [31] The appellant ultimately brought a motion returnable January 11, 2022, some 13 months after the judgment. The Grounds of Appeal [32] The appellant challenges the motion judge’s decision on many grounds. Her initial Notice of Appeal lists 38 paragraphs of grounds of appeal, many of them compounding multiple criticisms of the judgment and the motion judge. Her supplementary Notice of Appeal adds 15 more paragraphs alleging error. [33] While the appellant’s counsel indicates that he takes no issue with any of the factual findings made by the motion judge, he submits that she did not follow the procedure mandated by Hryniak v. Mauldin , 2014 SCC 7, [2014] 1 S.C.R. 87 for fact finding on a summary judgment motion and that the judgment must be set aside on that ground. He submits that the motion judge necessarily evaluated credibility and weighed competing evidence. [34] He submits that the injunction granted restraining the appellant from speaking about Frederiksen was too broad and that such relief should only be granted in the clearest of cases. He submits that the motion judge’s reasons finding the appellant liable on the counterclaim were insufficient and failed to address the allegedly defamatory statements individually. He submits that the trial judge erred in finding the appellant’s statements about Frederiksen were made maliciously. [35] He submits that after judgment was given, but before the terms of the injunction were settled, the motion judge received unsolicited correspondence from counsel for Frederiksen enclosing a letter the appellant had sent to the Canadian Race Relations Foundation, enclosing her Notice of Appeal and complaining about the conduct of the motion judge. This, he says, could have affected the motion judge’s decision about the scope of the injunction. The appellant is critical of the motion judge’s liberal importation of the respondents’ factums, cutting and pasting substantial parts of them into her reasons. She criticizes the motion judge for casual comments about previous law firm relationship with one of the respondent’s counsel dating back to the year 2000 and other casual comments about her own retirement, golf, spouse and dinner plans. She alleges that the motion judge was biased, favoured the respondents, and pressured her counsel. [36] While the appellant did not plead defamation, and such a claim would have been barred by the very short limitation period in the Libel and Slander Act , R.S.O. 1990, c. L.12, the appellant submits that her claim was in essence a claim in defamation and that the motion judge should have analysed it on that basis. [37] The appellant submits that the motion judge’s reasons for dismissing the claim of wrongful appropriation of personality were inadequate and wrong. [38] The appellant has not particularized her grounds of appeal by filing a draft factum on this motion and has not suggested a date by which her appeal would be perfected. Have the respondents been prejudiced by the appellant’s delay? [39] The appellant submits that the respondents have suffered no prejudice from delay on her part, which should be forgiven because she was self represented for the initial period following the judgment, and because the matter was complex. Since the injunction would remain in place pending the hearing of the appeal, the respondents would be protected from further defamatory statements. [40] In sum, the appellant submits that the justice of this case requires that the Registrar’s order dismissing the appeal be set aside and that she be allowed to perfect her appeal. Analysis [41] The relevant factors on this motion to extend the time to perfect an appeal and to set aside a Registrar’s dismissal are not in dispute: Issasi v. Rosenzweig , 2011 ONCA 112, 277 O.A.C. 391, at para. 4. They are: 1. whether the appellant formed an intention to appeal within the relevant period; 2. the length of the delay and explanation for the delay; 3. any prejudice to the respondent; 4. the merits of the appeal; and 5. whether the “justice of the case” requires it. [42] While the appellant manifested an intention to appeal within 30 days of the judgment in issue, I am not persuaded that she has pursued the appeal with reasonable diligence. The initial notice from the Registrar should have prompted her to act with a sense of urgency, knowing that there was a risk her appeal would be dismissed for delay. The summary judgment motion was based on a written record. Assembly of an appeal book incorporating those documents would have been a mechanical exercise which could have been completed without delay but still has not been done. If the appellant proposed to place fresh evidence before the panel hearing the appeal about the conduct of the hearing, that should have been articulated in an affidavit accompanying a motion to admit fresh evidence. The appellant had no apparent difficulty articulating her complaints about the trial process in her first Notice of Appeal. She has not done so. Cross examination on any such affidavit would almost certainly be required and would lead to further delay even if she delivered an affidavit promptly. [43] The issues on the appeal are largely defined by the reasons for judgment, and I am not satisfied that there is a reasonable excuse for failure to deliver a factum. No draft factum has been delivered to identify the issues that would be argued on appeal. [44] We are now 13 months after the judgment and these steps have not been taken. Her approach to the appeal has been desultory. While the length of the delay is not amongst the worst seen in this court, it is important to recall the context of a summary judgment motion, which by its nature is intended to avoid a trial when one is not required and promote proportionate, economical and speedy access to justice. The merits of the appeal [45] In oral argument, the appellant’s counsel agreed that the linchpin upon which all of the appellant’s asserted causes of action rested was her allegation that the respondents made false statements. When asked to point to any evidence of such false statements, counsel was unable to do so. This was a sufficient basis to dismiss her claims. The motion judge’s observations that the appellant’s claims were based on speculation were well founded. I agree with her observation that the claim advanced against Farber was frivolous and vexatious. [46] Here, the motion judge was not weighing the credibility of competing versions of events. Even taking the appellant’s case at its highest, there was a critical gap in her evidence. Under these circumstances, the motion judge did not err in concluding that this was an appropriate case for summary judgment. [47] The appellant argues that although not pleaded or argued, the motion judge should have treated this as an action for defamation. The motion judge would have erred had she done so. It would be even more inappropriate to permit these arguments to be advanced for the first time on appeal. Such a claim would likely be barred by the three-month limitation period under the Libel and Slander Act . Farber made his remarks in the broadcast on September 19, 2017. The amended statement of claim adding him as a defendant was issued on April 15, 2019. Farber’s remarks were not on their face capable of a defamatory meaning. This is a question of law.: Lysko v. Braley (2006), 79 O.R. (3d) 721 (CA), at para. 116. Similarly, a claim in defamation against Frederiksen could not survive the absence of any evidence of defamatory statements. [48] The tort of appropriation of personality was recently discussed in Wiseau Studio, LLC et al. v. Harper et al. , 2020 ONSC 2504, an authority relied upon by both the appellant and the respondent Frederiksen. In general, the tort is established when a person’s personality has been appropriated, “amounting to an invasion of his right to exploit his personality by the use of his image, voice or otherwise with damage to the plaintiff”: Wiseau , at para. 212. Frederiksen’s truthful statements about her own life experiences and her own choices about sexual and religious practices cannot amount to an invasion of the appellant’s right to exploit her own personality. There is no evidence that Frederiksen used the appellant’s name or likeness by way of commercial exploitation. [49] The claim for injurious falsehood fails in the absence of any evidence of false statements by either respondent and in the absence of evidence of malice on their part. [50] The claim for civil conspiracy fails in the absence of any evidence of an agreement. While the appellant argues on appeal that the unlawful means used to advance the conspiracy was defamation, this fails in the absence of evidence of defamatory statements. [51] The tort of unlawful interference with economic relations is established where a plaintiff suffers economic loss resulting from a defendant’s unlawful act against a third party, intended to target the plaintiff: A.I. Enterprises Ltd. v. Bram Enterprises Ltd. , 2014 SCC 12, [2014] 1 S.C.R. 177, at paras. 23, 43, 45. Here, there was no unlawful act nor a third party identified. [52] There is no basis to posit a novel duty of care that would support a claim in negligence. The appellant did not articulate in her pleadings or argument any standard of care, any breach of that standard or damages due to negligence, all of which are essential elements of a claim in negligence. [53] Nor do the appellant’s expressed concerns about the conduct of the trial judge rise to the level required to displace the presumption of judicial integrity and impartiality: Cojocaru v. British Columbia Women’s Hospital and Health Centre , 2013 SCC 30, [2013] 2 S.C.R. 357, at paras. 15-20. Frederiksen’s counsel did not breach Rule 1.09 by sending unsolicited communications to the motion judge between the date of the judgment and the date when the terms of the injunction were settled. The motion judge invited counsel to communicate with her about the terms of the injunction. The appellant’s actions in continuing to communicate with third parties about the respondents was relevant to the scope of the injunction. The counterclaim [54] The evidence that the appellant made defamatory statements about Frederiksen was overwhelming. The motion judge described the breadth of circulation, the degree of repetition and the seriousness of the harm inflicted at pp. 131-133 of her reasons for decision: [131] Ms. Moore submits that the defamatory statements meet all three of these elements. First, the defamatory statements were published by Ms. Hategan. The majority of the defamatory statements were posted online on a variety of social media platforms and websites accessible worldwide to thousands of viewers. In certain instances, the defamatory statements were emailed directly to third parties and, with respect to the “case summary”, was emailed to over 500 people. Secondly, Ms. Moore is the clear target of the defamatory statements. The Court of Appeal for Ontario has confirmed that defamation can be made out through statements that do not refer specifically to the plaintiff, in this case Ms. Moore, but follow previous statements in which Ms. Moore is specifically identified. In most cases the defamatory statements expressly identify Ms. Moore by name or photograph. In certain defamatory statements, she is not specifically named, but these statements follow previous statements in which she is specifically identified. A reasonable reader would understand that the publication is about Ms. Moore. [ 132 ] Finally, Ms. Moore claims that there is no question that the defamatory statements would tend to lower Ms. Moore’s reputation in the eyes of a reasonable person. She submits that the defamatory statements are of the most serious nature, containing accusations of manifestly improper and immoral conduct, and contain all the essential hallmarks of expression that is not worthy of protection. In their plain and ordinary meaning, the defamatory statements would be understood to mean that Ms. Moore is a stalker; is a liar; is dangerous; is not to be trusted; has engaged in unethical and illegal behaviour; is homophobic; is lying about being bisexual; is a bigot; is delusional; suffers from mental illness; has engaged in fraud; has capitalized on white supremacy for personal gain; has colluded with individuals and organizations to attain financial gains; has appropriated Ms. Hategan’s experiences for her own personal and financial gain; trades sexual favours for success; and has committed perjury by lying in an affidavit filed with the court. [ 133 ] I agree that the tort of defamation has been made out. The words complained of were published to at least one other person; the words complained of referred to Ms. Moore either directly or indirectly and the impugned words are defamatory, in the sense that they tend to lower Ms. [Moore]’s reputation in the eyes of a reasonable person. [Footnotes omitted.] [55] I do not accept the argument that in this context, the motion judge was obliged to examine each statement made by the appellant in isolation. [56] The onus was on the appellant to establish any defence to the defamation. Given the gaps in the appellant’s evidence, I am not persuaded that the motion judge erred in rejecting the defences of justification and fair comment. The thrust of the appellant’s campaign was that Frederiksen was dishonestly stealing her identity. That was not established. Here, the mode, style, tenor, tone, language, broad dissemination over multiple platforms as well as the content of the communications scream of malice. The evidence proffered by the appellant did nothing to dispel that impression: see Zhong v. Wu , 2019 ONSC 7088, at para. 24. [57] The appellant also submits that the motion judge erred in granting an injunction restricting her ability to speak about Frederiksen. The terms of the injunction are as follows: 4. THIS COURT ORDERS that a permanent injunction be granted as against Hategan restraining Hategan from making, distributing, disseminating or in any way publishing any statement orally or in writing (including electronic) on any online platform or through any medium or to any third party whatsoever that: (a) refers to Frederiksen by name; or (b) refers to Frederiksen with sufficient detail or information to make it possible to reasonably identify Frederiksen even without referring to Frederiksen’s name; 5. THIS COURT ORDERS that Hategan remove from any online platform any statement that she has distributed, disseminated or in any way published about Frederiksen, including but not limited to all statements listed in the Amended Claim, and that all such statements be removed within seven days of this Order; 6. THIS COURT ORDERS that within seven days of this Order, Hategan contact all relevant entities and take all necessary steps to release and never again use all domain names listed at paragraph 44 of the Amended Claim and any other domain names which Hategan may have created that refer to Frederiksen or use Frederiksen’s name; 7. THIS COURT ORDERS that Hategan will refrain from ever purchasing, holding, using or controlling any internet domains, tags, handles, websites, profiles or other online identifiers containing Frederiksen’s name; [58] Given the appellant’s history of disregarding the interim order and the intentions she expressed, there was good reason to believe that absent an injunction she would continue her abusive campaign. Further, there was good reason to believe that any judgment for damages was unlikely to be recoverable. Given the breadth and persistence of the defamatory conduct, I am not persuaded that the injunction was overly broad: see Rainy River (Town) v. Olsen , 2017 ONCA 605, 6 C.P.C. (8th) 1, at para. 5. The appellant is not restrained from speaking about the many matters that are important to her, provided she does not refer to Frederiksen. This is a modest limitation on her freedom of speech, in the circumstances. [59] In her factum filed on this motion, the appellant does not challenge the motion judge’s conclusions that the appellant had appropriated Frederiksen’s identity by securing domain and web site names incorporating the latter’s name, nor that the appellant had publicized a confidential communication made to her by Frederiksen, except to say that the motion judge should not have made a global award of damages for all of the wrongs committed by the appellant. The overall award was reasonable. There is little likelihood it would be altered on appeal. [60] Overall, I conclude that there is little or no merit to the appeal. Prejudice [61] It would be prejudicial to the respondents to incur further costs to resist an appeal with so little merit, particularly given the appellant’s assertions that she is immune from any judgment awarded against her: see Bobel v. Humecka , 2021 ONCA 757. The overall justice of the case [62] I recognize the importance of the right of appeal. However, stepping back and looking at this matter as a whole, I am not persuaded that the Registrar’s order dismissing the action should be set aside nor that further time should be allowed to perfect the appeal. Considering the appellant’s failure to pursue the appeal with reasonable timeliness, the little merit to the appeal, the prejudice to the respondents, coupled with the evident malice with which the appellant has acted, to the detriment of the respondents, the motion is dismissed. [63] The respondent Frederiksen does not seek costs of this motion if it is dismissed. The respondent Farber sought costs fixed at $5,000.00. There is no reasons why costs should not follow the result of this motion, if demanded, and costs of the motion are awarded to Farber fixed at $5,000.00 inclusive of taxes and disbursements. “G. Pardu J.A.” [1] Elizabeth Moore Frederiksen’s legal name is Elizabeth Frederiksen, but she continues to use her original name, Elizabeth Moore, for her work.

COURT OF APPEAL FOR ONTARIO CITATION: Oliveira v. Oliveira, 2022 ONCA 218 DATE: 20220317 DOCKET: M52988 (C69619) van Rensburg, Nordheimer and Harvison Young JJ.A. BETWEEN Jack Oliveira and Luis Camara on their own behalf and on behalf of all members of Labourers International Union of North America, Local 183 Plaintiffs (Responding Parties) and Mario Oliveira Defendant (Moving Party) Mario Oliveira, acting in person Youssef Kodsy and Michael D. Wright, for the responding parties Heard: March 7, 2022 by video conference REASONS FOR DECISION [1] This is a motion to review the order of a single judge of this court under s. 7(5) of the Courts of Justice Act , R.S.O. 1990, c. C.43. The moving party/appellant, Mario Oliveira, commenced an appeal in this court. He purported to appeal several orders and endorsements of a motion judge of the Superior Court (the “SCJ motion judge”). At the forefront is an order dated February 26, 2021 (the “Contempt Order”), finding him in contempt of two earlier orders of the SCJ motion judge. The appellant also seeks to appeal other orders that preceded and followed the Contempt Order, including an order dated April 29, 2021 sentencing him to a period of incarceration, with the term to be determined, and a costs order dated June 25, 2021. [2] The appellant did not perfect his appeal within the requisite time. On the day following the perfection deadline, he brought a motion before a single judge of this court (the “chambers judge”), seeking an extension of time to perfect his appeal and other relief. The chambers judge (1) refused to grant an extension of time to perfect the appeal; (2) refused to stay the appellant’s sentencing for contempt; and (3) ordered sealed a document that was included in the appellant’s motion materials in violation of the deemed undertaking rule. [3] The appellant has since been sentenced for contempt. On January 14, 2022, he was sentenced by the SCJ motion judge to a period of incarceration of 89 days to be served intermittently when Ontario jails permit. That order is the subject of another appeal to this court. On consent, Pardu J.A. made an order on March 1, 2022, extending the time to appeal and staying the order pending appeal. She also directed case management of that appeal, the appeal in C70060, and the present panel motion and appeal. She explained that either party may seek an appointment with a case management judge. [4] The appellant brought a motion before this panel to review the chambers judge’s order. In particular, he asserts that the chambers judge erred in refusing to extend time for his appeal and in ordering a document contained in his materials (which he has refiled in his materials on this review motion) to be sealed. [5] A panel may interfere with the order under review under s. 7(2) of the Courts of Justice Act if the motion judge failed to identify the applicable principles, erred in principle, or reached an unreasonable result: Hillmount Capital Inc. v. Pizale , 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18. [6] In our view, the refusal of the chambers judge to extend time to appeal the Contempt Order reflects such an error. Applying the “justice of the case” test, and considering all of the relevant factors, we grant the extension of time for the appellant to appeal the Contempt Order, and, in the circumstances, certain other orders that are related to the contempt proceedings. We do not see any error in the decision to order sealed a document that was subject to the implied undertaking rule, and we make the same order in respect of the same document which has been filed in this review motion. [7] The parties have been involved in several legal actions, some of which are ongoing. The orders the appellant seeks to appeal were made in the context of a breach of confidence action commenced by the respondents as a result of the appellant’s threat to disseminate certain information to a confidential list of contact addresses that he allegedly obtained through his former employment with the respondent union. The SCJ motion judge made an order dated December 23, 2020, requiring the return of the confidential list, prohibiting the appellant’s use and retention of the confidential list, and appointing a forensic inspector to examine the appellant’s devices and accounts to confirm that the confidential list was permanently and irrevocably deleted. She made a subsequent order on January 28, 2021, requiring compliance with the December 23 order. [8] On February 26, 2021, on motion by the respondents, the SCJ motion judge found the appellant in contempt of the December 23 and January 28 orders and made the Contempt Order. She deferred sentencing to permit the appellant the opportunity to purge his contempt. In an endorsement dated April 16, 2021 (reported at 2021 ONSC 2856), she refused the respondents’ request to stay an action pending in another court as part of the sentencing for contempt. On April 29, 2021, the SCJ motion judge issued Reasons for Sentence, concluding that she would order a term of incarceration to be served once the Covid-related circumstances subside. On June 25, 2021, she ordered costs of the contempt proceedings to the respondents and fixed the amount. [9] On July 7, 2021 the appellant served and filed a notice of appeal (which has since been amended) and a Certificate Respecting Evidence purporting to appeal the various orders and endorsements of the SCJ motion judge, including the Contempt Order. In the months that followed, the appellant served and filed other documents in connection with his appeal, including an Exhibit Book and a Factum. Although the appellant also prepared and served an Appeal Book and Compendium, it was not accepted for filing because it did not include the signed and entered orders under appeal. The respondents served and filed a Respondents’ Certificate Respecting Evidence. [10] After the court refused the appellant’s filing, he brought a motion before the chambers judge for an extension of time to perfect his appeal and other relief. [11] In denying an extension of time to appeal the Contempt Order, the chambers judge noted two concerns: first, there was a substantial delay between the date of the order and the date on which the appellant filed his first notice of appeal; and second, and more importantly, the appeal was without merit. The chambers judge stated that nothing in the appellant’s submissions pointed to any error in the SCJ motion judge’s decision or suggested any basis for the court to intervene on appeal. He observed that “[t]he appellant asserts that he has complied with the order to provide his devices for forensic inspection even though he acknowledges that he destroyed them, and so precluded that inspection permanently”: at para. 8. In these circumstances, the chambers judge concluded that the appellant failed to establish that the justice of the case required an extension. [12] The chambers judge concluded that the appeals from the other orders lay to the Divisional Court, such that an extension of time would inevitably result in the appeals being quashed for want of jurisdiction. He therefore declined to grant an extension to perfect the appeal in respect of these other orders. [13] In our respectful view, the chambers judge erred in principle in refusing an extension of time to appeal the Contempt Order on the basis that the appeal lacks merit. [14] In a motion to extend time to appeal, the overriding issue is whether it is in the interests of justice in the particular circumstances to extend time: Rules of Civil Procedure , R.R.O. 1990, Reg. 194, r. 3.02(1); 2363523 Ontario Inc. v. Nowack , 2018 ONCA 286, at para. 4. Among the relevant factors, the court may consider whether the appeal has so little merit that the court could reasonably deny the important right of appeal: Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.), at para. 14. Other factors include whether the appellant intended to appeal during the appeal period; the length of and explanation for the delay; and prejudice to the opposing party: Denomme v. McArthur , 2013 ONCA 694, 36 R.F.L. (7th) 273, at para. 7. Consideration must be given to all factors relevant to the circumstances of the case: Leighton v. Best , 2014 ONCA 667, 20 C.B.R. (6th) 326, at para. 14. [15] The challenge here is that, while the Contempt Order was made in open court on February 26, 2021, the SCJ motion judge did not provide any written reasons or endorsement. According to the respondents’ counsel, she did provide oral reasons, however no transcript has been filed with this court. The respondents’ counsel submit that the SCJ motion judge’s reasons for making the Contempt Order can be gleaned from certain passages in her subsequent endorsements, and that this was a proper basis for the chambers judge to conclude that the appeal of the Contempt Order is without merit. [16] We disagree. A civil contempt order is a serious matter. The power to find an individual guilty of contempt is exceptional, and exercised as a last resort, only after finding that the necessary elements are made out, and after affording the alleged contemnor procedural fairness: Carey v. Laiken , 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36; Bell ExpressVu Limited Partnership v. Corkery , 2009 ONCA 85, 94 O.R. (3d) 614, at para. 20; and 2363523 Ontario Inc. v. Nowack , 2016 ONCA 951, 135 O.R. (3d) 538, at para. 37, leave to appeal refused, [2017] S.C.C.A. No. 62. Without seeing the reasons for the Contempt Order, it is impossible to assess, even in a preliminary way, the merits of the proposed appeal. Moreover, a lack of reasons itself can be a ground of appeal. At the time the motion was heard by the chambers judge, the respondents had not even taken out a formal order. [17] In the circumstances, the chambers judge erred in dismissing the motion for an extension of time primarily on the basis that the appeal lacks merit. He also erred by failing to consider all the circumstances. [18] The only other factor referred to by the chambers judge with respect to an extension of time to appeal the Contempt Order was that the appellant was substantially late: the time to appeal the contempt finding was 30 days from February 26, 2021, and the appellant’s first notice of appeal was served several months later, in early July 2021. While it is no doubt true that there was a delay, the appellant’s confusion is at least partly explained by the fact that the decision was made orally, there were no written reasons, and the respondents had not taken out an order. [19] There are other relevant circumstances, including the seriousness of the finding of contempt that, as in the present case, can lead to a penalty of imprisonment. In addition, after filing his notice of appeal, the appellant continued to take steps with a view to perfecting his appeal, the respondents did not object to the late filing of the notice of appeal, and there was no assertion of prejudice. [20] In all the circumstances, we are satisfied that an extension of time to appeal the Contempt Order is warranted. [21] As for the other orders and endorsements referred to in the appellant’s notice of motion, we agree with the chambers judge that no extension is warranted in respect of an appeal of an order that is interlocutory. This precludes an extension of time in respect of the order dated April 16, 2021. We would, however, direct that the extension of time to perfect the appeal includes the orders of the SCJ motion judge dated April 29, 2021 and June 25, 2021. The April 29, 2021 decision determined that a sentence of imprisonment was required, while the June 25, 2021 endorsement awarded costs of the contempt proceedings to the respondents and fixed the amount. In our view, it makes sense to grant an extension of time for the appellant to perfect his appeal to include the April 29 sentencing decision and to permit him to seek leave to appeal the costs order when he appeals the Contempt Order. [22] The appellant has included in his materials a certificate stating that he has ordered transcripts. Apparently, the transcripts he has obtained have not been prepared by a certified transcriptionist. The respondents indicated at the hearing before us that they will object to any such transcripts being used in the appeal. For their part, the Respondents’ Certificate Respecting Evidence lists a number of transcripts the respondents contend are necessary for the appeal. Arguably many of the transcripts from the various attendances before the SCJ motion judge and other judges may not be required for this appeal. As noted earlier, at the hearing of this motion, counsel for the respondents indicated that the SCJ motion judge gave oral reasons for finding the appellant in contempt on February 26, 2021. This transcript should be before the court in this appeal. Any directions respecting transcripts may be sought from the case management judge. [23] Finally, there is no basis to interfere with the decision of the chambers judge to seal a document that the appellant included in his motion materials. The appellant filed the same document in this review motion, notwithstanding that it has absolutely no relevance to the matters before us. There is no question that the appellant knowingly violated the deemed undertaking rule when he filed this document. The document, which is located at Volume 2, Tab 1 of his motion record, is not properly part of the court record and will be sealed. [24] For these reasons, the order of the chambers judge is set aside in part. An order will go extending time to perfect the pending appeal as it relates to the Contempt Order, the April 29, 2021 sentencing decision and seeking leave to appeal the costs order dated June 25, 2021, with the following directions: a) Counsel for the respondents are to provide the issued and entered Contempt Order that they had taken out to the appellant by March 21, 2022; b) The appellant is to amend his Appeal Book and Compendium to include the issued and entered Contempt Order, and serve and file it by March 31, 2022; and c) The appeal will be considered perfected once the Appeal Book and Compendium is filed. [25] As was ordered by Pardu J.A. on March 1, 2022, either party may request an appointment with a case management judge should further directions be required. [26] There will be no costs of this motion. “K. van Rensburg J.A.” “I.V.B. Nordheimer J.A.” “A. Harvison Young J.A.”

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. Wright, 2022 ONCA 221 DATE: 20220315 DOCKET: M53231 Lauwers, Pardu and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and Robert Steven Wright Applicant Michael W. Lacy and Bryan Badali, for the applicant Jeremy D. Tatum, for the respondent Heard: March 10, 2022, by video conference [1] A non-publication order under s. 517 of the Criminal Code , R.S.C. 1985, c. C-46 was imposed in this matter at the bail hearing in the court below. That order precludes the publication, broadcast or transmission of any evidence taken, information given, representations made and reasons given. [2] The decision in R. v. Wright , 2022 ONCA 221 contains information covered by that order. [3] Accordingly, the decision will be available on the Court of Appeal for Ontario’s website once the non-publication order ceases to be in effect. [4] In the interim, a copy of the full decision is available at the Registry of the Court of Appeal for Ontario at 130 Queen Street West, Toronto.

COURT OF APPEAL FOR ONTARIO CITATION: Abdullahi (Re), 2022 ONCA 220 DATE: 20220317 DOCKET: C69689 Rouleau, Huscroft and Trotter JJ.A. IN THE MATTER OF: Abdimalik Abdullahi AN APPEAL UNDER PART XX.1 OF THE CODE Anita Szigeti and Maya Kotob, for the appellant Alysa Holmes, for the respondent, Attorney General of Ontario Hilary Chung, for the respondent, Person in Charge of Royal Ottawa Mental Health Centre Heard: March 11, 2022 by video conference On appeal from the disposition of the Ontario Review Board dated June 8, 2021, with reasons dated July 14, 2021. REASONS FOR DECISION [1] The appellant seeks an absolute discharge on the basis that the Board’s finding that he poses a significant threat to the safety of the public is unreasonable. [2] The appeal is dismissed for the reasons that follow. [3] The appellant has been under the Board’s jurisdiction since 2011, following the commission of the index offences: two counts of utter threat to cause death or bodily harm, assault, and causing a disturbance in a public place. In its July 14, 2021 decision, the Board found that the appellant continued to meet the threshold for significant threat to the safety of the public and maintained the conditional discharge he had been under. [4] The appellant argues that he posed only a moderate risk of low-level violence; that the Board failed to consider his disability and the extent to which it mitigated the risk he posed; and that the Board failed to consider the extent to which the Mental Health Act addressed the relevant concerns. We disagree. [5] As this court has emphasized, the significant threat test is onerous: the Board must be satisfied as to both the existence and the gravity of the risk of physical or psychological harm posed by the appellant in order to deny him an absolute discharge: Carrick (Re) , 2015 ONCA 866, 128 O.R. (3d) 209. Although the appellant appeared to have made progress, his offer in 2020 to pay another patient to stab or “hit” his then-treating psychiatrist supports the Board’s finding that he continued to pose a significant threat. The Board considered that a conditional discharge was necessary to ensure that the appellant’s treatment could be monitored. The Board did not address the extent to which the threat the appellant posed was mitigated by his disability, but this is insignificant in light of the fresh evidence proffered by the Person in Charge of Royal Ottawa Mental Health Centre (discussed below), which demonstrates that he is no longer wheelchair bound. [6] The fresh evidence is contained in the affidavit of Dr. Zeynep Selaman, the appellant’s current attending psychiatrist, and includes excerpts from the appellant’s clinical record since the Board’s disposition. The appellant acknowledges that the evidence is relevant and is properly admitted given that he is seeking an absolute discharge. Accordingly, the fresh evidence is admitted. [7] The fresh evidence indicates that the appellant has been ambulatory using a prosthesis since October 2021. Since that time, he sought readmission to the Royal Hospital on several occasions. On six occasions, the appellant’s conduct resulted in staff calling a Code White. He made threatening comments to staff when he did not get what he wanted and has been physically aggressive. He punched one orderly in the face, struck another in the arm with his cane, and attempted to hit other staff. [8] As a result of this conduct, Dr. Selaman has recommended that the appellant’s conditional discharge be changed to a detention order. A pre-hearing conference is to be held March 23, and it is anticipated that a date will be set for the early review shortly after that. [9] In all of these circumstances, we conclude that the Board’s decision that the appellant poses a significant threat to the safety of the public is reasonable. [10] The appeal is dismissed. “Paul Rouleau J.A.” “Grant Huscroft J.A.” “Gary Trotter J.A.”

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. Silva-Stone, 2022 ONCA 222 DATE: 20220316 DOCKET: M53126 Strathy C.J.O. (Motion Judge) BETWEEN Her Majesty the Queen Respondent and Erick Silva-Stone Applicant Michael Johnston and James Coulter, for the applicant Gavin MacDonald, for the respondent Heard: March 11, 2022 by video conference [1] A non-publication order under s. 517 of the Criminal Code , R.S.C. 1985, c. C-46, was imposed in this matter at the bail hearing in the court below. That order precludes the publication, broadcast, or transmission of any evidence taken, information given, representations made, and reasons given. [2] The decision in R. v. Silva-Stone, 2022 ONCA 222, contains information covered by that order. [3] Accordingly, the decision will be available on the Court of Appeal for Ontario’s website once the non-publication order ceases to be in effect. [4] In the interim, a copy of the full decision is available at the Registry of the Court of Appeal for Ontario at 130 Queen Street West, Toronto.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Campbell, 2022 ONCA 223 DATE: 20220321 DOCKET: C68302 Tulloch, van Rensburg and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Dwayne Campbell Appellant James Foy, for the appellant Michael Fawcett and Andrew Hotke, for the respondent Heard: September 7, 2021 by video conference On appeal from the convictions entered by Justice David E. Harris of the Superior Court of Justice on July 10, 2019. Nordheimer J.A.: [1] Mr. Campbell appeals from his convictions for robbery, forcible confinement, and use of an imitation firearm in the commission of an offence. The appellant submits that the application judge erred in dismissing his application for a stay arising from an alleged breach of his right to be tried within a reasonable time, contrary to s. 11(b) of the Canadian Charter of Rights and Freedoms . For the following reasons, I would dismiss the appeal. A. Background [2] While it is not necessary to review every court appearance in this case in order to properly address the s. 11(b) issue, some recitation of the history of this matter is required. [3] The appellant was arrested on February 16, 2017 and brought to court the following day. The allegations arose from a home invasion robbery that took place on December 19, 2016. The appellant’s co-accused had been arrested on the day of the robbery, a short distance from the scene. [4] On March 9, 2017, a judicial pre-trial was scheduled for March 23. The appellant was represented but the appellant’s co-accused was not. Consequently, the pre-trial took place in court. Crown counsel said that he had provided disclosure both to the appellant’s counsel and to prospective counsel for the co‑accused. There was some issue over whether prospective counsel would, in fact, be retained by the co-accused. Six days was settled upon as a time estimate for the preliminary hearing, but the court lacked dates before 2018. [5] On March 30, the parties appeared again and succeeded in securing target preliminary inquiry dates for September 2017, with a single date in October for a witness significant to the case against the co-accused. The co-accused objected to setting dates for the preliminary hearing. [6] A continuing judicial pre-trial was then scheduled for April 13, 2017. The Crown obtained an order appointing counsel to cross-examine one child witness on behalf of the co-accused pursuant to s. 486 of the Criminal Code , R.S.C. 1985, c. C-46. On April 26, the Crown reported that Legal Aid had said that they were willing to issue a certificate to fund counsel for the co-accused, but the co-accused said that he was not sure that he would use the Legal Aid certificate that had been offered. The appellant’s bail hearing was scheduled for May 2. It proceeded that day and the appellant was ordered detained in custody. [7] On May 5, 2017, the parties appeared again. The co-accused stated that he would proceed without a lawyer because he mistrusted everyone involved. A date was set for a bail hearing for the co-accused and he was ultimately ordered detained. (1) The First Trial Date [8] The preliminary inquiry proceeded as scheduled on the target dates set in September, and both accused were committed for trial on September 13, 2017. The co-accused was represented by counsel at the hearing. On September 29, the parties made a first appearance in the Superior Court, saying they were prepared to set judicial pre-trial dates. They agreed on October 26, 2017. The presiding judge pushed the parties to also target trial dates. Eventually, June 11, 2018 was selected for an anticipated 12-day jury trial. [9] In the last week of May 2018, less than two weeks before the trial was scheduled to begin, counsel for the co-accused successfully applied to be removed from the record. On June 1, the co-accused appeared in person and said he had asked Legal Aid for a change of counsel. Prospective new counsel for the co‑accused was not able to proceed on the scheduled June 11 trial date. The co‑accused was unwilling to proceed without a lawyer and effectively requested an adjournment. The appellant’s counsel stated that she was prepared to proceed and that, given that the appellant was in custody, she wanted to maintain the June 11 date. Crown counsel said she was prepared to proceed but was in an “awkward position” given that they could not force the co-accused on when he was requesting a lawyer. The trial dates were ultimately vacated. (2) The Second Trial Date [10] On June 22, 2018, the parties appeared again. The co-accused was still waiting for Legal Aid to decide his change of solicitor request, but the Crown and the appellant sought to set target dates immediately in order not to lose any further time. The co-accused’s prospective new counsel was not present but conveyed through the appellant’s counsel that he wanted a further pre-trial but could not commit to dates before he was retained. The court offered January 21, 2019 for a two-week trial and the appellant and the Crown agreed to those dates. The trial was set “with or without counsel” in respect of the co-accused. [11] The case was spoken to again on July 13, 2018. By this time, Legal Aid had denied the co-accused’s change of solicitor application. The co-accused intended to appeal that decision. The co-accused’s prospective new counsel had also conveyed that he was not available for trial on January 21, 2019 and the Crown had discovered that an important witness for them would also be unavailable at that time. Both the Crown and the co-accused were considering an adjournment application. The appellant’s counsel reiterated that she was anxious to proceed. [12] At the next appearance, on August 10, the co-accused’s Legal Aid appeal had been refused. He had one further internal Legal Aid appeal which was estimated to take four weeks. The appellant’s counsel stated that she wished to know “sooner rather than later” if the January 21 date would be adjourned. The presiding judge said that, while he was sympathetic to her position, he saw no alternative to returning in a month, on September 14. By that day, the co-accused’s Legal Aid appeals had been exhausted. He said that he intended to bring a Rowbotham application. The case returned several times during the fall. The co‑accused eventually succeeded in obtaining a Rowbotham order. [13] On December 14, 2018, the co-accused’s new counsel applied to adjourn the January 21 trial date. The application was opposed by the appellant and by the Crown. The presiding judge denied the adjournment. [14] The parties appeared on December 20, 2018, and then again on January 9, 2019, to see whether the co-accused could retain counsel available for the trial dates. The co-accused insisted that he wanted to be represented by the specific counsel who was unavailable. At the January 9 appearance, the presiding judge commented that “to adjourn the case to a date when he’s available would require [the appellant] to sit in jail for about a year from his first trial date, and the first trial got adjourned because you discharged your lawyer”. The presiding judge also noted that the trial had been set “with or without a lawyer”. The appellant’s counsel commented that, if an adjournment had been sought earlier and the resulting delay would have been limited, then the appellant may have consented, but that the prospect of a further six months’ delay was intolerable. The issue of severance was raised, but Crown counsel stated their position that a joint trial was important to avoid having the child witness testify twice. [15] On the day of trial, January 21, 2019, the co-accused was unrepresented and requested an adjournment on the basis that he had not had access to his disclosure in custody and so was not able to proceed. This time the adjournment was granted, over the objection of the appellant, whose counsel noted that she was ready to proceed and that the appellant was not waiving his s. 11(b) rights. (3) The Third Trial Date [16] On January 29, 2019, the parties returned to set new trial dates. The Crown reiterated its position to proceed with a joint trial because of the child witness. With respect to the resulting delay, Crown counsel noted that “if I have to argue it down the line at some point as to whether that was a reasonable call, I’ll make that argument”. The co-accused’s new counsel did not appear but conveyed that he was available for trial starting on July 8 although the court had offered earlier dates. The appellant’s counsel was available for those earlier dates and reiterated her concern about delay. [17] The presiding judge pressed the Crown to consider severance so that the appellant’s trial could be scheduled for late February dates for which his counsel could make time. The Crown indicated this may be an option in the event of a re‑election. The appellant did not commit to re-electing and was remanded to the trial date of July 8, 2019. (4) The Application to Stay the Proceedings [18] The appellant applied for a stay of proceedings for a violation of s. 11(b). The application was heard by Shaw J. on June 14, 2019. [1] The parties agreed that the total effective delay to be considered was 28 months and 26 days, which was below the presumptive ceiling of 30 months set in R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 49. They also agreed that the bulk of the delay was caused by the co-accused. [19] The application judge dismissed the application. She found that neither part of the Jordan test for cases under the ceiling had been met. She found that the appellant could not be said to have taken meaningful steps to expedite in view of his failure to apply for severance. Specifically, she found that the appellant could have moved for severance immediately following each of the two adjourned trial dates. She also found that the case had not taken markedly longer than it reasonably should have. B. Analysis [20] In Jordan , the court explained, at para. 82, that in order for the defence to obtain a stay for breach of s. 11(b) for a case that took less time than provided for by the presumptive ceiling, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. The court stated that it expected stays beneath the ceiling to be rare and limited to clear cases: at paras. 48, 83. (1) Meaningful Steps to Expedite the Proceedings [21] The respondent concedes that the application judge erred in finding that the appellant had failed to take meaningful steps to expedite the trial. In particular, the respondent agrees that the application judge erred in finding that the appellant had failed in his efforts to expedite his trial by not bringing a motion for severance. [22] On this point, the application judge found, at para. 55: The applicant's position that his severance application would likely have been denied based on all the principles surrounding joint trials cannot be used as a shield to justify why this meaningful step was not taken. The applicant cannot say that he did not take a step as he did not think he would be successful, and then rely on that same doctrine – severance – as a sword to say that it forms the basis or reason why the trial did not proceed within a reasonable timeframe. [23] The respondent says, and I agree, that requiring an accused person to demonstrate that they have taken sustained, meaningful steps to expedite proceedings does not include requiring them to bring motions that are doomed to fail. Unmeritorious motions only add to the consumption of court time and thus create further delay, if not for the case at hand, then potentially for other cases. To quote the respondent, “the parties were right to dispense with the formality of a severance application and avoid clogging up the system and using scarce judicial resources to argue over something that was hopeless.” (2) Delay Markedly Exceeding the Reasonable Time Requirements [24] The issue then becomes whether the case had taken markedly longer than it should have. On this issue, the appellant points to the fact that the application judge found that that the case “is not a factually or legally complex matter.” He also points to the fact that the first trial date had been set for a year earlier, and states that this provides a ready-made yardstick by which to measure how long the case ought to have taken to get to trial. On that latter point, the appellant relies on the decision in R. v. Belle , 2018 ONSC 7728, 424 C.R.R. (2d) 233, where Harris J. made the point that the first trial date provided “a ready-made yardstick of the reasonable time requirements of the case”: at para. 8. [25] With respect, I do not agree that the first trial date necessarily provides a marker for the reasonable time requirements of the case. The practical reality is that first trial dates are often set optimistically when it is not certain that the parties will, in fact, be ready for trial. Indeed, that was the situation in this case in light of the issues with the co-accused. It must be recognized, given the pressures on the parties to set dates in order to keep the case moving forward, that a first trial date may be more aspirational as to timing than it is realistic. [26] The first trial date in Belle may have been a better measure since the only reason for the loss of the trial date was the last-minute disclosure by the Crown of a large amount of information, something that the trial judge found should never have happened: Belle , at paras. 3, 22-24. However, in this case, the first trial date was set when there were many indicators that it might not be met. For example, the date was set before there had been a judicial pre-trial. Any number of issues might have arisen at the judicial pre-trial that would have brought the first trial date into question. Further, the parties knew that there were ongoing issues respecting the co-accused that could reasonably have been anticipated to potentially derail the trial date that had been set. Of course, this is exactly what happened. [27] My view that the first trial date does not necessarily provide an appropriate measure for how long a case should reasonably take is reinforced by the decision in Jordan . In its decision, the court set out what it meant by this second factor. It said, at para. 87: The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings. [28] These various factors demonstrate why a first trial date may not be an accurate measure of how long a case should reasonably take. I would point out, on this question, that there is a difference between when a trial might be completed and when it should be completed. As Jordan points out, there may be a variety of factors that come to bear on the reasonable time requirements of a case. There may be issues such as outstanding disclosure, the availability of experts or expert reports, erroneous trial estimates, and other issues that may highlight that the first trial date may not be an accurate one. Nevertheless, often such trial dates are set expectantly and, as I have said, to keep the case moving. Other issues may loom large on this point, including the one that drove this case, that is, the actions of a co-accused. [29] The other important aspect of this second factor is the point made in Jordan that the case must “markedly” exceed the reasonable time requirements of the case. As stated in R. v. K.J.M. , 2019 SCC 55, 439 D.L.R. (4th) 607, at para. 107: To be clear, under this branch of the test, the issue is not whether the case should reasonably have been completed in less time. Rather, it is whether the case took markedly longer than it reasonably should have. [Emphasis in original.] [30] Again, it was easier in Belle to conclude that the case took markedly longer than it reasonably should have because the only reason for the loss of the first trial date was the last minute, unexplained delivery of a significant amount of disclosure. That should not have happened, and thus it was easier to say that the delay it caused was outside the reasonable time requirements for that case. [31] However, in this case, the delay was almost entirely caused by the actions of the co-accused coupled with the Crown’s refusal to consider severance. It will be self-evident that cases in which there is more than one accused will likely take longer to get through a trial because of the need to accommodate the schedules and demands of more parties and more counsel: see Jordan , at para. 77. [32] The history of this case ought to have made it clear to all concerned that there were likely to be additional problems caused by the co-accused. While the Crown had a good reason to want to avoid severance, it nonetheless had to realize that its position on that issue was likely to invite additional delay. I note, on that point, that one of the factors that Jordan identifies in determining whether the case took markedly longer than it ought to have is “whether the Crown took reasonable steps to expedite the proceedings”: at para. 87. [33] Reinforcing this point is the fact that the second trial date, January 21, 2019, was set when the issues surrounding the representation of the co-accused were still unsettled. Legal Aid had consumed some period of time deciding whether it would agree to a transfer of the certificate and appeals from its decision were still outstanding. Further, the possibility of a Rowbotham application would have had to have been in everyone’s minds, if the refusal of Legal Aid to agree to a transfer was upheld. Again, of course, that is what happened. [34] In an effort to address these problems, the second trial date was set “with or without” counsel. The immediate concern that stipulation provokes is whether, if an accused ultimately does not have counsel, they will actually be in a position to proceed. One important component of the accused person’s ability to proceed is, of course, whether they have access to the disclosure in the case. For reasons that are not clear on the record, when the second trial date was reached, and the co-accused did not have counsel, it became apparent that the co-accused did not have access to the disclosure while in custody. Therefore, despite the stipulation of “with or without counsel”, the trial could not proceed. Why the disclosure issue only became apparent at that point is also not clear. [35] Despite all of these issues, the trial ultimately proceeded on the third trial date, still within the 30-month limit set by Jordan . The application judge considered all of these matters and concluded that the case had not taken markedly longer than it reasonably ought to have. In particular, the application judge found that the Crown’s decision not to permit severance was “not unreasonable in the context of the case”. [36] As the court said in Jordan , at para. 91: Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin , to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case. All this said, this determination is a question of fact falling well within the expertise of the trial judge. [Citation omitted.] [37] The application judge’s decision is entitled to deference: Jordan , at para. 91. Given the issues with the co-accused, all of which were predictable, the trial was undoubtedly going to take longer than it otherwise would have. However, in all the circumstances, I cannot say that the application judge’s determination that the case did not take markedly longer than it should have, is an unreasonable one. Consequently, the appeal fails. C. Remedy [38] Given my conclusion on the s. 11(b) application, I do not need to address the respondent’s submissions regarding the appropriate remedy for a breach, including whether a remedy short of a stay of proceedings is available. D. Conclusion [39] The appeal is dismissed. Released: March 21, 2022 “M.T.” “I.V.B. Nordheimer J.A.” “I agree. M. Tulloch J.A.” “I agree. K. van Rensburg J.A.” [1] R. v. Campbell , 2019 ONSC 4228, 446 C.R.R. (2d) 326.

COURT OF APPEAL FOR ONTARIO CITATION: 11534599 Canada Corp. v. Hume, 2022 ONCA 224 DATE: 20220318 DOCKET: M52885 (C69657) van Rensburg, Nordheimer and Harvison Young JJ.A. BETWEEN 11534599 Canada Corp. Respondent (Moving Party/Appellant) and Ivylin Ricketts Hume and Weston Rodney Hume Applicants (Responding Parties/Respondents) Paul Robson, for the moving party Elaine S. Peritz, for the responding parties Heard: March 7, 2022 by video conference REASONS FOR DECISION [1] The moving party 11534599 Canada Corp. (“115”) seeks review of an order of the motion judge, Paciocco J.A., granting an extension of time to perfect its appeal on terms that suspended the payment of interest until the appeal was perfected. [2] This motion arises out of the following circumstances. 115 held a second mortgage on the responding parties’ home. The mortgage was in default when a fire on the property forced the responding parties to move out. 115 took possession at that point to satisfy the responding parties’ default under the mortgage. It refused to allow the responding parties to pay off their mortgage or to exercise their right to have the mortgage assigned. [3] The responding parties brought an application seeking, among others, a declaration that 115 had taken unlawful possession of their home. On June 28, 2021, the application judge, Coats J., found that 115 was not in lawful possession of the property and ordered it to accept payment of $241,528.72 plus per diem interest of $76.58 from March 27, 2021 to the date of payment. Upon receipt of payment, 115 was ordered to assign the mortgage to a replacement lender who had already provided the responding parties with a mortgage commitment (the “Coats J. Order”). [4] 115 filed a notice of appeal on July 14, 2021 and moved for an urgent stay of the Coats J. Order. Justice Thorburn declined to grant a stay on July 27, 2021, in part because the responding parties had undertaken not to sell the house. [5] The deadline for the perfection of 115’s appeal to this court from the Coats J. Order was August 15, 2021. On October 4, 2021, the motion judge granted the extension to perfect the appeal to October 8, 2021 on terms. He accepted that, while there was a lack of direct explanation, 115’s delay was due to inadvertence. However, he found there was also prejudice to the responding parties: 115 had attempted to impose preconditions on the assignment of the mortgage not provided for in the Coats J. Order, and had effectively manufactured a stay of proceedings that it had been denied. In the interim, 115 continued to accumulate per diem payments on the mortgage since it had not yet been assigned. [6] However, the motion judge concluded the prejudice could be ameliorated, including by imposing “a condition that no per diem payments will be owing for the period caused by the delay in perfecting this appeal”, as required by the interests of justice. He ordered that per diem payments be suspended from the date by which the Office of the Registrar informed 115 that its appeal would be dismissed if not perfected and the date the appeal was perfected. In effect, this was a period of one month, between September 7 and October 7, 2021, during which the accumulated interest was $2,371.50. The motion judge clearly indicated that, but for this term, he would not have granted the extension. 115 was ordered to pay the respondents $3,000 in costs for the motion. [7] In its written materials supporting its motion, 115 relied on three arguments. In arguing the appeal, 115 relied on a single argument that was not in its factum. The court invited brief written submissions from the responding parties. We have received and reviewed those submissions. [8] 115 argued that the motion judge lacked jurisdiction to vary the Coats J. Order by suspending the requirement of the payment of per diem interest provided for in the Coats J. Order from the date that the appeal should have been perfected (September 7, 2021) to the date that the appeal was perfected (October 7, 2021). It argues that the motion judge, as a single judge, substantively altered an order, which can only be done by a panel of the court of appeal. [9] We disagree. It is unnecessary to determine whether, as 115 alleges, the imposition of a term disqualifying the moving party from per diem interest due to its delay was outside the jurisdiction of a single judge of this court when granting an extension of time to perfect an appeal. 115’s submission depends on the premise that the motion judge permanently terminated its entitlement to claim the interest accruing during this period. That is not consistent with a fair reading of the motion judge’s order. It does not purport to alter the substance of the Coats J. Order; it simply suspends the payment of the per diem interest pending the hearing of the appeal and does not affect 115’s right to pursue this issue in the hearing of the appeal on its merits. [10] Moreover, this term of the extension was necessary in the interests of justice to address the prejudice that the motion judge found would otherwise arise from the extension of the time to perfect. Without this term, he stated clearly that he would not have granted 115 the extension of time. [11] For these reasons, the review motion is dismissed. Costs of $4,000 payable to the responding parties, inclusive of disbursements and H.S.T. “K. van Rensburg J.A.” “I.V.B. Nordheimer J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Royal Bank of Canada v. Bedard, 2022 ONCA 227 DATE: 20220321 DOCKET: C68416 Rouleau, Nordheimer and George JJ.A. BETWEEN Royal Bank of Canada Respondent (Plaintiff) and Daniel Bedard and Colleen Bedard Appellants (Defendants) Norman Mizobuchi, for the appellant Catherine Francis, for the respondent Heard: March 3, 2022, by video conference On appeal from the judgment of Justice Paul Kane of the Superior Court of Justice, dated October 2, 2020. REASONS FOR DECISION [1] The appellant appeals the trial judgment awarding the respondent Royal Bank of Canada (RBC) the sum of $274,962.38 plus pre-judgment interest and costs. The trial judge also ordered that the judgment not be released by an order of discharge pursuant to s. 178(1)(e) of the Bankruptcy and Insolvency Act R.S.C., 1985, c. B-3 ( BIA ). [2] RBC’s claim was for breach of a conditional Sales Contract (Contract) for the purchase of a 2003 57-foot Carver boat (57 Carver). It claimed payment of the outstanding balance as well as reimbursement for costs it incurred seeking to enforce its secured interest in the 57 Carver. The enforcement proceeding was unsuccessful as, unbeknownst to RBC, the 57 Carver had been sold to two subsequent third-party buyers. RBC also alleged that the appellants had not used the advance made under the Contract to purchase the 57 Carver. [3] RBC offered to renew the loan with a new maturity date and at a higher interest rate. This offer of renewal was made after RBC became aware of the alleged breaches by the appellants. The renewal offer appears to have been generated by RBC’s administration without the knowledge of the RBC personnel dealing with the problems with the appellants’ security. The appellants appear to have accepted the offer as they continued to make payments pursuant to the Contract at the new interest rate. [4] The trial judge allowed RBC’s claim. [5] The appellants first ground of appeal is that the trial judge erred in allowing RBC’s claim in fraud. The appellant explains that, because the loan was renewed after RBC became aware of the issues with respect to the security, it could not advance a claim that it was misled or defrauded. In that regard, they rely on Burrows v. Burke (1984), 49 O.R. (2d) 76 (C.A.), leave to appeal refused, [1985] S.C.C.A. No. 139. [6] We reject this ground of appeal. As submitted by RBC, its claim was for breach of contract. The trial judge acknowledged that, when it sent its offer to renew the loan, RBC was aware of the fact that the loan proceeds had not been used to purchase the 57 Carver and that the 57 Carver had been seized by a third party. The trial judge found, however, that other than the maturity date and the interest rate, the renewal of the Contract maintained all other terms and conditions including RBC’s right to have security in the form of the 57 Carver. The continuing obligation of the appellants to provide RBC with a security interest in the 57 Carver distinguishes this case from the Burrows decision. The appellants’ continuing failure to provide the security constituted a breach entitling RBC to the judgment it obtained in this case. [7] The judgment does not, as the appellants allege, rest on the trial judge’s findings and comments regarding the appellants’ misrepresentations that induced RBC to make the loan. [8] The second ground of appeal is that the trial judge erred in awarding RBC remedies both in contract and in tort. The appellants submit that the trial judge could not both decide that RBC had been induced to enter into the Contract which entitled it to be returned to the position it would have been had the Contract not been entered into and, as well, award RBC damages for breach of that Contract. [9] We see no error in the trial judge’s award of damages. As we have noted, the claim and recovery in this case were for breach of contract and the damage award was made on that basis. [10] We acknowledge, however that the judge’s order that the judgment should survive bankruptcy is an error which gave rise to some confusion. The trial judge found that the original loan had been obtained by means of false pretences or fraudulent misrepresentation. He determined, therefore, that an order that the judgment not be released by an order of discharge pursuant to s. 178(1)(e) of the BIA was warranted. [11] The trial judge erred in making this order as he did not consider the impact that the renewal may have had on the availability of such an order. As noted earlier, at the time of the renewal, RBC was fully aware of the problems with respect to the original loan and the security for that loan. In our view, the trial judge ought to have left this issue to be addressed by the Bankruptcy Court in the event that the appellants are petitioned into, or declare, bankruptcy. We therefore conclude that this provision of the judgment should be set aside. It will be for the Bankruptcy Court to address whether such an order is warranted should the issue ever arise. [12] In conclusion, the appeal is allowed in part by striking paragraph 4 of the judgment. In all other respects, the appeal is dismissed. [13] RBC was substantially successful and as a result, we award it costs fixed in the all-inclusive amount of $14,000. “Paul Rouleau J.A.” “I.V.B. Nordheimer J.A.” “J. George J.A.”

WARNING This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017 , which deals with the consequences of failure to comply, read as follows: 87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family. (9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. 142 (3) Offences re: publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. COURT OF APPEAL FOR ONTARIO CITATION: Catholic Children’s Aid Society of Toronto v. S.K.S., 2022 ONCA 228 DATE: 20220321 DOCKET: C69908, C69910 & C69919 Huscroft, Sossin and Favreau JJ.A. BETWEEN DOCKET: C69908 Catholic Children’s Aid Society of Toronto Applicant (Respondent) and S.K.S. Respondent (Respondent) AND BETWEEN DOCKET: C69910 Catholic Children’s Aid Society of Toronto Applicant (Respondent) and S.K.S. Respondent (Appellant) AND BETWEEN DOCKET: C69919 Catholic Children’s Aid Society of Toronto Applicant (Appellant) and S.K.S. Respondent (Respondent) Jessica Gagne, for the appellant (C69910)/ respondent (C69908 & C69919) S.K.S. Caterina Tempesta and Madeleine Sarick, for the appellant (C69908)/ respondent (C69910 & C69919) Office of the Children’s Lawyer Fatima Husain and Marshall Matias, for the appellant (C69919)/ respondent (C69908 & C69910) Catholic Children’s Aid Society of Toronto Jocelyn Espejo-Clarke and Alex Kam, for the respondent (C69908, C69910 & C69919) Minister of Public Safety and Emergency Preparedness Cheryl Robinson and Aviva Basman, for the intervener (C69908, C69910 & C69919) Canadian Association of Refugee Lawyers Vasu Naik, for the intervener (C69908, C69910 & C69919) Canadian Civil Liberties Association Heard: February 3, 2022 by video conference On appeal from the order of Justice Michael A. Penny of the Superior Court of Justice, dated September 13, 2021, with reasons at 2021 ONSC 5813, dismissing an appeal from the order of Justice Melanie Sager, dated April 1, 2021, with reasons at 2021 ONCJ 199. Sossin J.A.: OVERVIEW [1] This appeal concerns the interaction between a provincial legislative scheme governing child protection and a federal legislative scheme for removing those without citizenship or immigration status from Canada. [2] Specifically at issue is an order for disclosure by a judge of the Ontario Court of Justice (“OCJ”) at a status hearing initiated by the Catholic Children’s Aid Society of Toronto (“CCAS”) pursuant to s. 113 of the Child, Youth, and Family Services Act, 2017 , S.O. 2017, c. 14, Sched. 1 (“ CYFSA ”). [3] The purpose of the status hearing was to consider extending a supervision order governing the CCAS’s involvement in a family where child protection concerns had been established. The disclosure was sought by the federal Minister of Public Safety and Emergency Preparedness (the “Minister”), pursuant to s. 50(a) of the Immigration and Refugee Protection Act , S.C. 2001, c.27 (“ IRPA ”). That section provides that an opportunity for the Minister to make submissions in another judicial proceeding is a precondition to that proceeding having the effect of staying a removal order. [4] The motion judge granted the disclosure order, subject to certain safeguards to protect the confidentiality of the record and prevent the disclosure from being used for any purpose outside the child protection proceedings. [5] Both the CCAS and Office of the Children’s Lawyer (OCL) appealed those orders to the Superior Court. The Canadian Civil Liberties Association (“CCLA”) and Canadian Association of Refugee Lawyers (“CARL”) were permitted to intervene. [6] The Superior Court appeal judge dismissed the appeal from the motion judge’s order. Ms. S, the CCAS and OCL, the appellants, now appeal to this court. [7] For the reasons that follow, I would allow the appeal. BACKGROUND [8] In order to better understand the interaction between the Minister’s role under the IRPA and child protection proceedings under the CYFSA in this case, some background on the family is needed. [9] I turn first to the immigration and refugee context. [10] Ms. S. arrived in Canada with her oldest daughter and her only son in December 2007. The son was just two years of age at the time. Ms. S. lost her immigration status in Canada in May 2008. She subsequently gave birth to her youngest daughter, who is a Canadian citizen. [11] Ms. S. made a claim for refugee status in May 2009. That claim was refused in July 2011, and she and her two older children then became subject to an enforceable removal order. A subsequent appeal and an application to remain in Canada on the basis of humanitarian and compassionate grounds were refused. A further application made in June 2019 has not yet been determined. Ms. S. and her son remain under a valid removal order at this time. [12] The child protection context began with the CCAS’s involvement with Ms. S. and her children in December 2010, following an investigation into Ms. S.’s alleged physical abuse of her son. The CCAS remains involved with the family at the present time. [13] In 2013, Ms. S. was charged with assault and assault with a weapon against her eldest daughter. Her eldest daughter has since become an adult and no longer has a role in these proceedings. The terms of Ms. S.’s recognizance prohibited any unsupervised contact between Ms. S. and her children. The two younger children were removed from her care and the CCAS commenced protection proceedings. Ms. S. was ultimately convicted of the charges under the Criminal Code , R.S.C., 1985 c. C-46. [14] At this point, the child protection proceedings and immigration proceedings intersected. [15] The Minister was made aware of the charges and Ms. S.’s subsequent convictions, and determined that Ms. S. was “inadmissible” to Canada for “serious criminality” pursuant to s. 36(1)(a) of the IRPA . Ms. S. was then issued a deportation order with no right to appeal. [16] In November 2014, the two younger children were returned to Ms. S.’s care, subject to an order of supervision by the CCAS on specified terms and conditions. A further supervision order was made on February 18, 2015, and subsequent orders relating to supervision have been made on November 9, 2015, August 17, 2016, June 5, 2017, March 26, 2018, January 9, 2019, and January 14, 2020. In all, there have been at least eight supervision orders and seven status review applications made in this case since 2014. While the supervision orders varied, they all included a range of measures intended to provide support to the family, including a requirement that Ms. S. refrain from using physical discipline and attend counselling, as well as measures to implement recommendations arising from the psychological assessments of the children. [17] At the hearing on March 26, 2018, counsel for the Minister advised the court that the Minister was not acting on the removal order, and would instead continue to monitor the child protection proceedings. [18] The child protection and immigration proceedings came together again in September 2019, when the Minister notified Ms. S. that her removal date had been set for October 20, 2019. The CCAS brought a motion before the Ontario Court of Justice seeking a non-removal order with respect to Ms. S.’s two children. Ms. S.’s youngest daughter was represented by counsel at that hearing, which took place on November 27, 2019 before Spence J. The Minister was also served with the notice of motion, including all supporting evidence, and was present at the hearing as well. [19] The Minister had previously sought to be added as a party to the child protection proceedings. The CCAS and OCL opposed the Minister being granted such status, though they did not oppose the Minister having the opportunity to make submissions on the non-removal order being sought. On that basis, the Minister withdrew the motion. The motion judge issued a temporary non-removal order. [20] In reasons dated December 19, 2019, Spence J. found that the supervision order dated January 9, 2019 did not operate as an automatic stay of a removal order under s. 50(a) of the IRPA , as the Minister had not been given an opportunity to make submissions: Catholic Children’s Aid Society of Toronto v. S.K.S. , 2019 ONCJ 899, at para. 89 . However, according to Spence J., the Minister was given an “unfettered” opportunity to make submissions at the hearing before him in November 2019. [21] Spence J. did not accept the Minister’s argument that his submissions were “made in a vacuum” and not “meaningful” because no disclosure was provided beforehand.  Spence J. stated that the Minister had been privy to a range of details about the supervision orders by his appearances at status hearings since 2017, and that he could have sought to be added as a party or sought disclosure as a non-party. He concluded, at para. 159, that the Minister’s argument was “disingenuous”. Spence J. found as a fact that the Minister had been granted an “ample opportunity” to make “extensive submissions” and that the Minister had “fully embraced” this opportunity. [22] The Minister’s submissions were directed toward whether there was a genuine lis between the parties. Spence J. found, in the circumstances of this case, that a lis was created when the CCAS first sought a protection order, and continued through the various extensions and variations of supervision orders from that time forward. [23] Spence J. made a new supervision order. He found a non-removal order was a “necessary incident of” the supervision order, as the terms of the supervision order could not be fulfilled if the family were deported to St. Lucia. [24] The CCAS brought a further status review application, which was heard on January 14, 2020. The OCJ made another six-month supervision order on consent, placing the children with Ms. S. on specified terms and conditions. The Minister did not attend that status hearing. [25] In June 2020, the CCAS served its status review application. In September 2020, the Minister requested a copy of the Agreed Statement of Facts in the status review proceeding as well as a copy of the parties’ pleadings. In October 2020, the Minister indicated that he intended to bring a motion for disclosure under r. 20(5) of the Family Law Rules , O. Reg. 114/99 ( FLR s ). [26] In December 2020, the parties attended the status hearing at the root of this appeal in order to settle a new supervision order. At that hearing, the Minister reiterated his intention to bring a motion for disclosure prior to making submissions on the new supervision order. The hearing was adjourned until March 2021 to allow for this motion to be heard and decided. [27] In March 2021, the motion judge heard the motion by the Minister for what was characterized as “nominal disclosure.” [28] In her Order dated April 1, 2021, the motion judge granted the Minister’s motion and ordered the Society to provide the Minister with: (a) all status review applications and all agreed statements of fact filed with the court in this matter since 2015; and (b) all future status review applications and all statements of agreed fact in this matter upon which the parties intend to rely in seeking any further orders in the future. [29] The motion judge also ordered that the Minister be permitted to have counsel attend in court and make submissions on the supervision order being requested by the parties insofar as it has an impact on the Minister's interests. [30] The disclosure order was subject to certain restrictions, including that the Minister was precluded from using the documents for any purpose other than to decide if he intended to make submissions to the Court and to assist in preparing those submissions, and that the Minister was prohibited from copying or distributing or filing these documents in any other proceeding. [31] The CCAS and OCL appealed the April 1, 2021 Order to a judge of the Superior Court (the “appeal judge”). That appeal was heard on July 19, 2021, with a decision released on September 13, 2021. The appeal judge found no error by the motion judge which would warrant intervention. [32] The OCL, the CCAS, and Ms. S. filed their Notices of Appeal to this court in October 2021. LEGISLATIVE CONTEXT IRPA [33] Section 50 of the IRPA provides: 50 A removal order is stayed if a decision that was made in a judicial proceeding — at which the Minister shall be given the opportunity to make submissions — would be directly contravened by the enforcement of the removal order; [34] Section 36(1)(a) of the IRPA provides: 36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; CYFSA [35] The preamble of the CYFSA , which governs child protection proceedings, states that children are individuals with rights to be respected and voices to be heard. [36] Section 1(1) of the CYFSA , stipulates that “ [t]he paramount purpose of this Act is to promote the best interests, protection and well-being of children.” [37] Section 1(2) sets out additional purposes of the Act, so long as they are consistent with the best interests, protection and well-being of children. These include recognition that, “[w]hile parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent”: s. 1(2)(1). [38] Section 79(1) of the CYFSA identifies the statutory parties to a proceeding under the Act, who have a right to participate in a hearing, and who are entitled to notice of a proceeding under the Act: Parties 79 (1) The following are parties to a proceeding under this Part: 1. The applicant. 2. The society having jurisdiction in the matter. 3. The child’s parent. 4. In the case of a First Nations, Inuk or Métis child, the persons described in paragraphs 1, 2 and 3 and a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities. Right to participate (3) Any person, including a foster parent, who has cared for the child continuously during the six months immediately before the hearing, (a) is entitled to the same notice of the proceeding as a party; (b) may be present at the hearing; (c) may be represented by a lawyer; and (d) may make submissions to the court, but shall take no further part in the hearing without leave of the court. [39] Section 87(4) of the CYFSA sets out that a hearing shall be held in the absence of the public, subject to subsection (5), unless the court orders that the hearing be held in public after considering both the wishes and interests of the parties; and whether the presence of the public would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding. Section 87(8) of the CYFSA sets out that no person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family. Family Law Rules [40] Rules 1 and 2 of the FLR s set out, in part, the proceedings to which the rules apply, the court's power to make certain procedural orders, and matters of interpretation. [41] Most significantly, r. 2(2) establishes that the primary objective of the rules is to enable the court to deal with cases justly. Rule 2(4) requires the parties and their counsel to help the court to promote the primary objective of the rules. [42] Rule 7 of the FLR s also clarifies who is a party to a case or a motion, including affected parties to a motion, and r. 7(5) provides for who may be added as a party to a case or motion. [43] Rule 19(11) provides an avenue to obtain documents from a non-party on motion, with notice served on every party, and on the non-party by special service. [44] Rule 20(3) states that in a child protection case, a party is entitled to obtain information from another party about any issue in the case by questioning the other party, by affidavit, or by another method, in which case the party shall serve the other party with a request for information. [45] Under r. 20(5), in a child protection case, the court may order that a non-party be questioned by a party or disclose information to a party, if it would be unfair for the party who wants the questioning or disclosure to carry on the case without it, the information is not easily available by another method, and the question or disclosure will not cause unacceptable delay or undue expense. [46] Subrules 20(24-26) of the FLR s place limits on the use of any information obtained under rr. 13, 19 , or 20. More specifically, r. 20(24) provides that, when a party obtains evidence under this rule, r. 13 (financial disclosure) or r. 19 (document disclosure), the party and the party's lawyer may use the evidence and any information obtained from it only for the purposes of the case in which the evidence was obtained, subject to the specific exceptions in r. 20(25), or if the court, on motion, gives a party permission, provided the interests of justice outweigh any harm that would result to the party who provided the evidence. ANALYSIS [47] The OCL’s Notice of Appeal of October 13, 2021 raises 14 specific grounds of appeal. In its factum, the OCL groups these issues into four categories: (1) The appeal judge erred in affirming the motion judge’s decision that she had jurisdiction to make a disclosure order to the Minister, a non-party to the child protection proceeding; (2) The appeal judge erred in prioritizing the Minister’s interest in disclosure over the interests of the children, contrary to the CYFSA , the Charter , the Convention on the Rights of the Child , and binding appellate authority; (3) The appeal judge erred in interpreting s. 50(a) of the IRPA as conferring on the Minister a right to make submissions on the child protection lis ; and (4) The appeal judge erred in failing to find that the motion judge violated r. 17(24) of the Family Law Rules or that her comments on the interpretation of s. 50(a) of the IRPA gave rise to a reasonable apprehension of bias. [48] These categories cover the issues on appeal raised by the other appellants, Ms. S. and the CCAS, as well. [49] I will review each of these categories in turn. The Standard of Review [50] The appellate standard of review on appeal was set out in Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235. Under Housen , the standard of review on a question of law is correctness. The standard of review on a question of fact is palpable and overriding error. For questions of mixed fact and law, the standard of review is also palpable and overriding error unless there is an extricable question of law, in which case the standard of review on that extricable question is correctness. [51] Jurisdiction is a question of law. For the allegation of bias and a breach of the duty of fairness, the standard of review is also correctness. (1) The motion judge had jurisdiction to make the disclosure order [52] The first ground of appeal is that the motion judge had no jurisdiction to order the disclosure of confidential documents from the child protection proceeding to the Minister, and the appeal judge erred in upholding the motion judge’s finding of jurisdiction. [53] According to the CCAS, the jurisdiction of the motion judge to order a party to provide disclosure to a non-party must flow from a connection to the paramount purpose of the CYFSA . The CCAS argues that the Minister's purpose in seeking disclosure is not to further the best interests of the children, but to further the removal of Ms. S. and her son. [54] The OCL echoes this argument, but also raises the limits of the OCJ as a statutory court lacking inherent jurisdiction. The OCL submits that neither the Courts of Justice Act , R.S.O. 1990, c. C.43, nor the CYFSA provides authority for the disclosure of confidential child protection documents to a non-party. [55] The motion judge accepted that the CYFSA did not expressly envision disclosure to the Minister, but reiterated that it did not prohibit disclosure either. Accordingly, she relied on the broad authority conferred by the FLR s as affording the necessary discretion to make the disclosure order in this case, in addition to the necessity that a statutory court, such as the OCJ, be able to control its own process. The motion judge stated, at para. 116: The case before me demonstrates the importance of statutory courts being empowered to control its process as it involves managing the interests of the parties, promoting the best interests of the children and controlling the involvement of a third party with a legitimate interest who represents the Canadian government and answers to the public. [56] The appeal judge reviewed the motion judge’s reasons on the question of jurisdiction, and concluded, at para. 68: I can find no error in the motion judge's conclusion that, as a matter of law, she had jurisdiction to order production of relevant documentation to a third party in appropriate circumstances. The scope of the disclosure order, and its terms and conditions, fall within the exercise of discretion available to the motion judge in a case conference, particularly where she would be hearing the motion. Her order discloses no error of principle and the appellants have not convinced me that, in making this order, she was clearly wrong. [57] The appeal judge also specifically upheld the motion judge’s inclusion of future supervision applications in her disclosure order, observing that the application of the order to future applications was subject to future reconsideration as well. [58] In my view, the appeal judge committed no error in this analysis. Absent a provision of the CYFSA precluding a judge of the OCJ from making such a disclosure order, the broad discretion afforded to the judge under the FLR s confers jurisdiction on the OCJ to make disclosure orders including, where warranted, to the Minister exercising his mandate under s. 50(a) of the IRPA . [59] The appellants point to no provision of the CYFSA that constitutes an express bar to disclosure. However, they argue that s. 87(8) of the CYFSA implicitly bars disclosure of the kind sought by the Minister. This provision states, “No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.” [60] While this provision speaks to the constraints that must accompany disclosure orders in a child protection proceeding, it does not remove a judge’s jurisdiction to make such an order. [61] The jurisdiction of the OCJ to make a disclosure order to a non-party in this context is also supported by the OCJ’s case law. In Children’s Lawyer v. N.N.D. , [2014] O.J. No. 6396 (Ont. C.J.), for example, a limited disclosure order was made to the Minister responsible for a removal order in a proceeding under the FLR s. [62] I would therefore dismiss this ground of appeal. (2) The motion judge did not prioritize the interests of the Minister over the interests of the family subject to the child protection proceedings [63] The second ground of appeal is that, even in the face of jurisdiction to make a disclosure order, the appeal judge erred in upholding the motion judge’s exercise of that jurisdiction. Specifically, the appellants submit that there were errors below in prioritizing the interests of the Minister over the heightened privacy interests of the children subject to the supervision proceeding, contrary to the CYFSA , the Charter , international conventions and governing case law. [64] I disagree that the motion judge improperly prioritized the interests of the Minister over the interests of the children. [65] In my view, the task before the court in this case is to interpret the import of s. 50(a) of the IRPA harmoniously with the best interests of the child(ren) and the privacy constraints of the CYFSA . [66] I do not agree with the appellants that the disclosure of any information to the Minister, in any child protection case, under any circumstances constitutes a breach of the protections inherent in the CYFSA . [67] It is important to note that the effect of engaging the stay of removal provided for by s. 50(a) is potentially in the children’s best interests. In this way, giving effect to the condition of the stay that requires the Minister to have “the opportunity to make submissions” should not be viewed as inherently at odds with the CYFSA . I agree with the motion judge when she said, at para. 58, that granting the Minister the opportunity to make informed and meaningful submissions ensures the protection of its order and therefore the best interests of the children governed by that order. [68] Further, I do not agree that restricted disclosure to the Minister is tantamount to making that information public. The CYFSA explicitly provides that the presence of two media representatives at a hearing is still, “a hearing that is held in the absence of public”: at s. 87(5). Similarly, the disclosure of certain information to a government agent subject to explicit privacy protections does not implicitly offend the prohibition on publishing or making public information that has the effect of identifying a child in s. 87(8). [69] At the same time, as I will discuss in the next section, in my view a nuanced analysis is required to ensure that any disclosure order for the purpose of “meaningful” submissions by the Minister pursuant to s. 50(a) of the IRPA in the child protection context would be as minimally invasive of the children’s privacy interests as possible. (3) Proper approach for interpreting the intersection of s. 50(a) of the IRPA and the CYFSA [70] The third ground of appeal is that the motion judge erred in interpreting s. 50(a) of the IRPA as permitting the Minister to make submissions on the child protection lis , and the appeal judge erred in upholding that interpretation. [71] I will discuss this ground of appeal in two parts: first, the significance of the genuine lis test in the context of s. 50(a); and second, the appropriate scope of the Minister’s submissions. (i) Genuine lis [72] With respect to s. 50(a) and the decision of the motion judge, the appeal judge held, at para. 57: I am unable to find any error of law in the motion judge’s interpretation of s. 50(a) of the IRPA or her assessment of the Minister's ability to address matters falling within the scope of the Minister's legitimate interest. The appellants’ attack on the motion judge's concern that the Minister be permitted to make “meaningful” submissions is particularly troubling. What do the appellants want — that the Minister be limited to making un-meaningful submissions? It seems that perhaps this is so. [73] Section 50(a) of the IRPA provides, 50 A removal order is stayed (a) if a decision that was made in a judicial proceeding — at which the Minister shall be given the opportunity to make submissions — would be directly contravened by the enforcement of the removal order[.] [74] This provision has been interpreted and applied in the family law setting in a way that makes clear it is to function in concert with family law legislation to the extent possible. [75] The Federal Court has exclusive jurisdiction to determine whether a removal order directly contravenes a decision made in a judicial proceeding: M.W. v. E.B. (2003), 38 R.F.L. (5th) 443 (ON SC). To do so, the court considers the factors outlined in Alexander v. Canada (Solicitor General) , 2005 FC 1147, [2006] 2 F.C.R. 681, aff’d 2006 FCA 386, 360 N.R. 167; see also Perez v. Canada (Minister of Citizenship and Immigration) , 2005 FC 1317, at para. 16. [76] This court considered the interaction between a family law lis and s. 50(a) in J.H. v. F.A. , 2009 ONCA 17, 265 O.A.C. 200. There, the appellant admitted that she applied for a custody order and a non-removal order to trigger s. 50(a): at para. 14. Weiler J.A. concluded that the motion judge should not have granted the non-removal order in this case because there was no genuine family law dispute between the parents. As such, the order was inappropriately aimed at the Minister, not the parents: at para. 24. [77] This case law establishes that there are circumstances where a genuine lis is relevant and that the Minister may be entitled to make submissions on the issue. However, a distinction must be drawn between private family law disputes and child protection cases, where several of the parties are state actors and the proceedings are carefully supervised by the courts. I would make the point that, given those circumstances, concerns over a genuine lis will rarely arise. However, there may be circumstances where information available to the Minister through the immigration file or the length or nature of the child protection proceedings raises legitimate concerns about a genuine lis . [78] This brings me to the ultimate issue in this case, the appropriate scope of the Minister’s submissions and what, if any disclosure of the child protection file is appropriate to allow for those submissions. (ii) Appropriate scope of disclosure and of Minister’s submissions [79] With these principles in mind, I agree with the appeal judge that the motion judge did not err in concluding that s. 50(a) provides for a meaningful opportunity to make submissions. This opportunity, however, is not without limits. There needs to be a framework within which such meaningful submissions are made, and within which any associated disclosure requests are managed. [80] In this case, the motion judge took a responsive approach. She accepted the Minister’s definition of the scope of submissions, and the disclosure needed to permit those submissions (referred to as “nominal disclosure” and including the agreed statement of facts). She held, at para. 59: Before any final order is made in a child protection proceeding in this court which may impact an existing deportation order, I find that the Minister ought to be permitted to make submissions to this court on all relevant issues , including whether there is a genuine lis between the parties that justifies the order being requested by the parties. [Emphasis added.] [81] The appeal judge, in affirming the motion judge’s decision, invoked an analogy to the framework for determining fairness obligations from Baker v. Canada (Minister of Citizenship and Immigration) , [1999] 2 S.C.R. 817. That framework sets out five factors to be considered on judicial review for determining the appropriate degree of fairness for a particular decision-making setting. With four of these factors in mind ( (i) the nature of the decision being made and the process followed in making it; (ii) the nature of the statutory, institutional and social context; (iii) the importance of the decision to the parties and interests affected; and (iv) legitimate expectations), the appeal judge upheld the motion judge’s determination that “[t]he court would fail in its duty of fairness and responsibility to the administration of justice if the Minister was limited in the manner requested by the parties”: at para. 55. [82] I agree that s. 50(a) of the IRPA gives rise to a discretion to be exercised by the motion judge, both in relation to the scope of submissions and in relation to the extent of disclosure. [83] Spence J. referred to the Minister being granted an “unfettered” opportunity to make submissions in the status hearing dealing with the application for a supervision order in November 2019. At the status hearing giving rise to this appeal, the motion judge rejected an argument that the Minister’s submissions should be limited, in effect, to advising the motion judge of the existence of a removal order. She did not address what, if any, limits would be appropriate or necessary on the Minister’s submissions. [84] The appeal judge held that the motion judge’s exercise of her discretion demonstrated no error. He concluded, at para. 61: The motion judge was correct in her interpretation of s. 50(a) of the IRPA , to the extent that she found the nature of the Minister's legitimate interest is the basis for determining the content of the required "opportunity to make submissions". Determining the specific order or orders necessary to give rise to effective or "meaningful" submissions, however, involved the exercise of discretion. Subject to the next argument, addressed below, the motion judge committed no error of principle, and was not clearly wrong, in making the specific orders in this case that she did. [85] I do not accept the argument advanced by the CCAS and OCL that the Minister’s submission must be limited to facts about the removal proceedings. Nor do I accept, however, that the Minister’s opportunity to make submissions is to be unfettered. Rather, I agree with the appellants that the Minister’s submissions must be limited to his area of legitimate concern, in light of his duties under the IRPA . [86] In my view, a blended analysis of this dual legislative context ( CYFSA and IRPA ) is necessary to determine both the scope of submissions and associated disclosure in the child protection setting. [87] Moreover, I do not think this case can be resolved according to administrative law’s procedural fairness analysis. The Baker framework appropriately highlights the need to tailor the decision on disclosure. However, it does little to address the competing concerns of other parties who may be affected by a decision regarding disclosure, such as the privacy considerations at issue in this child protection proceeding. For this reason, I come to a different conclusion as to the appropriate framework to employ when determining disclosure in this statutory context. [88] In my view, before a judge in a child protection proceeding can decide on the scope of a Minister’s submissions or any accompanying question of disclosure, the Minister must provide a basis for the proposed scope of submissions. That basis must be derived from the record before the Minister, or from the Minister’s field of knowledge and expertise. For example, if the Minister wishes to challenge the bona fides of the lis of a child protection proceeding, as in this case, the Minister must demonstrate a legitimate, prima facie concern based on material within the removal record or the Minister’s field of knowledge. That concern may relate to material in the removal record that casts doubt on the lis of a child protection proceeding, or it may relate to the number and kind of supervision orders that have been granted. For example, in its factum, at para. 60, the Minister states that “The CYFSA is not meant to and cannot provide de facto immigration status.” It may be appropriate, after multiple orders under the CYFSA purporting to affect a family’s immigration status, for the Minister to raise such a concern. It will be for the motion judge to assess whether such a prima facie concern has been established, and to demarcate the scope of a Minister’s submissions based on that concern. [89] If, as in this case, disclosure is requested for the Minister’s submission to be meaningful, the Minister must provide further justification for the specific, proposed disclosure. That justification must logically connect the proposed disclosure to the scope of submissions. For example, if the Minister seeks access to the agreed statement of facts, the Minister must first identify the kind of facts that need to be known to make meaningful submissions. In oral submissions, counsel for the Minister characterized the request for disclosure in this case as a mechanism “to connect the dots” so that the Minister’s submissions could be meaningful. While it is open to the Minister to frame his request for disclosure in this way, it is for the Minister to set out the specific dots that need to be connected. For example, if the Minister seeks disclosure to address whether in this case the CYFSA is being used to provide de facto immigration status for the family, the Minister should be expected to summarize how the disclosure sought will enable such submissions to be meaningful. [90] Once the Minister’s position is set out, the judge can then consider the requested scope of submission/disclosure, together with the Minister’s statutory obligation to pursue removal as soon as possible on the one hand, and the parties’ duties under the CYFSA and the child’s best interests on the other hand. This analysis will also inform the kind of restrictions that ought to be placed on disclosure, in terms of redacting documents, if necessary, protecting confidentiality to the extent possible, and restricting the use of the disclosure outside the specific purpose of making submissions. [91] Disclosure orders would be granted only where, and to the extent that the Minister’s clearly defined need for disclosure is warranted, having regard to the competing interests and concerns of the affected parties. Ultimately, the decision requires the exercise of discretion; as long as the Minister first satisfies the motion judge that there is a prima facie basis for disclosure,absent an error in law or in principle, the motion judge's decision is entitled to deference. [92] In this case, the motion judge did not require the Minister to establish a prima facie basis for the scope of submissions he wished to make, and did not assess whether the disclosure sought by the Minister was justified in light of material in the removal record, or within the field of knowledge of the Minister. As a result, I conclude that the motion judge’s decision on disclosure cannot be upheld. [93] I expressly refrain from commenting on whether, on the appeal record in this case, the Minister would have met the threshold for the scope of submissions proposed, or for the disclosure requested, as these threshold questions were not put to the Minister and therefore not addressed in the way contemplated above. [94] As a result, I would allow the appeal, set aside the disclosure order and remit the matter to the motion judge if the Minister wishes to pursue same and attempt to meet the prima facie case for the specific disclosure requested. (4) The motion judge’s comments did not give rise to a reasonable apprehension of bias [95] As a fourth ground of appeal, the OCL alleges that the motion judge failed to abide by r. 17(24) of the FLR s governing settlement conferences, that her comments on the potential settlement of the dispute gave rise to a reasonable apprehension of bias and that the appeal judge erred in failing to make this finding. [96] This issue received very little attention in the oral hearing on this appeal. [97] However, in its factum, the OCL states that, at the December 22, 2020 attendance, the motion judge presided over a conference in which the Minister and the parties participated, and during which settlement discussions took place. It asserts that the fact that settlement discussions occurred was specifically stated by the Minister in their motions to preclude the OCL’s use of the conference transcript on appeal. [98] The motion judge’s Endorsement of December 22, 2020 indicates that the Court expressed a concern that a refusal to give the Minister any disclosure would make it impossible for their counsel to make meaningful submissions pursuant to s. 50(a) of the IRPA and that, if the Minister was denied the opportunity to make meaningful submissions, the Minister could argue before the Federal Court that an order of the Family Court should not stay removal. [99] I am persuaded that the exchange that took place between the motion judge and the parties was not a settlement conference under the FLRs . Further, the comments of the motion judge cannot reasonably be interpreted as a predetermination of the ultimate issue before her on the motion for disclosure giving rise to a reasonable apprehension of bias. [100] The appeal judge did not err in finding that these comments did not reflect a predetermination, but rather reflected an attempt to focus counsel's minds on what the motion judge perceived as the central issue in dispute. It was nothing more. DISPOSITION [101] I would allow the appeal and remit the matter to the motion judge if the Minister chooses to pursue his request for disclosure in accordance with this decision. [102] No costs are sought on this appeal and I would award none. Released: March 21, 2022 “G.H.” “L. Sossin J.A.” “I agree. Grant Huscroft J.A.” “I agree. L. Favreau J.A. ”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Hanan, 2022 ONCA 229 DATE: 20220321 DOCKET: C68236 Tulloch, van Rensburg and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Dia ‘Eddin Hanan Appellant Saman Wickramasinghe and Parmbir Gill, for the appellant Michael Fawcett and Andrew Hotke, for the respondent Heard: September 7, 2021 by video conference On appeal from the conviction entered by Justice Kirk W. Munroe of the Superior Court of Justice, sitting with a jury, on November 28, 2019, and the sentence imposed on March 2, 2020, with reasons reported at 2020 ONSC 1209. van Rensburg J.A.: I. OVERVIEW [1] The appellant was charged with first degree murder, attempted murder and firearms-related offences in connection with a shooting of two individuals on December 23, 2015. One victim died and the other was severely injured. The preliminary inquiry judge discharged the appellant on first degree murder and committed him to trial on second degree murder, attempted murder and the firearm charges. [2] On October 28, 2019, the appellant’s trial by judge and jury commenced. It concluded four weeks later. The appellant was acquitted of second degree murder and convicted of manslaughter in connection with the victim who died. He was acquitted of attempted murder but convicted of discharging a firearm with intent to wound in connection with the second victim and of possession of a restricted firearm without a license. He was sentenced to 15 years in custody, less credit for pre-sentence custody and restrictive bail conditions. [3] The appellant appeals his conviction and sentence. [4] The appellant raises two grounds of appeal against his conviction. First, he asserts that the trial judge erred in dismissing his application for a stay of proceedings under s. 24(1) of the Charter , for violation of his s. 11(b) rights (oral reasons reported at 2019 ONSC 320). He alleges two errors. First, he contends that the trial judge, in concluding that there was a net delay of 35 months and 7 days under R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631, erred in his assessment of defence delay, and that the net delay was in fact 40 months and 7 days. The appellant asserts that it was an error to attribute several months of delay to the defence arising from repeated adjournments before a judicial pre-trial was set, when the Crown provided insufficient and delayed disclosure. Second, he argues that the trial judge erred in his application of the transitional exceptional circumstance, where only approximately six months of the case occurred pre‑ Jordan and where the Crown made a “significant mistake” well after Jordan had been released, resulting in a delay of the trial by almost a year. For its part, the Crown argues that the trial judge erred by not attributing more of the delay in respect of the rescheduled trial to the defence, and that the net delay was in fact 32 months. [5] In an argument made in this appeal as well as two other appeals heard the same week, R. v. Charity and R. v. Campbell , [1] the Crown submits that, if this court concludes that there was a violation of the appellant’s s. 11(b) rights, a remedy other than a stay of proceedings should be considered. [6] The appellant’s second ground of appeal against his conviction is based on an alleged error in the trial judge’s jury charge. He submits that the jury was misdirected on the burden of proof when told that they should choose between the accounts of the appellant and the surviving victim in the trial judge’s instructions on self-defence. [7] The appellant also seeks leave to appeal his sentence, arguing that the trial judge’s reasons make it clear that he was sentenced as though he was convicted of murder, and that the global sentence for manslaughter and the offences of which he was convicted was demonstrably unfit. [8] For the reasons that follow, I would dismiss the appeal. [9] With respect to the s. 11(b) issues, I would not interfere with the trial judge’s refusal to stay the proceedings due to delay. The trial judge correctly assessed net delay at 35 months and 7 days. He did not err in attributing to the defence the delay of nine months, 4.5 months of which is conceded by the appellant, for the time that defence counsel refused to set a judicial pre-trial. Nor would I accept the Crown’s argument that the entire period between the available June 2019 trial dates, for which the defence was not available, and the eventual commencement of trial in October 2019 counts as defence delay. In his treatment of defence delay, the trial judge properly applied the principles articulated in Jordan and other cases, having regard to the particular circumstances before him. I would also not interfere with the trial judge’s conclusion that the delay, which exceeded the Jordan ceiling, was nevertheless justified by the transitional exceptional circumstance. His assessment of the relevant factors in the context of the case does not reveal any legal error and is entitled to deference. [10] Because of my conclusion on the first ground of appeal, it is unnecessary to consider the Crown’s argument that a remedy other than a stay of proceedings should be considered. If I had concluded that there was a s. 11(b) breach, I would have ordered a stay of proceedings, for the reasons expressed in R. v. Charity , 2022 ONCA 226, which is released together with these reasons. [11] I would also reject the appellant’s argument that there was a reversible error in three passages of the jury charge where the trial judge referred to the “competing” and “conflicting” versions of events of the appellant and the surviving victim. When considered in the context of the entire jury charge and the issues at trial, the impugned passages do not reveal error. The charge provided clear direction to the jury on the Crown’s burden of proof and their assessment of the evidence, including the application of R. v. W.(D.) , [1991] 1 S.C.R. 742, to the elements of the offences and the defence of self-defence. [12] Finally, I am not persuaded that the sentence was demonstrably unfit. Recognizing that the shootings were intentional, in the sense that they were not accidental, the trial judge imposed a reasonable sentence, having regard to all of the relevant circumstances, including the seriousness of the offences. [13] I will deal with each ground of appeal in turn. II. THE STAY APPLICATION: SECTION 11( b ) OF THE CHARTER [14] I will begin by setting out the relevant procedural chronology, followed by a summary of the trial judge’s reasons for dismissing the s. 11(b) application. I will then discuss each of the issues: whether the trial judge erred in his assessment of defence delay during two periods, and whether he erred in his application and assessment of the transitional exceptional circumstance. (1) Procedural Chronology [15] The appellant was charged with first degree murder and attempted murder on December 24, 2015. He was initially detained in custody. The Crown alleged that the two victims attended the appellant’s home, and while they were in the driveway, he shot them both, killing one and leaving the other paralyzed. The surviving victim, Gregory Henriquez, was a Crown witness. [16] The matter proceeded slowly through the Ontario Court of Justice (the “OCJ”). The Crown provided substantial initial disclosure on January 7, 2016. On January 21, defence counsel attended court and asked for a one-week adjournment for the purpose of setting a judicial pre-trial date. However, a judicial pre-trial was not set for several months. On January 28, the defence asked for a further adjournment, citing outstanding disclosure. This became a pattern, and over the next few months, the matter stalled as the Crown provided further disclosure and, instead of agreeing to scheduling a judicial pre-trial, the defence requested adjournments to review disclosure or to await further disclosure. [17] On March 10, 2016, the Crown filed a replacement information, adding six firearms charges. Again, the defence asked for an adjournment because they were awaiting additional disclosure. [18] On April 7, 2016, the defence requested a one-week adjournment for the purpose of setting a judicial pre-trial, and again, no pre-trial was scheduled. On April 14, the defence asked for a further adjournment to review disclosure. On this occasion, the Crown pushed to set a judicial pre-trial, given that the matter had been stagnant for some time. The defence opposed the request, suggesting that a judicial pre-trial would not be meaningful without full disclosure. This pattern continued for the next two months as the Crown continued to make disclosure. [19] In June 2016, the appellant advised the court that he intended to change counsel. At the next few court appearances, the defence requested adjournments to confirm new counsel’s retainer and for the new counsel to review disclosure. [20] On July 8, 2016, the Supreme Court released its decision in Jordan . After the release of Jordan , Crown counsel became increasingly concerned that the matter had been dragging on for too long without a judicial pre-trial. On July 21, the defence again requested an adjournment because of the change in counsel and to receive further disclosure, and Crown counsel expressed the need to move the case forward. [21] The new defence counsel got on the record in August 2016 and sought adjournments to review disclosure. In the multiple appearances that followed, the Crown stressed that a judicial pre-trial needed to be set as soon as possible. On October 19, the court set a judicial pre-trial, which took place on November 9, 2016. The parties planned to have a continuing judicial pre-trial. On December 15, the defence asked to delay setting a continuation of the judicial pre-trial pending the result of the appellant’s application for judicial interim release. [22] On December 20, 2016, the appellant was released from custody, and a continuing judicial pre-trial was set for January 16, 2017. The parties intended to set preliminary hearing dates in March 2017, but on March 1, 2017, the defence asked to delay setting such dates to review recently provided disclosure and to obtain further disclosure. The Crown submitted that dates should be set sooner rather than later, and suggested that the parties could adjust the dates as required. The matter was adjourned to March 29, 2017 to set preliminary hearing dates. [23] On March 29, 2017, the parties set preliminary hearing dates for 15 days beginning on October 31, 2017. In the end, the preliminary inquiry lasted only eight days, concluding on December 4, 2017. On December 12, 2017, the appellant was committed for trial on second degree murder, attempted murder, and the firearms charges. [24] On January 5, 2018, the first appearance in the Superior Court, the presiding justice in assignment court, Pomerance J., asked defence counsel to identify how much of the delay to date was defence delay. The Crown’s position was that there were eight months of defence delay at the beginning of the case. Defence counsel accepted that the defence delay was somewhere in that range. Based on this assessment, the Jordan ceiling of 30 months would be reached on or around February 24, 2019. The court was eager to set trial dates as soon as possible. [25] In February 2018, following a judicial pre-trial, a six-week jury trial was scheduled to commence on November 5, 2018. Pre-trial motions were set for September 2018. The dates were confirmed in August 2018, at which time Crown counsel updated defence counsel on the police’s efforts to analyze the appellant’s cell phone, and advised that technical issues prevented an analysis (the cellphone was password-protected and the existing technology prevented access). Crown counsel had no information about when a report might be obtained and warned defence counsel that “it might end up affecting our trial timeline if it arrives unexpectedly.” [26] Pre-trial motions commenced as scheduled on September 17, 2018. The Crown confirmed that the surviving victim, who lived in the United States and had testified by video at the preliminary inquiry, would be attending the trial. [27] On the eve of trial, the Crown encountered two significant challenges. First, the surviving victim refused to testify and could not be compelled to do so because he was not in Canada. As a result, the Crown intended to apply to introduce his preliminary hearing testimony and police statement as evidence at the trial, which would entail motions that would inevitably delay the start of the trial. Second, the police had succeeded in analyzing the appellant’s cell phone and had provided a report to the Crown at the last minute. The Crown intended to rely on this evidence, but the police had not provided the Crown with the information to obtain (“ITO”) and search warrant authorizing the search of the phone. [28] On November 2, three days before the jury trial was to begin, the Crown informed the court of these problems. The defence raised the possibility of re‑electing to a trial by judge alone under s. 561 of the Criminal Code , to avoid an adjournment. The Crown asked for time to consider the possibility of re-election. The trial judge warned the Crown that, while the matter was “fine if we proceed right now”, if there was further delay, they “might start having Jordan problems”. The trial judge told the Crown to obtain and disclose the ITO and search warrant over the weekend, given that the defence was concerned about potential Charter problems with the cell phone evidence. [29] On November 5, 2018, the date on which the trial was scheduled to begin, the Crown advised that it would not consent to a re-election. The defence requested an adjournment, and Crown counsel conceded that the defence request was appropriate. The trial judge asked about the s. 11(b) consequences of granting an adjournment. Defence counsel confirmed that, if the trial could not be rescheduled in the next six months, he would likely bring a s. 11(b) application. The trial judge deferred consideration of the adjournment request to the following day. The ITO for the cell phone search was provided to the Crown and disclosed to the defence after court on November 5. [30] On November 6, after confirming the Crown’s position regarding re-election, the trial judge adjourned the trial to October 28, 2019, almost a year later. The court had offered to reschedule the six-week jury trial beginning on June 3, 2019, after making exceptional efforts to reorganize the trial judge’s schedule. However, defence counsel was unavailable because he was conducting another trial for an in-custody client at that time. Later that day, after the trial was adjourned, the Crown advised that, having reviewed the ITO, it no longer intended to rely on the cell phone evidence. [31] The trial judge did not allow the 2018 trial dates to go to waste. He used the time to conduct further pre-trial motions, including the s. 11(b) application. On November 16, 2018, the parties held a judicial pre-trial to discuss the s. 11(b) issues. At the Crown’s request, the court disclosed the trial judge’s schedule to the Crown, so that the Crown could assess the other matters assigned to the trial judge and determine whether any Crown matters could be resolved or adjourned. There were no other six-week periods when the judge was available. The Crown also proposed that the trial could be completed in four weeks, a suggestion that was opposed by defence counsel and rejected by the trial judge. In January 2019, the trial judge dismissed the appellant’s s. 11(b) application. [32] The appellant’s trial commenced as scheduled on October 28, 2019 and concluded on November 28, 2019. (2) The Trial Judge’s Section 11(b) Decision [33] The trial judge dismissed the s. 11(b) application, holding that, although the net delay exceeded the Jordan ceiling of 30 months, it was justified because this was a transitional case where the transitional exceptional circumstance applied. The total delay was about 47.5 months. From that total, the trial judge deducted defence delay, leaving a net delay of 35 months and 7 days. [34] The trial judge deducted as defence delay approximately 12.5 months as follows: · January 21 to October 19, 2016 (9 months ): During this period, the defence refused to set a judicial pre-trial because disclosure was incomplete and ongoing. The appellant also changed counsel. The appellant acknowledged that the delay caused by the change in counsel was properly deducted, but argued that the remaining delay was not. The trial judge held that the defence position that disclosure must be complete before a judicial pre-trial could be set was “misguided and wrong”. In cases of even modest complexity, disclosure will be an ongoing process. Defence counsel had accepted that there were eight months of defence delay during this period at a previous court appearance. · December 15 to December 20, 2016 (5 days) : The appellant agreed to a finding of defence delay because the defence had asked to delay setting a judicial pre-trial continuation date. · March 1 to March 29, 2017 (28 days) : The defence asked to delay setting preliminary hearing dates to obtain and review disclosure. This delay was unnecessary, as the parties could have set dates and adjusted them later if required. · Six weeks beginning June 3, 2019 (6 weeks) : The Crown and the court were available to conduct the rescheduled trial for six weeks beginning June 3, but the defence was unavailable. The trial judge declined to attribute the entire period of delay from June 3 to the October 28, 2019 trial dates to the defence, holding that because the court was unable to accommodate the trial sooner, it did not count as defence delay. [35] The trial judge declined to find any other defence delay based on the adjournment of the first trial dates in November 2018. The adjournment was caused by the late disclosure of the cell phone analysis and the surviving victim’s refusal to testify. The defence application for an adjournment was legitimate, given the Crown’s concession that proceeding to trial would be unfair. [36] The trial judge also held that the late disclosure of the cell phone analysis and the surviving victim’s refusal to testify did not qualify as discrete exceptional circumstances. The late disclosure did not qualify because it was not reasonably unforeseen or reasonably unavoidable. The Crown had warned the defence that this might happen, and should have been able to tell the court sooner that it did not intend to rely on the evidence. [37] The surviving victim’s refusal to testify also did not qualify as a discrete exceptional circumstance. Although the trial judge accepted that this was unavoidable, he concluded that the Crown failed to take reasonable steps to address the problem before the delay exceeded the Jordan ceiling. The Crown’s proposal that the trial be shortened and efforts to find an earlier trial date were not sufficient. When the defence proposed a re-election, the Crown knew that the approximate Jordan ceiling was in February 2019, that the earliest available trial date was October 2019, and that the defence was likely to bring a s. 11(b) application. The only reasonable step in the circumstances was for the Crown to consent to re-election. [38] The trial judge rejected the Crown’s position that the delay was justified by the complexity of the case. It was a “classic self defence murder case”, with typical disclosure and standard issues. [39] Finally, the trial judge applied the transitional exceptional circumstance to conclude that the delay was justified. He rejected the defence argument that the transitional exceptional circumstance did not apply because most of the proceedings (all but the first six months or so) occurred after the release of Jordan . He held that the time the parties have had to adapt following Jordan is a factor to be considered. The trial judge considered the following additional factors: · Complexity of the case: The case was of moderate complexity. · Period of the delay in excess of the guidelines under R. v. Morin , [1992] 1 S.C.R. 771: The combined institutional and Crown delay was five months in the OCJ, and ten months in the Superior Court. This was below the guideline for the OCJ, above the guideline for the Superior Court by two months, and under the overall guidelines. · Crown’s response to institutional delay: The Crown repeatedly pushed the case forward in the face of defence delay, and only contributed to the delay by refusing to consent to the defence re-election. · Defence efforts to move the case along: The trial judge gave the defence “almost no credit for any effort to move this case forward”. In fact, the defence sought delay. The only effort the defence made to avoid delay was the proposal to re-elect. · Prejudice to the accused: The trial judge inferred prejudice and noted that the appellant was in custody for a year before he was released on bail. [40] The trial judge also considered the limited time the case spent under the Morin framework and the seriousness of the offences. He stated that the final assessment was “difficult”. The Crown conducted itself impeccably until the first trial date, while the defence caused delay. The trial judge held that the Crown’s single misstep in refusing to consent to re-election was not determinative. The court in Jordan recognized that change takes time. While Crown counsel was aware of Jordan within weeks of its release, learning the full lessons of Jordan , including the meaning of concepts such as “ defence delay”, “discrete exceptional circumstances”, “particularly complex cases”, and “transitional exceptional circumstance” , required time. An example of this was the repeated adjournment requests by the defence, even after Jordan was released. The trial judge accepted that, assessing the case contextually and qualitatively, the Crown had established that the time it would take to try the case was justified. (3) Discussion [41] The standard of review of a decision on a s. 11(b) application is well‑established. Deference is owed to a trial judge’s underlying findings of fact. The correctness standard applies to the trial judge’s characterization of periods of delay, and to the determination of whether the delay was unreasonable: R. v. Jurkus , 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325. Trial judges are generally in the best position to determine whether exceptional circumstances exist (including in the assessment of the transitional exceptional circumstance): Jordan , at para. 98. While typically deference is owed to such a determination, a clear legal error would justify interference: R. v. Picard , 2017 ONCA 692, 137 O.R. (3d) 401, at para. 137, leave to appeal refused, [2018] S.C.C.A. No. 135. a) Defence Delay [42] There are two relevant periods at issue: (a) the 4.5-month period between January 21 and June 9, 2016, when the defence refused to set a judicial pre-trial based on incomplete and ongoing disclosure; and (b) the period commencing June 3, 2019, when a six-week trial date was offered but the defence was not available, until the trial proceeded on October 28, 2019. i. January 21, 2016 to June 9, 2016 [43] The appellant contends that the trial judge erred in characterizing the 4.5-month period from January 21 to June 9, 2016 as defence delay when defence counsel reasonably refused to set a judicial pre-trial date because of inadequate Crown disclosure. The appellant submits that, tracking the definition of defence delay in Jordan and R. v. Cody , 2017 SCC 31, [2017] 1 S.C.R. 659, counsel’s request for time to review extensive outstanding disclosure before setting a judicial pre-trial was not “illegitimate defence action” that failed to respond to the charges. Rather, it was reasonable for the defence to refuse to set a judicial pre-trial, given that disclosure was incomplete and ongoing. Not counting that period as defence delay would result in a net delay of 40 months and 7 days. [44] I would not interfere with the trial judge’s attribution of delay to the defence resulting from the repeated adjournment requests that were based on the need for more disclosure. Authorities both before and after Jordan make it clear that the Crown is not obliged to make complete disclosure before a judicial pre-trial is set: see, e.g., R. v. N.N.M. (2006), 209 C.C.C. (3d) 436 (Ont. C.A.), at para. 37; R. v. Kovacs-Tatar (2004), 73 O.R. (3d) 161 (C.A.), at para. 47; and R. v. Carbone , 2020 ONCA 394, 150 O.R. (3d) 758, at paras. 51-53. [45] In R. v. D.A. , 2018 ONCA 96, 402 C.R.R. (2d) 303, a case relied on by the appellant, the parties scheduled pretrial and trial dates despite outstanding disclosure. This court concluded that, after the Crown continued to provide significant new material in the moments leading up to each appearance, it was legitimate for the defence to require time to review the disclosure before proceeding as scheduled: at paras. 7, 12-22. In this case, by contrast, where defence counsel continually refused to set dates for a judicial pre-trial citing inadequate Crown disclosure, the trial judge found that the Crown had been diligent in providing disclosure and that the defence had sufficient disclosure to set a judicial pre-trial. In fact, defence counsel had told the court on two occasions, before again requesting adjournments, that she intended to set a judicial pre-trial. [46] The trial judge found that the defence’s repeated delay of the pre-trial was “misguided, drastically inefficient, and wrong”, and he noted that, when the proceedings moved to the Superior Court, defence counsel acknowledged that this period was defence delay. He concluded that “this was not a case of refusing or delaying [disclosure] by Crown counsel”. A high level of deference is owed to trial judges’ findings on the legitimacy of defence conduct: Cody , at para. 31. The appellant has not pointed to any palpable and overriding error in these factual findings and accordingly, in my view, there is no reason to interfere with the trial judge’s characterization of this period as defence delay. ii. June 3, 2019 to October 28, 2019 [47] The trial judge attributed six weeks of delay during this period to the defence. He arrived at this conclusion after rejecting the Crown’s argument that the entire delay between the adjournment of the November 2018 trial date to the ultimate October 28, 2019 trial date was caused by a discrete exceptional circumstance. After concluding that the adjournment of the trial did not meet the test for a discrete exceptional circumstance, he addressed the fact that the six-week trial could have commenced on June 3, 2019, but for the unavailability of defence counsel. He treated this six-week period, when the court and Crown counsel were available but the defence was not, as defence delay. In his view, because the system could not accommodate a trial after the six‑week block declined by the defence, the time that fell afterward “does not count as defence delay because the court was unavailable to proceed”. [48] The issue here, which is raised by the Crown, is whether the entire period from June 3 to October 28, 2019, which was the next available court date for the six‑week jury trial, ought to have been attributed to the defence. The Crown says that this is the logical result of applying Jordan , and that post- Jordan case law sets a “bright-line rule” providing that, if defence unavailability causes a scheduling delay, then the defence must take complete responsibility for the entire period of delay. Counting this period as defence delay would result in a net delay of only 32 months. [49] In my view, the trial judge did not err in his characterization of the delay during this period. His conclusion that the defence was responsible for six weeks of delay, but not for the ensuing delay when the court could not accommodate the trial, is consistent with the directives of the Supreme Court in Jordan and Cody . [50] In Jordan , the Supreme Court identified the two components of defence delay as “delay waived by the defence” and “delay caused solely by the conduct of the defence”: at paras. 61 and 63. With respect to the latter, the court noted that this kind of defence delay comprises “those situations where the accused’s acts either directly caused the delay … or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial”: at para. 63. The court identified, as a straightforward example of defence delay, “[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests”: at para. 63. [51] Importantly, however, the court continued with the following, and oft-quoted statement, at para. 64: As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. [52] In Cody , the Supreme Court elaborated on its definition of this category of defence delay, describing it as delay “which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges”: at para. 30. The court cited again the example “where the court and Crown are ready to proceed, but the defence is not”: at para. 30. [53] Typically, aside from time legitimately taken to respond to the charges, the delay that results when the court and the Crown are ready to proceed and the defence is not is counted as defence delay: R. v. Thanabalasingham , 2020 SCC 18, 390 C.C.C. (3d) 400, at para. 9; Jordan , at para. 64. There is, however, a qualification: “periods of time when the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable”: Jordan , at para. 64. [54] The issue of defence delay in the context of defence unavailability was addressed recently by the Supreme Court in R. v. Boulanger , 2022 SCC 2, in an appeal from a decision of the Québec Court of Appeal that upheld a stay of proceedings for breach of the respondent’s s. 11(b) rights. One of the issues concerned the attribution by the trial judge of 112 days of delay to the defence between May 21 and September 10, 2019, where additional trial dates were required, and the defence was not available on certain dates in May 2019. Kasirer J., for the Supreme Court, concluded that the majority in the Court of Appeal was correct to intervene because this delay could not be attributed entirely to the respondent, despite the fact that his counsel was unavailable on certain dates. Referring to para. 64 of Jordan , where the court explained that where the court and the Crown are ready to proceed but the defence is not, the resulting delay is attributable to the defence, Kasirer J. noted that “in some cases, the circumstances may justify apportioning responsibility for delay among [the participants in the criminal justice system] rather than attributing the entire delay to the defence”. He recognized that the delay was caused by the conduct of defence counsel, as well as changes in Crown strategy, institutional delay and the court’s lack of initiative in obtaining earlier dates. Kasirer J. stated that, in the particular circumstances of this case, it was “fair and reasonable” for the Court of Appeal to have apportioned responsibility for the 112-day delay, attributing up to half the delay to the defence (as well as ten additional days based on a defence concession in the Court of Appeal). In the end, however, the 30-month Jordan ceiling was exceeded, no exceptional circumstance had been raised to justify exceeding the ceiling, and a stay of proceedings was warranted. The Supreme Court dismissed the appeal. [55] In my view, that is the appropriate approach to take in this case. [56] Once it is accepted that the reason for defence unavailability (other than legitimate defence preparation time) is not taken into account in determining defence delay, it does not necessarily follow, as the Crown urges this court to find, that there is a “bright-line” rule that, once the defence is unavailable, all of the delay until the next available date is characterized as defence delay. That would be inconsistent with the principle that the delay must be “solely or directly” caused by the defence, and the qualification that “periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable”: Jordan , at para. 64. Like Roberts J.A. in R. v. Albinowski , 2018 ONCA 1084, 371 C.C.C. (3d) 190, I would reject the “categorical approach” proposed by the Crown that all of the delay following the rejection of a date offered by the court must be characterized as defence delay, and I agree with her statement that “it is necessary to consider the circumstances of [the] case”: at para. 46. The court must take a contextual approach that considers the circumstances relevant to whether, in respect of a particular period of time, the defence refusal of a date is the “sole or direct” cause of the resulting delay. [57] In some cases, it may be appropriate to attribute all of the delay to the defence: see, for example R. v. McManus , 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 33, and R. v. Baron , 2017 ONCA 772, 356 C.C.C. (3d) 212, at para. 48, where in each case the defence requested an adjournment at the last minute of a multi-day hearing and the next available date was several months later. In these cases, there was no question that the defence caused the event that precipitated the need for new dates. This is delay “solely or directly” caused by the defence. [58] In the present case, however, a six-week jury trial had been scheduled for November 2018 when the matter first arrived in the Superior Court in January 2018, after specific consideration of when the Jordan threshold would be exceeded (February 2019). A last-minute adjournment was required because of the unexpected refusal of the surviving victim to testify, and the Crown’s late disclosure of the cell phone data. The appellant offered to re-elect to avoid losing the original trial dates, and the Crown refused. Through significant efforts, including an adjustment to the trial judge’s schedule, the court was able to offer a six-week period commencing on June 3, 2019 for the trial. Defence counsel was already scheduled for another matter, so the trial was scheduled to proceed on the next available dates in October 2019. In these circumstances, the defence was only the “direct or sole” cause of the six-week delay starting June 3, 2019, because during this period the Crown and the court were ready to proceed and the defence was not. However, after that six-week period, there was no availability in the court schedule until October 28. The trial judge took the correct approach in concluding that this was not defence delay because the court was unable to accommodate the trial sooner. [59] The trial judge, in determining what portion, if any, of the delay between June and October 2019 should be attributed to the defence, applied an appropriate contextual approach that is faithful to Jordan . The trial judge’s refusal to attribute more than six weeks to the defence was, in the circumstances of this case, a fair allocation and entirely appropriate, considering that it was the trial adjournment that resulted in the need for new dates, and the court had no other dates available between June and October 28, 2019. In the circumstances, it would not have been “fair and reasonable” to characterize as defence delay the remaining months when the court could not accommodate a trial. This was not delay that was “solely or directly” caused by the defence. b) The Transitional Exceptional Circumstance [60] The appellant contends that the trial judge erred in concluding that the transitional exceptional circumstance justifies the presumptively unreasonable delay in this case, given that only 6.5 months of the case occurred pre- Jordan and the cause of the delay exceeding the Jordan ceiling was the Crown’s unreasonable refusal to consent to a re-election. The Crown contends that the trial judge’s approach to the transitional exceptional circumstance was based on his findings of fact and is entitled to deference. [61] A transitional case is one that was “in the system” when Jordan was released: Jordan , at para. 95; Cody , at para. 67. For such cases, a court can consider whether there is a transitional exceptional circumstance as a final step in the analysis after concluding that the net delay exceeds the threshold or is otherwise unreasonable: Jordan , at para. 96; Cody , at para. 67. The transitional exceptional circumstance recognizes that all participants in the criminal justice system need time to correct their behaviour and to adjust to the new framework, which represents a “significant shift from past practice”: Jordan , at paras. 96-97, 108. [62] A transitional exceptional circumstance will apply “when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed”: Jordan , at para. 96. This involves a “qualitative exercise”: Cody , at para. 68. The court in Jordan observed that the analysis must always be contextual and “sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice”: at para. 96; see also R. v. Williamson , 2016 SCC 28, [2016] 1 S.C.R. 741, at para. 24; R. v. Manasseri , 2016 ONCA 703, 132 O.R. (3d) 401, at paras. 320-21, leave to appeal refused, [2016] S.C.C.A. No. 513. [63] The relevant circumstances to be considered in the assessment of the transitional exceptional circumstance include: (i) the complexity of the case; (ii) the period of delay in excess of the Morin guidelines; (iii) the Crown’s response, if any, to institutional delay; (iv) the defence efforts, if any, to move the case along; and (v) prejudice to the accused: Picard , at para. 71; R. v. Gopie , 2017 ONCA 728, 140 O.R. (3d) 171, at para. 178. Factors that played a decisive role in whether delay was unreasonable under the previous framework, such as prejudice and the seriousness of the offence, may now inform whether any excess delay in transitional cases may be justified as reasonable: Jordan , at paras. 96-98; Cody , at para. 70. Although a case may not be sufficiently complex to meet the requirements of exceptional circumstances under Jordan , for transitional cases moderate complexity bears on the reasonableness of the delay: Picard , at para. 73, citing R. v. Pyrek , 2017 ONCA 476, 349 C.C.C. (3d) 554, at para. 30. The parties’ general level of diligence and the conduct of counsel are also relevant: see Cody , at para. 70; R. v. Rice , 2018 QCCA 198, 44 C.R. (7th) 83, at paras. 202-3. [64] The court explained in Cody , at para. 71, that the focus of the transitional exceptional circumstance for proceedings that occurred post- Jordan is as follows: When considering the transitional exceptional circumstance, trial judges should be mindful of what portion of the proceedings took place before or after Jordan was released. For aspects of the case that pre-dated Jordan , the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt. [Citation omitted; emphasis added.] [65] As noted earlier, the authorities make it clear that trial judges are generally in the best position to determine whether exceptional circumstances exist, including in the assessment of the transitional exceptional circumstance. Given the contextual and qualitative nature of this assessment, “[w]e rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case”: Jordan , at para. 98. While typically deference is owed to such a determination, a clear legal error would justify interference: Picard , at para. 137. In this regard, the Québec Court of Appeal aptly observed in Rice , at para. 207: It falls to judges, relying on experience, to determine whether transitional exceptional circumstances may be invoked in a given case despite delays that could be characterized as being very long. This is a multifactor analysis that is, above all, the purview of trial judges. In this equation which is anything but mathematic, there is no perfect result. Though the analytical framework must be followed correctly, the weighing of the different factors leading to a reasonable assessment and result are protected from appellate intervention. [Translation.] [66] The appellant acknowledges that this is a transitional case – that is, that it was not an error for the trial judge to assess whether the transitional exceptional circumstance applied. The appellant contends, however, that the trial judge misunderstood how it applies. In particular, he erred in applying the Morin framework to the entire delay, and not just to the 6.5-month period that pre-dated Jordan . The appellant argues that the Crown’s refusal to consent to the defence re-election occurred more than two years after the release of Jordan and that, contrary to the trial judge’s assessment, the parties had sufficient time to adapt to the new regime. The appellant relies on certain obiter comments in R. v. Gordon , 2017 ONCA 436, 137 O.R. (3d) 776, and Picard , decisions of this court that were released in May and September 2017 respectively, to say that the Crown was on notice that its decision to oppose the defence re-election would be considered unreasonable delay post- Jordan . Finally, the appellant contends that the transitional exceptional circumstance ought not to have been applied where the Crown’s mistake was a tactical decision that ignored the teachings of Jordan and manifested the culture of complacency that Jordan was meant to eradicate. [67] I disagree. There was no reversible error in the trial judge’s assessment of the relevant factors and his conclusion that the net delay, which exceeded the Jordan ceiling by five months, was nevertheless justified, having regard to the transitional exceptional circumstance. [68] First, the trial judge properly articulated the relevant principles to guide his analysis and the exercise of his discretion: see paras. 51-62 of his reasons. He specifically adverted to the relevant passages from Jordan , Cody and Williamson and he referred to this court’s decision in Picard . [69] Second, while the trial judge considered the entire delay through the lens of Morin in assessing whether the transitional exceptional circumstance ought to apply, he did not make the error alleged by the appellant. The trial judge did not collapse the pre- and post- Jordan delay. In fact, he specifically referred to the fact that only approximately six months of the delay occurred pre- Jordan as a factor in his overall analysis. The trial judge found that the parties had not had sufficient time to adapt to the new framework. Although they were aware of Jordan , they had not yet learned its more difficult lessons and changed their behaviour accordingly. Therefore, as was required as part of the transitional exceptional circumstance analysis, the trial judge conducted an exhaustive assessment of the entire delay under the Morin framework. He disagreed with the defence submission that the overall delay would have been intolerable under Morin . Contrary to the appellant’s suggestion, however, the Morin analysis was not determinative. It was but one factor in the trial judge’s qualitative and contextual analysis. [70] Third, as he was required to, the trial judge conducted a contextual assessment of the relevant factors. Recognizing that the case was only under the Morin framework for around six months, and citing para. 71 of Cody , he noted that for post- Jordan delay, the focus was properly on the time the parties had to adapt. [71] The trial judge noted that the assessment was qualitative, rather than quantitative, and contextual. He considered the following factors: that the case was of moderate complexity; that under the Morin guidelines, the delay was two months above Superior Court guidelines, but under the OCJ guidelines and the total guidelines; that the Crown’s response to delay was impressive until the trial adjournment; that defence efforts to move the case along were non-existent until that time; and that there was inherent prejudice to the accused. He identified two additional relevant factors: the time the case was under the Morin framework and, relying on Cody , at para. 70, the serious nature of the offences alleged. [72] The trial judge observed that the assessment was difficult: “Up until the first trial date Crown counsel conducted themselves impeccably in [avoiding delay]. They repeatedly and vigorously pushed the system for quicker settings. In marked contrast, up until the first trial date, the defence caused delay and showed no interest in pushing the case forward”. He noted that the Crown made a “major misstep” in refusing to consent to the defence re-election when the jury trial was adjourned, and that, without considering the transitional exceptional circumstance, a stay would have resulted. The trial judge’s analysis continued, at paras. 274-78: I cannot and do not ignore the Crown’s major misstep. The Crown was aware of the s. 11(b) problem and did not react well. But the analysis here is not limited to one misstep by one party, rather it must be contextual in consideration of all of the circumstances. I am fully aware of the following admonition in Jordan , at para. 98: [T]he s. 11(b) rights of all accused persons cannot be held in abeyance while the system works to respond to this new framework. Section 11(b) breaches will still be found and stays of proceedings will still be entered for cases currently in the system. For example, if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework. The analysis must always be contextual. We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case. The Jordan decision brought radical changes to our courts. The Supreme Court seeks to effect real change. The Court was fully aware that change takes time. It was sensitive to the need for time to adapt. The necessary changes, even now, continue to be identified. The hard cap numbers and the math are the easy part. More difficult is an understanding of the needed adaptations to conform to the framework’s bright-line rules. The pace and the rhythm of cases flowing through the system must change. How to effect the change is not easy to grasp nor to effect. The course of a river is never easy to alter. There is no question here that Crown counsel was aware of the Jordan decision within weeks of its release. Crown counsel referred to Jordan by name in the OCJ when pressing for quicker dates. But awareness of the presumptive ceiling and the need for speed are the easiest lessons of Jordan . Jordan introduced a totally new framework with new concepts and new definitions: defence delay, discrete exceptional circumstances, particularly complex cases, and transitional exceptional circumstances. The precise meaning of these new concepts continues to be refined in court cases more than two years after the release of Jordan . It is the full understanding of the lessons of Jordan that Crown counsel and the courts lagged in their adjustment in this case. This is most notable in the OCJ where the case stalled, quite unnecessarily in most instances, without understanding. No longer can the courts in the OCJ unquestioningly go along with defence requests for delay before setting a JPT. The JPT is intended to advance cases, including as the forum to identify and resolve disclosure issues. The JPT should not evolve into a mechanism to retard cases. And, perhaps unfortunately, no longer can the Crown and the courts accommodate the defence in extending preliminary hearings for defence discovery without holding the defence responsible for that extra time. These too are lessons of Jordan to which we must adapt. Viewing this case as a whole, in the OCJ while the Crown was pushing and making commendable efforts to be fair, the defence sat back, complained generally about disclosure, and let the time-clock keep ticking. Then, on the edge of the Jordan cliff, the Crown was confronted by a serious delay-causing event. The Crown did not respond well. If my assessment rests on this Crown decision, the Crown loses. But it cannot and does not rest on that decision. And this is not a case where the Crown made repeated missteps. I am to assess contextually and qualitatively. In that assessment, I find that the Crown has established that the time it will take to try this case is justified based on the parties’ reasonable reliance on the law as it previously existed. [Emphasis added.] [73] The trial judge properly considered not only the delay that was occasioned by the Crown’s misstep, but also the overall progress of the case, when he concluded that the parties had not yet adapted to the lessons of Jordan . He aptly observed that Jordan introduced new concepts and definitions that the case law was continuing to interpret. Although the parties may have been aware of Jordan , they had not had sufficient time to adapt to its lessons. As an example of the time taken to adapt, the trial judge referred to the continued conduct of the defence in delaying setting a judicial pre-trial which persisted both before and after the release of Jordan . [74] As the appellant notes, this court’s decisions in Gordon and Picard were released in 2017, about a year after Jordan . I do not, however, agree with the appellant that these cases would have made it clear to the Crown that its refusal to consent to a re-election would necessarily lead to a stay. Nor do I agree with the appellant that the Crown’s “misstep” was a tactical decision that ignored the teachings of Jordan and manifested the culture of complacency that Jordan was meant to eradicate. [75] In both Gordon and Picard , the transitional exceptional circumstance was applied where the net delay well exceeded the Jordan threshold (44 months in Gordon and 40 months in Picard ). In Gordon , this court deferred to the decision of the trial judge to refuse a stay, notwithstanding that the Crown’s refusal to accept the accused’s re-election in part caused a nine-month delay. Doherty J.A. saw “no reason to disagree with the factual findings underlying the trial judge’s allocation of the various time periods”: at para. 22. Noting that the Crown’s decision must be considered in the context of other steps the Crown took at about the same time, in attempting to shorten the trial and to obtain earlier dates for a jury trial, and that there was no evidence of any repeated mistakes or missteps by the Crown that contributed to the delay, he stated that “[p]laced in its proper context, the Crown’s refusal to consent to a re-election in June 2014 cannot be described as a ‘misstep’. Nor does it reflect the ‘culture of complacency’ that so concerned the court in Jordan ”: at para. 26. He went on to observe, at para. 27, that “[t]he Crown’s decision to keep the jury and consequently delay the trial, while probably unreasonable in the context of the ‘hard cap’ approach in Jordan , was reasonable in the context of the Morin analysis as applied to the chronology of this case”. The delay in the case was well within the Morin guidelines. Additional factors weighing against granting a stay under Morin were the fact that the case was moderately complex and the seriousness of the offences. [76] Picard involved the appeal of a stay of a murder charge. This court allowed the appeal, concluding that the trial judge, among other things, erred in law in refusing to consider the transitional exceptional circumstance after finding that Crown and institutional delay exceeded the guidelines under the Morin framework. Rouleau J.A. concluded that the delay was under the Morin guidelines. He also disagreed with the trial judge’s characterization of the Crown’s refusal to accept earlier trial dates and to expedite the trial based on the unavailability of the two assigned Crowns as an example of the Crown making a choice that “paid no heed to the accused’s s. 11(b) rights”: at para. 133. Rouleau J.A. noted that, “as a result of the decision in Jordan , a decision such as the one the Crown made in this case would weigh heavily against the Crown and might in fact be determinative as to whether a stay should issue”: at para. 130. Because this was a transitional case, however, he went on to consider whether the delay was justified by the transitional exceptional circumstance. He referred to excerpts from Jordan noting that it will be relatively rare for the delay in cases already in the system when Jordan was decided that complied with Morin to be found unreasonable under Jordan , and he observed that this was not a case where the parties had time following the release of Jordan to correct their behaviour. The few months of delay that accrued after Jordan were not enough time for the parties and court to adapt. Noting that this was a difficult case, and after weighing all of the factors, he concluded that the delay above the presumptive Jordan ceiling was justified by the transitional exceptional circumstance: at paras. 137-141. [77] The appellant focuses on the fact that most of the delay in Gordon and Picard was pre- Jordan and on the comments in each case suggesting that the result might have been different under a Jordan analysis. However, this is precisely what the trial judge observed in the present case – under the “hard cap” approach in Jordan (to echo Doherty J.A. in Gordon ), a stay would have resulted. As a transitional case, however, it warranted an evaluation as to whether the delay was nevertheless justified because of the time required to adapt to the lessons of Jordan . [78] The trial judge properly considered the factors that supported the existence of a transitional exceptional circumstance. He accepted the points raised in this court by the appellant: first, that the pre- Jordan delay was only 6.5 months, and that Crown counsel was aware of Jordan and its implications as soon as it was released, and second, that the Crown had made a “serious misstep” in not accepting the appellant’s re-election, which would have avoided the s. 11(b) issue. Importantly, however, he noted that the precise meaning of the new concepts introduced in the Jordan framework continued to be refined some two years after Jordan had been decided. This is an important observation in the context of this case: the case law was evolving, and the Crown might well have concluded that the trial delay that occurred just prior to the estimated Jordan ceiling date would qualify as a discrete exceptional circumstance or be attributed in part to the defence or that, based on Gordon and Picard , there was a transitional exceptional circumstance. [79] The trial judge also looked at the overall pace of the case, observing as an example of the time to adapt, the stalling of the case in the OCJ because of defence counsel’s repeated adjournment requests. Some delay preceded Jordan but there was little change in the defence approach even after Jordan was released. The trial judge properly, in my view, took into consideration the overall Crown and defence approaches to the progress of the case, as well as the fact that “on the edge of the Jordan cliff” the Crown made one serious misstep. This informed the trial judge’s assessment that the Crown had established that the time it will take to try this case is justified based on the parties’ reasonable reliance on the law as it previously existed. [80] As the authorities recognize, a trial judge is in the best position to evaluate, in a transitional case, whether the overall delay was justified by the transitional exceptional circumstance. The trial judge here, after considering all of the factors, and with due regard for the fact that only about six months of the case occurred pre- Jordan , carefully explained why he had reached his decision. He concluded that the parties had not had sufficient time to adapt to the lessons of Jordan after properly considering not just the Crown misstep that pushed the case over the Jordan threshold, but the conduct of both parties throughout. The conclusion that the delay was justified by the transitional exceptional circumstance reveals no error in law, and is entitled to deference. [81] For these reasons, I would reject the appellant’s argument that the trial judge erred in applying the transitional exceptional circumstance. III. THE ALLEGED ERRORS IN THE CHARGE [82] The appellant submits that, based on three passages from the jury charge, the trial judge erred by instructing the jury that its decision on the ultimate issues would depend on which version of events it accepted. In doing so, the trial judge framed the case as a credibility contest, shifting the burden of proof to the appellant and undermining the presumption of innocence. Apart from the impugned passages, the appellant takes no objection to the trial judge’s instructions. Nevertheless, the appellant asserts that the trial judge’s error, based on the three impugned passages, renders the verdict unsafe and necessitates a new trial. [83] The Crown contends that the appellant’s argument must fail for three reasons. First, it is undermined by the jury’s verdict. The jury acquitted the appellant of murder and attempted murder, and found him guilty of manslaughter and discharge with intent to wound. There was no path to this outcome if the jury had felt compelled to accept one of the two conflicting versions of events in its entirety. Second, the whole of the charge shows that the trial judge took care to emphasize, on several occasions, that the jury must consider all the evidence in making its findings and should not treat the case as a credibility contest. Third, defence counsel did not raise any objection to the adequacy of the charge on this issue. (1) The Two “Versions” of the Events [84] The Crown alleged that the appellant had intentionally shot two individuals with the intent required for murder: Alekesji Guzhavin, who died at the scene, and Gregory Henriquez, who survived, but was paralyzed, and testified by video at the trial. The appellant acknowledged that he had shot both men, but asserted that the shootings were not intentional, and that they occurred in defence of himself and his family. [85] From the outset of the trial, it was apparent that there were two “versions” of the events, that of Mr. Henriquez and that of the appellant, and that these two versions differed both in broad terms and in their respective details. The defence position, supported by the appellant’s evidence, was that he wrestled a gun from Mr. Guzhavin and, in self-defence and defence of his family, shooting blindly, he shot both men. According to Mr. Henriquez’s version, which was relied on by the Crown, the appellant turned on him and Mr. Guzhavin with a gun, shooting Mr. Henriquez as he was fleeing, and then shooting Mr. Guzhavin. While there was a great deal of other evidence – including the testimony of police officers about their observations of the scene, forensic evidence about the bullet wounds to the two victims, and a recording of gun shots – the appellant and Mr. Henriquez were the only eye-witnesses to the events. [86] The fact that there were “competing”, “conflicting” or “different” versions of the events was obvious to everyone in the courtroom, and a repeated refrain of counsel and the trial judge. Indeed, during closing arguments, defence counsel focussed on comparing the accounts of the events proffered by the Crown and the appellant, pointing to aspects of the two “versions” on more than 15 occasions, and urging the jury to reject Mr. Henriquez’s version of what occurred and to accept some or all of the appellant’s version. The trial Crown referred to the two “versions” of events on some five occasions. The trial judge referred to the different “versions” throughout his charge, including in his summary of the defence and Crown positions, using wording provided by counsel. [87] The issue is not whether the trial judge erred in his characterization of the two accounts as different “versions” that could not both be true, and in his repeated reference to aspects of the evidence of the two eye-witnesses as “versions”. Rather, the question is whether the jury was properly instructed with respect to (a) the approach they needed to take in assessing the evidence, and in particular the evidence of the appellant, in circumstances where Mr. Henriquez had provided conflicting evidence; and (b) the burden of proof. (2) Relevant Legal Principles [88] The legal principles that are applicable to the analysis of this ground of appeal can be stated briefly. [89] First, the general rule is that a jury should not be left with the impression that they can or should decide a case based on whether they accept either the accused’s evidence or the Crown’s evidence. It is essential that the jury understand that they must acquit if, without believing the accused, and after considering the accused’s evidence in the context of the evidence as a whole, they have a reasonable doubt as to his guilt: W.(D.) , at p. 757. [90] Second, the adequacy of jury instructions is not determined according to the interpretations that might be given to select or isolated passages from a charge. Any alleged deficiencies must be assessed in the context of the entire charge and the trial as a whole. It is an error to examine minute details of the charge in isolation, as it is the overall effect of the charge that matters: R. v. Araya , 2015 SCC 1, [2015] 1 S.C.R. 581, at para. 39. Where, as here, the contention is that the trial judge erred in suggesting that the jury should choose between competing versions, and in effect depart from a proper W.(D.) analysis, the question is whether the charge when read as a whole makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof: W.(D.) , at p. 758. [91] Third, it is relevant in determining whether there was a misdirection to consider whether the deficiency in the charge alleged on appeal was raised at first instance. While “failure to object to jury instructions is not determinative on appeal”, it nonetheless “says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection”: Araya , at para. 51, citing R. v. Jacquard , [1997] 1 S.C.R. 314, at para. 38. (3) The Impugned Passages [92] The passages relied on by the appellant as reflecting a misdirection arise in the context of the trial judge’s instructions on self-defence. The first excerpt appears at p. 71 of the transcript of the charge, when the trial judge stated: I suggest to you that the major issue for you to decide is whether Dia Hanan was acting in lawful self defence when he shot Alekesji Guzhavin and Gregory Henriquez. Intention is also an issue; did Mr. Hanan have the required intent for murder when he shot Alekesji Guzhavin and did he have the required intent for attempt murder when he shot Gregory Henriquez. The resolution of these issues, I suggest to you, is driven in large part on which version you accept. The two versions you have heard cannot both be true. Of course, you must resolve this decision according to the law as given to you. In making your assessment, you may find it helpful to examine the physical and independent evidence you do accept to see whether each version is consistent or inconsistent with that evidence. [Emphasis added.] [93] The appellant also contends that the jury was misdirected in two additional passages from the charge relating the reasonableness element of self-defence. In relation to self-defence in the killing of Mr. Guzhavin, the trial judge stated at pp. 89-90: The reasonableness of the shooting of Mr. Guzhavin by Mr. Hanan is largely dependent on which of the two conflicting versions you accept. According to Mr. Hanan, Mr. Guzhavin, with the assistance of Mr. Henriquez, was extorting money from him at gunpoint and threatening to involve Mr. Hanan’s family. According to Mr. Henriquez, although he did not know Mr. Hanan at all and did not know Mr. Guzhavin well, nothing was violent or threatening at the scene until he saw Mr. Hanan with a gun shooting Mr. Guzhavin. You may conclude that shooting Mr. Guzhavin under Mr. Hanan’s version is reasonable but shooting Mr. Guzhavin under Mr. Henriquez’s version is unreasonable. Again you may find that the resolution of this issue hinges upon which version is accepted . [Emphasis added.] [94] And in relation to the reasonableness of the appellant’s shooting of Mr. Henriquez, the trial judge stated at pp. 110-111: Was it reasonable to shoot Mr. Henriquez? The answer again is largely dependent upon which version is accepted. If you accept the version of Mr. Hanan that Mr. Henriquez was shot during or immediately after the struggle over the gun, then you approach your assessment from that point of view to determine whether the shooting of Mr. Henriquez was reasonable under all the circumstances. If, on the other hand, you accept the evidence of Mr. Henriquez that he was shot in the back while trying to run away, then you may consider the reasonableness of such conduct. [Emphasis added.] [95] In each passage, according to the appellant, the trial judge framed the case as an either/or contest between duelling versions, and “corralled the jury” into accepting either the appellant’s version or Mr. Henriquez’s version, to the exclusion of a third possibility where neither version was accepted. Moreover, the trial judge suggested that the appellant could be acquitted only if his version was accepted, shifting the burden to the appellant to prove his innocence. (4) Discussion [96] When the impugned passages are considered, as they must be, in the context of the trial judge’s very clear instructions on the assessment of the evidence, and the live issues in this trial, I am satisfied that there is no reasonable prospect that the jury would have understood that they were to decide what happened by simply choosing between competing accounts. The trial judge provided careful and detailed instructions about the legal elements of the defence of self-defence, identified the questions the jury was to determine, and related the evidence to those questions. The jury was not misdirected on how they were to approach the evidence or on the burden of proof. [97] First, the impugned passages were preceded and followed by detailed and appropriate instructions about how the jury should approach their task when dealing with two different versions of events. [98] Early in the charge, at page 10 of the transcript, under the heading “Burden of Proof in a Conflicting Versions Case” (the jury was provided with a written copy of the charge), the trial judge presented a summary of the evidence of each of the appellant and Mr. Henriquez about what happened at the scene. He then instructed the jury on how they should approach the evidence of these two witnesses, referring back to instructions he had given earlier on the burden and standard of proof. He cautioned the jury specifically that they were not to choose between two versions, but to decide whether, on all the evidence, or the lack of evidence, the Crown had proven its case against the appellant beyond a reasonable doubt. The trial judge stated, at p. 12: When deciding this case, I remind and caution you to never forget my instructions I just gave you on the burden and standard of proof. The Crown always has the burden to prove the guilt of Mr. Hanan. That burden never shifts to the defence. So, when you are confronted with two conflicting versions, as you are here, you do not approach it asking which version do you prefer. You do not decide this case on which version you prefer. This is not a contest between duelling versions, and you must not approach it in that fashion. You are not here to make that kind of choice. Rather, you must decide whether, on all the evidence, or the lack of evidence, the Crown has proven its case against Mr. Hanan beyond a reasonable doubt. [Emphasis added.] [99] This was immediately followed, at pp. 12-13, by an instruction on how to approach the appellant’s testimony and a W.(D.) instruction: Dia Hanan has testified. You will assess his evidence in the same way that you assess the testimony of any other witness. Recall what I said to you earlier about how to decide how much or how little you believe of and rely upon the testimony of any witness. You may believe some, none or all of Mr. Hanan’s testimony. However, when an accused person testifies at his trial, as Mr. Hanan did here, because of the law on presumption of innocence and burden of proof as I instructed you, the law requires you, the fact finder, to approach your ultimate decision making in a particular manner. First, if you believe Dia Hanan’s evidence that he did not commit the offence as charged, that all his actions were in lawful self defence, you must find him not guilty. Second, even if you do not believe Dia Hanan’s evidence, if it leaves you with a reasonable doubt about his guilt, about an essential element of an offence charged, or about self defence, you must find him not guilty of that offence. Third, even if Dia Hanan’s evidence does not leave you with a reasonable doubt of his guilt, about an essential element of the offences charged, or about self defence, you may convict him only if the rest of the evidence that you do accept proves his guilt beyond a reasonable doubt. To make your decision, you should consider carefully, and with an open mind, all the evidence presented during the trial. It will be up to you to decide how much or little you will believe and rely upon the testimony of any witness. You may believe some, none or all of it. [100] The trial judge repeated this specific direction later in the charge after his instructions on the intent required for murder, at pp. 96-97 of the transcript, under the heading, “Reminder of How to Assess Conflicting Versions”. [101] The trial judge provided similar instructions on a number of occasions throughout the charge, as he addressed the specific elements of each offence and the defence of self-defence, on each occasion tailoring the instructions to the particular issue, after summarizing the relevant evidence and relating it to the particular element. In fact, specific instructions of this nature were provided immediately after both of the second and third passages criticized by the appellant. The appellant does not take issue with any of these instructions. [102] Second, it is important to note that the trial judge never suggested to the jury that they were to accept the whole of the testimony of either the appellant or Mr. Henriquez; to the contrary, he repeatedly emphasized that they could accept, some, all or none of the evidence of any witness, including the two eye-witnesses. The jury was not invited to choose between the entire accounts provided by the two eye-witnesses, nor did they do so. There were many details within the testimony of each, for example, Mr. Henriquez’s evidence about the appellant pointing the gun at Mr. Guzhavin and saying, “Die, motherfucker, die”. Clearly, by its verdict, the jury did not accept this part of Mr. Henriquez’s evidence. [103] In some instances, the trial judge used the word “version” to refer to the broad outlines of the evidence of the defence and Crown positions: that the appellant, acting in self-defence, grabbed the gun from Mr. Guzhavin and started shooting, or that the appellant pulled out a gun and shot Mr. Guzhavin and Mr. Henriquez, without any prior violence. On other occasions, the trial judge referred to specific aspects or details of the evidence of the appellant and Mr. Henriquez as “versions” in the course of relating the evidence to a particular issue. [104] This is what occurred in the second and third passages criticized by the appellant. These impugned passages are from the trial judge’s instructions on the “reasonableness” of self-defence, first in relation to the shooting of Mr. Guzhavin, and then in relation to the shooting of Mr. Henriquez. [105] The trial judge, after explaining what was meant by the “reasonableness element”, reviewed the evidence that was relevant to the jury’s determination of this issue. It was in this context that, in the second impugned passage, he identified as “conflicting versions” the appellant’s evidence that Mr. Guzhavin and Mr. Henriquez were extorting money from the appellant at gunpoint, and threatening to involve his family, and Mr. Henriquez’s evidence that, although he did not know the appellant at all and did not know Mr. Guzhavin well, nothing was violent or threatening at the scene until he saw the appellant with a gun shooting Mr. Guzhavin. The trial judge properly instructed the jury that they might conclude that shooting Mr. Guzhavin under the appellant’s version was reasonable but shooting him under Mr. Henriquez’s version was not. He went on to review other evidence that the jury might examine, as well as the reasonableness of the different versions, in relation to the parties’ physical sizes, and the evidence about the presence or absence of injuries. He concluded his discussion with a direction on reasonable doubt. [106] The third impugned passage reflects a similar approach, where, in instructing the jury on the reasonableness element of self-defence in relation to the shooting of Mr. Henriquez, the trial judge referred to the two “versions” being the appellant’s evidence that Mr. Henriquez was shot during or immediately after a struggle over the gun, and Mr. Henriquez’s evidence that he was shot in the back while trying to run away. [107] When these passages are read in context, it is apparent that the trial judge, in referring to the two “versions”, was reminding the jury of the evidence of the two eye-witnesses that was relevant to their determination of the “reasonableness” of the appellant’s conduct, as an element of self-defence. This was a necessary instruction for the jury to relate the evidence to the reasonableness element of self‑defence, in order that they might make the required finding of fact and approach the question of the reasonableness of the appellant’s conduct in the context of each of these factual circumstances. Indeed, the trial judge concluded each of these passages with a reminder that the jury should consider all of the evidence, and a reasonable doubt instruction. [108] The trial judge did not, as the appellant asserts, set up a choice between two competing versions, suggesting to the jury that, unless they accepted the appellant’s account, they had to convict him. Rather, he helped the jury to focus on how to approach the reasonableness issue, depending on their assessment of the evidence. [109] Third, the appellant’s reliance on R. v. Austin (2006), 214 C.C.C. (3d) 38 (Ont. C.A), is misplaced. In that case, which involved sexual assault charges, the jury had asked several questions during their deliberations, including how reasonable doubt related to the assessment of witness credibility. The trial judge’s answer invited the jury to decide the case based on who they believed, without regard to the requirement that the Crown prove the case beyond a reasonable doubt. The jury was led to believe that its task was to determine which of two versions of an event was true. The jury was not instructed that, if it could not decide whose story to believe, it must acquit. [110] The appellant argues that the trial judge deprived the jury of the same understanding in this case. However, unlike what happened in Austin , the trial judge here did not lead the jury to believe that its task was to determine which of the versions – that of the appellant or that of Mr. Henriquez – was true. In the context of all of the other instructions given by the trial judge, it would have been clear that the trial judge, just as counsel had done, was drawing the jury’s attention to the different details in the competing narratives. The trial judge provided detailed instructions on how the jury should approach the evidence, including specific instructions that this was not a choice between the two accounts, repeated references to the need to assess all of the evidence, and the reminder that they could accept, some, all or none of a witness’s evidence. [111] The trial judge methodically addressed the elements of each of the offences and of the defence of self-defence. In each instance, he reminded the jury of the relevant evidence (including relevant parts of the testimony of the appellant and Mr. Henriquez), and he related the evidence to the particular element. He instructed the jury on how to approach the evidence, repeatedly instructing the jury that “you may find that the physical and independent evidence may assist you in your assessment of the conflicting evidence”. In respect of each element, he reminded the jury of the Crown’s burden of proof beyond a reasonable doubt – whether to prove an element of the offence, or to negate an element of self‑defence. It was never suggested that the jury had to decide which version in its entirety was believed, or more importantly, that in order to acquit, the jury had to accept all the details of the appellant’s version. [112] Fourth, the fact that the objection now raised on appeal was not raised by defence counsel at trial is significant. The pre-charge conference extended over several days, with multiple drafts of the jury charge provided to counsel. Defence counsel, although making many submissions and suggestions for changes to the draft, including on the defence of self-defence, did not express any concern about the language that the appellant points to in this appeal. As the Supreme Court noted in Araya , at para. 51: It is also relevant that Mr. Araya’s trial counsel (not counsel on appeal) — the person in the courtroom most attuned to Mr. Araya’s interests — did not object to the allegedly confusing and insufficient instruction at trial. This failure to object suggests that the phrasing of this instruction, heard in its full context in the courtroom, did not sound likely to confuse or to invite improper reasoning. This Court has stated that while defence counsel's failure to object to jury instructions is not determinative on appeal, it nonetheless “says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection”: Jacquard , at para. 38. [113] I would therefore not give effect to this ground of appeal, and would dismiss the conviction appeal. IV. SENTENCE APPEAL [114] The appellant seeks leave to appeal his sentence of 15 years’ imprisonment, less 23 months’ credit for pre-sentence custody and 6 months’ credit for restrictive bail conditions (an effective global sentence of 12 years and 7 months). He was sentenced to 12 years and 7 months for the manslaughter of Mr. Guzhavin, 3 years concurrent for possession of a loaded restricted firearm without a license; and 10 years concurrent for discharge of a firearm at Mr. Henriquez with intent to wound. (1) The Parties’ Positions [115] The appellant submits that the trial judge imposed a demonstrably unfit sentence and that eight years’ imprisonment would have been a more appropriate global sentence. He raises two arguments in support of this submission. First, he says that the trial judge sentenced him for murder rather than manslaughter on the basis that, immediately before passing sentence, the trial judge said, “Mr. Hanan, you unlawfully and intentionally ended the life of one person and forever crippled the life of another.” The appellant also submits that the trial judge engaged in flawed reasoning in accepting the “core” of Mr. Henriquez’s version. This “core”, the appellant says, led to the inevitable conclusion that Mr. Hanan had the intent for murder, which is inconsistent with the verdict the jury reached. [116] In response, the Crown contends that the appellant’s argument about mens rea lifts the trial judge’s statements out of context, and when his reasons are considered as a whole, it is clear that the trial judge did not sentence the appellant as though he had the mens rea for murder. Moreover, the appellant’s evidence was a hybrid of self-defence and accident. As such, when the trial judge spoke to the appellant and said that he “intentionally” ended one person’s life, after saying he lacked the “intent to kill”, it is clear he was referring to the appellant’s intention to shoot the victims (i.e., this was no accident), not to kill them. [117] The appellant’s second argument is that the trial judge erred in finding that he brought the gun to the scene. This finding could only have been based on Mr. Henriquez’s evidence, which the jury must have rejected because it found the appellant not guilty of murder. The appellant submits that the trial judge erred in failing to follow the rule that a trial judge must accept the factual implications of the jury’s verdict. [118] For its part, the Crown contends that the appellant’s second argument relies on the false premise that there was a wholesale rejection of Mr. Henriquez’s evidence by the jury, instead of just parts of it. In any event, after reviewing the evidence in detail, the trial judge made his own finding that the appellant brought the gun. (2) Discussion [119] While I would grant leave to appeal the sentence, I would dismiss the sentence appeal. [120] The trial judge provided comprehensive and thorough reasons for the sentence he imposed. There is no suggestion that he erred in his articulation of the relevant sentencing principles, and in his assessment of the relevant factors, including mitigating and aggravating factors. It is clear, from a review of the reasons as a whole, that the trial judge, despite using the language of “intention”, did not sentence the appellant for an intentional killing; rather, he properly concluded that the shooting was intentional, in that it was not accidental, but that the appellant did not shoot with intent to kill. At para. 2 of his sentencing reasons the trial judge stated: Mr. Hanan intentionally and unlawfully shot two people killing one and paralyzing the other. He did not act in lawful self-defence. He shot without an intent to kill. He shot with a handgun that was illegal for him to possess. This is the conduct for which Mr. Hanan now is being sentenced. [121] Later in his reasons, under the heading “Circumstances of the Offence”, the trial judge provided a similar summary, referring to the fact that the appellant “intentionally and unlawfully shot” the victims and that he “shot without an intent to kill”. [122] It is true that in the passage of the transcript relied on by the appellant, the trial judge addressed him directly and said that he “unlawfully and intentionally ended the life of one person and forever crippled the life of another”. However, the entirety of his reasons make it clear that the trial judge sentenced for the offences that were committed by the appellant, and not as though he had intentionally killed, that is, murdered, Mr. Guzhavin. [123] I also do not accept the appellant’s submission that the trial judge’s conclusion that the killing was intentional was based on his faulty reasoning that, by its guilty verdict on manslaughter and the two firearm offences, the jury “rejected Mr. Hanan’s version of the shooting and accepted the core of Mr. Henriquez’s version”, which according to the appellant was consistent only with an intentional killing. [124] In their submissions on sentencing, counsel asked the trial judge to make findings of fact with respect to four matters: (1) who brought the gun to the scene of the shootings; (2) how the shootings happened; (3) whether Mr. Henriquez was shot in the back; and (4) whether the shooting caused Mr. Henriquez’s paralysis. The trial judge agreed to do so, after concluding that such findings were necessary in order to impose an appropriate sentence for each offence. [125] With respect to the first two issues, which are relevant here, the trial judge reasoned that, based on the jury’s verdicts, they must have concluded that (1) the appellant brought the gun to the scene, and (2) the shooting happened as per the “core” of Mr. Henriquez’s version. However, he went on to make independent findings on each issue, in the event that he was incorrect in his conclusions with respect to the findings based on the jury’s verdicts. In doing so, he carried out a careful analysis of the evidence at trial, explaining why he rejected the appellant’s evidence on each issue, why it did not leave him with a reasonable doubt, and why he made the findings based on his acceptance of certain aspects of Mr. Henriquez’s evidence and the other evidence at the trial. [126] Contrary to the appellant’s submission, in referring to the “core” of Mr. Henriquez’s evidence, the trial judge did not say that his evidence in its entirety was accepted, including that the appellant shot Mr. Guzhavin at point blank range, while saying “Die, motherfucker, die” (which could only have been consistent with an intentional killing). Indeed, in his analysis, the trial judge pointed to several problems with the evidence of Mr. Henriquez, who was a “classic” Vetrovec witness, and, in making his findings of fact, he did not accept the entirety of Mr. Henriquez’s account. Rather, the “core” of Mr. Henriquez’s evidence was described by the trial judge as follows, at para. 100: With regard to the core of the evidence of Mr. Henriquez – that he was only peripherally involved in the discussions between Mr. Guzhavin and Mr. Hanan; that Mr. Guzhavin never threatened Mr. Hanan with a gun in front of Mr. Henriquez; that Mr. Hanan did not grab a gun out of the hand of Mr. Guzhavin leading to a struggle for the gun involving Mr. Henriquez; that all was calm until he looked up to see Mr. Hanan pointing a gun at Mr. Guzhavin and then shooting him; that on seeing Mr. Hanan shooting Mr. Guzhavin, Mr. Henriquez turned and started to flee up the driveway; and that he was shot twice as he was fleeing, the last shot being in his back which knocked him face down on the driveway – I believe Mr. Henriquez. [127] The fact that the trial judge said that the jury (and he) accepted the “core” of Mr. Henriquez’s evidence does not mean that the trial judge concluded that the killing of Mr. Guzhavin was intentional and that he then proceeded to sentence the appellant for murder. [128] The appellant’s second argument in support of his submission that the sentence was demonstrably unfit is that the trial judge erred in his factual finding that he, not Mr. Guzhavin, brought the gun to the shooting. The appellant submits that this finding was not open to the trial judge because it is inconsistent with the jury’s verdict. According to the appellant, when the jury found him not guilty of murder, it necessarily rejected Mr. Henriquez’s evidence. Because Mr. Henriquez’s evidence was the only evidence that the appellant brought the gun, the jury’s rejection of Mr. Henriquez’s evidence meant that the trial judge’s determination that the appellant brought the gun was contrary to the factual implications of the jury’s verdict. [129] I would reject this submission. Although the appellant faulted the trial judge for allegedly presenting the jury with an “all or nothing” contest between the differing narratives, he takes the same erroneous approach in his submission on this point. The appellant’s “all or nothing” approach to the evidence of Mr. Henriquez is inconsistent both with the trial judge’s instructions to the jury about the assessment of the evidence of Mr. Henriquez and other witnesses, and the trial judge’s findings on sentencing. The fact that the jury found the appellant not guilty of murder does not mean that they rejected all of Mr. Henriquez’s evidence. As the trial judge noted, they must have accepted the “core” of his evidence, which the trial judge described, and I have set out above. [130] For these reasons, I would not give effect to the appellant’s submissions on the sentence appeal. The trial judge did not make the errors the appellant asserts, and there is no basis for interfering with the global sentence of 15 years, which was, in all the circumstances, a fit sentence. V. DISPOSITION [131] For these reasons I would dismiss the conviction appeal and, after granting leave to appeal the sentence, I would dismiss the sentence appeal. “K. van Rensburg J.A.” “I agree. M. Tulloch J.A.” Nordheimer J.A. (dissenting): [132] I have read the reasons of my colleague. I do not agree with the conclusion that she reaches. In my view, there was a breach of s. 11(b) of the Canadian Charter of Rights and Freedoms in this case and the charges should be stayed. Further, even if a breach of s. 11(b) had not been made out, I would find that there was a serious error in the trial judge’s instructions to the jury such that the verdict cannot stand. The matter would have to be remitted for a new trial. Given my views on these two issues, I do not reach the appellant’s sentence appeal. [133] My colleague has set out the background facts. It is unnecessary for me to repeat them, except insofar as I must address the attribution of delay and certain aspects of the jury instructions. A. Section 11(b) (i) Defence delay [134] As my colleague has set out, there are two relevant periods at issue: (a) the four and one-half month period between January 21 and June 9, 2016, when the defence refused to set a judicial pre-trial based on incomplete and ongoing disclosure; and (b) the period commencing June 3, 2019, when a six-week trial date was offered but the defence was not available, with the result that the trial did not proceed until October 28, 2019. [135] I agree with my colleague’s conclusion on the proper treatment of the first of these two periods, for the reasons that she has given. The first period of delay is properly attributable to the defence arising out of its failure to agree to setting a date for the judicial pre-trial because of disclosure issues. It is well-established that disclosure does not need to be complete in order for the parties to agree to a pre‑trial date. I accept that, if the state of the disclosure is such that conducting a judicial pre-trial would be futile, then the refusal by the defence to agree to a judicial pre-trial date should not be laid at the feet of the defence. However, in this case, the defence did not make that point at the time. It is too late to now make it when the state of the disclosure cannot be examined or fully explained. [136] I am also prepared to agree with my colleague’s treatment of the second period of delay starting on June 3, 2019. Like my colleague, I reject the Crown’s contention that the entire period of the delay between the two trial dates should be attributable to the defence. In so agreeing, however, I should not be taken as agreeing with the deduction of the six-week period when defence counsel could not proceed because of another trial commitment. In my view, that deduction is not consistent with the decision in R. v. Godin , 2009 SCC 26, [2009] 2 S.C.R. 3, where Cromwell J. said, at para. 23: Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11( b ) purposes, require defence counsel to hold themselves in a state of perpetual availability … “To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled , is not reasonable.” [Emphasis added.] [137] In this case, defence counsel had another trial set for that timeframe involving a client who was in custody. It is the antithesis of reasonable cooperation to hold that defence counsel, who is otherwise scheduled for trial, must essentially abandon another client in order to take a re-scheduled trial date, or face the consequence that the resulting delay will be attributed to the defence. However, as the appellant did not take issue with the deduction of this six-week period in this case, it is unnecessary to resolve the issue, notwithstanding that the Crown took issue with the whole period of delay and its proper attribution. (ii) Transitional exceptional circumstance [138] Where I do part company with my colleague is respecting her agreement with the trial judge that the transitional exceptional circumstance could be relied upon to excuse the delay over the Jordan ceiling. Unlike my colleague, I find that the trial judge erred in his reliance on that principle to excuse the delay in this case. [139] The approach to the transitional exceptional circumstance is set out in Jordan at para. 96. The court said the “transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed.” [140] There is no basis for applying the transitional exceptional circumstance in this case since it is clear that the parties were not relying on that pre-existing law. The parties were well aware of the Jordan requirements at an early stage of this proceeding. The decision in Jordan was released only seven months after the charges were laid in this case and four months before the first judicial pre-trial was held. One clear indication that the parties were not relying on the pre- Jordan law are the discussions about Jordan , and delay that occurred, during the course of scheduling that judicial pre-trial. [141] My colleague refers to this problem and quotes a significant portion of the trial judge’s reasons on it. I reproduce just the portion of that quotation to which my colleague added emphasis, but without repeating the emphasis: But awareness of the presumptive ceiling and the need for speed are the easiest lessons of Jordan . Jordan introduced a totally new framework with new concepts and new definitions: defence delay, discrete exceptional circumstances, particularly complex cases, and transitional exceptional circumstances. The precise meaning of these new concepts continues to be refined in court cases more than two years after the release of Jordan . It is the full understanding of the lessons of Jordan that Crown counsel and the courts lagged in their adjustment in this case. [142] With respect, the “totally new framework with new concepts” is a vast overstatement of what Jordan established. Defence delay, exceptional circumstances, and complex cases are not new concepts. Defence delay was part of the R. v. Morin , [1992] 1 S.C.R. 771, process: see Morin , at pp. 790-91 and 793‑94. Exceptional circumstances is a concept that has been applied in our law for decades in a variety of different contexts. And we are all familiar with determining whether individual cases are, or are not, complex. If Crown counsel and the courts “lagged in their adjustment” to the requirements of Jordan , that simply reflects a continuation of the “culture of complacency” that was criticized in Jordan . It does not provide an excuse for the delay. [143] It remains the fact that only a very small portion of the delay in this case preceded the decision in Jordan and most, if not all, of that delay has been laid at the feet of the defence. The delay for which the Crown and the courts in this case bear responsibility occurred well after the Jordan decision. It is improper to take refuge in the fact that this case had a scant few months prior to Jordan as providing a justification for the delay in this case. To do so fundamentally undermines the change in culture that the decision in Jordan was trying to achieve. [144] In terms of the decisions of this court to which the respondent referred, my colleague correctly points out that most, or all, of the delay in R. v. Gordon , 2017 ONCA 436, 137 O.R. (3d) 776, and R. v. Picard , 2017 ONCA 692, 137 O.R. (3d) 401, leave to appeal refused, [2018] S.C.C.A. No. 135, was pre- Jordan . That is a fundamental distinction between those cases and this one. A fair reading of the decisions in those two cases strongly suggests that had that not been the case, the results would have been different under a Jordan analysis. Indeed, Rouleau J.A. made that very point in Picard at para. 4. [145] In an effort to justify the trial judge’s application of the transitional exceptional circumstance, my colleague then says, at para. 78, that “the Crown might well have concluded that the trial delay that occurred just prior to the estimated Jordan ceiling date would qualify as a discrete exceptional circumstance or be attributed in part to the defence or that, based on Gordon and Picard , there was a transitional exceptional circumstance.” With respect, we have no knowledge of what the Crown considered when it made the decision not to consent to a re-election. What we do know is that the trial judge warned the Crown about the s. 11(b) consequences of not proceeding with a judge alone trial, both when the request for the Crown’s consent was made and again, a few days later, when the Crown refused to consent. The Crown cannot pretend that the consequences of that decision, in terms of s. 11(b), were not crystal clear. [146] In the end result, the trial judge’s conclusion that the parties had not had sufficient time to adapt to the lessons of Jordan reflects a fundamental misunderstanding of the dictates that emanated from that decision. As the court said in Jordan at para. 81: “To be clear, the presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling” (emphasis added). [147] Consequently, on that ground alone, the delay exceeded the presumptive ceiling, and a stay ought to have been granted. There were no exceptional circumstances that would justify having this case take longer than 30 months. It is not an exceptional circumstance to find that “the time to adapt to the lessons of Jordan ” was insufficient. If that were to be found as an exceptional circumstance, precious few cases would not qualify. Indeed, it could be said that we are all still learning the lessons from Jordan – some quicker than others it would appear. [148] The fact remains that almost two and one-half years had passed since Jordan was decided when the Crown made its decision to refuse to consent to the re-election. The Crown had ample time to adapt to the new world that Jordan created. It chose not to do so, notwithstanding the clear warning that the trial judge provided about the consequences of its decision. To treat that situation as an exceptional circumstance is to remove all reasonable meaning from the term. [149] In light of my conclusion, I should address the respondent’s submission that a remedy short of a stay should be considered when a s. 11(b) breach is found. The Supreme Court of Canada has, in many cases, said that the remedy for a s. 11(b) breach is a stay of proceedings. Indeed, in Jordan at para. 35, the court referred to it as the “one remedial tool”. In my view, if some other remedy is to become available for a s. 11(b) breach, that availability will need to be determined by the Supreme Court of Canada. I refer to the discussion of this issue in R. v. Charity , 2022 ONCA 226, being released concurrently with the reasons in this matter. [150] I would allow the appeal and stay the charges. B.      The jury instructions [151] Putting aside the delay issue, there is another serious problem in this case and that involves the instructions to the jury regarding how they should approach the evidence in the case. My colleague finds that the concerns regarding the impugned instructions are assuaged by other sections of the instructions. Again, I do not agree. [152] There were two diametrically opposing versions of what had taken place leading up to the shooting. The appellant said he was threatened by the two men, one of whom brandished a handgun during the course of their confrontation. The appellant says that he reacted in self-defence, by grabbing the gun away from him and shooting his attackers without aiming. Only one of the other two men involved gave evidence. He said it was the appellant who produced the gun and then shot him and the other man. [153] The jury was faced with these two opposing versions of the events. Their decision as to whether the charges had been proven beyond a reasonable doubt would clearly be determined if they believed one version as opposed to the other. [154] However, that is not the core concern in this case. The crux of the issue turns on what would happen if the jury could not decide which version they accepted or, alternatively, if some members of the jury accepted one version and other members of the jury accepted the other version. [155] It is in just this type of circumstance where the instruction in R. v. W.(D.) , [1991] 1 S.C.R. 742, becomes of critical importance. Its importance arises from its fundamental application to a proper understanding of the burden of proof. The members of the jury must understand that, if they are unable to decide which version of the events they accept, or if there is disagreement on that question, the jury must acquit, because the Crown will have failed to prove the charges beyond a reasonable doubt. [156] Unfortunately, in this case, the trial judge did not drive home that important aspect of the burden of proof. Rather, he set up the question for the jury as a stark choice between the two versions. My colleague has set out the problematic sections of the instructions, but they bear repeating. For example, in describing self-defence, the trial judge told the jury: The resolution of these issues, I suggest to you, is driven in large part by which version you accept. The two versions you have heard cannot both be true. [157] He repeated this instruction three more times when he discussed the issue of the reasonableness of the force that the appellant had used. The trial judge said: The reasonableness of the shooting of Mr. Guzhavin by Mr. Hanan is largely dependent on which of the two conflicting versions you accept. Again you may find that the resolution of this issue hinges on which version is accepted. The answer again is largely dependent upon which version is accepted. [158] It was crucial, when discussing the elements of the offences, and the issue of self-defence, for the trial judge to make it clear to the jury that, if they could not decide between the two versions of the events, they would have to have a reasonable doubt and the appellant would then have to be found not guilty. The trial judge did not do this. [159] This issue was directly addressed by this court in R. v. Austin (2006), 214 C.C.C. (3d) 38 (Ont. C.A.), where Doherty J.A. said, at para. 20: The trial judge’s instruction ignored the possibility that the jury might not be able to decide which version of the events to believe and, therefore, would be unable to make the findings of fact described by the trial judge. Recognition of the possibility that a jury may not be able to come to a definitive conclusion with respect to the credibility of competing versions of the relevant events is integral to a proper application of the reasonable doubt standard. This potential middle ground is especially important in cases like this one where the accused testifies and presents a version of events that is diametrically opposed to that given by the Crown witnesses. The jury must understand that if it cannot decide whose story to believe, it must acquit. [Citation omitted; emphasis added.] [160] The respondent contends that the jury’s verdict demonstrates that they understood there was a “middle ground” between the two versions where neither version was accepted. I do not agree. First, it is, in my view, very risky to attempt to reach definitive conclusions as to the reasoning of a jury. We have no knowledge of their discussions, and we have no reasons from them. What might seem reasonable to us, as outside observers, may or may not bear any resemblance to what went on in the jury room. [161] Second, it can be argued that the jury’s verdict demonstrates that they did not understand the second prong of W.(D.) , that is, that the inability to agree on one version or the other must give rise to a reasonable doubt. Indeed, the fact that the jury convicted the appellant of manslaughter, as opposed to murder, might well represent what is often referred to as a compromise verdict. Such a verdict is not based on a proper application of the principles from W.(D.) , but rather represents a compromise reached by the opposing sides because they are unable to agree on which version of the events they accept. [162] The respondent also suggests that the concern about the trial judge’s instructions is alleviated because the trial judge had, earlier in his charge, told the jury: “when you are confronted with two conflicting versions, as you are here, you do not approach it asking which version do you prefer.” My colleague relies on this fact heavily to discount the problems with the impugned instructions. [163] I accept that jury instructions must be read as a whole. However, I believe it is risky to assume that what a jury is told early on in the instructions will necessarily resonate with them respecting matters that arise later in the instructions. The fact that basic concepts are contained in what I respectfully characterize as the boilerplate portion of the instructions will not have the same impact as when the trial judge turns to the elements of the offence and any defences that arise on the evidence. [164] In that regard, the problematic portions of the instructions are included at the very point that the jury is being instructed on self-defence, which was the key defence in this case. It is at the very point when the jury is focused on what they are being told are the key issues that they have to decide regarding the question of guilt that the erroneous instructions are given. Suggesting that the jury will, at that point, harken back to something they were told much earlier, as somehow limiting (if not contradicting) what the judge is then saying, is neither realistic nor of much comfort. In any event, when concerns arise about a matter as serious as the burden of proof and the meaning of reasonable doubt, I do not accept that one can gloss over these possible consequences in this fashion. [165] I would add that it is also at the point when the trial judge is discussing self-defence in his charge that he told the jury that “[t]he two versions you have heard cannot both be true.” This is the same error that this court identified in R. v. T.A. , 2020 ONCA 783, at para. 31, and which led to a new trial in that case. [166] Finally, the respondent, and my colleague, both take shelter in the failure of defence counsel (not counsel on appeal) to object to the charge. While that is a relevant consideration, the failure to object, when the error is as serious as it is here, is not fatal to an appeal. As Lamer C.J. said in R. v. Jacquard , [1997] 1 S.C.R. 314, at para. 37, “the Court has not lost sight of the fact that the jury charge is the responsibility of the trial judge and not defence counsel.” [167] Given this error in the jury instructions, had I not decided that there was a s. 11(b) breach that warranted a stay of proceedings, I would have set aside the convictions and ordered a new trial. Conclusion [168] I would allow the appeal, set aside the convictions, and order a stay of proceedings. Released: March 21, 2022 “M.T.” “I.V.B. Nordheimer J.A.” [1] R. v. Charity , 2022 ONCA 226; R. v. Campbell , 2022 ONCA 223.

COURT OF APPEAL FOR ONTARIO CITATION: Dunford v. Otonabee-South Monaghan (Township), 2022 ONCA 230 DATE: 20220321 DOCKET: C68623 Feldman, Roberts and Favreau JJ.A. BETWEEN Allen Dunford Plaintiff (Appellant) and The Corporation of the Township of Otonabee-South Monaghan Defendant (Respondent) Allen Dunford, acting in person Michael F. Sirdevan, for the respondent Heard: March 15, 2022 by video conference On appeal from the order of Justice Myrna L. Lack of the Ontario Superior Court of Justice, dated June 29, 2020, with reasons reported at 2020 ONSC 1750. REASONS FOR DECISION [1] Mr. Dunford appeals from the dismissal of his action on the respondent Township’s motion for summary judgment. [2] Mr. Dunford’s claims against the Township are founded on the tort of misfeasance in public office. He alleges that from 2005 onwards, the Township abused its public office by deliberately and maliciously engaging in a pattern of bad faith dealings with him that were intended to and did harm him and his construction business. He based his claims on particulars of several interactions with the Township. [3] The motion judge found that Mr. Dunford had no cause of action against the Township arising from any of the circumstances outlined in his amended, amended statement of claim, including any cause of action for misfeasance in public office. [4] The focus of Mr. Dunford’s oral argument was that the motion judge misunderstood the cause of action pleaded. In essence, he submits that the motion judge erred by failing to look at the overall pattern of the alleged instances of the Township’s misconduct as a continuing cause of action. Had she done so, Mr. Dunford argues, she would not have dismissed his claim. [5] We are not persuaded that the motion judge made any reversible error. [6] The motion judge’s reasons demonstrate that she did not misapprehend the cause of action pleaded. She reviewed the constituent elements of the tort of misfeasance in public office and Mr. Dunford’s claims in detail. Importantly, as she indicated in para. 11 of her reasons, she was alert to Mr. Dunford’s allegation that “from 2005, officials of the defendant Township working in that capacity pursued a pattern of conduct in which they exercised bad faith toward him or from which it can be inferred that they did so” (emphasis added). [7] Mr. Dunford structured his claims around six separate instances of alleged misconduct by the Township that he argued amounted to misfeasance in public office. As a result, the motion judge was required to review the particulars and evidence concerning each instance to determine if there was a genuine issue requiring a trial or if summary judgment should be granted. However, the motion judge did not lose sight of the big picture. Mr. Dunford’s suggestion that the motion judge took a piecemeal approach is belied by her conclusion that “no cause of action against the Township for misfeasance in public office (bad faith) arises from any or all the circumstances outlined in the amended, amended statement of claim” (emphasis added). [8] As held by the motion judge, the “standard to be met in establishing bad faith is high and necessitates evidence to demonstrate a municipality has acted in other than the public interest”. The fact that the Township has made several decisions unfavourable to Mr. Dunford does not amount to bad faith. [9] Mr. Dunford also raised two further issues: i) the motion judge erred in granting summary judgment when there were genuine issues requiring a trial; and ii) the motion judge erred in failing to give any weight to his affidavit evidence of new particulars of the Township’s alleged misconduct. These can be dealt with summarily. [10] First, this was an entirely appropriate case for summary judgment. It is well established that the parties were required to put their best evidentiary foot forward and that the motion judge was entitled to assume that they had placed all relevant evidence in the record. Having reviewed the pleadings and the evidence before her, the motion judge concluded that there was no basis for any claim against the Township. We see no basis on which to disturb the motion judge’s findings which were open to her on the record. Effectively, Mr. Dunford’s submissions amount to a request for this court to undertake the analysis afresh and come to a different conclusion in his favour. Absent error, which is not present here, that is not our task. [11] Finally, we see no error in the motion judge’s decision not to consider the further particulars contained in Mr. Dunford’s responding materials. This was an exercise of her discretion that she was entitled to make in managing the proceedings before her. The new particulars related to events that purportedly occurred after the six instances of alleged misconduct and the timeframe pleaded in his amended, amended statement of claim. The motion judge was required to determine the motion based on the claims as framed in the pleadings before her. [12] For these reasons, the appeal is dismissed. [13] Mr. Dunford shall pay to the Township its costs of the appeal in the amount of $4,700, inclusive of disbursements and applicable taxes. “K. Feldman J.A.” “L.B. Roberts J.A.” “L. Favreau J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Prasad, 2022 ONCA 231 DATE: 20220321 DOCKET: C66911 Lauwers, Pardu and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and Akshay Prasad Appellant Ravin Pillay, for the appellant Kelvin Ramchand, for the respondent Heard: March 8, 2022 by video conference On appeal from the conviction entered on December 20, 2018 and the sentence imposed on May 23, 2019 by Justice David Salmers of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant was convicted and sentenced for two counts of trafficking cocaine. The appellant pursued the conviction appeal and abandoned the sentence appeal. The appellant largely contested the trial judge’s factual findings, to which this court owes great deference. We dismiss the appeal for the reasons that follow. (1) The Factual Context [2] In February 2015, as part of a drug enforcement investigation, police obtained an authorization to intercept the private communications of targets, including Xue Zhong Zhou. On March 18, 2015, the appellant and Zhou met in Zhou’s vehicle for over 20 minutes. Surveillance officers observed the meeting. An audio probe installed in the vehicle recorded the conversation. On March 19, 2015, the appellant briefly met with Anthony Leung and Cuong Lang, who were alleged to be Zhou’s associates, to take delivery of the drugs. [3] On April 9, 2015, the appellant and Zhou met again in Zhou’s vehicle. Surveillance officers also observed this meeting, which was recorded by an authorized probe. (2) The Conviction and the Trial Judge’s Findings [4] The appellant was charged with two counts of trafficking cocaine relating to March 19, 2015 (count one) and to April 9, 2015 (count two). The trial judge found the appellant guilty on both counts. [5] On count one, the trial judge found that the recorded March 18, 2015 conversation established proof beyond a reasonable doubt of the essential elements of trafficking by offer. Before March 18, 2015, police surveillance officers had observed Zhou and the appellant multiple times. On March 18, 2015, officers saw Zhou in his vehicle and watched the appellant enter the vehicle. They were the only occupants. The appellant admitted the integrity of the observations, and of police video recordings and photographs. [6] The trial judge agreed that the original recordings on their own were not sufficiently intelligible to be admissible. However, digitally enhanced versions of each recording were prepared by a lay expert, and transcripts were prepared from them. [7] The trial judge, therefore, found that the appellant and Zhou were the only speakers recorded in the March 18, 2015 conversation. Officer Chris Aiello had listened to Zhou’s voice on intercepted communications and testified that the transcripts correctly identified when Zhou and the appellant were each speaking. Officer Ryan Connolly was qualified and testified as an expert in the use and sale of cocaine. Relying on the original and clarified recordings, the transcripts, and Officer Connolly’s evidence, the trial judge found that the only reasonable inference that could be drawn from the March 18, 2015 conversation was that, after negotiations, the appellant offered to sell a kilogram of cocaine to Zhou for $53,000 and that he intended the offer to be taken seriously by Zhou. [8] The trial judge did not accept the Crown’s theory that the cocaine was delivered on March 19, 2015. The trial judge held that intercepted communications from March 19, 2015, to which the appellant was not a party, were not admissible as hearsay either under the co-conspirator’s exception or as narrative. Without those communications, the evidence was insufficient to establish that cocaine was delivered during the March 19, 2015 meeting between Leung and the appellant. [9] On count two, the trial judge found that the conversation between the appellant and Zhou that took place on April 9, 2015, established proof beyond a reasonable doubt of the essential elements of trafficking by offer. The appellant entered Zhou’s vehicle and they were the only occupants. They negotiated a cocaine purchase transaction using phrases used in the drug trade when talking about cocaine powder and discussing prices that could only have been applicable to a cocaine purchase, based on the expert evidence. The only reasonable inference was that the appellant offered to sell Zhou nine ounces of cocaine for $13,000 or four and a half ounces for $6,500, and that he intended the offer to be taken seriously by Zhou. (3) Issues on Appeal [10] The appellant’s arguments cluster around three issues. The first is the trial judge’s admission and use of the audio recordings and their transcripts. The second is that the expert evidence regarding the content of the recorded conversations was not clearly related to cocaine, making the conviction unreasonable. The third is that the trial judge convicted on an alternative theory of liability not advanced by the Crown, not raised with counsel, and which the appellant did not have the opportunity to address. (a) The Audio Recordings [11] The appellant applied to have the audio recordings of March 18, 2015 and April 9, 2015 excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms . Salmers J. dismissed the Garofoli application on October 25, 2017, finding that the appellant had not satisfied him that there was no basis for issuing the authorization to intercept communications, and as such, had not proven a s. 8 breach. The appellant also applied to have the March 18, 2015 and April 9, 2015 audio recordings of the intercepted communications excluded from evidence because of their poor quality, which inferentially meant that their prejudicial effect exceeded their probative value. The trial judge dismissed the application, finding that the recordings were relevant and, depending on all of the other evidence, might have significant probative value. [12] As noted, the trial judge agreed that the original recordings on their own were not sufficiently intelligible to be admissible. However, digitally enhanced versions of each recording were prepared by a lay expert, and transcripts were prepared from them. [13] The appellant referred to the expert evidence and the possibility that words were lost in the enhancement, or “clarification” exercise. The expert agreed that the digital filter he used to reduce noise could remove some audible sounds, particularly within the range of the human voice. But that did not happen in this case, as the trial judge found. He listened to the original and clarified recordings and found that the clarified recordings were virtually identical to the original recordings, and that there were no additional or deleted portions of speech in the clarified recordings. We see no error in this finding. [14] The appellant argues that the trial judge impermissibly relied on the evidence of the transcript typist, Christine Solsky, whose evidence on the voir dire was by agreement not admissible as trial evidence. We do not agree that the trial judge used Ms. Solsky’s evidence that way, as becomes clear from the discussion that now follows. [15] The appellant raises an argument about sufficiency of reasons related to this statement by the trial judge: [T]ranscripts were made of the enhanced or clarified recordings and those transcripts were useful to me when trying to determine what Zhou and Mr. Prasad were saying in the intercepted March 18, 2015 conversation. The transcripts of the enhanced or clarified recordings were prepared by Christine Solsky, a civilian police employee. Prior to preparing the transcripts, she was told that the speakers were Zhou and Mr. Prasad. Prior to preparing the transcript, Ms. Solsky heard Zhou’s voice on recordings from the police media library. Zhou and Mr. Prasad have different voices and speak English with different accents. Ms. Solsky testified that although it was sometimes difficult, she could tell which of Zhou or Mr. Prasad was speaking in the recordings. In her preparation of the transcripts, Ms. Solsky listened to the recordings many times to attempt to determine what was spoken and by whom. I also listened many times to the recordings. Almost, but not always, I agreed with Ms. Solsky’s transcripts identifications of the speakers and what was said. When I found any differences between the recordings and the transcripts, either about what was said or by whom, I relied on what I heard in the recordings when deciding this case. Related to the preceding argument, the last quoted paragraph makes it abundantly clear that the trial judge did not rely substantively on Ms. Solsky’s evidence. [16] The difficulty, asserts the appellant, is that the trial judge did not set out in his reasons the differences he found between the transcripts and his own interpretation of the audio, which accordingly prevents meaningful appellate review. While it would have been preferable for the trial judge to have noted the differences, we draw the inference that the differences were neither numerous (“Almost, but not always, I agreed…”), nor material, or he would have identified and highlighted them. The argument on sufficiency of reasons fails. It would have had more force if the appellant had identified places where the transcripts and the enhanced recordings might have led to confusion, but he did not. We infer that there were none. (b) An Unreasonable Verdict [17] The appellant argues that the drug-related lingo used by the appellant and Zhou in their discussions could not unambiguously be related to cocaine. Counsel pointed to several passages to suggest that some other drug was also under discussion. The trial judge relied on the expert evidence of Officer Connolly, whom he qualified as an expert and who has testified on the subject many times. [18] The trial judge relied on Officer Connolly’s testimony, and found: [D]uring the March 18 th , 2015 conversation, Zhou and Mr. Prasad began talking about drug trafficking almost immediately after Mr. Prasad entered Zhou’s Honda Accord. They discuss money owing by Zhou to Mr. Prasad. Several times during the conversation they used the words, ‘key’, and ‘brick’, very commonly used in the drug trafficking subculture to describe a kilogram of powder cocaine. The words were used in a context where the only reasonable inference is that Zhou and Mr. Prasad were discussing cocaine. [19] An important part of the context was the price discussed in the conversations on March 18 and on April 9. These are factual findings to which this court owes great deference. The appellant has not established that the trial judge made any errors in the assessment of the expert evidence as applied to the evidence about the transactions between Zhou and the appellant. We do not find the verdict unreasonable. (c) The Alternative Theory of Liability [20] The appellant argues that the trial judge convicted on an alternative theory. [21] On count one, the trial judge convicted, stating: For all of those reasons, the evidence has been proven beyond a reasonable doubt that Mr. Prasad committed the offence of trafficking cocaine by offer to Zhou on March 18 th , 2015. In particular, on that day Mr. Prasad offered to traffic a kilogram of cocaine to Zhou for $53,000 and he made that offer intending that it would be taken seriously by [Zhou]. Count one [has] been proven beyond a reasonable doubt. [22] Count one on the indictment referred to trafficking on or about March 19, 2015: THAT Akshay PRASAD, on or about the 19th day of March in the year 2015 at the City of Toronto in the Toronto Region did traffic in a substance included in Schedule I of the Controlled Drugs and Substances Act , to wit: cocaine, thereby committing an offence contrary to Section 5(1) of the Controlled Drugs and Substances Act . [23] The appellant argues that it was fundamentally unfair for the trial judge to give effect to an alternative theory of liability not advanced by the Crown, not raised with counsel, and which the appellant did not have the opportunity to address. He puts the argument in his factum in the following manner: The appellant respectfully submits that he was caught by surprise by the trial judge’s finding and could not have foreseen a conviction on the day prior to the date set out in the indictment based on an offer . All parties conducted the trial on the basis that the Crown theory was that count 1 alleged the trafficking of one kilogram of cocaine on March 19 th to Leung. Many decisions were made during the course of the trial based on that theory presented. For example, the defence made numerous concessions, abbreviated cross-examinations and, importantly, opted not to call a defence. [24] In questioning from the bench, the appellant was unable to say how the defence would have differed had the focus been on the offer on March 18 rather than on the alleged delivery on March 19. [25] The Crown pointed out that the indictment’s charging language for both counts is the same: “did traffic in a substance”. The charge covers the whole of the transaction and one continuous chain of events. Just as the offer alone was sufficient to support the finding that the appellant committed the offence by offer on April 9, so it was to commit the offence by offer alone on March 18, even if the delivery on March 19 was not proven. The Crown noted that the appellant did not request particulars of the charges before the trial. Further, the Crown referred to the offer to traffic several times in submissions to the trial judge, so it was no surprise to the defence. Trial defence counsel stated: “the Crown… will say, ‘well this is an offer, and it’s an offer for something that happened on the 19 th ’”. [26] The offer was plainly made on March 18, 2015, which in itself completes the offence of trafficking. We are unable to discern any prejudice to the appellant in the trial judge’s conviction respecting the offer on March 18, despite the different date specified in the indictment. It was a continuous chain of events starting on March 18. Consummation by delivery on March 19 was not an essential element. [27] The appeal is dismissed. “P. Lauwers J.A.” “G. Pardu J.A.” “L. Sossin J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. J.M., 2022 ONCA 233 DATE: 20220322 DOCKET: C68627 Tulloch, Pardu and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and J.M. Appellant J.M., acting in person Breana Vandebeek, duty counsel Jeffrey Wyngaarden, for the respondent Heard: January 10, 2022 by video conference On appeal from the conviction entered on January 11, 2020 by Justice Jill Copeland of the Superior Court of Justice, sitting with a jury. REASONS FOR DECISION [1] The appellant was found guilty and convicted of one count of sexual assault, following a trial by judge and jury. He was sentenced to 18 months custody. He now appeals his conviction. [2] On appeal, the appellant raises six grounds, all relating to alleged errors he claims the trial judge committed in her charge to the jury. [3] All of the appellant’s grounds of appeal can be summed up as alleging an inadequacy in the trial judge’s jury charge. He submits that the trial judge erred in her instructions on the use the jury could make of the DNA evidence; failed to connect the defence theory to the facts of the case; failed to instruct the jury on the limited use of the expert biological evidence; failed to instruct the jury that the complainant’s evidence was to be viewed objectively and critically; and failed to instruct the jury on whether the appellant knew the complainant did not consent. [4] For the reasons that follow, the appeal is dismissed. [5] The appellant and the complainant knew each other as they both worked at the same place. On April 2, 2017, they planned to meet later that evening at the appellant’s apartment. Prior to their meeting, they discussed how the evening would unfold. According to the complainant, she had indicated to the appellant on a previous occasion that she was romantically interested in him but told him she did not want to have sex with him. [6] Once she arrived at the appellant’s apartment, and their moods relaxed, they engaged in mutual consensual oral sex. Sometime after, the appellant tried to insert his penis into the complainant’s vagina, but the complainant told him she did not want to have sexual intercourse. A short time later, the appellant again tried to have sexual intercourse with the complainant, and was successful in penetrating the complainant, at which time she said “no, I don’t want to have sex”. The appellant did not stop but instead continued. [7] According to the complainant, the second incident of sexual intercourse lasted for about 10 minutes. [8] Eventually the appellant fell asleep, at which time the complainant texted a friend, who sent a third-party to pick her up. The complainant and the third party went straight to the police and provided a statement. A forensic expert subsequently analyzed various samples from the complainant’s underwear. DNA testing revealed that the substance on the complainant’s underwear was likely semen. [9] At trial, the only issue was consent. [10] The appellant conceded that there was touching for a sexual purpose. The trial turned on whether the Crown had proven beyond a reasonable doubt that the complainant had not consented to sexual intercourse, and whether the appellant knew that the complainant had not consented. [11] We see no merit to any of the appellant’s grounds of appeal. [12] It is well established that the adequacy of a charge must be considered in the context of the trial as a whole, as Watt J.A. explained in R. v. P.J.B. , 2012 ONCA 730, 298 O.A.C. 267, at para. 49 [citations omitted]: Jury charges do not take place in isolation, but in the context of the trial as a whole. Appellate review of the adequacy of jury charges must acknowledge this reality, especially where the complaint is about the extent to which the trial judge has reviewed the evidence in final instructions. Appellate review on this issue includes consideration of the complexity and volume of the evidence adduced at trial, the extent of its review by counsel in their closing addresses, the length of trial proceedings, the issues to be resolved by the jury, the effect of a more complete and balanced review of the evidence, and whether counsel objected to the charge on the ground advanced on appeal. The test is one of fairness…. Provided the evidence is left to the jury in a way that will permit the jurors to fully appreciate the issues raised and the defences advanced, the charge will be adequate. [13] The complainant alleged and testified that while she consented to some aspect of the sexual contact with the appellant, she did not consent to sexual intercourse. The DNA testing suggested that the fluid found on the complainant’s underwear was likely semen. The trial judge dealt with this evidence and instructed the jury as to what use they could make of the DNA evidence. In her charge to the jury, the trial judge also clearly and succinctly set out the position of the defence and that of the Crown and related the relevant evidence for each position to assist the jury in their deliberation. There was no objection to the charge by the defence. [14] The trial judge carefully and thoroughly reviewed the evidence in her charge to the jury and instructed the jury on the essential elements of the offence of sexual assault that the Crown was required to prove beyond a reasonable doubt. She highlighted for the jury that the live issue in the trial was that of consent; that the Crown was obliged to prove beyond a reasonable doubt, based on all the evidence adduced at the trial, that the complainant did not consent to the sexual intercourse; and that in order for them to convict the appellant, they must also find that the appellant knew that the complainant did not consent to the alleged sexual intercourse. [15] The trial judge further noted that the Crown’s evidence turned on the credibility and reliability of the complainant’s evidence. She painstakingly reviewed the complainant’s evidence and pointed out various inconsistencies in her evidence. [16] We see no error in the jury charge as alleged. A jury charge must be viewed as a whole and assessed as to its functionality. As this court recently noted in the case of R. v. R.D. , 2020 ONCA 23, at para. 10: The standard required of a jury charge is adequacy, not perfection. The appellate court’s approach is functional, assessing the adequacy of the charge as a whole, in the context of the trial in which the instructions were given, and in light of its purpose: R. v. Jacquard , [1997] 1 S.C.R. 314, at paras. 32-41; R. v. Newton , 2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 13. The charge must provide the jury with a sufficient understanding of the facts as they relate to the relevant issues from the trial: Jacquard , at para. 14. The trial judge has an obligation to review the substantial parts of the evidence and to relate the evidence to the issues to be decided. What is necessary are references to the evidence that are sufficient, in the context of the case and the entirety of the charge, to alert the jury to the specific parts of the evidence that are of significance to its decision on particular issues and to the positions of the parties on those issues. The role of the trial judge is to decant and to simplify: R. v. Huard , 2013 ONCA 650, 302 C.C.C. (3d) 469, at paras. 53 and 56. [17] This was a case that turned on the evidence of the complainant. The appellant did not testify. The case turned on whether the jury believed the complainant that she did not consent to the sexual intercourse. The trial judge thoroughly reviewed the evidence and highlighted all the relevant evidence, including areas of inconsistencies in the complainant’s evidence. The trial judge also reminded the jury throughout her charge of the onus of proof on the Crown to prove the guilt of the appellant beyond a reasonable doubt, and that the appellant was innocent until proven guilty based on the evidence beyond a reasonable doubt. [18] In all the circumstances, we see no merit to any of the grounds of appeal. As such, the appeal is dismissed. “M. Tulloch J.A.” “G. Pardu J.A.” “A. Harvison Young J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Vigon-Campuzano, 2022 ONCA 234 DATE: 20220318 DOCKET: C69181 Lauwers, Pardu and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and Fernando Vigon-Campuzano Appellant Daisy McCabe-Lokos, for the appellant Gregory Furmaniuk, for the respondent Heard: March 9, 2022, by video conference On appeal from the conviction entered on January 29, 2020 by Justice David E. Harris of the Superior Court of Justice, sitting without a jury, with reasons reported at 2020 ONSC 587. REASONS FOR DECISION [1] Fernando Vigon-Campuzano was convicted of two counts of sexual assault. He appeals against his conviction. [2] At the oral hearing, we dismissed the appeal and indicated that reasons would follow. These are those reasons. BACKGROUND FACTS [3] The appellant was a registered massage therapist who was convicted of sexually assaulting two female clients, Ms. M.-B. in August 2016, and Ms. H. in March 2016. Ms. M.-B. [4] On August 5, 2016, Ms. M.-B. went to Be Relax, a massage establishment at Pearson Airport in Toronto, for a massage. The appellant was her masseur. [5] Before the massage, Ms. M.-B. undressed but left her underwear on. The massage began with her lying on her front. At some point, the appellant asked Ms. M.-B. to take off her underwear, which she did. [6] The appellant began massaging Ms. M.-B.’s inner thigh, near her vagina. She had never experienced this in other massages and was confused about whether this was appropriate. He massaged her again on her inner thigh, near her vagina. She tapped the appellant with her leg to indicate that she was not comfortable with this and told him not to touch her there. He stopped massaging the area. [7] Shortly after, the appellant again massaged her inner thigh. Ms. M.-B. did not recall if she said anything. The appellant asked Ms. M.-B. whether she wanted a breast massage. She said no. Nonetheless, he massaged her breasts. Ms. M.-B. froze and did not say anything. [8] The appellant then put his hand on top of Ms. M.-B.’s vagina and moved his hand in small quick motions. She felt vulnerable and did not say anything. She became physically aroused. The massage ended shortly after, and Ms. M.-B. left the establishment. [9] Soon after the massage, Ms. M.-B. disclosed the incident to a friend over text message. She testified that, prior to the massage, she had been struggling with feelings of lust as being in conflict with her religious beliefs. She also testified that she felt guilt about not resisting the appellant more clearly. [10] Eventually, she disclosed the incident to the police. Ms. H. [11] On March 17, 2016, Ms. H. went to the Great American Back Rub in Mississauga for a massage. She testified that this was her second massage with the appellant, but she agreed that she may have seen him more than that. [12] Ms. H. undressed but left her underwear on. At some point during the massage, the appellant asked Ms. H. to take off her underwear, which she did. He later asked her if she wanted a breast massage, and she gave him permission to do one. [13] Later on in the massage, the appellant pressed into Ms. H.’s vagina area with his hands. She was shocked and froze. He then inserted a finger into her vagina. She flinched and he told her to relax. She asked him to stop. The massage ended not too long afterwards, and Ms. H. left the establishment. [14] Ms. H. submitted a complaint to the establishment through an online form but did not specify exactly what had occurred. She also told her psychotherapist and her sister. She filed a complaint with the College of Massage Therapists and eventually filed a complaint with the police. The Appellant [15] At the time of the events, the appellant worked as a registered massage therapist at different establishments as an independent contractor. He testified that he gave Ms. M.-B. a massage. He testified that she removed her underwear herself and that he massaged her inner thigh, but he denied giving her a breast massage and denied touching her vagina or her vaginal area. [16] He testified that he gave Ms. H. a massage. He did not ask Ms. H. to take off her underwear. He testified that he massaged her femoral triangle, near the bikini line, but he denied touching Ms. H.’s vagina or engaging in vaginal penetration. PROCEEDING BELOW [17] The central question at trial was whether the sexual touching occurred. [18] Ms. M.-B.’s text messages to a friend after the massage were admitted and relied upon by the Crown and defence for the purpose of narrative. Her text messages were as follows, with the reply omitted: Yeah today was just kinda off because I was struggling with lust/masturbation. But something happened tonight at the airport that really caught me off guard. I went to go get a back massage and the masseuse ended up fingering me and feeling me up. I told him a few times to stop but he did not. And I’m so confused because I really enjoyed it physically, but I also feel so violated. I could have been more assertive in saying no and telling him to stop. But I also feel that saying no once should have been enough. I’m so confused. On the one hand I think to myself, “I really enjoyed that handsome Cuban bringing me to orgasm.” But on the other hand I think to myself “I feel guilty for being promiscuous… Even though I asked him to stop even before it got really intense.” Actually the more I think about it the more I feel assaulted. [19] The trial judge noted that Ms. M.-B. was a strong witness. She was precise and candid in cross-examination. The trial judge disagreed with the appellant’s contention that Ms. M.-B. suffered from confusion which indicated a likelihood of misperception on her part and detracted from her credibility and reliability. [20] The trial judge held that Ms. M.-B.’s text messages did not demonstrate confusion. He found that they demonstrated Ms. M.-B. thinking through what happened to her and reflected mental clarity. Further, she never expressed uncertainty on the central issue, that she experienced sexual touching. [21] The trial judge also found that the guilt Ms. M.-B. expressed about not resisting the appellant was due to “the internalized societal expectation that women must protest vociferously when sexually touched against their will.” He noted that a trial judge, in evaluating sexual assault claims, must avoid stereotypes and is obliged to “put him or herself into the psychological shoes of the complainant”. He concluded that it was “entirely normal” for a massage client to be uncertain about how to proceed after experiencing an assault during a massage. He also concluded that deriving physical pleasure from the assault was “well within the psychological norm” and any resulting guilt was “normal psychological fallout from a sexual assault.” [22] The trial judge found that Ms. H. was a good witness. Although she did not remember all the details of the massage, her memory was quite good on the central issues, particularly the vaginal penetration. The trial judge also found that the cross-examination of the appellant did not lead to any major discrepancies which would cast doubt on his evidence. [23] The trial judge granted the Crown’s similar fact application to use Ms. M.-B.’s evidence to enhance Ms. H.’s credibility, and vice versa . [24] The trial judge conducted a W.(D.) analysis: R. v. W.(D.) , [1991] 1 S.C.R. 742. While there was nothing in the appellant’s evidence, when viewed in isolation, that was implausible or unreliable, when juxtaposed against the Crown’s case he rejected the appellant’s evidence. The strength of the Crown’s case, and the reinforcing evidence of the complainants, undermined the viability of the appellant’s evidence and his denial. The trial judge noted that this reasoning alone could constitute a W.(D.) error, as it would reflect a choice between the Crown and defence evidence. However, he considered whether the appellant’s evidence left a reasonable doubt in the context of the entire evidence, including that of the complainants. Relying on 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, he concluded that “[t]he Crown’s evidence, enhanced with the similar fact circumstantial evidence, predominates [the appellant’s] evidence and demonstrates to the high beyond a reasonable doubt level of certainty that it is false.” The trial judge found that, on the evidence as a whole, the Crown had proven guilt on both counts beyond a reasonable doubt. [25] The trial judge concluded that the elements of the offences were made out. The touching occurred as both complainants testified to, it was sexual touching, and there was no consent. The trial judge convicted the appellant on both counts. ANALYSIS [26] The appellant raises two grounds of appeal. First, the appellant argues that the trial judge erred in reaching conclusions about Ms. M.B.’s credibility in the absence of expert evidence. Second, the appellant argues that the trial judge failed to provide reasons for rejecting the appellant’s evidence. [27] Each is addressed in turn. (1) The trial judge did not err in assessing Ms. M.-B.’s credibility [28] The appellant argues that the trial judge improperly reached conclusions about the complainant Ms. M.-B.’s psychological response to the alleged sexual assault. [29] Part of the defence theory of the case was that Ms. M.-B.’s state of guilt and confusion after the incident detracted from her credibility as a witness. [30] The trial judge rejected this theory. Putting himself in the shoes of the complainant, he found her uncertain reaction to the surprising and perplexing incident to be in keeping with the normal fallout from a sexual assault in these circumstances. [31] The appellant argues that such conclusions were not open to the trial judge to make on the basis of judicial notice alone, and neither party produced expert evidence at the trial. The appellant relies on R. v. J.M. , 2021 ONCA 150, 154 O.R. (3d) 401, where this court overturned a conviction on multiple grounds, including that the trial judge erred in finding that the complainant’s failure to resist a sexual assault could be explained based on a parallel between the complainant’s conduct and “battered wife syndrome”. [32] We reject this argument. In J.M. , the trial judge invoked a specific psychological syndrome, which had been established in R. v. Lavallee , [1990] 1 S.C.R. 852, on the basis of expert evidence (see J.M. , at para. 60) . In J.M. , this court found that the trial judge erred by finding parallels between the complainant and the syndrome without expert evidence. In this case, by contrast, the trial judge’s reference to Ms. M.-B.’s psychological reaction was simply an aspect of the finding that her reaction did not detract from her credibility and reliability, as the appellant suggested. Ultimately, the trial judge found that she was a credible and reliable witness based on multiple factors, whose evidence, when enhanced with the similar fact evidence from Ms. H., he accepted over the evidence of the appellant. This finding that Ms. M.-B.’s reaction did not detract from her credibility and reliability did not require an expert assessment. [33] This ground of appeal is dismissed. (2) The trial judge provided sufficient reasons for rejecting the appellant’s evidence [34] The appellant denied the complainants’ accounts of the incidents. He argues that the trial judge did not identify inconsistencies or problems with his testimony and failed to explain why he rejected the appellant’s evidence. [35] The appellant objects, in particular, to the following rhetorical questions posed by the trial judge in his reasons, at para. 70: If the analysis stopped there, this reasoning could be said to constitute a W.(D) error. A choice is being made between the Crown and defence evidence. However, the critical step bridging the factual findings and leading to a proper legal conclusion is the application of the beyond a reasonable doubt standard of proof. Has the Crown proved beyond a reasonable doubt, that the version of each complainant is true despite the contrary evidence of [the appellant]? Or, from the defence viewpoint, does [the appellant]’s evidence leave a reasonable doubt in the context of the entire evidence and the evidence of the complainants? I do not need to positively believe [the appellant] it is sufficient if his evidence leaves a reasonable doubt. [36] According to the appellant, the trial judge asked the proper questions but failed to provide the required answers. Instead, the appellant argues the trial judge cited this court’s decision in J.J.R.D. in lieu of addressing these crucial questions. In his reasons, the trial judge stated, at paras. 71-73: Justice Doherty in R. v. J.J.R.D. 215 C.C.C. (3d) 252, [2006] O.J. No. 4749 (C.A.), leave to appeal dismissed [2007] 1 S.C.R. x (note), rejected an argument that a trial judge’s reasons failed to explain his rejection of the accused’s evidence. The only real reason stated by the trial judge for the rejection was the opposing strength of the Crown evidence. In his reasons, Justice Doherty touched on the interaction between the factual findings and the application of the burden of proof to a credibility trial in which the accused testifies. He said: 53 The trial judge rejected totally the appellant's denial because stacked beside A.D.’s [the complainant’s] evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence. This aptly describes the process of reasoning in this case. The Crown’s evidence, enhanced with the similar fact circumstantial inference, predominates [the appellant]’s evidence and demonstrates to the high beyond a reasonable doubt level of certainty that it is false. On all of the evidence, the high degree of certainty required has been met. This fully comports with W.(D.) and the importance of ensuring that accused persons are only found guilty if the Crown’s case against them is proved beyond a reasonable doubt. [37] We reject the appellant’s submission that the trial judge failed to explain why his evidence was rejected. [38] J.J.R.D. deals with challenges to the sufficiency of reasons for conviction and an argument on appeal that the trial judge did not explain why he rejected the evidence of an accused. Despite the trial judge’s reference to J.J.R.D . it is apparent from his reasons that he did not apply that authority in such a fashion as to dilute the burden of proof. He rejected the appellant’s evidence because of the formidable evidence “stacked beside” it in this case, especially the reliable accounts of the incidents by credible complainants. The trial judge’s rejection of the appellant’s evidence was based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the complainants’ evidence, enhanced with the similar fact circumstantial inference. His reasons were sufficient. [39] This ground of appeal is dismissed as well. DISPOSITION [40] For these reasons, we dismiss the appeal. “P. Lauwers J.A.” “G. Pardu J.A.” “L. Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Windsor-Essex Catholic District School Board v. 2313846 Ontario Limited o/a Central Park Athletics, 2022 ONCA 235 DATE: 20220323 DOCKET: C69463 Fairburn A.C.J.O., Paciocco and Sossin JJ.A. BETWEEN Windsor-Essex Catholic District School Board and Conseil Scolaire Catholique Providence Applicants (Respondents) and 2313846 Ontario Limited o/a Central Park Athletics Respondent (Appellant) Paul J. Pape and Cristina Senese, for the appellants Jessica A. Koper and Sandra Dawe, for the respondents Heard: March 17, 2022 by video conference On appeal from the judgment of Justice Munroe of the Superior Court of Justice, dated April 23, 2021. REASONS FOR DECISION [1] This is an appeal from a decision interpreting a force majeure clause contained in commercial leases between the respondent school boards and the appellant, a commercial multi-purpose, sporting facility. [2] The respondents rented space from the appellant. As a result of the province wide lock-downs owing to COVID-19, the appellant was unable to open its doors from March 17 to August 11, 2020 (the “relevant period”), and the respondents were unable to use the facility. [3] The respondents brought an application for a decision that the force majeure clause in their respective leases should apply to abate the rent during the relevant period. That argument found favour with the application judge who found that, considered within its proper context, the force majeure clause applied and rent was abated. [4] There is no dispute that the application judge was right in finding that the government lockdowns, as a result of COVID-19, triggered a force majeure event, as defined in the leases. Nor is there dispute that the appellant could not provide the respondents with the leased space for its intended and contracted use because of the lockdowns. The dispute lies in the effect of the triggering event on the parties’ contractual obligations. [5] The parties agree that the application judge accurately summarized their positions on the application. To this end, the application judge summarized the appellant’s argument as follows: [The appellant] argues that under the lease provisions, the triggering event excused the landlord from providing the leased premises but did not excuse the tenants from paying rent. The school boards’ obligation to pay rent was not impacted by any pandemic order. Consequently, under the lease, there is no basis to cease paying rent. To bolster this position, [the appellant] emphasizes the language in Clause 15.14: ‘In the event the Landlord claims a Force Majeure has prevented the Landlord from enabling the Tenant to make use of the Leased Premises or operate its programs …”(emphasis added), asserting that [the appellant] does not claim and never has claimed a force majeure . This fact, according to [the appellant] negates the following rent abatement provision. [6] Clause 15.14 reads as follows: In the event the Landlord claims a Force Majeure has prevented the Landlord from enabling the Tenant to make use of the Leased Premises or operate its programs in the Centre, Rent and Additional Rent shall fully abate during such period until the Landlord has restored the ability of the Tenant to use the Leased Premises and operate its programs in the Centre. [Emphasis added.] [7] Ultimately the application judge rejected the appellant’s argument, finding that the appellant, because of the government lockdown orders, was prevented from performing a term of the lease, providing the leased space for its contracted use. The application judge determined that the consequences were twofold under the lease: (1) the landlord was excused from its contractual obligation to provide the leased space; and (2) the contractual rent obligation of the tenants was abated during the relevant period. [8] The appellant argues that the application judge erred by reading the words “the Landlord claims” out of Clause 15.14. The appellant argues that the Landlord did not claim a force majeure event, (even though it is recognized that there was a force majeure event.) According to the appellant’s argument, only that claim could cause the abatement of the rent. The failure of the trial judge to give effect to those words – “the Landlord claims” – is said to constitute an error of law. [9] Respectfully, we cannot accept the appellant’s position. We do not see the application judge as having ignored the expression “the Landlord claims”. Rather, read as a whole, the reasons make clear that the application judge was alive to the appellant’s argument, and particularly to the emphasis upon those words, but rejected the submission that they held the meaning that the appellant continues to advance in this court. [10] This is not a case involving an extricable error of law. Rather, it is a case about contractual interpretation involving questions of mixed fact and law and therefore engages the standard of palpable and overriding error. We see none. [11] In an exercise of contractual interpretation, the application judge first, accurately recounted the appellant’s argument and second, rejected that argument. It was open for him to do so. The reasons are clear as to how he resolved the matter. The application judge found that the triggering event was the lockdown, which resulted in the closure of the appellant’s facility. When that facility was closed by the appellant, it could not and did not provide the respondents with the leased space. According to Clause 15.14, once that happened, the rent had to – “shall” – fully abate during the relevant period. [12] The appeal is dismissed. [13] Costs in the all-inclusive amount of $15,000 will be paid by the appellant to the respondents. “Fairburn A.C.J.O.” “David M. Paciocco J.A.” “L. Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Amikwabi v. Pope Francis, 2022 ONCA 236 DATE: 20220322 DOCKET: C69230 Fairburn A.C.J.O., Paciocco and Sossin JJ.A. BETWEEN Stacy Amikwabi, Shawn Brennan, George Fayad, Joshua Alas-Wilson, Alisa Tojcic, Jane Doe, John Doe Plaintiffs (Appellants) and Pope Francis, The Holy See, The State of the Vatican, The Society of Jesus, HM Queen Elizabeth II, The Order of the Garter, The House of Windsor (formerly Saxe Cobourg Gotha), Global Vaccine Alliance (GAVI), the UN’s World Health Organization/Public Health Organization of Canada, Bill and Melinda Gates Foundation, Prime Minister Justin Trudeau, Dr. Theresa Tam, Premier Doug Ford, Christine Elliott, Mayor Jim Watson, Attorney General of Canada, the Attorney General for Ontario Defendants (Respondents) Michael Swinwood, for the appellants Marshall Jeske, for the respondent Attorney General of Canada Ravi Amarnath, for the respondent Attorney General of Ontario, Premier Doug Ford and Christine Elliott Stuart Huxley, for the respondent Mayor Jim Watson No one appearing for the remaining respondents Heard and released orally: March 17, 2022 by video conference On appeal from the order of Justice Sylvia Corthorn of the Superior Court of Justice, dated February 10, 2021, with reasons reported at 2021 ONSC 1069. REASONS FOR DECISION [1] This is an appeal from the dismissal of an action as frivolous and vexatious pursuant to r. 2.1.01 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 . The underlying proposed class action and constitutional challenge makes multiple assertions, including that COVID-19 is a multi-lateral global conspiracy to, among other things, promote sterilization programs and manipulate the human genome. Billions, if not trillions, of dollars are sought from domestic governments as well as foreign entities. [2] The dismissal of this action reflects an exercise of discretion and therefore is entitled to appellate deference. The motion judge clearly, and in some detail, explained why she concluded that this case is frivolous and vexatious, so much so that it rises to the level of the clearest of cases in which to apply r. 2.1.01. [3] The motion judge did not err in deciding the matter without written submissions from the appellant. These motions are intended to be made in a summary manner and may, in the court’s discretion, be made without written submissions: see Ahmed v. Ontario (Attorney General) , 2021 ONCA 427, at para. 7. A fair reading of the motion judge’s reasons, particularly paras. 34-36, demonstrates consistency with the procedural requirements of the governing rule. [4] Nor did the motion judge misdirect herself on the law. To the contrary, her legal analysis shows her command of the operative legal principles. Nor did the motion judge make any factual errors. It was open to the motion judge to reach the conclusion she did and characterize matters as she did. [5] We see no basis to interfere with her exercise of discretion. [6] The appeal is dismissed. [7] Costs will be paid by the appellant to the respondent Attorneys General in the total amount of $250.00, all inclusive, to be split between those parties. “Fairburn A.C.J.O.” “David M. Paciocco J.A.” “L. Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Alexander (Re), 2022 ONCA 237 DATE: 20220321 DOCKET: C69801 Rouleau, Huscroft and Trotter JJ.A. IN THE MATTER OF: Michael B. Alexander AN APPEAL UNDER PART XX.1 OF THE CODE Andrew Menchynski, for the appellant Dena Bonnet, for the Attorney General Julia L. Lefebvre, for Waypoint Centre for Mental Health Care Heard: March 11, 2022 by video conference On appeal from the disposition of the Ontario Review Board, dated April 7, 2021, with reasons dated April 23, 2021. REASONS FOR DECISION (1) Introduction [1] On January 31, 2020, the appellant was found not criminally responsible on account of mental disorder (NCRMD) in relation to the offences of threatening death and robbery. On July 13, 2020, the Ontario Review Board (“the Board”) ordered that the appellant be detained at the Waypoint Centre for Mental Health (“Waypoint”), a secure facility. [1] [2] The appellant appeared before the Board on March 31, 2021 for his annual review under s. 672.81(1) of the Criminal Code , R.S.C. 1985, c. C-46. The issues before the Board were whether the appellant continued to pose a significant threat to the safety of the public and, if so, what was the necessary and appropriate disposition. All parties agreed that the appellant was a significant threat to the safety of the public. They also agreed that he should be transferred to the Secure Forensic Unit at Providence Care in Kingston (“Providence Care”), a less secure facility than Waypoint. [3] The Board found that the appellant was a significant threat to the safety of the public, but rejected the joint submission for a transfer from Waypoint to Providence Care. [4] The appellant appeals the placement decision only. He submits that the Board’s decision was unreasonable. Moreover, he contends that the hearing before the Board was procedurally unfair because the Board failed to provide adequate notice that it was considering the rejection of the joint submission. [5] The respondents submit that there was no unfairness in the manner in which the Board handled the joint submission. On the transfer issue, both respondents support the Board’s decision despite the fact that it is contrary to the joint submission they made at the hearing. The Crown grounds this position on appellate deference to the Board’s decision; Waypoint also relies on deference, but also alludes to fresh evidence that is not before us. [6] We conclude that the manner in which the Board dealt with the joint submission was less than ideal; however, but it did not amount to procedural unfairness. Moreover, the Board’s decision was a reasonable exercise of its discretion. (2) Background [7] The appellant is 41 years old. In May of 2019, he received a conditional discharge for uttering a death threat. He was placed on probation for 12 months. The following month, he attended a bank in downtown Toronto. He went into one of the employee’s offices and started yelling and screaming in an incoherent manner. When asked to leave, he threatened to cut off the employee’s head and put it in a potato sack he was carrying. He eventually left the bank. He was subsequently arrested a month later, but released on bail. [8] In September of 2019, the appellant grabbed a purse from a restaurant patio table. The victim attempted to retrieve her purse, and in the ensuing struggle, her wallet dropped to the ground. The appellant ran off with the wallet. The victim caught up to him. With the assistance of bystanders, the wallet was recovered. A passing police car was flagged down and the appellant was arrested. [9] The appellant’s current diagnoses are: schizoaffective disorder, bipolar type; substance use disorder; and antisocial personality traits. Prior to these events, the appellant had admissions to psychiatric facilities. At the time of his arrest, the appellant was essentially homeless, supported by the Ontario Disability Support Program. [10] In the months between his arrest and his NCRMD finding, the appellant was placed at CAMH. However, because of the inability of staff to control him, there were a number of admissions to Waypoint, where the appellant spent much of his time in seclusion. [11] In the days leading up to the hearing, the appellant engaged in erratic behaviour. He threatened suicide and attempted to suffocate himself. His treatment team believed this was an attention-getting reaction to the Hospital Report and his anxiety about his upcoming ORB hearing. (3) The Hearing [12] At the outset of the hearing, a representative for Waypoint advised the Board that the hospital recommended the appellant’s transfer to Providence Care. The appellant supported this recommendation. The Crown indicated that it would state its position after hearing the evidence. [13] When the parties set out their positions, they were aware that Providence Care objected to the proposed transfer. Dr. Tariq Hassan, Clinical Director of Forensic Mental Health at Providence Care, had sent a letter setting out its reasons for its objection. [2] Having reviewed the Hospital Report, Dr. Hassan expressed concerns about the appellant’s “significant periods of very acute presentations of unwell behaviour and serious threats of violence.” He provided other reasons, including the relative recency of the appellant’s clinical progress. Being open to the possibility of a future transfer, Dr. Hassan said, “[t]his is the rare occasion where I would disagree with my colleagues at Waypoint and do not accept to have this gentleman transferred to Providence Care at this time.” The letter was also before the Board and entered as an exhibit. It became a focal point at the hearing. [14] The Board heard the evidence of one witness, Dr. J. Van Impe, the appellant’s attending psychiatrist. Dr. Van Impe adopted the contents of the Hospital Report and provided the opinion that the appellant remains a significant risk to the safety of the public. He referred to the appellant’s periods of extreme agitation, extreme threats of violence, and the requirement for seclusion. [15] Dr. Van Impe testified that the unanimous opinion of the treatment team was that the appellant could be managed at Providence Care. However, he said the decision was a “difficult one”, a “guarded recommendation”, and not an “easy decision.” Dr. Van Impe testified that, if the appellant maintained compliance with his medication, as he had over the previous five months, he would be manageable in the less-secure setting of Providence Care. [16] Responding to the objection of Providence Care, Dr. Van Impe said, “[t]heir concerns are valid. This isn’t a cut and dry…recommendation.” However, pointing to the appellant’s intense dislike of Waypoint, Dr. Van Impe believed that fear of being returned to Waypoint would act as a positive incentive at Providence Care. [17] At the conclusion of the evidence, Waypoint maintained its recommendation for a transfer, but with conditions designed to address the appellant’s risk factors and the possibility of elopement. The Crown said it “is cautiously in support of the cautious position by the hospital.” (4) The Board’s Decision [18] The Board accepted the joint submission that the appellant was a significant threat to the safety of the public. It declined to accede to the joint submission concerning the transfer to Providence Care. As the Board said, at para. 29: The Board appreciates the fact that the parties put forward a joint submission that Mr. Alexander be transferred to a less secure facility. The panel does not reject this joint submission lightly. As the Court of Appeal stated in Hassan (Re) , [2011] O.J. No. 3800 at para. 24, the Board “ought to tread cautiously” before making an order that the restricts the accused’s liberty beyond that which the hospital and the Crown thinks necessary. However, the court went on to say this at para. 25: However, the Board does not necessarily err because it declines to follow a hospital’s or Crown’s recommendation. Automatically adhering to the position of a hospital or Crown would mean abdicating its own role. A review board is composed of medical and legal experts with specialized knowledge and experience in mental health and in risk assessment and management. Parliament has vested these boards with authority to make their own independent and often difficult determinations after weighing the package of factors in s. 672.54 of the Code . [19] As discussed below, the Board outlined the factors that caused it to give effect to Dr. Hassan’s objections to the proposed transfer to Waypoint. (5) Discussion [20] It is well-established in this court’s jurisprudence that the Ontario Review Board is not bound by joint submissions. However, the Board owes a duty of procedural fairness to those individuals over which it exercises jurisdiction, which includes a duty to give notice when it considers rejecting a joint submission. Notice gives the parties an opportunity to address the Board’s concerns, by adducing (further) evidence, making responsive submissions, or both: Re Osawe , 2015 ONCA 280, 125 O.R. (3d) 428, at paras. 33, 42-43; Re Kachkar , 2014 ONCA 250, 119 O.R. (3d) 641, at paras. 42-44; and Re Elman , 2021 ONCA 783, 407 C.C.C. (3d) 481, at paras. 31-32. [21] Notice may take different forms. It may be direct or indirect. Notice may be given by Board members asking questions that “are significantly probing about the core elements of the joint submission”: see Re Benjamin , 2016 ONCA 118, at para. 22. See also Osawe , at para. 22 and Elman , at paras. 43-44. Whether questioning is a sufficient substitute for explicit notice involves a contextual inquiry: Re Nguyen , 2020 ONCA 247, 387 C.C.C. (3d) 13, at para. 20. [22] There was clearly a joint submission concerning the transfer request. As noted in para. 18 above, the Board acknowledged this reality. The Crown places significance on the fact that the joint submission was only reached at the end of the evidentiary phase of the hearing. But this did not detract from the essential nature of a joint submission. A joint submission may be formed at any time up until the decision-maker commences deliberations. [23] There was no explicit mention by any Board member that the joint submission might not be accepted. It would have been preferrable if this had been done. This is a matter that should not be left to guesswork. However, the manner in which the hearing was conducted ought to have signalled that the requested transfer was not a “done deal”. [24] The letter of Dr. Hassan was before the Board and made an exhibit. The issue was squarely in play. The questioning of Dr. Van Impe by Justice Lipson revealed some concern with the proposed transfer in the face of Dr. Hassan’s resistance. [25] The Crown relies on the questioning of the Alternative Chairperson as notice that the joint proposal was on infirm ground. In the lead up to a question concerning the possibility of moving the appellant to a less secure setting within Waypoint, he made the following parenthetical comment – “I have no idea where I’m going as far as a decision let alone my colleagues.” Later, he commented that, “I’m trying to come to grips with this decision.” [26] It would have been preferrable had the Board advised counsel of its concern during the submissions stage of the hearing. But there were no questions of counsel. Nonetheless, the aspects of the hearing mentioned in the preceding paragraphs collectively provided adequate notice that the joint submission might not be accepted. There was no procedural unfairness. [27] We dismiss this ground of appeal. [28] The appellant submits that the Board’s decision to refuse the transfer was unreasonable. He submits that the Board should not have given effect to Dr. Hassan’s objections because they reflected more of a concern about the appellant being a nuisance in the institution. He submits that the Board could have approved the transfer along with an appropriate envelope of conditions to assuage Dr. Hassan’s concerns by giving Providence Care the proper tools to manage the appellant. [29] Both respondents submit that the Board’s refusal to order the appellant’s transfer was reasonable. As noted above, counsel for Waypoint alludes to more recent events that might justify the denial of the transfer. This was not a proper submission. If counsel wish to update the court about the progress or decompensation of an NCRMD detainee, the appropriate procedure is an application to introduce fresh evidence. That was not done in this case. In reaching our decision on this issue, we rely exclusively on the formal record, and nothing more. [30] Notwithstanding Mr. Menchynski’s able submissions, our evaluation of the Board’s reasons leads us to conclude that its decision was reasonable. [31] In reaching this conclusion, we must give the deference that is typically afforded to the Board’s decisions on appeal. Moreover, the Board provided thorough reasons for giving effect to Dr. Hassan’s objection to the Hospital’s proposal. We do not accept the appellant’s submissions that Providence Care resisted the transfer because the appellant was merely a nuisance and engaging in attention-seeking behavior. The problems he posed at the time were more serious. As the Board said, at paras. 25-28: Since the time of Mr. Alexander’s latest disposition in July 2020, Mr. Alexander required three periods of seclusion as a result of aggressive and bizarre behaviours and are described in great detail in the hospital report. He has been threatening to staff, sexually inappropriate towards female staff. He has also engaged in feces smearing when frustrated and angry. There were incidents when he was kicking and punching his door and on one occasion, he broke the fire sprinkler in his room causing the room to flood. It should also be said that Mr. Alexander did not physically assault any staff or co-patients during this review period. The evidence is that Mr. Alexander has demonstrated significant improvement since December 2020 after being started on Abilify Maintena, an injectable antipsychotic medication. To his credit, Mr. Alexander achieved the most privileged security level available in early January 2021. He has participated in an anger management program and cognitive behavioural therapy. He sought out counselling with a psychologist and a substance abuse counsellor. He was a ward worker on his unit. His mental status has improved, and obvious psychotic symptoms have been minimal. In the opinion of his treatment team, Mr. Alexander is now ready for a transfer to a less secure facility. Unfortunately, Mr. Alexander’s positive trajectory was interrupted by the very concerning events of March 22, 2021 when he engaged in acts of self-harm, including trying to suffocate himself with a laundry bag, submerging his head into a toilet and wrapping a “safe gown” around his head. He required 4-point restraints and placement in a padded room for his own safety. Dr. Van Impe described these attempts at self-harm as an impulsive reaction to reading what Mr. Alexander viewed as unfavourable comments in the hospital report in combination with his overall anxiety about his upcoming Board hearing. Mr. Alexander’s progress is relatively recent and his self-harming behaviour on March 22, 2021 raises significant concerns about his current mental status. The Board agrees with the opinion expressed by Dr. Hassan that while Mr. Alexander has made some gains in recent months, his recovery is still in its infancy. The Board notes that Mr. Alexander has yet to reside on the least structured and highest privileged unit of Waypoint . Upon a consideration of all the evidence, the Board is of the view that a further period of stabilization at Waypoint is necessary before Mr. Alexander can be transferred to and safely managed in a less secure hospital. In arriving at this decision, the Board attached significant weight to the well supported and clearly stated reasons of Dr. Hassan in exhibit 3 explaining why he did not consider Mr. Alexander to be an appropriate candidate for transfer to Providence . [Emphasis added]. [32] In the light of these cogent reasons, based on a proper appreciation of the evidence, it cannot be said that the Board’s decision was unreasonable. Disposition [33] The appeal is dismissed. “Paul Rouleau J.A.” “Grant Huscroft J.A.” “Gary Trotter J.A.” [1] An appeal (C68650) from that disposition was launched but never reached the hearing stage. By way of a separate order, and on the consent of the parties, that appeal is dismissed as a moot appeal. [2] Pursuant to r. 13 of the Ontario Review Board’s Rules of Procedure , when any party at a hearing requests that the accused should be transferred to another institution, that party shall provide notice to all other parties “as well as the person in charge of the prospective receiving hospital”. See the discussion about how this rule operates in practice in Michael Davies, Anita Szigeti, Meaghan McMahon and Jill R. Presser, A Guide to Mental Disorder in the Canadian Criminal Justice System (Toronto: LexisNexis Canada Inc., 2020), at pp. 230-232.

WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO: 110(1)          Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. (2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community. (3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication. 111(1)          Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. 138(1)          Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) is guilty of an offence punishable on summary conviction. WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. D.S., 2022 ONCA 238 DATE: 20220323 DOCKET: C69680 Strathy C.J.O., Coroza and George JJ.A. BETWEEN Her Majesty the Queen Respondent and D.S. Appellant Jill Gamble, for the appellant Mark Luimes, for the respondent Heard: March 15, 2022 by video conference On appeal from the conviction entered on April 13, 2021 by Justice Julia A. Morneau of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant – 13 years old at the relevant time – was found guilty of sexually assaulting his seven-year-old half-sister, K.R. [2] The appellant and K.R. lived with their grandparents and their mother, J.S. While everyone lived in the same household, the appellant was cared for by his grandparents; K.R. primarily by J.S. [3] The appellant pleaded not guilty. At trial, K.R.’s police statement was admitted pursuant to s. 715.1 of the Criminal Code , and she was cross-examined. J.S. testified on behalf of the Crown. An agreed statement of fact from the grandparents was also tendered as part of the Crown case. No defence evidence was presented. The appellant’s counsel argued that the Crown had not satisfied its burden. The trial judge disagreed, finding that the Crown had established guilt beyond a reasonable doubt. [4] On the date in question, J.S. found the appellant and K.R. together in a room, under a blanket, giggling. She testified that, upon entering, she could see the top of K.R.’s head. The appellant and K.R. were both shirtless. The appellant’s shorts were undone. J.S. asked the appellant to leave the room so she could help K.R. get ready for bed. K.R. then told her what the appellant had just done. J.S. then brought K.R. and the appellant to speak with their grandparents. J.S. told K.R. to disclose to her grandparents what she had just told her, which she did. The appellant denied it. [5] In the police statement, K.R. described the appellant’s conduct by pointing to her crotch area and indicating that the appellant touched himself there. She further testified that the appellant “tried to … make [her] lick … his nuts”; that he “pee[d] … in [her] mouth”; that he “got his nuts out”; and that he pulled down his zipper. [6] K.R. has been diagnosed with FASD and ADHD. She has a speech impediment, and functions at approximately two grade levels behind her peers. Her vocabulary is limited, and during her testimony she had obvious difficulties describing her, and the appellant’s, body parts. [7] The appellant appeals against conviction, raising these two grounds: 1) That the trial judge’s reasons are insufficient, and 2) that the verdict is unreasonable. [8] The trial judge’s reasons, while brief, adequately explain her decision and how she arrived at it. She addressed K.R.’s limitations, given her age and disabilities, and found that, despite them, she could adequately describe what the appellant did to her, from which she did not resile. The trial judge acknowledged that K.R.’s testimony was somewhat confusing but, after viewing her evidence through the proper lens, said this: KR’s evidence in cross examination was a bit confusing. However, when I consider KR’s limitations, her account from the police interview, and her answers in cross examination that she did not see “peeing in the mouth” on a video game, and when Ms. Gamble said to KR that her brother [the appellant] did not pee in her mouth, KR understood that question and told Ms. Gamble that he did. [9] Apart from accepting K.R.’s evidence, the trial judge also addressed the arguments of the appellant’s trial counsel. Of note, she addressed the submission that there was not enough time for the appellant to do what K.R. alleged he did, writing that: Ms. Gamble did point out that the time that elapsed between when JS said she went into the house to get KR ready for bed after KR entered the home was 5 minutes. That was JS’s evidence. Ms. Gamble argues that 5 minutes would be insufficient time for this event to unfold. When witnesses offer time estimates it is usually without the benefit of having had a stopwatch in hand and there is no suggestion JS had. That afternoon the family had been outside on the deck. KR had been running through the backyard sprinkler. [The appellant] was inside the house. JS was visiting with her parents, lived at the home at this time and did enter the home to help get KR ready for bed. There was nothing unusual going on that would have required JS to measure the time. Her estimate of 5 minutes was just that. [10] The reasons are sufficient. While the trial judge does not expressly say that K.R. was reliable, when the reasons are read as a whole, it is clear that she found K.R. was. Recognizing that a trial judge does not have to resolve every inconsistency in the evidence, or detail findings on every controverted fact, these reasons explain the path to conviction and allow for appellate review: R. v. R.E.M. , 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 20, 24, 30, 35, 53, 55-56. [11] Lastly, this verdict is not unreasonable. Such a result is rare and only appropriate when the verdict is one that no properly instructed trier of fact, acting judicially, could reasonably have rendered: R. v. Biniaris , 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37; R. v. Yebes , [1987] 2 S.C.R. 168, at p. 185. This onerous threshold has not been met. [12] The appeal is dismissed. “G.R. Strathy C.J.O.” “S. Coroza J.A.” “J. George J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Clearflow Commercial Finance Corp. v. Gdak, 2022 ONCA 242 DATE: 20220322 DOCKET: C69606 Trotter, Coroza and Favreau JJ.A. BETWEEN Clearflow Commercial Finance Corp. Applicant (Respondent) and Jaimee Lynn Gdak , Trigger Wholesale Inc., The En Cadre Group Inc., Mark Gdak and Jaimak Real Properties Inc. Respondents (Appellant) Benjamin G. Blay, for the appellant Jeffrey J. Simpson, for the respondent Heard: February 17, 2022 by videoconference On appeal from the order of Justice Bernadette Dietrich of the Superior Court of Justice, dated May 26, 2021, with reasons reported at 2021 ONSC 3421. REASONS FOR DECISION [1] This appeal arises from an order enforcing a Guarantee executed by the appellant, Jaimee Lynn Gdak. Ms. Gdak guaranteed the full amount of the indebtedness of Trigger Wholesale Inc. (“Trigger”) in favour of Clearflow Commercial Finance Corp. (“Clearflow”). The motion judge found that the Guarantee was valid, binding and enforceable. Ms. Gdak appeals this order. [2] At the conclusion of the hearing, we dismissed the appeal with reasons to follow. These are our reasons. Background [3] Clearflow provides financing services to Ontario businesses. Trigger, one of Clearflow’s clients, was in the business of importing and distributing firearms and ammunition in Canada. Mark and Jaimee Lynn Gdak are the sole shareholders, directors, and officers of Trigger. Clearflow alleges that Mr. Gdak orchestrated a massive fraud over a number of years against Clearflow, amounting to tens of millions of dollars in losses. The proceedings below and this appeal relate solely to the enforceability of the Guarantee. [4] In April 2015, Clearflow extended three separate credit facilities to Trigger: factoring of accounts receivable (Clearflow’s main method of financing); purchase order financing; and discrete advances for business purposes. The details were set out in three Credit Agreements. As part of this arrangement, on April 30, 2015, Mr. and Ms. Gdak jointly executed an unlimited and continuing Guarantee of the full amount of the indebtedness of Trigger in favour of Clearflow. The Gdaks are also officers and directors of The En Cadre Group – they both signed similar guarantees on behalf of En Cadre. [5] When Ms. Gdak executed her guarantee, the total maximum indebtedness shown on the Credit Agreements was $1.4M. By 2020, the actual debt had skyrocketed to $48M. [6] In 2019, before the allegedly fraudulent activities of Mr. Gdak and Trigger came to light, Mr. Gdak, on behalf of Trigger, approached Clearflow to restructure the then-existing credit facilities that would soon expire. He sought to renegotiate the Credit Agreements and have Ms. Gdak released from the Guarantee. As a result of the negotiations, Clearflow issued a proposal that would see Ms. Gdak released from the Guarantee. This was also reflected in drafts of the proposed financing documentation. However, this was all contingent on Mr. Gdak providing current financial statements. The negotiations dragged on into late 2020. The statements that were produced were not acceptable to Clearflow. Moreover, a field audit conducted on behalf of Clearflow uncovered the alleged fraudulent activities. Consequently, the deal fell apart. Clearflow refused to sign back the re-financing documents prepared by Trigger. Clearflow issued a written demand for all amounts owing. In the end, Clearflow never signed a document confirming that Ms. Gdak’s Guarantee had been cancelled or released. [7] In October 2020, Clearflow brought an application to recover $48.6M it alleges it lost as a result of a fraudulent scheme engineered by Mr. Gdak and Trigger. Clearflow sought the appointment of a receiver over the assets, property, and undertakings of Trigger, En Cadre, and the Gdaks’ real property, as well a Mareva injunction restraining the Gdaks from disposing of their property. The Mareva injunction was granted and Grant Thornton Ltd. was appointed as receiver in October 2020. While Mr. Gdak did not dispute the fraud claims, Ms. Gdak denies knowledge or participation in the scheme. [8] Within the context of its application, Clearflow brought a motion to enforce the Guarantee and sought a finding of liability against both Mr. and Ms. Gdak. Mr. Gdak did not dispute liability pursuant to the Guarantee; he did not file any materials on the motion. Ms. Gdak vigorously resists enforcement. [9] The Guarantee in question is a single-page document. It was signed by Mr. Gdak as “President” of Trigger; Ms. Gdak signed as “V.P.” Under the heading “THE NATURE OF YOUR LIABILITY”, the following condition is found: Your liability under the Guarantee is CONTINUING, absolute and unconditional. It will not be limited, reduced, or otherwise affected by any one or more of the following events: · any change in the terms or amount or existence of the Obligations. · any event whatsoever that might be a defence available to the Customer for its obligation or a defence to you under this Guarantee, all of which are hereby waived. [10] Ms. Gdak does not dispute signing the guarantee. Nor does she allege duress. Moreover, a lawyer who represented Trigger at the time, Brian Kelly, witnessed Ms. Gdak’s signature on the Guarantee. The Motion Judge’s Decision [11] Ms. Gdak resisted the enforcement of the Guarantee on a number of bases. As the motion judge said in para. 6 of her reasons: Ms. Gdak denies liability on her Guarantee on the basis that there was an undisclosed material change in the principal amount of the indebtedness covered by the Guarantee, and because she did not have the opportunity to obtain independent legal advice. Alternatively, she asserts that the applicant, through its words and conduct, released her from her Guarantee. [12] In thorough reasons, the motion judge rejected each of these submissions. [13] The motion judge held that Ms. Gdak was not released from liability under the Guarantee as a result of a material change to the contractual arrangements between Clearflow and Trigger (i.e., the increasing extension of credit to Trigger, growing to $48M). She rejected Ms. Gdak’s claim that her liability was limited to $1.4M. [14] The motion judge recognized that a guarantor will be released from liability where the creditor and the principal debtor agree to a material change in the terms of the contract of debt without the guarantor’s consent: see Manulife Bank of Canada v. Conlin , [1996] 3 S.C.R. 415. However, it is equally clear that it is open to parties to contract out of this protection. The motion judge found that Ms. Gdak did just that – she contracted out of this protection. The one-page document states in capital letters that her liability is ”CONTINUING” and will not be limited, reduced, or otherwise affected by any change in the terms or the amount of the debt. The motion judge found that the advances were specifically contemplated and did not result in a materially different risk than the one to which Ms. Gdak agreed. [15] The motion judge did not accept the submission that the Guarantee must be read narrowly to protect Ms. Gdak because she was a family member (the wife of Mr. Gdak) and because she was unsophisticated or vulnerable. There was no evidence that she signed the Guarantee as a matter of accommodation or as a favour for Mr. Gdak. The motion judge found that Ms. Gdak signed in her capacity as an officer and shareholder of Trigger. [16] The only argument advanced by Ms. Gdak in support of her claim of unsophistication was that she did not finish high school. The motion judge held that, “[l]ack of a high school diploma, in my view, does not equate to a lack of sophistication. Nor does it…indicate a lack of intelligence or an inability to read and comprehend a one-page guarantee.” The motion judge further found that Ms. Gdak was significantly involved in running the business. [17] The motion judge found that, even if she had found that the Guarantee should be interpreted narrowly, this would not assist Ms. Gdak. She found that the definition of the word “Obligations” in the Guarantee ought not to be limited in the manner submitted by Ms. Gdak. It was clear that she guaranteed debts arising from all three credit facilities, and in particular, the factoring of accounts receivable (the credit facility that generated the vast majority of the outstanding debt to Clearflow). [18] The motion judge rejected Ms. Gdak’s claim that the Guarantee was unenforceable because she did not receive independent legal advice. The motion judge observed that the Guarantee was signed in the presence of (indeed, witnessed by) Trigger’s lawyer, and Ms. Gdak was a director of Trigger. Moreover, the motion judge found that there was no evidence of undue influence, unconscionability, fraud, or misrepresentation. Again, this aspect of Ms. Gdak’s position amounted to a claim of a lack of sophistication, already rejected by the motion judge. She rejected Ms. Gdak’s claim that she did not know that she was a director of Trigger. The motion judge engaged in a detailed review of Ms. Gdak’s day-to-day involvement in the business in reaching this conclusion. [19] Lastly, the motion judge did not accept Ms. Gdak’s submission that Clearflow released her from her Guarantee through its words and conduct and was thereby estopped from asserting that the negotiations were never consummated. The motion judge found that the Guarantee provides that it shall be binding unless a release of the guarantor is expressly made in writing by Clearflow and authorized by its Board of Directors. It was not. The negotiated release was conditional on Trigger providing the requested financial statements. They were not provided in an acceptable form; moreover, the field audit revealed alleged fraud. The motion judge found that Ms. Gdak was not released. Discussion [20] On appeal, Ms. Gdak repeats the same arguments that were made before the motion judge in the hope of a different result. However, she has failed to identify an error of law or principle, nor any palpable and overriding error of fact. The Standard of Review [21] The appellant insists that the Guarantee is a standard form contract that must be interpreted on a standard of correctness: see Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. , 2016 SCC 37, [2016] 2 S.C.R. 23. [22] The respondent disputes this characterization, submitting that, in order for the correctness standard to apply, the following three requirements must be met: (i) the appeal must involve the interpretation of a standard form contract; (ii) the interpretation at issue is of precedential value; and (iii) there is no meaningful factual matrix that would assist in the interpretation of the contract: see Ledcor , at para. 24. [23] We agree with the respondent that elements (ii) and (iii) are not satisfied in this case. The motion judge’s interpretation of the Guarantee will have no precedential value, mainly because the factual matrix between the parties was critical to the motion judge’s interpretation of the Guarantee. Consequently, the appellant cannot justify the application of the exception to the Supreme Court’s holding in Sattva Capital Corp. v. Creston Molly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, that contractual interpretation is a question of mixed fact and law and subject to deferential review on appeal. Even if it could be said that the correctness standard is applicable, we see no error in the motion judge’s analysis. No Independent Legal Advice [24] The appellant submits that the motion judge erred by casting the onus of proof on her to establish that she did not receive independent legal advice. The appellant submits that she was put in the impossible position of having to prove a negative. We do not accept this submission. The appellant sought to resist the enforcement of the Guarantee based on a number of putative defences, one being her failure to receive independent legal advice. Clearly, she carried the onus on this issue. [25] In any event, the motion judge found that independent legal advice was not required in the circumstances. She found that Ms. Gdak was an officer and director of Trigger and that she signed the Guarantee in that capacity. Ms. Gdak had the opportunity to consult with a lawyer, Mr. Kelly, who witnessed the signatures of both Mr. and Ms. Gdak. She could have asked him for advice about the Guarantee. Lack of Sophistication and Unconscionability [26] The appellant submits that the motion judge erred in failing to find that the appellant lacked sophistication and that this resulted in a serious inequality of bargaining power in relation to Clearflow. In making this submission, counsel placed great emphasis on the fact that Ms. Gdak did not complete high school. [27] We do not accept this submission. We agree with the motion judge that a failure to complete high school does not equate with a lack of sophistication. In any event, the motion judge took into account a number of circumstances in rejecting the submission that Ms. Gdak lacked sophistication, including evidence that demonstrated the extensive and important roles she played in the day-to-day operation of the business. Although Martin Rees (the partner of Clearflow with whom the Gdaks were dealing) may have had considerable experience in commercial transactions, this did not render Ms. Gdak unsophisticated. Moreover, we see no basis to disturb the motion judge’s conclusion that Ms. Gdak had failed to establish unconscionability or undue influence. “Inscrutability” of the Document [28] The appellant submits that the motion judge paid no attention to the “inscrutability” of the Guarantee. In other words, she submits that the print on the document was too small. [29] In our view, this is not a legitimate basis to render the document unenforceable. The document is a single page in length. Although the print is small, it is readable. This is self-evident. There was no expert evidence adduced on the application on this issue. In the absence of evidence of improper tactics on the part of Clearflow, and there is none, the size of the print of the document is not a basis for refusing to enforce the Guarantee. Error as to the Appellant’s Role in the Company [30] The appellant submits that the motion judge erred in making the following statement, at para. 61: “[a]s a director, Ms. Gdak would have been required to sign off on the financial statements for these companies. The annual financial statements would have reflected the indebtedness to the applicant, which would have been easy for her to track year over year.” As the appellant points out, s. 159(1) of the Ontario Business Corporations Act , R.S.O. 1990, c. B.16 (“the OBCA ”) requires that the financial statements of an Ontario company be “approved by the board of directors and the approval shall be evidenced by the signature at the foot of the balance sheet of any director authorized to sign ” (emphasis added). [31] Mr. and Ms. Gdak were the sole directors of the company. Whether or not Ms. Gdak provided the signature evidencing the approval of the board, she was obliged by the OBCA to exercise “the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances” (s. 134(1)) and she was required to comply with all provisions of that act (s. 134(2)). [32] In our view, the motion judge made no error in concluding that Ms. Gdak had legal obligations as one of two directors of Trigger. This was merely one factor that informed the motion judge’s conclusion that she was aware of Trigger’s ballooning indebtedness to Clearflow. Insufficient Reasons [33] The appellant submits that the reasons of the motion judge are insufficient in that they fail to explain why she preferred the evidence of Clearflow over that of Ms. Gdak. We disagree. [34] The motion judge provided comprehensive reasons that are more than sufficient to permit appellate review. She evaluated Ms. Gdak’s evidence against the whole of the evidence. The motion judge found her evidence lacking on many points, either because it was contradicted by other evidence, or because it was simply not credible. The appellant’s complaint is more in the nature of a disagreement with the motion judge’s credibility assessments, rather than the manner in which she explained the conclusions that she reached. Clearflow’s Breach of the Agreement [35] The appellant submits that the motion judge erred in how she addressed the argument that the Guarantee was unenforceable against her because Clearflow breached the agreement. Essentially, the submission is that Clearflow breached the agreement by extending financing facilities in excess of the original projected amounts of $1.4M (i.e., giving Trigger more money than they originally requested). We do not accept this submission. [36] As noted in para. 14 above, the motion judge found that Ms. Gdak had contracted out of any protection to which she may have been entitled at common law. By its very terms, the Guarantee was a “continuing guarantee” for all obligations and indebtedness in favour of Clearflow. The terms and conditions of the credit facilities extended to Trigger never changed in a way that was not contemplated by the Guarantee. The motion judge also found that Ms. Gdak knew or ought to have known that her liability had increased over time. Contra Proferentem and the Ejusdem Generis Rule [37] Lastly, the appellant submits that the terms of the Guarantee should be construed against the drafter of the document (i.e., Clearflow). However, the contra proferentem rule is only applied in the face of an ambiguity in the impugned contract: Manulife Bank of Canada v. Conlin , [1996] 3 S.C.R. 415. As Cory J. held at p. 425, “if there is any ambiguity in the terms used in the guarantee, the words of the documents should be construed against the party which drew it.” We agree with trial judge’s refusal to apply the contra proferentem rule. The appellant is unable to identify any ambiguity in the Guarantee. [38] The appellant submits that she should be released from her liability by virtue of the ejusdem generis principle. She submits that the motion judge ought to have applied this principle when interpreting the term “Obligations” in the Guarantee. The term is described as “all present and future lease payments and obligations, conditional sale installments and obligations, and any other debts and liabilities.” The appellant contends that the debts arising from the credit facilities extended to Trigger, especially the factoring of accounts receivable, are of a different nature than the specific “Obligations” described in the Guarantee. As the reasoning goes, she should not be liable under the Guarantee for these debts. [39] We do not accept this submission. The factoring of accounts receivable was at the core of the financing relationship between Clearflow and Trigger. It accounts for the lion’s share of Trigger’s indebtedness to Clearflow, of which all parties, including the appellant, were well aware. We adopt the following passage from paras. 63-64 of the motion judge’s reasons: Accordingly, I find that a narrow interpretation of the terms of the Guarantee is not warranted in this case. Had I decided this point differently, I would nonetheless have rejected Ms. Gdak’s interpretation of the definition of “Obligations” in the Guarantee. “Obligations” is defined to include “all present, and future lease payments and obligations, conditional sale instalments and obligations, and any other debts and liabilities.” Ms. Gdak submits that the ejusdem generis interpretation maxim ought to apply such that “any other debts and liabilities” must be read narrowly to include only debts of the same class or kind, being debts of a similar nature to lease payments and conditional sale instalments, and that the applicant has led no evidence of indebtedness that falls into that class. I reject this highly technical interpretation. I agree with the applicant that the phrase “other debts and liabilities” covers each of the credit facilities that the applicant offered and provided to Trigger. It would have been obvious to the parties entering into the financing arrangements that the Guarantees were in respect of the funds being advanced in accordance with the April 23, 2015 funding proposal. That proposal specifically refers to the credit being advanced and the Guarantees of each of En Cadre, Mr. Gdak and Ms. Gdak. Trigger’s credit facilities did not include lease payments or conditional sale instalments. It is therefore apparent that the Guarantees were intended to cover other debts and liabilities, such as those described in the April 23, 2015 funding proposal and advanced by the applicant. This is the only logical interpretation of the Guarantee considering the factual matrix at the time the credit facility documentation, including the Guarantees, was executed. Disposition [40] The appeal is dismissed. As agreed by the parties, the respondent is entitled to its costs on a partial indemnity basis in the amount of $16,250, inclusive of taxes and disbursements. “Gary Trotter J.A.” “S. Coroza J.A.” “L. Favreau J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Farah, 2022 ONCA 243 DATE: 20220324 DOCKET: C64140 Miller, Zarnett and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Ahmed Farah Appellant Breana Vandebeek, for the appellant Kevin Rawluk, for the respondent Heard: January 6, 2022 by video conference On appeal from the convictions entered on April 30, 2016, and the sentence imposed on August 5, 2016, by Justice Kenneth L. Campbell of the Superior Court of Justice, sitting with a jury. B.W. Miller J.A.: [1] A wiretap investigation led police investigators to the conclusion that someone using the alias “Hurdaye” was engaged in firearms trafficking for the benefit of the Dixon City Bloods street gang. Circumstantial evidence pointed them to the appellant. Following a trial, a jury concluded that the Crown proved beyond a reasonable doubt that the appellant was the person overheard in the intercepted communications and known as Hurdaye. The appellant was convicted of multiple firearms offences, including trafficking firearms for the benefit of a criminal organization. He received a custodial sentence of 12 years. [2] At trial, the main issue was identification. On appeal, he made two arguments: (1) that the trial judge erred in admitting Leaney identification evidence provided by police officers relating to photos on the appellant’s phone; and (2) that the jury returned an unreasonable verdict. The appellant abandoned a third ground – that the trial judge erred in failing to instruct the jury with respect to the appellant’s exculpatory post-offence conduct – at the outset of the oral hearing. With respect to sentence, the appellant argues the trial judge erred by failing to give credit for harsh remand conditions. [3] For the reasons that follow, I would dismiss the appeals against conviction and sentence. Background [4] The Crown’s case rested on six links between the appellant and the person known as Hurdaye: 1. Two text messages were sent from the appellant’s cell phone in which the sender identified himself as Hurdaye; 2. In one of those text messages, the sender who identified as Hurdaye revealed his birthday. The appellant’s birthday is the same day; 3. In an intercepted phone call, Hurdaye described how he escaped two police officers during a chase on foot. Two police officers testified at trial that the appellant – who they identified visually – escaped from them after a chase through the parking lot of the appellant’s building on April 6, 2013; 4. One of the officers who chased the appellant noted the appellant’s “droopy” eyelids, which gave him a sleepy appearance. Hurdai means “sleepy” in Somali, suggesting the inference that Hurdaye was so-called because of droopy eyelids; 5. A day after the police chase in the parking lot, a police wiretap of Hurdaye recorded Hurdaye giving a woman named Mengistu an account of how he had escaped on foot from police. The appellant had a connection to a woman named Mengistu – the day of the police chase, the police had observed the appellant sitting in a car registered to Mengistu; 6. Photographs admitted into evidence at trial included images of individuals said to be associates of Hurdaye, together with someone the jury was invited to conclude was the appellant. Six of these images were found on the appellant’s phone. [5] The defence opposed the Crown’s application to allow Det. Cst. Hockaday to testify as to the identity of the men in the photographs. The bases of the objection were threefold: (1) he did not know the men to be identified sufficiently well to identify them; (2) the identification would be hearsay, since it depended on statements made by the men to Det. Cst. Hockaday about their identities; and (3) the prejudicial effect of the identification evidence would outweigh its probative value. [6] Following a voir dire , the trial judge granted the application and permitted the testimony. The trial judge reasoned that the police officer had met most of the men in the photographs multiple times and was, per R. v. Leaney , [1989] 2 S.C.R. 393, in a better position than the trier of fact to identify them. [7] The trial judge rejected the argument that Det. Cst. Hockaday’s testimony would constitute hearsay. He provided two reasons: (1) self-identification is an exception to hearsay, and the police officer would be relaying the men’s own identification of themselves at trial; and (2) the evidence could be used to establish that the men had made the assertions about their identity, rather than for the truth of the statements. The trial judge found the prejudice to be minimal, since the officer would not be identifying the accused, only third parties, and defence counsel would have the opportunity to cross-examine him. Issues [8] The appellant raised the following issues on appeal: 1. Did the trial judge err by admitting the identification evidence from Det. Cst. Hockaday? 2. Did the jury return an unreasonable verdict? 3. Did the trial judge err by not providing the appellant with 1.5 to 1 credit for each day spent in pre-trial incarceration? Analysis (1) The identification evidence [9] As explained below, I am not persuaded that the trial judge erred in admitting the identification evidence. [10] The appellant advances three arguments: first, that the trial judge erred in concluding that the identification evidence was not, at least in part, hearsay; second, that the trial judge erred in not finding that the identification evidence was inadmissible because Det. Cst. Hockaday was not sufficiently familiar with the photographed individuals to make a reliable identification; and third, the trial judge erred in finding that the probative value of the evidence outweighed its prejudicial effect. (a) Was the evidence admissible “for a non-hearsay purpose”? [11] As discussed below, the trial judge concluded that the identification evidence came within a traditional exception to the rule against the admission of hearsay and was admissible on that basis. But he also determined that the evidence was admissible “for a non-hearsay purpose”, as circumstantial evidence that supports the identification from the photos, and so its admission did not depend on the hearsay analysis. The trial judge reasoned that the officer’s evidence – that the photographed individuals had previously identified themselves to him using particular names – was simply evidence that they had so identified themselves to the officer, and this is how he knew them and was able to identify them in photographs. The evidence need not be tendered for the truth of the statements, as the cogency of the evidence would not depend on whether the individuals had given false names to the officer. [12] The appellant argues that this conclusion was an error because the identification evidence was nevertheless partly hearsay – a mix between hearsay and opinion.  Reporting statements made by others is hearsay, and the officer made use of these statements to support his identification of the individuals in the photos. [13] I do not agree that the trial judge made any error. The trial judge well understood – and well articulated – the distinction between the use of the utterances as circumstantial evidence, and the use of the utterances for the truth of their content. (b) Was the evidence admissible as hearsay? [14] As this court held in R. v. Berhe , 2012 ONCA 716, 113 O.R. (3d) 137, and R. v. Hudson , 2020 ONCA 507, 391 C.C.C. (3d) 208, at paras. 30-32, with respect to the threshold requirement for admissibility of identification evidence, the focus is on the level of familiarity the witness has with the person to be identified, to be assessed by considering the nature of the relationship, which includes the frequency and intensity of past interactions. The case law flowing from R. v. Leaney has been developed in the context of identification of an accused, rather than third parties. In the appellant’s case, Det. Cst. Hockaday identified third parties who were not called as witnesses, and so were not available to the trier of fact to make its own determination of whether the individuals bore a resemblance to the images in the photos. [15] On appeal, as at first instance, the appellant chronicles all of the interactions in evidence between the police witness and the individuals in question and invites the court to conclude that because many of these interactions were “brief and innocuous” or otherwise dated and unmemorable, Det. Cst. Hockaday was not sufficiently familiar with the individuals to make a reliable identification. [16] This argument was before the trial judge, who considered the evidence of the interactions, together with Det. Cst. Hockaday’s role as an officer embedded in the community in which the individuals lived. After reviewing the evidence at length in his ruling, the trial judge concluded that the interactions were not transitory or brief, but were significant, memorable investigative events. [17] The appellant’s argument on appeal is that the trial judge erred in characterizing the encounters this way. Counsel invites this court to make a wholesale review of the evidence and substitute our conclusion about its significance for that of the trial judge. But absent some palpable and overriding factual error, which the appellant has not identified, the trial judge’s findings are entitled to deference and I would not disturb them. (c) Does the prejudice outweigh the probative value? [18] The appellant’s third argument is that the trial judge erred in concluding that the probative value of the identification evidence exceeded the prejudice it caused to the appellant. The prejudicial effect of the evidence, on the appellant’s submission, is that because all of Det. Cst. Hockaday’s interactions with the individuals were in the context of policing, evidence of these interactions would suggest to the jury that the appellant, by his association with them, must have been involved in criminal activity himself, and in particular, must have been participating in a criminal organization. [19] Again, there is no suggestion that the trial judge made an error of law or misapprehended any of the evidence. The quarrel is with the trial judge’s assessment of the relative degree of prejudice and how it compared to probative value. Again, this is an area in which the trial judge’s assessment is entitled to deference. It is telling that defence counsel at trial did not seek any instruction to the jury as to the proper use of the identification evidence to mitigate any perceived prejudice to the accused, notwithstanding the trial judge inviting such a submission. [20] The evidence had probative value. It was one piece of circumstantial evidence in the case against the appellant: wiretap evidence supported the conclusion that Hurdaye had communications with certain named individuals. Det. Cst. Hockaday’s testimony allowed for the conclusion that the photos in evidence – including photos found on the appellant’s phone – showed the appellant together with the individuals who were intercepted communicating with Hurdaye. All of this evidence together supported the conclusion that the appellant was the person known as Hurdaye. (2) Unreasonable verdict [21] The test for an unreasonable verdict, as posited in s. 686(1)(a)(i) of the Criminal Code , is whether the verdict is one that “a properly instructed jury, acting judicially, could reasonably have rendered”: R. v. Chacon-Perez , 2022 ONCA 3, at para. 74. In making the claim that a jury rendered an unreasonable verdict, the appellant is not arguing that the trial judge erred by giving faulty instructions or erred in evidentiary rulings, or erred in any respect other than accepting the verdict. [22] The role of an appellate court, in assessing an unreasonable verdict argument, is to “review the entirety of the evidence using its accumulated training and experience to determine not whether the appellate court would have convicted the appellant, but whether a reasonable trier-of-fact properly instructed and acting judicially could have convicted”: R. v. Mars (2006), 206 O.A.C. 387 (C.A.), at para. 3. [23] Where the Crown’s case was, as in this case, circumstantial, the question to be answered is “could a trier-of-fact acting judicially be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence?”: Mars , at para. 4. [24] The appellant’s argument on appeal is that there was insufficient evidence to prove identity beyond a reasonable doubt. The cornerstone of the Crown’s case was the substantial wiretap evidence, which did not refer to the appellant by name. The only evidence connecting the appellant to the wiretaps – apart from the evidence supporting the inference that he was Hurdaye – was that he was in possession of a phone that was used to make these communications. Counsel for the appellant notes that there was an absence of any evidence that the appellant used the name Hurdaye, or that his voice matched the voice on the wiretaps. Further, there was no evidence that the appellant was seen in possession of a firearm, and the identity evidence was insufficient. [25] The appellant’s argument is undercut by the position taken by defence counsel at trial. The appellant’s co-accused, Khattak, brought a directed verdict application. In dismissing that application, the trial judge noted, with respect to the appellant, “Defence counsel for the co-accused, Ahmed Farah, did not bring a similar motion, effectively conceding that there was sufficient evidence in relation to each count of the indictment to be considered by the jury.” [26] In any event, the body of circumstantial evidence adduced at trial was sufficient to support the jury’s identification of the appellant as Hurdaye. That evidence included the following: · Two text messages were sent from the appellant’s phone identifying the sender as “Hurdaye”. · The appellant was born on May 7, 1983. In several telephone intercepts, Hurdaye references an upcoming birthday on which he will turn 30, including a call on May 4, 2013, in which he says his birthday is “this Tuesday”, which would be May 7. · Hurdaye was intercepted on April 6, 2013, talking about attending a gun deal and “bringing the things”. On April 6, 2013, two police officers witnessed a gun deal, and chased one of the participants into the parking garage for residences at 320, 330, and 340 Dixon Road. Both officers identified the appellant as the man they chased. · Later that month, Hurdaye was intercepted recounting how he was chased by two police officers “running with a big 4-4 … all the way down to three forty” and that he “lost them … when I got to the basement in three-twenty”. · The appellant was described as having “droopy eyes” that make him “look sleepy”. Hurdai is the Somali word for “sleepy”. [27] This circumstantial evidence, taken together, made a strong case that the appellant was the person who identified himself on the intercepted calls, and was identified by others, as Hurdaye. The jury was entitled to conclude that this was the only reasonable inference it could draw. (3) The sentence appeal [28] The appellant was sentenced to 12 years’ imprisonment, and given enhanced credit at a rate of 1.25 to 1 for time spent in pre-trial custody. The defence had sought credit on the basis of 1.5 to 1, while the Crown had argued that due to the appellant’s misconduct in jail prior to sentence, he was not entitled to any enhanced credit. The trial judge referred to the appellant’s serious institutional misconduct, which included two serious assaults on other inmates, one which consisted of “a severe and extended physical beating” that required the intervention of a dozen correctional officers, and another in which the appellant slashed a fellow inmate with an improvised knife, requiring hospitalization. The trial judge nevertheless provided some credit to ameliorate the harsh lockdown conditions the appellant had experienced prior to sentence. This was a reasoned exercise of the trial judge’s discretion, and I would not interfere with it. [29] In any event, this aspect of the appeal is largely, if not entirely, moot as a result of the appellant having been released on parole more than 6 months ago, and now being past his statutory release date. [30] I would dismiss the appeal against sentence. DISPOSITION [31] For the reasons given above, I would dismiss the appeal against conviction, grant leave to appeal sentence, and dismiss the appeal against sentence. Released: “B.W.M.” March 24, 2022 “B.W. Miller J.A.” “I agree. B. Zarnett J.A.” “I agree. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Aragon, 2022 ONCA 244 DATE: 20220324 DOCKET: C66426 Strathy C.J.O., Hourigan and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Pierre Aragon Appellant Dirk Derstine and Jennifer Penman, for the appellant Deborah Krick, for the respondent Heard: November 22, 2021 On appeal from the conviction entered on April 22, 2014 by Justice Alfred Stong of the Superior Court of Justice, sitting with a jury, and the sentence imposed on September 8, 2017 by Justice Hugh K. O’Connell of the Superior Court of Justice. Paciocco J.A.: OVERVIEW [1] In July of 2012, Fernando Fernandes, known to be associated with the Loners Motorcycle Club, was badly injured after being beaten near the intersection of Park and Perry Streets in Peterborough. One or more of the participants in the attack used baseball bats. After a jury trial, Pierre Aragon, believed to be a member of a rival gang, was convicted in connection with the beating of aggravated assault, assault with a weapon, possessing a weapon for the purpose of committing an offence, and uttering a threat to cause bodily harm. He was sentenced as a dangerous offender to an indeterminate sentence. [2] Mr. Aragon appeals both his convictions and his sentence. For the reasons that follow, I would deny his conviction appeal. Although there were issues with the evidentiary foundation for the extrinsic discreditable conduct evidence, the extrinsic discreditable conduct evidence that was presented was properly admitted. [3] I would allow Mr. Aragon’s sentence appeal. I am persuaded that the sentencing judge erred in his identification of aggravating sentencing factors and failed to issue sufficient reasons for a number of the decisions he made during the sentencing hearing. I. THE CONVICTION APPEAL MATERIAL FACTS [4] During the trial, it was not disputed that Mr. Fernandes had been beaten including with at least one baseball bat, that the assault was aggravated, and that one of the assailants had threatened him with bodily harm. The live issues during Mr. Aragon’s trial were whether Mr. Aragon played a role in the attack and uttered a threat to cause Mr. Fernandes bodily harm. [5] Two baseball bats were recovered near the scene of the beating. DNA of at least three persons was located on the handle of one of those baseball bats, but this DNA was unsuitable for analysis. However, there was a high probability that DNA detected in blood found on the barrel of that same bat was from both Mr. Aragon and Mr. Fernandes. Mr. Aragon could not be excluded as being the major contributor. [6] The attack and the threat were audio-recorded by the 911 emergency service through a phone line that was connected to a phone bearing an identified 647 area code number. Although not everything that was said during the attack is audible on the audio-recording, a male voice can be heard saying, “Here, give me that bat […] No, I won’t, I’m breaking his knees”. Shortly after, a male voice can be heard to say, “You had the only chance to come away. You’re so stupid. What, are you a Loner? […] You want to be a Loner? That’s for the Loners. Fernando you had a chance to come with us”. The audio-recording also picked up a female voice saying, “Baby enough” and a male voice responding, “Get the fuck outta’ here, bitch”. When he was arrested approximately two weeks after the assault, Mr. Aragon was found in possession of a phone bearing the same 647 number. The Crown theory at trial was that while Mr. Aragon participated in the beating, he had the phone with him and accidentally “pocket dialed” 911. [7] Mr. Fernandes did not offer evidence that could assist in identifying his assailant. He had been intoxicated at the time of the beating, and he suffered a brain injury in the altercation. [8] Nor could the two civilian witnesses who happened upon the scene identify the assailant or assailants. A cab driver witnessed two men approach her taxi at the intersection of Park and Perry Streets. They did not get in but began to yell at two men in a nearby backyard. She then saw two men jump over the backyard fence, one carrying a baseball bat. A female yelled at her to leave and she did so. [9] The other civilian witness saw two men walking north, with one carrying a baseball bat. She called 911 and offered a limited description of the men and reported a group of people outside an identified address on Park Street which was a known motorcycle gang clubhouse. One of the men she saw walking was wearing a dark shirt and was solidly built and of average height. [10] A police officer, PC Cox, also came upon the scene of the attack, apparently as it was ending. While passing the identified Perry Street address, he saw a male throw a baseball bat over a fence and run into a backyard. This Perry Street address was known by PC Cox to be the residence of Bob Pammett, a former member of the Loners Motorcycle Club. PC Cox stopped and seized the baseball bat and then walked to the intersection of Park and Perry Streets and saw Mr. Fernandes lying on the roadway. He saw two men standing near Mr. Fernandes. Mr. Shane Gardiner (a.k.a. Shane Minty) was standing near Mr. Fernandes’ head. Mr. Gardiner ran but was apprehended shortly after. The other man PC Cox observed was standing near Mr. Fernandes’ feet. He was wearing dark clothes and was holding a baseball bat. This man dropped the bat and ran, making good his escape. [11] The Crown theory, supported by the 911 recording, was that Mr. Fernandes was beaten because he was a member of the Loners Motorcycle Club. The theory was that he was beaten by former members of the Peterborough Loners chapter who were in “bad standing” with the Loners because they had broken away from that chapter. The Crown contended that Mr. Pammett was the leader of the break-away group, and that Mr. Aragon was one of the former Loners who was in bad standing. The Crown position was that Mr. Aragon’s association with this group gave Mr. Aragon the motive to participate in the attack. [12] In order to establish this theory, the Crown presented extrinsic evidence about the culture of motorcycle gangs, including the Loners; the history of the Loners including the break-up of the Peterborough Loner’s chapter; and Mr. Aragon’s links to motorcycle gangs, including the Loners and the break-away group (the “extrinsic discreditable conduct evidence”). [13] Prior to the assault, the police had installed a secret motion activated security camera trained on the outside gate of the Perry Street address. Video captured around the time of the assault does not show Mr. Fernandes being beaten but does capture some people in front of the Perry Street address who appear to be holding baseball bats. [14] Two police officers, DC Lemay and DC Noonan, offered testimony identifying Mr. Aragon as one of the men who was seen on the video holding a baseball bat, wearing a dark muscle shirt (the “recognition evidence”). [15] Mr. Aragon was convicted of the offences identified above in para. 1 of this judgment, based primarily on the evidence I have just described. ISSUES [16] Mr. Aragon raised three grounds of appeal relating to his conviction, two related to the extrinsic discreditable conduct evidence and one related to the recognition evidence. Those issues can be stated as follows: A. Did the trial judge err in admitting the recognition evidence? B. Did the trial judge err when admitting the extrinsic discreditable conduct evidence? C. Did the trial judge err by failing to instruct the jury on the prohibited and permissible uses of the extrinsic discreditable conduct evidence? [17] The Crown disputes these alleged errors and contends that even if one or more of them occurred, the curative proviso should be applied because the case against Mr. Aragon is overwhelming. Since I would deny each of the grounds of appeal that Mr. Aragon has raised, it is unnecessary to address the curative proviso. ANALYSIS A. Did the trial judge err in admitting the recognition evidence? [18] At trial, both DC Lemay and DC Noonan identified the man who was seen in the surveillance video holding a baseball bat and wearing a dark muscle shirt as Mr. Aragon. Both officers purported to recognize him based on prior observations they had made of him, including under surveillance. The trial judge did not err in finding this testimony to be admissible “recognition evidence”. [19] “Recognition evidence” is offered when a witness provides an opinion as to the identity of an individual depicted in a video or photograph. It is a form of non-expert opinion evidence. Its admission is tested by examining the threshold reliability of the recognition, based primarily on the familiarity of the recognition witness with the subject. There is also inquiry into the need to have a witness offer their opinion that the subject is the person they claim: R. v. Hudson , 2020 ONCA 507, 391 C.C.C. (3d) 208, at paras. 28-31. Recognition evidence is therefore generally admitted, “provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator”: R. v. Berhe , 2012 ONCA 716, 292 C.C.C. (3d) 456, at para. 14, citing R. v. Brown (2006), 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 39. [20] Mr. Aragon objected to the admission of the recognition evidence the Crown was proposing, and an admissibility voir dire was held. Testimony that the officers had provided at Mr. Aragon’s preliminary inquiry was presented during the voir dire . The trial judge also viewed the surveillance video. [21] During the preliminary inquiry, DC Lemay testified that he had observed Mr. Aragon in the course of his police work, including surveillance details, on at least 12 occasions between January 2012 and July 2012. On two of those occasions, Mr. Aragon had been at bike shows. On several of those occasions, DC Lemay had seen Mr. Aragon walking up Park Street and at the Perry Street address. And DC Lemay had dealt with Mr. Aragon on August 22, 2012, the day of his arrest on the charges before the court. On that occasion, DC Lemay had attempted unsuccessfully to interview Mr. Aragon in police cells. DC Lemay had also viewed photographs of Mr. Aragon on at least three prior occasions. [22] During the course of voir dire ruling, the trial judge accurately paraphrased the description of Mr. Aragon that DC Lemay had provided at the preliminary inquiry, as “a Hispanic male, stalky, muscular, usually seen wearing muscle shirts walking like a body builder and with a distinctive hairstyle”. In his preliminary inquiry testimony, DC Lemay also said he was familiar with Mr. Aragon’s mannerisms as well as his dark complexion and he said that these details assisted in recognizing Mr. Aragon in the surveillance video. [23] DC Noonan testified at the preliminary inquiry that he had known Mr. Aragon since 2004 when, while sitting in a police vehicle, he witnessed Mr. Aragon being arrested. After 2004 he had not “actually had eyes on him” until January 2012, when he saw Mr. Aragon at the Peel bike show in Mississauga, and then in March 2012 at the Toronto bike show. He had also viewed surveillance photos, Ministry of Transportation photos, and mug shot photos of Mr. Aragon. [24] Based on the observations he had previously made of Mr. Aragon, DC Noonan testified that he was familiar with Mr. Aragon’s “very distinct features”; his “posturing” including the way he stands, walks and hunches his shoulders; and his short dark hair cut. He said Mr. Aragon was not a tall man, standing at “five nine, five ten”, but that he is a “big guy”, very stocky and in good shape. [25] DC Noonan described the surveillance video as “grainy” and agreed that the features of the man he identified as Mr. Aragon could not be seen on the surveillance film. He testified that he made the identification based on a culmination of Mr. Aragon’s “very distinct features” and “very distinct haircut”, the demeanour and stance or posturing of the man he identified, and “everything that I’ve dealt with”. He referred, in this regard, to his knowledge of the group associated with the Perry Street address, the fact that the people involved “were carrying baseball bats”, and “incidents that actually led up” to the event – about which he had been debriefed – including a robbery the week before. [26] In his ruling the trial judge concluded that the video is fair and accurate, that it is “of sufficiently good quality”, and that there was no issue as to its continuity. He admitted the testimony of DC Lemay and DC Noonan, saying that although he himself could not identify the individuals in the video, who he had never seen before, the testimony of the officers would be helpful to jurors. He said he was satisfied that the officers “recognized Mr. Aragon” from their “lengthy association in terms of observation of Mr. Aragon over time”. He concluded that “their evidence would be definitely helpful to the jury in terms of recognition of the characters in that segment of the video leading up to the time immediately prior to the beating administered to Mr. Fernandes.” [27] I can find no error in the trial judge’s ruling. He appreciated the relevant standard of admission as well as the submissions that had been made before him. His decision was reasonable and open to him. [28] Nor did the trial judge fall into the trap of relying upon the testimony of DC Noonan that his “recognition” was enhanced by the incidents that had occurred, and the fact that the men he observed were carrying bats. The admissibility question was whether DC Noonan recognized Mr. Aragon based on his familiarity with Mr. Aragon’s appearance. Independent circumstantial evidence suggesting that a “recognition” is accurate is not relevant to that inquiry. Appropriately, the trial judge relied solely on DC Noonan’s prior observations of Mr. Aragon in finding that he could offer helpful recognition evidence. [29] I would dismiss this ground of appeal. B. Did the trial judge err when admitting the extrinsic discreditable conduct evidence? The Contested Extrinsic Discreditable Conduct Evidence [30] The Crown applied to admit extrinsic discreditable conduct evidence to establish Mr. Aragon’s motive and animus against Mr. Fernandes and to provide essential background narrative to the attack. Specifically, the Crown theory was that the attack on Mr. Fernandes, a member of the Loner’s motorcycle gang, was motivated by animus between the Loners and those, including Mr. Aragon, who had recently left the Loners on “bad terms” (the “break-away group”). According to the expert evidence of DC Noonan, within the “outlaw motorcycle gang” culture, “bad terms” describes censure against a gang member who has violated club rules. Mr. Aragon disputed the facts the Crown alleged and the admissibility of this evidence. [31] Appropriately, an admissibility voir dire was conducted. Extrinsic evidence linking an accused person to a criminal organization, such as an “outlaw motorcycle gang”, including evidence about that organization itself, is sufficiently discreditable to create prejudice against an accused. The evidence is therefore prima facie inadmissible: R. v. B.(L .) (1997), 116 C.C.C. (3d) 481 (Ont. C.A.), at para. 20; R. v. M.R.S. , 2020 ONCA 667, 396 C.C.C. (3d) 172, at paras. 62, 71-72; R. v. Tsigirlash , 2019 ONCA 650, at paras. 23, 25; R. v. Cook , 2020 ONCA 731, 394 C.C.C. (3d) 467, at paras. 40-41; R. v. Phan , 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 90. [32] Therefore, “[t]he onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception”: R. v. Handy , 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55. [33] The admissibility voir dire was not uneventful. In its initial application materials and in its oral submissions, the Crown failed, contrary to this court’s decision in Tsigirlash , at paras. 28, 32-33, to identify the extrinsic discreditable conduct evidence that it was seeking to have admitted. Instead, the Crown simply described the ultimate conclusions it wanted drawn from that evidence relating to Mr. Aragon’s membership in the break-away group, and to the animus of the break-away group against the Loners. [34] When Mr. Aragon’s counsel identified this shortcoming in the Crown’s application, the trial judge invited the Crown to remedy the deficiency. The Crown agreed to do so by providing a written description of the evidence it sought to have admitted. The next day the Crown provided a document entitled “summary of evidence – prior discreditable conduct application” (“Summary”). This document identified, in bullet-points, the anticipated evidence that six individuals would give. The Summary was presented much like six serial “will say” statements. Although most of the facts described in the bullet points were supported by preliminary inquiry transcripts, [1] no supporting material was provided with respect to the proposed evidence of two of the witnesses, Mr. Pammett and Mr. Gord King. The testimony ascribed to these men was presented as bald factual assertions. [35] Ultimately, the trial judge ruled that the extrinsic discreditable conduct evidence identified in the Summary was admissible. Mr. Aragon identifies three alleged errors related to that ruling. First, Mr. Aragon contends that the trial judge erred by ruling that the extrinsic discreditable conduct evidence was admissible without a sufficient evidentiary foundation. Second, Mr. Aragon submits that the trial judge erred in concluding that the probative value of the extrinsic discreditable conduct evidence outweighed the risk of prejudice it presented. Third, Mr. Aragon argues that the trial judge erred in admitting extrinsic discreditable conduct evidence that fell outside the scope of his admissibility ruling. Although I do agree that there were issues with the adequacy of the evidentiary basis relied upon by the trial judge, for the following reasons I would reject each of these grounds of appeal. The Adequacy of the Evidentiary Basis [36] Three of the issues raised by Mr. Aragon relating to the evidentiary basis for the ruling warrant attention: (1) reliance by the trial judge on the bullet points ascribed to Mr. Pammett and Mr. King; (2) reliance by the Crown on hearsay information; and (3) the trial judge’s alleged misapprehension of evidence. [2] (1) The Relevant Legal Principles [37] As a general rule, trial judges have discretion to determine the form that an admissibility voir dire will take, based on the issues involved and the nature of the case being tried: R. v. Evans , 2019 ONCA 715, 377 C.C.C. (3d) 231, at para. 148; R. v. Dietrich (1970), 1 C.C.C. (2d) 49 (Ont. C.A.), at para. 45, leave to appeal refused, [1970] S.C.R. xi. In many cases it is therefore not only common, but preferable in the interests of efficiency, to conduct admissibility voir dires based on information that would not be admissible during the trial proper: Evans , at paras. 116, 147-48 (statements of counsel and filed documents); Dietrich , at paras. 43-50 (endorsing the use of summaries of the evidence); R. v. Snow (2004), 190 C.C.C. (3d) 317 (Ont. C.A.), at paras. 60-61, (preliminary inquiry records); R. v. G.N.D. (1993), 81 C.C.C. (3d) 65 (Ont. C.A.), at paras. 30, 38 (summary of proposed hearsay statement and cross-examination of witnesses to the statement). [38] This is not to say there are never cases where admissible evidence will be required to establish contested facts in an admissibility voir dire . There are passages, for example, supporting the proposition that oral evidence must be presented in contested voluntariness voir dires ( Dietrich , at para. 44; Snow , at para. 61) and in contested Charter admissibility voir dires ( R. v. Tomlinson, 2009 BCCA 196, 190 C.R.R. (2d) 28, at para. 51). Whether or not oral testimony is always required in voluntariness and Charter admissibility voir dires where the underlying facts are contested, this is not the case in extrinsic discreditable conduct admissibility voir dires. In Snow , a ground of appeal based on the refusal of the trial judge to require oral evidence in an extrinsic discreditable conduct admissibility voir dire was denied by this court as being without merit. [39] I am nonetheless persuaded that in exercising discretion relating to the manner in which any admissibility voir dire is conducted, trial judges should take a functional approach to ensure that the record before them enables factual determinations required to determine admissibility to be fairly made, and they should disregard contested information that has been received that cannot fairly be assessed where it is important to do so. For example, in Snow the decision of the trial judge to resolve the admissibility of extrinsic conduct evidence based on transcripts of related guilty pleas and preliminary inquiry transcripts was supported by the fact that in that case, the “admissibility of the similar fact evidence did not require the testing of circumstances surrounding the evidence, nor was there uncertainty about what the witnesses might say”: Snow , at para. 61. [40] No doubt because of the functional needs in an extrinsic discreditable conduct evidence admissibility voir dire , it is typical that contested “evidence of other discreditable conduct is introduced through the testimony of those who suffered it (if alive), observed it, or, as admissible hearsay, by those to whom the victim reported it”: R. v. Stubbs , 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 68. The formal presentation of admissible evidence is optimal where material facts relating to admissibility are contested because the strength of the evidence establishing that the alleged discreditable conduct even occurred is an important consideration in evaluating the probative value of the proposed extrinsic discreditable conduct evidence: R. v. Mahalingan , 2008 SCC 63, [2008] 3 S.C.R. 316, at para. 163. If, on a threshold examination, the evidence alleging the extrinsic discreditable conduct is of questionable credibility or reliability, the probative value of the proposed discreditable conduct evidence will be diminished: Handy, at paras. 133-36; R. v. MacCormack , 2009 ONCA 72, 241 C.C.C. (3d) 516, at para. 54. Indeed, unless the proposed discreditable conduct evidence is reasonably capable of belief, it may be too prejudicial to admit: Handy , at para. 134. (2) The “Evidence” of Mr. Pammett and Mr. King [41] The statements of fact ascribed to four of the six witnesses featured in the Crown Summary were supported by preliminary inquiry transcripts. However, there was no offer of proof and no indication of the Crown’s evidentiary foundation for the bald statements of fact it attributed to Mr. Pammett and Mr. King. Indeed, neither man had even been interviewed by the police about Mr. Aragon or the break-away group. Quite simply, although the Crown no doubt believed that Mr. Pammett and Mr. King had knowledge of the information it ascribed to them in the Summary, the bullet points can fairly be described as a wish-list of the testimony the Crown hoped that these witnesses would provide. [42] Yet the trial judge relied in his admissibility decision upon the statements of fact the Crown attributed to Mr. Pammett and Mr. King. He alluded to these statements in his ruling. Moreover, these statements provided the only direct evidence on three keystone facts that supported the admissibility decision, namely: (1) Mr. Aragon left the Loners with Mr. Pammett; (2) along with Mr. Pammett, Mr. Aragon set up a new “club” at the Perry Street address; and (3) there was animosity between the two groups. Although there was independent circumstantial evidence to support each of these keystone facts, the bald assertions ascribed by the Crown to Mr. Pammett and Mr. King provided the most direct route to these conclusions available to the trial judge. [43] In my view, in the circumstances of this case the trial judge should not have exercised his discretion to permit the filing of the “will say” statements relating to Mr. Pammett and Mr. King, and he certainly should not have relied on those statements in determining that the extrinsic discreditable conduct evidence was admissible. First, the factual claims ascribed to Mr. Pammett and Mr. King were contested, and there was no apparent way to test the credibility and reliability of those statements so as to assess their probative value, an important determination in the admissibility ruling. Second, it had been understood between the parties that the Crown would provide a factual foundation for its extrinsic discreditable conduct evidence application, given the agreement that the Crown could rely upon preliminary inquiry transcripts. And third, there was uncertainty about what these witnesses might say, given that they had not even been interviewed. [44] This last point is particularly concerning. Obviously, if it were appropriate for the Crown to rely during admissibility voir dires on an unsupported statement of the evidence the Crown hopes to have on contested points, voir dires would become pro forma proceedings instead of suitably rigorous evaluations of the admissibility of often prejudicial evidence. [45] I therefore agree with Mr. Aragon. The Crown should not have presented, and the trial judge should not have relied upon the bald but contested assertions ascribed to Mr. Pammett and Mr. King, given that the trial judge had not been provided with a meaningful basis for determining whether this evidence was even available to the Crown, or for evaluating its probative value, if it was available. (3) The Hearsay Evidence [46] I agree with Mr. Aragon that some of the evidence offered by DC Noonan and DC Lemay was based upon hearsay, without apparent indicia of reliability. [47] Specifically, DC Noonan offered hearsay information “from reading reports and being privy to information from this investigation” that Mr. Pammett, who was in bad standing, left the Loners along with others, including Mr. Aragon, because they were trying to establish another club. DC Noonan also offered hearsay evidence based on a search warrant information he had read that this had led to animosity between the Loners and Mr. Pammett’s break-away group. [48] DC Lemay also relied on out-of-court information – the Loners’ website – for his testimony that Mr. Pammett had been “kicked out” of the Loners. It was a hearsay use of that website for DC Lemay to rely upon it, as he did, to conclude that Mr. Pammett had in fact been kicked out of the Loners. [3] [49] Although Mr. Aragon’s counsel did not specifically identify all of the hearsay evidence I have just described, he made submissions about the inappropriateness of the Crown relying upon hearsay in support of its application. I offer no comment on whether this evidence should have been put before or admitted by the trial judge during the voir dire . My concern is that in the admissibility ruling, the trial judge did not address the fact that this information rested on hearsay, when that is a relevant and important consideration in determining the probative value and hence admissibility of the proposed, contested evidence. (4) Misapprehensions of Evidence [50] I also agree with Mr. Aragon that the trial judge misapprehended evidence relevant to the admissibility of the extrinsic discreditable conduct evidence. [51] Of most concern, the trial judge adopted the Crown’s erroneous claim made in its Summary that Mr. Fernandes testified at the preliminary inquiry that Mr. Pammett was in bad standing with the Loners. In fact, in his preliminary inquiry testimony, Mr. Fernandes did not even confirm that Mr. Pammett had been a member of the Loners, instead saying that he did not know if this was the case. [52] The trial judge also described DC Lemay as offering evidence that Mr. Pammett started his own club along with Mr. Aragon . DC Lemay did describe Mr. Pammett starting the club and he did offer evidence about Mr. Aragon’s subsequent association with Mr. Pammett, but he did not testify that Mr. Pammett started his own club along with Mr. Aragon. [53] Finally, in the bullet points the Crown ascribed to Mr. Pammett, it is proposed that Mr. Pammett would say that he left the Loners because he was unhappy with them. The trial judge recounted Mr. Pammett’s proposed evidence as confirming that he left with Mr. Aragon because “ they ” were unhappy with the Loners. (5) Conclusions on the Evidentiary Basis [54] There were therefore problems relating to the evidentiary basis for the trial judge’s admissibility ruling. Those problems make it inappropriate to defer to the trial judge’s decision. I would nonetheless deny this ground of appeal. As I am about to explain, based on the voir dire evidence that was appropriately before the trial judge, there was a clear foundation for the admissibility of the extrinsic discreditable conduct evidence. The Probative Value of the Evidence and the Risk of Prejudice [55] The trial judge did not err in finding that the probative value of the Crown’s proposed extrinsic discreditable conduct evidence outweighed the prejudice it would cause. [56] Although such evidence is presumptively inadmissible, extrinsic discreditable conduct evidence became critically important to this case, given the content of the 911 call: “You had the only chance to come away. You’re so stupid. What, are you a Loner? […] You want to be a Loner? That’s for the Loners. Fernando you had a chance to come with us”. This recording provided a foundation for the admission of extrinsic discreditable conduct evidence on several overlapping bases. [57] First, triers of fact must understand the admissible evidence that they will be hearing. It is therefore appropriate for jurors to hear evidence that gives them the narrative required to do so. Specifically, the jurors trying Mr. Aragon needed to understand why Mr. Fernandes would be attacked because he was a Loner, and what the reference to “a chance to come with us” meant in the circumstances of the case. Given the Crown theory that these words arose from a dispute between motorcycle gangs, it was inevitable that unfolding the essential narrative of the case would entail presenting evidence about that dispute. [58] Second, the 911 audio recording disclosed an apparent motive for the attack. This provided the foundation for the admission of evidence capable of showing that Mr. Aragon shared that motive. Simply put, if Mr. Aragon could not be shown to be part of a group that had reason to chide Mr. Fernandes for “not coming with us”, the Crown case would have been materially weakened. On the other hand, evidence confirming that Mr. Aragon fit the profile of persons likely to attack Mr. Fernandes because Mr. Fernandes was a Loner and because he had not “come” with Mr. Aragon and others, would offer substantial support to the Crown case. [59] The fact that the Crown relied upon evidence of a group animus to establish Mr. Aragon’s own animus and motive is not problematic. It is well settled that extrinsic discreditable conduct evidence can gain admission to support a Crown theory that a crime has been committed by a member of a criminal group for group reasons: R. v. Sipes , 2011 BCSC 640, at paras. 364, 367; Phan , at para. 97. Evidence about the structure of the criminal group, the intensity of the animus , and the role or relationship of the accused to the criminal group, can all be relevant and probative in unfolding a Crown theory that the accused was motivated to act because of group animus : Phan , at paras. 97-98. [60] Finally, the 911 audio recording confirmed that the speaker, who the Crown alleged to be Mr. Aragon, knew Mr. Fernandes, and knew him to be a Loner. Evidence that Mr. Aragon knew Mr. Fernandes, and knew him to be a Loner, was therefore important, even if this evidence required disclosure that Mr. Aragon knew Mr. Fernandes through their gang association. [61] Was there probative evidence relating to each or any of these theories of admissibility? In considering this question, I have disregarded the bald assertions the Crown ascribed to Mr. Pammett and Mr. King, as well as the hearsay evidence that was presented during the voir dire . I am persuaded that the remaining evidence presented a formidable and probative evidentiary foundation that would enable jurors to understand the 911 conversation and would situate Mr. Aragon among those who could have spoken the words captured during the 911 call. [62] Specifically, there was evidence supporting each of the following factual propositions, which together provide that probative evidentiary foundation: Mr. Fernandes was a Loner, and Mr. Aragon was a former Loner. · Mr. Fernandes confirmed that he was a member of the Loners, and that he knew Mr. Aragon, who had also been a Loner. · There was evidence that Mr. Aragon had been seen in early 2012 at bike shows with known members of the Loners, including Mr. Pammett, who was affiliated with the Loners clubhouse at the Park Street address where Mr. King was a member. On one of those occasions Mr. Aragon was wearing a Loners shirt. Mr. Pammett and others left the Loners and the departure was acrimonious. · DC Lemay presented evidence that in March 2012, Mr. Pammett’s common law wife acquired the property at the Perry Street address. Commencing in the spring, Mr. Pammett and other known members of the Loners moved into the Perry Street address. · The preliminary inquiry transcripts of DC Noonan’s testimony included evidence that the Perry Street address bore the characteristics of a motorcycle gang clubhouse. · There was evidence that the Loners posted information on their website casting Mr. Pammett in a bad light by claiming he had been kicked out the Loners, a fact that was demonstrative of a rift between the Loners and Mr. Pammett. · There was evidence that a Loners patch was hung upside down inside the Perry Street clubhouse. DC Noonan provided expert evidence that in the outlaw motorcycle gang culture, this a sign of disrespect. · At the Perry Street clubhouse, there were vests from which patches and “rockers” had been removed. Since the Perry Street clubhouse was frequented by persons previously known to be Loners, there is an available inference that the insignia that had been removed had been affiliated with the Loners. The removal of the patches and rockers is therefore evidence of an end to the association between those linked to the Perry Street address and the Loners. · DC Noonan provided evidence that a Ledger Book was found inside the Perry Street location that included an entry dated June 8, 2012 which read, “The Loners getting their shit this weekend”. An entry dated June 29, 2012 said, “Loners still badmouthing us on Internet”. · DC Lemay also gave evidence of an alleged firebombing at the Park Street address on June 22, 2012. He observed Loners at the clubhouse the next day in what he described as a show of force. He observed men milling around the front gate, and he described a verbal conflict that afternoon in front of the Park Street address between two groups, and he testified that Mr. Gardiner, who was associated with the Perry Street group, was involved. · There was also evidence that prior to the July 22, 2012 attack on Mr. Fernandes, a number of windows had been broken at Mr. King’s home, which is immediately proximate to the Loners clubhouse at the Park Street address. Although no evidence was available linking the attack to the break-away group, it could be inferred given the context and timing that this event was likely related to the rift between the groups. Mr. Aragon was linked to the Perry Street clubhouse, to Mr. Pammett and to the group animus . · There was evidence from DC Lemay that throughout the spring and summer of 2012, Mr. Pammett and Mr. Aragon were seen together and separately at the Perry Street clubhouse. As indicated, the men were formerly associated in the Loners motorcycle gang, which Mr. Pammett acrimoniously left. · There was evidence from club records that a person identified as “Carlito”, a known nickname for Mr. Aragon, had made a “donation” at the Perry Street clubhouse. · There was evidence before the trial judge during the voir dire that the attack on Mr. Fernandes took place in proximity to the Perry Street address as well as evidence that would entitle jurors to conclude that Mr. Fernando’s attackers came from the Perry Street address. · In addition, the preliminary inquiry testimony of DC Lemay and DC Noonan that was also before the trial judge on the voir dire identified Mr. Aragon on a surveillance videotape at the Perry Street clubhouse, both before and after the attack, in the company of other persons identified as former Loners, and indicated that he and at least one other person had a bat. [63] Together, the evidence on the voir dire provides a probative narrative explaining the meaning of the words captured on the 911 call. Together, the evidence is also probative in establishing that there was serious group animus between the break-away group and the Loners. [64] Even in the absence of evidence that Mr. Aragon was formally a “member” of the break-away group, or that he was in “bad standing” with the Loners, this evidence also provided a strong basis for inferring that Mr. Aragon aligned himself with the break-away group. He maintained his connection to Mr. Pammett, who could be inferred to have animus against the Loners, the group that Mr. Aragon had also left. Most significantly, there was evidence that Mr. Aragon was present with a group at the Perry Street address on the night of the attack, while holding a baseball bat. In my view, this evidence supports an inference of close affiliation between Mr. Aragon and other former members of the Loners. The history and nature of his alignment with the break-away group coupled with his presence with others at the Perry Street address on the night of the attack on Mr. Fernandes, at the location from which the attack originated, supports a probative inference that Mr. Aragon was linked to the Perry Street group and would be motivated to participate in a gang-related attack against a member of the Loners. [65] Finally, the preliminary inquiry evidence of Mr. Fernandes, which was before the trial judge during the voir dire , is probative evidence that Mr. Aragon knew Mr. Fernandes by name and knew him to be a Loner. [66] The evidence I have just recounted provided strong probative inferences on each of the important issues I have identified. [67] I am also satisfied that the probative value of this evidence clearly outweighs the risk of prejudice it presents. To be sure, I share Mr. Aragon’s concern that notwithstanding that the Crown was not seeking to lead evidence linking Mr. Aragon to any specific extrinsic criminal activity, the evidence I have recounted carries an appreciable risk of prejudice against him, through his affiliation with criminal organizations. However, it was inevitable that Mr. Aragon’s affiliation with criminal organizations was going to be exposed during the trial. This prosecution could not realistically have occurred without disclosing the Crown theory that the attack was gang-related, and that Mr. Aragon was connected to the break-away group. Moreover, the admissible recognition evidence could not have been presented without disclosing his history with motorcycle gangs and his connection to the break-away group. [68] Without deferring to the decision of the trial judge and without relying on the unsupported evidence attributed to Mr. Pammett and Mr. King or the hearsay information furnished during the voir dire , I am therefore satisfied that the probative value of the extrinsic discreditable conduct evidence outweighed the risk of prejudice it presented. The evidence proposed during the voir dire was admissible. [69] I would dismiss this basis for appeal. The Evidence and the Scope of the Admissibility Ruling [70] Trial judges are obliged to act as gatekeepers in ensuring that highly prejudicial evidence is not admitted, including extrinsic discreditable conduct evidence that goes beyond the scope of an admissibility ruling: R. v. Cook , 2020 ONCA 731, 394 C.C.C. (3d) 467, at para. 71; M.R.S. , at paras. 65-66. I do not accept Mr. Aragon’s submission that the trial judge erred in discharging his gatekeeping role in this case by admitting irrelevant evidence beyond the scope of his ruling. [71] Notwithstanding the importance of ensuring that extrinsic discreditable conduct evidence is ruled admissible before it is presented, the scope of an admissibility ruling must be interpreted sensibly and contextually, rather than with artificial rigidity. An admissibility ruling is not a script, nor could it be. It is inevitable that the testimony of witnesses will be cast in greater or lesser compass in the retelling, as they explain, contextualize, and elaborate upon earlier testimony or police interviews. It would be unrealistic to expect a trial judge to articulate in their admissibility ruling in complete detail every scintilla or subtopic that is reasonably embraced by that ruling. In my view, when the issue is approached fairly and practically, the trial judge did not permit the admission of evidence that exceeded the scope of the ruling. I will elaborate by addressing, in turn, the evidence about which Mr. Aragon has expressed concern. [72] First, Mr. Aragon takes issue with the breadth of the evidence provided by DC Noonan about the history of motorcycle clubs in Peterborough and the inclusion of details about the structure, rules, and culture of motorcycle clubs, some of which were unconnected to the proceedings. I agree in principle that given the prejudice caused by association, the trial judge was required to exercise care not to allow the evidence to go too far afield, but it was clearly contemplated by the ruling that DC Noonan would provide expert testimony about the broader culture of outlaw motorcycle clubs. DC Noonan had to do so both to confirm his expertise and to validate the relevant testimony he gave about biker culture. [73] Moreover, the trial judge said in the course of his ruling that “[t]he discreditable conduct that the Crown seeks to elicit is contained in the evidence of [six witnesses]”. One of those witnesses was DC Noonan. In his preliminary inquiry testimony that was before the trial judge, DC Noonan provided testimony about the broader culture of outlaw motorcycle clubs. [74] Second, Mr. Aragon argues that the trial judge erred by admitting numerous photos of him and others showing them associating with or engaged in motorcycle club activities and by permitting evidence about Mr. Pammett’s involvement with other motorcycle clubs, including a newspaper article about Mr. Pammett’s departure from the Loners, to be shared with the jury. In my view, all of this evidence was relevant and within the fair contemplation of the trial judge’s ruling. [75] With respect to the photographs, the admissibility ruling clearly contemplated that background evidence could be provided regarding the culture of motorcycle gangs and linking the players to motorcycle gang activity. The photographs served this permissible purpose. I find them to be neither excessive in number nor gratuitous. [76] With respect to the evidence about Mr. Pammett, it was obvious that his status as a biker would be revealed during trial, as would evidence of his departure from the Loners. I see no problem with the admission of the newspaper article, in which statements were attributed to Mr. Pammett. An examination of the transcript shows that the Crown used this article at trial not as hearsay evidence to prove why Mr. Pammett left, but as a tool for probing Mr. Pammett’s testimonial account of why he left the Loners. Mr. Pammett was purportedly quoted in that article. It was appropriate for the Crown to confront him with the words attributed to him, and for the trial judge to exhibit the article so that it would be available to jurors in considering Mr. Pammett’s testimony. [77] Finally, Mr. Aragon takes issue with admission of evidence about the June 22, 2012 firebombing and the July 22, 2012 window breaking incident. In my view, proof of these incidents was contemplated by the admissibility ruling. Evidence about these incidents was provided during the voir dire and the latter incident was explicitly referred to in the Summary. Moreover, as I have indicated, these incidents were relevant both during the voir dire and at trial in establishing the depth of the animosity that existed between the Loners and the break-away group. [78] I would not give effect to this ground of appeal. C. Did the trial judge err by failing to instruct the jury on the prohibited and permissible uses of the extrinsic discreditable conduct evidence? [79] Mr. Aragon argues that the trial judge erred by failing to adequately equip the jury with an understanding of the proper and improper uses of the extrinsic discreditable conduct evidence. I do not agree. The Direction on Permissible Uses [80] Under ideal circumstances, a trial judge would dedicate a portion of their charge to identifying extrinsic discreditable conduct evidence that has been admitted and directing the jury on the permissible inferences it could draw from that evidence. The trial judge did not do so in this case, but this is understandable. It would not have been realistic nor desirable in the circumstances of this case for the trial judge to have attempted to gather all of the extrinsic discreditable conduct evidence together in one place in the charge for the purpose of assisting the jury in its application. This evidence was voluminous, including evidence not only about Mr. Aragon but also the motorcycle gangs he associated with. Had the trial judge attempted to gather this evidence together in the charge, that charge would not have decanted and simplified the critical issues in the case. It would have magnified the potential for prejudice. [81] What ultimately matters is that a trial judge’s charge provides the jury with a functional understanding of the value and effect of significant evidence and an understanding of how this evidence related to the relevant issues: R. v. Newton , 2017 ONCA 496, 349 C.C.C. (3d) 508, at paras. 10-13; R. v. Jacquard , [1997] 1 S.C.R. 314, at para. 14. In all of the circumstances, I am satisfied that the jury charge in this case did so. [82] Specifically, the trial judge opened the charge by setting out the Crown narrative which the extrinsic discreditable conduct evidence was marshalled to prove, namely, that Mr. Fernandes, a Loner, was assaulted by Mr. Aragon because of the animus that had developed between the break-away group that Mr. Aragon was associated with and the Loners. He also explained to jurors when introducing them to the significance of expert testimony that DC Noonan’s expert evidence was called to provide important narrative evidence about the fractious relationship between the Loners and the break-away group and about Mr. Aragon’s affiliation with the break-away group. When he explained the significance of motive, the trial judge also identified the significance of Mr. Aragon’s former association with the Loners and the falling out. And he fairly summarized the material evidence. I have no issue with the sufficiency of the charge relating to the proper uses of that evidence. The Impermissible Use: The Absence of a Limiting Instruction [83] Given the extrinsic discreditable conduct evidence that was presented, this case called on its face for a limiting instruction to the jury not to use that evidence to infer that Mr. Aragon is the sort of person who would commit the offences charged. In spite of the real risk that the jury could engage in such reasoning, the judge did not give this kind of instruction. I would nonetheless deny this ground of appeal. [84] It is evident that the trial judge did not give a limiting instruction because Mr. Aragon’s counsel specifically asked him not to do so. After forming the opinion that the extrinsic discreditable conduct evidence had gone somewhat beyond the admissibility order, Mr. Aragon’s trial counsel said to the trial judge, “at this stage of the game, I think drawing attention to anything makes it worse rather than better”. Even though I do not agree that the evidence went beyond the admissibility rule, I recognize this to have been a considered and tactical choice made in what defence counsel believed to be Mr. Aragon’s best interest. The trial judge cannot be faulted for acceding to Mr. Aragon’s trial counsel’s request. [85] Having said this, the trial judge may well have engaged in a more detailed conversation with Mr. Aragon’s counsel before acceding to this request. In my view, a limiting instruction could easily have been provided in general terms, without recounting the details about Mr. Aragon’s association with outlaw motorcycle gangs, and without amplifying the risk of prejudice. For example, the trial judge could have instructed jurors that the law recognizes it to be unfair to judge an accused person based on any conclusions that may be drawn about his general character, and then have cautioned them not infer that Mr. Aragon is a bad person who would commit the charged offences based on his association with motorcycle gangs. Although the trial judge might well have had a more extensive conversation with defence counsel to explore such a possibility before acceding to the request not to include a limiting instruction, he was not obliged to do so. I would dismiss this ground of appeal. II. SENTENCE APPEAL MATERIAL FACTS [86] The Crown sought to have Mr. Aragon declared a dangerous offender pursuant to s. 753 of the Criminal Code , R.S.C., 1985, c. C-46, and to have an indeterminate sentence imposed. [87] During the sentencing hearing, three individuals, including DC Lemay and DC Noonan, offered evidence about Mr. Aragon’s affiliation with motorcycle gangs. Brian Wheeler, from Correctional Services Canada, offered testimony about Mr. Aragon’s history with treatment during his lengthy previous incarceration and about revisions that have occurred in the programming since Mr. Aragon received that counselling. Testimony was also given by another correctional services employee and a police officer relating to Mr. Aragon’s behaviour while incarcerated. Dr. Jeffrey McMaster, a psychiatrist called by the Crown, offered the opinion that there was a high risk that Mr. Aragon would reoffend violently, and a substantial risk that this violence would involve significant physical or psychological harm – in short, that he was a dangerous offender. However, he offered the opinion that there was a possibility of controlling Mr. Aragon in the community on a Long-Term Supervision Order (“LTSO”), which would include intensive treatment and the highest level of supervision. [88] Mr. Aragon did not call evidence at the sentencing hearing. [89] Final sentencing submissions were then scheduled for July 17, 2015 but were adjourned when defence counsel fell ill. This delay necessitated the appointment of new counsel and prevented the trial judge from completing the sentencing before his mandatory retirement age. On February 29, 2016, another judge (the “sentencing judge”) was appointed pursuant to s. 669.2 of the Criminal Code to complete the sentencing. [90] Mr. Aragon’s new defence counsel, who contested the credibility, reliability, and weight of the testimony upon which the Crown was relying in support of its sentencing position, sought to have some of the witnesses recalled who had testified during the aborted sentencing hearing that had been commenced before the trial judge. In circumstances described in detail below, the sentencing judge permitted a single witness, Dr. McMaster, to be recalled and testify before him. [91] Defence counsel also asked the sentencing judge to make factual findings so that the basis of the findings of guilt relating to the convictions would be clarified for the purposes of sentencing. Again, in circumstances described in detail below, the sentencing judge did so. [92] In October 2016, defence counsel also instituted an unsuccessful mistrial application based on fresh evidence, as well as a failed constitutional challenge to the dangerous offender regime in the Criminal Code . I unfold the circumstances of constitutional challenge in more detail below. [93] On December 9, 2016, Dr. McMaster was recalled and was questioned by Mr. Aragon’s defence counsel as well as the Crown. The defence did not seek to call additional evidence before the sentencing judge. Final sentencing submissions were completed on February 24, 2017. [94] Judgment on sentence was scheduled for June 30, 2017, but the decision was not ready. On September 8, 2017, the sentencing judge gave a brief oral decision finding Mr. Aragon to be a dangerous offender and sentencing him to indeterminate imprisonment. Written reasons were to follow. [95] On December 14, 2017, defence counsel requested the written reasons for the sentence, as well as the outstanding written reasons on other applications that had been denied. [96] He requested written reasons again on January 24, 2018. [97] On March 6, 2018, the sentencing judge released his written reasons for his factual findings. On March 8, 2018, he also released his written reasons for denying the constitutional challenge. The written sentencing reasons for the sentence that had been imposed on September 8, 2017 were provided on March 14, 2018. THE ISSUES [98] In support of his proposed sentence appeal, Mr. Aragon argues that the s. 669.2 procedure was not undertaken fairly; that the written reasons offered by the sentencing judge were insufficient and were after-the-fact justifications for prior oral rulings he had made long before; and that the sentencing judge erred in his rulings on the sentencing facts. [99] Mr. Aragon also argues that the dangerous offender designation and the sentence of indeterminate imprisonment were unreasonable. Additionally, he seeks the admission of fresh evidence outlining the rehabilitative progress he has made since the sentencing judge’s ruling. [100] The Crown contends that if we find that any legal errors occurred during sentencing, but that they did not occasion a substantial wrong or miscarriage of justice, we should dismiss the appeal pursuant to the broad authority to do so implicit in s. 759 of the Criminal Code : R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at paras. 47-49; R. v. Boutilier , 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 81-89, aff’g 2016 BCCA 235, 336 C.C.C. (3d) 293. [101] The issues on the sentence appeal can be described and conveniently approached as follows: A. Did the sentencing judge err in making factual findings relating to aggravating facts? B. Were reasons for rulings made during the sentencing hearing insufficient? C. The remaining issues raised by Mr. Aragon on the sentence appeal: a. Were the reasons for the rulings made during the sentencing hearing made after-the-fact? b. Was the s. 669.2 hearing an unfair process and a miscarriage of justice? c. Was the dangerous offender designation and/or the indeterminate sentence unreasonable? d. Is the fresh evidence of rehabilitation admissible? D. If any of these errors occurred, should the appeal be denied because of the absence of a miscarriage of justice? [102] For reasons that I will describe below, I would allow the sentencing appeal on grounds A and B. As I will also explain, it is either unnecessary or not in the interests of justice to consider the remaining issues that Mr. Aragon has raised. Nor is it in the interests of justice to exercise our jurisdiction to deny the sentencing appeal based on the absence of a miscarriage of justice. I would set aside the sentence and order a new sentencing hearing. A. Did the Sentencing judge err in making factual Findings Relating to Aggravated Facts? [103] In my view, the sentencing judge erred in making factual findings relating to several aggravating factors that influenced his characterization of the seriousness of the index offence. These errors are material because the characterization of the seriousness of the index offence heavily influenced the sentencing judge’s decision to sentence Mr. Aragon to an indeterminate sentence as a dangerous offender. [104] Given that this was a jury trial, and that juries do not give reasons for the general verdicts they reach, the obligation fell to the sentencing judge to determine the material facts required for sentencing. This was required to be done pursuant to ss. 724(2) and (3) of the Criminal Code . Section 724(2) provides: Where the court is composed of a judge and jury, the court (a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact. [105] To sentence an offender convicted by jury, a sentencing judge must therefore identify the facts that are essential to the jury’s verdict or, in other words, identify “the express and implied factual implications of the jury’s verdict”: R. v. Ferguson , 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 17, citing R. v. Brown , [1991] 2 S.C.R. 518, at p. 523. Where “the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury but should come to his or her own independent determination of the relevant facts”: Ferguson , at para. 18. [106] It follows that there is a two-step process required in settling the factual record of sentencing in a jury trial. First, the sentencing judge must identify any relevant factual determinations the jury has made by examining what facts were essential to the jury’s verdicts, and then apply those facts when sentencing the offender. Second, where it is necessary in order to sentence an offender to determine facts that were not expressed or necessarily implicit in the jury verdict, the sentencing judge is to engage in their own, independent fact-finding exercise. [107] It is therefore an error for a sentencing judge to rely on facts in sentencing that are not expressed or implicit in the jury’s verdict, but that are based on the sentencing judge’s belief as to what the jury must have decided: R. v. Moreira , 2021 ONCA 507, at paras. 43-57. To rely on aggravating facts that are not necessarily expressed or implicit in the jury verdict, the sentencing judge must come to their own independent determination that those aggravating facts have been proved, beyond a reasonable doubt: Criminal Code , s. 724(3)(e); R. v. Gardiner , [1982] 2 S.C.R. 368, at paras. 112-14. I am persuaded that the sentencing judge applied these rules incorrectly. [108] The sentencing judge gave an oral decision relating to the factual findings on November 8, 2016, followed by subsequent written reasons on March 6, 2018, some 16 months later. [109] It is clear that in the oral decision the sentencing judge identified findings that he concluded were necessarily implied by the jury verdict, rather than factual findings he was making on his own. Speaking directly to Mr. Aragon he said: I found favour with the Crown submissions […] that the jury verdict was founded on the premises that the Crown argued it should be founded on which is that you were the one who pocket dialled 911 and they recorded a beating of an individual in Peterborough and that you were the primary author of that beating. That’s just a synopsis okay? And I’m only going by what I read, as you understand. I didn’t hear the evidence, but that’s what the jury found and I’m content to find that’s exactly what they found. [Emphasis added.] [110] It is evident that the sentencing judge’s written reasons were likewise based solely on his interpretation of the facts he found were essential to the jury verdict and not on his own independent findings from the evidence. He quoted the above ruling and said, “Here is the full template of the basis of the determination that I came to in November 2016”. [111] Mr. Aragon argues that the sentencing judge erred in deriving factual findings from the jury verdict that aggravated the seriousness of the index offence. Those impugned factual findings include: (1) Mr. Aragon was the “primary author of the beating”; (2) the voice on the 911 call was Mr. Aragon’s; (3) his motive for the beating was the gang feud alleged by the Crown; and (4) Mr. Aragon was “in a fevered pitch of violence, with the glee exhibited by Mr. Aragon in so doing captured in the 911 call”. (1) The finding that Mr. Aragon was the “primary author of the beating” [112] I agree with Mr. Aragon that a finding that Mr. Aragon was the “primary author of the beating” was not essential to the jury verdict, and that the sentencing judge erred in finding that it was. In order to attribute this role to Mr. Aragon when sentencing him, the sentencing judge would have had to have come to his own determination that this was so, beyond a reasonable doubt, but he never engaged in that analysis. [113] The Crown argues before us, as it did before the sentencing judge, that this finding was implicit in the jury verdict, given that the jury was not addressed on party liability. In my view, the fact that party liability was not on the table before the jury is immaterial. There was an evidentiary basis on the evidence for concluding that this was a group beating, and anyone who applied any force to Mr. Fernandes would be a principal, even if not the primary author of the beating. Therefore, the fact that Mr. Aragon was convicted as a principal does not disclose the jury’s findings relating to the specific role he played in the beating, let alone a finding that he was the “primary author of the beating”. [114] In his written reasons, the sentencing judge offered three reasons, apart from general agreement with the Crown, for finding that the jury held that Mr. Aragon was the primary author of the beating. He noted that this was the Crown theory, he said the evidence makes this finding plain, and he relied upon the manner in which the trial judge instructed the jury. With respect, none of these points support the sentencing judge’s conclusion that the jury found Mr. Aragon to have been the primary author of the beating. [115] First, the Crown theory cannot carry significant weight in interpreting the essential factual findings a jury has made, since a jury need not rely on the Crown theory to convict. Even if the jury rejected the Crown theory, there was evidence that would have enabled jurors to be satisfied as to each element of the offences Mr. Aragon was charged with, without concluding that he was the primary author of the beating. [116] Second, in this case the evidence before the jury does not assist in identifying the factual finding the jury made, if any, about Mr. Aragon’s precise role in the assault. I do accept that where evidence leads to only one outcome, it is appropriate for a sentencing judge to consider this when identifying what is essential to the verdict, but that was not this case. As indicated, this was a group assault in which different assailants may have played different roles, and there was evidence available to support a finding that more than one assailant possessed a baseball bat. Simply put, in the circumstances of this case the evidence does not support the conclusion that it was essential to the jury verdict that the jury found Mr. Aragon to have been the primary author of the beating. [117] There is a related but independent concern of equal gravity. In referring to what “the evidence makes plain” the sentencing judge was clearly undertaking his own factual assessment of the evidence, but he did so in an attempt to determine what the jury must have found. This is an erroneous way to proceed. As indicated, a sentencing judge is not to undertake their own assessment of the evidence in an effort to divine what the jury must have found. If the findings the jury made are not apparent from the verdict, a sentencing judge must make their own independent determination of whether the Crown has proved beyond a reasonable doubt the aggravated facts upon which it seeks to rely. [118] Third, I see nothing in the jury direction that shows that the jury must have found that Mr. Aragon was the primary author of the beating. I agree that the jury direction does support the inference that the jury must have found that Mr. Aragon applied force to Mr. Fernandes with a bat, but beyond this there is nothing in the jury charge to indicate the extent and nature or consequences of the force that the jury found Mr. Aragon to have applied, relative to other assailants. [119] I would therefore reject the sentencing judge’s reasoning and his conclusion that the finding that Mr. Aragon was the primary author of the beating was essential to the jury verdict. This is not a minor error. Although it is true that all principal offenders bear responsibility for a joint assault, and sentences imposed may not vary between joint participants who play a greater or lesser role in administering a beating or in directly causing injuries, the nature of the assaultive behaviour engaged in by each joint participant can have a material impact on the sentences imposed. This is particularly so in a case such as this where the alleged brutality of the accused’s behaviour is relied upon in support of a dangerous offender finding, and/or an indeterminate sentence. A finding that Mr. Aragon was the primary author of the beating is therefore a finding of importance, and the sentencing judge erred when making it. (2) The finding that the voice on the 911 call was Mr. Aragon’s [120] Although the sentencing judge did not directly articulate a finding that the jury accepted that “the voice” on the 911 audio recording was Mr. Aragon’s, it is implicit in his reasons that he did so. Indeed, he said he “found complete favour with the Crown’s submissions”, which included this claim. [121] Since the sentencing judge did not articulate this finding directly, his reasoning cannot be identified with absolute confidence. When he spoke in his written reasons about the 911 audio recording, he noted that the 911 call dovetails with the surveillance footage and the Crown position. Once again, if these were the bases upon which he found that the jury concluded that “the voice” on the call was Mr. Aragon’s, those reasons are inadequate. Neither the surveillance evidence nor the Crown position logically supports a finding that the jury necessarily found that it was Mr. Aragon’s voice on the 911 audio recording. [122] The Crown relies on a distinct point not identified by the sentencing judge to support his conclusion that the jury must have found it to be Mr. Aragon’s voice on the 911 audio recording, namely that the jury convicted Mr. Aragon of threatening bodily harm and the only threat identified in the evidence is captured on the 911 audio recording. The difficulty with drawing this inference is that there were several voices on the 911 recording. Even though it is implicit from the jury verdict that the jury necessarily found that Mr. Aragon was the speaker who expressed the recorded threat, it does not necessarily follow that the jury concluded that Mr. Aragon made all of the material comments captured by the 911 audio recording. It is not implicit in the jury verdict that the jury found that it was Mr. Aragon’s voice making all of the material utterances that occurred during the 911 call, and it was an error for the sentencing judge to have held otherwise. (3) The finding that Mr. Aragon’s motive for the beating was the gang feud alleged by the Crown [123] The error I have just identified cascades into the sentencing judge’s conclusion that the jury accepted that Mr. Aragon’s motive for the beating was the gang feud alleged by the Crown. This conclusion was based in material part on the prior erroneous finding that the jury found that it was Mr. Aragon’s voice that was captured on the 911 audio recording, describing for Mr. Fernandes why he was being beaten. As I have explained, it does not follow from the jury’s finding that Mr. Aragon uttered a threat, that implicitly the jury must have found that he is also the person who was captured on the 911 audio recording uttering the words that apparently disclose the motive for the attack. [124] Moreover, it was open to the jury to reject the motive inferences that the Crown sought to have drawn from the extrinsic conduct evidence, yet still convict Mr. Aragon of the offences it did. Since a jury is free to convict without proof of motive, there is no basis for concluding that it was essential to the jury verdict that it accepted the Crown’s motive theory. (4) The finding that Mr. Aragon was in a “fevered pitch”, and acting with “glee” [125] Finally, Mr. Aragon takes issue with the sentencing judge’s holding that he was “in a fevered pitch of violence, with the glee exhibited […] in so doing as captured in the 911 call”. Even leaving aside the other issues Mr. Aragon raises about this finding, this finding depends on the sentencing judge’s prior problematic conclusion that the jury found that it was Mr. Aragon’s voice speaking the words on the 911 call. The finding that Mr. Aragon was in a “fevered pitch of violence” and “glee” was therefore also arrived at in error. Conclusion on the Aggravated Factual Findings [126] The sentencing judge erred in arriving at aggravated factual findings that had a material bearing on the dangerous offender determination. B. Were the reasons for the sentencing rulings insufficient? [127] Trial judges are obliged, including when sentencing offenders, to provide reasons that explain what they have decided and why they have decided that way: R. v. G.F. , 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 69. When read as a whole in context of the evidence, the arguments and the live issues in the case, those reasons must disclose the pathway the trial judge took to reach their decision (“factual sufficiency”) and must enable the unsuccessful party to discern if any errors have occurred, so that they can meaningfully exercise their right to appeal (“legal sufficiency”). I am persuaded that the reasons the sentencing judge provided with respect to some of the rulings he made during the sentencing hearing were insufficient. The Rulings [128] The sentencing judge was required to make five rulings during the sentencing hearing. Included among those rulings was a decision denying a mistrial. I will say no more about the mistrial decision because no issue was taken with the sufficiency of the written reasons for that decision, which were not placed before us. The remaining 4 rulings require discussion, relating to: (1) the viva voce evidence that the sentencing judge would hear; (2) the aggravated factual findings ruling; (3) a constitutional challenge to statutory provisions; and (4) the sentencing ruling. I would find that the first 3 of those rulings were insufficient, but the sentencing ruling itself was not insufficient. (1) The viva voce evidence ruling [129] After assuming responsibility for adjudicating the Crown’s dangerous offender application following the trial judge’s retirement, the sentencing judge met with the parties on February 29, 2016. Defence counsel alerted the sentencing judge that it would seek to have witnesses recalled because there were issues of credibility and reliability that the sentencing judge would have to adjudicate. The Crown opposed this, asking the sentencing judge to proceed on the written record. The Crown argued that recalling witnesses would be contrary to s. 669.2 of the Criminal Code , the provision that permitted the appointment of the sentencing judge to the case. [130] Brief memoranda were filed with the sentencing judge in March 2016 in which defence counsel requested that some of the witnesses be recalled, which the Crown opposed. [131] On June 6, 2016 the sentencing judge said during an administrative appearance, “I think Dr. McMaster should be recalled.” [132] On the next appearance, October 17, 2016, the sentencing judge repeated that he had determined that “at the very least, Dr. McMaster should be recalled.” He then said, “There’s no need for any of the other witnesses to be produced by the Crown.” He explained that Dr. McMaster was being recalled “out of an abundance of fairness” given the “lengthy” evidence he had provided. The sentencing judge said he read what the other witnesses had to say, and he did not think it was necessary that they be called. [133] On October 19, 2016, the sentencing judge described his decision to permit Dr. McMaster to be recalled as an “indulgence” to defence counsel. [134] No further reasons were provided for rejecting defence counsel’s request to recall other opinion witnesses who had testified during the sentencing hearing, prior to the sentencing judge being appointed to continue the proceedings. [135] In his March 8, 2018 written ruling on Mr. Aragon’s constitutional challenge, the sentencing judge appended a footnote relating to his decision that only Dr. McMaster would be recalled. It read, “I advised counsel in court I would provide further reasons, but there was no need for such.” This footnote was recopied into the sentencing decision. [136] With respect, the sentencing judge failed to provide sufficient reasons for his decision to recall only Dr. McMaster, and not the remaining witnesses Mr. Aragon sought to have recalled. When his comments are taken as a whole, it is evident that the sentencing judge ventured only two explanations: (1) in denying the application relating to witnesses other than Dr. McMaster, he said that Dr. McMaster was an important witness who had provided lengthy testimony such that he should be recalled as an “indulgence”, and “out of an abundance of fairness”; and (2) he said that he had read the evidence of the other witnesses and it was not necessary to call them. With respect, neither explanation is sufficient. At best, explanation (1) simply implies that the same “indulgence” that was warranted for Dr. McMaster was not warranted for other witnesses, while explanation (2) fails entirely to disclose an intelligible pathway that the sentencing judge took to reach the decision that he did. [137] Moreover, no reasons were provided relating to the scope of discretion or the legal standard that should be applied in determining whether witnesses should be recalled where proceedings have been continued pursuant to s. 669.2 of the Criminal Code . I am persuaded that the reasons offered on the viva voce evidence ruling were legally insufficient. (2) The Aggravated Factual Findings Ruling [138] I have already described the aggravated factual findings ruling. This ruling had to be made before the parties could proceed to sentencing, since they needed to know the factual basis upon which sentencing would occur. Brief submissions were made on this interlocutory issue on February 29, 2016 and written submissions were provided on March 16, 2016. On November 8, 2016, the sentencing judge delivered a brief oral decision stating only that he “found favour with the Crown submissions”. The sentencing judge indicated that written reasons would follow. [139] Sentencing submissions proceeded and were completed on February 24, 2017, without reasons relating to the factual findings having been released. It is evident that the parties had to rely on the Crown submissions to identify the aggravated factors relating to the index offence that would be at play during the dangerous offender hearing. [140] When Mr. Aragon was sentenced to an indeterminate sentence as a dangerous offender on September 8, 2017, the reasons on the aggravated factual findings holding were still outstanding. By that point, they were required only for appeal purposes. [141] In December 2017, defence counsel requested the written reasons relating to the dangerous offender declaration and the indeterminate sentence, which had also been delayed. At that time, he reminded the sentencing judge that the reasons on the aggravated factual findings ruling were still outstanding. [142] The written reasons relating to the factual findings were released on March 6, 2018, approximately two years after arguments had been made, and 16 months after the sentencing judge’s oral ruling adopting the Crown’s position without explanation had been provided. [143] When those written reasons were issued, they were brief. I appreciate that the quality of reasons is not necessarily commensurate with length, but the following description of the content of the reasons gives flavour to how cursory those reasons in fact were. [144] The first 13 paragraphs recite the history of the proceedings, with much of the discussion dedicated to explaining the delay in the hearing, and ascribing much of that responsibility to the defence. The next eight paragraphs rehearse some of the positions of the parties. The following seven paragraphs under the heading “Some Further Comment” contain the limited analysis that is offered. The first and last of those seven paragraphs simply rehearse the sentencing judge’s agreement with the Crown position. Three of the seven paragraphs are dedicated to refuting Mr. Aragon’s claim that the Crown did not prove that the 911 call was a pocket dial, thereby leaving open the possibility that Mr. Aragon himself called 911. The penultimate of the seven paragraphs simply records that the sentencing judge’s findings are built on a review of the transcripts, exhibits, and the charge, with no specification provided. [145] The only aggravated factual finding that is addressed directly in those seven paragraphs relates to Mr. Aragon’s role as the “principal in the severe beating”. Reference is made to what “the evidence makes […] plain” but the evidence that the sentencing judge was referring to and the inferences relied upon are not identified. The defence arguments are not addressed. As alluded to above, one of the seven paragraphs may possibly be addressing the sentencing judge’s finding that it was Mr. Aragon’s voice on the 911 audiotape, but this is not certain because the paragraph is unclear. [146] In my view, as limited as the aggravated facts reasons are, they are not legally insufficient. As illustrated above, it is possible to discern the legal standard the sentencing judge applied in resolving the issues before him, and that he applied the wrong legal test. The problem I am now addressing is one of factual sufficiency. I am mindful that there is a very low bar for factual sufficiency: G.F. , at para. 71. However, that low bar is not met here. Beyond expressing general agreement with the Crown and rejecting the possibility that the 911 call was intentional, the sentencing judge did not explain his central finding that the jury necessarily concluded that it was Mr. Aragon’s voice that was recorded throughout the 911 call. In my view, it is not possible on the record to discern the pathway the sentencing judge took in preferring the Crown submissions. This was a live and material issue that required explanation to ensure a transparent adjudicative process in which justice can be seen to be done. The requisite explanation was lacking. (3) The Constitutional Challenge Ruling [147] In October 2016, Mr. Aragon brought a constitutional challenge to s. 753 of the Criminal Code . It was argued on December 5 and 6, 2016. On June 30, 2017, brief oral reasons were provided rejecting the constitutional challenge, with more expansive reasons to follow. [148] The written reasons for that decision were provided on March 8, 2018. Those reasons span 47 paragraphs. The first 24 paragraphs recount the history of the case and have no bearing on the constitutional questions. The next 12 paragraphs describe the materials that were filed by the parties, but not the arguments made. Eleven paragraphs appear under the heading “Decision on the Constitutional Challenge”. Paragraphs 38, 41, 42, and 46 address the sentencing judge’s reasons for denying the constitutional challenge. In paragraph 38, the sentencing judge recorded that he was following the Court of Appeal for British Columbia’s decision in Boutilier and that the defence argument did not satisfy him that Boutilier was wrong or should not otherwise apply to the facts of the case. In paragraph 41, he listed paragraphs of interest from the Boutilier decision. In paragraph 42, the sentencing judge expressed agreement with the Crown that there are extensive procedural protections afforded to an offender in other sections of the Criminal Code . Those sections are enumerated but their import is not described. In paragraph 46, the sentencing judge records, “I concurred with the Crown with its argument at paragraph 66-69 of its factum”. [149] I am of the view that the reasons for decision relating to the constitutional challenge were insufficient. The only explanations offered for rejecting a lengthy, sophisticated, complex, and multifaceted constitutional argument were (1) reliance on the Court of Appeal for British Columbia’s decision in Boutilier ; and (2) agreement with the Crown that there are extensive procedural protections, and agreement with paragraphs 66-69 of the Crown argument. [150] There will certainly be occasions where issues are narrow enough that a decision may be sufficiently explained by simply citing a precedent, but this is not one of those occasions. Mr. Aragon argued that s. 753 was “arbitrary” and “overbroad”, contrary to s. 7 of the Charter . Although there are features of the analysis in Boutilier that could be relied upon to address the arbitrariness arguments that were made, the only s. 7 challenge arguments advanced in Boutilier were that the sections were “overbroad” and “grossly disproportionate”. Therefore, the decision in Boutilier was not a complete answer to the arguments made. Even if had it been, one would have expected some explanation for why the non-binding reasoning in Boutilier would be followed. [151] With respect to the expressions of agreement with the Crown, the existence of procedural protections cited by the Crown do not answer the heart of the constitutional arguments that were made, nor do the paragraphs cited from the Crown argument. Indeed, it appears that the sentencing judge may have cited paragraphs 66-69 of the Crown argument in error. These specific paragraphs include the last part of the British Columbia appeal Crown’s overview of the errors the trial judge was found to have made in Boutilier , and the introductory paragraph from the British Columbia appeal Crown’s analysis of the first of those errors. They offer no meaningful explanation for the sentencing judge’s decision in this case. This analysis can only fairly be illustrated by reproducing those paragraphs from the British Columbia appeal Crown’s argument here: 66. The first error stems from an erroneous approach to an understanding of the challenges inherent in tailoring any criminal sentence to address risks through the operation of a combination of sentencing principles including, for example, specific deterrence and rehabilitation, and where ultimate responsibility for future compliance with the law rests entirely with the offender. All sentences are forward looking and whether they succeed in preventing recidivism can never be safely predicted, let alone guaranteed. 67. The second error relates to the failure of the trial judge to properly appreciate the effects of designation pursuant to s. 753(1) on the liberty of the offender. Properly understood, the effects of designation on the liberty of the subject are aligned with and do not overshoot the objective of the legislation. 68. Both errors will be addressed in turn. (i) Identification and Management of Risk in Criminal Sentencing 69. Describing the sentencing of criminal offenders as an art captures both the difficulty and delicacy of assessing the moral blameworthiness of an offender’s conduct along with his unique personal circumstances, with a view to crafting a sentence that addresses multiple – and sometimes competing – principles. In varying measures, the targeted principles are both individual (rehabilitation, specific deterrence) and societal (denunciation, general deterrence) or both. Yet all are designed to protect society by impacting the offender or other community members.” [Emphasis in original.] [152] To be clear, I should not be taken as offering any opinion on the constitutional arguments Mr. Aragon made. The Court of Appeal of British Columbia’s decision in Boutilier was subsequently affirmed in the Supreme Court of Canada, [2017] SCC 64, [2017] 2 S.C.R. 936, which puts an end to the argument that s. 753 of the Criminal Code is overbroad contrary to s. 7, or in breach of s. 12. Arguably, that decision also holds out little hope for the remaining arbitrariness argument that Mr. Aragon advanced. Nonetheless, the sentencing judge’s written reasons for rejecting the arguments that Mr. Aragon made failed to address the live issue of arbitrariness or to furnish a meaningful explanation of the legal analysis the sentencing judge engaged in. Put simply, it is not possible to determine whether the sentencing judge applied the correct legal standards. The reasons are therefore legally insufficient. (4) The Sentencing Decision [153] As indicated, sentencing submissions were completed on February 24, 2017. Judgment on sentence was scheduled for June 30, 2017, but the decision was not ready. [154] On September 8, 2017, the sentencing judge gave a brief oral decision finding Mr. Aragon to be a dangerous offender and sentencing him to indeterminate imprisonment, with written reasons to follow. [155] In that oral decision, the sentencing judge summarized the competing bottom line positions on whether Mr. Aragon qualified as a dangerous offender. He offered no explicit conclusion on that issue, instead proceeding directly to whether a long-term supervision order, a determinate sentence, or an indeterminate sentence should be imposed. He opted for a determinate sentence after expressing the conclusion that Mr. Aragon could not be managed in the community without risk to the public given Mr. Aragon’s unspecified “actions […] in the past and his brutal beating of the victim in this case, accompanied with the glee in which Mr. Aragon appeared to exhibit upon the beating of [Mr. Fernandes]”. He referred later in his oral decision to the evidence of Dr. McMaster as supporting his conclusion “that Mr. Aragon would be too much of a risk to the community if he were otherwise to be placed on a determinate sentence and/or determinate sentence with a long-term supervision order.” [156] The written sentencing reasons that would explain the sentence that had been imposed on September 8, 2017 were provided on March 14, 2018, more than one year after submissions had been made, and six months after the oral disposition had been provided. [157] The written decision began by following the pattern identified in earlier decisions. It offered a detailed historical chronology of 29 paragraphs, many of which were copied from the sentencing judge’s earlier rulings. [158] The following 12 paragraphs go on to describe the sentencing hearing that had taken place, including the materials that had been filed, ending with a description of the oral sentencing disposition that was imposed on September 8, 2017. [159] The sentencing judge then offers a number of paragraphs in which he sets out to explain his decision. The content addressing the reasons in favour of an indeterminate sentence are not as detailed as one might expect, but they unfold the sentencing judge’s thinking on this issue. However, I see two matters that warrant comment. [160] First, the reasons offered for the sentencing judge’s finding that Mr. Aragon qualifies as a dangerous offender are largely conclusory. As indicated, the sentencing judge did not attempt to explain his reasoning on this question in his oral decision. In two places in his written decision, over a total of only seven paragraphs, he addressed directly whether Mr. Aragon was a dangerous offender, finding that Mr. Aragon qualified as a dangerous offender on all three available criteria provided for in s. 753(1)(a) of the Criminal Code . He offered no direct explanation for his findings on the first two dangerous offender criteria, namely the s. 753(1)(a)(i) criterion (that there had been “a pattern of repetitive behaviour by the offender […] showing a failure to restrain his […] behaviour and a likelihood of causing death or injury to other persons […] through failure in the future to restrain his […] behaviour”) and the s. 753(1)(a)(ii) criterion (that there had been “a pattern of persistent aggressive behaviour […] showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his […] behaviour”). With respect to the third criterion, encompassed by s. 753(1)(a)(iii) (that Mr. Aragon’s behaviour associated with the offence for which he has been convicted was “of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint”), the sentencing judge referred to the brutality of beating a man with a baseball bat about the head and body. He also noted that Mr. Aragon’s last offence involved beating a man with a golf club. Beyond this, the sentencing judge simply expressed agreement with Crown submissions, said he “reviewed the evidence [and] considered the submissions”, and stated that he found the evidence of Dr. McMaster to be “important in the context of the court’s need to assess the personality traits of the offender outside of the realm of the proven facts of his criminality.” [161] The second concern I see relates to the fact that Mr. Aragon provided extensive submissions as to why he should not be designated a dangerous offender, and that if he was designated a dangerous offender, why an indeterminate sentence was not appropriate. The sentencing judge did not acknowledge or address those submissions directly. [162] In simple terms Mr. Aragon argued that although the Crown could establish a pattern of repetitive or aggressive behaviour, it could not establish the likelihood that in the future he would inflict severe damage to other persons or that he would be indifferent to the reasonably foreseeable consequence of his behaviour. He also argued that the Crown had not proved the brutality required by s. 753(1)(a)(iii). [163] Specifically, Mr. Aragon submitted that the crimes he had been convicted of were not exceptionally serious. They were among the least serious of the offences that qualified an offender for a dangerous offender designation, and Mr. Fernandes had not received life-threatening injuries. There was no evidence of the precise role that Mr. Aragon played in inflicting those injuries, or as to the current state of Mr. Fernandes’ injuries. Three others who pleaded guilty to participating in the same attack received sentences of less than two years incarceration. While I appreciate that a sentencing judge is not required to respond to every argument, I note that none of these important points were acknowledged or addressed by the sentencing judge. [164] Mr. Aragon also submitted that he does not pose the kind of rare risk that warrants a dangerous offender designation or an indeterminate sentence. Noting that this designation is to be exceptional and used with restraint, he argued that he is not exceptionally dangerous when compared to many other offenders. He further noted that he had received a Psychopathy Checklist-Revised score that put him in the 75th percentile relative to North American offenders, such that a dangerous offender designation was unnecessary because 25% of offenders produced higher scores. In his submissions, Mr. Aragon’s counsel also closely scrutinized the evidence that Dr. McMaster provided about the limitations of the psychological tests in predicting the risk of violence, let alone serious violence. He also emphasized Dr. McMaster’s concession that Mr. Aragon’s scores likely overestimate his risk of serious violence and do not account for the effect that legal conditions could have on his behaviour. Mr. Aragon also relied on testimony furnished by Dr. McMaster that the primary causes of his criminality were dynamic – his affiliation with gangs and his substance abuse – and that he was treatable using programming, long term substance use treatment, and pharmaceuticals. Mr. Aragon had yet to receive any of these treatments. These arguments were not acknowledged or directly engaged with by the sentencing judge, beyond his finding that Mr. Aragon has not demonstrated a motive to rehabilitate, his conclusion that Mr. Aragon’s affiliation with gangs was “entrenched”, and his general dismissal of Dr. McMaster’s comments about Mr. Aragon’s treatability as “expression[s] of hope”. [165] Mr. Aragon also cited evidence of his remorse for the crimes he has committed, his family and community support, the progress he has made while incarcerated, his impressive record of education and vocational training, and the termination of his relationship with Mr. Pammett’s daughter. The sentencing judge commended Mr. Aragon for some of these developments in his oral decision, but simply said in his written decision that “[r]egrettably there is little if anything to suggest that were Mr. Aragon returned to the community that he would be amenable to control or supervision.” [166] Mr. Aragon relied on similar arguments to those described above to urge that even if he was found to be a dangerous offender, he should not receive an indeterminate sentence, which he argued would not be the least restrictive, proportionate and acceptable sentence. He added Dr. McMaster’s testimony that his risk of offending would be lowered by the passage of time, such that he would likely pose a lower risk of reoffending after serving a determinate sentence. The risk would lower particularly if the determinate sentence was accompanied by a long-term offender designation, a sentence that carries effective enforcement mechanisms. He emphasized that his history and profile do not place him in the small group of highly dangerous criminals who warrant an indeterminate sentence. The sentencing judge characterized Dr. McMaster’s evidence about the likely reduction in risk over time as something that “may” happen, unsupported by evidence as to “when age will assuage the risk concern.” [167] In spite of the concerns I have described, I accept that the sentencing judge provided an intelligible path to his finding that an indeterminate sentence was required. The outcome is not so clear with respect to the finding that Mr. Aragon is a dangerous offender, but even with respect to that finding, I would not find the reasons to be insufficient. [168] I do note that the sentencing judge failed to offer a direct explanation for why Mr. Aragon met two of the three alternative dangerous offender criteria – s. 753(1)(a)(i) and 753(1)(a)(ii). These central issues were contested during the sentencing hearing, and I see nothing in the record that can explain these conclusions. If the dangerous offender designation turned solely on these findings, I would have found the reasons to be insufficient. However, the sentencing judge also found that Mr. Aragon satisfied the third criterion – s. 753(1)(a)(iii). Although a more detailed and direct analysis would have been preferable given what was at stake for Mr. Aragon, I am not persuaded that the reasons are legally or factually insufficient. It is evident that the sentencing judge was persuaded that the attack on Mr. Fernandes was brutal and conducted with glee. In the course of his written reasons, the sentencing judge considered Mr. Aragon’s history of violence and aggression, and he identified impediments to his self-control, including his personality disorder, his history of substance abuse, his difficulties with pro-social relations and his lack of respect for the law. When the sentencing judge’s reasons are considered as a whole and in context, his pathway to the finding he made is intelligible. C. The Remaining Issues raised by Mr. Aragon on the sentence appeal [169] I have found that the sentencing judge erred in identifying the aggravated facts relevant to the sentencing and that he failed to provide sufficient reasons for decision relating to: (1) the viva voce evidence that the sentencing judge would hear; (2) the aggravated factual findings ruling; and (3) a constitutional challenge to the statutory provisions. As I will explain below, on the basis of these errors, I would allow the sentence appeal and set aside the dangerous offender designation and the indeterminate sentence. It is therefore unnecessary to consider whether the sentencing judge engaged in after-the-fact reasoning, or whether the s. 669.2 hearing was an unfair process and a miscarriage of justice. [170] In the circumstances of this case, I would not attempt to determine whether the dangerous offender designation and/or the indeterminate sentence were unreasonable. Although it would ordinarily be beneficial to do so because an affirmative determination would likely result in the imposition of a final sentence by this court without the need for a rehearing, it is not in the interests of justice to address these questions. We do not have the benefit of a settled record upon which to make this determination, given the sentencing judge’s error in establishing the factual foundation relating to the index offence. In addition, one of Mr. Aragon’s complaints is that it was unfair for the sentencing judge to sentence him in the circumstances of this case without hearing from some of the witnesses. It is preferable in these circumstances and given the complexity of the record to send this matter back for a rehearing where a sentencing judge can determine the procedure and facts required to impose an appropriate sentence. [171] Given that I would not venture into a determination of the reasonableness of the designation and/or the indeterminate sentence, I need not rule on the fresh evidence application. D. If any of these errors occurred, should the appeal be denied because of the absence of a miscarriage of justice? [172] I am persuaded that it would not be appropriate to deny Mr. Aragon’s appeal of his dangerous offender designation and sentence, pursuant to s. 759(2)(b) of the Criminal Code , on the basis that no substantial wrong or miscarriage of justice has occurred. This authority to deny an appeal of a dangerous offender designation is to be used rarely: R. v. Walker , 2019 ONCA 765, 381 C.C.C. (3d) 259, at para. 124. The erroneous aggravated facts ruling played a central role in the dangerous offender designation. In my view, given the uncertainties that remain surrounding the factual record, and the sentencing judge’s failure to offer sufficient explanations for important rulings made in the course of the sentencing hearing, this would not be one of those rare circumstances where this jurisdiction should be exercised. CONCLUSION [173] I would dismiss Mr. Aragon’s conviction appeal. I would allow the sentence appeal, set aside the sentence, and remit Mr. Aragon’s sentencing and the Crown’s dangerous offender application to a rehearing before a new judge. Released: March 24, 2022 “G.R.S.” “David M. Paciocco J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. C.W. Hourigan J.A.” [1] Mr. Aragon’s counsel had agreed to the Crown relying on transcripts from his preliminary inquiry in support of its application to admit extrinsic discreditable conduct evidence. [2] Mr. Aragon raised a fourth point when challenging the sufficiency of the evidentiary foundation, namely that there was no evidence that Mr. Aragon was a member of the break-away motorcycle gang or that he had left the Loners on bad terms. In my view, this point is best addressed when considering whether the trial judge erred in finding that the probative value of the extrinsic discreditable conduct evidence outweighed the risk of prejudice. [3] In contrast, the fact that the Loners published unflattering information relating to Mr. Pammett on its website is non-hearsay circumstantial evidence of animosity between the Loners and Mr. Pammett. I will return to this point below.

COURT OF APPEAL FOR ONTARIO CITATION: Georgian Properties Corporation v. Robins Appleby LLP, 2022 ONCA 245 DATE: 20220328 DOCKET: C69443 Simmons, Pardu and Brown JJ.A. BETWEEN Georgian Properties Corporation Plaintiff (Appellant) and Robins Appleby LLP, Leor Margulies and Anthony Romanelli Defendants (Respondents) Milton Davis and Ronald Davis, for the appellant Peter Wardle and Evan Rankin, for the respondents Heard: February 9, 2022 by video conference On appeal from the judgment of Justice Grant R. Dow of the Superior Court of Justice, dated May 6, 2021, with reasons reported at 2021 ONSC 1591. REASONS FOR DECISION [1] The appellant, Georgian Properties Corporation, appeals from a summary judgment dismissing its negligence action against the respondent lawyers as statute barred under s. 4 of the Limitations Act, 2002 , S.O. 2002, c. 24, Sched. B (the “Act”). [2] The negligence claim arose from the respondent lawyers’ work in preparing disclosure documents, two mortgages and a promissory note for the developer of a condominium project that was registered in 2010. Once the condominium was turned over to the unit holders, the condominium corporation refused to pay the two mortgages and the promissory note. Litigation ensued. The condominium corporation attacked the adequacy of the disclosure documents in a factum delivered in June 2017. On July 7, 2017, a judge declined to strike the factum. In May 2018, the same judge held that the disclosure documents were insufficient, that the two mortgages and the promissory note were oppressive and that the promissory note also violated the Condominium Act, 1998 , S.O. 1998, c. 19 (the “ Condominium Act ”). She accordingly reduced the principal amount of the two mortgages and held the promissory note was void. [3] Georgian Properties commenced its negligence action against the respondent lawyers in November 2019. On a summary judgment to address the limitation issue, the motion judge concluded that the appellant knew or ought to have known no later than July 7, 2017, when a judge declined to strike the condominium corporation’s factum, that it had a claim against the respondent lawyers for which a proceeding was an appropriate remedy. [4] For the reasons that follow, we allow the appeal. Background [5] Georgian Properties is the successor [1] to a developer that, in 2010, completed development of a Scarborough residential condominium. [6] The condominium was registered as Toronto Standard Condominium Corporation No. 2051 (“TSCC 2051”) on February 1, 2010. On April 12, 2010, the original developer-controlled TSCC 2051 board of directors was turned over to an elected unit holder’s board of directors (the “Board turnover”). [7] The respondent lawyers acted for the developer in relation to the development of the condominium project and the sale of individual units. [8] As part of their retainer, the respondents drafted various documents relating to the condominium project, including: disclosure documents for distribution to potential unit purchasers; agreements of purchase and sale for unit purchasers; and the following two vendor-take-back mortgages and a promissory note from TSCC 2051 to the developer that were entered into prior to the Board turnover: · a multi-year mortgage in the amount of $2,122,000 plus 10% annual interest for the cost of HVAC system components sold by the developer to TSCC 2051 to be installed in individual residential units but form part of the common elements (the “HVAC mortgage”); · a multi-year mortgage in the amount of $1,026,375 plus 10% annual interest relating to surplus parking spaces and storage units sold by the developer to TSCC 2051 (the “parking unit mortgage”); and · a promissory note for $90,034.26 plus 12% annual interest to cover the cost of land transfer tax paid by TSCC 2051 when the developer transferred the condominium to TSCC 2051 (the “promissory note”) (the foregoing will be collectively referred to as the "debt instruments”). [9] Following the Board turnover, TSCC 2051 refused to make payments to the developer or its successors on account of the debt instruments. [10] On September 20, 2011, TSCC 2051 sued the developer and its principals and successors (hereafter, collectively the “developer”). TSCC 2051 advanced several claims, including negligence, breach of contract and breach of warranty relating to construction deficiencies. In addition, TSCC 2051 requested declarations that the HVAC mortgage, the parking unit mortgage and the promissory note were null and void, alleging overpricing, oppression [2] and failure to comply with the Condominium Act . In a statement of defence and counterclaim, the developer counterclaimed for enforcement of the debt instruments. Among other things, in relation to the enforceability of the debt instruments, the developer asserted it had made proper disclosure as required under the Condominium Act . [11] Prior to the developer’s 2016 bankruptcy, an agreement was reached under which: · the claim for construction deficiencies was settled; · the debt instruments were assigned to Georgian Properties; · Georgian Properties was entitled to pursue the counterclaim for enforcement of the debt instruments and would be bound by the decision in the action concerning their validity and enforcement; and · the claims and counterclaim concerning the debt instruments would be dealt with by summary judgment motion. [12] Prior to the scheduled summary judgment motion, TSCC 2051 sought leave to amend its statement of claim to add, among other things, claims that the condominium disclosure documents were inadequate. On May 3, 2016, a master permitted the amendments. On December 15, 2016, a Superior Court judge overturned the master’s decision regarding the disclosure documents and disallowed those amendments. [13] The parties subsequently exchanged factums addressing the validity and enforceability of the debt instruments for the summary judgment motion. In its factum seeking judgment for payment of the debt instruments, Georgian Properties claimed the debt instruments had been properly disclosed under the Condominium Act . In a responding factum, TSCC 2051 attacked the adequacy of the disclosure documents. [14] On July 5, 2017, Georgian Properties moved to strike TSCC 2051’s factum. On July 7, 2017, Akbarali J. declined to strike the TSCC 2051 factum paragraphs alleging inadequate disclosure. She ruled that as Georgian Properties was relying on the adequacy of its disclosure documents, it “would be unfair to preclude TSCC [2051] from joining in those issues.” [15] In November 2017, Georgian Properties rejected an offer to settle from TSCC 2051 for $3,500,000. [16] The summary judgment motion was argued before Akbarali J. on April 3-4, 2018. [17] While the decision on the summary judgment motion was under reserve, Georgian Properties offered to settle the action for $6,000,000. [18] Subsequently, on May 31, 2018, Akbarali J. found the developer’s disclosure with respect to the debt instruments insufficient. She held that the HVAC mortgage was oppressive based on the reasonable expectations of the purchasers concerning what was included in their purchase. She reduced the principal amount from $2,122,000 to $652,050. [19] Based on expert opinion concerning the value of unsold parking spaces and storage units, Akbarali J. also found the parking mortgage oppressive and reduced the principal from $1,026,375 to $73,000. [20] Finally, Akbarali J. found the $90,034.26 promissory note oppressive and contrary to s. 56(3) of the Condominium Act and set it aside in its entirety. [21] In the result, Akbarali J. found TSCC 2051 owed Georgian Properties approximately $1,625,000 for principal and accrued interest in relation to the debt instruments out of roughly $7,000,000 that had been claimed. This court upheld her decision on January 24, 2019. [22] On November 19, 2019, the appellant issued its statement of claim alleging the respondent lawyers were negligent in preparing disclosure documents for the condominium project and in providing advice concerning the debt instruments. Relevant Provisions of the Act [23] Section 4 of the Act sets out the basic limitation period of two years from the date a claim was discovered: 4. Unless 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. [24] “Claim” is defined in s. 1 to mean, “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.” [25] Sections 5(1) and (2) set out the basic principles governing discovery of a claim: (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. The Motion Judge’s Decision on the Limitation Issue [26] The parties agreed that the limitation issue could be disposed of by way of summary judgment motion. [27] The motion judge rejected Georgian Properties argument that it did not suffer a loss until Akbarali J.’s May 2018 decision. He found that Georgian Properties was suffering a loss as of April 2010 when TSCC 2051 refused to make payments under the debt instruments. He further held that Georgian Properties knew or ought to have known it had a claim against the respondent lawyers for which a proceeding was the appropriate remedy no later than July 7, 2017, when Akbarali J. refused to strike portions of TSCC 2051’s factum alleging inadequate disclosure. The Appellant’s Position on Appeal [28] On appeal, Georgian Properties submits the motion judge erred in holding it was suffering a loss when TSCC 2051 refused to make payments on the debt instruments. It contends that mere default on a fully secured mortgage or debt instrument does not give rise to “injury, loss or damage” under s. 5(1)(a)(i) of the Act. It reiterates its position in the court below that it suffered no injury, loss or damage until Akbarali J.’s May 2018 decision. Moreover, it asserts it would have no cause of action until that finding. Nor would a proceeding be an appropriate means to seek a remedy under s. 5(1)(a)(iv) of the Act until that finding was made. The Respondents’ Position on Appeal [29] The respondent lawyers argue that injury, loss or damage within the meaning of s. 5(1)(a)(i) of the Act occurred when the debt instruments were first given or, in the alternative, when TSCC 2051 refused to make payments under the debt instruments. They point to Central Trust v. Rafuse , [1986] 2 S.C.R. 147, involving a mortgage that was found to be void ab initio . However, the court noted, at p. 219, that the usual date for damage to occur in a solicitor’s negligence case is at the time of the solicitor’s breach of duty. See also Hamilton (City) v. Metcalfe & Mansfield Capital Corporation , 2012 ONCA 156, at para. 49, where this court observed that the determination in Central Trust as to when damage occurred was premised on the mortgagee receiving something less valuable than what it had transacted for as a result of the solicitor’s negligence. [30] In this case, Akbarali J. found the debt instruments oppressive. The respondent lawyers submit the debt instruments were thus worth less than their true value from the outset and that is when Georgian Properties suffered injury, loss or damage. Accordingly, the real question is when Georgian Properties discovered, or ought reasonably to have discovered, that injury, loss or damage had occurred. [31] Relying on Grant Thornton LLP v. New Brunswick , 2021 SCC 31, at para. 42, the respondent lawyers submit that Georgian Properties’ negligence claim against them was discoverable when it had “knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on [the respondent lawyers’] part [could] be drawn.” [32] The respondent lawyers submit the motion judge found as a fact that the loss or damage was discoverable on July 7, 2017 when Akbarali J. declined to strike TSCC 2051’s factum alleging insufficient disclosure. Moreover, they assert that finding, as set out below, is subject to deference on appeal: Clearly, as of the Endorsement of Justice Akbarali on July 7, 2017, [Georgian Properties] was specifically made aware a reason for the dispute was the prospect that the disclosure to unit holders was inadequate and the Promissory Note was void. Equally clear, the loss it was facing could be the result of an act or omission of the individuals or law firm that drafted the documents [Georgian Properties] was relying on. That is, if TSCC 2051’s defence and allegations were correct, [Georgian Properties] had a claim against [the respondent lawyers] for any shortfall in its recovery. [33] Further, once Georgian Properties’ claim was discoverable, it was not entitled to wait and see the result of the summary judgment motion concerning the enforcement and validity of the debt instruments. A proceeding was “appropriate” under s. 5(1)(a)(iv) of the Act once Georgian Properties knew the material facts upon which a plausible inference of liability could be drawn. Discussion [34] We accept Georgian Properties’ position that the motion judge erred in law in holding it had suffered a loss when TSCC 2051 failed to make payments under the debt instruments. [35] The injury, loss or damage at issue under s. 5(1)(a)(i) of the Act must be caused by or contributed to by an act or omission of the defendant in the action: s. 5(1)(b) and (c) of the Act. [36] In an action for solicitor negligence, the question whether injury, loss, or damage has occurred within the meaning of s. 5(1)(a)(i) will not generally turn on compliance by third parties with their obligations under documents or instruments prepared by the solicitor. The fact that the mortgages in this case were fully secured illustrates the point. Had the mortgages in this case been valid and fully enforceable, Georgian Properties could have recovered the full amount owing to it by enforcing its security. No loss would have occurred even though the mortgages had remained unpaid for many years. [3] [37] In a solicitor negligence case such as this, the question of whether injury, loss or damage has occurred must turn on matters such as the validity and enforceability of the documents and instruments that were prepared. [38] However, even assuming the respondent lawyers’ position that injury, loss or damage occurred when the debt instruments were given is correct, we are satisfied that the motion judge’s erroneous finding that Georgian Properties was suffering a loss when TSCC 2051 failed to pay skewed his analysis of when Georgian Properties ought to have discovered its injury, loss or damage. [39] It is well-established that the question when a party has, or ought to have, discovered a claim under s. 5 of the Act requires a fact-based analysis dependent on the circumstances of each case: Kaynes v. BP p.l.c. , 2021 ONCA 36, at para. 56; Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors , 2012 ONCA 851, 113 O.R. (3d) 401, at paras. 71-2; Lipson v. Cassels Brock & Blackwell LLP , 2013 ONCA 165, 114 O.R. (3d) 481, at paras. 76-77, 84. [40] Here, a predominant feature of the motion judge’s discoverability analysis was his finding that Georgian Properties had suffered a loss by virtue of TSCC’s non-payment of the debt instruments. Examined through that lens, given that the loss had crystalized and was obvious, the motion judge moved easily to a conclusion that Georgian Properties ought to have discovered its claim, at the latest, when Akbarali J. refused to strike TSCC 2051’s factum attacking the sufficiency of the disclosure documents, which had been prepared by the respondent lawyers. [41] However, once it is recognized the motion judge’s finding that Georgian Properties suffered a loss when TSCC 2051 failed to pay the debt instrument is incorrect, the discoverability analysis must become more nuanced. Even assuming the respondent lawyers are correct that loss occurred when the debt instruments were given because they were ultimately found to be oppressive, the loss had not crystalized as of July 7, 2017 when Akbarali J. declined to strike TSCC 2051’s factum. Considered in that context, the issue of Georgian Properties’ reasonable expectation of success on its counterclaim to enforce the debt instruments takes on greater significance. Even if the respondent lawyers breached the standard of care in relation to disclosure, no injury, loss, or damage would be caused by their conduct if the debt instruments remained valid and enforceable. [42] The principals of Georgian Properties gave unchallenged evidence that they expected to be successful on their counterclaim to enforce the debt instruments. No issue of implied waiver of privilege was raised and there is no indication in the record that anyone advised them otherwise. Their stance in rejecting an offer to settle for $3,500,000 and offering to settle for $6,000,000 supports the credibility of their claim. [43] Further, the circumstances of this case are unusual. TSCC 2051 did not raise the issue of inadequate disclosure in its original 2011 statement of claim. When it attempted to amend its pleadings to add that claim in 2016, its request was denied. Nonetheless, it was permitted to raise the issue in a 2017 factum. However, inadequate disclosure was only one facet of TSCC’s arguments in the factum and Georgian Properties advanced arguments in response. [44] Given the overall circumstances of this case, we are not persuaded the record demonstrates Georgian Properties, or a reasonable person with its abilities and in its circumstances, had all the material facts necessary to draw a plausible inference of liability with respect to any potential negligence claim against the respondent lawyers prior to November 19, 2017. [45] In general, the mere fact that allegations are made in a proceeding that could trigger a claim for solicitor negligence if successful should not automatically signify that the requirements of s. 5(1) of the Act are met and that the party with the potential claim must immediately commence action against the solicitor(s). Further investigation and assessment may be required. To hold otherwise could lead to costly and unnecessary litigation. [46] Here, the allegations were made in a factum delivered many years after the proceeding had been commenced, had previously been foreclosed on appeal and were only one facet of the arguments advanced. To conclude that Georgian Properties ought to have drawn a plausible inference that it had suffered a loss and recognized that a proceeding was an appropriate remedy between July 7, 2017 and November 18, 2017 would, in our view, be unreasonable. In our view, the motion judge’s conclusion that the appellant knew or ought to have known no later than July 7, 2017 that it had a claim against the respondent lawyers for which a proceeding was an appropriate remedy was tainted by his incorrect conclusion that loss occurred when TSCC 2051 stopped paying the debt instruments. There is no suggestion on this record that there was any tactical reason for not starting the action earlier, or that proceeding in this manner inappropriately fragmented the resolution of the issues, by litigating in installments. Disposition [47] Based on the foregoing reasons, the appeal is allowed, the motion judge’s order dismissing the action is set aside and summary judgment is granted to Georgian Properties dismissing the respondent lawyers’ limitation defence. [48] Costs of the appeal are to Georgian Properties on a partial indemnity scale fixed in the amount of $50,000 inclusive of disbursements and HST. “Janet Simmons J.A.” “G. Pardu J.A.” “David Brown J.A.” [1] The developer and a successor company declared bankruptcy in 2016. Georgian Properties is an assignee of the debt instruments forming the subject matter of the negligence claim against the respondent lawyers. It is also a bankruptcy creditor of the developer and its successor. [2] The oppression claim was added by an October 31, 2011 amendment. [3] We would observe that the prescription periods for an action by a mortgagee against a mortgagor generally are governed by the Real Property Limitations Act , R.S.O. 1990, c. L.15, not the Limitations Act, 2002 .

COURT OF APPEAL FOR ONTARIO CITATION: Tokarz v. Selwyn (Township), 2022 ONCA 246 DATE: 20220325 DOCKET: C68519 Pepall, Thorburn and Coroza JJ.A. BETWEEN Edward Tokarz and Jacqueline Tokarz Plaintiffs (Respondents) and Cleave Energy Inc. and The Corporation of the Township of Selwyn Defendants ( Appellant ) Lesley Albert and Michael Connolly, for the appellant The Corporation of the Township of Selwyn David A. Morin and Peter Reinitzer, for the respondents Edward and Jacqueline Tokarz Heard: February 4, 2022 by video conference On appeal from the order of Justice Hugh K. O’Connell of the Superior Court of Justice, dated February 17, 2021, with reasons reported at 2020 ONSC 4115. Thorburn J.A.: I. OVERVIEW [1] The appellant, The Corporation of the Township of Selwyn (“the Township”) issued a building permit that allowed Cleave Energy Inc. (“Cleave”) to install a metal roof and solar panels on the respondents’, Edward and Jacqueline Tokarz’s, barn. [2] The Township admitted that its actions fell below the requisite standard of care because: (a) it did not require an engineer to review the solar panel installation before closing the building permit as required under the provisions of the Ontario Building Code , O.Reg. 350/06 (the “Building Code”) and (b) failed to note that the method of connecting the solar panel rails to the roof did not match the design. The trial judge held that the Township was liable for 45% of the respondents’ total damages of $ 918,084.30 . This amounted to $413,137.93. [3] The Township challenges both the apportionment of damages as between the Township and Cleave, and the damage award. [4] The Township claims it was held to an unreasonably high standard of care as though it were an insurer of the barn. The Township claims its only duty was to inspect the respondents’ barn to prevent risks to the occupants’ health and safety and that, because the defects in the barn installation posed little or no risk to health and safety, the Township should only have been held responsible for 15% of the losses. The Township claims this apportionment is consistent with the apportionment of liability against municipalities in other similar cases. [5] The Township also challenges the total quantum of damages awarded to the respondents. It claims that the trial judge provided no reasons to support the quantum of damages and simply accepted the damage award put forward by the respondents’ expert, Mr. Koerth. The Township claims the evidence the trial judge relied on was not evidence proffered by Mr. Koerth, but the evidence of another of the respondents’ experts, Mr. Pitre. Unlike the Township’s estimate, Mr. Pitre’s estimate was unsubstantiated and unsupported by other evidence. [6] For the reasons that follow, I would dismiss the appeal with respect to the apportionment of liability to the Township, but allow the appeal with respect to the quantum of damages. I would remit the case to the Superior Court for an assessment of quantum of damages. II. BACKGROUND [7] The respondents, Edward and Jacqueline Tokarz, commenced an action in negligence against their contractor, Cleave, and the Township. [8] They claimed that Cleave provided defective workmanship on their commercial-size barn roof and solar panel system. The Barn Design and Installation [9] The respondents’ barn design called for a large solar array to be mounted on the metal roof of a wooden barn structure. The panels for the solar array were to be placed at an angle that would best capture the photovoltaic energy of the sun. The barn was to be built to support approximately 1155 solar panels along with the required racking, inverters, panels, disconnects and wiring. [10] The solar system was meant to be part of the Ontario government’s Feed In Tariff program , regulated by the Independent Electricity System Operator (“IESO”), formerly the Ontario Power Authority. The respondents planned to generate income from the power they produced from their solar system. [11] Cleave installed the solar system on the respondents’ farm in July 2011. The installation passed final building inspection by the Township’s municipal inspector on July 28, 2011, and the permit to construct was granted on that date. Deficiencies in the Barn Construction [12] The parties agree that, in the words of the trial judge, Cleave “botched” the solar panel installation in the following ways: (i) the solar panel rail-to-roof connections installed by Cleave did not match the design Cleave filed with the municipal permit application; and (ii) the improper installation of the rail-to-roof connections resulted in many problems, including excess holes in the roof, damage to the wood structure underlying the roof, bolts hanging exposed in the air on the underside of the wood panels, brackets perforating the steel roof, and leakage due to inadequate sealing of the perforations. Selwyn’s Position at Trial in Respect of the Negligence Claim [13] Cleave entered into a Pierringer Agreement with the respondents such that the respondents’ claim against Cleave was settled before the trial began. The claim against the Township therefore proceeded but Cleave did not participate in the trial. [14] At trial, the Township admitted that the actions of its building department personnel were negligent. The Township did not have an engineer review the solar panel installation prior to closing the building permit, as it was required to do by s. 5.6.2.1 of Division B, Part 5, of the Building Code . Consequently, the Township failed to note on final inspection that the method of connecting the solar panel rails to the roof did not match the design. It also failed to note obvious deficiencies in the work done by Cleave. [15] The Township did not call its engineer to testify at trial. Instead it provided a $428,834.45 total repair estimate prepared by its expert Mr. Peter Ewald, who was a solar panel system installer. He provided expert costing opinion evidence based on the respondents’ engineer’s scope of repair. III. THE TRIAL JUDGE’S REASONS [16] As noted by the trial judge, the Township admitted its negligence: The Township of Selwyn had a duty to inspect the barn and the solar array. Yet the installation proceeded without appropriate municipal oversight. There were, as the plaintiff argues, obvious deficiencies in the work of Cleave Contracting, that the Township failed to have inspected as required by an engineer. Those deficiencies were not addressed, and the consequent issues with the roof of the barn and the solar array were not rectified. As indicated the Township does not suggest that it acted as it should have pursuant to the Building Code and concedes its negligence subject to apportionment of liability... [17] The trial judge therefore focused on the apportionment of liability and the quantum of damages. [18] He concluded that, in respect of the apportionment of liability: [A]s the party tasked with building the solar array and the componentry of that array that [Cleave] should bear 55% of the liability for damages. I made this determination on the basis that but for their originating construction flaws, the damage would not have occurred . But that is not the end of the inquiry. The Township was negligent. That is admitted. A proper inspection would have staunched the issue of the poor construction . The Township abrogated its role under the Ontario Building Code . It failed to do the most significant factor it was called upon to do, have this inspected by an engineer. The Township did not do so. The Township even closed the permit, knowing that the inspection was not done by an engineer . As a consequence, Cleave was never faced with Orders to Comply or to render the installation safe . Cleave would have been under the clear impression that it was proceeding appropriately and with Township approval. I have considered the caselaw as provided by the parties. Apportionment of liability I found should be visited 45% against [the Township ]. I made this determination largely based on the argument of the plaintiffs in their Closing Statement at paragraphs 180-195 with the caveat that I disagreed with the plaintiffs that Cleave should be fixed with liability in the amount of 10%. To have done so would have excused Cleave from its contributory share of liability as the contractor. But that does not negate the larger apportionment of liability upon [the Township] based on its violation of the Building Code provisions. A municipality must abide the building code provisions. The reason is the very essence of the Code requirements placed upon the municipality. My attribution of 45% liability recognizes, I hope, the nature of the negligence of the municipality in this case in the context of the facts of this case . The municipality’s conduct, or better put, its omission and failure to staunch the negligence of Cleave, mandates attribution of liability in conjunction with my assessment of the case law in this amount . [Emphasis added] [19] In his assessment of the quantum of damages, the trial judge accepted the evidence of the respondents’ expert and held that, I have carefully considered the parties’ submissions and the evidence. I state unequivocally that the plaintiff’s expert Mr. Koerth defines what a Rule 53 expert is. His evidence was challenged in depth by the defendant. He provided objective and fair evidence. His knowledge of the case was thorough. Mr. Koerth was not in the arena as a combatant, as sometimes happens when expert opinions are challenged. Inevitably I had to ask myself what is required to put the plaintiffs in the position that they would have been in but for the negligence of others. I agree with the plaintiffs that the damages as estimated by [their expert] Mr. Koerth are appropriate , … on the assumption that the work to remediate can be done in the Fall. The Fall work allows for less loss of income given that the saturation of the solar energy that can convert to electricity is less in the Fall months. His damage estimates accord with the best route to take the Tokarz’s whole again and put them in a position which they should have been in : having a large pole barn and a very large solar array to generate income for many years to come without the very significant compromises due to construction defects and Municipal negligence in not discharging its role under the Ontario Building Code . In this respect I do not agree with the position of the Township that the Township's breach of the applicable standard of care does not extend to the cost of roof replacement. The Township was aware that the roof not only provided the usual reasons for a roof, namely shelter in a dry and safe environment, but was also a support system for the solar panel racking and the not insignificant weight of those panels. This was a very large solar array with the potential to generate substantial income for the plaintiffs. Simply put, Mr. Koerth’s evidence and his “numbers” accord with what I find are required repairs to put the Tokarz in the position that they would have been in but for the negligence as admitted and proven. The Court has not simply ignored the evidence of the defendants but has juxtaposed it with that of the evidence of the Tokarz expert . Mr. Koerth in coming to the conclusion that it has. Anything less, I find would fix upon the plaintiffs’ costs that they simply should not bear now or in future with respect to this issue. [Emphasis added] [20] The trial judge held that the total damages were $918,084.30 and ordered the Township to pay 45%, or $413,137.93. IV. THE ISSUES RAISED BY THE APPELLANT [21] The issues raised by the appellant Township are: i. Did the trial judge apply an incorrect scope of duty and standard of care to the Township for failure to comply with the inspection provision in the Building Code which caused him to err in his apportionment analysis? ii. Did the trial judge err in his apportionment of liability? and iii. Did he err in assessing the quantum of damages? V. ANALYSIS The First Issue: Scope of Duty and The Standard of Care [22] The trial judge found that the Township breached its duty of care by failing to inspect the work done, signed off on the work, and abrogated its role under the Building Code . The Township submits that its duty is narrow when inspecting a building: it has a duty to ensure that there are no deviations from the Building Code that could affect public health and safety. [23] The Township relies on Ingles v. Tutkaluk Construction Ltd. , 2000 SCC 12, [2000] 1 S.C.R. 298, at para. 23, wherein Bastarache J. for the court discussed the purpose of the Building Code : The legislative scheme is designed to ensure that uniform standards of construction safety are imposed and enforced by the municipalities. The purpose of the building inspection scheme is clear from these provisions: to protect the health and safety of the public by enforcing safety standards for all construction projects . The province has made the policy decision that the municipalities appoint inspectors who will inspect construction projects and enforce the provisions of the Act. Therefore, municipalities owe a duty of care to all who it is reasonable to conclude might be injured by the negligent exercise of their inspection powers. [Emphasis added] [24] In White v. The Corporation of the Town of Bracebridge , 2020 ONSC 3060, 4 M.P.L.R. (6th) 271, at para. 48, DiTomaso J. explained that, The Ontario Building Code provides minimum standards for construction so that owners of houses will be safe from poor construction . The standard of care is, at a minimum, the Ontario Building Code ’s requirements. At trial, Mr. Koerth testified that the minimum standards in Part IX of the OBC could not be ignored without risking the safety of the building’s occupants. [Emphasis added] [25] Contrary to the Township’s assertion, the trial judge did not suggest that the mere existence of defects was sufficient to hold the Township liable. Rather, the Township was held liable for failing to perform the inspection it was required to conduct under the Building Code , resulting in the failure to identify and order the deficiencies to be remedied. [26] In any event, the trial judge was clearly alive to the purpose of the Building Code , and held that, “Water and panels that are not installed properly are anathema to safety in this paradigm”. He found as a fact that, “This barn is not a safe haven with these defects.” In addition, the respondents’ expert, Mr. Koerth, testified that he had concerns about the risk of fire. [27] For these reasons, I do not agree that the trial judge misapprehended the  scope of the appellant’s duty of care. The Second Issue: Apportionment of Liability [28] The Township claims that the trial judge offered no authority to support his apportionment of liability. [29] The Township therefore claims that the trial judge’s decision to apportion 45% of the damages to the Township constitutes a palpable and overriding error given the minimal likelihood of harm to health or safety that arose from its negligence. The Township further claims that 45% is outside the range of liability usually imposed on municipalities. [30] Sections 1 and 3 of the Negligence Act , R.S.O. 1990, c. N.1, provide that: 1 Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent. 3. the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively. [31] Apportionment of liability is an inquiry into which party failed most markedly to live up to their expected standard of care: Parent v. Janandee Management Inc. , 2017 ONCA 922, at para. 15. The court in Ingles at para. 57 held that, The apportionment of liability is primarily a matter within the province of the trial judge . Appellate courts should not interfere with the trial judge’s apportionment unless there is demonstrable error in the trial judge’s appreciation of the facts or applicable legal principles. [Emphasis added] [32] Likewise, this court in Banihashem-Bakhtiari v. Axes Investments Inc. (2004), 69 O.R. (3d) 671 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 145, at para. 8, held that, “ A re-apportionment of liability sought on appeal will only be granted in strong and exceptional cases.” [33] In Ingles, the court held that when conducting a building inspection pursuant to the Building Code , the city was “not required to discover every latent defect” in construction; it is, however, “required to conduct a reasonable inspection in light of all of the circumstances” and it will be “liable for those defects that it could reasonably be expected to have detected and to have ordered remedied”: Ingles at paras. 20 and 40. [34] In this case, the trial judge held that “a proper inspection would have staunched the issue of the poor construction”; in other words, had the Township performed an inspection to the standard required of it, it would have detected the construction defects that gave rise to the respondents’ damages. Instead, the Township failed to properly inspect the property and Cleave was never faced with Orders to Comply or to render the installation safe. [35] A township falls “well below the required standard of care” when it fails to properly review an application for a building permit, thereby completely failing to discharge its duty to enforce the Building Code “for the health and safety of the public”: Breen v. The Corporation of the Township of Lake of Bays , 2021, 153 O.R. (3d) 514, at paras. 92-93 and 115. The failure to properly review building plans in circumstances like these is a “marked departure” from the standard of care: Mortimer v. Cameron (1994), 9 M.P.L.R. (2d) 185 (Ont. Gen. Div.); rev’d in part (1994) 17 O.R. (3d) 1 (C.A.); leave to appeal refused, [1994] S.C.C.A. No. 150. [36] In such cases, trial judges are afforded wide discretion in apportioning damages. [37] In this case, the trial judge held the Township responsible for 45% of the damages to the barn. [38] Moreover, the Township’s claim that it is not clear it would have issued an order to comply against Cleave even if it had discovered the defects in the installation, is belied by the testimony of the Township’s Chief Building Official that “I would have involved the contractor and perhaps the owner as well…”. [39] Whether the order was sent to the owner or the contractor, it is clear that Cleave, as the contractor, would have been made aware of the existence of the need to comply, had such an order been given, to ensure the building was safe. [40] In this case, the Township failed to properly review the application for a building permit and discharge its duty to enforce the Building Code “for the health and safety of the public” by conducting a reasonable inspection as required by the Building Code . The Township allowed the permit to be issued without performing an inspection that would, on the findings of the trial judge, have “staunched” the poor construction which led to the respondents’ damages. [41] The trial judge considered the case law provided to him. Contrary to the Township ’s submission, in some circumstances, liability has been imposed on municipalities of between 50 and 100 %: See Wood v. Hungerford (Township) (2004) , 3 M.P.L.R. (4th) 38 (Ont. S.C.), rev’d on other grounds (2006) 24 M.P.L.R. (4th) 45 (Ont. C.A.) ; Riverside Developments Bobcaygeon Ltd. v. Bobcaygeon (Village) (2004) , 45 M.P.L.R. (3d) 107 (Ont. S.C.), aff’d (2005) 30 M.P.L.R. (4th) 29 (Ont. C.A.); Chapeskie v. Lake of Bays (1999), 3 M.P.L.R. (3d) 233 (Ont. S.C.) and Breen . [42] The trial judge’s apportionment of liability was not based on a palpable and overriding error of fact or incorrect interpretation of the law. Nor was there a flawed assessment of the Township’s conduct. As such, and keeping in mind the substantial deference owed to trial judges in the apportionment of liability absent an error of law or misapprehension of fact, I find no palpable and overriding error and would reject this ground of appeal. The Third Issue: Quantification of Damages [43] A damages award is meant to be compensatory, to put the plaintiffs in the same position they would have been in but for the negligence of the other party: Athey v. Leonati , [1996] 3 SCR 458, at para. 32. [44] A trial judge’s quantification of damages attracts significant deference : de Montigny v. Brossard (Succession) , 2010 SCC 51, [2010] 3 S.C.R. 64, at para. 27. [45] The trial judge is presumed to have considered the evidence in its entirety, absent proof that an omission in his reasons was due to his misapprehension or neglect of the evidence: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 72. [46] An omission is a material error “if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion”: Van de Perre v. Edwards , 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 15; Modern Cleaning Concept Inc. v. Comité paritaire de l’entretien d’édifices publics de la région de Québec , 2019 SCC 28 , [2019] 2 SCR 406, at para. 70. [47] The Township argues that in this case, no deference is owed to the trial judge’s assessment of the quantum of damages. For the reasons that follow, I agree. (i) The trial judge mistakenly concluded that the damage estimate was Mr. Koerth’s [48] At trial, the Township admitted that the remediation of the steel roof and removing and installing the solar system was warranted. The respondents relied on one expert, Mr. Ron Koerth, to testify on what repairs were required. They relied on another expert, Mr. Jean-Marc Pitre, to provide costing opinion evidence. [49] Mr. Koerth is an engineer who was qualified by the trial judge as an expert “in the area of building analysis. Structure failure analysis. Costing analysis, and all matters related to the construction of buildings and the compliance with the Ontario Building Code .” Mr. Pitre was an installer of solar panels in Sudbury. [50] The trial judge found Mr. Koerth to be an exemplary witness. This is evidenced by the trial judge’s reference to Mr. Koerth’s evidence as follows: ... I had to ask myself what is required to put the plaintiffs in the position that they would have been in but for the negligence of others. The answer was what Mr. Koerth said it should be . ... Simply put Mr. Koerth's evidence and his “numbers” accord with what I find are required repairs to put the Tokarz in the position that they would have been in but for the negligence as admitted and proven . The Court has not simply ignored the evidence of the defendants but has juxtaposed it with that of the evidence of the Tokarz expert[,] Mr. Koerth in coming to the conclusion that it has. Anything else, I find would fix upon the plaintiffs’ costs that they simply should not bear now or in future with respect to this issue. [51] However, the trial judge seems to have mistakenly believed that the estimate of damages he adopted – found at “page 60 of the plaintiffs’ [respondents’] submissions at paragraph 245” – was Mr. Koerth’s estimate. Those damages were actually the sum of several different estimates, including: an estimate for performing structural repairs to the barn prepared by a company called Bel-Con, and an estimate for replacing the solar array and performing structural repairs to the barn prepared by Mr. Pitre. Mr. Koerth did not make any of the estimates found at paragraph 245 of the plaintiffs’ submissions, and in fact, Mr. Pitre’s estimate included $254,000 for a truss repair that Mr. Koerth had estimated should cost much less. [52] Mr. Koerth did, however, testify that Mr. Pitre’s total estimate of $674,000 before tax was “a lot more reasonable” than Mr. Ewald’s estimate of $375,000 before tax. [1] (ii) Flaws in Mr. Pitre’s Estimate [53] There are also concerns with Mr. Pitre’s estimate. [54] First, Mr. Pitre’s estimate was not itemized. He simply provided one global figure for “removal of all 1,155 solar panels; disposal or rails and hardware then re-installation of exist[ing] panels on new Enviro Energy supplied racking.” The quote was “a budgetary estimate for discussion purposes only.” [55] Second, Mr . Pitre was unable to provide an explanation of the breakdown of his estimate. He said he created a pro forma database, entered the information, and used a formula to arrive at his estimate. However, he was unable to provide the information he put into the database or the formula upon which the calculation was based, and he never went to inspect the barn itself. [56] Third, there was no specific allocation for truss repairs. We only know that Mr. Pitre allocated $254,000 for the trusses and structural repairs because $254,000 was the difference between estimates he made in 2013 and 2017 for the same scope of work, and on cross-examination, he testified that the difference came down to the cost of the truss repair. [57] Fourth, it is not clear how or why Mr. Pitre’s estimate so greatly exceeded that of Mr. Ewald and even that of Mr. Koerth, whose testimony the trial judge preferred. Mr. Pitre justified his $254,000 estimate for “the trusses” on the basis that the “integrity of the roof on the inside is one of the highest costs of that difference and where that $250,000 is.” He explained that the difference between the estimates was meant to cover the labour and material cost of doing the structural repairs to the roof. By contrast, Mr. Koerth estimated the cost of the truss repair to be $25,000 plus $7,000 in engineering costs and taxes; and Mr. Ewald estimated the cost of the repair to be about $12,705 plus engineering fees and taxes. [58] Fifth, Mr . Pitre incorrectly believed that all materials used for the solar panel system had to be sourced from Ontario, which would raise their cost. In fact, only 50% of the materials had to be sourced from Ontario. (iii) Flaws in the Trial Judge’s Assessment of Damages [59] Moreover, the trial judge’s assessment of the damage award was flawed as : i. The trial judge failed to break down the cost of the remedial work in support of the estimate that he accepted (by simply adopting Pitre’s lump sum estimate); ii. He failed to weigh and assess the evidence of Mr. Pitre’s expert opinion for the respondents and Mr. Ewald’s for the Township, and instead, simply adopted the damages claim provided by Mr. Pitre (mistakenly referred to as that of Mr. Koerth) with little discussion of its many shortcomings; and iii. The trial judge seems to have committed a palpable and overriding error by accounting for the cost of replacing the roof trusses twice: once when he accepted the Bel-Con damages assessment for the barn (which included a $10,000 remediation for the trusses in its $136,470.10 total), and once when he accepted Mr. Pitre’s estimate for the solar panels, which also included a cost of $254,000 for the trusses. (iv) Analysis of the Quantum of Damages [60] I have concerns about the trial judge’s adoption of a damages award that did not include a detailed breakdown; contained what seems to have been an inflated figure for truss repair; and was not adjusted in any way for the experts’ errors on the correct proportions for domestic content. [61] The trial judge could not have meant to include the cost of the truss repair twice. The fact that he did so affected his conclusion on the total quantum of damages; it increased the quantum by up to $254,000. [62] I am also troubled by Mr. Pitre’s inability to explain the formula which formed the basis of his costing estimate. He claimed that the reason he was unable to explain the formula for arriving at his estimate was that it was based on a formula he devised that would take up to 45 hours to reproduce. [63] The trial judge failed to give Mr. Pitre’s opinion the lesser weight it deserved given that it rested on unproven material facts: Marchand v. The Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 (C.A.). [64] The respondents also candidly concede that there was extremely limited discussion of the quantum of damages on the part of the trial judge. [65] The trial judge’s very limited discussion and assessment of the quantum of damages, and his failure to address the concerns about Mr. Pitre’s evidence as set out above, lead me to conclude that the presumption that the trial judge considered the evidence respecting the quantum of damages in its entirety is rebutted. [66] The solution, however, cannot be to replace the respondents’ assessment of damages with that of the Township’s expert, Mr. Ewald. [67] The Township’s expert, Mr. Ewald, did provide a line by line breakdown of the cost of material, labour and expenses as well as contingencies for remediation including the truss remediation. [68] However, Mr. Ewald’s estimate is also problematic as, for example, i. Unlike Mr. Pitre, Mr. Ewald was not prepared to carry out the repairs for the amount of his estimate because he is not a contractor; this fact caused Mr. Koerth, whose testimony was accepted by the trial judge and is not in question, to refer to his estimate as “less reasonable” than Mr. Pitre’s; ii. Although the trial judge seems to have double-counted the estimates for truss repair (using both the $254,000 from the Pitre estimate and $10,000 from the Bel-Con amount used by Mr. Ewald), it is not clear what the amount for truss repair should be and why; iii. Mr. Ewald also erred in assessing the amount of Ontario product required. He assumed that a “certain percentage” of product would be sourced from Ontario, but he believed obtaining the materials from Ontario would be difficult, if not impossible. He said he would seek an IESO waiver of the domestic content requirement. Mr. Ewald was not qualified to testify on whether the Independent Electricity System Operator (“IESO”) would approve the waiver. He said it was “fair” to say that his estimate was conditional on obtaining the IESO waiver. It is not clear exactly how that would affect his estimate, and the trial judge made no findings to assist this court in understanding this evidence. [69] Based on the above, there are serious concerns with both the Township’s and the respondents’ assessment of damages and this court is not in possession of all information to enable it to quantify the damages. [70] For these reasons, further analysis and further evidence is required to assess the quantification of damages and address these concerns: TMS Lighting Ltd. v. KJS Transport Inc. , 2014 ONCA 1, at paras. 83, 85. The evidence is not before this court such that this court can substitute its award for that of the trial judge. VI. CONCLUSION [71] For the above reasons, I would allow the appeal in part, set aside the award of damages and remit the action to another judge of the Superior Court for an assessment of damages. [72] The parties agreed that the successful party on appeal be awarded $30,000 in costs. Given the respondents’ success on the first two issues and the divided success on the third, I would award the respondents $20,000 in costs. Released: March 25, 2022 “S.E.P.” “J.A. Thorburn J.A.” “I agree. S.E. Pepall J.A.” “I agree. Coroza J.A.” [1] Mr. Koerth referred to “Mr. Brunskill’s” estimate. Peter Brunskill is an engineer who did not testify, but who instructed Ewald. Brunskill provided options for repairs and Ewald costed the options.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Gomes, 2022 ONCA 247 DATE: 20220328 DOCKET: C67996 Lauwers, Pardu and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and Jorge Gomes Appellant Carter Martell, for the appellant Kristen Pollock, for the respondent Heard: March 9, 2022 by video conference On appeal from the conviction entered on August 15, 2019 by Justice Sean F. Dunphy of the Superior Court of Justice, sitting without a jury, with reasons reported at 2019 ONSC 4808, and the sentence imposed on February 14, 2020, with reasons reported at 2020 ONSC 1013. REASONS FOR DECISION [1] The appellant was convicted of two counts of operating a motor vehicle while impaired by alcohol causing bodily harm contrary to s. 255(2) of the Criminal Code , R.S.C. 1985, c. C-46. He appeals against his conviction. [2] The appellant was sentenced to a custodial sentence of 3 years, followed by a 3-year driving prohibition. The appellant seeks leave to appeal this sentence. [3] For the reasons that follow, the appeal is dismissed. Background Facts [4] The convictions against the appellant arose out of a motor vehicle accident involving a pick-up truck and two pedestrians at around 2:00 a.m. on June 3, 2017. [5] Three men had just exited a bar on a commercial stretch of Eglinton Avenue West in Toronto. They began crossing the street on their way to one of their homes nearby. They paused in the westbound lane, near the median, to allow a tow truck to pass them in the eastbound lane. Seconds later, they were hit by a pick-up truck driven by the appellant speeding in the westbound lane. The violent collision caused serious injuries to two of the three men, Mr. Marchese and Mr. De Vellis. The third man, Mr. Hedman, was not hit and suffered no injury. [6] At trial, there was an agreed statement of facts. The appellant admitted the time, date and place of the accident, and that he was driving the vehicle involved in the accident. He admitted that he had a blood alcohol concentration at the time of the accident of between 150 mg and 185 mg of alcohol in 100 ml of blood. The appellant also admitted that the injuries sustained by the two pedestrians constituted bodily harm for the purposes of s. 255(2) of the Criminal Code . [7] The trial judge heard evidence from a number of witnesses, including the three pedestrians; Mr. Martins, the driver of a tow truck who passed the pedestrians just prior to the collision; Officer Persichetti, a police officer who attended the scene of the accident; Detective Constable Chin, a police officer with expertise in the investigation and reconstruction of motor vehicle collisions; and an expert toxicology witness who testified on the effects of alcohol impairment on drivers of motor vehicles. The appellant did not testify. [8] Detective Constable Chin testified about data drawn from the pick-up truck’s sensing diagnostic module (“SDM”), which recorded pre- and post-crash data. DC Chin testified that the SDM did not record continuously but began recording in response to certain events. The moment the system began recording was referred to as “Algorithm Enabled” (“AE”), and the system captured data for the five seconds preceding. He testified that AE could have been triggered by rapid deceleration or by a collision. [9] The trial judge found that the appellant was impaired, based on the admission that the appellant had a blood alcohol concentration of between 150 mg and 185 mg of alcohol per 100 ml of blood at the time of the collision and expert evidence as to the degree of impairment this would cause. The trial judge also noted that it was agreed that the harm suffered by Mr. De Vellis and Mr. Marchese amounted to bodily harm, and that the overwhelming evidence indicated that the bodily harm arose as a direct consequence of the collision, in which the appellant’s truck struck the two men. [10] The trial judge concluded that the Crown had established that the appellant’s impaired driving caused bodily harm, based on the following findings of fact: · The three pedestrians ought to have been visible in the roadway to the driver of a pick-up truck and in conditions of good lighting for four to five seconds before the collision; · At the time the three pedestrians reached the area of the median, the appellant’s vehicle was far enough away from the pedestrians so as not to be perceived as a danger by the tow truck driver, Mr. Martins, and to provide ample opportunity for the appellant to react to the presence of the pedestrians in a way that would have avoided the accident entirely; · The appellant was driving at a high rate of speed (over 50 percent above the posted speed limit of 50 km per hour) and was accelerating as he approached the scene until the last instant, depriving himself of some of the reaction time that might otherwise have been available to avoid the collision; · The appellant was travelling towards the pedestrians at a time when his faculties needed to process and deal with emerging risks and hazards were impaired by the presence of significant quantities of alcohol in his system; and · There was no evidence that the appellant noticed the imminent collision more than an instant before it occurred, because there was no indication of more than minor braking prior to the hard braking and no indication that the appellant reacted to the presence of the pedestrians by using some of the room that was available in the curb lane to attempt to steer his vehicle away from harm prior to the collision. [11] Based on these findings, the trial judge found that the Crown had met the standard of proof required to convict the appellant for operating a motor vehicle while impaired by alcohol causing bodily harm contrary to s. 255(2) of the Criminal Code . ANALYSIS [12] The appellant raises the following grounds of appeal against the conviction: (1) The trial judge made findings of fact unsupported by the evidence; and (2) The trial judge reached an unreasonable verdict. [13] The appellant also seeks leave to appeal against the sentence imposed. The appellant argues that the trial judge failed to appropriately consider mitigating factors such as his remorse, and gave inadequate weight to collateral immigration consequences, in determining the sentence. The appellant also submits that the trial judge erred in relying on the Superior Court of Justice decision in R. v. Bulland , 2019 ONSC 4220 ( Bulland ONSC ), rev’d 2020 ONCA 318 ( Bulland ONCA ), to determine an appropriate sentence. [14] Each ground of appeal is addressed in turn. The trial judge’s findings were available on the evidence [15] With respect to the first ground of appeal, the appellant argues that the trial judge made four findings of fact unsupported by the evidence in determining legal causation. [16] The trial judge held that in order to find the appellant guilty of impaired driving causing bodily harm, he must find not only that the appellant was impaired but also that the bodily harm suffered by the pedestrians was caused as a result of the appellant’s impaired operation of the pick-up truck. He stated, at para. 88, “If the accident was not avoidable or if there is reasonable doubt as to whether it was avoidable, then the necessary causal relationship will not have been demonstrated by the Crown to the required standard of proof.” [17] First, the appellant argues that the trial judge’s finding that it was safe for the pedestrians to cross the road, based on the evidence of the eyewitnesses, was contradicted by physical evidence, namely the fact of the collision and the SDM data from the appellant’s vehicle. Second, the appellant submits that the trial judge erred in finding that a sober driver would have swerved to avoid the pedestrians because there was no evidence that this manoeuvre would have avoided the collision or would have been possible. Third, the appellant submits that the trial judge’s finding that the pedestrians were on the roadway and visible for at least four to five seconds was based on two premises unsupported by the evidence, namely the speed of an unhurried pedestrian and the width of the westbound lanes. Fourth, the appellant submits that the trial judge erred in finding that the appellant only responded to the pedestrians at the last second before impact, which misapprehended the AE evidence. [18] We reject these submissions. [19] First, the trial judge accepted portions of the evidence of the pedestrians as to their position on the road prior to the collision and the fact that they did not believe they were in danger from westbound traffic when the tow truck passed them. The trial judge also relied on the testimony of Mr. Martins, the tow truck driver, as to the proximity of the appellant when he passed the pedestrians. The trial judge stated, at para. 63: All allowances being made for the frailty of memory when it comes to re-constructing events in minute detail, Mr. Martin’s evidence does provide some reliable information. He did have his attention drawn to the three men crossing the road as he came alongside them. There was nothing that he saw – whether it be their direction and speed relative to his own or the state of any on-coming traffic heading towards them – that caused him to become alarmed to the point where a more detailed picture became imprinted upon his memory. I infer that Mr. Gomes’ vehicle at this point was far enough away from this scene as not to appear to pose any danger to anyone. [20] The trial judge relied more heavily on Mr. Martins’ testimony to find that the pedestrians were hit after the tow truck passed them, because Mr. Martins was not directly involved in the incident and had a specific memory of the actions he took in consequence of hearing the collision after he passed the pedestrians. It was open to the trial judge to accept the eyewitnesses’ testimony that the road was safe to cross, and Mr. Martins’ evidence that the collision occurred shortly after he passed the pedestrians. These findings were not contradicted by the fact of the collision or the SDM data, given that the SDM data indicated that the appellant was speeding prior to the collision, and the SDM data only provided information about the appellant’s driving, not about when the pedestrians became visible in the road. [21] Second, the trial judge relied on scene photographs to support his finding that there was sufficient room for the appellant to have swerved to the right to avoid the pedestrians. This finding was open to him on the record. Third, the trial judge relied on Mr. Marchese’s evidence as to the pedestrians’ pace, and a five km per hour walking speed “as a rough rule of thumb” consistent with the pace, as well as DC Chin’s lane measurements, to calculate the length of time the pedestrians were in the road. It was open to the trial judge to rely on Mr. Marchese’s and DC Chin’s evidence, and although the five km per hour pace was not in evidence, the trial judge used this as a rough guide rather than a precise measurement. [22] Finally, the appellant submits that the trial judge’s finding that at “the one second pre-crash data point” the brake was engaged reflects a misapprehension of the AE evidence. However, the trial judge used this term to refer to data collected prior to the AE, and his reasons reflect an understanding that the AE was not necessarily the moment of collision. [23] Ultimately, the trial judge correctly stated the test for legal causation and the factual findings he made in order to conclude that legal causation was established in this case are entitled to deference and were available to him on the evidence. [24] We dismiss this ground of appeal. The trial judge’s verdict was reasonable [25] Assessing the reasonableness of the verdict involves asking whether the verdict is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered: R. v. Biniaris , 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37. In our view, the appellant has not established that the verdict was unreasonable. [26] The trial judge was satisfied that the collision was avoidable and that the Crown established beyond a reasonable doubt that the collision arose as a result of the impaired operation of the motor vehicle by the appellant. [27] The appellant argues that the Crown’s evidence was incapable of proving that the accident was the result of the appellant’s impairment from alcohol, and that a sober driver could have avoided the accident. According to the appellant, the trial judge’s findings were not supported by the evidence before him. For example, the trial judge found that speed played a key role in the collision, but there was no evidence that if he were driving at the posted speed limit, the collision could have been avoided. [28] The appellant also argues that it was unclear whether his alcohol impairment played any role in the speed he was travelling. The appellant contrasts this case to R. v. Hall , [2004] O.J. No. 4746 (Ont. S.C.), rev’d in part 2007 ONCA 8, 83 O.R. (3d) 641, leave to appeal refused, [2007] S.C.C.A. No. 298, where the trial judge held that a driver’s decision to speed and accelerate through streets with significant car and pedestrian traffic indicated that the driver was not “in possession of all his faculties” (at para. 73). In contrast, this case involved a long stretch of road without traffic in the middle of the night. According to the appellant, in such conditions, it is entirely possible that a sober person would also be speeding. The appellant also submits that the Crown failed to prove that the appellant’s reaction, once he observed the pedestrians, indicated impairment, because it was equally consistent with momentary inattention. The appellant argues that the trial judge’s conclusion that the appellant’s impairment caused the collision was not supported by the evidence. [29] We disagree. [30] The expert evidence on the effects of impairment accepted by the trial judge made clear that the appellant’s ability to multi-task and to assess the danger posed by the pedestrians on the street, his vigilance, his judgment of speed and distance and his reaction time would all be adversely affected by his impairment. This evidence was consistent with the testimony of Mr. Martins that the pedestrians would have been visible to on-coming traffic, the testimony of the eyewitnesses that the appellant’s vehicle was sufficiently far away when the tow truck passed the pedestrians that it was not perceived to be a danger, and the SDM data, which indicated that the appellant was driving well above the speed limit and accelerating until seconds before he braked and collided with the pedestrians. [31] It was open to the trial judge to conclude that the pedestrians were visible for four to five seconds prior to the collision and that the appellant failed to see and react to them due to his impairment. [32] We see no basis to conclude that the trial judge’s verdict was unreasonable. The trial judge did not err in the sentence imposed [33] The appellant argues that the trial judge gave insufficient weight to the fact that he was a first-time offender, to his remorse, and to the serious immigration consequences of his sentence. The appellant also takes issue with the trial judge’s reliance on Bulland ONSC . [34] A trial judge’s determination of a fit sentence is entitled to a high degree of deference. [35] The trial judge explicitly listed one mitigating factor in his decision, the fact that the appellant worked cooperatively to narrow the issues at trial. The trial judge also noted the appellant’s lack of prior criminal record. However, the trial judge concluded that the mitigating factors in this case were outweighed by the fact that the primary sentencing principles were denunciation and deterrence in this case. He stated, at para. 25: Mr. Gomes presents – as do many offenders convicted of alcohol-related offences – as a very solid citizen. He is a support for his parents, an integral part of a close-knit family. He has worked his whole life and is by all accounts a contributing, valuable member of our community. He has no criminal record. The leniency that these aspects of his individual make-up might otherwise command is overshadowed by the paramountcy that must be given to the objectives of general deterrence and denunciation in this case, by the gravity of the offence and his degree of moral blameworthiness in it. [36] The appellant also submits that the trial judge erred in giving no specific consideration to the fact that the appellant had demonstrated remorse by making concessions at trial and refraining from any attempt to reinstate his driver’s licence prior to sentencing. However, to the extent that making concessions at trial reflected remorse, the trial judge considered this factor. [37] The trial judge also considered the immigration consequences for the appellant. He acknowledged that, because each of the offences for which the appellant was convicted carry a maximum sentence of up to ten years in prison, the appellant could be subject to deportation, and a custodial sentence of longer than six months would render the appellant unable to appeal a decision that he be removed from the country. The trial judge concluded, at para. 13, “In the present case, it is quite clear that a sentence under six months would be manifestly unfit in the circumstances here present and I cannot be swayed by sympathy for an offender facing dramatic if collateral immigration consequences to reverse engineer a sentence that is otherwise unfit to avoid the prospect of removal by immigration authorities should they determine to exercise their statutory discretion to do so.” The trial judge’s consideration of the collateral immigration consequences was consistent with the Supreme Court’s direction in R. v. Pham , 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 14-15. [38] The appellant also takes issue with the trial judge’s reference to the decision in Bulland ONSC , in determining the appropriate sentence. In Bulland ONSC , the trial judge imposed a sentence of 39 months for a similar offence. However, in Bulland ONCA , this court overturned the sentencing decision in Bulland ONSC and reduced the appellant’s sentence. This court’s decision in Bulland ONCA was not available to the trial judge in this case at the time of sentencing. [39] The trial judge in Bulland ONSC imposed a sentence well in excess of the sentence the Crown requested and failed to put the defence on notice that a higher sentence was being contemplated. The trial judge also failed to indicate in his reasons why he departed so significantly from the Crown position. These procedural errors led this court to reduce the sentence to two years, followed by three years’ probation, to reflect the Crown position. [40] The appellant submits that had the trial judge had the benefit of this court’s decision in Bulland ONCA , he likely would have started from a range of two years less a day. However, there were no such procedural errors in this case, and no indication that the trial judge relied on Bulland ONSC to establish a sentencing range. Rather, in rejecting the range put forward by the defence, the trial judge observed that, among the cases advanced by the defence, Bulland ONSC was the most comparable. Further, this court in Bulland ONCA did not cap the range of appropriate sentences. Rather, this court commented that a penitentiary sentence in excess of two years would be appropriate but imposed a sentence of two years based on the circumstances of the case. [41] We would grant leave to appeal the sentence, but dismiss the appeal. DISPOSITION [42] For these reasons, we dismiss the conviction appeal, grant leave to appeal the sentence but dismiss the sentence appeal. “P. Lauwers J.A.” “G. Pardu J.A.” “L. Sossin J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. P.F., 2022 ONCA 248 DATE: 20220323 DOCKET: C68749 Pepall, Tulloch and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and P.F. Appellant Kenneth W. Golish, for the appellant Jeffrey Wyngaarden, for the respondent Heard: March 22, 2022 by video conference On appeal from the conviction entered on October 1, 2020 by Justice George W. King of the Superior Court of Justice, sitting without a jury. REASONS FOR DECISION [1] The appellant was convicted of historical sexual offences involving his daughter. The offences were alleged to have occurred from infancy until she left home at age 17. [2] The complainant testified to numerous incidents of abuse including vaginal intercourse and oral sex. In addition, she said that the appellant would lie on her bed and rub himself against her; shaved her legs close to her bikini line; moved his hand along her leg, thigh, and vaginal area while they were in the car; tackled her in the living room and ground his genital area into hers while laying on top of her; and entered the shower, assaulting her there. The complainant testified that the sexual activity occurred approximately twice per week on average, until she was 17. She could not estimate how many times it happened. [3] The appellant testified in his own defence and categorically denied the allegations. He suggested that the complainant falsely accused him because he and his late wife had not accepted her gay lifestyle. [4] The appellant raises several arguments on appeal, the substance of which all  concern  the trial judge’s credibility findings. [5] There is no merit to the argument that the trial judge applied different levels of scrutiny to the evidence. The trial judge was entitled to accept the evidence of the complainant and to reject the evidence of the appellant. His findings are entitled to deference. [6] The trial judge did not conclude that the complainant was credible simply because her testimony was consistent and detailed. He fully explained his credibility findings in comprehensive reasons. The matters the appellant raises as inconsistencies – whether the appellant had a crossbow, a black belt in karate, or had taken the complainant for an abortion – were peripheral to the allegations at the core of the case. [7] The trial judge made no error in applying R. v. W.(D.) , [1991] 1 S.C.R. 742. His reasons were neither “illogical” nor “irrational”. He properly instructed himself on the principles of that case and applied them carefully. The trial judge did not simply prefer the complainant’s evidence; he accepted her evidence and rejected the evidence of the appellant. This was his call to make and there is no basis to interfere with it on appeal. [8] There were no significant misapprehensions of the evidence. The positioning of the Christmas tree and the description of the condition of the carpet in the living room were insignificant details relating to one alleged assault, not material misapprehensions. The evidence of the complainant’s aunt, L.C., that the complainant told her of the abuse decades earlier was relevant only to rebutting the allegation that the complainant had recently fabricated her complaint, and any mistake as to the date was insignificant. [9] There was no misapprehension concerning the appellant’s tattoo. The trial judge accepted that the complainant became aware of the unique tattoo on the appellant’s inner thigh when he required her to perform sexual acts including oral sex. It was open to the trial judge to conclude that the complainant was able to describe the tattoo in detail because she was exposed to the appellant’s intimate areas for extended periods of time, consistent with her evidence of repeated abuse. [10] Finally, the verdict was not unreasonable. The appellant simply repeats arguments already made and attacks the trial judge’s credibility findings, which as we have said, are entitled to deference. They can be supported on any reasonable view of the evidence. [11] The appeal is dismissed. “S.E. Pepall J.A.” “M. Tulloch J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Crosslinx Transit Solutions General Partnership v. Ontario (Economic Development, Employment and Infrastructure), 2022 ONCA 250 DATE: 20220324 DOCKET: C69486 Rouleau, van Rensburg and Roberts JJ.A. BETWEEN Crosslinx Transit Solutions General Partnership and Crosslinx Transit Solutions Constructors Applicants (Respondents) and Ontario Infrastructure and Lands Corporation, as representative of the Minister of Economic Development, Employment and Infrastructure, as representative of Her Majesty the Queen in Right of Ontario and Metrolinx Respondents (Appellants) Sharon Vogel, Peter Wardle, Jesse Gardner and Cheryl Labiris, for the appellants Matthew Sammon, Andrea Wheeler and Jacqueline Chan, for the respondents Heard: January 6, 2022 by video conference On appeal from the judgment of Justice Markus Koehnen of the Superior Court of Justice dated May 17, 2021, with reasons reported at 2021 ONSC 3567. COSTS ENDORSEMENT [1] On March 7, 2022, we allowed the appeal, set aside the judgment and costs order of the application judge, and remitted the application for a rehearing, with costs to the appellants in the agreed upon all-inclusive amount of $60,000. [2] The parties were unable to agree on the disposition of the application costs. We have received and reviewed their respective written submissions. [3] We agree with the respondents that the fairest disposition is to leave the issue of the application costs to the trier of fact on the rehearing of the application, including but not limited to a rehearing before a judge of the Superior Court and/or in an arbitral process. [4] Order to go accordingly. “Paul Rouleau J.A.” “K. van Rensburg J.A.” “L.B. Roberts J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.  8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2 )     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 . COURT OF APPEAL FOR ONTARIO CITATION: R. v. I.W., 2022 ONCA 251 DATE: 20220328 DOCKET: C67177 van Rensburg, Nordheimer and George JJ.A. BETWEEN Her Majesty the Queen Respondent and I.W. Appellant Mark C. Halfyard, for the appellant Caitlin Sharawy, for the respondent Heard: February 2, 2022 by video conference On appeal from the conviction entered on April 30, 2019 by Justice Stephen T. Bale of the Superior Court of Justice, sitting with a jury. George J.A.: [1]      The appellant was charged with sexual assault, sexual interference, uttering a threat to cause death, and sexual exploitation. He pleaded not guilty, but after his trial a jury found him guilty of all three sexual offences. He was found not guilty of the uttering a threat offence. OVERVIEW [2]      The complainant, M.B., was a friend of the appellant’s daughter, M.S. At the time of these events, the appellant was 38 and 39 years old. The allegations span a period beginning when M.B. was 15 years old and ending when she was 16 years old. [3]      The appellant acknowledged that he had a sexual relationship with M.B. but denied that it began before she turned 16 years old. On the exploitation count, he denied providing the complainant alcohol and cigarettes. [4]      Apart from the exploitation count – which required a distinct consideration and had more to do with whether the appellant gave M.B. alcohol and cigarettes in exchange for sex – and the uttering a threat count, the central question for the jury was when did their sexual relationship commence. This was crucial because, when M.B. was under the age of 16, as a matter of law, she could not consent. Setting aside for a moment the question of exploitation, if M.B. was over 16, she was capable of consenting. M.B. turned 16 in mid-May 2016. [5]      The appellant appeals against conviction, advancing these three grounds: i.) the trial judge erred by failing to provide a “no probative value” instruction to the jury after the complainant’s outbursts; ii.) the trial judge erred by permitting the Crown to lead a prior consistent statement, and in not instructing the jury on its limited use; and iii.) the trial judge erred by failing to adequately correct the Crown’s misstatement of the facts relating to the timing of the alleged assaults in its closing address to the jury. [6]      The appellant also seeks to introduce fresh evidence that speaks to when he took possession of a rental apartment in Brooklin, which is where M.B. says most of the sexual activity occurred. [7]      For the reasons that follow, I would not admit the fresh evidence and I would not give effect to any of the grounds of appeal. Accordingly, I would dismiss the appeal. evidence at trial Complainant, M.B. [8]      M.B. was 18 years old at the time of trial. As indicated, she alleged that the events in question took place when she was between 15 and 16 years old. Pursuant to s. 715.1 of the Criminal Code , she adopted her police statement as part of her evidence at trial. [9]      M.B. and the appellant met in 2015. As mentioned, she and the appellant’s daughter, M.S., were friends. M.B. testified that, before New Year’s Eve 2015, the appellant purchased bras and underwear for her. She said that after the purchase the appellant texted her and asked her to send him a picture of her in the underwear. In her statement to the police, she said she told him no. However, at trial she testified that she did take a “selfie” in the underwear and sent it to the appellant. When cross-examined on the inconsistency she explained that “I guess I didn’t really remember it” before. [10]    A short time after this event (and when she was still 15), on New Year’s Eve 2015, the complainant went to the residence of M.S.’s mother where she spent time with M.S. and the appellant. M.B. testified that the appellant supplied them both with vodka and that she became intoxicated. At some point during the evening, M.S. went upstairs to have a shower. While M.S. was doing that, M.B. said that the appellant sat beside her on the couch and started to touch her. She testified that she told him no, but that he moved on top of her and because he was much bigger there was little she could do to stop him. She said the appellant pulled her pants down and had intercourse with her. M.S. returned downstairs a short while later. It seemed, to M.B., that M.S. knew something was amiss, though nothing was said. [11]    M.B. told the police that after the New Year’s Eve incident she became depressed and began to use alcohol and marijuana to cope. She acknowledged at trial, however, that her problematic use of alcohol had begun before New Year’s Eve. According to her police statement, about three to four weeks after New Year’s Eve – at some point near the end of January or start of February 2016 – she posted on Facebook asking if anyone could “buy [her] a bottle”. The appellant messaged her that he could, and they began communicating over text and Facebook Messenger. She ended up going to his home in Brooklin, where he lived alone in a basement unit. This was when the appellant began providing her alcohol and cigarettes and when their sexual relationship began in earnest. She said something different at trial, indicating that the first incident after New Year’s Eve occurred at a home in Oshawa and not Brooklin. When asked about this inconsistency M.B. explained that when she spoke to the police, she was merely confused about the location because most of their sexual encounters occurred in the appellant’s Brooklin apartment. According to M.B., the pattern that developed went something like this: The appellant would supply her with alcohol – usually Raspberry Smirnoff – which led to her getting intoxicated and the two having sex. On her account, they met up once or twice per week. She maintained that she had no other way to obtain alcohol, except through the appellant. [12]    The two would routinely communicate through text and Facebook Messenger. M.B. had saved the appellant’s contact on Facebook Messenger under a pseudonym. They spoke occasionally by phone, but not before M.B. turned 16. [13]    During her testimony, several Facebook messages were tendered. All were sent (or received) after the complainant turned 16. She testified that she initially deleted their messages on the appellant’s request, but she eventually stopped deleting them. Most messages were from the appellant. M.B. testified that she did not recall responding to most of them. Near the end of their relationship the appellant sent several angry messages where, in some of them, he called M.B. derogatory names. [14]    M.B. estimated that they had sex about 30 to 40 times, on most occasions at the appellant’s Brooklin apartment, but sometimes at a house in Oshawa. M.B. was not able to provide an address for the Oshawa house. [15]    This all came to a head when M.S. found out about the relationship between M.B. and her father. M.S. learned of it after looking through M.B.’s phone. M.S. blamed M.B., which led to M.S. and her boyfriend confronting M.B. on August 15, 2016, which ended in the two having a physical confrontation. As a result, M.S. was charged with assault. For obvious reasons, the friendship ended. [16]    At trial, and during her testimony, M.B. had several outbursts. At one point, in the presence of the jury, she said to defence counsel: “You’re defending a creep. You’re defending a fucking creep”. At other points, again with the jury present, she referred to the appellant as a “loser”, a “creep” and a “rapist”. After the first outburst, the jury was immediately excused. The appellant then brought a mistrial application, which was denied. The trial judge did, however, provide a limiting instruction, which I will return to in my discussion of the first ground of appeal. Complainant’s father, J.B. [17]    The complainant’s father, J.B., testified about New Year’s Eve 2015. He advised that after M.B. returned home – just before midnight – she was upset but would not say why. He just assumed it was because she was having some difficulties with her mother. He testified that M.B. told him of the relationship in April 2017. [18]    He spoke of the day M.B. made her complaint to the police, in August 2017. He testified that he drove M.B. to her part-time job. Once they arrived, M.B. advised that she did not want to leave the car and go in. It was J.B.’s understanding that this was on account of the rumours that had been swirling among her peers, including her co-workers, about M.B. and the appellant, rumours that were getting worse and worse and which had spread online. He then drove her directly to the police station. Appellant [19]    The appellant testified that on New Year’s Eve 2015 his plan was to visit with his daughter, M.S., at his ex-wife’s house. They were going to celebrate the occasion by eating junk food and watching movies. He advised that M.B. arrived at around 10:00 p.m., and that she appeared to be intoxicated. Neither he nor M.S. had been drinking. As he was getting ready to leave to go and purchase firewood and snacks at a nearby gas station, M.S. went upstairs, not to have a shower – which is what M.B. said she did – but to remove her makeup. The appellant acknowledged that he got a little frustrated waiting for M.S. as he wanted to return to the house before midnight. He denied having any sexual contact with M.B. while M.S. was upstairs. He denied having sex with M.B. that evening or at any time before she turned 16. [20]    The appellant denied ever purchasing alcohol or cigarettes for M.B. He acknowledged taking his daughter and M.B. to the movies and for a pedicure, and taking them to shop before Christmas in 2015. He explained that he did this as he thought it would assist in his efforts to repair the relationship with his daughter, which had been strained. [21]    According to the appellant, his sexual relationship with M.B. began after she turned 16 and after she sent him a picture of herself wearing sunglasses. On his account, he could see, in the reflection of her sunglasses in the photograph, a pornographic website on her computer. The photograph was captioned “I am legal now” (M.B. acknowledged the image and that she might have sent it, but denied it was to initiate sexual contact with the appellant). The appellant said he thought the picture was a joke and he showed it to his daughter. He said that, about 40 minutes after receipt of this message, M.B. wrote him and told him she liked him and asked if he wanted to hang out. M.B. started coming over and they, typically, either watched movies or went out for dinner. [22]    He acknowledged having a sexual relationship with M.B., but not until after she turned 16 in May 2016. He denied ever offering or providing alcohol or cigarettes in exchange for sex. He testified that he never owned or rented a home in Oshawa and that he was never at a home in Oshawa with M.B. [23]    Recognizing the significant age gap, the appellant described this relationship as “unconventional” and that, in hindsight, his was a terrible lapse in judgment. He explained that he was flattered by the attention of a younger woman. The relationship ended when he learned she was dating someone closer to her age. He acknowledged sending her angry and vulgar text messages. He said he did so because he believed she cheated on and lied to him. Appellant’s daughter, M.S. [24]    M.S. is the appellant’s daughter. She was also one of M.B.’s closest friends. She confirmed, in large measure, the appellant’s testimony. She testified that the appellant bought M.B. a sweater (not underwear), on her behalf, for Christmas, and that he bought her a sweater and underwear. She also largely corroborated his evidence about the New Year’s Eve incident. For instance, she said neither she nor the appellant consumed alcohol, and that the plan was indeed for the two of them to watch movies. She testified that when M.B. arrived it was clear she had been drinking. She said she spoke to M.B. for a moment before going upstairs to, as the appellant said, take off her makeup. She did not have a shower. She testified that when she returned downstairs the appellant was wearing boots and a coat and was ready to go to the store. M.B. did not go with them and was not at the home when they returned. [25]    M.S. acknowledged having learned of the relationship between M.B. and her father after perusing M.B.’s phone, and to confronting and assaulting M.B. on August 15, 2016. M.S. was charged and ultimately pleaded guilty to assault. Other Defence Witnesses [26]    The tenant who lived in the Brooklin apartment immediately before the appellant, testified. He said that while his lease expired on March 31, 2016, he moved out near the end of February or beginning of March. He recalled that, as he was moving his belongings from the unit, the landlord brought the appellant by for a showing. [27]    He also recalled that when he moved into the unit in 2013 the landlord allowed him to take possession “a day or two” before the commencement of the lease. [28]    While the jury was not advised who she was, the appellant’s parole officer testified. She said the appellant told her that he was moving into the Brooklin apartment on April 21, 2016. She visited him there on April 28, 2016, and observed that there was very little furniture in the unit. DISCUSSION Ground #1 – Did the trial judge err by failing to provide a “no probative value” instruction to the jury after the complainant’s outbursts? [29]    The appellant submits that the trial judge did not sufficiently address M.B.’s outbursts. Instead of simply cautioning the jury against placing too much emphasis on how she testified and directing them to not rely on it to conclude that the appellant is a “bad guy” and more likely to have committed an offence like this, the trial judge should have said that it was irrelevant and directed them to disregard it in its entirety. [30]    I think it important to, first, place these outbursts in their proper context. M.B. was a youthful witness, 18 years old at time of trial, testifying about events that occurred when she was 15 and 16. Upon my review of the record, it is fair to say that hers was a lengthy and vigorous cross-examination. She was, understandably, upset and emotional. [31]    While events like these are always regrettable, and require some intervention by the trial judge, a significant degree of deference is owed to their choice of remedy. To that end, consider what the trial judge actually did. First, he immediately excused the jury and sought counsel’s input. The appellant argued that a mistrial should be declared. He submitted that the outburst was irrelevant, had no probative value, and was highly prejudicial. The Crown submitted that it was admissible but urged the trial judge to give an instruction that cautioned the jury against placing undue reliance on the witness’s demeanour, and against engaging in propensity reasoning. [32]    Second, he dismissed the request for a mistrial. [33]    Third, after considering the position of each party, he had the jury return and provided this instruction: You will recall, I’m sure, that before we broke for lunch you witnessed an outburst on the part of [M.B.] in which she expressed the opinion that [the appellant] is a, quote, “fucking creep.” Although I will be giving you further instructions at the end of the trial in relation to the assessment of a witness’s evidence, I want to say something about it now as a result of that incident. Do not jump to any conclusion, based entirely upon how any witness has testified. Giving evidence in a trial is not a common experience for most people. People react and appear differently. Witnesses come from different backgrounds. They have different abilities, values, and life experiences. There are simply too many variables to make the witness’s manner in the witness box, or in this case, the CCTV room, the only or most important factor in making your decision. In particular, you must not use the opinion of [the appellant] expressed by [M.B.] to conclude or help you conclude that he is a person of bad character and, therefore likely committed the offences charged because of that bad character. [34]    This instruction, which was based on wording proposed by the Crown, was adequate in the circumstances. It addressed both the risks of undue reliance on a witness’s demeanour and propensity reasoning, which is where the mischief lay. Beyond that what we are really talking about is a risk that the emotional force of it was too much and would overwhelm the jury, which would in turn lead them to effectively ignore instructions on the law. First, this concern is unfounded. There was no reason to believe that the jury would have ignored instructions on the law on account of the outbursts. Second, if the concern was that the outbursts would unduly influence the jury’s attitude towards the accused, I would defer to the trial judge’s discretion and judgment because he was better positioned than I am now to assess the potential risks and what would best ameliorate against them. Short of the trial judge exercising his discretion in a way that is clearly wrong or based on an erroneous principle, they must be given considerable leeway to manage what can sometimes be very challenging proceedings: R. v. Chiasson , 2009 ONCA 789, 258 O.A.C. 50, at para. 14. Here, the trial judge was alive to the issues the outbursts raised, and the concerns of trial counsel, and then dealt with them in a measured and reasonable manner. [35]    The sufficiency of this instruction addresses the appellant’s argument that the jury should have been told to disregard the outbursts entirely. In other words, while it was open to the trial judge to provide a stronger instruction, the failure to do so, in the circumstances of this case, was not an error. This was the trial judge’s call to make, and he made it after recognizing the risks that arose from the outbursts and after seeking and receiving counsel’s input. I will note, as well, that this type of evidence can typically cut both ways as defence counsel will often seize upon such outbursts and rely on them during their final submissions to show that a witness has an animus against the accused. [36]    In any case, the appellant was not prejudiced by M.B.’s outbursts as the jury was sufficiently instructed on the limited use they could make of it. I would accordingly reject this ground of appeal. Ground #2 – Did the trial judge err by permitting the Crown to lead a prior consistent statement and in not instructing the jury on its limited use? [37]    The appellant submits that the trial judge erred by allowing the jury to hear that M.B. disclosed what happened between her and the appellant to her father in April 2017. This, he submits, was a clear violation of the rule against oath helping as any motive to fabricate already existed and began either when M.S. learned of M.B.’s relationship with her father or when the physical altercation occurred, which was in August 2016, some eight months earlier. He also submits that, even if this disclosure was admissible, the trial judge erred in failing to give a limiting instruction on its prohibited and permissible uses. He argues that these errors warrant a new trial. [38]    Prior consistent statements are presumptively inadmissible: R. v. Stirling , 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5. This is so for good reason. They are self-serving, typically lack probative value, and are by their very nature repetitive and redundant. In the normal course, they amount to an improper attempt to bolster a witness’s credibility. The rationale for excluding prior consistent statements is that repetition does not “enhance the value or truth of the testimony”: R. v. Ellard , 2009 SCC 27, [2009] SCC 27, at para. 31. However, there are exceptions: Stirling , at para. 5. For present purposes, the question is whether the trial judge properly admitted this evidence as a way for the Crown to rebut an allegation of recent fabrication. [39]    In Stirling , the Supreme Court held that prior consistent statements can be admitted to rebut an allegation that a witness has recently fabricated parts of their evidence. The allegation need not be expressly made. It is enough that the “apparent position of the opposing party is that there has been a prior contrivance”: Stirling, at para. 5, citing R. v. Evans , [1993] 2 S.C.R. 629, at p. 643. Furthermore, the alleged fabrication need not be recent. What matters is that an allegation, or suggestion, that the complaint is fabricated must have been made at some point after the event in question: see Stirling , at para. 5; R. v. O’Connor (1995), 100 C.C.C. (3d) 285 (Ont. C.A.), at pp. 294-295. [40]    The trial judge failed to articulate the basis on which the prior consistent statement was admissible. However, he appears to have accepted the Crown’s argument that it should be admitted to rebut an allegation of recent fabrication. I say that, having regard to how the issue was raised at trial, and then resolved. First, the appellant objected to the admission of M.B.’s father’s testimony about M.B.’s disclosure as a prior consistent statement, on the basis that it was irrelevant. Second, in response to the appellant’s objection, the Crown argued that J.B.’s evidence about the timing of M.B.’s disclosure to him was relevant to rebut the allegation of fabrication. The Crown’s position was that, while a motivation to fabricate may have arisen when people first learned of M.B.’s relationship with the appellant, or when M.B. and M.S. had their fight – which the appellant says is why M.B.’s conversation with J.B. should not have been allowed – it was the culmination of events, and the fact that rumours continued to spread, that led M.B. to go to the police when she did. [41]    The trial judge also failed to provide any limiting instruction to the jury on the prior consistent statement. It is true that when a prior consistent statement is admitted, regardless of the exception it falls under, the trial judge should instruct the jury on its permissible and impermissible uses. That said, the failure to do so will not always amount to a reversible error. First, the adequacy of a trial judge’s instruction is to be assessed “in the context of the particular case on a functional basis”: R. v. Demetrius (2003), 179 C.C.C. (3d) 26 (Ont. C.A.), at para. 21. Second, this court has noted that a limiting instruction may be unnecessary where it is clear to the jury that the statement is not offered as proof of the underlying facts: Demetrius , at para. 22, citing R. v. G.M. , [2000] O.J. No. 5007 (Ont. C.A.). In R. v. M.P. , 2018 ONCA 608, 363 C.C.C. (3d) 61, at para. 80, Watt J. observed that the absence of a limiting instruction about the use of prior consistent statements is not always fatal, and he helpfully identified a number of relevant considerations: The effect of the failure of a trial judge to properly apprise a jury about the limited use of prior consistent statements in reaching its verdict varies. Sometimes fatal. Other times, not. As noted above, perfection is not the standard by which we are to judge the adequacy of jury instructions. Each case falls to be decided according to its own idiosyncratic facts, but the authorities yield some relevant considerations: i.) Did the prior consistent statement extend beyond the mere fact of its making to include incriminatory details? ii.) How many prior consistent statements were introduced or repeated? iii.) Who introduced the evidence? iv.) Did the party introducing the evidence rely on it for a prohibited purpose? v.) Was any objection taken to the introduction of the prior consistent statements or to the failure to provide instructions limiting their use? [42]    I will consider each in turn. First, did the impugned statement extend beyond the mere fact of its making to include incriminatory details? Here is the exchange between the Crown and M.B.’s father: Q. [D]id [M.B.] ever tell you about what happened between her and [the appellant]? A. Yes. Q. I don’t want to get into anything about what she told you, okay, that’s for her to have told the court. So, I don’t want to hear from you about what it was or words that she used. But my question for you is, that she told you about these events with [the appellant], when was it that she came out to you with this information? A. Two years ago, almost to the day. Q. Almost two years ago? A. Yeah. Q. Okay. So that would be, we are in 2019, we are in April of 2019? A. Yes. Q. So, April of 2017? A. Yeah. In and around that area. Yes. [43]    This does not elicit anything beyond the fact and timing of the disclosure. Indeed, the Crown specifically avoided eliciting anything beyond that. [44]    Second, how many prior consistent statements were introduced? Just one. The exchange noted above, which sets it apart from cases relied upon by the appellant, in particular R. v. D.C. , 2019 ONCA 442, where three witnesses testified about what the complainant told them and which, in each instance, “included substantive details of abuse”: at para. 25. There you had a clear risk that the jury would improperly view the statements as corroborative or confirmatory. That is simply not the case here. [45]    Third, who introduced the evidence? Without question the Crown elicited the evidence that there had been a prior disclosure. [46]    Fourth, did the Crown rely on M.B.’s disclosure for a prohibited purpose? To answer that question, one must consider what the Crown said about this in its closing address: [M.B.] did not make up allegations of being assaulted sexually by [the appellant] just to get her ex-friends off her back. She didn’t just go to the police in August of 2017 and make up allegations because she was being made fun of by her peers. It was time, and she was ready to talk about it. And you heard from both her and her father that she had told him about this relationship well in advance of going to the police. This is the third piece of evidence that [the complainant’s father] assists you with. This wasn’t made up on August the 2nd when she went into the police station for the first time. She didn’t go to the police earlier, because, as she told you, she was afraid. She was afraid that nothing would happen, because she had seen other people in similar situations, and nothing had come of it. She was afraid of the very process of having to talk about it. [47]    This did not invite the jury to improperly use the evidence. To the contrary, the Crown relied on the timing of M.B.’s disclosure to her father to rebut the appellant’s allegation of recent fabrication. It was a fair argument to make, in light of the evidence that had been presented. At no point during this trial was the jury asked to rely on the prior consistent statement for the truth of its contents, or to bolster the complainant’s credibility through repetition. [48]    Consider also this exchange between defence counsel and M.B.: Q. Okay. And after that, [M.S.] and [someone else] told other people, your peers, about the relationship, correct? A. Correct. Q. And that word got out about it, and it caused a lot of rumours to go around about you, correct? A. Only the bad people realized it. Like, the people who actually heard it and had a brain thought it was wrong. So, yeah. Q. Okay. But there were these, my point is just that there were these rumours and they caused you a lot of discomfort, a lot of pain, correct? A. Yeah. Q. And I will just show you, I am not, I will just show you one of those, one of the types of things that you heard. I am actually, I am not going to put it up on the screen because I don’t want to put it up on the screen unless you want me to refresh your memory. But there was a message, for example, from someone, one of your friends A. Yeah. Put it up on the screen. Q. So, for example, this is [someone] saying: “You used her dad for alcohol, you chose to be with him even while you had a fucking boyfriend and now you act like you are all innocent?” Q. That was the type of thing that you heard, correct? A. Correct. Q. Okay. And you didn’t, you don’t like now it being portrayed, the relationship with [the appellant] after you turned 16, as something you chose, correct? A. Correct. Q. And actually, what prompted you to go to the police, I am going to suggest, these sorts of rumours and the things you were hearing, they drove you nuts, correct? A. If I really want to protect my image I would. Q. I am not sure what you mean A. I am Q. …by that. A. …not embarrassed by what these people are saying about me. If I really wanted to put something out there about this guy, then I would. I am not worried about what these people are messaging me. I went to the police because it was, I was sick of getting these messages like it was Q. That’s was my next A. It didn’t drive me crazy. I was tired of hearing about this situation and not doing anything about it. Q. Okay. So, what ultimately prompted you to go to the police, you had got a job at McDonald’s, correct? A. Yes. Q. And you would see your peers there, correct? A. Yes. Q. They knew about the relationship and they teased you, correct? A. Incorrect. Q. Okay. They said mean things to you like [someone] did, correct? A. Not in McDonald’s, but, yeah. Q. Okay. Fine. But you, they didn’t say it when you were at work but that day you went to the police you saw some of your peers, correct? A. Correct. Q. And you said, you know what, I can’t do it. Today is the day that I am going to the police, correct? A. Correct. [49]    Defence counsel appears to be suggesting to M.B. that she went to the police when she did because she was about to encounter some of her peers at her place of work, who were spreading rumours about her, which is contrary to what the appellant now says, which is, because this was long after M.S. learned of the relationship, and their fight, that the disclosure to J.B. could not rebut his allegation that M.B. fabricated. [50]    Lastly, was any objection taken to the introduction of the prior consistent statement or to the failure to provide instructions limiting its use? While trial counsel for the appellant did object to M.B.’s father testifying about M.B.’s disclosure, counsel did not ask for a limiting instruction after the evidence was ruled admissible. No mid-trial instruction was sought. No such instruction in the final charge was sought. It was not discussed at all during the pre-charge conference. [51]    Except for the fact that it was the Crown who elicited the prior consistent statement, all factors point to a finding that there was no error, notwithstanding the absence of a limiting instruction. [52]    I would, therefore, reject this ground of appeal. Ground #3 – Did the trial judge err in not correcting a Crown misstatement of the evidence in its closing address, about when the appellant moved into the Brooklin apartment? [53]    On the issue of when the appellant took possession of the Brooklin apartment, the appellant submits that the Crown misled the jury about the evidence, and invited speculation, by saying this during its closing address: You heard from [the prior tenant] … when he signed his lease for the period of time starting October 1st, 2013. He signed in advance of that date, which is, in the Crown’s submission, the norm. We know that that had to happen before [the prior tenant] moved out of the apartment, because once he did that, he never went back to it. So it had to be before the end of February, early March, which is that [the prior tenant’s] evidence was about when he moved out. [The prior tenant] also told us that he moved out of the apartment in late February or the start of March. And once he moved out, as I already said, he did not go back. When he moved out all of his belongings, everything was moved out. There was nothing left there. It’s a reasonable inference for you to draw that the landlord extended the same courtesy to [the appellant] once [the prior tenant] was out of the apartment. [54]    The appellant contends that the Crown was attempting to have the jury draw the inference that he took possession of the Brooklin apartment in late February or early March – aligning it more closely with M.B.’s evidence about when she says they started having sex in that apartment – even though his lease did not begin until April 1, 2016. [55]    After defence counsel raised concerns about this invitation to speculate, the trial judge reminded the jury what [the prior tenant] actually said, relating it directly to the Crown’s closing by drawing a distinction between someone being allowed to move in “a day or two” before a lease begins, and a month before. [56]    The appellant says this was insufficient as there was no basis upon which the jury could conclude that he moved into the Brooklin apartment a month or more before the start date of the lease. He further submits that, even though the trial judge accurately stated what the evidence was, the Crown’s misstatement created a miscarriage of justice in that it reconciled a significant inconsistency in M.B.’s evidence on the core issue, which was when, apart from New Year’s Eve 2015, the sexual relationship began. [57]    The Crown argues that there was no misstatement. It asks that we closely examine what the Crown at trial actually said, which is as follows: But if the first incident after New Year’s was the beginning of February, if we take her evidence here at trial as she recalls it, and after that she met him at the Brooklin apartment as she said in her statement about every two weeks, then once a week, then several times a week, the frequency increased for that part, gets us really close to the end of February when [the prior tenant] says that he left that apartment for good, and when you could infer that [the appellant] had access to it. [58]    It further submits that, even if the jury was improperly led to believe they could infer that the appellant moved in a month or more before the lease start date, the trial judge made clear in his charge what the evidence was, emphasizing the point by relating it directly to the impugned portion of the Crown’s closing submissions. [59]    To start, I would agree that the Crown went too far in asking the jury to draw an inference that, because a prior tenant was allowed to move in a couple of days early, the appellant might have moved in a month or so before his lease began. This was a wild stretch, as there is a vast difference between a landlord allowing a tenant to move in a day or two early, and letting a tenant move in a month early. However, while the Crown went too far in drawing the comparison, there was no misstatement of fact. That being the case, all the trial judge could do is what he in fact did do, which was to instruct the jury as follows: [The prior tenant] testified that he had been the tenant at the Brooklin apartment before [the appellant]. He said that his tenancy expired on March 31, 2016. He said that he had moved out at the end of February or beginning of March, and that, as he was moving out, the landlord brought [the appellant] in to view the apartment. In her closing argument, Crown counsel argued that the landlord had extended a courtesy to [the prior tenant] in September 2013 by allowing him to move into the apartment early, and that it would be reasonable to assume that he would have extended the same courtesy to [the appellant]. In considering this argument, you should take into consideration the fact that [the prior tenant] evidence was that the landlord had allowed him to move in “a day or two early”, that is a day or two before the commencement of his lease on October 1, 2013. [60]    With this, there can be no doubt that the jury knew what the evidence was. Apart from that, the Crown made a mistake by drawing an inapt comparison, and the trial judge fixed it. He fixed it promptly, and in a way that ensured the jury treated the evidence properly. As such, I would reject this ground of appeal. FRESH EVIDENCE [61]    At trial, the appellant tendered his lease for the Brooklin apartment, which indicated that his tenancy began on April 1, 2016. The appellant testified that he moved into the apartment on April 12, 2016. The appellant now seeks to admit as fresh evidence his rent cheques for the Brooklin apartment, the first of which is dated June 1, 2016; a copy of his SOIRA address update; and an MTO abstract with an address update. The SOIRA notification indicates that he changed his address on April 18, 2016. According to his affidavit in support of the application, he was required to update his SOIRA address within seven days of moving or face criminal charges. The MTO abstract indicates that he changed his address on April 14, 2016. [62]    When determining whether to admit fresh evidence on appeal, the court must consider whether the “interests of justice” warrant reception, based on these questions from Palmer v. The Queen , [1980] 1 S.C.R. 759, at p. 775: i.) By due diligence, could the evidence have been adduced at trial? ii.) Is the evidence relevant in the sense that it bears on a decisive or potentially decisive issue? iii.) Is the evidence credible in the sense that it is reasonably capable of belief? iv.) Is the evidence such that, if believed, when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result? [63]    The Palmer criteria encompass three components: admissibility, cogency, and due diligence: Truscott (Re) , 2007 ONCA 575, 83 O.R. (3d) 272, at para. 93. The due diligence component becomes important if the admissibility and cogency components are met: Truscott (Re) , at para. 93. Although the absence of an adequate explanation for not producing material at trial will not necessarily lead to the exclusion of the evidence on appeal, the finality of trial verdicts would be rendered illusory and the integrity of the trial process undermined if evidence is routinely admitted on appeal that could have been adduced at trial: Truscott (Re) , at paras. 101-102. [64]    The evidence of the SOIRA address update and the MTO abstract is clearly admissible, relevant to the issue of when the appellant moved into the Brooklin apartment, credible, and sufficiently probative that they might well have had an impact at trial, as they suggest the appellant moved into the Brooklin apartment in mid-April 2016. The rent cheques are not sufficiently probative, as the first cheque is dated June 1, 2016, well after the appellant’s lease began and when he testified that he moved into the apartment. However, to admit the evidence of the SOIRA address update and the MTO abstract, at this stage, would be to render the first prong of the test meaningless, and be tantamount to saying fresh evidence will, in every case, be admitted even if it was obviously relevant and easy to obtain at the time of trial. [65]    In support of his fresh evidence application, the appellant suggests in his affidavit that he did not think to secure these documents at or before trial because the issue of when he moved in arose “unexpectantly”. That makes little sense because it would have been well known to the appellant, long before trial, when and where M.B. alleged the sexual relationship began, which never aligned with when he says he moved into the Brooklin apartment. What he seems to be implying is that he believed at trial that the lease was a complete answer to the conflict in the evidence as to when he moved into the Brooklin apartment, but this does not explain why he only now recognizes that the SOIRA address change or MTO abstract would serve the same purpose, if not actually be more probative than the lease, given that they indicate later move-in dates. [66]    While the due diligence principle is not to be applied as strictly in criminal matters, here there was no diligence whatsoever and no good explanation for why these documents were not obtained and presented at trial. [67]    I would dismiss the appellant’s fresh evidence application. CONCLUSION [68]    For these reasons, I would dismiss the appeal. Released: March 28, 2022 “K.M.v.R.” “J. George J.A.” “I agree. K. van Rensburg J.A.” “I agree. I.V.B. Nordheimer J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. C.J., 2022 ONCA 252 DATE: 20220324 DOCKET: C69355 Miller, Trotter and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and C.J. Appellant C.J., acting in person Amy Ohler, appearing as duty counsel Philippe Cowle, for the respondent Heard and released orally: February 10, 2022 On appeal from the conviction entered on October 31, 2020 and the sentence imposed on February 10, 2021 by Justice Julie Bourgeois of the Ontario Court of Justice. REASONS FOR DECISION [1] We are going to dismiss your appeal. [2] The conviction appeal was restricted to the voyeurism charge. We are not persuaded that that conviction was unreasonable. [3] As to your sentence we thank you for your thoughtful presentation today. We recognize how difficult it has been for you to serve your sentence during these times, and we commend you on the effort you have made to access programs, recognizing how limited they are right now. However, the offences were serious. The trial judge took into account all factors that were in your favour. The sentence that she imposed was appropriate and we cannot interfere with it. [4] Accordingly, the appeal against conviction and sentence is dismissed. “B.W. Miller J.A.” “Gary Trotter 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 complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. K.B., 2022 ONCA 253 DATE: 20220328 DOCKET: C68147 Strathy C.J.O., Coroza and George JJ.A. BETWEEN Her Majesty the Queen Respondent and K.B. Appellant Myles Anevich, for the appellant Stephanie A. Lewis, for the respondent Heard: March 15, 2022 by video conference On appeal from the conviction entered on September 12, 2019, with reasons reported at 2019 ONSC 5287, and from the sentence imposed on December 2, 2019, with reasons reported at 2019 ONSC 6953, by Justice Patrick J. Monahan of the Superior Court of Justice. REASONS FOR DECISION Introduction [1] The appellant appeals his conviction on four counts of sexual assault of S.F., a 24-year-old woman who lives with an intellectual disability (also referred to in these reasons as the “complainant”). He was acquitted of unlawful confinement. He was sentenced to imprisonment of five years concurrent on each count, together with several ancillary orders. [2] The appellant raises four grounds of appeal, discussed below. He acknowledges that his request for leave to appeal sentence is moot, as the sentence has been served. For the reasons below, we dismiss the conviction appeal and dismiss the motion for leave to appeal sentence. Factual Background [3] The following summary provides a backdrop for the consideration of the issues. Further detail will be added as we consider each issue. [4] S.F. was described by her mother, A.F., as having the intellectual capacity of a young child. She reads at a grade one or two level. She has limited fine motor skills and has difficulty performing some of the tasks of daily living, such as bathing herself and preparing her own meals. In spite of these challenges, she was able to complete high school at age 21 and has participated in an adult training program at a community college. [5] On December 18, 2017, A.F. took S.F. grocery shopping. After an argument over S.F.’s cell phone use, A.F. took her phone away. Angered by this, S.F. slipped out of the store and managed to get onto a bus, intending to visit her aunt. Unfortunately, she got lost along the way. Her desperate family did not see her again for four days. S.F. claimed that throughout those four days K.B. kept her in his residence, where he abused her, sexually, physically, and verbally. [6] S.F. said she met K.B. on the bus. After inquiring about her personal details and being told that her parents were in Africa (which was untrue), he got off the bus with her, and walked with her to his home. According to S.F., he gave her a hamburger to eat after they arrived at his home. He then told her to take off her clothes and to get into the shower, where he forced her to have sexual intercourse. [7] S.F. testified that sexual assaults in the shower and other forms of sexual assault and physical abuse continued over the next three days. Each day at around 7:00 a.m., when he went to work, the appellant would leave her in the bedroom, with the door shut. She said she was unable to open the door and remained in the bedroom the entire day. The appellant returned from work each day, late at night and drunk. In addition to repeatedly sexually assaulting her, including sucking and biting her breasts, the appellant bit her arm and face, pushed her down onto the ground, and threatened her with a knife. He verbally abused her, calling her a “fucking bitch” and “retarded”, and told her she was ugly and no one liked her. He fed her fish-shaped “poison candy” which had the effect of sedating her. Throughout, the complainant told him to stop, and said that these actions were contrary to her Muslim faith. [8] S.F. testified that on the fourth day, December 21, 2017, the appellant saw a television broadcast reporting that she was missing. He became angry, threw his cell phone at her, and left the apartment. She called her uncle, who contacted the police. Some time later, the police called the appellant’s cell phone and he told them where he lived. The police went to his apartment, retrieved S.F., and returned her to her family. Police told S.F.’s family that “the guy looked after her”, or words to that effect. [9] After S.F. was returned to her family, her cousin, I.F., who was A.F.’s niece, became suspicious that something had happened to S.F. while she was away from home. In response to I.F.’s questions about whether K.B. had done specific things to her, S.F. replied affirmatively. S.F. was taken to hospital, where a sexual assault examination revealed no bruises or marks. Forensic examination of S.F.’s underwear revealed a single male DNA profile, which was 1,080 times more likely to belong to the appellant than any unknown, unrelated male. Trial Judge’s Reasons [10] The only witnesses at trial were S.F. and her mother, A.F. The appellant did not testify. [11] The defence did not suggest that the accused had a reasonable but mistaken belief that the complainant consented to sexual activity. Rather, the defence position at trial was that none of S.F.’s allegations ever happened during the four days she was at his residence. The appellant acknowledged through counsel that the DNA on S.F.’s underwear belonged to him. [12] The only issue at trial was whether the Crown had established, beyond a reasonable doubt, that the events described by the complainant had actually occurred. [13] The Crown and defence agreed that S.F.’s evidence should be assessed in the same way as the evidence of a child. The trial judge found that S.F.’s testimony was direct and straightforward, notwithstanding its challenges. [14] One such challenge was the complainant’s tendency to agree with a suggestion by counsel, particularly on cross-examination, but then disagree with it and clarify her evidence once the point was pursued or discussed further. The trial judge found that this did not undermine her evidence, in view of her intellectual challenges. Nor was her evidence undermined because she was unable to recall certain events and parts of her recollection had to be refreshed by her police statement and her preliminary inquiry evidence. Again, because of her challenges and because she was testifying about events that had occurred 18 months earlier, her memory failings did not detract from her evidence. Where there were apparent inconsistencies between her trial testimony and prior statements, the prior statements were sufficiently vague or open to interpretation that the purported inconsistencies did not undermine her credibility. [15] The defence suggested that S.F.’s evidence was tainted by leading questions asked by I.F. after she returned home. The trial judge found this assertion was speculative. We address this issue in more detail below. [16] Finally, the defence suggested that the complainant’s account of the assaults was “oddly repetitive”, which the trial judge found was not unreasonable given her intellectual challenges and the time that had passed since the events had occurred. S.F. had remained consistent on the core allegations of the sexual assaults. [17] The trial judge accepted S.F.’s evidence concerning the sexual assaults and the absence of consent. He found that on the totality of the evidence, the Crown had proven the sexual assaults beyond a reasonable doubt. Despite minor inconsistencies in her evidence, the complainant never wavered in her evidence about the sexual assaults, which was generally consistent and credible. The trial judge convicted the appellant on four counts of sexual assault, observing that there was no innocent explanation for him having kept a vulnerable adult at his residence for four days without telling anyone and that the presence of his DNA on S.F.’s underwear supported a finding of sexual assault. As discussed below, the trial judge acquitted the appellant on the unlawful confinement count. Grounds of Appeal [18] The appellant raises four grounds of appeal of the conviction: (a) the trial judge erroneously discounted material inconsistencies and deliberate falsehoods in the complainant’s evidence due to her mental age; (b) the trial judge misapprehended the evidence of potential tainting of the complainant’s evidence by I.F.; (c) the trial judge made findings that were not supported by the evidence; and (d) the trial judge failed to turn his mind to inferences inconsistent with guilt, with the result that the verdict was unreasonable. [19] Only the first two grounds were advanced in oral submissions. We will nevertheless consider all grounds. Analysis (a) Erroneously discounting inconsistencies and falsehoods in the complainant’s evidence [20] The appellant acknowledges that the trial judge’s approach to the assessment of S.F.’s evidence was “likely correct”, but asserts that he failed to critically assess her evidence and excused blatant inconsistencies, improbabilities and deliberate falsehoods in her evidence, which could not be dismissed because of her mental age. For example, she repeatedly claimed the appellant had intercourse with her in the bedroom, yet also claimed she was fully clothed when it occurred. Her evidence was “oddly repetitive”, and she claimed that the same events were repeated day after day. Although she claimed that the appellant repeatedly bit and stabbed her, there was no evidence of marks, bruising or wounds on her body. [21] We do not accept these submissions. The trial judge observed that S.F. testified in a direct and straightforward manner. The record supports his observation to counsel during submissions that she spoke in a direct and spontaneous way and her evidence was detailed. We agree with the respondent that this is a case in which the trial judge’s opportunity to see and hear the complainant’s evidence as it unfolded, both in chief and in cross-examination, gave him an inestimable advantage in the assessment of her evidence. In reading the record of her evidence, which was admittedly confusing at times, we cannot hope to have the same appreciation of her evidence or be in a position to assess the credibility and reliability of that evidence. It was open to the trial judge to assign inconsistencies in the evidence the weight that he did, and his approach was in line with the well-established approach to the evidence of child witnesses. His credibility findings are entitled to significant deference: R. v. G.F. , 2021 SCC 20, 71 C.R. (7th) 1, at para. 81; R. v. K.C. , 2021 ONCA 401, 157 O.R. (3d) 161, at para. 75, per Jamal J.A. (dissenting, but not on this point). [22] The appellant points to several features of S.F.’s evidence that he describes as inconsistent and improbable and which he claims the trial judge failed to reconcile: the absence of any bruises or bite marks described in the complainant’s evidence; the absence of stab wounds, in spite of the complainant’s evidence that the appellant repeatedly stabbed her with a knife; and S.F.’s description of sexual intercourse having taken place in the bedroom, when she repeatedly claimed that she was fully clothed at the time. He also submits that the trial judge failed to consider how his rejection of the complainant’s evidence in relation to the unlawful confinement count might have affected his assessment of her evidence on the sexual assault counts. [23] Several of these issues were raised by defence counsel during submissions and were addressed by the trial judge in his reasons. He found that while S.F.’s recollection was clearly mistaken concerning the presence of bruises, it did not negate the possibility that the appellant bit her. In any case, the absence of bruising was a secondary matter that did not occur during or relate directly to the sexual assaults. [24] The issue of the absence of stab wounds, which was a focus of submissions before us, was not raised in argument at trial. On a fair reading of the evidence, S.F. was describing the appellant threatening to stab her with a knife. Reading the submissions of counsel at trial, the evidence was understood in this way by counsel and by the trial judge. [25] S.F.’s evidence that the appellant forced intercourse on her when she was fully clothed was an obvious impossibility. However, she described the appellant lying on top of her on the bed, fully naked, while she was lying on her back with her head on the pillow. His face was close to her face and their stomachs were “stuck to each other” and he put his penis in her “private part”. She also described the appellant making her lie on her stomach and lying on her back and doing “nasty stuff” to her, putting his penis in her “private part”. Neither counsel asked the complainant how the mechanics of intercourse could have taken place when she was fully clothed. [26] Having regard to the complainant’s evidence of the daily sexual assaults in the shower, which the trial judge accepted, it was unnecessary to the convictions for the trial judge to accept her evidence of other such assaults. Having regard to the challenges associated with the complainant’s evidence and her communications skills, the trial judge was not required to treat any of the foregoing matters as undermining her evidence. [27] Finally, on this issue, we do not agree that the trial judge’s rejection of S.F.’s evidence on the unlawful confinement count should have affected his assessment of her evidence on the sexual assault counts. The trial judge simply rejected the complainant’s evidence that she was unable to open the bedroom door, and thereby rejected the Crown’s argument that the appellant had confined her to the bedroom all day. There was no evidence of a lock on the bedroom door, and no evidence that S.F. was unable to open the door. It was reasonable to assume that she left the bedroom during the day to use the bathroom. There was no evidence that S.F. had attempted to leave the apartment while the appellant was at work, or even that she wanted to leave the apartment. As the trial judge noted, the fact that S.F. may not have attempted to leave did not foreclose the possibility of sexual assault. Moreover, it does not follow that because the trial judge was left with a reasonable doubt on the unlawful confinement charge, he was required to discount S.F.’s credibility overall. (b) Misapprehension of evidence concerning tainting of complainant’s evidence [28] The appellant argued at trial that S.F.’s disclosure of her allegations may have been tainted by her conversations with her cousin, I.F. [29] In cross-examination, S.F. was asked about her conversation with I.F. after she had returned home. She said that I.F. did not believe her statement to her family that “nothing happened” while she was at the appellant’s home. She testified that I.F. asked her a lot of questions, including: · whether she had a shower with the appellant; · whether he had put his “privates” in her mouth; · whether he put his “privates” in her “privates”; and · whether he had pulled her hair. [30] S.F. replied yes, he had done those things. I.F. told her that they would have to go to the hospital and the police station. S.F. testified that they went to the hospital that day and to the police station the following day. She said that I.F. sat with her during the police interview. She also testified that she had spoken to I.F. before she came to court and that I.F. had reminded her of the things S.F. had told her. [31] The trial judge rejected the assertion that S.F.’s evidence had been tainted. He stated, at para. 61 of his reasons: I find this argument to be speculative and without foundation in the record. There is no evidence that SF’s account of the sexual assaults was based on a suggestion made by the niece. Nor did the defence call the niece as a witness to substantiate any such claim. Moreover, although the niece attended the initial police interview with SF on December 23, 2017, the niece took no part in the discussion and did not prompt SF or suggest to her that any assaults occurred. SF’s account of the assaults, which is detailed and spontaneous, is made entirely independently and without any support or encouragement from the niece. [32] The trial judge found it was understandable that S.F. might not have wanted to disclose the sexual assaults to her mother and plausible that she told her cousin, with whom she was close and whom she trusted, at the first available opportunity. [33] The appellant submits that because the complainant initially said that nothing had happened, but later responded to I.F.’s “leading questions”, there was a risk of confabulation, the unconscious creation of false memories. He submits the trial judge failed to consider evidence relevant to tainting, failed to consider S.F.’s suggestibility and erred in finding that the complainant’s accounts were made independently. Additionally, the trial judge erred in referring to the transcript of the complainant’s videotaped police interview, which was not in evidence. [34] The respondent acknowledges that although the transcript of the complainant’s police interview had been provided to the trial judge, and was referred to in evidence and in submissions, it had not been placed in evidence and should not have been relied upon. [35] We agree with the trial judge’s conclusion that this argument is speculative and unsupported by the evidence. While A.F. testified that S.F. was easily influenced and trusting, she also said that she was very open and never lied to her. Both the trial judge and defence counsel observed that there were limits to S.F.’s suggestibility, and she did not hesitate to disagree with suggestions made during examination. [36] In our view, this is another instance in which the trial judge’s assessment of the evidence was uniquely informed by his opportunity to observe S.F.’s evidence as it unfolded at trial. In a colloquy with counsel for the appellant during closing submissions, the trial judge observed that while S.F. was suggestible, she testified in a “very direct and spontaneous way when she seems to be remembering what happened.” This observation is supported by S.F.’s evidence, which was rich with detail, well beyond the generality of I.F.’s questions. [37] We do not give effect to this ground of appeal. (c) Findings not supported by the evidence [38] Although not addressed in oral submissions, the appellant’s written argument asserts that the trial judge made three findings that were speculative and unsupported by the evidence. We can describe and address these briefly. [39] First, S.F. testified that when they were on the bus, the appellant asked her personal questions about her family, including where her parents were. The trial judge inferred that the appellant asked these questions to determine whether members of her family would come looking for S.F. if he took her to his apartment. [40] Second, the trial judge observed that the appellant became upset when he found out that S.F. had been reported missing and that her family was looking for her. He inferred that the appellant was upset because he thought he would be able to keep her in his apartment indefinitely. [41] Finally, the trial judge found that keeping the complainant in the apartment for four days was inconsistent with the possibility that the appellant was attempting to assist her. [42] We do not accept the appellant’s submission that these inferences were speculative. In our view, they were available to the trial judge. They were not made in isolation from each other, or from the trial judge’s findings of fact and his assessment of all the evidence, including the complainant’s evidence of the appellant’s abuse. The uncontested fact is that the appellant happened upon a lost young woman with obvious intellectual and physical challenges and kept her in his home for four days – alone and neglected most of the time – without contacting anyone . As the trial judge observed, had the appellant brought S.F. to his residence because he wanted to assist her, he would have made some effort to contact her family or others who could have helped her. In the absence of any evidence that he did so, the inferences drawn by the trial judge were open to him. (d) Failure to consider inferences inconsistent with guilt [43] Finally, the appellant submitted in his factum that the verdict was unreasonable because the trial judge failed to turn his mind to an inference inconsistent with guilt when assessing the circumstantial evidence. He impugns the trial judge’s conclusion that the presence of the appellant’s DNA on the complainant’s underwear tended to support a finding that she had been sexually assaulted. She wore the same clothing every day and obviously used the toilet at least once. There was no evidence of the nature and source of the DNA, and the trial judge failed to consider a reasonable likelihood that the appellant’s DNA was transferred to S.F.’s underwear by innocent means. [44] As the respondent notes, the trial judge’s finding was simply that the DNA evidence “tends to support a finding that SF was sexually assaulted by KB.” The DNA evidence was but one piece of circumstantial evidence in a case based primarily on the direct evidence of the complainant – evidence the trial judge accepted. The fact that the trial judge gave the DNA evidence some weight in his assessment of all the evidence does not make the verdict unreasonable. Sentence Appeal [45] With credit of 1.5:1 for the 694 days the appellant had served in pre-sentence custody, there remained 2 years and 54 days to be served in his 5-year sentence. He has since served that remainder of his sentence. The appellant concedes the sentence appeal is therefore moot. We agree. Disposition [46] For these reasons, the conviction appeal and the motion for leave to appeal sentence are dismissed. “G.R. Strathy C.J.O.” “S. Coroza J.A.” “J. George J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Farej v. Fellows, 2022 ONCA 254 DATE: 20220329 DOCKET: C68515 Doherty, Miller and Sossin JJ.A. BETWEEN Sabrin Farej, an infant under the age of eighteen years by her Litigation Guardian Amara Idris, Amara Idris, personally and in her capacity as Estate Trustee of the Estate of Romodan Farej Plaintiffs (Appellants/Respondents by Cross-Appeal) and George Fraser Fellows Defendant (Respondent/Appellant by Cross-Appeal) AND BETWEEN Murad Farej and Muntasir Farej, a minor by his Litigation Guardian Murad Farej Plaintiffs (Appellants/Respondents by Cross-Appeal) and George Fraser Fellows Defendant (Respondent/Appellant by Cross-Appeal) John J. Adair, Jordan V. Katz, Duncan Embury, Daniela M. Pacheco and Brandyn Di Domenico, for the appellants Peter W. Kryworuk and Jacob R.W. Damstra, for the respondent Heard: October 27 and 28, 2021 by videoconference On appeal from the judgment of Justice Kelly A. Gorman of the Superior Court of Justice, dated November 23, 2020, and reported at 2020 ONSC 3732, dismissing the action. Doherty J.A.: I overview [1] This is a truly tragic case. Sabrin Farej (“Sabrin”) was born on June 3, 2007 in London, Ontario. She was profoundly disabled at birth and continues to be so. Sabrin cannot walk, talk or feed herself. Sabrin requires 24-hour a day care, is totally dependent on her family and caregivers, and will be for the rest of her life. Sabrin’s life expectancy is about 38 years. [2] Sabrin suffered acute near total oxygen deprivation for about 25 to 30 minutes before her birth. The oxygen deprivation led to severe brain damage and damage to other vital organs, leaving Sabrin with multiple devastating, permanent disabilities. [3] Sabrin, her parents, Amara Idris and Romodan Farej, and her two brothers sued Ms. Idris’ obstetrician, Dr. George Fraser Fellows, alleging he was negligent during Sabrin’s delivery. [4] The evidence at trial focused primarily on the 26 minutes between Dr. Fellows’ arrival in the delivery room at 11:01 p.m. and Sabrin’s delivery at 11:27 p.m. Dr. Fellows faced an obstetrical emergency when he walked into the delivery room. Sabrin was not getting an adequate oxygen supply. Dr. Fellows believed he had to deliver Sabrin as quickly as was safely possible. Dr. Fellows elected to proceed with a vaginal delivery. After two unsuccessful attempts to deliver Sabrin, Dr. Fellows was able to deliver her on his third attempt, some 26 minutes after he entered the delivery room. [5] The plaintiffs alleged that Dr. Fellows fell below the applicable standard of care in several respects. Their main argument focused on Dr. Fellows’ decision to deliver Sabrin vaginally with the assistance of forceps. The plaintiffs argued that the applicable standard of care required Dr. Fellows to proceed immediately with an emergency C-section at 11:05 p.m., by which time he had assessed the situation and observed blood in Ms. Idris’ amniotic fluid after he ruptured her membranes. The plaintiffs maintained that by this time, Dr. Fellows knew there was reason to suspect that Ms. Idris had suffered a uterine rupture, a life-threatening complication. He also knew Sabrin’s head was above her mother’s pelvic bone. Both the uterine rupture and the position of the baby’s head contraindicated a vaginal delivery. [6] The plaintiffs argued that, had Dr. Fellows proceeded immediately with an emergency C-section, as he should have, Sabrin would have been delivered within 8 to 10 minutes, approximately 12 to 14 minutes before she was actually delivered. The plaintiffs submitted that this delay caused or materially contributed to the catastrophic injuries Sabrin had when she was born. [7] In addition to arguing that Dr. Fellows should have proceeded immediately with an emergency Caesarean section, the plaintiffs argued that after Dr. Fellows decided to proceed with a vaginal delivery, he made a series of decisions that fell below the applicable standard of care. Those errors, considered individually or cumulatively, caused or materially contributed to Sabrin’s injuries. [8] The trial judge dismissed the action. She found against the plaintiffs on all three issues relevant to liability. First, she found the plaintiffs had failed to establish any breach of the applicable standard of care by Dr. Fellows. Second, she found no causal link between any of Dr. Fellows’ actions and Sabrin’s injuries. Third, she rejected the argument that Dr. Fellows had failed to obtain the required informed consent before proceeding with a vaginal delivery using forceps. [9] Although the trial judge found no liability, she proceeded to consider damages. Her damages assessment largely adopted the position advanced by the plaintiffs. [10] Sabrin, her mother, her brothers, and her father’s estate (her father unfortunately died before trial) appeal from the dismissal of the action. [1] They accept that, on the evidence, the trial judge could have dismissed the action. They submit, however, that the reasons are legally inadequate in that they do not permit meaningful appellate review. The appellants advance several arguments which they assert demonstrate the inadequacy of the reasons on most of the crucial issues at trial. [11] With respect to remedy, the appellants submit that if this court concludes the reasons are inadequate and the judgment must be set aside, this court is not the appropriate forum in which to examine the complicated and conflicting evidence and engage in the extensive fact-finding and credibility assessments necessary to resolve the many contested issues. Counsel submits that the interests of justice require that this court order a new trial on liability. [12] The respondent describes the appellants’ submissions as an attempt to relitigate the credibility assessments and findings of fact made by the trial judge. The respondent submits that a review of the reasons shows the trial judge had a firm grasp of the evidentiary record, an understanding of the applicable legal principles, and an appreciation of the issues to be resolved. The respondent further contends that the bases upon which the trial judge decided the material issues are clear when the reasons are read in the context of the evidence, and the detailed written and oral submissions made at trial. [13] Alternatively, the respondent submits that, if the appeal is allowed and a new trial ordered, the new trial should be on all issues, including damage-related issues. The respondent points out that only some of the damage-related issues were addressed by the trial judge. The respondent further contends that if Dr. Fellows is found liable on a retrial, the findings of facts relevant to liability may be relevant to the assessment of damages. Only the trial judge at the retrial can properly make that damage assessment. [14] The respondent also brings a cross-appeal, challenging aspects of the trial judge’s damages assessment. This appeal is contingent upon this court both ordering a new trial on liability and rejecting the respondent’s submission that if there is to be a new trial, it should be on all issues, including damages. [15] The respondent submits, that if this court reaches the contingent cross-appeal, the trial judge made two very significant errors, both of which require a recalibration of the damages as assessed by her. II my conclusion [16] The evidence at trial was lengthy and complex. The trial judge had to consider a series of difficult factual issues. Her reasons are, in many respects, comprehensive and clear. The appellants contend, however, that the reasons are inadequate in respect of several issues that were central to the appellants’ case on liability. [17] For the reasons that follow, I am satisfied that two of the arguments advanced by the appellants should succeed. The trial judge’s reasons with respect to causation and her reasons dealing with one of the several allegations of negligence are inadequate. On these two issues, the reasons do not reveal critical findings that had to be made, and do not explain how the trial judge arrived at some of the conclusions she did reach. This court cannot meaningfully review her decision on those two issues. The inadequacies in the reasons, taken together, require the setting aside of the judgment dismissing the action. I agree with the appellants that, in the circumstances, a new trial is the appropriate remedy. I also agree with the respondent that the new trial should be on all issues relating to liability and damages. [18] In the reasons that follow, I explain why I conclude the trial judge’s reasons are fatally inadequate in respect of the two issues identified above. Given my conclusion that those errors require a new trial, it is unnecessary to deal with all of the other alleged inadequacies identified by the appellants. I will, however, examine what I see as the other main arguments advanced by the appellants. In my view, none of those arguments should succeed. III the facts [19] This is a fact-intensive appeal. Both counsel, in their written and oral submissions, have gone through the evidentiary record in considerable detail. Different parts of the evidence are germane to different arguments advanced by the appellants. I will leave most of the details of the evidence until I address those specific arguments. What follows is a summary intended to provide the essential narrative and context for the arguments advanced on appeal. [20] Ms. Idris and her husband, Romodan Farej, immigrated to Canada in 1997. They had a son Murad, born in 1999, and a second son, Muntasir, born in June 2005. Dr. Fellows provided pre- and post-natal care in both pregnancies, but he was not involved in either delivery. By all accounts, Ms. Idris and her husband got along well with Dr. Fellows and they developed a good relationship over the years. Ms. Idris was happy with the care he provided. [21] When Ms. Idris was pregnant with her first child, Murad, she told Dr. Fellows she would prefer to deliver vaginally. It turned out, however, that Murad was in a breech position and a Caesarean section was necessary. There were no problems with the delivery or the postnatal care. [22] When Ms. Idris was pregnant with Muntasir, she told Dr. Fellows she wanted to deliver Muntasir vaginally, even though her first baby was born by Caesarean section. Dr. Fellows explained to her that vaginal birth after a Caesarean (“VBAC”) was possible. Ms. Idris eventually gave birth vaginally, although the attending obstetrician had recommended a Caesarean section when Ms. Idris’ labour became prolonged. Ms. Idris, however, persisted and her baby was born vaginally. There were no problems. [23] Just as with Ms. Idris’ two earlier pregnancies, Dr. Fellows provided prenatal care to Ms. Idris when she was pregnant with Sabrin in 2006. They discussed how Ms. Idris would give birth. They agreed they would make the decision based on how things were going in the hospital at the time of the birth. The pregnancy was uneventful and Dr. Fellows had no concerns about Ms. Idris’ or the baby’s wellbeing during the pregnancy. [24] On June 3, 2007, Ms. Idris went into labour with Sabrin. She arrived at the hospital at about 7:30 p.m. with her husband and a friend. Ms. Idris was told Dr. Fellows was in the hospital and would deliver the baby. The nursing staff immediately put a fetal heart monitor (“FHM”) in place. [25] According to Ms. Idris, she began to experience considerable pain at around 9:30 p.m. The pain continued even after an epidural. She asked to see Dr. Fellows but was told by the nursing staff that it was not time to call him. [26] By 10:24 p.m., Ms. Idris was fully dilated. As of approximately 10:45 p.m., the FHM had been showing variable decelerations in Sabrin’s heart rate for close to an hour. At 10:55 p.m., her heart rate dropped precipitously and remained in a prolonged deceleration, indicating that blood flow to Sabrin’s brain had essentially stopped. [27] The attending nurse paged Dr. Fellows at 10:55 p.m. He was delivering another baby. Dr. Fellows arrived at Ms. Idris’ bedside at 11:01 p.m. He quickly determined that Sabrin was not getting an adequate oxygen supply and was in severe distress. At 11:04 p.m., Sabrin’s heart rate was bradycardic, meaning it was at or below 60 beats a minute. Bradycardia was a clear sign to Dr. Fellows that Sabrin was not getting oxygen to her brain. Dr. Fellows knew he was facing an obstetrical emergency and had to take immediate action to deliver Sabrin as quickly as safely possible. [28] Dr. Fellows performed a vaginal and abdominal examination of Ms. Idris. He could see the position of the baby’s head. Dr. Fellows realized, that because of Sabrin’s positioning, her head would have to be turned if she was delivered vaginally. [29] At 11:05 p.m., Dr. Fellows artificially ruptured the membranes to facilitate delivery. There was blood in the amniotic fluid. The presence of blood in the amniotic fluid gave Dr. Fellows added concerns about the wellbeing of both Sabrin and her mother. Dr. Fellows suspected a placental abruption, meaning the placenta had detached from the uterus, thereby separating Sabrin from her source of oxygen. Dr. Fellows’ differential diagnosis included the possibility that Ms. Idris’ uterus had ruptured. A uterine rupture can result in quick and substantial blood loss by the mother and is a life-threatening complication for both the mother and the baby. The two conditions share many symptoms. Both conditions are serious and must be addressed immediately. A uterine rupture is more serious, but a placental abruption is more common. [30] Dr. Fellows testified that, after he ruptured the membranes, he believed he was dealing with a placental abruption, but was alive to the possibility of a uterine rupture. Dr. Fellows indicated his immediate concern was Sabrin’s wellbeing. She had to be delivered immediately. Ms. Idris was stable and alert. [31] Dr. Fellows decided that a vaginal delivery would be the fastest and safest way to deliver Sabrin. In his evidence, Dr. Fellows outlined several considerations that led him to that conclusion, including Ms. Idris’ successful prior vaginal delivery of her second son, who was a larger baby than Sabrin. Dr. Fellows told Ms. Idris to push, but quickly concluded that pushing alone would not deliver Sabrin. Dr. Fellows decided to use forceps to deliver Sabrin. [32] Using Tucker-McLean forceps, Dr. Fellows began to move the baby down the birth canal. To turn Sabrin’s head so she would be in a proper position for delivery, Dr. Fellows had to release the forceps and then reapply them. He anticipated that Sabrin would remain near the crowning position when he released the forceps. Instead, when he released the forceps, there was a large gush of blood and Sabrin retreated back up the vaginal cavity. This occurred at about 11:07 p.m. The blood made Dr. Fellows more concerned about the possibility of a uterine rupture. [33] Dr. Fellows decided to make a second attempt to deliver Sabrin using forceps. This time, he used Kielland forceps which would allow him to deliver Sabrin without releasing the forceps during delivery. Dr. Fellows applied the forceps and once again the baby began to descend the birth canal. However, as Sabrin approached the crowning position, Dr. Fellows became concerned that if he completed the delivery with the Kielland forceps, the configuration of those forceps would cause considerable damage to Ms. Idris’ perineum. Dr. Fellows decided to remove the Kielland forceps, believing that Ms. Idris could push the baby out. When he released the forceps, Sabrin again retreated back into the vaginal cavity. [2] Dr. Fellows now suspected a uterine rupture. [34] Dr. Fellows was cross-examined as to how long his efforts to remove Sabrin with the Kielland forceps took. As I read his evidence, Dr. Fellows agreed his efforts with the Kielland forceps took about five minutes. [35] Dr. Fellows made a third attempt to deliver Sabrin vaginally with forceps. This time, using the Tucker-McLean forceps, and after performing an episiotomy, which involves cutting the perineum, Dr. Fellows successfully manoeuvred Sabrin to a crowning position. He released the forceps and told Ms. Idris to push. Sabrin arrived about 30 seconds later at 11:27 p.m. [36] In argument, counsel for the appellants submitted that Dr. Fellows agreed the third and ultimately successful attempt to deliver Sabrin took about 15 minutes. Counsel for the respondent submitted that, while the appellants suggested to Dr. Fellows that the third effort to deliver Sabrin took 15 minutes, he did not agree with that suggestion. [37] Counsel for Dr. Fellows’ reading of the evidence may be accurate. Some of the times relied on by the appellants in their timeline for the delivery are clearly approximations. They are, however, estimates made within an undoubtedly very narrow timeframe. Taking into account the overall timeframe of 26 minutes from Dr. Fellows’ arrival in the delivery room to the delivery of Sabrin, and the agreed upon times at which other events occurred, it seems reasonable to conclude the third and successful attempt to deliver Sabrin took something in the order of 15 minutes. [38] After Dr. Fellows delivered Sabrin, he took Ms. Idris to the operating room and performed a laparotomy. Dr. Fellows located a laceration on the back of her uterus. Ms. Idris had lost a significant amount of blood. Dr. Fellows successfully repaired and reattached the lower uterine section of the uterus to the walls of the vagina. Ms. Idris stayed in the hospital for seven or eight days, but recovered without further incident. [39] Ms. Idris was told within a few days that Sabrin had suffered a catastrophic brain injury and would never be able to eat, walk or talk. Ms. Idris had a brief conversation with Dr. Fellows about a month after the delivery. He told her everything was fine until the last minutes. [40] Dr. Fellows testified that he remains convinced, even with the benefit of hindsight, that he chose the proper mode of delivery and that he was correct in attempting to continue to effect the delivery with forceps even after two unsuccessful attempts. In Dr. Fellows’ opinion, had he abandoned vaginal delivery with the use of forceps in favour of a C-section, he “would be dealing with a dead baby”. IV were the reasons inadequate? A. The Applicable Legal Principles [41] Reasons for judgment fully and clearly explaining both the result and the reasons for the result serve several important purposes. Reasons for judgment improve the transparency, accountability and reliability of decision-making, thereby enhancing public confidence in the administration of justice: R. v. Sheppard , 2002 SCC 26, [2002] 1 S. C.R. 869, at para. 5; F.H. v. McDougall , 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 98; R. v. G.F. , 2021 SCC 20,459 D.L.R. (4th) 375, at para. 68; Sagl v. Chubb Insurance Company of Canada , 2009 ONCA 388, [2009] I.L.R. I-4839, at paras. 95-99; Dovbush v. Mouzitchka , 2016 ONCA 381, 131 O.R. (3d) 474, at paras. 20-23. [42] In the context of the appeal process, however, the focus is not on the overall quality of the reasons given at trial, or the extent to which those reasons serve all of the purposes outlined above. Instead, the focus is on whether the reasons allow the appeal court to engage in a meaningful review of the substantive merits of the decision under appeal. As Binnie J., with his usual clarity, explained in Sheppard , at para. 28: It is neither necessary nor appropriate to limit circumstances in which an appellate court may consider itself unable to exercise appellate review in a meaningful way. The mandate of the appellate court is to determine the correctness of the trial decision, and a functional test requires that the trial judge’s reasons be sufficient for that purpose. The appeal court itself is in the best position to make that determination . The threshold is clearly reached, as here, where the appeal court considers itself unable to determine whether the decision is vitiated by error. Relevant factors in this case are that (i) there are significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for judgment, (ii) the confused and contradictory evidence relates to a key issue on the appeal, and (iii) the record does not otherwise explain the trial judge’s decision in a satisfactory manner. Other cases, of course, will present different factors. The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed. [Emphasis added.] [43] A submission that trial reasons are legally inadequate does not necessarily attack the sufficiency of the evidence, the reasonableness of the factual findings, or allege legal errors in the trial judge’s analysis. Rather, the submission that reasons are inadequate amounts to a claim that proper substantive review of the trial judge’s reasons is foreclosed by the inadequacy of those reasons. In other words, counsel cannot effectively make arguments about the sufficiency of the evidence, the reasonableness of the fact finding, or alleged errors in law because the reasons of the trial judge do not provide the window into the trial judge’s conclusions and reasoning process necessary to make those arguments. [44] The appellants have a statutory right of appeal from the dismissal of their action. If the appellants are correct and the reasons do not reveal the factual or legal basis for the trial judge’s conclusions, the appellants are effectively denied the exercise of their statutory right of appeal. That denial amounts to both an error in law and can result in a miscarriage of justice. [45] There is now a deep jurisprudence addressing the sufficiency of reasons as a ground of appeal. The cases repeatedly make two important points. First, the adequacy of reasons must be determined functionally. Do the reasons permit meaningful appellate review? If so, an argument that the reasons are inadequate fails, despite any shortcomings in the reasons. Second, the determination of the adequacy of the reasons is contextual. Context includes the issues raised at trial, the evidence adduced, and the arguments made before the trial judge. For example, if a review of the evidence and arguments indicates that a certain issue played a minor role at trial, the reasons of the trial judge cannot be said to be inadequate because they reflect the minor role assigned to the issue by the parties at trial: Sheppard , at paras. 33, 42 and 46; R. v. Morrissey (1995), 22 O.R. (3d) 514, at p. 525; Dovbush , at para. 23. [46] In G.F. , the Supreme Court of Canada recently cautioned against appellate courts reviewing trial judge’s reasons with an overly critical eye, especially in cases turning on credibility assessments: G.F. , at paras. 74-76. The majority said, at para. 79: To succeed on appeal, the appellant’s burden is to demonstrate either error or the frustration of appellate review. Neither are demonstrated by merely pointing to ambiguous aspects of the trial decision. Where all that can be said is a trial judge may or might have erred, the appellant has not discharged their burden to show actual error or the frustration of appellate review . Where ambiguities in a trial judge’s reasons are open to multiple interpretations, those that are consistent with the presumption of correct application must be preferred over those that suggest error. It is only where ambiguities, in the context of the record as a whole, render the path taken by the trial judge unintelligible that appellate review is frustrated. An appeal court must be rigorous in its assessment, looking to the problematic reasons in the context of the record as a whole and determining whether or not the trial judge erred or appellate review was frustrated. It is not enough to say that a trial judge’s reasons are ambiguous – the appeal court must determine the extent and significance of the ambiguity . [Emphasis added.] [Citations omitted.] [47] The caution sounded in G.F. applies in this appeal. The position of Sabrin’s head when Dr. Fellows decided to proceed with a forceps delivery was one of the main contentious factual issues at trial. There was arguably a dramatic inconsistency between Dr. Fellows’ description of the position of the head in his operative note and Dr. Fellows’ testimony describing the position of Sabrin’s head. The appellants vigorously challenged Dr. Fellows’ credibility, claiming he fabricated evidence to avoid the implications of the operative note. [48] The trial judge clearly believed Dr. Fellows’ evidence relating to the position of Sabrin’s head. The appellants argue she did not adequately explain how she came to that conclusion. In considering that argument, t his court cannot engage in its own assessment of Dr. Fellows’ credibility under the guise of a purported review of the adequacy of the trial judge’s reasons for believing Dr. Fellows: R. v. Ramos , 2020 MBCA 111, at para. 53, aff’d 2021 SCC 15, 457 D.L.R. (4th) 369. [49] While G.F. sounds a clear cautionary note to appellate courts considering arguments based on allegations of the inadequacy of trial reasons, the case does not go so far as to suggest that if reasons that suffer from ambiguity can possibly be read so as to remove the ambiguity , the reasons are legally adequate. If it is not possible to resolve the ambiguity by determining which of multiple possible meanings the trial judge actually intended, the reasons will be incapable of effective appellate review. Ambiguity is of course only one sort of error that can make reasons insufficient for the purpose of appellate review. The appellants in this appeal rely more on the absence of findings or explanations for the findings than they do on any ambiguities in the findings. [50] Because the adequacy of trial reasons is assessed functionally and depends on the ability of the appellate court to effectively review the correctness of the decision arrived at by the trial court, the appellate court is entitled to look at the record as a whole when determining the trial judge’s findings and the reasons for those findings are adequately laid out. For example, in reasons for judgment, the trial judge may find the evidence of a certain witness incredible but say very little about why that finding was made. However, a review by the appellate court of the testimony of that witness may make the reasons for the trial judge’s assessment crystal clear. In that circumstance, the appellate court can, by reference to the testimony, effectively review the trial judge’s credibility assessment. Consequently, the reasons do not prevent meaningful appellate review and are not legally inadequate: G.F. , at para. 70; Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231 , 2015 ONCA 520, 389 D.L.R. (4th) 711, at paras. 30-32. B. The issues at trial [51] There were three broad issues to be resolved at trial. The trial judge set them out early in her reasons (paras. 11-13): · Did Dr. Fellows have the informed consent of Amara to proceed in the fashion in which he did? [informed consent] · Did Dr. Fellows fall below the reasonable standard of care of an obstetrician/gynaecologist? In particular, did his failure to immediately perform an emergency Caesarean section fall below the standard of care? [standard of care] · If Dr. Fellows was negligent, did his acts or omissions cause or materially contribute to the injuries suffered by Sabrin Farej? [causation] [52] Setting aside the informed consent issue, to succeed at trial, the appellants had to establish both causation and a breach of the standard of care. The trial judge found against the appellants on both issues. To succeed on appeal based on arguments alleging the reasons to be inadequate, the appellants must show the reasons are inadequate with respect to causation and at least one of the standard of care issues. If the causation reasons do allow for meaningful appellate review of the causation finding, there would be no reason to interfere with the trial judge’s finding the appellants failed to prove causation and the appeal would be dismissed, regardless of the adequacy of the reasons relating to standard of care issues. Similarly, if the reasons relating to the standard of care issues allow for meaningful appellate review, the trial judge’s finding there was no breach of the standard of care would stand, and the appeal would be dismissed even if the causation reasons were inadequate. [53] Each of the three issues raised a number of sub-issues, most of which turned on findings of fact. The appellants submit the trial judge failed to make necessary findings and failed to adequately explain those findings she did make. I will examine those arguments by considering the reasons in the following order: · The causation reasons; · The standard of care reasons; and · The informed consent reasons. C. are the reasons on causation adequate? (i) The Evidence [54] When Sabrin was born, she was suffering from acute near total asphyxia (oxygen deprivation) brought on by a loss of blood flow to her brain prior to delivery. In all likelihood, Ms. Idris’ uterine rupture precipitated Sabrin’s acute near total asphyxia. [55] Sabrin’s oxygen deprivation lasted for about 25 to 30 minutes before her delivery. At some point in time during that timeframe, Sabrin suffered permanent brain damage as a result of the ongoing oxygen deprivation. [56] Oxygen deprivation as a result of acute asphyxia does not lead immediately, or inevitably, to permanent brain damage. Oxygen deprivation will, however, cause permanent brain damage and ultimately death if the deprivation goes on for a sufficiently long time period. [57] The experts agreed that Sabrin’s acute near total asphyxia began between 10:55 p.m., when Sabrin’s heart rate dropped precipitously, and 11:04 p.m., when the FHM showed she was bradycardic. None of the experts could say exactly when the acute near total asphyxia began, or when it first caused permanent brain damage. They all agreed the length of time required before permanent brain damage would occur varied and depended on a number of variables. [58] Dr. Oppenheimer, the defence expert, testified that the state of the baby’s oxygen reserves when the acute asphyxia occurred was one of those important variables. Sabrin’s heart rate had decelerated at various times in the hour before Dr. Fellows arrived in the delivery room. Dr. Oppenheimer testified that those decelerations put stress on Sabrin’s oxygen reserves and would have compromised, to some degree, her ability to withstand the acute near total asphyxia that occurred some time between 10:55 p.m. and 11:04 p.m. I do not read the evidence of the appellants’ experts as contradicting this aspect of Dr. Oppenheimer’s evidence. [59] The experts, as well as Dr. Fellows, also accepted that, as a general rule, the longer and more severe the oxygen deprivation suffered by the baby, the more extensive and severe the brain injuries and other consequential injuries to the baby are likely to be. The increase in the severity of brain damage is not, however, linear or consistent in the sense that it proceeds at a known or predictable rate, or results in the loss of certain specific brain functions in a given order or at specific points in time. [60] The experts agreed that Sabrin’s acute near total asphyxia caused the permanent brain damage which led to her many injuries and disabilities. They gave various estimates as to when Sabrin may have suffered permanent brain damage. The experts made it clear, however, that these were estimates and Sabrin could have suffered permanent brain damage almost at any stage of the asphyxia and certainly before or after the timeframes estimated by the experts. [61] Dr. Oppenheimer testified that permanent brain damage could occur as quickly as 10 minutes after the initial event causing the acute asphyxia occurred, or permanent damage could occur significantly later. It was Dr. Oppenheimer’s position that the initial event compromising Sabrin’s oxygen supply occurred as early as 10:55 p.m. and as late as 11:04 p.m. If the initial incident causing the acute asphyxia occurred at 11:04 p.m., Dr. Oppenheimer testified the permanent brain damage could have occurred by 11:14 p.m. [62] Dr. Oppenheimer was asked whether Sabrin’s injuries could have been avoided or lessened had Sabrin been delivered by Caesarean section as soon as reasonably possible. He responded: I think it’s quite unlikely that – that she could have been delivered more quickly and, even if she had been delivered more quickly, I think it’s unlikely her injuries could have been avoided. [63] Dr. Shah, the appellants’ expert, agreed that Sabrin’s acute near total asphyxia began some time between 10:55 p.m. and 11:04 p.m. He also agreed that babies have a limited ability to defend against such events and that the defences can be compromised by a history of heart decelerations during the labour. [64] Dr. Shah testified that it was his estimate that Sabrin’s permanent brain damage occurred between 20 and 30 minutes after the onset of her acute near total asphyxia (10:55 p.m. – 11:04 p.m.). On this estimate, Sabrin could have suffered permanent brain damage as early as 11:15 p.m. Dr. Shah also testified that he would place the onset of Sabrin’s permanent brain damage nearer the time of her actual birth as had it occurred earlier and closer to the 20-minute mark, he did not believe Sabrin would have been born alive. [65] In cross-examination, Dr. Shah agreed that he could not say with any degree of confidence that Sabrin had not suffered a permanent brain injury within a short period of time after Dr. Fellows arrived in the delivery room. Similarly, he could not say with any confidence that Sabrin had not suffered a permanent brain injury even before Dr. Fellows first attempted to deliver Sabrin vaginally using forceps. (ii) The causation arguments at trial [66] There is no suggestion Dr. Fellows did anything, or failed to do anything, that caused Sabrin’s acute near total asphyxia. It would appear that the uterine rupture was the physical cause of her near total asphyxia. In legal terms, the near total asphyxia was a non-tortious cause of Sabrin’s ultimate injuries. She, in all likelihood, was suffering from acute oxygen deprivation before Dr. Fellows arrived in the delivery room at 11:01 p.m. [67] The appellants advanced their causation argument at trial through a series of possible scenarios, each based on an alleged act of negligence by Dr. Fellows and a comparison of the time at which the appellants said Sabrin could have been delivered, but for Dr. Fellows’ negligence, with the time Sabrin was actually delivered. The appellants argued that the lost time attributable to Dr. Fellows’ negligence, which ranged from about 15 minutes on most of the scenarios to 30 seconds on one scenario, caused, or at least materially contributed to, the catastrophic injuries Sabrin had when she was born: see Athey v. Leonati , [1996] 3 S.C.R. 458, at paras. 13-16; Donleavy v. Ultramar Ltd. , 2019 ONCA 687, 60 C.C.L.T. (4th) 99, at paras. 72-73. [68] The respondent met the appellants’ causation arguments with the submission that the timelines advanced by the appellants were based on speculation and not evidence. In particular, the respondent submitted that the appellants’ contention that he could have delivered Sabrin by emergency Caesarean section in 8 to 10 minutes from the time he made the decision to do an emergency Caesarean section was unrealistic. At trial, Dr. Fellows testified that 8 to 10 minutes took into account only the time between incision and delivery and did not take into account the time needed for the necessary preparation prior to commencing the actual operation. [69] The respondent also took on the appellants’ argument that he caused Sabrin’s injuries on a broader front. The respondent argued that on the evidence, especially the evidence of the appellants’ expert, Dr. Shah, the appellants had failed to establish on the balance of probabilities that had he delivered Sabrin by emergency Caesarean section as soon as reasonably possible, her delivery at that time would have made any material difference to her physical condition when she was born. The respondent argued that, apart entirely from whether he was negligent, the appellants had failed to demonstrate on the balance of probabilities that anything he did or did not do caused or materially contributed to Sabrin’s injuries. If this argument carried the day, the appellants’ other arguments, save one, would necessarily fail. [3] (iii) The trial judge’s causation reasons [70] The trial judge correctly identified the causation issue early in her reasons, at para. 13: If Dr. Fellows was negligent, did his acts or omissions cause, or materially contribute to the injuries suffered by Sabrin Farej? [71] The trial judge’s analysis of the causation issue begins at para. 306. After a thorough and accurate review of the legal principles (paras. 307-23), the trial judge correctly identified the “but for” test as the applicable test to determine causation (para. 325). [72] The trial judge next reviewed some of the evidence relevant to causation (paras. 326-37). She had outlined the evidence in some detail earlier in her reasons. [73] After summarizing the evidence, the trial judge turned to the appellants’ arguments (paras. 338-41, 343). The trial judge rejected those arguments. In reference to the submission that Dr. Fellows should have done an immediate C-section, or performed a C-section immediately after the first attempt to deliver Sabrin vaginally failed, the trial judge said, at para. 342: These submissions are not founded in the evidence. Dr. Fellows testified that he could perform an emergency c-section within eight to ten minutes from incision to delivery. This estimate does not account for delivery room preparation, patient transportation and the administration of anaesthesia, and there was no evidence called in that regard. [74] The trial judge next focused on the argument that, on the third attempt to deliver Sabrin, Dr. Fellows had been negligent in removing the forceps and allowing Ms. Idris to push Sabrin out. The appellants argued that by having Ms. Idris push rather than removing Sabrin with the forceps, Dr. Fellows added 30 seconds to the delivery, causing additional brain damage to Sabrin. The appellants emphasized that, by this time, Sabrin had been in an acute asphyxic state for up to 32 minutes. The trial judge dismissed this argument, at para. 344: At its highest, this argument is grounded in “loss of chance”. As the court stated in Laferriere ( supra ), a mere loss of chance is not compensable in medical malpractice cases. [75] The trial judge had, earlier in her reasons, summarized the case law distinguishing between causation and a mere loss of chance (para. 323). [76] After rejecting the appellants’ arguments, the trial judge turned to the respondent’s submission that the appellants had failed to prove on the balance of probabilities that anything Dr. Fellows did or failed to do was causally linked to Sabrin’s injuries. The trial judge referred to Dr. Oppenheimer’s evidence that he did not think it likely that a quicker delivery would have avoided the injuries suffered by Sabrin. The trial judge also referred to the evidence that permanent brain damage may have occurred within 10 minutes of the initial near total asphyxia. On the evidence of both experts, near total asphyxia may have occurred as early as 10:55 p.m. Finally, the trial judge referred to Dr. Fellows’ evidence that had he abandoned the forceps delivery, he “would be dealing with a dead baby”. The trial judge then concluded, at para. 348: I can find no causal connection between Dr. Fellows’ actions and Sabrin’s injuries. [77] I read this as a finding that the appellants had not proved that Dr. Fellows did or failed to do anything that materially contributed to the injuries Sabrin had when she was born. The appellants vigorously argue that this simple, short, single sentence all but ended their case. They submit they were entitled to an explanation as to how the trial judge arrived at that conclusion. (iv) The appellants’ submissions [78] In support of their contention that the reasons do not explain the trial judge’s causation finding, the appellants submit that the trial judge never came to grips with the evidence about the time needed to perform an emergency Caesarean section. They contend the trial judge, at para. 342, wrongly concluded “there was no evidence” as to the time needed to perform an emergency Caesarean section. The appellants point to the evidence of Dr. Cohen in which he opined that 8 to 10 minutes to perform an emergency Caesarean section was a generous estimate and included the minimal preparation time needed for the procedure. [79] The appellants submit that without coming to a conclusion as to the time needed to perform an emergency Caesarean section, the trial judge could not rationally decide whether the failure to perform an emergency Caesarean section caused or materially contributed to Sabrin’s injuries. The determination of whether any causal link existed between the failure to perform an emergency Caesarean section and Sabrin’s injuries could only be properly made after a finding of what delay, if any, occurred between the time at which Sabrin could have been delivered by way of emergency Caesarean section and the actual delivery time. If the trial judge found the failure to perform an emergency Caesarean section did delay Sabrin’s birth, she would then have had to determine whether that delay caused or materially contributed to the injuries Sabrin had when she was born. [80] The appellants further submit that, although the trial judge recognized early in her reasons that a material contribution to Sabrin’s injuries sufficed to establish causation, she ignored the “material contribution” component of the causation inquiry when considering the effect of any delay in the delivery of Sabrin on her catastrophic condition when she was born. The appellants submit the trial judge’s reasons on causation indicate she approached causation as if the injuries Sabrin had when she was born occurred at a specific point in time when she suffered permanent brain damage, rather than over a period of time after she had suffered permanent brain damage due to acute oxygen deprivation. The appellants contend that it cannot be determined from the trial judge’s reasons whether in finding no causal connection between Dr Fellows’ actions and Sabrin’s injuries, the trial judge even considered whether an earlier delivery by way of emergency Caesarean section would have materially reduced the extent of Sabrin’s permanent brain damage and the injuries suffered by her. [81] The appellants argue the absence of any reference in the reasons to the possibility that the failure to perform an emergency Caesarean section may have materially reduced Sabrin’s injuries, even if it did not entirely eliminate the brain damage caused by the near total asphyxia, is especially important given the nature of the evidence adduced in this case. The experts and Dr. Fellows agreed that time was of the essence and minutes counted, both in respect of the likelihood of permanent brain damage and the potential severity of that damage. The appellants ask rhetorically what did the trial judge make of the consensus opinion that the longer Sabrin suffered oxygen deprivation, the more probable permanent brain damage and the more severe that permanent brain damage was likely to be? The appellants submit the reasons provide no answer to this fundamental question. (v) The respondent’s submission [82] The respondent replies that the reasons of the trial judge reveal a full command of the evidence and the legal principles applicable to causation, including the recognition that causation extends to factors which materially contribute to the injury. [83] The respondent urges the court in assessing the adequacy of the causation reasons to consider those reasons in the context of the evidence relating to causation. The respondent maintains that the evidence, especially the evidence of the appellants’ expert, Dr. Shah, offers no support for the conclusion that Dr. Fellows did anything that caused Sabrin’s injuries. The respondent submits that, on the evidence, no one could say that Sabrin was not permanently brain damaged before Dr. Fellows was in the delivery room, and no one could say what effect any delay in the delivery had on the extent of the injuries actually suffered by Sabrin. Nor could any of the experts indicate that had Sabrin been delivered before a specific point in time she would not have suffered the same kind of injuries she ultimately suffered. The respondent emphasizes that the appellants had the burden of proof on causation. Evidence that Dr. Fellows may or may not have caused or materially contributed to Sabrin’s injuries would not suffice to meet that burden. (vi) Analysis [84] I agree with the thrust of the appellants’ submissions on the causation issue. The reasons tell us that the trial judge decided that nothing Dr. Fellows did caused the injuries. Unfortunately, the reasons do not tell us how the trial judge arrived at her conclusion, or whether in doing so she addressed not only causation in the narrowest sense, but also causation by way of a material contribution to the injuries actually suffered by Sabrin: Dunleavy v. Ultramar Ltd. , at paras. 72-73. [85] To decide whether Dr. Fellows’ decision to proceed with a vaginal birth rather than an emergency C-section caused, or materially contributed to, Sabrin’s injuries, the trial judge had to make three factual findings: · When would Sabrin have been delivered had Dr. Fellows elected to proceed with an emergency C-section at 11:05 p.m.? · What delay occurred as a result of Dr. Fellows’ decision to proceed with a vaginal delivery rather than an emergency Caesarean section? This calculation required a comparison of the time of the delivery had a C-section been done and the actual time of delivery. · Did the delay, as quantified at step 2, cause or materially contribute to the injuries Sabrin had when she was born? [86] If the trial judge found the delay did cause or materially contributed to Sabrin’s injuries, she would have had to go on and determine whether that delay was the product of Dr. Fellows’ negligence, that is did his decision not to perform an emergency Caesarean section fall below the applicable standard of care? [87] The evidence indicates that Dr. Fellows was in the position to determine the appropriate mode of delivery at 11:05 p.m. By that time, he had assessed the patient and artificially ruptured the membranes. He fully appreciated the urgency of the situation, believed that Ms. Idris had suffered a placental abruption, but also realized that a uterine rupture was a possibility. [88] There was conflicting evidence about how long it would take Dr. Fellows to deliver Sabrin by Caesarean section had he decided to follow that course of action. On Dr. Cohen’s evidence, 8 to 10 minutes from decision to delivery was a generous estimate and, in many cases, the delivery could be completed in less time. Dr. Cohen explained there was virtually no preparation involved in an emergency Caesarean section once the patient was in the operating room and anesthetized. The operating room was directly across from the delivery room, and there was an anesthetist available. [89] Dr. Fellows indicated in his discovery that it would take 8 to 10 minutes to complete an emergency Caesarean section. He later explained at trial that 8 to 10 minutes referred to the time needed from incision to delivery and did not include preparation time. [90] In extracts from his discovery read in at trial, Dr. Fellows indicated that a “normal emergency Caesarean section” took “15, 20 minutes”. When asked to “deal with this case”, Dr. Fellows stated that if Ms. Idris was properly anaesthetized, an emergency Caesarean section could be done within 8 to 10 minutes. [91] The trial judge did not refer to the evidence given by Dr. Fellows on his discovery. She also made no finding as to how long the necessary preparation would take. In her reasons (para. 342), she wrongly indicated there was “no evidence called” on that issue. In fact, as summarized above, Dr. Cohen had testified the preparation time would be very brief. [92] Dr. Oppenheimer agreed with Dr. Fellows’ evidence that the 8 to 10-minute estimate did not include preparation time. As I read his evidence, he offered no opinion as to the length of that preparation time and no opinion as to the time needed to complete a Caesarean section in the circumstances faced by Dr. Fellows. [93] There was also evidence that Ms. Idris’ first son was born by way of emergency Caesarean section at the same hospital. That procedure took seven minutes from administration of the anaesthesia to completion of the procedure. The circumstances, however, at the time of the birth of Ms. Idris’ first child were very different than those faced by Dr. Fellows. [94] On my review of the reasons, the trial judge accepted Dr. Fellows’ evidence that the estimate of 8 to 10 minutes to conduct an emergency Caesarean section did not include preparation time. The trial judge made no findings beyond that. [95] This was no minor factual matter. I agree with the appellants that without arriving at a time, or at least a timeframe, within which the emergency Caesarean section could have been completed, the finding of no causal connection between Dr. Fellows’ actions and the injuries is unintelligible. This is particularly true bearing in mind that causation is established if the delay brought about by the failure to perform the immediate Caesarean section materially contributed to Sabrin’s ultimate injuries. [96] In light of the evidence that Sabrin’s permanent brain damage occurred over a period of time during which she was acutely oxygen deprived, and that the damage worsened the longer the deprivation lasted, it was critical to the causation inquiry that the trial judge decide when Sabrin could have been delivered by emergency Caesarean section. Without a finding of at least a timeframe within which the Caesarean section could have been completed, there could be no finding as to how long, if at all, Sabrin was oxygen deprived as a consequence of the failure to deliver her by way of emergency Caesarean section. Without that finding, there could be no meaningful inquiry into whether the delay, if any, caused or materially contributed to Sabrin’s injuries. [97] There are avenues through the evidence which, if followed by the trial judge, could reasonably have led her to conclude that even if an emergency Caesarean section had been performed, Sabrin would not have been delivered sufficiently prior to 11:27 p.m. to make any material difference to the outcome. Nothing in the reasons, however, allows me to conclude the trial judge followed one of those roads. D. are the reasons on the standard of care issues adequate? [98] The trial judge correctly identified the applicable standard of care (paras. 230-38) – did Dr. Fellows exercise the degree of skill and knowledge expected of an average competent obstetrician in the circumstances: ter Neuzen v. Korn , [1995] 3 S.C.R. 674, at para. 46. The trial judge approached the standard of care issues by asking herself three questions: · Did Dr. Fellows fall below a reasonable standard of care in failing to document any discussion with Ms. Idris, including benefits, risks and options? · Did Dr. Fellows fall below a reasonable standard of care in failing to recognize Ms. Idris’ uterine rupture? · Did Dr. Fellows fall below a reasonable standard of care in performing a forceps delivery when Sabrin was station -1? (1) Did the trial judge ask herself the wrong question? [99] This submission focuses on the second of the three questions posed by the trial judge. The appellants submit that, while Dr. Fellows’ failure to diagnose a uterine rupture had some relevance to the standard of care issues, none of the appellants’ arguments depended on a finding that Dr. Fellows was negligent in failing to recognize Ms. Idris’ uterine rupture. [100] At trial, the appellants argued the applicable standard of care required Dr. Fellows to perform an immediate Caesarian section if a uterine rupture was on his differential diagnosis, even if he believed a placental abruption was the more likely cause of Sabrin’s distress and the bleeding. [101] A differential diagnosis recognizes various possible causes of a given medical problem. A uterine rupture, and a placental abruption, can generate many of the same symptoms. Both were on Dr. Fellows’ differential diagnosis from the outset. After his initial assessment of Ms. Idris, Dr. Fellows believed that a placental abruption was the more likely diagnosis, but a uterine rupture remained on his differential diagnosis. [102] The appellants contend that, under the applicable standard of care, Dr. Fellows was required to first address the most serious condition on his differential diagnosis. A uterine rupture is a more serious diagnosis than a placental abruption. A uterine rupture puts the life of both the mother and the baby at very real risk. The appellants submit an immediate Caesarean section was the only way to properly address the risks posed by a uterine rupture. [103] The appellants submit that, despite the centrality of the appellants’ submission that a differential diagnosis, including a uterine rupture, requires an immediate Caesarean section, the trial judge ignored Dr. Fellows’ acknowledgement that a uterine rupture was on his differential diagnosis, and instead focused on the reasonableness of Dr. Fellows’ diagnosis of a placental abruption as the more likely cause of Sabrin’s bradycardia. The appellants argue that the trial judge’s ultimate determination that Dr. Fellows’ diagnosis of a placental abruption was reasonable, at para. 277, did nothing to resolve the crucial question of whether the applicable standard of care required him to proceed immediately with an emergency Caesarean section. (i) The evidence on whether Dr. Fellows was required to proceed with an immediate Caesarean section [104] Dr. Cohen, the appellant’s expert, testified: He should have been suspicious of uterine rupture, and unless the fetus is able to be readily delivered, meaning at the perineum, or basically crowning, he should have proceeded to laparotomy [Caesarean section]. [105] Dr. Cohen indicated that in the face of a possible uterine rupture, both the mother and baby were in jeopardy. Dr. Fellows had to “expedite delivery”. In Dr. Cohen’s opinion, in the circumstances faced by Dr. Fellows, an emergency Caesarean section was the only way to adequately expedite delivery. [106] In advancing his opinion, Dr. Cohen relied on guidelines prepared by the Society of Obstetricians and Gynecologists (“SOGC”) and, in particular, recommendation No. 7: Suspected uterine rupture requires urgent attention and expedited laparotomy to attempt to decrease maternal and perinatal morbidity and mortality. [107] Dr. Fellows acknowledged that a uterine rupture was a possible diagnosis. In his view, regardless of the cause of the problem, it was imperative that Sabrin be delivered as quickly and safely as possible both for her wellbeing and her mother’s wellbeing. Delivering Sabrin as quickly as possible was essential, given her acute fetal distress. A quick delivery of Sabrin would also allow Dr. Fellows to examine Ms. Idris’ uterus and conduct any needed repairs. Those repairs could not be performed until Sabrin was delivered. [108] The SOGC guidelines were put to Dr. Fellows. He testified he did not treat the guidelines as rules, but as aides to the exercise of his clinical judgment. That clinical judgment had to be made depending on the exact circumstances in any specific case. [109] Dr. Oppenheimer agreed with Dr. Fellows’ approach. In his opinion, if, on a clinical assessment, a vaginal delivery was appropriate, the possibility of a uterine rupture did not dictate that a Caesarean section was the only appropriate mode of delivery. The essence of Dr. Oppenheimer’s evidence is set out below: There are any [m]any causes, of course, of fetal distress but in this scenario the causes we’re concerned about are potentially  abruption or uterine rupture, those are the two, and you can perform a forceps delivery, it doesn’t matter what you consider the underlying etiology, if the patient meets your, you know, prerequisites and you feel you are going to succeed you can go ahead and do a forceps. The indication is not an issue. [I]n every case where you come in the room and you have pain, bleeding and severe fetal distress, the differential diagnosis is always abruption versus rupture and you do not always assume that it’s – that it’s rupture because if it’s abruption then – well it doesn’t matter. Either way, the action is the same, urgent delivery. So, it doesn’t matter which one you’re prioritizing in what we discussed before in the differential, urgent delivery is the treatment of both. [110] As I read the evidence of the experts and Dr. Fellows, the primary concern had to be to deliver Sabrin as quickly as safely possible. Delivering Sabrin would not only address her ongoing oxygen deprivation, but would also allow the doctor to locate and fix any uterine rupture Ms. Idris may have suffered. [111] The experts differed on one essential point. In Dr. Cohen’s view, an urgent delivery meant a delivery by way of emergency Caesarean section, except in those cases where it was obvious from the positioning of the baby that it could be delivered immediately vaginally. On the view of Dr. Fellows and Dr. Oppenheimer, the question of how best to deliver the baby quickly and safely involved a greater element of clinical judgment and an assessment of various factors. In Dr. Oppenheimer’s opinion, Dr. Fellows exercised that judgment appropriately when he decided to proceed with a vaginal delivery. (ii) Analysis [112] I agree with the appellants’ submission that the reasonableness of Dr. Fellows’ diagnosis of a placental abruption was not determinative of whether Dr. Fellows was negligent in failing to conduct an immediate Caesarean section. The trial judge’s analysis of the reasonableness of Dr. Fellows’ diagnosis of placental abruption (paras. 268-79) provides no answer to the claim that he was negligent in failing to perform an emergency Caesarean section once a uterine rupture was on his differential diagnosis. Although the trial judge, at para. 12, properly identified the issue as being whether Dr. Fellows fell below the standard when he failed to perform an immediate Caesarean section, her ultimate analysis, to the extent it focused on whether the failure to diagnose a uterine rupture was negligent, misapprehended the case advanced by the appellants. [113] This misstep by the trial judge in her reasons does not, however, mean the reasons are inadequate. The reasons must be considered as a whole. Reasons may address issues that do not have to be addressed, or reasons may mischaracterize issues. What is important in an inquiry into the adequacy of the reasons is not necessarily the shortcomings of the reasons, but whether they ultimately explain the basis for the decisions which had to be made to render the judgment in question. Effective appellate review may involve more work with some judgments than others. As long as the review can be conducted, the reasons are adequate. [114] Looking at the reasons as a whole, it is clear the trial judge reviewed the evidence of Dr. Fellows concerning his decision to proceed with a vaginal delivery in some detail when she was outlining the evidence of various witnesses: at paras. 90-111, 143, 165, 171-84. The trial judge also thoroughly reviewed the experts’ evidence and the differing opinions as to whether the applicable standard of care required an immediate emergency Caesarean section. The trial judge specifically accepted Dr. Oppenheimer’s evidence to the effect that “a forceps delivery was clearly the best choice” (paras. 294-95). She also accepted, at para. 298, his evidence of the interpretation of the relevant guidelines as not precluding a forceps delivery in the circumstances faced by Dr. Fellows. [115] The reasons of the trial judge reveal an appreciation of the conflicting evidence on the issue of whether Dr. Fellows should have proceeded with an emergency Caesarean section. The reasons demonstrate that the trial judge resolved the conflicting evidence by preferring the evidence of Dr. Oppenheimer over Dr. Cohen’s evidence. The trial judge preferred the approach which placed more emphasis on individual clinical judgments over Dr. Cohen’s approach, which favoured more of a bright line rule when a uterine rupture was on the differential diagnosis. The trial judge’s clear command of the content of the evidence given by the experts and Dr. Fellows supports the conclusion that she preferred Dr. Oppenheimer’s opinion after a critical assessment of the evidence offered by both experts for and against their respective positions. The trial judge appreciated the substance of the evidence given by the experts, the points of contention between them, and ultimately determined she preferred Dr. Oppenheimer’s evidence on this point. [116] The clarity of the trial judge’s reasons may have been enhanced had she dealt with the question of whether an immediate emergency Caesarean section was Dr. Fellows’ only option under its own specific heading. Formatting deficiencies will, however, seldom render reasons unintelligible. The reasons for the trial judge’s finding that Dr. Fellows was not negligent in proceeding with a vaginal forceps delivery reveal both what the trial judge decided and why she rendered that decision. The reasons permit meaningful appellate review. (2) Did the trial judge fail to engage with and decide Dr. Fellows’ credibility in respect of his evidence that Sabrin’s head was engaged when he attempted the forceps delivery? [117] The position of Sabrin’s head when Dr. Fellows elected to proceed with a vaginal delivery using forceps was a crucial factual issue at trial. If her head was not engaged, meaning it was above Ms. Idris’ pelvic bone, Dr. Fellows and the experts agreed that a forceps delivery should not be attempted. (i) The evidence on the location of Sabrin’s head [118] In his operative note prepared shortly after the delivery, Dr. Fellows referred to Sabrin’s head as being at station -1 when he conducted his vaginal exam. Dr. Fellows made no mention of whether the head was “engaged”. [119] Dr. Cohen testified that a reference to the baby’s head being at station -1 meant that the head was above the pelvic bone and, therefore, not engaged. To be engaged, the head had to be at station 0 or lower (station +1). Dr. Cohen referred to various texts in support of his definition of “engaged”. [120] Dr. Cohen was asked about Dr. Fellows’ evidence on his discovery to the effect that Sabrin’s head was “engaged at station -1”. Dr. Cohen replied that as a trained experienced obstetrician, Dr. Fellows would know that if the head was at station -1, it could not be engaged. [121] The appellants submitted that Dr. Fellows’ operative note accurately described the position of Sabrin’s head when Dr. Fellows attempted a forceps delivery. That position effectively ruled out the use of forceps and, therefore, by necessary implication, a vaginal delivery. [122] Dr. Fellows acknowledged that when he initially did his vaginal examination, Sabrin’s head was “just above spines”, meaning the head was not engaged. Dr. Fellows indicated that when he ruptured the membranes, the head descended slightly. By the time he completed the pelvic exam, Sabrin’s head was engaged and remained so. Dr. Fellows agreed that his operative note made no reference to the head being engaged and that he did not amend the document at any time. [123] Dr. Oppenheimer testified that Sabrin’s head may have descended from station -1 before Dr. Fellows applied the forceps. The descent may have been caused by the rupture of the membranes, or Ms. Idris’ pushing. Contrary to Dr. Cohen, Dr. Oppenheimer indicated that a designation of the head as being at station -1 was not necessarily incompatible with the observation that the head was below the pelvic bone and, therefore, engaged. (ii) Analysis [124] The trial judge ultimately accepted Dr. Fellows’ evidence that he could see that Sabrin’s head was engaged before he used the forceps. The trial judge accepted this evidence for two reasons. First, Dr. Fellows indicated the rupture of the membranes caused the head to descend (para. 301). Second, Dr. Fellows, who was by all accounts an experienced and skilled obstetrician, testified as to what he saw, and in particular, the location of Sabrin’s head. He knew the significance of the location of the head when considering whether to attempt a forceps aided delivery (para. 304). [125] The trial judge reviewed the relevant evidence at length. It was open to her to accept Dr. Fellows’ evidence. She did not misapprehend any of the evidence relevant to this point. The two reasons she gave for accepting Dr. Fellows’ evidence offer an intelligible explanation for her conclusion. [126] Dr. Fellows’ evidence that Sabrin’s head moved slightly downward after he ruptured the membranes was supported, to some extent, by evidence from the experts, including Dr. Cohen, who agreed that a rupture of the membranes could cause the baby’s head to move downward. [127] I am satisfied that, the trial judge did not take an improper approach in her assessment of Dr. Fellows’ evidence by taking into account his acknowledged experience and expertise. The trial judge found it unlikely that a person of Dr. Fellows’ experience and expertise would, be mistaken in his observation of the location of Sabrin’s head, a crucial consideration in determining how best to deliver Sabrin. The trial judge, for the same reason, found it implausible that Dr. Fellows would proceed with a vaginal delivery using forceps unless he was satisfied the head was engaged, a prerequisite to proceeding with a vaginal delivery. [128] The trial judge did not engage in circular reasoning, but simply took into account Dr. Fellows’ experience and expertise when considering the credibility and reliability of his evidence as to what he saw when he examined Ms. Idris in preparation for the delivery of Sabrin. [129] The appellants, as they did at trial, argue that Dr. Fellows tailored his evidence about the location of Sabrin’s head to coincide with certain suggestions found in Dr. Oppenheimer’s report. They contend Dr. Fellows first testified that Sabrin’s head moved downward after his initial examination after Dr. Fellows had read Dr. Oppenheimer’s report in which he offered that possible explanation. The appellants submit the trial judge failed to consider this argument. [130] Dr. Fellows did refer to Sabrin’s head as being engaged in his discovery evidence, although he coupled that reference with an indication it was at “station -1”. It does not appear that Dr. Fellows was asked questions on discovery about the position of Sabrin’s head or any movement of her head after his initial assessment. [131] Certainly, it was open to the appellants to argue that Dr. Fellows’ trial evidence as to the positioning of Sabrin’s head was coloured by his reading of Dr. Oppenheimer’s report. The appellants made that argument at trial and I have no doubt the trial judge considered it. Her failure to address the argument specifically in her reasons does not undermine the explanation she gave for accepting Dr. Fellows’ evidence as to the position of Sabrin’s head. Trial judges are not required to answer every argument made by counsel at trial, particularly an argument predicated in part on the submission that the trial judge should draw an adverse inference with respect to credibility because a party failed to volunteer information on discovery. The reasons admit of meaningful appellate review. (3) Did the trial judge fail to explain why she rejected the appellants’ submission that Dr. Fellows should have done an emergency Caesarean section after the first attempt to deliver with forceps failed? (i) The appellants’ argument [132] The first attempt to deliver Sabrin with forceps failed at about 11:07 p.m. The appellants submitted that as of 11:07 p.m., Dr. Fellows had two new additional factors to take into account when deciding how to proceed. First, the gush of blood and the immediate retreat of Sabrin’s head gave Dr. Fellows even more reason to suspect Ms. Idris had suffered a uterine rupture. Second, under the SOGC guidelines, the failure to successfully deliver a baby using one technique was itself a reason to consider using a different approach. [133] The appellants submit that these two new considerations should have led Dr. Fellows to change the mode of delivery from a vaginal delivery with forceps to an emergency Caesarean section. His failure to do so cost valuable time and caused or materially contributed to Sabrin’s injuries. [134] The appellants acknowledge that the trial judge rejected this argument. She said, at para. 304: Given the exigent circumstances and what was known at the time, Dr. Fellows acted reasonably in pursuing an operative vaginal delivery with forceps. Once he made that decision it was imperative that he follow through. Failure to do so, in all likelihood, would have resulted in the death of the baby. [135] The appellants submit that the trial judge’s reasons offer no explanation for her conclusion that Sabrin would likely have died had Dr. Fellows decided to perform an emergency Caesarean section at about 11:07 p.m. The appellants also submit the reasons offer no explanation for the trial judge’s conclusion that it was “imperative” that Dr. Fellows follow through with a vaginal delivery, despite the change in the relevant circumstances. (ii) Analysis [136] There is merit to the appellants’ submission. The trial judge’s reasons shed no light on how the trial judge came to her conclusion that Sabrin would in all likelihood have been dead before she was born had Dr. Fellows ordered an emergency Caesarean section at 11:07 p.m. Certainly, Dr. Fellows gave that evidence. However, Dr. Fellows offered no evidence as to when he could have completed a Caesarean section had he decided at 11:07 p.m. to abandon the vaginal delivery in favour of an immediate emergency Caesarean section. [4] [137] It may be that Dr. Fellows concluded that as Sabrin was born alive at 11:27 p.m., she would have been delivered some time after 11:27 p.m. had he decided to perform a Caesarean section at or about 11:07 p.m. Unfortunately, Dr. Fellows did not explain in his evidence why he believed Sabrin would not have survived the birth had he proceeded with a Caesarean section. Nor does the trial judge explain how she came to accept Dr. Fellows’ evidence that Sabrin would not have survived had he proceeded with a Caesarean section when he gave no evidence as to when he believed she could have been delivered had he decided to proceed with a Caesarean section. [138] Despite the shortcomings described above, the trial judge’s reasons on this issue can be effectively reviewed in this court. As outlined above, the trial judge accepted the defence evidence that, regardless of the medical cause of the problem faced by Dr. Fellows, Sabrin’s delivery as quickly as it could be safely done had to be the priority, both from Sabrin’s perspective, and from Ms. Idris’ perspective. Because the trial judge accepted the defence evidence that the need to deliver Sabrin as quickly as possible remained the primary concern regardless of the cause of the problem, Dr. Fellows’ added suspicion of a uterine rupture after the blood gush during the first failed attempt to deliver Sabrin would not have caused him to rethink the appropriate mode of delivery. The speed with which he could deliver Sabrin safely remained the primary concern. [139] There was also nothing in the failed attempt to deliver Sabrin which would have suggested to Dr. Fellows that a further attempt to deliver with forceps would delay Sabrin’s birth beyond the time needed to effect the delivery by way of emergency Caesarean section. Dr. Fellows had moved Sabrin to crowning position within about one minute of the application of the forceps. Sabrin’s size presented no impediment to a vaginal delivery. It was reasonable for Dr. Fellows to conclude he could reapply the forceps, this time using a kind of forceps that would avoid releasing the head, and deliver the baby immediately. [140] A fair reading of the reasons as a whole demonstrates that the trial judge rejected the argument that Dr. Fellows was negligent in not going to a Caesarean section after the first attempt to deliver with forceps failed for essentially the same reasons that he was not negligent in his initial decision to deliver vaginally with forceps. The two decisions were made within a minute or two of each other. In both instances, Dr. Fellows made a clinical judgment that it was essential to deliver Sabrin as quickly as it could be safely done. In both instances, he decided a vaginal delivery provided the most expeditious route. Dr. Oppenheimer agreed with the reasonableness of that assessment. The trial judge accepted Dr. Oppenheimer’s opinion. (4) Did the trial judge fail to consider whether Dr. Fellows was negligent when he failed to deliver Sabrin using the Kielland forceps? (i) The evidence [141] After his initial attempt to deliver Sabrin with the Tucker-McLean forceps failed, Dr. Fellows made a second attempt using Kielland forceps. He believed that the shape of those forceps would allow him to deliver Sabrin without removing the forceps or relieving the traction. Sabrin had retreated back up the birth canal when Dr. Fellows had removed the forceps on his first attempt to deliver Sabrin. [142] Dr. Fellows brought Sabrin to the crowning position using the Kielland forceps. He was confident he could deliver the baby quickly with those forceps. [143] Dr. Fellows, however, became concerned that if he used the Kielland forceps to complete the delivery, those forceps, because of their shape, would destroy or damage Ms. Idris’ perineum. Dr. Fellows decided to release the Kielland forceps and have Ms. Idris push Sabrin out. This same strategy had failed only a few minutes earlier on Dr. Fellows’ first attempt to deliver Sabrin. Releasing the Kielland forceps also nullified the very reason Dr. Fellows had decided to use the Kielland forceps rather than the Tucker-McLean forceps. When Dr. Fellows released the forceps, Sabrin moved back up the birth canal just as she had moments earlier when Dr. Fellows released the Tucker-McLean forceps in his first attempt to deliver Sabrin. [144] Dr. Fellows decided to use the Kielland forceps to deliver Sabrin at about 11:07 p.m. His attempt to deliver her with those forceps had failed by about 11:12 p.m. This led to the third effort to deliver Sabrin vaginally. That attempt eventually succeeded at 11:27 p.m. [145] Dr. Cohen testified that the removal of the Kielland forceps when Sabrin was crowning and ready to be delivered was a breach of the applicable standard of care. He said: [I]f one is assuming that the fetal heart rate is extremely low, or non-existent, you want to expedite delivery, so you want to get that baby out in the quickest fashion possible, or the most timely fashion possible. So, the extraction with the forceps should have been done in my opinion. [146] Dr. Oppenheimer did not comment on Dr. Fellows’ release of the Kielland forceps in his report. In his testimony, he indicated the removal of the Kielland forceps was “common practice” done to avoid trauma to the perineum. [147] Dr. Oppenheimer was not asked to consider Dr. Fellows’ decision to remove the Kielland forceps in the context of the circumstances of this case. Specifically, Dr. Oppenheimer was not asked whether Sabrin’s prolonged acute near total asphyxia placed this case outside of the realm of “common practice”. (ii) Appellants’ position [148] At trial, the appellants alleged Dr. Fellows was negligent in releasing the Kielland forceps rather than delivering Sabrin immediately with those forceps. They claimed he should have appreciated the need to urgently deliver Sabrin and the risk that she would once again retreat up the birth canal if the forceps were removed. In support of their position, the appellants relied on the following: · Ms. Idris had been unable to push Sabrin out a few minutes earlier; · Dr. Fellows was more suspicious of a uterine rupture after the first failed attempt to deliver Sabrin with forceps; · Sabrin had been acutely oxygen deprived for at least eight minutes and, according to Dr. Fellows, probably longer by the time Dr. Fellows elected to remove the Kielland forceps; · Given Sabrin’s position in the vagina immediately before Dr. Fellows released the forceps, and Dr. Fellows’ expertise, he could, in all likelihood, have delivered Sabrin immediately had he kept the Kielland forceps in place and used them for the delivery; · Dr. Fellows had elected to release the forceps on his first attempt to deliver Sabrin. She had retreated up the birth canal when he did so. Despite this, he released the Kielland forceps only a few minutes later, only to have Sabrin retreat up the birth canal for a second time; and · Neither Dr. Fellows nor Dr. Oppenheimer offered an opinion as to why the preservation of the perineum justified potentially delaying Sabrin’s birth, given her near total ongoing acute oxygen deprivation. In fact, Dr. Fellows cut the perineum when he performed an episiotomy a few minutes later during the third and successful attempt to deliver Sabrin. [149] The appellants’ timeline as it relates to this argument is clear and simple. With the Kielland forceps, Sabrin could have been delivered at or very shortly after 11:12 p.m. She was actually delivered at 11:27 p.m. The 15-minute delay in delivering Sabrin is attributable to Dr. Fellows’ negligent failure to complete the delivery with the Kielland forceps. (iii) Analysis [150] Although the trial judge acknowledged, at para. 280, that the appellants had argued Dr. Fellows should have completed the delivery with the Kielland forceps, she never addressed the merits of that argument. Apart from a brief reference to Dr. Oppenheimer’s evidence that the release of a forceps was “common practice”, the trial judge made no reference to any of the evidence relevant to this issue. [151] The trial judge’s silence in respect of the allegation of negligence based on the failure to deliver Sabrin with the Kielland forceps cannot be answered by reference to her analysis of whether Dr. Fellows was obliged to conduct an emergency Caesarean section immediately, or whether the position of Sabrin’s head precluded a forceps delivery. [152] The argument that Dr. Fellows was negligent in not completing the delivery with the Kielland forceps did not depend in any way on whether he should have conducted an emergency Caesarean section immediately. Nor did it turn on when an emergency Caesarean section could have been completed. The resolution of those issues in favour of the respondent was no answer to the allegation of negligence based on the failure to deliver with the Kielland forceps. [153] Similarly, the trial judge’s conclusion that Sabrin’s head was engaged when Dr. Fellows decided to deliver Sabrin was of no consequence in deciding whether Dr. Fellows was negligent when he did not complete the delivery with the Kielland forceps. There was no doubt that Sabrin’s head was fully engaged and she was capable of being delivered with forceps when Dr. Fellows released the Kielland forceps. [154] The central findings by the trial judge, which foreclosed a finding of negligence on the main arguments advanced by the appellants at trial, had no application to the allegation that Dr. Fellows was negligent when he withdrew the Kielland forceps. This allegation stood on an entirely different evidentiary footing. It was essential that the trial judge address this allegation separately and explain why she rejected it. [155] There was evidence supporting the appellants’ position that Dr. Fellows acted negligently in failing to complete the delivery with the Kielland forceps. There was also evidence that his failure to do so caused a significant delay in the delivery of Sabrin. On the causation evidence, it would have been open to the trial judge to infer that the delay resulting from the failure to complete the delivery with the Kielland forceps (about 15 minutes) caused or materially contributed to Sabrin’s catastrophic injuries. [156] My review of the reasons leaves me uncertain as to whether the trial judge gave any separate consideration to the argument that the failure to complete the delivery with the Kielland forceps constituted negligence and, if so, whether it caused or materially contributed to Sabrin’s injuries. Even if I were to assume, in light of the arguments put to the trial judge, that she must have considered and rejected the argument that the failure to complete the delivery with the Kielland forceps was negligent, I see no analysis of the appellants’ submissions and no explanation in the reasons for the rejection of the appellants’ arguments on this issue. [157] The absence of any analysis makes it impossible to determine why the trial judge rejected the claim that Dr. Fellows was negligent in not completing the delivery with the Kielland forceps. The trial judge refers to Dr. Oppenheimer’s evidence that releasing the forceps was “common practice”. She refers to no other evidence and no basis upon which she could conclude that Dr. Oppenheimer’s reference to “common practice” had application to the circumstances as they existed when Dr. Fellows decided to release the Kielland forceps. This court does not know what the trial judge made of Dr. Oppenheimer’s description of releasing the forceps as “common practice”. In the same vein, the reasons offer no insight into why avoiding damage to the perineum justified any risk of additional delay in Sabrin’s delivery. By that stage, Sabrin had been suffering from acute near total asphyxia for at least eight minutes. [158] The reasons as they relate to the allegation that Dr. Fellows should have delivered Sabrin with the Kielland forceps are inadequate and do not admit of appellate review. The appellants’ allegation is tenable on the evidence and provides a basis upon which Dr. Fellows could be found to have caused Sabrin’s injuries. E. the reasons on the informed consent issue [159] At trial, the appellants’ argument in relation to informed consent focused on Dr. Fellows’ admitted failure to obtain Ms. Idris’ express consent to the use of forceps during the delivery. On appeal, the appellants argue the trial judge never addressed the issue of informed consent, but only considered whether Dr. Fellows had documented his conversations with Ms. Idris. The appellants refer to the question posed by the trial judge in her reasons: Did Dr. Fellows fall below a reasonable standard of care in failing to document any discussion with Ms. Idris, including benefits, risks and options? [160] Dr. Fellows conceded that he did not document any of his discussions with Ms. Idris or Mr. Farej after he arrived in the delivery room at 11:01 p.m. Dr. Fellows did, however, testify to discussions he had with Ms. Idris and Mr. Farej after he arrived in the delivery room. [161] The appellants submit the trial judge miscast their informed consent argument as turning exclusively on the failure to document any discussions that may have occurred. The appellants acknowledge they placed significant evidentiary weight on the failure to document. However, they maintain the trial judge ultimately had to decide what in fact Dr. Fellows said to Ms. Idris and whether, in the circumstances, Ms. Idris gave her informed consent to the forceps delivery. (i) The evidence [162] Dr. Fellows testified that as he was examining Ms. Idris, he was in constant verbal and visual contact with Ms. Idris and Mr. Farej. He told them their baby was in serious distress and that she should be delivered as quickly as possible. He told Ms. Idris and Mr. Farej that he believed that the safest way to proceed was not by Caesarean section, but by a forceps delivery. [163] In cross-examination, Dr. Fellows indicated he was speaking to both Mr. Farej and Ms. Idris during the time he was rupturing the membranes. He told them he could proceed using forceps or a Caesarean section and, in his clinical judgment, a forceps delivery was the most appropriate procedure. [5] Dr. Fellows testified he was speaking to both Mr. Farej and Ms. Idris, although he knew Mr. Farej, who had a better command of the English language than his wife and had medical training, would also be communicating with Ms. Idris. Dr. Fellows testified he emphasized the immediate risk to the baby’s life, as at that point Ms. Idris’ vital signs were stable. [164] Dr. Fellows agreed that given the urgency, he probably did not discuss the risks and benefits associated, either with a forceps delivery or a Caesarean section. When asked who made the decision to proceed with a forceps delivery, Dr. Fellows said: I felt it was my obligation as a professional who was fully aware of the acuity of the situation that I would make those decisions while I was talking to the two of them, but I would ultimately be the one that made that decision for her. [165] Dr. Fellows indicated that based on his prior experiences with Ms. Idris, she was aware that delivery by way of a Caesarean section or a vaginal delivery were the two possible options. They had discussed those options during her previous pregnancies and, to some extent, during this pregnancy. Ms. Idris had previously expressed a preference for a vaginal delivery. Dr. Fellows believed his relationship with Mr. Farej and Ms. Idris was such that they would trust his recommendation as to the appropriate way to proceed with Sabrin’s delivery. [166] Mr. Farej’s testimony from his discovery was read into the trial record. The trial judge set that evidence out in her reasons (para. 68). Mr. Farej testified that his wife had a very good relationship with Dr. Fellows. In one of the prenatal appointments, they discussed whether Ms. Idris should deliver by Caesarean section or vaginally. She told Dr. Fellows that it would depend on the situation when Ms. Idris was in the hospital and ready to deliver. Dr. Fellows agreed. [167] Mr. Farej testified that when Dr. Fellows came into the delivery room, he quickly examined Ms. Idris. He told them she was bleeding and the situation was serious. Mr. Farej recalled Dr. Fellows telling him “I have to save your wife” by delivering the baby. Mr. Farej told Dr. Fellows “yes. Just go.” Dr. Fellows proceeded immediately with a forceps delivery. (ii) The trial judge’s reasons [168] The trial judge summarized the law of informed consent at paras. 240-44. She recognized that Dr. Fellows was faced with an obstetrical emergency in which seconds counted. She recognized that the urgency of the medical situation was a circumstance to be taken into account in assessing the adequacy of the information provided to the patient by the doctor. The trial judge said, at para. 244: When patients are in distress and the physician is making rapid assessments and judgments of the indicated alternative courses of action, it is not necessary or appropriate to require the physician to have a complicated, detailed discussion of all possible risks and benefits of each alternative procedure in such circumstances. In an obstetrical emergency, all the obstetrician is “required to convey in the circumstances to meet the standard of care is his intended course of action and his reasons for doing so”. [169] The trial judge also acknowledged that there was nothing in the records documenting any discussion between Dr. Fellows and Ms. Idris or recording Ms. Idris’ consent to Dr. Fellows’ course of action. The trial judge, however, went on to find that the discussions described by Dr. Fellows in his evidence, and Mr. Farej, to some extent in his evidence, did occur. (iii) Analysis [170] Although the heading used by the trial judge misdescribes the informed consent issue, her analysis under that heading is directed at the evidence relevant to whether consent was given and the application of the earlier stated legal principles to the circumstances as found by the trial judge. [171] The trial judge obviously accepted Dr. Fellows’ evidence. She also accepted Mr. Farej’s evidence on discovery, which in her view confirmed, at least in some respects, the evidence given by Dr. Fellows. [172] The trial judge was satisfied Dr. Fellows informed Mr. Farej and Ms. Idris that the situation was extremely urgent. He advised them in general terms of the potential dire consequences, especially to Sabrin. He identified the delivery options available, and told Mr. Farej and Ms. Idris which of those two options should be followed. In the context of a rapidly evolving, life and death medical emergency, and having regard to the existing relationship between Dr. Fellows, Ms. Idris and Mr. Farej, I am satisfied it was open to the trial judge to conclude the information provided by Dr. Fellows was sufficient and allowed Ms. Idris to make an informed decision as to the mode of delivery. It was also open to the trial judge to conclude that Ms. Idris, along with her husband, accepted Dr. Fellows statement that the baby had to be delivered immediately and a vaginal delivery was the best way to accomplish that end. [173] As I am satisfied the trial judge’s reasons explain why she rejected the argument that Ms. Idris did not consent to the procedure, I will not address the causation arguments tied to the question of informed consent. V the appropriate order [174] The trial judge’s failure to give adequate reasons in respect of causation and one of the standard of care issues means this court cannot meaningfully review either the finding the appellants failed to prove causation, or the finding the appellants failed to prove Dr. Fellows was negligent. The judgment dismissing the action cannot stand. [175] The appellants ask for a new trial. The respondent did not argue that if the appellants convinced the court the reasons were inadequate, this court could, or should, decide the case on the existing record. [176] I accept the appellants’ position. The evidence is complicated and the numerous issues are interrelated and interdependent. I agree the interests of justice are served by ordering a new trial and I would so order. I am sure experienced, capable counsel will be able to make use of the existing trial record to expedite any subsequent proceedings which prove necessary. [177] I accept the respondent’s contention that the new trial should be on both liability and damages. If Dr. Fellows is found liable, findings on the liability portion of the trial may impact the damage assessment. [178] I would dismiss the contingent cross-appeal as moot, given the order directing a new trial on both liability and damages. [179] The appellants are the successful party on the main appeal. The parties agreed that the successful party on the main appeal should have costs in the amount of $60,000, inclusive of disbursements and relevant taxes. There should be no order as to costs on the cross-appeal. Released: “March 29, 2022 DD” “Doherty J.A.” “I agree B.W. Miller J.A.” “I agree. Sossin J.A.” [1] For ease of reference, I will refer to the appellants/plaintiffs as the appellants in the rest of these reasons. [2] In Dr. Fellows’ operative note, he indicated the baby retracted “into the abdomen”. In his testimony, Dr. Fellows stated that the note was an error and that it should have read “into the vagina”. [3] The appellants’ argument that Dr. Fellows was negligent in not completing the delivery with the Kielland forceps rather than releasing them and having Ms. Idris attempt to push the baby out would still have to be considered as the question of when Sabrin could have been delivered by way of Caesarean section is not relevant to that allegation of negligence. I address that argument below at paras. 141-58. [4] Dr. Fellows did give evidence on his discovery about the time needed to perform an emergency Caesarean section. Those parts of his discovery were read in at trial and are summarized above at paras. 88-91. [5] In his cross-examination on June 10, 2019, at p. 86, l 7-8, the transcript has Dr. Fellows telling Ms. Idris that a Caesarean section was the most appropriate way to deliver the baby. It seems obvious, having regard to Dr. Fellows’ evidence as a whole, that he misspoke on this one occasion. I do not understand the appellants to suggest otherwise.

COURT OF APPEAL FOR ONTARIO CITATION: Abdikarim (Re), 2022 ONCA 255 DATE: 20220329 DOCKET: C69749 Strathy C.J.O., Coroza and George JJ.A. IN THE MATTER OF: Mohamed Abdikarim AN APPEAL UNDER PART XX.1 OF THE CODE Joanna Weiss, for the appellant Erica Whitford, for the respondent, the Attorney General of Ontario Leisha Senko, for the respondent, the Person in Charge of the Centre for Addiction and Mental Health Heard: March 18, 2022 by video conference On appeal against the disposition of the Ontario Review Board dated May 12, 2021, with reasons dated June 8, 2021. REASONS FOR DECISION [1] The appellant, Mohamed Abdikarim, appeals against the disposition of the Ontario Review Board (the “Board”), dated May 12, 2021, ordering that he be detained at the Forensic Service of the Centre for Addiction and Mental Health (“CAMH”) in Toronto. He asserts that the Board erred in law in determining that the necessary and appropriate disposition was a continuation of his detention order and that the Board’s decision was unreasonable. The appellant argues that the Board should have ordered a conditional discharge. [2] The appellant is diagnosed with bipolar disorder unspecified, personality disorder unspecified, and substance use disorders relating to alcohol and cannabis. In October 2005, he was found not criminally responsible on account of a mental disorder in relation to three charges of robbery, two charges of possession of property obtained by crime under $5,000, one charge of failing to comply with a recognizance, one charge of theft under $5,000 and one charge of theft over $5,000. The appellant has been subject to a detention order since November 2005. [3] The terms of the appellant’s detention order permit him to live in the community in accommodation approved by the person in charge of CAMH, requires him to abstain from the use of alcohol and drugs and requires him to report to CAMH at least once a week. During the reporting year, the appellant resided at his mother’s house along with his sisters in a living environment that he described as supportive yet stressful. [4] The appellant sought readmission to hospital on nine separate occasions during the reporting year. Seven of these occasions were visitations to the CAMH emergency department and the other two occasions were to other emergency departments. The appellant’s reasons for seeking readmission varied, but often related to having consumed alcohol. He was readmitted to CAMH twice – from March 1 to 2, 2021 and from March 30 to April 3, 2021 – but “consistently requested to leave prematurely”. On at least two of the occasions that he was not readmitted, the appellant left the hospital before receiving a full assessment by his treatment team. [5] Unfortunately, the appellant tested positive for the consumption of alcohol on 12 days over the reporting year. The results of these tests were not always consistent with the appellant’s own reports of his alcohol consumption. [6] At the disposition hearing, the Board heard evidence from the appellant’s outpatient psychiatrist, Dr. Paul Benassi. In Dr. Benassi’s view, the appellant’s alcohol consumption and bipolar disorder leads to noncompliance with his medication and increases his risk for violence. In the Hospital Report that was provided to the Board, Dr. Benassi also noted that the appellant provided “inconsistent and misleading” information relating to his alcohol consumption over the reporting year. [7] The Board concluded that the appellant remained a significant threat to the safety of the public, and that the necessary and appropriate disposition was a continuation of his detention order. [8] The appellant advances two arguments on appeal. [9] First, the appellant argues that the board erred in law by relying on his alcohol consumption when determining that a continuation of his detention order was the necessary and appropriate disposition. We disagree. It was necessary for the Board to consider the appellant’s alcohol use in determining the necessary and appropriate disposition. [10] The Board quite properly considered this evidence along with the undisputed fact that the appellant tested positive for alcohol 12 times during the reporting year. Dr. Benassi’s evidence was that alcohol consumption increases the appellant’s risk of a mood episode, which is directly tied to his risk of violence. On two occasions, the appellant’s family phoned the hospital concerned about the appellant’s behaviour after coming home intoxicated, including one occasion where the appellant threatened to punch his sister. The appellant’s two readmissions to hospital were both triggered by concerns about his substance use. The Board did not err in considering all of this evidence because it was relevant to the issue of whether the appellant’s risk could be safely managed in the community. [11] Second, the appellant argues that the Board’s decision to order the continuation of his detention is unreasonable. He asserts that the evidence before the Board did not establish that a detention order was required to manage his risk in the community and was not the least onerous and least restrictive disposition. We do not accept this submission. [12] Given its expertise, considerable deference is owed to the Board’s decision in determining the necessary and appropriate disposition. In our view, the Board’s 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: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 85. [13] Dr. Benassi testified that a conditional discharge was not appropriate because it would not provide the safeguards necessary to manage the appellant’s risk. First, a conditional discharge would remove CAMH’s authority to approve the appellant’s housing. Second, a detention order was the only mechanism that would allow the hospital to readmit the appellant using a warrant of committal if necessary. According to Dr. Benassi, if a conditional discharge was granted, it would be very difficult to admit the appellant under the Mental Health Act , R.S.O. 1990, c. M.7. because he would not necessarily satisfy the criteria for involuntary admission under the Act. [14] We do not view Dr. Benassi’s evidence as suggesting that a detention order should be imposed merely because it would be convenient to return the appellant to the hospital if necessary: see Esgin (Re) , 2019 ONCA 155, at paras. 20 to 22. Dr. Benassi testified that the appellant’s treatment team has made consistent efforts to provide a level of risk management in a community setting, but has been challenged by the appellant’s fluctuating compliance with his treatment program and inconsistent self-reporting. Dr. Benassi confirmed that the goal of the appellant’s treatment team is to reduce reporting and monitoring requirements and to explore a conditional discharge going forward. It was open to the Board to order the appellant’s continued detention because the hospital needed to properly manage his risk and that the request for a conditional discharge was premature. [15] For these reasons, the Board did not err and we would not interfere with its disposition. [16] Before leaving this matter, we wish to comment on the Board’s description of the appellant as a “scofflaw”. We do not accept that the appellant is a contemptuous person who regularly violates the law. We recognize that the appellant has not always complied with the terms of his detention order, which prohibits him from consuming alcohol. But as Dr. Benassi explained, there are several complex reasons why the appellant continues to consume alcohol and the appellant has shown that he is willing to work with his treatment team in addressing his substance use. Indeed, Ms. Weiss, on behalf of the appellant, advised this court that the appellant has been enrolled in CAMH’s Concurrent Outpatient Medical & Psychosocial Addiction Support Services for substance use treatment since June 2021. We encourage the appellant to continue to work with his treatment team towards the goal of a conditional discharge. [17] The appeal is dismissed. “G.R. Strathy C.J.O.” “S. Coroza J.A.” “J. George J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Karia Estate v. Karia, 2022 ONCA 256 DATE: 20220325 DOCKET: C69773 Pardu, Paciocco and Thorburn JJ.A. In the Matter of the Bankruptcy of Aashish Karia, also known as Ash Karia of the City of Hamilton, in the Province of Ontario BETWEEN A. Farber & Partners Inc., trustee of the estate of Ash Karia, a bankrupt Moving Party (Respondent) and Ash Karia Respondent (Appellant) Matthew R. Harris, for the appellant Colby Linthwaite, for the respondent Heard: March 21, 2022 by video conference On appeal from the order of Justice Laurence A. Pattillo of the Superior Court of Justice, dated August 4, 2021, with reasons reported at 2021 ONSC 5377 . REASONS FOR DECISION OVERVIEW [1] This is an appeal of the motion judge’s order (i) setting aside the appellant Ash Karia (“Karia”)’s discharge from bankruptcy and (ii) declaring that all issued and outstanding shares of 2397043 Ontario Ltd., operating as Bindaas Capital (“Bindaas”), be vested in the Trustee in bankruptcy. [2] The hearing below centred on the question of Karia’s involvement with Bindaas. The motion judge held that Bindaas was owned by Karia, the shares were after-acquired property of Karia’s estate, and Karia breached his duty under s. 158(a) of the Bankruptcy and Insolvency Act , R.S.C. 1985 c. B-3by failing to deliver the shares to the trustee after his discharge from bankruptcy. The court annulled Karia’s discharge from bankruptcy pursuant to s. 180(1) of the BIA . [3] The appellants raise the following issues on appeal: a. Whether the Trustee had legal authority to bring the application before the motion judge; b. Whether the motion judge considered his legal authority not to annul the discharge; c. Whether the motion judge gave too much weight to the endorsements of other judges; d. Whether the motion judge imputed a finding of fraud when material facts were in dispute and a trial of the issues should have been ordered; and e. Whether the motion judge failed to consider prejudice to Karia. [4] For the reasons that follow, the appeal is dismissed. [5] In order to address the issues, it is important to understand the actions of the parties after the appellant, Karia declared bankruptcy. BACKGROUND FACTS The Appellant, Karia’s Bankruptcy [6] On February 7, 2008, Karia filed an assignment in bankruptcy. In so doing, he swore that there were effectively no realizable assets and the total unsecured debt was $1,230,697. The proven unsecured claims were later determined to be $1,442,759.19. On May 6, 2009, the Registrar in Bankruptcy made an order granting Karia a discharge conditional upon his paying $24,000 to the estate within a period of 48 months. Karia did not make the payments within the 48-month period. [7] On March 14, 2018, almost nine years after the order for conditional discharge had been made, and a month after the disallowance, Karia satisfied the condition by paying the last of the $24,000 plus interest to the Trustee, Paddon + Yorke Inc., in a lump sum of $4,661.33. The Trustee’s final statement of receipts and disbursements showed total receipts of $26,314.31. The Registrar in Bankruptcy granted Karia an absolute discharge on May 4, 2018. The Incorporation of Bindaas in 2013 [8] In November 2013, while Karia was still assigned into bankruptcy, Bindaas was incorporated. Bindaas was a mortgage lender, and within a few years, had extended loans of nearly $15 million. Karia’s Brother’s Bankruptcy in 2017 and Discovery of Karia’s Undisclosed Interest in Bindaas in 2018 [9] On October 11, 2017, Karia’s brother, Amit Karia became bankrupt. Bindaas filed a proof of claim in the amount of $664,322.42, as a creditor of Karia’s brother. The claim was disallowed. [10] In May 2018, Bindaas appealed the disallowance, and in support of the appeal, Karia (who was by then discharged from bankruptcy), swore two affidavits. In the first, he said, “I am the sole officer and director of the moving party, 2397043 Ontario Inc. operating as Bindaas Capital”. He also admitted in his affidavit that Bindaas, “had loaned a total of $14,461,612.70 to a total of 88 borrowers.” The Trustee’s representative, John Delo swore an affidavit in response to Karia’s First Affidavit in which he attested that: At no time during the period from the date of the Ash Conditional Order until the date of said final payment did Ash Karia advise PYI [the Trustee] (i) of his incorporation of or his involvement in Bindaas Capital […] (ii) that he purported to be a director of Bindaas Capital (contrary to the provisions of section 118 of the Business Corporations Act (Ontario); or that (iii) Ash Karia as an undischarged bankrupt was through Bindaas Capital in carriage and control of $14,461,612.70 in mortgage financing. [11] Karia then swore a reply affidavit in which he attested that “I am the sole officer and director of the moving party, 2397043 Ontario Inc. operating as Bindaas …” On December 7, 2018, Karia was cross-examined on his affidavits. During cross-examination, Karia made the following admissions: Q. Okay. Are you a shareholder of Bindaas Capital? A. On this corporation yes. Q. You’re one of the owners of the company? A. Yes. Q. Are you the only owner of the company? A. I’m the only owner. Q. You’re the only owner, okay. Do you recall offhand how many shares have been issued? A. No. Q. At the time you incorporated Bindaas Capital, were you an undischarged bankrupt? A. I recall, yes, I was. Q. And on the Corporate Profile Report that we’ve marked as Exhibit A, you’re indicated as being the only director of Bindaas Capital; is that correct? A. Yes. [12] The corporation profile report for Bindaas shows that Karia was appointed the sole officer and director of Bindaas on the date of its incorporation. Karia had not told the Trustee of his own bankruptcy or told the Court that he was a director of Bindaas while he was an undischarged bankrupt. Section 118(1) of the Business Corporations Act (Ontario), R.S.O. 1990, c. B.16 disqualifies an undischarged bankrupt from being a director of a corporation. [13] On February 22, 2019, the Trustee wrote Karia to say that “[i]f you were a shareholder… of [Bindaas] during the period [February 7, 2008 through May 4, 2018, during which Karia was an undischarged bankrupt] then the value of the company must be paid into your estate”. In April 2019, the Trustee wrote to demand that Karia deliver up the shares in Bindaas as after-acquired property, in accordance with subsection 67(1)(c) of the BIA . Karia did not do so. [14] In August 2019, the Trustee advised him that the shares formed part of his estate as a bankrupt and demanded that he deliver the shares to his estate as they were “after acquired property” that vested in the Trustee pursuant to s. 67(1)(c) of the BIA . Later that month, all bankrupt estates administered by the Trustee were transferred to the new trustee, A. Farber & Partners Inc. Karia claimed that while he was a director at the time of incorporation (in November 2013) he resigned the same day and therefore was “not and was never a shareholder of Bindaas Capital.” He claimed the shares belonged to his wife, Ella. The Motion Judge’s Decision [15] On September 5, 2019, the Trustee brought a motion seeking to have the shares declared after-acquired property of the estate and to have Karia’s discharge from bankruptcy set aside. The sole issue was whether the shares of Bindaas were owned by Karia before his discharge thereby amounting to after-acquired property which should have been turned over to the Trustee for the benefit of creditors. [16] In support of the motion, Karia and his wife, Ella, each deposed that the shares of Bindaas had been owned exclusively by Ella since incorporation. Karia further deposed that while he was listed as a director at the time of incorporation, it was an accident which was immediately corrected. He submitted he was only ever a signing officer of Bindaas. He further argued that the Trustee was bringing the motion simply to “enrich itself”. In her affidavit, Ella claimed that she had been a director and the sole shareholder of Bindaas since its incorporation. [17] However, the record contains corporation profile reports for Bindaas as of March 27, 2014, May 12, 2016, October 23, 2017, and October 28, 2019. At no point prior to 2019 (well after the Trustee made its demand) was Ella registered as a director. The corporation profile reports before 2019 list Karia as the company’s only director and officer. On cross-examination, neither Karia nor Ella could recall anything of significance about Bindaas’ history or finances. Karia undertook to produce Bindaas’ tax returns, financial statements, and bank statements. Each of them undertook to produce the file of Bindaas’ accountant, after it had been vetted for privilege by his counsel. However, neither produced any financial statements, bank statement or the accountant’s file. [18] Both Karia and Ella refused to appear for cross-examinations claiming their internet connection was insufficient to enable them to do so, nor did they answer undertakings to produce business records. [19] On February 8, 2021, the motion was therefore adjourned by Koehnen J. who directed that the accountant deliver his file to Karia’s lawyer, who was to vet it for privilege and pass it to the Trustee. Ultimately, the appellant provided Bindaas’ Minute Book and portions of tax returns to the Trustee in March 2021. [20] The motion was heard in May of 2021. The motion judge carefully reviewed the evidence and expressly rejected the evidence of Karia and his wife Ella. He did so for the following reasons: It follows that I reject the evidence of both Karia and his wife in respect of the ownership of the shares of 239 during the period of the bankruptcy for a number of reasons. First, the Bankrupt’s [Karia’s] explanation for his evidence during his cross examination in the Amit bankruptcy that he owned the shares was to protect his wife but that answer makes no sense as there is no evidence to suggest there was anything to protect her from. Further, I do not accept the documentation produced by the Bankrupt [Karia] purporting to show Ella as the sole shareholder and director of 239. In my view, it has been altered or created after the fact by the Bankrupt [Karia] to show that Ella was the sole shareholder and director of 239. As noted, 239's tax returns were produced in two batches in February and March 2021. Schedule 50 of 2013 tax return, which was produced by the Bankrupt [Karia] on February 3, 2021, shows the Bankrupt [Karia] as owning 100% of the shares. In March 2021, the Bankrupt [Karia] also produced the 2013 tax return but this time Schedule 50 listed the shareholder as Ella. Further, the form used indicates at the bottom that it was the 2020 version. As a result, in the absence of producing the accountant’s file as directed by Justice Koehnen, I do not accept any of the financial information produced by the Bankrupt [Karia]. Further, the corporate profile reports filed with the province as at March 27, 2014, May 12, 2016 and on October 2, 2017 show the Bankrupt [Karia] as the sole director of 239 since incorporation. It was not until a notice of change was filed with the province on May 22, 2019 that Ella was first shown as a director of 239. Neither the Bankrupt [Karia] or Ella would or could say who filed the change notice. With respect to 239's Minute Book, the Bankrupt [Karia] has had possession of it since 2013. On cross-examination, he admitted that he prepared the resolutions and documents in the Minute Book. Based on the altered corporate tax returns, I have no hesitation in concluding that the information in the Minute Book purporting to show Ella as the sole shareholder and director of 239 since incorporation, has also been fabricated by the Bankrupt [Karia] well after the fact. I also do not accept Ella’s evidence that she was the sole shareholder and the director of 239 from incorporation. In addition to my findings in respect to the documentary evidence, her evidence did not hold up during cross-examination. Nor is there any evidence, beyond the Bankrupt’s [Karia’s] bald assertion, that the Trustee has brought its motion to enrich itself. In my view, the Trustee is doing nothing but its duty in pursuing the Bankrupt’s [Karia’s] after acquired property for the benefit of Bankrupt’s creditors. [21] He therefore concluded that the documentation was either “altered or created after the fact” by Karia to show that his wife was the sole shareholder and director of the corporation and that, “at all material times, [Karia] owned the shares of 239 while a bankrupt”. He therefore “reject[ed] the evidence of both Karia and his wife in respect of the ownership of the shares” during the bankruptcy. [22] In view of these findings, the motion judge was obliged by virtue of s. 67(1)(c) of the BIA to declare the shares to be after-acquired property of the estate of Karia. Section 67(1)(c) provides that the “property of a bankrupt divisible among his creditors… shall comprise (c) all property wherever situated of the bankrupt at the date of the bankruptcy or that may be acquired by or devolve on the bankrupt before their discharge.” The motion judge then exercised his discretion under s. 180(1) to annul Karia’s discharge, on the basis that Karia had breached his statutory duty to deliver the shares to his trustee, even after a demand had been made. ANALYSIS OF THE ISSUES AND CONCLUSION The Standard of Review [23] “Making a factual conclusion, of any kind, is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review” of palpable and overriding error: Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 24-25. An “appellate court will not interfere with the trial judge's findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result.”: L. (H.) v. Canada (Attorney General) , 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 55. Similarly, “[a]n appellate court is only justified in interfering with a lower court judge’s exercise of discretion if that judge misdirected himself or if his decision is so clearly wrong as to amount to an injustice”: Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 95. Analysis of the Issues Raised by the Appellant, Karia [24] Assuming without deciding that leave to appeal is not required and that this appeal is therefore properly before this court, for the reasons that follow, the appeal is dismissed. [25] First, contrary to the appellants’ submission, the Trustee was never discharged and could properly bring the motion. Karia’s estates were administered by the Trustee Paddon + Yorke Inc. (who was the Trustee when Karia declared bankruptcy) and later transferred to A. Farber & Partners Inc. As there were no inspectors appointed, the Trustee could institute or defend a legal proceeding relating to Karia’s property: ss. 30(1)(d), BIA . [26] Second, contrary to Karia’s submission, the motion judge did not believe that he was required to annul Karia’s discharge from bankruptcy after finding that the shares were after-acquired property. He noted that the decision was discretionary by writing: “the court may annul a discharge where a bankrupt fails to perform the duties imposed on him under the BIA after the discharge, ” pursuant to s. 180(1) of the BIA . He elected to exercise his discretion to do so, given his conclusion that Karia had fabricated documents to suggest he did not have an ownership interest in Bindaas when he did. There is no basis on which to interfere with the motion judge’s exercise of discretion, as he neither misdirected himself nor did he render a decision that was clearly wrong: Sattva , at para. 95. [27] Third, the motion judge did not allow the endorsements in prior orders to “colour his decision” as the appellant suggests. He properly outlined the history of this matter, and in so doing, set out the prior orders leading to the motion before him. Importantly, the issue of fraud was not addressed in any of the prior orders. [28] Fourth, the appellants have not directly challenged any of the above-described findings of fact. They have simply suggested that the motion judge should have weighed the evidence differently, or that the matter should have proceeded to trial. Moreover, Karia’s assertion that he did not breach his duty to the Trustee to deliver all property under his possession and control as the shares belonged to his wife, is belied by the fact that the motion judge found that the only documents he relied on to support his assertion, were “altered or created after the fact by Karia”. The motion judge therefore annulled Karia’s discharge on the basis that Karia failed to perform his duties pursuant to s. 180(1), not on the basis that he committed fraud. [29] Karia has not challenged the finding that he fabricated evidence, or suggested another reason for doing what he did. Nor were any other material facts adduced. There was no palpable and overriding error in the motion judge’s reasoning; the only point at issue was the interpretation of the evidence as a whole. There is therefore no basis to set aside the order: Jaegli Enterprises Ltd. v. Taylor , [1981] 2 S.C.R. 2, at p. 4, cited in Housen at para. 29. [30] Fifth, Karia’s discharge was annulled pursuant to s.180(1) of the BIA after Karia was found to have failed to perform the duties imposed on him by the Act. There is no legal requirement that prejudice caused by the annulment be “a major consideration” as the appellants suggest. [31] Once a breach of Karia’s duty has been found, the decision to annul is discretionary. In any event, there is no evidence of unfair prejudice caused by the Order. [32] For these reasons, the appeal is dismissed. Costs of this appeal are awarded to the respondent in the amount of $ 12,000 as agreed by the parties. “G. Pardu J.A.” “David M. Paciocco J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Hinds, 2022 ONCA 257 DATE: 20220329 DOCKET: C69759 Pepall, Tulloch and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and Paul Hinds Appellant Talman W. Rodocker, for the appellant Rebecca De Filippis, for the respondent Heard: in writing On appeal from the sentence imposed on July 8, 2021, by Justice Karey Katzsch of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant seeks leave to appeal his sentence and if leave is granted, he appeals his sentence of six months' custody. He asks this court to impose the joint submission crafted by counsel. [2] The appellant was arrested in January 2021 for possession of a stolen car in Kitchener. At the time of his arrest, he was already in custody for a number of other property-related offences committed in Peel (the "Brampton charges"). [3] The appellant pleaded guilty to the Brampton charges on June 22, 2021. Following a joint submission, the appellant was sentenced to 18 months' custody, less time served, for a remaining sentence of 65 days in custody. [4] On July 8, 2021, the appellant pleaded guilty to the Kitchener charge. At the appellant's guilty plea on the Kitchener charge, the Crown and the defence presented a joint submission of "six months pre-sentence custody", to be served concurrently with the sentence imposed on the Brampton charges. The reasoning behind the joint submission was that the charge of possession of stolen property could have been waived over to Brampton and be globally resolved. Accordingly, the parties agreed the sentence on the possession of stolen property count should not extend the appellant's time in custody beyond the time remaining on the other sentence, which was approximately 48 days. [5] At the time of the Kitchener guilty plea, the appellant's counsel told the sentencing judge: "we're asking [the sentence] to run concurrent to the sentence imposed two weeks ago in Brampton." Counsel explained, by way of background to the joint submission, that had the Kitchener charge been waived to Brampton for resolution, it would have been part of a global resolution. As the Crown explained, "instead of waiving the Kitchener charges over to Brampton, the idea was to ask for a concurrent sentence to achieve the same goal." [6] The Crown had agreed to the joint submission of "time served", as it took into account six months' pre-sentence custody. [7] The sentencing judge accepted that the joint position was reasonable. However, instead of imposing the joint submission of time served, the sentencing judge imposed six months’ "real" custody. At the time of sentencing, the trial judge stated: "the sentence will reflect six months in custody, to be noted as concurrent to any sentence that he is currently serving." The sentencing judge told the appellant that his sentence was "a further six months, but it will run concurrently with your 18 month sentence." This was an inadvertent error on the part of the sentencing judge. [8] On August 13, 2021, the parties returned in front of the sentencing judge to request that the sentence be amended. Counsel explained that the sentence on the Kitchener charge factored in the sentence on the Brampton charges, and that the joint submission was for six months' pre-sentence custody, not six months' real custody. The Crown confirmed that "it was the intention of the Crown to run this matter concurrently to the Brampton charges […] he only had about 65 days served when he was sentenced with Your Honour so it wouldn't make sense that he would get a six-month concurrent sentence…." [9] The sentencing judge found that she was functus officio and therefore declined to amend the sentence. As a result, the appellant now appeals his sentence. [10] We agree that the appeal should be allowed. The Crown acknowledges that the parties agreed to present a joint submission on sentence that would replicate a global resolution with the Brampton charges. The parties chose to achieve this goal by advancing a joint submission of six months' pre-sentence custody (presumably plus "one day") so that the appellant would not remain in custody beyond the completion of the sentence on the Brampton charges. [11] In the normal course, a trial judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute or it is otherwise contrary to the public interest. [12] The sentencing judge appears to have been under the mistaken impression that the joint submission was for six months' real custody. The confusion appears to have arisen from counsel's request that the sentence run concurrent to the Brampton sentence. As a result, the sentencing judge imposed a sentence that deviates from the intended joint submission. Both parties agree that this was an error in principle that warrants appellate intervention. [13] Accordingly, leave to appeal sentence is granted. The sentence appeal is allowed. The sentence imposed is hereby vacated, and a sentence of time served, plus one day, concurrent to the previous sentence imposed on the Brampton charge is now imposed. However, in light of the circumstances, we are exercising our discretion to stay the execution of the one-day concurrent sentence. As such, there is no need for the appellant to surrender into custody. “S.E. Pepall J.A.” “M. Tulloch J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Akelius Canada Ltd. v. 2436196 Ontario Inc., 2022 ONCA 259 DATE: 20220330 DOCKET: C68832 Lauwers, Harvison Young and Sossin JJ.A. BETWEEN Akelius Canada Ltd. Appellant and 2436196 Ontario Inc. and B’Nai Fishel Corporation Respondents Daniel S. Murdoch and Isabelle Eckler, for the appellant Mark A. Ross and Eric Brousseau, for the respondents Heard: September 27, 2021 by video conference On appeal from the order of Justice Edward M. Morgan of the Superior Court of Justice, dated October 13, 2020, with reasons reported at 2020 ONSC 6182. Harvison Young J.A .: Overview [1] What remedies are appropriate for an innocent purchaser of real property when a breaching vendor fails to close on the date pursuant to the agreement of purchase and sale? In particular, is the purchaser entitled to claim the profits that the vendor made two and a half years later when the vendor sold the property for $56 million more than its value on the closing date? As the motion judge put it, “[c]an a Europe-based, worldwide real estate investor whose contract was breached by a seller in Toronto be awarded damages based on lost opportunity to cash in on the local real estate boom?” [2] Akelius Canada Ltd. (“Akelius”) appeals from the motion judge’s finding that it was not entitled to such damages but was restricted to its damages as at the closing date. The respondents cross-appeal the motion judge’s award to Akelius of its costs thrown away, and both parties appeal from the motion judge’s decision not to award costs to either party. Factual Background [3] The factual context giving rise to this appeal is straightforward. [4] On August 25, 2015, the parties entered into an agreement of purchase and sale under which the appellant agreed to buy from the respondents seven residential apartment buildings for an overall purchase price of $228,958,320 (“the APS”). The buildings were all in the Parkdale neighbourhood in Toronto. It is common ground that this was the market value of the properties as of the date of breach. [5] The deal did not close as contemplated on January 7, 2016 because of the vendors’ breach in failing to remove certain encumbrances from title which, as of December 15, 2015, totalled $48,855,474.32. The appellant had paid the deposits required pursuant to the APS in the total amount of $10 million, with the outstanding balance payable on closing. [6] When the deal did not close, the deposits were returned to the appellant which returned the funds to its parent company, a Sweden-headquartered investment corporation with international holdings in various countries including Scandinavia, the United Kingdom, central Europe, the United States, and Canada. [7] Two and a half years later, in September 2018, the respondents sold the properties to a new purchaser. According to Land Transfer Tax affidavits filed by the new purchaser at that time, the properties were sold for 25% more than the purchase price, some $56,544,318. This is the amount the appellant claims as its loss of the value of the transaction. Decision Below [8] The matter proceeded on a motion for summary judgment. Neither party disputes the appropriateness of summary judgment in this case. [9] The motion judge found that the respondent vendors breached the APS, and he awarded the appellant $775,855.46 , finding that these were costs reasonably incurred and thrown away by the appellant as a result of the respondents’ breach of the APS. [10] The lion’s share of the damages claimed by the appellant arose out of the fact that more than two years after the breach of the APS, the respondent vendors resold the properties to another purchaser for approximately $56,544,318 more than its market value on the date of breach. In assessing damages, the motion judge stated, at para. 22: First, in assessing damages, the basic principle is that damages should put the injured party as nearly as possible in the position it would have been in had the contract not been breached. In the ordinary case of an aborted purchase and sale of real estate, this principle is put into effect by assessing damages at the date that had been set for closing: 100 Main Street Ltd. v. W.B. Sullivan Construction Ltd. (1978), 20 O.R. (2d) 401 (Ont CA). There is, however, flexibility in this approach. As Laskin JA observed in 6472047 Ontario Ltd. v. Fleischer (2001), 56 O.R. (3d) 417, at para. 42 (Ont CA), “The date for the assessment of damages is determined by what is fair on the facts of each case.” [11] The motion judge observed that the appellant had been clear that it was not in the business of flipping apartment buildings and had no intention of re-selling the properties for a quick capital gain. Rather, it is in the apartment investment and rental business and looks to purchase income-producing properties for long-term holds, typically seeking a seven percent return. Akelius did not seek damages for lost income, but only for the lost capital gains. The motion judge rejected this manner of measuring damages, finding it to be “directly contrary to the express guidance of the Court of Appeal in Fleischer ” and citing Laskin J.A.’s direction in that case, at para. 41, that “[w]here…the vendor retains the property in order to speculate on the market, damages will be assessed at the date of closing.” The motion judge continued to say that if the respondents had breached in order to deprive a speculator (which the appellant was not), the measure of the appellant’s damages would have to be measured as of the closing date or date of breach. [12] In conclusion on this issue, the motion judge, referring to authorities on the issue, stated, at para. 30, that the fact that the respondents ultimately made a speculative profit does not give the appellant such profit as a measure of damages: The “measure of damages for failure to complete a purchase of land is the difference between the contract price and the market value of the land – which is intended to represent the lost benefit of the bargain to the vendor”: Marshall , at para 12. The same principled approach applies to the purchaser where it is the party that lost what it bargained for. The damages must make up what the purchaser lost in value on the closing date, not what a property speculator standing in the purchaser’s shoes would have lost. [13] According to the motion judge, an innocent purchaser cannot access a measure of damages that has been specifically denied by this court, in particular, the profit that it would have made had it purchased the properties as a speculator intent on flipping them to a new purchaser two and a half years later. [14] With respect to the appellant’s duty to mitigate its loss, the motion judge found that, given the circumstances of the appellant’s business and the fact that the appellant had returned the deposit to its parent corporation, it had either mitigated its damages in full or had failed to mitigate. He noted that the appellant refused to disclose information relating to the buildings acquired subsequent to January 2016, which would have assisted with determining whether the appellant had mitigated its loss. [15] The motion judge declined to order costs in favour of either party in light of the mixed success on the motion. The Issues on Appeal [16] The appellant argues that the motion judge committed reversible error on three issues. Its submissions are discussed further below, but in brief, it first argues that the motion judge erred in finding that he was bound by the case of Fleischer to assess damages as of the date of breach. Second, it submits that the motion judge erred in finding that the respondent vendors succeeded in showing that the appellant purchaser failed to mitigate or had, in fact, mitigated its damages (other than the costs thrown away). It lastly argues that the motion judge erred in failing to award the appellant its costs. [17] The respondents cross-appeal on two points. First, they argue that the motion judge erred in awarding Akelius “every dollar of its sunk costs”. Second, they argue that they ought to have been awarded their costs given their success defending the majority of the appellant’s claim for damages. [18] For the following reasons, I would dismiss both the appeal and the cross-appeal. I will address the issues in turn. (1) The Measure of Damages (a) The Parties’ Positions [19] The appellant submits that the motion judge misapplied 6472047 Ontario Ltd. v. Fleischer ( 2001), 56 O.R. (3d) 417 (Ont. C.A.). According to Fleischer , it argues, the date for the assessment of damages is to be determined on what is fair on the facts of each case. Fleischer arose from a breach by a purchaser in a declining market. There, unlike the present facts, the vendor was innocent. The appellant, in its factum, states that Fleischer is clear that “the decision to assess damages at the date of closing is driven by the innocent vendor’s decision not to mitigate its damages by selling the property as quickly as possible following the breach”. The appellant argues that the application of Fleischer to the circumstances of an innocent purchaser, having appropriate regard to justice and fairness, supports assessing damages on the date that a defaulting vendor resells the subject property at a premium to what it would have received from the innocent purchaser. [20] In addition, the appellant argues that the motion judge’s assessment of damages failed to put it in the position that it would have been in had the contract been performed. Rather, the motion judge’s award wrongly put the appellant in the position that it would have been in had the contract never been performed. [21] The respondents submit that the motion judge was correct in his application of Fleischer and that the date of closing is the appropriate date upon which to assess the damages. They further submit that in this case, the damages sought by the appellant for lost capital appreciation were not the type of damages that were in the reasonable contemplation of the parties at the time the APS was signed. The appellant intended to hold the buildings as a long-term investment, and while it may have eventually sold the buildings for a profit, its own evidence shows that it likely would not have sold the buildings in 2018. Thus, the motion judge was correct in finding that the appellant is not a property speculator and could not recover damages on that basis. (b) Law and Analysis [22] It has long been the case in the real estate context that the starting point for the assessment of damages for breach of contract is the date of breach. This principle was set out in 100 Main Street Ltd. v. W.B. Sullivan Construction Ltd. (1978), 20 O.R. (2d) 401 (Ont. CA) and reaffirmed in Fleischer . In Fleischer , at para. 41, Laskin J.A. summarized the six propositions articulated by Morden J.A. in Main Street as follows: (1) The basic principle for assessing damages for breach of contract applies: the award of damages should put the injured party as nearly as possible in the position it would have been in had the contract been performed. (2) Ordinarily courts give effect to this principle by assessing damages at the date the contract was to be performed, the date of closing. (3) The court, however, may choose a date different from the date of closing depending on the context. Three important contextual considerations are the plaintiff's duty to take reasonable steps to avoid its loss, the nature of the property and the nature of the market. (4) Assessing damages at the date of closing may not fairly compensate an innocent vendor who makes reasonable efforts to resell in a falling market. In some cases, the nature of the property -- for example an apartment building-- hampers the vendor's ability to resell quickly. Thus, if the vendor takes reasonable steps to sell from the date of breach and resells the property in some reasonable time after the breach, the court may award the vendor damages equal to the difference between the contract price and the resale price, instead of the difference between the contract price and the fair market value on the date of closing. (5) Therefore, as a general rule, in a falling market the court should award the vendor damages equal to the difference between the contract price and the “highest price obtainable within a reasonable time after the contractual date for completion following the making of reasonable efforts to sell the property commencing on that date” (6) Where, however, the vendor retains the property in order to speculate on the market, damages will be assessed at the date of closing. [23] As Laskin J.A. explains in Fleischer , at para. 42, “underlying these propositions is the simple notion of fairness.” In determining the appropriate date for the assessment of damages, the court must have regard to what is fair in the circumstances. [24] In Fleischer , the innocent vendors claimed damages arising from the purchaser who refused to close when they realized that the market was falling. The trial judge found that the closing date in November 1990, the date of breach, was the appropriate date for the assessment of the vendors’ damages, at which point the property in issue was worth $1,130,000. On appeal to this court, the vendors argued that their damages should be assessed as at the date of trial some four years later, by which point the property in question had decreased in value to $410,000. This court disagreed. In finding that the date of breach was the correct date, Laskin J.A. stated, at para. 44, that the innocent vendors cannot pick a date at random, nearly four years after the closing date, when the market was likely at its lowest, and reasonably expect the court to choose that date to measure their loss. [25] There are cases that support the view that, in some instances, it might be appropriate to move the date somewhat later; however, this has been done in cases where the plaintiff established that it was not in a position to re-enter the market as at the date of breach. In Asamera Oil Corporation Ltd. v. Sea Oil & General Corporation et al. , [1979] 1 S.C.R. 633, the defendant was in breach of an agreement between the parties which required the return of Asamera shares that had been loaned to the defendant. The value of the shares fluctuated considerably from the date of the breach and the trial. The innocent plaintiff argued that the date of the assessment of damages should have been the dates those shares were at their highest prices. This view was rejected by the Supreme Court. Rather, the starting point continued to be the date of breach, and the damages were found to have crystallized at the earliest date upon which the plaintiffs could reasonably have re-entered the market. [26] In Domowicz v. Orsa Investments Ltd. (1994) , 20 O.R. (3d) 722 (S.C.), varied on other grounds, (1998) 40 O.R. (3d) 256 (C.A.), a case cited by the appellant, the innocent vendor plaintiff sought specific performance of an agreement to purchase an apartment building. The plaintiff filed detailed evidence as to its damages in light of its planned use for the property, including its loss of revenue. The trial judge noted that the plaintiff must prove its loss. He recognized that it may have taken some time to find a replacement property but rejected the argument that it could reasonably have taken the time the plaintiff was claiming, which was the date of trial some three years later. At the end of the day, the appropriate date for the assessment of damages was found to have been only three months later than the date of breach. [27] In all these cases, the date of breach remains a starting point for the assessment of loss, modified only to the extent that the innocent party satisfies the court that a later date is appropriate on the grounds that it is the first date upon which the party could reasonably have been expected to re-enter the market and mitigate its damages. [28] The appellant argues that the motion judge misapplied Fleischer because, in that case, the vendor was innocent. It further argues that when a vendor defaults on a real estate transaction in a rising market, the date of assessment of damages should be varied from the date of breach because an innocent purchaser such as the appellant may have difficulty attempting to purchase a comparable portfolio of properties in a rising real estate market. It relies on the case of Domowicz as authority for the proposition that assessing damages as at the date of breach would not satisfy the general principle that the non-breaching party should be put in a position in which he or she would have been in had the contract been performed. [29] I do not agree with the appellant’s interpretation of these cases. First, in Fleischer , the innocent vendors had retained the property and re-leased it, speculating that the market would eventually go back up. Laskin J.A. rejected the argument that because the vendors were innocent, they were entitled to deviate from the usual measure of damages as of the date of breach. He found that the appropriate date was the date of breach. I see no principled reason for the suggestion that the date should be different when the purchaser is the innocent party. Put another way, the fact that a party is innocent does not displace the date of breach as the presumptive date for the measure of damages in a real estate case. [30] Second, Domowicz does not assist the appellant. Unlike the plaintiff in Domowicz , the appellant did not provide evidence of its loss of revenue, claiming that it was not necessary because it was choosing not to claim its loss of revenue. However, in order to prove what it had actually lost, the appellant would have had to show not only what it lost in capital appreciation but also, as in Domowicz , what it would have made in capital appreciation had it sold in April 2018 when the respondents did. [31] Even if the appellant could have shown that it could not have bought other buildings that would have appreciated as much over the next two and a half years, the appellant has not established why it could not have re-entered the market over that period or why, for the purpose of mere capital speculation, it was necessary to purchase six buildings close to one another in Parkdale. [32] Moreover, the appellant argues that it is entitled to the loss of capital appreciation, but it has not explained why the loss of capital profit has to be assessed where all the “synergies” of the lost properties related to the long-term investment purpose. The evidence suggested that the desire to acquire the properties had to do with the synergies in having close buildings, with a view to maximizing the rental returns. No doubt, the ultimate return on the properties is part of the long-term planning, but the capital appreciation in and of itself some two and a half years later does not, in these circumstances, prove the appellant’s loss or the earliest date it could have re-entered the market. The capital appreciation of the properties would be relevant to the extent that it was in the reasonable contemplation of the parties at the time of the agreement: see for example Kipfinch Developments Ltd. v. Westwood Mall (Mississauga) Limited , 2010 ONCA 45, at paras. 14-15. However, all the evidence indicates that, based on its business model, the appellant was not a property speculator but a long-term investor, and this would have informed the parties’ reasonable contemplation at the time of the agreement. [33] In effect, the appellant here is seeking to do what was rejected by the court in Asamera : begin with the amount that would represent the high point in the assessment of damages between the date of breach and the date of trial (or, as here, when the respondents sold the property). Such an approach would undermine the advantages of certainty and predictability arising from a long line of established and stable case law that presumes the date of breach for the assessment of damages for breach of contract. [34] Moreover, and as was also the case in Asamera , the appellant’s position presumes it would have sold at the high point. In Asamera , that made sense because in a fluctuating market for shares bought at different times, it would be assumed that the innocent party would have the perspicacity to sell at the high point for the shares. Here, it makes no sense because all the appellant’s own business plans reflected a pattern of keeping buildings as rentals for much longer periods of time. [35] For all the above reasons, it would not be fair in the circumstances to shift the date of the assessment of damages beyond the date of the breach. In short, the trial judge correctly found that there was no genuine issue requiring a trial on the date upon which the damages should be assessed. On that date, the market value and the contract price were the same; there was no loss. The appellant has not proven its loss, and the date it has chosen as the “crystallization” of its loss is not sufficiently connected to the date of breach or to the objectively understood purpose of the contract. [36] As the appellant failed to prove its losses, I would also not give effect to its mitigation argument because, having failed to establish that it suffered a loss as of the date of breach, there were no losses to be mitigated. (2) The Cross-Appeal [37] The respondents cross-appeal on two issues. First, they argue that the motion judge erred in awarding Akelius its costs thrown away (reliance damages) trying to pursue the aborted transaction in the amount of $775,855.46. Second, the respondents argue that they should have been awarded their costs, given their proportional success in defending against the appellant’s claim. The appellant agrees that the trial judge erred in not awarding costs to either party but argues that it should have been awarded costs, given its partial success at trial. [38] With respect to the claim of the costs thrown away, the trial judge clearly found that the respondents breached the APS. The appellant was entitled to these damages and I am not persuaded that the motion judge committed any reversible error in this respect, either in principle or in terms of the quantum. [39] The appeal of the order that there should be no costs must also fail. Costs awards are within the discretion of the court: Courts of Justice Act , R.S.O. 1990, c. C.43, s. 131(1). In Przyk v. Hamilton Retirement Group Ltd. (The Court at Rushdale) , 2021 ONCA 267, at paras. 9-10, this court explained the threshold to be met before an appellate court may set aside a costs award: [9]   An appellate court takes a deferential approach when reviewing a discretionary award of costs by a trial court (including a discretionary decision to deny costs). A costs award will only be set aside on appeal “if the trial judge has made an error in principle or if the costs award is plainly wrong”: Hamilton v. Open Window Bakery Ltd ., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. [10]  This deferential approach requires that attention be paid not only to the nature of any error affecting a costs decision, but also to its extent. It is insufficient  to identify an error in principle in the course of the trial judge’s reasons without considering whether there is an independent basis to uphold the order. An appellate court should be reluctant to interfere with “the exercise of discretion by a trial judge who had a much better opportunity to acquaint himself with, and have a feeling for, all of the factors that formed the basis for the award of costs”: Bell Canada v. Olympia & York Developments Ltd ., 111 D.L.R. (4th) 589 at para. 41. Even where a trial judge has relied on a factor that is unsupported by proper legal principles or considerations to deny costs to a successful party, an appellate court should not intervene unless it can “find nothing in the factual circumstances or argument to support the order”: Bell Canada at para. 42. [40] Success was divided at trial. It was within the trial judge’s discretion to decline to award costs. I am not convinced that appellate intervention is warranted. (3) Conclusion [41] For these reasons I would dismiss both the appeal and the cross-appeal. (4) Costs [42] Costs of the appeal to the respondents in the agreed amount of $25,000. Released: March 30, 2022 “P.L.” “A. Harvison Young J.A.” “I agree P. Lauwers J.A.” “I agree L. Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Arnatsiaq (Re), 2022 ONCA 260 DATE: 20220328 DOCKET: C69777 Simmons, Miller and Nordheimer JJ.A. IN THE MATTER OF:  Siobhan Arnatsiaq AN APPEAL UNDER PART XX.1 OF THE CODE Anita Szigeti, for the appellant Jacob Millns, for the respondent, Attorney General of Ontario Julia Lefebvre, for the respondent, Person in Charge of North Bay Regional Health Centre Heard: March 25, 2022 by video conference On appeal from the disposition of the Ontario Review Board, dated July 8, 2021, with reasons dated August 9, 2021. REASONS FOR DECISION [1] Ms. Arnatsiaq was found not criminally responsible on May 7, 2021. She appeals from the initial disposition of the Ontario Review Board that made a detention order against her. The appellant submits that the Board erred in making the detention order. In particular, she submits that the Board erred in finding that the appellant poses a significant risk to the safety of the public. She asks that the detention order be set aside and that an absolute discharge be granted. Alternatively, the appellant asks for a conditional discharge with the Royal Ottawa Hospital as supervising facility. In the further alternative, the appellant seeks a new hearing. At the conclusion of the hearing, we dismissed the appeal for reasons to follow. We now provide our reasons. [2] The appellant has been under the auspices of the Board since May 7, 2021, arising out of charges of assault and failure to comply with a release order. The assault involved an attack by the appellant, while she was in hospital, on a 71‑year‑old female patient. The patient suffered serious injuries as a result of the assault. [3] The Board found that the appellant continues to pose a significant risk to the safety of the public. The Board accepted the evidence of the attending psychiatrist, Dr. Alabi, that, if released, the appellant would rapidly decompensate. Dr. Alabi said that the appellant had limited and fluctuating insight with respect to her mental illness. He also noted that there had been instances of violence over the years although none of these appear to have resulted in any criminal convictions. [4] The appellant submits that the Board applied the wrong test in concluding that the appellant posed a serious risk to the safety of the public and that, in the absence of a formal risk assessment, the Board should minimally have been left uncertain as to whether the necessary threshold was met. The appellant notes that she has been suffering from mental illness since she was a teenager yet, despite that fact, she was able to practice law for many years. She also notes that she does not have any prior criminal convictions. [5] In our view, it was open to the Board, on the evidence, to conclude that the appellant posed a significant risk to public safety. In that regard, the appellant has failed to demonstrate that the Board’s conclusion is unreasonable. With respect to the requirement that there be evidence that a person will commit a criminal offence giving rise to a real risk of serious physical or psychological harm to a member of the public, this must be understood in the context of what serious means. Serious in this context is described as “going beyond the merely trivial or annoying”: Winko v. British Columbia (Forensic Psychiatric Institute) , [1999] 2 S.C.R. 625, at para. 62. Further, there appears to be some evidence that the appellant may be suffering more from her mental illness, and thus acting out more, in recent times than she has in the past. [6] As for the appellant’s risk assessment argument, the Hospital Report filed at the hearing included a detailed Clinical Assessment of Risk leading the treatment team to conclude that the appellant poses a significant threat to the safety of the public. Although there had been insufficient time between the NCR finding and the hearing to conduct an actuarial risk assessment, it was open to the Board to accept and rely on the clinical risk assessment as it did. [7] While we recognize some troubling aspects regarding how the appellant’s situation has been handled, we note that the Board took direct action with respect to them. For one, the Board ordered that the appellant be immediately transferred to an all-female unit of the hospital. Inexplicably, the appellant was initially placed on a predominantly male unit, notwithstanding her past history of sexual and physical abuse at the hands of men. For another, the Board ordered a six-month review of the appellant’s situation to ensure that the appellant’s case was progressing in terms of evaluation and treatment. For yet another, the Board appears to be conscious of the fact that it may be better for the appellant if she were housed in a facility in the Ottawa area. We expect that the Board will continue to monitor the situation to determine whether that transfer can be accomplished in a relatively short period of time. [8] We do not accept that the Board erred in failing to impose a conditional discharge. Given the appellant’s limited insight into her mental illness, the inability of the hospital to effectively monitor her in a community setting, and the risk that the appellant poses, we agree that a conditional discharge was not a reasonable alternative at this time. Again, that was a reasonable conclusion for the Board to reach on the evidence. Similarly, as Dr. Alabi’s evidence was that a community living privilege would not be exercised in the coming year, it was reasonable for the Board not to include such a condition in its disposition. [9] We also do not accept the appellant’s contention that the Board failed to consider Gladue [1] principles in accordance with the decision of this court in R. v. Sim (2005), 78 O.R. (3d) 183 (C.A.). As noted by Sharpe J.A. in that case at p. 189: “An individual will not be more or less dangerous, nor will an individual be more or less mentally ill, because of his or her aboriginal status.” In addition, a review of the Board’s reasons demonstrates that the Board is fully conscious of the appellant’s background and the need to consider it in its disposition decisions. Further, we expect that the Board will continue to monitor the Hospital’s progress in investigating available and appropriate cultural supports for the appellant in the area and give further direction to the Hospital in that regard if necessary. [10] It is for these reasons that the appeal was dismissed. “Janet Simmons J.A.” “B.W. Miller J.A.” “I.V.B. Nordheimer J.A.” [1] R. v. Gladue , [1999] 1 S.C.R. 688.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ruelas, 2022 ONCA 262 DATE: 20220331 DOCKET: C69691 Simmons, Miller and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and David Ruelas Appellant Marianne Salih and Jeffery Couse, for the appellant Molly Flanagan, for the respondent Heard: in writing On appeal from the sentence imposed on December 18, 2020 by Justice Gisele M. Miller of the Superior Court of Justice, with reasons reported at 2020 ONSC 7973. REASONS FOR DECISION [1] Following a judge alone trial, the appellant was convicted of sexual assault, but acquitted of the offence of choking to assist in committing a sexual assault. [2] The appellant and the victim were long time acquaintances. After an evening of partying and consuming alcohol at a friend’s place, the victim awoke on a couch to find the appellant having sexual intercourse with her. When she protested, the appellant told her to shut up, ripped her tank top and at one point had his hand on her throat with sufficient force to cause bruising. The trial judge was not however satisfied beyond a reasonable doubt that the appellant was attempting to render the victim insensible, unconscious or incapable of resistance. [3] After reviewing the material placed before her for sentencing, the trial judge sentenced the appellant to three years, six months’ imprisonment less six days credit for pre-sentence custody. [4] The appellant raises three issues on appeal. [5] First, the appellant argues that the trial judge erred in failing to give effect to the mitigating factors present. The trial judge noted the several letters filed in support of the appellant, his efforts at rehabilitation through an in-patient alcohol rehabilitation program, the further counselling he had undertaken and the low‑to‑moderate risk assessment his counsellor had provided. However, the trial judge expressed uneasiness at the fact that none [1] of the letters of support post‑dated his arrest and detention on new charges prior to the date of sentencing. [6] The appellant submits that the trial judge erred in failing to raise her concerns at the sentencing hearing and give the appellant an opportunity to respond and submits that this error led her to ignore or de-emphasize the mitigating factors present. [7] Second, the appellant argues that the trial judge erred in failing to apply the principle of restraint. While the appellant had a prior record, it was unrelated. The appellant was 31 years-old at the time of sentencing, had never previously been sentenced to the penitentiary and had good rehabilitation prospects. In the circumstances, he submits that a sentence of three years, six months' incarceration did not properly recognize his potential for rehabilitation or apply the principle of restraint. [8] Finally, the appellant argues that the trial judge erred in failing to give the appellant credit for pre-sentence custody arising from the unrelated charges he was facing at the time of sentencing. The trial judge calculated that, by the date of sentencing, the appellant would have spent 70 days in custody on the charges he was facing. Fresh evidence demonstrates that the appellant received credit for only 45 days of pre-sentence custody when sentenced for those charges. The appellant submits that his detention on the additional charges was sufficiently related to his conviction for this offence that the additional time served should have been credited as pre-sentence custody for this offence. [9] We would not give effect to the first and second grounds of appeal. [10] Although we agree that it would have been preferable had the trial judge raised her concerns about the letters of support at the sentencing hearing and given trial counsel an opportunity to respond, we are not satisfied she was obliged to do so. Such letters are not the equivalent of a pre-sentence report ordered by the court. A trial judge is entitled to assume that parties have filed all available material in support of their position. [11] Further, based on our review of the trial judge's reasons, we are satisfied that she fully considered the appellant's circumstances and the relevant sentencing principles. As we have said, she reviewed all the material placed in front of her for the purposes of sentencing. We see no error in principle that affected the sentence imposed. [12] Finally, even if we had identified any error in the trial judge’s reasons, we are satisfied that a sentence of three years, six months’ incarceration was entirely fit having regard to the circumstances of the offender, and the offence, and all relevant sentencing principles. As observed by the trial judge, this was a sexual attack involving full penetration on an incapacitated victim who trusted the appellant as a friend. During the attack, the appellant placed his hand on the victim’s throat with sufficient force to cause bruising. The impact on the victim has been severe. [13] As for the third ground of appeal, we conclude that the appellant should be given credit for the pre-sentence custody served that was not credited to him on the charges for which he was detained at the time of sentencing by the trial judge. The trial judge calculated that the appellant would have served a total of 70 days in custody prior to the date of sentencing. She gave credit on a 1.5:1 basis for four days of pre-sentence custody, resulting in six days credit. We would allow credit for an additional 21 days of pre-sentence custody (70 days minus 4 days credited by the trial judge minus 45 days credited on other charges) on a 1.5:1 basis, resulting in additional credit of 32 days. [14] Based on the foregoing reasons, leave to appeal sentence is granted, the appeal is allowed in part by increasing the credit for pre-sentence custody from six days to 38 days, resulting in a sentence of three years and six months’ imprisonment less credit for 38 days of pre-sentence custody. The sentence appeal is otherwise dismissed and all other terms of the sentence imposed by the trial judge shall remain in full force and effect. “Janet Simmons J.A.” “B.W. Miller J.A.” “I.V.B. Nordheimer J.A.” [1] The trial judge did note that one of the letters was undated.

COURT OF APPEAL FOR ONTARIO CITATION: York (Regional Municipality) v. 1085638 Ontario Limited, 2022 ONCA 263 DATE: 20220331 DOCKET: C66417 Simmons, Miller and Nordheimer JJ.A. BETWEEN Regional Municipality of York Respondent and 1085638 Ontario Limited and Meadow Valley Garden Centre Ltd. Appellants Adam Marchioni, for the appellants Chris G. Bendick, for the respondent Heard: March 21, 2022 by video conference On appeal from the judgment of Justice David S. Rose of the Ontario Court of Justice, dated September 28, 2018, dismissing an appeal from the convictions entered on June 6, 2017 by Justice of the Peace Herbert B. Radtke of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant, 1085638 Ontario Limited, was convicted of one offence under the Building Code Act, 1992 , S.O. 1992, c. 23 and both appellants were convicted of two offences under the Planning Act , R.S.O. 1990, c. P.13. All of the offences relate to the operation of a garden centre in the City of Vaughan. The appellants now appeal, with leave, from those convictions. A. Background [2] There is a lengthy history to this matter which we need not repeat for the purposes of our analysis and conclusion. The relevant facts may be stated briefly. [3] The appellants operated a garden centre on Keele Street in the City of Vaughan. There is no dispute about this fact. There is, however, a dispute about the length of time that the garden centre operated, about which we will have more to say later. [4] The first offence relates to the construction of a building that houses the garden centre. It was constructed without obtaining a building permit. On March 10, 2005, a building inspector for the City of Vaughan issued an order to comply that required that an engineer’s report be filed with the City. That was never done. This led to the charge under the Building Code Act . [5] Many years later, in April 2012, a by-law officer for the City of Vaughan attended at the garden centre. She observed vehicles and equipment along with gardening materials and supplies. Trees and shrubs were for sale. The location of the garden centre is on lands that are part of the Oak Ridges Moraine. Zoning for the lands did not permit the operation of a retail nursery nor did it permit open storage. This led to the two offences under the Planning Act . [6] We should add that, back in 1992, 1085638 Ontario Limited had submitted an application to amend the official plan and zoning to permit the operation of a garden centre. That application was granted subject to certain conditions. Those conditions were never fulfilled. Consequently, the amendment never came into effect. B. The decisions below [7] The Justice of the Peace convicted the appellants at first instance. He found that the appellants had shown a lack of respect for the process and had “flouted” the law. With respect to the appellants’ argument that the garden centre constituted a legal non-conforming use, the Justice of the Peace found that there was insufficient evidence that the garden centre was “in fact operating on the day of the passing of the bylaw.” Thus, there was no evidentiary foundation for the argument of legal non-conforming use. [8] The appeal judge reviewed the reasons and conclusions of the Justice of the Peace and, in detailed reasons, he upheld them. [9] It is not necessary for us to consider all of the issues that the Justice of the Peace dealt with because this court, in granting leave to appeal, restricted the issues on the appeal to two: (i) the issue of legal non-conforming use under s. 34(9) of the Planning Act and (ii) the issue of delay under s. 11(b) of the Canadian Charter of Rights and Freedoms . [10] On the first issue, the Justice of the Peace found, as we have said, that there was insufficient evidence led by the appellants to establish that the garden centre was in operation at the time that the municipal by-law came into force. The by-law prohibited the use of the lands for the retail operation of a garden centre. The appeal judge upheld that conclusion, finding that it was a question of fact which was entitled to deference. However, the appeal judge went on to find a second reason for sustaining that conclusion. He found that the building for the garden centre had been erected in 1992, long after the by-law was passed. He found that that fact also meant that the appellants could not rely on a legal non-conforming use. [11] The second issue raised the question of delay in the prosecution, and an asserted breach of s. 11(b) of the Charter . The issue was raised back in 2011 and with reasons delivered in January 2012, prior to the second and third charges being laid. The application for a stay was dismissed. As if this matter was not confused enough, we should point out that the s. 11(b) issue was heard and determined by another Justice of the Peace, not the one who convicted the appellants. [12] There is no issue raised regarding any delay in the prosecution after that ruling. It is also agreed that the only challenge to the s. 11(b) ruling is whether the Justice of the Peace, who heard and determined that challenge, was correct in holding that 1085638 Ontario Limited had failed to demonstrate that it had suffered any prejudice arising from the delay. [13] The appeal judge found that the correct test had been applied in considering the s. 11(b) issue. He also found that the Justice of the Peace had not committed any error in concluding, on the evidence, that no prejudice had been established. C. Analysis [14] In our view, the appeal judge was correct in both of his conclusions. (1) Legal non-conforming use [15] The argument on this issue, and which led to leave to appeal being granted, was whether s. 34(9) of the Planning Act requires that the non-conforming use be in active operation on the very day that the zoning by-law comes into force. That question is of importance in this case because, as found by the Justice of the Peace, the appellants could not state with any certainty that that was the case. Indeed, there was some evidence that could suggest the garden centre had not become operational until much later in time. [16] The appellants submit that to hold that the business must be in operation on the very day when the zoning by-law comes into force is inconsistent with the wording of the Planning Act and is also inconsistent with this court’s decision in Feather v. Bradford (Town), 2010 ONCA 440, 320 D.L.R. (4th) 228. [17] We do not agree. In our view, the wording of s. 34(9) is clear. It reads: No by-law passed under this section applies, (a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law , so long as it continues to be used for that purpose; or (b) to prevent the erection or use for a purpose prohibited by the by-law of any building or structure for which a permit has been issued under subsection 8 (1) of the Building Code Act, 1992 , prior to the day of the passing of the by-law, so long as the building or structure when erected is used and continues to be used for the purpose for which it was erected and provided the permit has not been revoked under subsection 8 (10) of that Act. [Emphasis added.] [18] The emphasized words from s. 34(9)(a) do not allow for any other interpretation. Had the Legislature intended that the use could exist at some point prior to the by-law being passed, it could have used the language that appears in s. 34(9)(b), that is “prior to the day of the passing of the by-law”, but it did not. The express language of the section must be given effect. [19] We also do not see any inconsistency in that conclusion and the decision in Feather for two reasons. The first is that the decision in Feather did not deal with the issue that is before us. Rather, the decision addresses an attempt by the property owner to reconstruct a cottage. It did not involve an issue over the use of an existing cottage. The second is that there was a factual finding in Feather that the owner of the cottage had used it continually up to and including the date on which the applicable zoning by-law was passed. That is an important factual distinction between this case and Feather . [20] The appellants advance a further basis for submitting that the finding of the Justice of the Peace was in error. They contend that the finding that there was insufficient evidence that the business was operating on the day the by-law was passed was premised on the fact that the witnesses who testified to the issue could not recall whether the garden centre was open on the specific day the by-law was passed. They say there was unchallenged evidence that the appellants began operations prior to the date on which the by-law was passed and continued thereafter to the date of the hearing. The finding of insufficient evidence that the business “was operating” on the date the by-law was passed is therefore an error in law. [21] We cannot accept this argument. The appellants’ evidence that the garden centre began operations prior to the date on which the by-law was passed was not unchallenged. As we have said, there was also evidence on which the Regional Municipality of York (the “Region”) relied that could suggest the garden centre was not operational until well after the by-law was passed. Counsel for the Region cross-examined the appellants’ witnesses concerning whether the business was in operation on the day the by-law was passed. The appellants’ argument in this regard is not a question of law, rather it is a question that attracts review on a standard of palpable and overriding error. This court’s jurisdiction on appeal under s. 131 of the Provincial Offences Act , R.S.O. 1990 c. P.33 is limited to a question of law alone. The appellants’ argument in this regard was addressed and dismissed by the appeal judge. (2) The s. 11(b) argument [22] The respondent concedes that the appeal judge erred, when considering this issue, in not applying the test in R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631, and more specifically, the application of the transitional exceptional circumstance. In our view, that error is of no moment in this case. The decision in Jordan provides for a transitional exceptional circumstance to excuse delay in cases that were still in the system when the decision in Jordan was released, but where the delay in the case is explained by reliance on the pre-existing law. At para. 96, the court said: “This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed.” [23] All of the delay in this matter preceded the decision in Jordan by more than four years. In determining the s. 11(b) issue, the Justice of the Peace properly applied the law that existed at the time, that is, the decision in R. v. Morin , [1992] 1 S.C.R. 771 and related cases. On that point, the decision in R. v. CIP Inc. , [1992] 1 S.C.R. 843, made it clear that in order for a corporation to obtain a stay of proceedings under s. 11(b), it was required to show prejudice to its ability to make full answer and defence. The court said, at p. 863: It is therefore my opinion that with respect to this fourth factor, a corporate accused must be able to establish that its fair trial interest has been irremediably prejudiced. [24] The appellant, 1085638 Ontario Limited, did not lead any evidence of any prejudice to its right to make full answer and defence. The s. 11(b) challenge was, therefore, properly dismissed. It is not necessary for us to consider the issue whether, in cases that involve a corporation and where the delay includes delay post- Jordan , there is still a need to demonstrate prejudice. D. COnclusion [25] The appeal is dismissed. “Janet Simmons J.A.” “B.W. Miller J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Akhi, 2022 ONCA 264 DATE: 20220329 DOCKET: C67096 & C68914 Simmons, Miller and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Elias Akhi Appellant AND BETWEEN Her Majesty the Queen Respondent and Jezreel Moxam Appellant Chris Rudnicki and Theresa Donkor, for the appellant Elias Akhi Mark C. Halfyard and Chloe Boubalos, for the appellant Jezreel Moxam Michael Fawcett, for the respondent Heard: March 24, 2022 by video conference On appeal from the convictions entered by Justice Kelly A. Gorman of the Superior Court of Justice, sitting with a jury, on February 12, 2019. REASONS FOR DECISION [1] Elias Akhi and Jezreel Moxam appeal from their convictions for robbery, assault with a weapon, and other offences arising out of a home invasion robbery that occurred on September 28, 2016. At the conclusion of the hearing, we allowed the appeal and ordered a new trial for reasons to follow. We now provide our reasons. [2] On September 28, 2016, a woman was abducted from her home at gunpoint. The woman lived in a home in London with her two daughters, her boyfriend, and her boyfriend's brother. Her boyfriend and his brother were drug dealers. [3] On the night in question, two men entered the woman’s home and tied her up along with the two brothers. These two men were later identified as Azizullah Hadi and the appellant, Moxam. The men demanded drugs, money, and valuables. One of the men pistol-whipped her boyfriend. When no drugs were found, they threatened to take the children. Ultimately, the woman was blindfolded and taken to a car driven by a third man. The three men drove her to an apartment building, in the apparent belief that drugs would be found there. They met another vehicle (the “second vehicle”) occupied by three other men. One of the men from the second vehicle, William Pieszchala, opened the door to the building. Hadi and the woman went to a unit on the second floor. When no one answered the door, they went back downstairs where Moxam gave the woman money for a phone call and told her not to remove her blindfold until after the men had left. [4] Following the incident, Pieszchala approached the police and provided a statement concerning his involvement in the incident. Among other things, Pieszchala alleged that Akhi was in the second vehicle and that he not only forced Pieszchala to participate in the offences at gunpoint but also gave directions to Hadi and Moxam concerning carrying out the offences over the phone. The police eventually charged five individuals with various offences. Two of those individuals subsequently had their charges withdrawn. After Hadi pleaded guilty, the trial proceeded only as against the appellants. [5] The appellants raised a number of grounds of appeal, some in common and some separately. We need only address one that is common to both appellants and that involves serious errors in the instructions that were given to the jury by the trial judge. [6] This case was complicated by two principal factors. One was that there were two accused. The other, and more significant, complicating factor was that the information initially contained 26 different counts. Some counts related to individual accused and other counts related to accused charged jointly. The fact that Hadi resolved his case led to there being a reduction in the number of counts, but it still required the jury to be instructed on 14 counts. [7] Further, the instructions given to the jury included not only instructions on liability as principals, but also instructions on liability as parties, either as aiders under s. 21(1)(b) or common intention under s. 21(2) of the Criminal Code , R.S.C. 1985, c. C-46. Unfortunately, in attempting to address all of these moving parts, the jury instructions became very confused. [8] By way of example, the trial judge adequately set out the requirements for common intention under s. 21(2) very early in her instructions. However, much later, when she came to the actual counts that the jury had to decide, she moved back and forth between common intention, aiding, and joint principals, all without adequately delineating between the three. Indeed, she generally failed to delineate which counts might properly attract liability for which accused on which basis. Further, in instructing on common intention, the trial judge failed to clearly set out which offences were ones that the accused had agreed to commit, and which offences were ones that the accused knew, or should have known, one of the other participants would probably commit. [9] Adding to the confusion in this regard is the fact that while the trial judge initially told the jury that the two appellants had to be treated separately, in dealing with the various counts where they were jointly charged, which were 11 of the 14 counts, she referred throughout to Akhi “and/or” Moxam. This conjunction failed to maintain the separateness that was required when the jury was considering the question of guilt respecting each appellant. Because Akhi was never in the house, the avenues of liability for him were often distinct from those available for Moxam who was. While it may somewhat lengthen the overall instructions, the best practice will generally be for a trial judge to deal with each accused separately, even if that results in a measure of repetition. In any event, each potential basis for liability should be clearly and separately laid out for each offence and each accused. One significant consequence of the confusion in this case was that, in some instances, the trial judge instructed on avenues of liability not sought by the Crown and which were not available on the evidence. [10] The respondent quite fairly acknowledges that the jury instructions were confusing. Indeed, the respondent accepts that the finding of guilt for Akhi based on common intention on three of the counts cannot be sustained. However, the respondent contends that the errors in the jury instructions do not go so far as to undermine the other convictions for Akhi, or any of the convictions for Moxam. On the latter point, the respondent says that “the only issue at trial” was whether the jury would excuse Moxam’s participation on account of duress. [11] We do not agree. We begin by noting that had the trial judge instructed the jury as is now suggested by the respondent, that is, that the only issue for Moxam was duress, the respondent’s position might carry the day. But the trial judge did not do that. Rather, she included Moxam with Akhi throughout her instructions on all of the joint counts, including on all of the party liability issues. [12] In our view, there is no safe way of separating out the confusion that was created by the erroneous jury instructions as between the various counts or as between the two appellants. If the jury was left in a state of confusion regarding what the Crown needed to establish for a conviction beyond a reasonable doubt, it cannot be said with any level of comfort that the confusion would only have permeated their consideration of some charges and not others. [13] We would add that this case demonstrates the risks associated with including multiple counts in an indictment that arise out of the same conduct. It would benefit the conduct of prosecutions generally if the Crown identified the key offences involved and prosecuted only those offences. As Moldaver J. said recently, in R. v. R.V. , 2021 SCC 10, 455 D.L.R. (4th) 253, at para. 78: It is incumbent upon the Crown as a participant in the justice system to make the trial process less burdensome, not more. The Crown fails in that regard when it proceeds with duplicative counts. Doing so not only increases the length of the trial; it also places a greater burden on trial judges and juries by increasing, as it does, the complexity of jury instructions [Citation omitted.] See also R. v. Rowe , 2011 ONCA 753, 281 C.C.C. (3d) 42, at para. 58. [14] In the end result, the jury instructions did not properly equip the jury with the tools necessary to decide this case fairly. The convictions cannot stand and must be set aside. [15] It is for these reasons that we allowed the appeal and ordered a new trial. The convictions are quashed and a new trial is ordered on the counts on which the appellants were found guilty. “Janet Simmons J.A.” “B.W. Miller J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Pine Valley Enterprises Inc. v. Earthco Soil Mixtures Inc., 2022 ONCA 265 DATE: 20220331 DOCKET: C68141 Strathy C.J.O., Simmons and Zarnett JJ.A. BETWEEN Pine Valley Enterprises Inc. Plaintiff (Appellant) and Earthco Soil Mixtures Inc. , G & L Group Ltd., Richard Outred and Orazio Valente Defendants ( Respondent ) Vito S. Scalisi, for the appellant Mark Klaiman, for the respondent Heard: January 21, 2022 by video conference On appeal from the judgment of Justice Shaun Nakatsuru of the Superior Court of Justice, dated February 10, 2020, with reasons reported at 2020 ONSC 601. Zarnett J.A.: Introduction [1] The appellant, Pine Valley Enterprises Inc. (“Pine Valley”), bought topsoil from the respondent, Earthco Soil Mixtures Inc. (“Earthco”), for use in a City of Toronto project designed to reduce basement flooding. The topsoil did not meet the City’s specifications. The City required Pine Valley to remove and replace it, causing Pine Valley a loss the trial judge assessed at $350,386.23. [2] Pine Valley claimed that Earthco was responsible for its loss. It asserted that Earthco breached the parties’ contract governing the sale of the topsoil (the “Contract”), specifically the condition implied into the Contract by s. 14 of the Sale of Goods Act , R.S.O. 1990, c. S.1 (the “ SGA ”). Section 14 of the SGA provides that where goods are sold by description, there is an implied condition in the contract of sale that the goods supplied correspond to that description. [3] The trial judge made several findings that are not challenged in this appeal. He found that the Contract was for the sale of goods by description within the meaning of s. 14 of the SGA . He found that Earthco had promised to sell “R Topsoil”, a specific composition of topsoil described in test results Earthco provided, that would meet the City’s specifications. And he found that “Pine Valley did not get the soil it bargained for” since there was “a significant variation between the soil promised and the soil delivered”. That variation caused Pine Valley’s loss due to the removal and replacement it had to perform. [4] The trial judge nonetheless dismissed the action on the basis of exclusionary clauses in the Contract. [5] The Contract provided that Pine Valley had the right to test and approve the topsoil at its own expense at Earthco’s facility before it was shipped. It further provided that if Pine Valley waived its right to do so, Earthco would “not be responsible for the quality of the material once it [left Earthco’s] facility”. [6] The trial judge held that by these exclusionary clauses, Earthco had successfully excluded liability for failing to supply topsoil that corresponded with the description in the Contract, that is, for breach of the implied condition in s. 14 of the Act, as Pine Valley failed to do its own test before taking delivery. [7] A vendor may, by express agreement, exclude the implied conditions in the SGA , but must use explicit language, which is clear and direct, to do so. This principle “reflects a policy choice to give primacy to legislative purposes, unless the parties have clearly expressed their intention for a different private ordering of their rights and obligations”: Geoff R. Hall, Canadian Contractual Interpretation Law , 4th ed. (Toronto: LexisNexis Canada, 2020), at p. 179. The issue in this appeal is whether the trial judge committed a reversible error in finding that the exclusionary clauses constituted an express agreement composed of explicit, clear, and direct language sufficient to oust liability for breach of the implied condition in s. 14 of the Act that the topsoil supplied corresponded to the contractual description. [8] For the reasons below, I conclude that the appeal must be allowed. [9] The implied condition in s. 14 of the SGA , applicable when a sale is by description, relates to the identity of the goods sold – that they correspond to the description – not to their quality. This is in contrast to the implied conditions in s. 15 of the SGA concerning fitness for purpose and merchantability, which relate to the quality of the goods. The trial judge found that the Contract was for a sale by description, that the description was of soil with a composition as described in specific soil tests supplied by Earthco, and that the soil supplied did not correspond to the contractual description. Given these findings, which are accepted by Earthco in this court, the nature of the implied condition in s. 14 of the SGA – one pertaining to identity, not quality – is pivotal. [10] Nothing in the language of the exclusionary clauses refers clearly, directly, or explicitly to any statutory conditions, let alone to one about the identity of what was sold. The express language of the exclusionary clauses disclaims responsibility only for quality , not for identity . Although the language of a contract must be read in light of its factual matrix, the factual matrix cannot be used to overwhelm the text and insert into the contract an explicit exclusion of liability for breach of the statutory condition in s. 14 of the SGA concerning the identity of the goods that the trial judge found Earthco had promised would be supplied. Background [11] In 2011, the City hired Pine Valley as a contractor for a project intended to deal with basement flooding in residences in a neighborhood in North York. Pine Valley was required to build a dry pond to capture excess water in the neighborhood, so that it would drain away. This in turn required Pine Valley to install drainage pipes and proper topsoil for drainage, as well as turf and recreational equipment. [12] The City rejected soils from several suppliers Pine Valley proposed to use, which led it to contact Earthco, a large custom topsoil provider. [13] The City’s specifications required a particular composition of topsoil. It had to be: 45 percent to 70 percent sand, 1 percent to 35 percent silt, and 14 percent to 20 percent clay. On October 3, 2011, Pine Valley gave Earthco its specifications, and on the same day, Earthco provided Pine Valley with laboratory tests for three topsoils, one of which was “R Topsoil”. The tests had been performed in August 2011 and set out the composition, as among sand, silt, and clay, of each of the soils. [14] The August test results for R Topsoil indicated a composition of 46 percent sand, 36 percent silt, and 18 percent clay. Pine Valley shared those results with the City’s consultant. [15] The City’s consultant advised Pine Valley that R Topsoil would be acceptable if the organic matter in it were increased to between 3 and 5 percent (which could be accomplished by the addition of peat). [1] R Topsoil was selected by Pine Valley. The Contract [16] The Contract for the supply of soil was entered into on October 5, 2011. Although the purchaser in the Contract was named as Furfari Paving, the parties at trial agreed and the trial judge accepted that the Contract was between Pine Valley as purchaser and Earthco as seller. [17] The Contract was for 3,678 cubic yards of “Screened topsoil with extra Organics added” for a price of $66,168. “Soil Testing if required” was priced at $300 per test. The Contract contained the following two provisions (the “exclusionary clauses”): 6. [Pine Valley] has the right to test and approve the material at its own expense at our facility before it is shipped and placed. Please contact Richard Outred [an Earthco representative] to arrange. 7. If [Pine Valley] waives its right to test and approve the material before it is shipped, Earthco Soils Inc. will not be responsible for the quality of the material once it leaves our facility. [18] The trial judge found that even though the Contract “only refers to soil” (i.e., “Screened topsoil”), the subject matter of the Contract was R Topsoil having the composition set out for that soil in the August 2011 test results. He stated that: [W]hen the factual circumstances existing at the time are examined, including the provision of [the August] test results of three soils, Earthco’s communication to Pine Valley promised that it was selling R Topsoil which had the qualities set out in its [August] test results. It was not promising to sell any soil regardless of composition/texture. Delivery of the Topsoil [19] Pine Valley did not exercise its right under the Contract to test the topsoil at the Earthco facility. After the Contract was entered into, Pine Valley pressed for immediate delivery, as it was under a City-imposed deadline and was facing financial penalties. On October 6, 2011, Pine Valley was advised by email from Earthco that Pine Valley had “the right to test any material we [Earthco] prepare for you before it gets shipped. However, once it leaves our yard, ownership of the material (including all risks associated with it) passes from us to you. Put another way, we are no longer responsible for the material once it leaves our yard.” [2] [20] Pine Valley nonetheless insisted on immediate delivery. Topsoil was delivered between October 7 and 19, 2011 and spread on the site when delivered. The Variation Between the Topsoil Promised and Delivered [21] In November 2011, ponding of water was discovered on the site. The City took soil samples for examination and testing. The trial judge found that the testing showed that the soil composition “differed significantly from the [August 2011] test results of the R Topsoil” and that “[t]here was substantially more clay content in the topsoil that was actually delivered than what the [August 2011] test results of R Topsoil had indicated.” [22] On December 2, 2011, the City officially notified Pine Valley that the topsoil on the site was to be removed and replaced. Pine Valley did so, incurring costs. [23] Pine Valley notified Earthco in a letter dated December 5, 2011 that it expected compensation. Earthco responded that Pine Valley had waived testing of the material before shipment and explicitly assumed all responsibility for the material once it left Earthco’s premises. The Trial Judge’s Decision [24] Pine Valley brought an action against Earthco and several other parties. At the outset of trial, the action was dismissed against all parties except Earthco. [25] Pine Valley’s theory of liability at trial was that the Contract provided for a sale by description within the meaning of s. 14 of the SGA , which provides in relevant part that “[w]here there is a contract for the sale of goods by description, there is an implied condition that the goods will correspond with the description”. It argued that the implied condition was breached as the goods did not correspond with the description, and the exclusionary clauses were not clear enough to exempt Earthco from liability for this breach. [26] The trial judge found that the Contract provided for a sale by description within the meaning of s. 14 of the SGA . After referring to case law that holds that “description” in s. 14 is to be understood as “identification of the goods rather than quality”, he found that the Contract identified the goods Earthco promised to sell as R Topsoil with the “qualities set out in [the August 2011] test results. It was not promising to sell any soil regardless of composition/texture.” [27] The trial judge then considered whether “the implied condition of correspondence [between the goods identified in the Contract and the goods delivered had] been breached.” He identified the test for breach as including a requirement that there be a significant variation between the goods delivered and the goods as described in the Contract, such that the buyer could say they were of a different kind from those agreed to be purchased. He found that aspect of the test to be met. He stated: Although the bar for correspondence between goods and description is relatively high, it is clear here that Pine Valley did not get the soil it bargained for . This was not a minor variation or discrepancy . The test results done at the City Consultant ’ s insistence after the soil had been spread and the expert evidence presented at trial showed that there was a significant variation between the soil promised and the soil delivered . The variation was such that it led to the problem of ponding in the Project. [28] If it were not for the exclusionary clauses, the trial judge would have found that the test for breach of the implied condition in s. 14 was met, and he would have awarded damages for that breach (which he assessed at $350,386.23). The trial judge found, however, that the presence of the exclusionary clauses led to a different result. [29] The trial judge considered s. 53 of the SGA , which permits parties, by express agreement, to negative liability implied by law. He referred to case law that requires that contractual language ousting a statutory entitlement under the SGA be clear and unambiguous. He discussed two Ontario cases that specifically held that liability for breach of SGA conditions of fitness for purpose is not excluded if the exclusionary clause fails to make explicit reference to statutory conditions. He distinguished those cases on the basis that they dealt with detailed and sophisticated contracts, whereas the Contract in this case was “drafted in very simple language”. [30] The trial judge observed that the exclusionary clauses in the Contract did not explicitly oust statutorily imposed conditions nor clearly articulate the parties’ intentions with respect to such conditions. But he held that they were “direct and explicit that Earthco [was] meant to be protected from any liability if Pine Valley fail[ed] to test its soil before shipping”, that they “state unequivocally Earthco will be absolved of liability if Pine Valley fails to test its topsoil order prior to shipping”, and that they “specifically absolved Earthco of liability in these circumstances”. He drew this conclusion from the wording of the Contract, as well as the following elements of the factual matrix: the August 2011 test results were dated; the soil to be shipped was taken from large mounds removed from development projects that would have a shifting composition as the mound was worked through over time; and Pine Valley was an experienced commercial purchaser. He held that the purpose of the provision for testing was to ensure that the soil met the City’s requirements, and the purpose of the exclusionary clauses was to avoid a situation in which a customer could fail to test and hold Earthco liable. [31] He concluded: In my view, [the exclusionary] clauses … of the Contract are clear and unambiguous and oust the liability for the seller created by s. 14 of the SGA . While the resulting situation for Pine Valley was unfortunate, there is no reason why the exclusionary clauses should not apply to this situation. While I have sympathy for [Pine Valley], I find that Pine Valley made something of an expensive but calculated mistake by not testing the topsoil prior to shipping. ANALYSIS The Parties’ Positions [32] On appeal, Pine Valley argues that the trial judge failed to follow binding case law and thus erred in law in finding that the exclusionary clauses ousted the liability of Earthco under the implied condition in s. 14 of the SGA , and that he further erred in using evidence outside of the Contract to deviate from its text. [33] Earthco argues that the trial judge applied the correct principles and that his interpretation of the Contract, in light of the factual matrix, is subject to a deferential standard of review and is not the product of any reversible errors. The Standard of Review [34] The question at the heart of this appeal is one of contractual interpretation, an “exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix”: Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 50. Deference is owed to a trial judge’s interpretation of a commercial contract, unless “an extricable question of law [arises] from within what was initially characterized as a question of mixed fact and law”: Sattva , at para. 53. “Legal errors made in the course 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’…. Moreover, there is no question that many other issues in contract law do engage substantive rules of law”: Sattva , at para. 53 (citation omitted). [35] In my view, whether the exclusionary clauses ousted the condition implied by s. 14 of the SGA in this case involves extricable questions of law. These questions relate to the legal nature of the statutory implied condition, the content and meaning of the legal test for excluding a statutory implied condition from a sales contract, and the use of the factual matrix to inform the meaning of the express exclusionary language. Deference is not owed on these questions, and a standard of correctness applies. [36] The trial judge made three related errors on these questions. First, in interpreting the exclusionary clause, he failed to take into account the nature of the implied condition in s. 14, which relates to the identity of the goods to be delivered rather than the quality of those goods. This distinction is important because the express language of the exclusionary clause only relates to “quality”. Second, he failed to properly interpret the meaning of the requirement that explicit, clear, and direct language must be used to exclude a statutory condition, and therefore did not give proper effect to the failure of the exclusionary clauses to refer to identity of the goods or to statutory conditions. Third, he read the language of the exclusionary clauses in broader terms than their actual words, which neither the requirement for express and explicit language, nor proper resort to the factual matrix, permits. The Implied Condition in s. 14 of the SGA Relates to the Identity of the Goods Sold, Not Their Quality [37] Section 14 of the SGA , entitled “Sale by description”, provides: Where there is a contract for the sale of goods by description, there is an implied condition that the goods will correspond with the description , and, if the sale is by sample as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description. [Emphasis added.] [38] Section 15 of the SGA , entitled “Implied conditions as to quality or fitness”, provides: Subject to this Act and any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows: 1. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description that it is in the course of the seller’s business to supply (whether the seller is the manufacturer or not), there is an implied condition that the goods will be reasonably fit for such purpose, but in the case of a contract for the sale of a specified article under its patent or other trade name there is no implied condition as to its fitness for any particular purpose. 2. Where goods are bought by description from a seller who deals in goods of that description (whether the seller is the manufacturer or not), there is an implied condition that the goods will be of merchantable quality, but if the buyer has examined the goods, there is no implied condition as regards defects that such examination ought to have revealed. 3. An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade. 4. An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith. [39] The subject matter of the two sections is different. The “description” referred to in the SGA (and comparable acts in the U.K. and elsewhere in Canada) involves identity of the goods, not their quality: Bakker v. Bowness Auto Parts Co. (1976), 68 D.L.R. (3d) 173 (Alta. S.C. (A.D.)), at p. 178 (“[I]t is clear that the description of which the section [of the SGA equivalent] speaks is only that which, as a term of the contract, identifies the subject-matter of the sale”); Ashington Piggeries Ltd. v. Christopher Hill Ltd. , [1972] A.C. 441 (H.L. (Eng.)), at p. 466 (“The language used [in the SGA equivalent] is directed to the identification of goods”). [40] Lord Diplock noted in Ashington Piggeries , at p. 503, that in a sale by description, the parties may employ as broad or narrow a description of the goods to be delivered as they choose. The broader the description, the more difficult it will be for the buyer to argue that what was supplied breached the identity condition. As long as the goods correspond to the description – as long as they are, as far as their identity is concerned, the goods described – it is irrelevant for s. 14 purposes whether the goods are of poorer quality than promised. [41] Thus, in Ashington Piggeries , the identity condition was not breached by the sale of mink food made up of Norwegian herring meal that, unknown to the parties, contained a poisonous substance. The contract contained a broad description of the identity of the goods to be delivered: “Norwegian herring meal”. As far as identity was concerned, that corresponded to what was supplied: “Herring meal is still herring meal notwithstanding that it may have been contaminated”. Provisions of the agreement that the herring meal had to be of “fair average quality of the season” pertained only to the quality of the goods, not to their identity: at pp. 472, 475. [42] On the other hand, in a sale by description, if the goods delivered do not correspond with what was promised, a breach of the identity condition will occur even if what is delivered is of equivalent quality. As the court stated in Bakker , at p. 181 : Sections 16 and 17 of the Act [corresponding to ss. 14 and 15 of the SGA ] imply separate conditions of the contract in respect of separate specified circumstances. “Merchantable quality” under s. 17(4) is not to be taken as a measuring stick in determining whether goods correspond with their contract description under s. 16; nor is fitness for purpose under s. 17(2) germane to such a determination. In Arcos, Ltd. v. E.A. Ronaasen & Son Lord Buckmaster said at p. 474: “The fact that the goods were merchantable under the contract is no test proper to be applied in determining whether the goods satisfied the contract description…”. [43] The distinction between identity and quality is important in this case. The trial judge found a sale by description. That description was narrow. The description – the identity of the goods – was R Topsoil with the composition set out in the August 2011 test results. He came to these conclusions (which are not in issue on this appeal as they are not challenged, but rather are accepted by Earthco in this court) after adverting to the difference between terms of a contract that specify the quality or standard of the goods and those that form the description. His conclusions mean that the composition described for R Topsoil in the August test results goes to the identity of the goods, not their quality. Indeed, he found that Pine Valley did not get what was promised in terms of the identity of the goods because of the significant variation in composition. [44] Although the trial judge adverted to the difference between statements about goods that go to their quality and those that go to identity, and found that the identity of what was to be delivered was R Topsoil with the composition described in the August test results, he was required to go further and apply that legal distinction when interpreting the exclusionary clauses. [45] The significance, to an exclusionary clause’s interpretation, of the difference between a condition concerning the identity of the goods under s. 14 and one that relates to their quality was described by Professor Gerald Fridman in Sale of Goods in Canada , 6th ed. (Toronto: Thomson Reuters Canada Ltd., 2013), at p. 152, as follows: If the wrong goods are delivered, the buyer may reject the goods proffered by the delivery, and sue for a breach of contract, and an exemption or exclusion clause will not release the seller from liability for breach of contract, since he will not have fulfilled the contract in any way. On the other hand, if what is involved is some characteristic of the goods, not their identity, an exemption or exclusion clause, if appropriately worded, and if not precluded by consumer protection legislation, may result in the release of the seller from any kind of liability for breach of contract . [Emphasis added; footnotes omitted.] [46] To the extent that the passage from Fridman suggests that the implied condition in s. 14 could never be excluded, it may go too far. Section 53 of the SGA , which provides that duties or liabilities implied by law may be negatived by express agreement, is broad enough to include the liability created by s. 14. Although the parties did not cite any case where the s. 14 condition had been excluded, and it appears counterintuitive to posit an agreement in which the seller both promises to deliver something specific and also excludes any promise that it will do so, the possibility exists. [47] But as is explained in the next section, there is a high standard – explicit, clear, and direct – that must be applied to language that purports to exclude any implied conditions in the SGA . The distinction between the legal nature of the implied condition in s. 14 of the SGA relating to the identity of the goods and implied conditions relating to quality is important to the question of whether that standard was satisfied, with respect to the identity condition, by the exclusionary clauses that only expressly referred to the “quality of the material”. Explicit Language Must be Used to Exclude Implied SGA Conditions [48] Section 53 of the SGA permits the parties to contract out of liability implied by law, but only if they do so by “express agreement”. Section 53 provides: “Where any right, duty or liability would arise under a contract of sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by usage, if the usage is such as to bind both parties to the contract.” [3] [49] Binding case law has explained what is meant by an express agreement in this context. It must be “explicit” and “clear and direct”. [50] In Chabot v. Ford Motor Co. of Canada (1982), 39 O.R. (2d) 162 (H.C.), Eberle J. held that it is a principle of interpretation of exclusion clauses that while general language may be sufficient to exclude what otherwise might be express conditions or warranties, conditions and warranties implied by sale of goods acts may be excluded only by explicit language. And, since there is a legal difference between warranties and conditions, the requirement for explicit language means that an explicit exclusion of implied warranties does not exclude statutorily implied conditions: at pp. 174-75. [51] Chabot was approved by the Supreme Court of Canada in Hunter Engineering Co. v. Syncrude Canada Ltd. , [1989] 1 S.C.R. 426. Dickson C.J. stated, at pp. 449-50: “If one wishes to contract out of statutory protections, this must be done by clear and direct language, particularly where the parties are two large, commercially sophisticated companies. This seems to be well-established in the case law, as Eberle J. makes clear in Chabot ”. [52] In Gregorio v. Intrans-Corp. (1994), 18 O.R. (3d) 527 (C.A.), at pp. 535-36, this court held: “ Although a vendor may exclude the implied conditions contained in the Sale of Goods Act , he must use explicit language to do so”. The court cited Chabot , and its approval in Hunter Engineering , for this principle. [53] How explicit, clear, and direct must the language be? In Chabot , Eberle J. noted that a contract expressly stating that “[t]here are no representations, warranties or conditions, express or implied, statutory or otherwise, other than those herein contained” would exclude the SGA implied condition of fitness for purpose. But an exclusion clause that stated there were no warranties, expressed or implied, other than that expressly given in the transaction, did not exclude the SGA implied conditions, as it made no reference to conditions, implied conditions, or statutory conditions: at pp. 174-75. [54] In Gregorio , the court found that the provision of a specific warranty, coupled with a disclaimer of all other express or implied warranties and any warranty of merchantability or fitness for purpose, was insufficient to exclude the SGA implied conditions of fitness for purpose and merchantability. The court held that such language failed the requirement for explicit language, as there is a legal difference between a warranty (which was explicitly addressed) and a condition (which was not): at pp. 535-36. [55] These well-established rules were followed in two cases distinguished by the trial judge: IPEX Inc. v. Lubrizol Advanced Materials Canada Inc. , 2012 ONSC 2717, 4 B.L.R. (5th) 148, leave to appeal to Div. Ct. refused, 2012 ONSC 5382 and Haliburton Forest & Wildlife Reserve Ltd. v. Toromont Industries Ltd. , 2016 ONSC 3767. In IPEX , the court found an exclusion clause that stated that a limited warranty was the only warranty given, and excluded all other warranties, express or implied, including any implied warranties of fitness for purpose or merchantability, did not exclude the SGA implied conditions: at paras. 26, 40-41. In Haliburton , the court held that a clause that excluded representations and warranties with respect to fitness for purpose, but made no reference to an exclusion of a condition of fitness for purpose, did not exclude the SGA implied condition: at paras. 74-77. [56] The parties did not cite any case where the SGA implied conditions were excluded by language that lacked a reference to “conditions” and “statutory”. But even if other language could suffice, it is clear from the cases that the legal meaning of explicit, clear, and direct language in this context means at the very least that the language must refer to the type of legal obligation the SGA implies – reference to a different legal obligation will not suffice. This is the principle that explains why excluding the implication of a warranty or statutory warranty does not exclude an SGA implied condition, a different type of legal obligation. The Trial Judge’s Approach to the Explicit Language Requirement Did Not Comport With These Principles [57] With respect, the trial judge erred when he distinguished IPEX and Haliburton on the basis that the contracts in those cases were sophisticated. The principles applied in those cases did not turn on the sophistication of the contract. As Hunter Engineering makes plain, the requirement of clear and direct language is one imposed on sophisticated commercial parties, which Earthco and Pine Valley were. [58] In my view, although the trial judge articulated the need for explicit language, he erred in law in finding that it was met even though the Contract did not, as he noted, explicitly address or oust the implied conditions in the SGA , or clearly articulate the intentions of the parties vis-à-vis the implied terms in the SGA . [59] Given the requirement for explicit, clear, and direct language, I return to the language of the exculpatory clauses. The operative words are that if Pine Valley does not test the soil, Earthco “will not be responsible for the quality of the material”. The implied condition in s. 14 addresses responsibility for the identity of the goods, not quality. Just as an exclusion that speaks to implied warranties does not exclude implied conditions because of the legal difference between those terms, an exclusion of responsibility for quality cannot exclude an implied statutory condition imposing responsibility for the identity of the goods, which covers different legal territory. [60] The trial judge did not explain how the word “quality” in the exculpatory clauses could mean “identity”. Rather, in various passages of his reasons, the trial judge referred to the exculpatory clauses without referring to the “responsible for the quality” wording. He said for example: “ The words are clear and unambiguous and say that if Pine Valley fails to test and to approve the topsoil before shipping, Earthco cannot be held responsible for any defects ” . He also said that: “[T]he language chosen by the parties … is direct and explicit that Earthco is meant to be protected from any liability if Pine Valley fails to test its soil before shipping”. He also described the exclusionary clauses as stating unequivocally that “ Earthco will be absolved of liability if Pine Valley fails to test its topsoil order prior to shipping” (emphasis added). [61] Given the requirement that to negative liability under a statutory implied condition, there must be an express agreement that is effected by explicit, clear, and direct language, the actual language of the exclusionary clause must remain central to the analysis. Without deciding whether the type of language the trial judge used to describe the exclusionary clauses would, if expressed, have been sufficient, the point is that it was not express or explicit. [62] The express language could not be expanded by recourse to the factual matrix. The interpretation of a written contractual provision must be grounded in the text read in light of the entire contract. But there is a legal limit on the interpretive use of the factual matrix. The factual matrix cannot be used to overwhelm the text, or to change the meaning of the words used: Sattva , at para. 57. [63] The factual matrix cannot change “responsible for the quality” in the exculpatory clauses to “responsible for the identity”, let alone add words to those clauses that were not used (such as “under any condition express or implied, statutory or otherwise”). [64] Earthco expressed itself in broader terms than the exclusionary clauses in the email it sent on October 6, 2011, after the Contract was signed. [4] Pine Valley argues that the trial judge erred in considering post-Contract events in order to interpret the Contract since only facts reasonably known to the parties at the time of contracting – that is, on or before October 5, 2011 – form part of the factual matrix. I agree with Earthco that the trial judge did not use the email exchange to interpret the Contract. He noted that there was no allegation that the Contract was amended by the email exchange. He viewed the email exchange as merely confirming the parties’ intentions to adhere to the terms of the Contract. It follows that the correct interpretation of the Contract is not influenced, one way or the other, by the subsequent email exchange. Earthco does not argue that the subsequent email exchange gives rise to any estoppel, waiver, release, or other independent basis to resist Pine Valley’s claim. Conclusion [65] Within a general framework of freedom of contract, the SGA prescribes the expectations of parties to a commercial sale transaction such as the one between the parties. The requirement of explicit, clear, and direct language to exclude a statutory condition implied into a sale agreement by the SGA is important to the legislative scheme. Contractual interpretation must proceed recognizing that this requirement is superimposed on other interpretive principles. [66] “This simple rule represents an interesting policy choice that differs from the [typical] principles of contractual interpretation, which give primacy to the parties’ private ordering of their affairs and primarily seeks to give accurate effect to their intentions without regard for external policy goals.” As noted above, this principle “reflects a policy choice to give primacy to legislative purposes, unless the parties have clearly expressed their intention for a different private ordering of their rights and obligations”: Hall, at pp. 178-79 . [67] The explicit language requirement reflects the importance that must be ascribed to the legislature’s choice that, in the circumstances the SGA prescribes, the condition will be part of the sale agreement, without any requirement that the purchaser request or negotiate for its inclusion, or that the seller wanted to be subject to it. Rather, the law requires the condition be considered included in the parties’ agreement unless by their express language, they can be taken to have turned their minds to the implied condition and explicitly, clearly, and directly agreed to exclude it. [68] The objective determination of the intention of the parties, gleaned from the language they used in light of the factual matrix, is the goal of contractual interpretation: Sattva , at para. 57. But that determination must proceed on the basis that, in a sale by description, the parties are legislatively deemed to have the intention to include the statutory condition as to identity over and above any other obligations to each other they may have included or reflected in their agreement, unless they have explicitly excluded that condition. It is not enough that their language, in light of the factual matrix, indicates in some sense that the seller wanted to be responsible only in certain circumstances or to be subject only to limited obligations. The provision by the seller of a limited warranty, and disclaimer of all others, which was the case in Chabot , Gregorio , IPEX , and Haliburton could, viewed from one perspective, indicate an intention that the parties had defined exactly the limits of the seller’s obligations and the buyer’s entitlements. But viewed from the required perspective – one that privileges the SGA purposes – the seller in each case provided the limited warranty and the implied condition as to quality. The exculpatory language did not address the latter and the objective determination of the parties’ intentions could not lead to the conclusion that the implied condition was excluded. [69] For the same reasons, having made a sale by description as the trial judge found, Earthco was statutorily deemed to have agreed to a condition that the goods it delivered corresponded to that description unless it expressly excluded that condition. The exclusionary clauses did not constitute an express agreement to exclude the s. 14 SGA condition as they failed the test of explicit, clear, and direct language. DISPOSITION [70] I would allow the appeal, set aside the judgment dismissing Pine Valley’s action against Earthco, and substitute a judgment that Earthco pay Pine Valley damages in the sum assessed by the trial judge, $350,386.23. If the parties are unable to agree on matters of pre-judgment interest and costs of the action, which the trial judge fixed at $52,500 inclusive of disbursements and taxes, they may make written submissions, not exceeding five pages each. Pine Valley’s submissions shall be delivered within ten days of the release of these reasons and Earthco’s within ten days of the receipt of Pine Valley’s. [71] Pine Valley is entitled to costs of the appeal, fixed in the agreed upon amount of $12,500, inclusive of disbursements and applicable taxes. Released: March 31, 2022 “G.R.S.” “B. Zarnett J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. Janet Simmons J.A.” [1] There was ultimately no issue with the organic content of the topsoil. [2] This email was sent to Furfari Paving, who later advised Earthco that Pine Valley was accepting the topsoil and the conditions stated in the email. [3] In this case, there is no issue of course of dealing or usage. [4] See para. 19 above.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Staples, 2022 ONCA 266 DATE: 20220401 DOCKET: C63472 Fairburn A.C.J.O., Rouleau and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and Mark Staples Appellant Michael Lacy and Carol Cahill, for the appellant Alex Alvaro, for the respondent Heard: October 27, 2021 by video conference On appeal from the convictions entered on November 28, 2014 by Justice Harrison S. Arrell of the Superior Court of Justice, sitting with a jury. Huscroft J.A.: OVERVIEW [1] The appellant’s father, Bill Staples, and sister, Rhonda Borelli, went missing from Hamilton in January 1998. Five months later, their badly decomposed bodies were found in the back of Bill’s truck at a Park ‘N Fly at Pearson Airport. Bill had extensive skull fractures and had been beaten to death. The cause of Rhonda’s death was undetermined, but it was theorized that her throat had been cut. The appellant inherited his father’s estate, valued at over $2.1 million. [2] The appellant was not arrested and charged with the murders until 2010. He was convicted of two counts of first-degree murder following a two-month jury trial in 2014. [3] The appellant argues that the trial judge erred in numerous ways and that his trial was unfair as a result. The trial judge is said to have erred by: 1. failing to caution or correct the jury on demeanour evidence relied on by the Crown; 2. leaving post-offence conduct with the jury and failing to properly instruct the jury on the use to be made of such evidence; 3. failing to provide a limiting instruction on discreditable conduct; 4. failing to caution the jury about too readily inferring guilt from circumstantial evidence; 5. failing to prevent the Crown from inviting the jury to speculate and shifting the onus of proof onto the appellant; 6. failing to instruct the jury to disregard impermissible opinion evidence; and 7. refusing to permit the appellant to lead evidence of another unsolved homicide. [4] Finally, the appellant argues that the verdict was unreasonable. He seeks an acquittal or, in the alternative, a new trial. [5] I am not persuaded by any of these arguments, nor has the appellant established that the jury’s verdict was unreasonable. I would dismiss the appeal for the reasons that follow. BACKGROUND [6] Bill Staples and his wife adopted the appellant and Rhonda Borelli as children. Bill worked with the appellant in farming and supported him financially throughout his life, including gifting him land on which to build a home. [7] The appellant opened Mulligan’s, a bar/restaurant and golf business, in 1996. Bill supported him with gifts of money and loans but refused to invest in the business. By 1997, the appellant’s financial difficulties had become evident and Bill’s close relationship with the appellant had deteriorated. The appellant continued to seek support from him, but Bill told many people he was no longer going to give the appellant any money. Shortly before Bill’s death, the appellant stole $20,000 from him by forging a cheque on his account. [8] The Crown’s theory was that the appellant killed Bill and his sister Rhonda on January 16, 1998 in order to inherit his father’s estate and save his Mulligan’s business. Although he ultimately received approximately $1.4 million from the estate, the appellant did not receive the money for several months following Bill’s death and was not able to save his business in the meantime. Mulligan’s had been operating pursuant to a credit proposal, but the business failed and the proposal amount was never paid off. [9] In support of its theory, the Crown led a large volume of evidence that I summarize here. The appellant’s situation [10] The appellant owned a Camaro and a red pickup truck with a gas tank on the back, in addition to a John Deere tractor he used to plow snow. [11] The appellant owed over $600,000 dollars to secured and unsecured creditors when Bill and Rhonda disappeared. The money was owed both personally and through the Mulligan’s business. Several witnesses testified that they invested in Mulligan’s and received nothing in return. [12] Bill’s relationship with the appellant had become strained, and later in 1997 they were not on speaking terms. According to the appellant’s ex-wife, Cheryl Echlin, the appellant and Rhonda did not talk and he avoided contact with her. [13] Bill told many people that he would no longer give money to the appellant. Nevertheless, there was also evidence that Bill was proud of the appellant’s business venture and that he continued to lend money to him, including a loan of $15,000 in December 1997. [14] In January 1998, the appellant forged Bill’s name on a cheque for $20,000 made out to Mulligan’s Golf Centre. There is no evidence that Bill knew of the fraud prior to his disappearance. $20,510.58 was seized from the appellant’s account by the sheriff on January 16, 1998, leaving nothing in the account. Bill and Rhonda’s final movements [15] David Staples, Bill’s nephew, last saw Bill on January 12, 1998. Bill told him that he did not want the appellant to use his new tractor and had put chains through the front wheels. [16] Bill made a same-day medical appointment on January 15, 1998 to address what he said was an emergency. Just before the appointment, the doctor’s assistant received a call from a woman stating that Bill would be late. He never attended the appointment. [17] Cheryl Echlin saw Bill on January 16, 1998 – the last day he was seen alive. Bill told her that he had been in Toronto and was going back the next day. [18] Rhonda was last seen alive on January 16, 1998 in Binbrook at around 12:00 p.m. by Gerald Patterson. He saw her arguing with a man who was in a red pickup truck that had a gas tank on the back. She eventually got into the truck and drove away. Patterson knew the appellant but was not able to say that the man he saw was the appellant. [19] Lorie Bunker attended the Staples farm on January 16, 1998 at approximately 2:30 p.m. to deliver Avon products to Rhonda. No one answered the door. She returned two days later, on Sunday at 4:00 p.m., and again got no answer at the door. The appellant’s movements on January 16, 1998 [20] Ron Bender saw the appellant in Hamilton in a red pickup truck at about 12:00 p.m. on January 16. [21] Carl Jennings, whose band played at Mulligan’s on January 16, testified that he did not see the appellant at Mulligan’s that night. [22] Steven van Zeben said the appellant was not at Mulligan’s on January 16 when he arrived at 10:00 p.m., but that the appellant arrived 15 or 20 minutes later. van Zeben left Mulligan’s after 30 to 45 minutes. He saw the appellant leave the Mulligan’s parking lot in his truck and the appellant passed him, travelling toward Bill’s farm. [23] Angela Jessop saw the appellant at approximately 5:45 p.m. at Mulligan’s and said that he left by 7:00 p.m. She did not see the appellant again until about 11:00 p.m. He had changed his clothing. The appellant bought her a drink after midnight and she left Mulligan’s at about 2:00 a.m. [24] Steve Martin, who lived across the street from the Staples farm, saw a vehicle drive up the driveway of the farm at 11:30 p.m. or later on January 16. Approximately 20 minutes later, he saw two vehicles leave the farm but could not identify them. [25] van Zeben and John Potter returned to Mulligan’s at about 1:30 a.m. and saw the appellant there. They stayed until the appellant locked up at 3:30 a.m. Post-January 16, 1998 events [26] David Bunker drove his ATV on the Staples farm on January 17, 1998. He observed that snowplowing had been done and saw the appellant’s John Deere tractor with a snowplow. He did not see Bill’s white pickup truck but later that day saw the appellant’s Camaro in the driveway. In his 1998 statements to police, the appellant said he had plowed only the driveway, but in 2010 he acknowledged plowing extensively between the buildings at the farm. [27] On January 19, the appellant’s uncles Don and Murray Staples stopped at Mulligan’s on their way to visit Bill’s farm. The appellant told them that Bill and Rhonda had said they were going away for a few days, or that they had gone on a little holiday. The appellant told them there was no use in going to the farm because he had already been there and was returning that afternoon to check. [28] Sandra McLean saw thick black smoke coming from the burner behind the shop on Bill’s farm on January 19 and saw the appellant’s red pickup at the farm. The police found buckles, zippers, round disks that could have been buttons, and several pieces of torn cloth, along with eight coins in the ashes beneath the incinerator. [29] Earl Barlow went to the farm on January 19 and found that the television was on. A protein drink was on the table. A wet pair of jeans was in the washing machine. Earl called the appellant, who said that the jeans were his and that he had left the light and television on. [30] Earl Barlow returned to the farm on January 20 with others. He saw that Bill’s pickup truck was gone. It had been removed from a concrete pad in the drive shed by driving over a 10 to 12-inch curb, because it was blocked by a tractor that had a dead battery. [31] That same day, Murray Staples saw the appellant crying, but the appellant did not respond to questions asking him what was wrong. [32] David Staples visited the farm on January 20 and saw the appellant in drive shed #1 cleaning up, sweeping, and scattering straw. A large bloodstain that had penetrated the concrete was later found there. Subsequent DNA testing established that the blood was Rhonda’s. David also visited the farm with Murray Staples on January 21. On one of his visits, David saw the appellant sobbing. He said that the locks on Bill’s tool chest had been cut along with the locks on the tractor. Officers Shulist and Allison did not notice locks having been cut when they visited the farm. [33] On January 23, the appellant expressed the concern that too many people were going through Bill’s house and that things were being done without his involvement. [34] The appellant did not testify, but two videotaped statements and one written statement he made to the police were entered into evidence. DISCUSSION [35] Although the appellant raised numerous alleged errors in his factum, his oral submissions focused primarily on the admission and use of post-offence conduct demeanour evidence and the trial judge’s alleged failure to give limiting instructions in key areas giving rise to moral and reasoning prejudice. The trial judge did not err in leaving post-offence demeanour evidence with the jury 1. Evidence that the appellant was crying [36] The appellant argues that evidence that he was seen crying had no probative value and significant prejudicial effect and should not have been admitted. Several witnesses testified they saw the appellant crying on January 20, 1998, when Bill and Rhonda had been missing for only a few days. The appellant’s ex-wife testified that he was crying and sweating and that he smelled quite badly of perspiration, something that she said never occurred. The appellant submits that the trial judge erred in relying on R. v. Sodhi (2003), 66 O.R. (3d) 641 (C.A.), because the post-offence conduct in that case – the accused’s suicide attempt – was more extreme than the conduct in this case. [37] The respondent submits that evidence of the appellant crying had probative value as it was unique and unusual. The appellant, who was on all accounts not an emotional person, was crying even though his father and sister had not been missing long enough to raise the spectre of their deaths. I agree. [38] The starting point is that although its admission may be somewhat rare, there is no bar to the admission of demeanour evidence. It may be admitted where a witness has a basis for believing that an accused’s demeanour was unusual: R. v. Trotta (2004), 190 C.C.C. (3d) 199 (Ont. C.A.), rev’d on other grounds, 2007 SCC 49, [2007] 3 S.C.R. 453; R. v. Short , 2018 ONCA 1, 358 C.C.C. (3d) 337, at para. 54 . [39] In this case, the key witness concerning the appellant’s crying was the appellant’s ex-wife, who was intimately familiar with him and had a strong basis for believing that his demeanour was unusual. It had probative value in light of the evidence that the appellant had told his uncles Murray and Don Staples on Monday – the day before his crying was observed – that he did not know where Bill and Rhonda were, but they had said they were going away for a few days. After all, if his father and sister had taken a short trip, why would their absence provoke such a reaction in the appellant? [40] The evidence of the appellant’s highly unusual sweating and smell also gained probative value when considered against his statement to his uncles. Again, if his father and sister had simply gone away for a few days, why did his ex-wife observe him to be in physical distress? [41] Perhaps the best indication of the probative value of this evidence lay in the silence of defence counsel at trial. No objection was taken to the admission of the evidence that appeal counsel now says was prejudicial. The silence of defence counsel – present at trial and able to measure its probative value – speaks volumes. [42] I am satisfied that the evidence was properly admitted. It was open to the trial judge to find that this post-offence demeanour evidence had probative value in the context of the broader evidentiary picture and, in particular, the appellant’s statement to his uncles that Bill and Rhonda had gone away. [43] The second aspect of this ground of appeal concerns the Crown’s closing. The appellant argues that Crown counsel improperly invited the jury to infer guilt from the appellant’s demeanour in the days after Bill and Rhonda went missing and from his videotaped statement to the police. [44] Concerning the appellant’s crying, the Crown stated as follows: On Tuesday, January 20 th , 1998, the police are contacted and attend at Staples Farms for the first time. Mark Staples is noted by both officers to be crying and also by his family members. Most significantly, his wife Cheryl Echlin notes that he is crying, sweating and producing body odour that she has never smelled from him before. This is the woman he married and lived with for 12 years. She had only seen him cry that way twice before; when his mother died and when his dog died. He was under stress and strain from his crime, and this crying is not the crying associated with the worry about his father and sister’s whereabouts. He told many people, including Don Staples and Murray Staples when he saw them on January 19 th at Mulligan’s, that his father and sister may have gone away for a few days. He also told Special Constable Linda Walsh, when he called the police at 11:30 p.m. that night, that they may have gone away for a few days, which is why she didn’t file a missing persons report. If you believe that your father and sister may have gone away for a few days, why are you crying, sweating and producing unusually heavy body odour? I suggest to you that he was crying too early in the process for it to be tears of worry. No need to cry if they’re gone for a few days. They had been missing three and-a-half days at that point. I suggest these are tears of guilt, not tears of worry. [45] The trial judge instructed the jury as follows: When considering what inference, if any, to draw from evidence of after-the-fact conduct, keep in mind that people sometimes cry, burn items, do a wash etc. for entirely innocent reasons. Even if Mark Staples was motivated by a feeling of guilt, that feeling might be attributable to something other than in the offence with which he is now charged. [46] The trial judge’s instruction specifically referenced the appellant’s crying and instructed caution in drawing inferences of guilt from post-offence conduct. Significantly, the instruction made clear that even assuming feelings of guilt existed in the appellant, they may have been motivated by something other than guilt over having committed the offence with which he was charged. In my view, this instruction was adequate to address any concerns about the evidence of appellant’s crying and sweating. 2. The videotaped statement [47] There are two objections concerning the appellant’s videotaped statement to the police. First, the appellant argues that Crown counsel improperly suggested to the jury that the appellant would have “vigorously den[ied] responsibility” if he were in fact innocent. The impugned passage from the Crown closing follows: Much of the statement to Detective Rick Arnold is the detective presenting the evidence collected during the course of the police investigation and asking Mark Staples to comment. Sometimes he does, sometimes he doesn’t. I suggest there are many moments when you would expect him to vigorously deny responsibility and instead he says, mm-hmm, or yeah. [48] Although this statement looks problematic when read in isolation, it must be considered in light of its context: a 140-page statement in which the appellant repeatedly answered “yeah” and “mm-hmm” both to highly innocuous and less innocuous matters. It was open to the jury to consider the whole statement, and in that context that Crown counsel’s lead-in to the impugned statement makes good sense: The last statement he gives to the police is after he is arrested in 2010. He speaks with Detective Rick Arnold on video at the police station. The defence will say he denied committing the murders under close questioning , just like he had denied responsibility in his earlier statements to the police. They will say he has consistently denied responsibility. I suggest the lies he has told in his statements should lead you to disbelieve him and lead you to disbelieve him when he denies responsibility for the murders. [Emphasis added.] [49] Crown counsel then went on to review numerous lies and inconsistencies in the appellant’s statement. [50] This is not a case in which Crown counsel asked the jury to infer guilt from silence. Nor is it a case in which Crown counsel asked the jury to make assumptions based upon a stereotype or speculation. The jury had a lengthy videotaped interview to consider, in which the appellant’s words and conduct were captured. Numerous “yeah” and “mm-hmm” responses by the appellant during the course of that interview informed the jury’s overall view of how seriously he was taking the situation and provided a context against which his denials were to be assessed – denials that, as the Crown warned the jury, the appellant would be relying on in his closing address. [51] I see nothing problematic about Crown counsel’s statement. The problematic part of the Crown’s closing came later, near the end of his remarks. [52] The appellant argues that Crown counsel crossed the line when he told the jury that they could draw an inference of guilt from the appellant’s demeanour when confronted with photographs of his dead father and sister. Crown counsel stated: You all paid attention to that statement and followed along in the transcripts you were provided to assist you. However, when Detective Arnold showed Mark Staples the photographs of his father and sister’s decomposing bodies in the back of the pickup truck and later in a bag at autopsy, you all looked up from your transcripts to see Mark Staples’ reactions. I suggest you could not believe his reaction to the photographs. He did not look away. He did not say take them away . He made no comment about Detective Arnold showing him those photographs. Instead, he was cold and clinical, looking coolly at the disturbing remains of his adoptive father and sister. I suggest this was not the reaction of a man who had nothing to do with this crime, but rather the reaction of a cold, calculating killer. [Emphasis added.] [53] The appellant argues Crown counsel’s suggestion that not looking away was “the reaction of a cold, calculating killer” was improper and should not have been made. The appellant’s reaction or non-reaction to the photographs was post-offence demeanour evidence that had no probative value and was inflammatory, and it was prejudicial for the Crown to urge the jury to draw an inference of guilt from the evidence. [54] I agree that this comment should not have been made. It was improper to say that the appellant’s reaction to the photographs – looking “coolly at the disturbing remains” of the deceased rather than looking away – was the reaction of a “cold, calculating killer.” Implicitly, it suggested that there is a “normal” way to look at the remains of your deceased family members, and this is clearly not so. [55] This sort of suggestion is potentially dangerous because perceptions of guilt based on demeanour depend on what Rosenberg J.A. described as “highly subjective impressions”: R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.), at para. 27. As Doherty J.A. explained in Trotta , at para. 41, the evidence must be “sufficiently unambiguous and demonstrative of a relevant state of mind so as to overcome concerns that a trier of fact may too easily equate what is perceived to be an ‘unusual’ reaction with a guilty mind.” [56] The evidence here is not unambiguous. Does a guilty person look away from the photographs or stare at them? No inference could be drawn from the appellant’s reaction to the photographs. [57] Despite the impropriety of Crown counsel’s remarks, I am not satisfied that they had the effect of rendering the trial unfair. [58] I begin by noting that the appellant’s reaction or non-reaction to the photographs was apparent when viewing the videotaped statement that was properly admitted in evidence. This is not a case in which evidence was placed before the jury that should not have been. On the contrary, the appellant wanted the videotaped statement admitted at trial. He chose not to testify, as was his right, so the statement acted as his voice at trial – his denial of the crimes. [59] The impropriety arose from the suggestion that the jury could infer guilt from viewing the appellant’s failure to react as an innocent person would. To assess whether the appellant was prejudiced by this suggestion, the circumstances of the trial as a whole must be considered: R. v. McGregor , 2019 ONCA 307, 145 O.R. (3d) 641, at para. 184. [60] The appellant did not object to the now-impugned passage following the Crown’s closing. Instead, defence counsel proceeded to close to the jury. His closing included repeated references to the appellant’s demeanour following the disappearance of his father and sister, which he sought to characterize favourably – as consistent with the demeanour of an innocent person. [61] For example, defence counsel relied on the witnesses who had described the appellant’s normal demeanour at Mulligan’s on the night of January 16 and the next morning during a photoshoot, the timeframe in which the Crown theorized the appellant had murdered his father and sister. He asked: “does it make any sense that he would be crying on the Tuesday when it is clear that there was something wrong, and yet be in a good mood and so absolutely normal on Friday, shortly after having killed his father and sister just hours earlier?” Defence counsel also pointed out what he described as the contradictory nature of the Crown’s demeanour submissions: on one hand, the Crown argued that the appellant was sobbing out of guilt; on the other hand, the Crown described the appellant as having the reactions of a cold, calculating killer. [62] Defence counsel addressed the photographs issue directly, pointing out the problematic nature of drawing inferences from the appellant’s reaction or non-reaction: [T]his is clearly one of those situations where you’re damned if you do, and you’re damned if you don’t. I can guarantee you that if Mark Staples turned away or refused to look at those pictures, [Crown counsel] would stand right here, stare you right in the eye, and tell you that his refusal was clearly the sign of a guilty man. [63] This submission demonstrates why the trial Crown’s suggestion was improper. This was a situation in which there was no one right way to react, and this defence closing went some distance to educating the jury on the nature of this problem. [64] Only after the defence closed to the jury - having answered the Crown’s impugned suggestion and relied on all kinds of demeanour evidence to argue for innocence - did defence counsel raise a concern about the Crown’s closing. Even still, that concern was put softly: rather than ask for an instruction that the jury disregard what the Crown had said, defence counsel requested that the trial judge “consider [giving] an instruction to the jury that they should be cautious about demeanour evidence.” [65] In response to the trial judge’s question about “what evidence” the defence was referring to, defence counsel replied: “particularly [the Crown] going to the jury in his closing right at the end with look at the way Mark Staples looked at those photographs without turning away. That’s what a guilty man would do, right?” Defence counsel went on to clarify that this was “another example of post-offence-conduct.” [66] The trial judge noted that defence counsel had also addressed demeanour in his closing, and specifically addressed the appellant’s reaction to being shown the photographs. He considered that the usual caution to the jury on demeanour evidence would be adequate, and those instructions were given. [67] Although the defence was concerned with what Crown counsel had said, it cannot be said that this concern was as grave as is now suggested on appeal. Defence counsel was in the best position to determine, in the context of the trial as a whole – including both closing addresses – the extent to which prejudice arose from Crown counsel’s comment. The fact that defence counsel did not consider it necessary to have the trial judge instruct the jury to disregard that comment is important in this context. [68] In addition to the caution on demeanour evidence, the trial judge instructed the jury that the things said by lawyers were not evidence. With respect to drawing inferences from post-offence conduct, the trial judge cautioned the jury that things might be done for entirely innocent reasons. [69] In all of these circumstances, I am satisfied that Crown counsel’s comment did not render the trial unfair. The trial judge did not err in leaving post-offence conduct with the jury [70] The appellant submits that the trial judge erred in admitting several pieces of post-offence conduct evidence in addition to the demeanour evidence addressed above. He focused on the admission of the following evidence: 1. The appellant’s statement to Mulligan’s employee Michael Keating that he should not talk to the police and should get a lawyer; 2. The appellant’s statement to his uncles on January 19, dissuading them from going to the farm; 3. The appellant’s wet jeans in the washing machine when Earl Barlow went to the farm on Monday evening, January 19; and 4. The transport of the bodies in Bill’s truck to the Park ‘N Fly. [71] I see no error. In each case, the post-offence conduct reasonably supported inferences of guilt. [72] First, the appellant visited the home of Michael Keating, whom he owed several thousand dollars, late on the night of February 28, 1998. Keating testified that the appellant told him: “if the police come to see you again, don’t talk to them and maybe get a lawyer.” This was not particularly strong evidence, but it did permit the inference that the appellant was frustrating or at least choosing not to assist the investigation at a time when Bill and Rhonda were presumed missing. Keating was also a witness who could support the evidence of the appellant’s financial distress, which was relevant to the Crown’s motive theory. [73] Second, the evidence that the appellant dissuaded his uncles from attending the farm on Monday, January 19 supported the inference that he wanted to keep them away while he conducted a cleanup. This was supported by the evidence of thick black smoke coming from the burner outside the shop that day and the remnants of clothing that were found, along with evidence that the appellant had been sweeping straw in the area where Rhonda’s blood was found. [74] Third, the presence of the appellant’s wet jeans in the washing machine supported the inference that the appellant had been cleaning up the crime scene on January 19 and had washed clothing connected to the murders or cleanup. [75] Fourth, the appellant argues that the transport of the bodies in Bill’s truck is not really post-offence evidence. It is, however, circumstantial evidence pointing to the identity of the killer, for it supported the inferences that Bill and Rhonda were killed at the farm and that the killer was not a stranger. As the Crown asked, if a stranger were the killer, why would that person risk moving the bodies elsewhere? The appellant had access to the farm and truck, and the truck had been moved over a curb in a manner that suggested it had not been moved by Bill. Moreover, if he had left on a trip it was far more likely that Bill would have taken his car than his truck. [76] In summary, the trial judge did not err concerning the admission of the post-offence conduct evidence. The post-offence conduct instructions and the Crown’s closing [77] The trial judge cautioned the jury that the appellant’s post-offence conduct evidence had only an indirect bearing on his guilt and made clear there may be other explanations for his post-offence conduct. He properly instructed the jury not to infer guilt from the post-offence conduct evidence unless they were satisfied, in the context of the evidence as a whole, that it was consistent with his guilt and inconsistent with any other reasonable conclusion. The trial judge reiterated this point, stating that the jury could use the post-offence conduct to support an inference of guilt only if they rejected any other explanation for the conduct. Nothing more was required. [78] During the pre-charge conference, the trial judge ruled that some things could not be regarded as post-offence conduct from which guilt could be inferred, including evidence that the appellant had plowed behind the farm buildings to cover up Bill’s murder, which the Crown theorized happened outdoors. The trial judge ruled that this was too speculative and not probative. He also ruled that garbage bags in the dumpster were not admissible, along with the key to Bill’s safety deposit box, a copy of a loan agreement with Bill, and missing person posters the appellant threw away. [79] The following exchange took place: The Court: I don’t know how I can prevent you from commenting on it, either one of you, however, my ruling is you cannot comment on it on, on the basis of it’s after-the-fact conduct. [Crown counsel]: Right. The Court: And, and you cannot comment on it on the fact that consciousness of guilt through after-the-fact conduct flows from that evidence. [Crown counsel]: I think what I will do then, Your Honour, is eliminate my references to the extra inference that should be drawn by the jury from that evidence, but I will canvas it as things they heard about what Mr. Staples did after the murder. I just won’t go the extra step of suggesting that it shows that he was conscious of his guilt. [Defence counsel]: I think that may be a slippery slope and it still may open up [Crown counsel] to, to sort of comment in your charge about, about that evidence depending on how he does it, Your Honour. [The Court]: Well, I believe [Crown counsel] is careful and there’s no reference that this is an inference of guilt or after-the-fact conduct. It’s permissible. It’s evidence the jury’s heard and he can comment on any evidence the jury’s heard, but he’ll have to be careful on the inference he tells them to draw from it. [80] The appellant argues that Crown counsel wrongly invited the jury to draw inferences of guilt from this evidence despite the trial judge’s ruling. [81] The line between using post-offence conduct evidence for proper and improper purposes is a fine one, and read in isolation some of the Crown’s closing remarks came close to that line. However, read as a whole, the Crown’s closing remarks would have been understood as an attack on the credibility of the appellant’s exculpatory statements. The Crown was entitled to note that evidence the appellant had plowed between the buildings contradicted his statements to the police that he had plowed only the driveway, and evidence that the key to Bill’s safety deposit box was found in the garbage was inconsistent with the appellant’s statement that he had not disposed of it. The evidence also demonstrated that the appellant had control of the farm during the relevant time. [82] The trial judge properly instructed the jury concerning the use of the appellant’s statements in accordance with R. v. W.(D.) , [1991] 1 S.C.R. 742. Specifically, he instructed them that if they accepted the appellant’s denials of involvement in the deaths or disappearances, they must find him not guilty. Even if they did not accept his denials, the appellant was entitled to an acquittal if his statements gave rise to a reasonable doubt. Finally, the trial judge instructed the jury that even if they rejected his statements, they had to go on to determine if his guilt had been proven beyond a reasonable doubt on the basis of the evidence they accepted. For good measure, the trial judge repeated these instructions later in his charge. [83] This ground of appeal must be rejected. The O’Connor ruling on fabrication [84] At the end of the trial, the Crown sought a ruling that it be permitted to urge the jury to infer that numerous inconsistencies and lies in the appellant’s statements amounted to fabrication and consciousness of guilt, and requested that the jury be instructed in accordance with R. v. O’Connor (2002), 62 O.R. (3d) 263 (C.A.). The trial judge found that there was no independent evidence establishing fabrication and so denied the Crown permission to make the fabrication argument. [85] The appellant argues that Crown counsel’s closing breached the trial judge’s ruling. This argument was not set out as a ground of appeal in the notice of appeal, nor was it made in the appellant’s factum, but it is similar to the appellant’s argument on the Crown’s use of post-offence conduct so I address it here briefly. [86] The following exchange took place concerning the use that could be made of the evidence that had already been admitted: The Court: And by dismissing it [the Crown’s fabrication application], I mean, it certainly doesn’t mean that you’re not at liberty to go to the jury as all the inconsistencies and the obvious lies and all of the [Crown counsel]: I’ll be, I’ll just be careful with my language, Your Honour. [Crown counsel]: …I understand I can’t use the word “fabrication” or “concoction”. The Court: It’ll be [Crown Counsel]: Well, I can use the word “lie”. The Court: Or “consciousness of guilt” is another one. [87] Crown counsel was entitled to challenge the credibility of the appellant’s statements by pointing out the numerous inconsistencies or lies in those statements and the conflict with the other evidence, and he did so vigorously. I do not read the Crown’s closing as offending the O’Connor ruling. The Crown did not invite the jury to use disbelief of the appellant’s statement to find deliberate concoction, from which an inference of guilt could be taken: R. v. Iqbal , 2021 ONCA 416, at para. 54. Put another way, the Crown did not suggest to the jury that rejection of the appellant’s statement was capable of supporting an inference of guilt. [88] The failure of defence counsel to object to the Crown closing supports the conclusion that Crown counsel did not cross the O’Connor line. Instead of objecting, defence counsel addressed the appellant’s statements at length in his submissions. He emphasized that the appellant had willingly assisted the police throughout their investigation and characterized the inconsistencies in his statements as “relatively minor” and of “no real consequence”. The appellant was “admittedly terrible with times and dates”, he said. If he were guilty of the murders, “would he not have worked out a much more consistent timeline regarding his whereabouts at all material times”? [89] As well, and as noted above, the trial judge properly instructed the jury concerning the use of the appellant’s statements in accordance with W.D . It is not clear any further instruction would have benefited the appellant, given that it would have served to highlight the many inconsistencies the jury would be told they could not use to find guilt. In any event, the trial judge fairly put the defence argument to the jury: inconsistencies in the appellant’s statements came during a time in which the appellant was under great stress, and they were inconsequential in light of the evidence as a whole. Nothing more was required. A discreditable conduct instruction was not required [90] The appellant argues that the Crown used the extensive evidence of the appellant’s financial difficulties to characterize him as a person of bad character – “greedy, selfish, irresponsible, and a self-serving, cold and heartless person who thought nothing of taking advantage of people he knew” – rather than to establish motive, and as a result the trial judge should have given a discreditable conduct instruction. [91] Defence counsel objected to the Crown’s introduction of evidence concerning the many failed efforts of creditors to collect debts owed by the appellant after January 16, 1998, the date on which the Crown theorized Bill and Rhonda were killed. Defence counsel conceded that the evidence up to that date was relevant to establishing the appellant’s financial state and motive but argued that beyond this date it was simply evidence of the appellant’s bad character: he was someone who did not repay debts. The trial judge rejected this argument, describing the appellant’s financial stress as “terribly relevant” at the time of the murders, and stated that the only way to show financial distress was by showing that it was not relieved thereafter. However, he also indicated that it was not necessary to dwell on creditors’ efforts to try to collect on the appellant’s debts. [92] The appellant does not dispute the admissibility of the financial evidence but argues that Crown counsel went further than the trial judge authorized, and in doing so the evidence was used as bad character evidence. The appellant submits that a discreditable conduct instruction was required. [93] I do not agree. [94] Where evidence is admissible to establish motive, a discreditable conduct instruction on that same evidence will sometimes be unnecessary. As Doherty J.A. explained in R. v. Merz (1999), 46 O.R. (3d) 161 (C.A.), at para. 59, leave to appeal refused, [2000] S.C.C.A. No. 240, an inference of motive may be more direct and powerful than the possibility of propensity reasoning, and a discreditable conduct instruction would only confuse the jury. See also R. v. Krugel (2000), 143 C.C.C. (3d) 367 (Ont. C.A.), at para. 90; and R. v. Thomas , 2018 ONCA 694, at para. 35. [95] The sole issue for the jury in this case was the identity of the killer. Extensive evidence of the appellant’s financial misconduct and financial woes was tendered to establish the appellant’s motive for wanting to kill his father. Although the trial judge could have told the jury that they must not use this evidence to conclude that the appellant was the type of person who would commit murder, and was thus likely to have committed the murders, the fact that he did not do so carries little weight. Indeed, any such instruction might have served to highlight the strength of the evidence of motive, which was already very strong. [96] In my view, there was no risk that the financial evidence would be misused by the jury. Even if the jury thought that the appellant was greedy, selfish, and so on, they would not have thought that he was a murderer – that he would have brutally murdered his father and sister – simply because he had those character traits. Again, the absence of an objection at trial belies the suggestion of prejudice raised on appeal. The circumstantial evidence charge was adequate [97] The appellant argues that the trial judge did not provide the jury with an adequate circumstantial evidence instruction. In effect, the appellant says the trial judge instructed the jury to treat the post-offence conduct differently than the other circumstantial evidence. The jury should have been instructed in accordance with the requirements set out subsequently by the Supreme Court in R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000. [98] The trial judge instructed the jury on the distinction between direct and circumstantial evidence and the process of drawing inferences from circumstantial evidence. Later, in the context of instructing the jury on post-offence-conduct evidence, the trial judge instructed the jury as follows: After-the-fact conduct is simply a type of circumstantial evidence. As with all circumstantial evidence, you must consider what inference, if any, is proper to draw from this evidence. You may use this evidence, along with all the other evidence in the case, in deciding whether the Crown has proved Mark Staples’ guilt beyond a reasonable doubt. However, you must not infer Mark Staples’ guilt from this evidence unless, when you consider it along with all the other evidence, you are satisfied that it is consistent with his guilt and is inconsistent with any other reasonable conclusion. [Emphasis added.] [99] Although this instruction arises in the context of the appellant’s post-offence conduct, it is not rendered inadequate on that account. What matters is whether the jury received the instruction, not the sequence in which the instruction was delivered. The trial judge made clear that the instruction applied to “all circumstantial evidence.” In the key passage, the trial judge told the jury that in relation to all circumstantial evidence, guilt was not to be inferred unless the evidence was consistent with guilt and inconsistent with any other reasonable conclusion . These instructions track the approach set out by the Supreme Court in Villaroman . As Cromwell J. stated at para. 30: [I]n a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences. [100] If the appellant were right – if the jury would not have understood how to properly approach circumstantial evidence – one would have expected an objection on a matter so fundamental to this case. Again, the absence of the objection demonstrates defence counsel’s view that the instruction as given, albeit in the context of the post-offence conduct instruction, was sufficient. The trial judge did not err by failing to prevent the Crown from inviting the jury to speculate and shifting the onus of proof [101] The appellant argues that deficiencies in the charge concerning circumstantial evidence were compounded by Crown counsel’s invitation to the jury to speculate on several matters. The appellant submits that the Crown invited speculation by suggesting: · the appellant likely had help in moving the bodies; · the appellant had gone to the bank on Friday to withdraw funds; · Bill’s hairpiece would likely have limited the blood splatter; · Bill was likely killed outside at the farm and evidence had melted away into the gravel and dirt; and · the degree of force used to kill Bill suggested an attack fueled by anger rather than murder by a stranger. [102] The appellant argues that by inviting speculation in a circumstantial case, the Crown shifted the burden onto the appellant to prove the opposite of what the Crown suggested the jury should conclude. Crown counsel also shifted the burden by suggesting that there was no evidence of anyone else with a motive to kill Bill and Rhonda; that rarely are people murdered for no reason; and by telling the jury there was no other explanation for Rhonda’s blood being found on the floor in drive shed #1. The trial judge erred, the appellant submits, in not reiterating that the appellant did not have to prove anything. [103] I would reject this submission. [104] The appellant’s argument overlooks the distinction between speculation and inferences. Admittedly, the distinction can be difficult to draw, but there is a distinction and it is relevant here. [105] The Crown was entitled to invite the jury to draw reasonable inferences based on evidence the jury was entitled to accept. For example, Gerald Patterson gave evidence that on January 16, 1998 at around 12:00 p.m., he saw a woman he subsequently identified as Rhonda arguing with a man in a red pickup truck that had a gas tank on the back. The appellant owned a red pickup truck with a gas tank on the back. Patterson saw Rhonda get into the truck with the man and drive off. This was the last time she was seen alive. [106] Lorie Bunker attended the Staples farm that same day at about 2:30 p.m. to deliver Avon products to Rhonda. No one answered the door. The jury was entitled to accept this evidence and to infer that Rhonda had been killed by this time. The inference that she had been killed was further supported by the large bloodstain found in shed #1 – Rhonda’s blood, albeit that the date of the bloodstain could not be determined. [107] Acceptance of this evidence and the drawing of the inferences suggested by the Crown supports further inferences concerning the killing of Bill, for it was reasonable to infer that the same person killed both Bill and Rhonda. The appellant’s motive extended to both victims: he stood to inherit Rhonda’s share of Bill’s estate. Although there was evidence from one witness, Angela Jessop, that the appellant was at Mulligan’s on the night of January 16, there was evidence from several other witnesses that the appellant was not there that night and evidence that he was not there until much later in the evening. At the same time, there was evidence that the appellant was at the farm that night, when the Crown theorized that Bill was murdered and the bodies were moved. [108] It was for the jury to decide which evidence to accept. The jury was entitled to infer that the appellant killed Bill and Rhonda and moved their bodies. This inference was supported by an extensive body of post-offence conduct evidence. The evidentiary foundation for the inference that a second person was involved in moving the bodies was a witness’s observation that he saw two vehicles leaving the farm that night. The movement of the bodies, along with the absence of any evidence of a robbery or break-in at the farm, in turn supported the inference that Bill and Rhonda were not killed by a stranger. [109] The appellant’s argument focuses on individual pieces of evidence rather than the evidence as a whole. It ignores the larger picture the evidence painted and the inferences the jury was entitled to draw. This was indeed a circumstantial case, but it did not depend on speculation about any important matters. Although the details of the killings cannot be known with certainty, they need not be in order to sustain the convictions. The jury was properly instructed as to the presumption of innocence and the burden of proof and was reminded by the trial judge that it remained on the Crown throughout. Nothing more was required. The trial judge did not err by failing to instruct the jury to disregard impermissible opinion evidence [110] The appellant argues that he was prejudiced when the jury heard evidence that the appellant’s family, friends, and the community thought that he was responsible for the disappearance of Bill and Rhonda. This was inadmissible opinion evidence that went to the very issue the jury was to decide, and no instruction was given. [111] The difficulty with this submission is that although two Crown witnesses testified as to their belief in the appellant’s guilt, their evidence was elicited in cross-examination. Further, the appellant relied on this evidence to support his argument that there was animus against him. The absence of an objection or request for an instruction confirms the conclusion that this evidence occasioned no prejudice. The trial judge did not err in refusing to permit the appellant to lead evidence of another unsolved homicide [112] At the outset of the trial, the appellant brought an application in accordance with R. v. O’Connor , [1995] 4 S.C.R. 411, seeking disclosure of the file concerning an ongoing murder investigation by the Hamilton Police Services. The investigation concerned the death of an elderly, relatively wealthy man, Clyde Frost, who was killed in his home on Hamilton Mountain, allegedly by blunt force trauma to the head. He was found in his vehicle, which had been parked in Toronto, several days later. [113] The appellant argued that the murderer in the Frost case could be the murderer in the Staples case, leading to reasonable doubt as to his guilt. The trial judge dismissed the O’Connor application. He also dismissed the appellant’s application to adduce evidence of the Frost homicide as pointing to an unknown third-party suspect. [114] The appellant argues that the trial judge held the defence to too high a standard. Although he argues that the trial judge erred in dismissing both applications, his argument focuses on the trial judge’s refusal to permit him to adduce evidence of the Frost homicide. The appellant says that there were numerous similarities between the Frost and Staples homicides. The Frost homicide was logically relevant to the identity of the killer(s) in this case, and there was an air of reality to the suggestion that the same person perpetrated both crimes. In light of the Supreme Court’s decision in R. v. Grant , 2015 SCC 9, [2015] 1 S.C.R. 475, the appellant should have been permitted to lead evidence of the Frost homicide. [115] This submission must be rejected. Although the trial judge’s decision was made prior to Grant , that case does not alter the result in this one. The Supreme Court made clear in Grant that when the third-party suspect is unknown, there must be a sufficient factual foundation for a properly instructed jury to give effect to the defence. The Court stated, at para. 45: Where the defence’s theory is that an unknown third party committed the indicted crime, this factual foundation will be established by a sufficient connection between the crime for which the accused is charged and the allegedly similar incident(s), coupled with the impossibility that the accused committed the other offence. [116] If this foundation is established, relevant evidence will be excluded only if its prejudicial effect substantially outweighs its probative value: Grant , at para. 46. [117] The trial judge found no sufficient connection between the Frost and Staples murders to give the unknown suspect defence an air of reality – no evidence to suggest a random killer in either case. The evidence in the Frost murder suggested that he was targeted by persons he knew. [118] The appellant cites a list of similarities between the Staples and Frost murders and invites this court to make a different assessment of the evidence. That is not this court’s function on appeal. It was for the trial judge to consider the evidence and make the determination as to the sufficiency of the evidence. His finding is entitled to deference. [119] Finally, although there was no suggestion by the Crown that the appellant had committed the Frost murder, the trial judge found that he could not be ruled out as a suspect . The appellant argues that Grant cannot be read as establishing a burden on an accused to establish that he did not commit the other murder, but there is no need to address this issue. The bottom line is that the trial judge found no air of reality to the unknown third-party suspect defence. He made no error in doing so and there is no basis to interfere with his finding. The verdict was not unreasonable [120] The appellant’s argument in this regard is brief. The appellant submits that there was a paucity of evidence in this case and no forensic evidence linking him to the homicides. The appellant then reiterates a number of arguments addressed above and submits that the verdict was unreasonable. [121] It is well established that a verdict is unreasonable only if it is one that a properly instructed jury, acting judicially, could not reasonably have rendered: see e.g., R. v. W.H. , 2013 SCC 22, [2013] 2 S.C.R. 180. Where a verdict rests wholly or substantially on circumstantial evidence, appellate courts must ask whether the trier of fact, acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole: R. v. Lights , 2020 ONCA 128, 149 O.R. (3d) 273, at para. 39. As Watt J.A. said in R. v. Chacon-Perez , 2022 ONCA 3, at para. 80: The circumstantial evidence does not have to totally exclude other “conceivable inferences”. Nor is a verdict unreasonable simply because the alternatives did not cause a doubt in the jury’s mind. It remains fundamentally for the trier of fact to decide whether any proposed alternative way of looking at the case was reasonable enough to raise a doubt: Villaroman , at para. 56. [122] The sole issue in this case was the identity of the killer. Although the case against the appellant was circumstantial, the body of circumstantial evidence implicating him in the murders was substantial. I have already discussed this evidence. I summarize it here in broad compass: · strong motive established by extensive evidence of the appellant’s financial difficulties; · Bill’s unwillingness to provide further financial assistance to the appellant; · the appellant was the main heir to Bill’s estate in the event that Rhonda was killed; · the appellant was the last person seen with Rhonda prior to her death; · a large bloodstain found in drive shed #1 was Rhonda’s blood; · the appellant had the opportunity to kill Bill and Rhonda; and · the appellant was in control of Bill’s farm and there was evidence that he had engaged in a cleanup operation subsequent to the killings. [123] As in Chacon-Perez , it was for the jury to determine whether the cumulative effect of this evidence – not simply its individual parts considered in isolation – excluded inferences other than guilt. To be sure, there were important conflicts in the evidence the jury had to resolve, but the jury was entitled to accept the evidence that permitted the inferences the Crown invited them to draw. [124] I conclude that the jury, acting judicially, could have been satisfied that the guilt of the appellant was the only reasonable conclusion available on the evidence considered as a whole. CONCLUSION [125] I would dismiss the appeal. Released: April 1, 2022 “J.M.F.” “Grant Huscroft J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Paul Rouleau J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Andrews v. Pattison, 2022 ONCA 267 DATE: 20220401 DOCKET: C69720 Doherty, Huscroft and Harvison Young JJ.A. BETWEEN Amanda Jane Andrews and Keri Ann Baker, personally and as Estate Trustees of the Estate of Linda Gordon, Willow May Baker, Tobin Bryon Baker and Violet Grace Baker, all by their Litigation Guardian Jeffrey Robert Baker, Sara Nicole Andrews and Emily Lyn Andrews Plaintiffs (Appellants) and Dr. Leslie Pattison Defendant (Respondent) Bronwyn M. Martin, B. Robin Moodie and Joni Dobson, for the appellants Andrea H. Plumb and John A. M. Petrella, for the respondent Heard: March 28, 2021 by video conference On appeal from the judgment of Justice John R. McCarthy of the Superior Court of Justice, dated July 5, 2021, with reasons at 2021 ONSC 4757. REASONS FOR DECISION [1] The appellants appeal from a summary judgment dismissing their action on the basis that their claim was statute barred. The action arose from allegations of medical malpractice. The circumstances may be briefly summarized. Ms. Linda Gorton was diagnosed with terminal lung cancer in late spring 2013, and unfortunately died in April 2014. She had received medical attention and treatment from the respondent doctor between 2008 and 2013, having complained of shortness of breath and chest pain. The respondent ordered a chest x-ray late in 2008 but discovered no anomalies. No further chest x-rays were ordered until May 2013. It was a result of that x-ray that the cancer was diagnosed. The appellants issued their statement of claim on April 11, 2016. [2] The appeal rests on the argument that the motion judge erred in conducting his analysis under section 5(1)(a) of the Limitations Act, 2002 , S.O. 2002, c. 24, Sched. B, rather than s. 5(1)(b). Section 5(1)(b) addresses discoverability, i.e., when a person “ought” to have known than an action could lie. Section 5(1)(a) addresses actual knowledge. [3] The appellants submit that the limitation period did not begin to run until they received expert reports on the standard of care and causation in August and December 2015 respectively.  The appellants also submit that the motion judge fell into palpable and overriding error in finding that the deceased and her family had actual knowledge of the facts upon which the allegations of negligence could be based as early as May 30, 2013, the date of the deceased’s diagnosis, and no later than February 6,2014 when they met with a medical malpractice lawyer. At that time, the lawyers explained the factor necessary to establish a breach of a standard of care and causation.  The plaintiffs subsequently ordered expert reports on the standard of care and causation which were received in August and December 2015 respectively.  Both reports supported the appellants’ position that they had a viable cause of action. [4] We do not agree with the appellants’ submission that the limitation period did not begin to run until they had received the expert reports. [5] The parties agree on the test to be applied. As set out by the Supreme Court of Canada at para. 48 of Grant Thornton LLP v. New Brunswick , 2021 SCC 31, 461 D.L.R. (4th) 613, “a claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts on which a plausible inference of liability on the defendant’s part can be drawn.” A plausible inference lies along a spectrum, ranging from mere suspicion to certainty: at para. 46.  The parties also agree that the determination of where a particular case falls on this spectrum is a fact-based inquiry: Lawless v. Anderson , 2011 ONCA 102, 276 O.A.C. 75, at para. 23. [6] The appellants argue that the trial judge fell into palpable and overriding error in applying the test to these facts, particularly in failing to find that the receipt of expert reports was necessary to the appellants having sufficient material facts to satisfy the “plausible inference” that they had a potential negligence claim. [7] We disagree. The motion judge set out the evidence before him upon which he based his conclusion. The material facts upon which he relied include the undisputed facts that: · the deceased had been under the defendant’s care throughout the entire period between 2008 and 2013, during which she had complained repeatedly about shortness of breath, but the defendant had not ordered a chest x-ray between 2009 and May, 2013; · this x-ray lead immediately to the biopsy which resulted in the diagnosis of advanced, terminal lung cancer shortly thereafter; · the deceased and her family were immediately concerned about the fact that a chest x-ray had not been previously ordered and whether an earlier x-ray might have led to a different outcome; · after obtaining complete medical records, by the fall of 2013, they sought legal advice almost immediately, and through to her death in April 2014, the deceased indicated to her family that she wished to pursue the matter; and · the expert reports on standard of care and causation, received in August and December,2015, did not disclose any additional material facts. [8] The motion judge specifically addressed and rejected the appellant’s argument that the potential negligence claim was not discoverable until the receipt of the expert reports. In particular, he noted that the determination of when a potential plaintiff has sufficient material facts is not to be conflated with the question of the discovery of the merits of the potential action, stating that “the Act does not distinguish between meritorious and non-meritorious claims”.  This was a fact-based inquiry as the motion judge recognized in citing paras. 22-23 of Lawless . [9] We see no reason to interfere with the motion judge’s findings that the latest date upon which the action was discoverable was the date of the meeting with the medical malpractice lawyer on February 6, 2014 and was therefore out of time when the claim was issued on April 11, 2016. [10] We also reject the appellant’s argument that they did not have knowledge, actual or otherwise, of the potential claim in May 2013 as the respondent had told them that an earlier x-ray would not have affected the prognosis. The motion judge found that the deceased and her family intended to pursue the matter immediately following the deceased’s diagnosis until the time of her death. Accordingly, the appellants did not rely on the respondent’s representations. Further, the appellants’ point on this issue does not address the finding that in any event the appellants had actual knowledge no later than February 6, 2014. The constructive knowledge in s. 5(1)(b) can have no application to this case: Dass v. Kay , 2021 ONCA 565, at para. 54. [11] The appeal is dismissed.  Costs of this appeal are payable by the appellants to the respondent in the amount, as agreed, of $15,000 within 30 days. “Doherty J.A.” “Grant Huscroft J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Atwima, 2022 ONCA 268 DATE: 20220401 DOCKET: C67342, C69515, C67344, C68039, C67336, C69507, C67343 & C69506 Fairburn A.C.J.O., Miller and George JJ.A. DOCKET: C67342 & C69515 BETWEEN Her Majesty the Queen Appellant/ Respondent by way of cross-appeal and Samuel Atwima Respondent/ Appellant by way of cross-appeal DOCKET: C67343 & C69506 AND BETWEEN Her Majesty the Queen Appellant/ Respondent by way of cross-appeal and Triston Johnson Respondent/ Appellant by way of cross-appeal DOCKET: C67344 & C68039 AND BETWEEN Her Majesty the Queen Appellant/ Respondent by way of cross-appeal and Kevin Okrah Respondent/ Appellant by way of cross-appeal DOCKET: C67336 & C69507 AND BETWEEN Her Majesty the Queen Appellant/ Respondent by way of cross-appeal and David Ratnam Respondent/ Appellant by way of cross-appeal Roger Pinnock and Erica Whitford, for the appellant/respondent by way of cross-appeal Joelle Klein, for the respondent/appellant by way of cross-appeal Samuel Atwima Andrew Stastny, for the respondent/appellant by way of cross-appeal Triston Johnson Faisal Mirza and Melody Izadi, for the respondent/appellant by way of cross-appeal Kevin Okrah Shedrack Agbakwa and Grant Purves, for the respondent/appellant by way of cross-appeal David Ratnam Heard: February 16 and March 3, 2022 by video conference On appeal from the acquittals entered by Justice Sharon Lavine of the Superior Court of Justice, sitting with a jury, on July 29, 2019 and July 30, 2019 (C67342, C67343, C67344, & C67336). On appeal from the stay entered by Justice Sharon Lavine of the Superior Court of Justice, sitting with a jury, on July 23, 2019 (C67336). On appeal from the convictions entered by Justice Sharon Lavine of the Superior Court of Justice, sitting with a jury, on August 16, 2019 (C69515, C69506, C68039, & C69507). Fairburn A.C.J.O.: I. OVERVIEW [1] On March 13, 2017, four masked men attempted to enter a jewellery store. They were unsuccessful. Thirty minutes later, four masked men, dressed in the same attire as those at the first jewellery store, gained entry to and robbed a second jewellery store close by the first one. The next day, four masked men robbed a third jewellery store, not far from the first two stores. Each incident was caught on video. The getaway car was also caught on video at the second and third stores. [2] About 90 minutes following the final robbery, police located the getaway car and a high-speed police chase ensued. When the car finally came to rest, Mr. Ratnam was removed from the driver’s seat, Mr. Johnson from the front passenger’s seat, and Mr. Atwima and Mr. Okrah from the back. There was also a fifth person in the back. He was separately tried as a young offender. [3] The four adults were tried by judge and jury in the Superior Court of Justice. The indictment contained ten counts in total, including a count of attempt to commit robbery, accompanied by a count of disguise with intent to commit an indictable offence. The indictment also contained two counts of robbery, each accompanied by counts of disguise with intent to commit an indictable offence and use of an imitation firearm while committing an indictable offence. Finally, the indictment contained one count of aggravated assault and one count of failing to stop. All four accused faced each count except the fail to stop. Only Mr. Ratnam, who was in the driver’s seat of the getaway car, was charged with that offence. [4] The jury started hearing evidence on June 20, 2019. About four weeks later, the Crown closed its case and the jury was sent home so the trial judge could hear two applications: (1) the Crown applied to have similar act evidence admitted across all counts to prove identity; and (2) Mr. Ratnam, on the basis of lost evidence, applied for a stay of proceedings in relation to the count of failing to stop. [5] The trial Crown’s similar act application was allowed only in part, leaving the Crown unable to prove identity on multiple counts. This gave rise to applications for directed verdicts of acquittal in relation to many counts. Those applications were successful, and acquittals were entered on multiple counts. In addition, the fail to stop count was stayed. [6] Almost a month after the Crown’s case had closed, the jury was recalled to decide the case on what remained of the indictment. The jury returned guilty verdicts on almost all counts. A chart containing all the counts and verdicts is included at Appendix “A” to these reasons. [7] The Crown appeals from the directed verdicts of acquittal on the basis that the trial judge erred in law when she excluded similar act evidence across counts to prove identity. In particular, the Crown contends that the trial judge’s reasons on the similar act application are insufficient. The Crown also appeals from the stay of proceedings in relation to the count involving the fail to stop. [8] Mr. Ratnam, Mr. Johnson, Mr. Atwima and Mr. Okrah (collectively “the respondents”) each bring a cross-appeal, raising five issues in total. Those appeals are directed at the convictions. [9] For the reasons that follow, I would grant the Crown appeal and dismiss the cross-appeals. II. BACKGROUND [10] On March 13, 2017, in broad daylight, four masked men attempted to gain access to Graziella Fine Jewellery in Ajax, Ontario. The door was locked, and an employee refused to open it. The men eventually left when they could not gain access to the store. Everything was caught on video. One of the men was carrying a red Adidas bag. The men were wearing: § Man One: a black hoodie with white stripes and white logo § Man Two: a light grey jacket with three stripes on the sleeves § Man Three: black clothing § Man Four: black clothing [11] Thirty minutes later, four masked men approached the door of Galbraith Jewellers, which is located very near Graziella’s. Again, the men were caught on video. Again, one of the men was carrying a red Adidas bag. Again, the men were wearing: § Man One: a black hoodie with white stripes and white logo § Man Two: a light grey jacket with three stripes on the sleeves § Man Three:  black clothing § Man Four: black clothing [12] The difference this time was that the men succeeded in gaining entry to the jewellery store. Once inside, they brandished two guns. The men dominated the employees and customers, two of whom testified at trial about feeling what they believed to be guns on their backs when they were made to lie on the floor. One of the masked men used a hammer with white tape to smash the jewellery cases. Another placed the jewellery in a black Adidas backpack. Then they left. [13] A small blue car was waiting for the men, with a driver behind the wheel. This was all caught on video. They made good their escape. [14] The next day, again in broad daylight, four masked men were again caught on video, this time gaining entry to Valdi’s Jewellery Shop in Oshawa, Ontario. Valdi’s was a short drive from the other two jewellery stores. Again, there were two guns. Again, the store employee was dominated. Again, one of the men used a hammer with white tape to smash the jewellery cases. Again, one of the men placed the jewellery in a black Adidas backpack. Again, a small blue car was waiting for them with a driver behind the wheel. Again, they made good their escape, but this time it was not for long. [15] The only significant difference between the two robberies was that an employee at the second jewellery store was badly assaulted by the masked men. He sustained multiple lacerations to his head and broken teeth. [16] Not even 90 minutes after the second robbery, a small blue car was located close to the scene. The police ascertained its location by pinging Mr. Ratnam’s cellular phone. Those pings were sent out by the police after they discovered that Mr. Ratnam had rented a small blue car the previous day, prior to the attempted robbery. A Hertz Rental Record was filed in evidence, establishing that Mr. Ratnam rented the small blue vehicle under his name. [17] A high-speed police chase ensued, with a police vehicle being struck at one point by the blue vehicle and a police vehicle striking a civilian vehicle. Eventually, the police brought the blue vehicle to rest on Highway 401. Police removed the respondents from the car. Mr. Ratnam, who had been driving the vehicle, had an imitation firearm in his pocket. [18] Some of the items found in the vehicle included: (1)     an imitation firearm on the backseat; (2)     jewellery and other items from both robberies; (3)     price tags, receipts and boxes from the jewellery shops; (4)     a black Adidas backpack; (5)     shoes containing glass shards; (6)     a hammer with white tape; (7)     clothing, some of which was similar to the clothing seen on the perpetrators the day before at the scene of the attempted robbery and the first robbery; and (8)     blood from the victim of aggravated assault, including on a grey Adidas jacket with three stripes on the sleeves. [19] When many of those items, such as the hammer, clothing, and firearms, were compared with the images captured on video at the scenes of the crimes, the resemblance was striking in nature. [20] Mr. Atwima’s phone also contained some highly probative circumstantial evidence, connecting him to each crime scene, including the scene of the attempted robbery. For instance, on March 13 and 14, 2017, the days of the crimes, Mr. Atwima’s phone search history included: (1) “jewelry store in oshawa”; (2) “jewelry in oshawa”; (3) “small ajax jewelry”; (4) “Valdi’s Jewellery Shop Oshawa, ON”; (5) “Ron Ga braith Jewellers Ajax, ON”; and (6) “oshawa jewlery”. [21] This was a powerful Crown case. III. CROWN APPEAL (a) Overview [22] As previously noted, the Crown appeal rests on two broad grounds. The Crown argues that the trial judge erred in law when she: (1) excluded similar act evidence across counts to prove identity; and (2) stayed the proceedings in relation to the count involving fail to stop. I agree that the trial judge committed both errors. [23] I will start with the ground of appeal involving the similar act evidence. (b) The Error in Relation to the Similar Act Evidence (i) Overview [24] Trial judges face inherent challenges when dealing with multi-accused, multi-count indictments involving Crown applications to admit similar act evidence across counts. Owing to the nature of these applications, typically brought at the end of the Crown’s case, and outside the presence of the jury, there is often a good deal of pressure placed upon trial judges to apply complex legal principles to lengthy factual records, while being mindful not to keep the jury waiting for too long. [25] That was the challenging situation the trial judge faced in this case. The record demonstrates that as she worked her way through the issues she was keenly alive to the fact that the jury was waiting and made efforts to move the matter forward as expeditiously as possible. Despite those best efforts, as will be seen, the application developed a life of its own, and ultimately ended in error. (ii) The Parties’ Positions at Trial [26] Immediately after the prosecution’s case closed, the jury was sent home, the trial Crown laid out its arguments for why the evidence on each count should be admissible on the other counts to prove the identity of each accused. [27] The trial Crown’s primary position was based upon a theory of group similar act: that the crimes were strikingly similar in nature and that each was committed by the same group of men, that the accused were those men and that there was evidence specifically linking each accused to the group at the relevant time. [28] The trial Crown’s secondary position was that, even if the trial judge was not satisfied that the group was constant, the similar act evidence was still admissible across counts to prove the respondents’ identity in each crime. This secondary position was rooted in the submission that the crimes were all strikingly similar in nature and, with the exception of Mr. Okrah, there was independent evidence linking each of the accused to each of those crimes. In relation to Mr. Okrah, and for reasons that are not entirely clear on this record, the trial Crown seems to have been of the view that there was only independent evidence linking Mr. Okrah to the last robbery scene. [1] [29] The respondents took different positions in response to the trial Crown’s similar act application. [30] Mr. Atwima conceded the entire application, acknowledging that the similar act evidence could apply across counts to prove his identity. [2] [31] Mr. Johnson conceded the similar act application as it related to the robberies, but not the attempted robbery. Therefore, he acknowledged that the jury could properly receive a similar act instruction in relation to the Galbraith and Valdi’s robberies (and the associated counts connected to those robberies). [32] Mr. Okrah altogether resisted the cross-count application of the evidence. While he acknowledged the highly similar nature of the crimes, he maintained that there was no evidence linking him to any of those crimes. His presence in the getaway car shortly after the second robbery was said to be just that: presence in a car. [33] Mr. Ratnam also resisted the cross-count application of the evidence. While he was prepared to accept that he was linked to the final robbery by virtue of his status as the driver of the getaway car, he maintained that there was no other evidence linking him to any of the other crimes. (iii) The Law of Similar Act Evidence to Establish Identity in the Group Context [34] Before reviewing the rulings appealed from, it is helpful to first summarize the legal principles underpinning the trial Crown’s application. These legal principles provide some necessary context for the impugned rulings, which I will review in the following section of these reasons. [35] I start by noting that the trial Crown was not seeking to admit similar act evidence that was extraneous to the indictment into the trial but was seeking to admit similar act evidence across counts on the indictment. Therefore, the entire subject of the similar act application was already intrinsic to the indictment and included evidence that the jury had already heard. [36] As similar act evidence is presumptively inadmissible, even across counts, the sole question to be resolved at the application was whether the jury would be required to determine the issue of identity on each count by considering only the evidence admitted on that count (the presumptive position) or whether the jury would be entitled to determine the issue of identity on each count by considering all of the evidence heard at trial (the similar act position): see R. v. Poulin , 2017 ONCA 175, 346 C.C.C. (3d) 191, at para. 40. [37] The onus rests on the Crown to establish the admissibility of similar act evidence by satisfying the trial judge that its probative value outweighs its potential prejudicial effect in the context of the particular case: see R. v. Handy , 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55. The ultimate weighing of probative value and prejudicial effect requires an initial calibration of both. [38] The probative value of similar act evidence springs from the objective improbability of coincidence: Handy , at paras. 47-48. In contrast, the prejudicial effect of similar act evidence springs from the moral and reasoning prejudice that may result from the admission of the evidence. Moral prejudice is rooted in concerns over whether the trier of fact will decide the case based upon the perceived bad character of the accused. Reasoning prejudice is rooted in concerns over things like the potential injection of delay and complexity into a trial, as well as juror distraction and confusion: see R. v. Shearing , 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 68. See also: Handy , at paras. 31, 36; R. v. Lo , 2020 ONCA 622, 152 O.R. (3d) 609, at paras. 110-11. Of course, many of these concerns for prejudice will be attenuated, like in this case, where the application to admit similar act evidence relates to the cross-count use of evidence already elicited at trial: see R. v. Norris , 2020 ONCA 847, 398 C.C.C. (3d) 1, at para. 24; R. v. J.M. , 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 87. [39] Coming back to probative value, where the issue upon which the evidence is proffered is identity, such as this case, the demand for similarity between acts increases. The bar for similarity in the identity context is often referred to as a “high degree of similarity” or “strikingly similar”: R. v. Arp , [1998] 3 S.C.R. 339, at para. 45. See also: R. v. Perrier , 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 20; R. v. Durant , 2019 ONCA 74, 144 O.R. (3d) 465, at para. 98. The reason for the heightened bar for similarity relates to the driver of cogency in relation to similar act evidence used to establish identity: “the improbability that two persons would display the same configuration of matching characteristics in committing a crime”: Perrier , at para. 19. See also Handy , at para. 78. [40] At the first stage of the similar act analysis involving questions of identity, the similarity stage, the court looks to the acts and asks how similar they are. From time-to-time, acts will contain signatures or trademarks, such that their similarity will be striking: Arp , at para. 45. See e.g., R. v. Jesse , 2012 SCC 21, [2012] 1 S.C.R. 716, at paras. 5, 10, 12 and 24. More frequently, though, the requisite degree of similarity will result from an accumulation of commonalities, none of which will be sufficiently significant to constitute a signature or trademark. [41] In assessing whether the evidence has that cumulative effect, we take guidance from Handy , at para. 82, where Binnie J. provided the following list of helpful considerations: (a) the “proximity in time of the similar acts”; (b) the “extent to which the acts are similar in detail”; (c) the number of occurrences involved; (d) the “circumstances surrounding or relating to the similar acts”; (e) the distinctive features involved in those acts; (f) whether there were any intervening events; and (g) “any other factor which would tend to support or rebut the underlying unity of the similar acts.” [42] Where the evidence of similarity points towards the acts having been likely committed by the same person, the trial judge must go on to the second stage and consider whether there is evidence linking the accused to the similar acts: Perrier , at paras. 23-24; R. v. Woodcock (2003) , 177 C.C.C. (3d) 346 (Ont. C.A.), at para. 81; and Arp , at paras. 54-56. There need only be “some evidence” linking the accused to those acts: R. v. Sweitzer , [1982] 1 S.C.R. 949, at p. 954; Arp , at paras. 56-57; and Perrier , at para. 24. The “some evidence” threshold requires more than mere opportunity or possibility but does not demand more than “some evidence” upon which it can be said that the acts were in fact the acts of the accused: Sweitzer , at p. 954, cited with approval in Arp , at paras. 54, 56-57, and in Perrier , at paras. 23-24. See also Durant , at para. 91. This has been characterized as a “low evidentiary threshold” at the admissibility stage: Jesse , at para. 63. [43] Such are the legal principles underpinning the trial Crown’s secondary position: that there was a high degree of similarity between the crimes and that, except for Mr. Okrah, there was some evidence linking each of the respondents to each of those crimes. [44] As for the trial Crown’s primary position, it rested on a theory of group similar act, the legal principles for which are set out below. [45] Crimes committed by groups can present special challenges in the context of similar act evidence applications aimed at proving the identity of an individual accused. To use group similar act evidence to establish individual identity (as opposed to group identity), the Crown must first establish that it is “highly improbable” that more than one group “employing the same modus operandi committed the crimes at issue”: Perrier , at para. 26. The same factors outlined in Handy , at para. 82, will be used to determine that degree of improbability. [46] Once the requisite degree of improbability has been established, then the Crown must go on to establish a link between the individual and the crimes of the group. This is because it is individuals, not groups, who ultimately bear the responsibility for crimes. Therefore, even where it is highly improbable that different groups committed the crimes, “ the ‘signature’ of the offence is the ‘signature’ of the group only”: Perrier , at para. 25. [47] Accordingly, where group similar act evidence will be used to identify a particular accused, linkage evidence remains critical to the admissibility analysis. The means by which to identify that link, though, will fluctuate depending on whether the group’s membership remains static across the acts or whether the group’s membership rotates across the acts. [48] Justice Major in Perrier , at para. 25, addressed both scenarios, first dealing with the situation where the group has static membership and then dealing with the situation where the group membership rotates: If the Crown can prove that membership in the gang never changed and that all members were present and participating in all offences, then the signature of the group will be the signature of the accused such that a similar fact instruction will likely be justified (provided that the overall probative value of the evidence outweighs its prejudice). However, where group membership was not constant , the fact that an individual may have been a member of the gang on one occasion proves nothing more than a mere possibility that he was a member on another occasion.  In this case the evidence of group activity must be accompanied by evidence linking the individual to each of the group’s offences for which he has been charged , either by virtue of the distinctiveness of his role or by other independent evidence. [Emphasis added.] Recall that in this case, it was the trial Crown’s primary position that, to adopt the words of Perrier , at para. 25: “membership in the gang never changed and that all members were present and participating in all offences”. [49] Perrier goes on to describe in more detail the means by which to prove the link between the individual accused and the group. At para. 32(1), Major J. addressed how to establish that link in the context of a group with static membership: If the Crown can prove that group membership never changed , that the gang always remained intact and never committed the criminal acts unless all were present, and that the accused was a member of the group, and present, at the relevant time, that will be sufficient to connect the individual to the crimes of the group, and the evidence will usually have sufficient probative value to be admitted as similar fact.  [Emphasis added.] [50] Where the Crown cannot prove “that group membership never changed” and “that the gang always remained intact and never committed the criminal acts unless all were present”, then in accordance with Perrier , at para. 32(2), the following must be established: Where membership in the group is not constant then an additional “link” or “connection” must be made in order to use evidence of group activity against a particular accused.  This additional requirement will be satisfied where (a) the accused’s role was sufficiently distinctive that no other member of the group or person could have performed it; thus he necessarily must have participated in all offences; or (b) there is independent evidence linking the accused to each crime. [Emphasis added.] (iv) The Cascading Rulings and Clarifications [51] By way of recap, based on the legal principles set out above, the trial Crown argued first that the similar act evidence should be admitted across counts on the basis of group similar act: the crimes were strikingly similar in nature, each was committed by the same group of men, the accused were those men, and there was evidence specifically linking each accused to the group at the relevant time: Perrier , at paras. 25, 32(1). In the event that the trial judge, as the gatekeeper of this evidence, was not satisfied that “group membership never changed”, then, aside from Mr. Okrah, there was an “additional link” or “connection” in the sense of “independent evidence linking the accused to each crime”: Perrier , at paras. 25, 32(2). [52] After the similar act evidence ruling went under reserve, the jury started expressing concerns over delay. Two jurors had to be relieved of their duties. Accordingly, pressure was mounting to move the matter along. Against that backdrop, the trial judge gave what I will describe as the “initial ruling”, prefacing the ruling with the observation that she was reserving “the right to provide fuller reasons.” The full extent of the initial ruling follows: The Crown seeks the admission of the evidence in each count in respect of the other counts on the indictment in relation to each of the individual accused on the basis of group identity. I am not satisfied that the Crown has established constancy of the group. I am not satisfied that Mr. Okrah is sufficiently connected to both robberies. In this context, an admission of evidence on a group identity basis would cause potential prejudice to Mr. Okrah and undue complexity. The application, as brought on a group identity basis, is dismissed. [53] The trial Crown sought immediate clarification as to whether this ruling related only to Mr. Okrah “or all persons”. A good deal of back and forth ensued. Eventually, on the same day as the initial ruling, and despite the confusion swirling around the breadth of the ruling and the fact that applications for directed verdicts of acquittal were yet to be heard, all agreed that the jury could be recalled so that the defence case could be closed. Each accused elected to call no defence. [54] The jury was again sent home and the dialogue about the reach of the similar act ruling continued. This resulted in the trial judge providing what I will refer to as the “first clarification”: When I stated I am not satisfied the Crown has established the constancy of the group, I am not satisfied that Mr. Okrah is sufficiently connected to both robberies. What should be clear, is that by saying [the group has not been established], I was then, as counsel had all submitted during the application, referring to the alternate option that two independent evidence linking the accused to both robberies was then required and as I had understood, [the Crown] had conceded that there was only one connection for Mr. Okrah. Mr. Okrah was therefore not sufficiently connected to both robberies and therefore the required connectivity was not made out. I did not refer to Mr. Atwima or Mr. Johnson, because it was conceded by them that similar act evidence was admissible against them and it is implicit in my ruling, having not mentioned Mr. Ratnam, that I was satisfied that the connectivity requirement had been made out for Mr. Ratnam . [Emphasis added.] [55] On my reading, the trial judge’s first clarification seems to suggest that, while the Crown’s primary position had failed, the Crown’s secondary position had succeeded. Therefore, the similar act evidence would be admissible against all but Mr. Okrah in relation to both robberies and the attempted robbery. [56] Requests for further clarification continued. This resulted in what I will refer to as the “second clarification”, where the trial judge agreed with the trial Crown’s stated understanding of the scope of the ruling: “I heard Your Honour’s ruling to be that it’s admissible on all matters in relation to Mr. Atwima, Johnson, and Ratnam.” The trial judge responded affirmatively. [57] Eventually court adjourned for the weekend. Requests for clarification continued on the Monday. After much back-and-forth, a brief “final ruling” was given: Having considered the submissions of counsel, I am not satisfied that in the context of this case, with different jointly charged accused on the two robbery charges, that similar fact evidence can be admitted on a group identity basis without undue complexity and the prejudicial effect outweighing the probative value. The similar fact evidence with respect to Mr. Johnson and Mr. Atwima will be admitted. [58] Again, counsel sought clarification. I will refer to what came of those requests as the “final clarifications.” Counsel to Mr. Johnson asked whether the final ruling related only to the robberies and not the attempted robbery. The trial judge confirmed the similar act would only apply across robbery counts and only in relation to Mr. Johnson and Mr. Atwima. [59] Mr. Ratnam’s counsel asked for clarification as to where Mr. Ratnam stood on the question of admissibility. The trial judge responded that the evidence was only admissible across the robbery counts as it related to Mr. Johnson and Mr. Atwima. The trial judge’s comment therefore implied that the Crown’s similar act application, as it related to Mr. Ratnam, was dismissed. At least all parties proceeded on that understanding. [60] As for Mr. Okrah, it was clear from the initial ruling that the trial Crown’s application was dismissed on the basis that the trial judge was not satisfied that the trial Crown had established that the group membership remained constant. [61] Therefore, as between the initial ruling and the final clarifications: (1)     things remained static in relation to Mr. Okrah, with the entire similar act application dismissed; (2)     between the first and final clarifications, the trial Crown’s application to admit similar act evidence across all counts in relation to Mr. Johnson and Mr. Atwima went from being granted across all counts to being dismissed as it related to the counts involving the attempted robbery; and (3)     between the second clarification and the final clarifications, the trial Crown’s application to admit similar act evidence across all counts in relation to Mr. Ratnam went from being granted across all counts to being dismissed across all counts. [62] Subsequent reasons were never provided to explain how the trial judge reached these results. [63] Once the final clarifications were given, applications for directed verdicts of acquittal flowed. There is no need to get into the complexity of how those applications unfolded. What is important is that, at the end of the day, directed verdicts of acquittal were entered for each accused in relation to the count of attempted robbery and its related count of wearing a disguise. Mr. Okrah also obtained directed verdicts of acquittal on all counts arising from the Galbraith robbery on March 13, 2017 (the first robbery). (v) The Parties’ Positions on Appeal [64] The Crown’s fundamental objection on appeal is that the similar act application was resolved in a “perfunctory” way, without providing any insight into how the decision was reached. In short, the Crown contends that the rulings and clarifications fall well short of providing any degree of reasoning as to why the evidence was excluded, evidence that the Crown maintains called out for admission across all counts. [65] While acknowledging that the reasons are somewhat thin, the respondents maintain that the rulings and clarifications must be read together, in light of the record as a whole and the parties’ positions taken at the voir dire . When considered in their proper context, the reasons are said to reveal a chain of reasoning that is sufficient to explain why the trial Crown’s application largely failed at trial. It is said that we should defer to that result. (vi) The Failure to Provide Reasons [66] Trial judges have an obligation to provide reasons for their decisions. At their core, reasons provide a level of public accountability for all judicial decisions, an accountability that is fundamental to maintaining the rule of law. Reasons serve important purposes, including: justifying the result, explaining to the public how the result was achieved, telling the party that lost why they lost, allowing for informed consideration as to whether an appeal should be taken, and if an appeal is taken, allowing for effective appellate review: see R. v . Sheppard , 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55; R. v. R.E.M. , 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 11, 35. [67] Of course, when it comes to evidentiary rulings, the failure to provide reasons will not always be 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; R. v. Barrett , [1995] 1 S.C.R. 752, at para. 1. [68] Although the standard for reasons in evidentiary rulings is more relaxed, an overarching duty of procedural fairness nevertheless remains. The subject matter of a ruling will necessarily inform the determination of whether procedural fairness requires that more detailed reasons, as opposed to bottom line rulings, be given: Tsekouras , at para. 156. Where an evidentiary ruling is pivotal to one of the parties’ positions, and especially where it carries the weight of that party’s case, the duty of procedural fairness is heightened and there will sometimes be a requirement for reasons that are more akin to those we expect in the context of a judgment: see R. v. Woodard , 2009 MBCA 42, 245 C.C.C. (3d) 552, at para. 25. [69] Undoubtedly, the trial Crown’s similar act evidence application carried the whole weight of the prosecution’s case in the context of the attempted robbery. And, based upon the trial Crown’s concession at trial, it carried the weight of the prosecution’s case as it related to Mr. Okrah’s alleged involvement in the Galbraith robbery. To understand the centrality of the similar act evidence to the prosecution’s case one need look no further than the fact that the directed verdicts of acquittal were entered as a result of the similar act evidence rulings and clarifications. Accordingly, the duty of procedural fairness required that at least some reasoning be provided for excluding the similar act evidence. [70] That duty was not met. There were formidable factual underpinnings to the similar act application that suggested the need in this case for an explanation. A proper application of the facts to the Crown’s primary and, indeed, secondary positions, pointed powerfully towards the admission of the similar act evidence, evidence that was already intrinsic to the indictment, across all counts to prove identity. [71] Even when all of the rulings and clarifications are considered together, the trial judge never explained how she reached the conclusions she did. At the end of the reasons and clarifications, o ne is left wondering about the most important question: why? Why exactly was the evidence of similar acts excluded? Where did the Crown’s argument fall short? Why was the evidence of linkage judged to be insufficient? [72] This was not a marginal Crown application. The Crown presented a formidable case for the admission of similar act evidence across counts to establish identity. The striking similarity between the crimes and the static nature of the membership of the group that committed those crimes springs from the videos of each crime, still-shots taken, and witness accounts. [73] Starting with the actual robberies: they were proximate in time, similar in detail, and contained distinctive features. The victim stores were geographically proximate to each other. They were robbed less than 24 hours apart. They were both small business operations. Video footage shows that the four masked men played similar roles once inside of those jewellery stores. The victims were dominated in a similar fashion. Two of the men wielded firearms. One yielded a hammer with white tape. The hammer was used to break the jewellery cases and the jewellery was placed into a black Adidas backpack. A fifth person, the driver, waited nearby in the same small blue getaway car. To reiterate, all of this was caught on videotape. [74] Regarding the attempted robbery, like the robberies, it also involved a small business operation. The scene of the attempted robbery was mere minutes away by car from the scene of the first robbery. The first and second crimes were committed 30 minutes apart, and all three crimes were committed in broad daylight. [75] Further, like the robberies, the attempted robbery involved four masked men. Those men were of similar builds to the men seen in the other videos captured at the other crime scenes. Importantly, the men, who robbed Galbraith’s only 30 minutes after the attempted robbery of Graziella’s, were wearing exactly the same clothing: § Man One:    a black hoodie with white stripes and white logo § Man Two:    a light grey jacket with three stripes on the sleeves § Man Three: black clothing § Man Four:   black clothing [76] In summary, there was a powerful argument to be made that there was a striking similarity between the two actual robberies and that they were committed by the same four men. There was also a powerful argument that the four masked men who walked into and robbed Galbraith’s (the same men who robbed Valdi’s the next day) were exactly the same men who attempted to rob the first jewellery store. In other words, there was a powerful Crown argument that each crime was committed by the same group of men, that the accused were those men, and that the respondents, by virtue of their presence in the getaway car after the Valdi’s robbery, a car which contained items associated to the crimes, were linked to the group at the relevant time. [77] As for the trial Crown’s secondary position, requiring “some evidence” linking the accused to each of the similar acts, describing it as a strong position would not be an overstatement. Merely considering the fact that they were found together in the getaway car 90 minutes after the final robbery ─ a car which contained two identical looking firearms to those used at the robberies, jewellery from the robberies, DNA from the victim of aggravated assault, and clothing from the attempted robbery ─ created multiple, powerful links. Of course, there was also the evidence that Mr. Ratnam rented the getaway vehicle prior to the attempted robbery, and Mr. Atwima conducted internet searches connected to the locations of the crimes. [78] In the face of the evidentiary record, it was incumbent on the trial judge to address the degree of similarity between the crimes. It was also incumbent on the trial judge to explain how she concluded that the Crown had failed to establish the “constancy of the group” and that there was insufficient linkage evidence. [79] The trial judge suggested at one point that it would cause “undue complexity” to allow the similar act evidence on a group identity basis to apply across counts, but it is unclear why that would be so. While increasing the complexity of the deliberative process is quite properly something to be weighed in determining whether similar act evidence should be admitted, the jury was already going to have to face this complexity since the trial judge permitted the evidence to apply for purposes of the robbery counts faced by Mr. Johnson and Mr. Atwima. [80] In the circumstances, it was necessary for the trial judge to explain how she arrived at the result in this similar act application. The failure to have done so constitutes an error of law. (vii) The Remedy [81] This leaves the question of remedy. It is easier to understand this section of these reasons by reference to Appendix “A” to these reasons. [82] There is no dispute that the directed verdicts of acquittal were entered as a result of the similar act rulings. Accordingly, the Crown’s position is that a new trial must be ordered on each count where a directed verdict of acquittal was entered, as well as the two counts where the jury brought back verdicts of not guilty. [83] The respondents argue that if a new trial is ordered, it should be a retrial of everything, including the convictions. They take this position on the basis that if the trial judge is found to have committed a reversible error on the similar act application, and a new trial is ordered in relation to the counts involving directed verdicts of acquittal, then the error must be equally fatal to the convictions. [3] [84] Counsel to Mr. Okrah argues that this way of approaching the remedy is a fair one. In his submissions, Mr. Okrah argues that things may have unfolded differently had the similar act ruling gone differently and we cannot unring the bell at this stage, so to speak. For example, the decision not to testify may well have changed had the similar act ruling been different. Accordingly, if the counts involving the acquittals are to be retried, so too should the counts involving the convictions since all the results were tainted by the error. [85] Respectfully, I see no basis upon which to set aside the convictions in this case. I say this for a few reasons. [86] First, as for Mr. Atwima, he originally consented to the Crown application and, therefore, to the admission of the similar act evidence across all counts to prove his identity. He later withdrew his consent to admission of the evidence on the attempted robbery count. He ended up with a ruling that excluded the evidence in relation to the attempted robbery. Consequently, the ruling he received was actually more beneficial to him than what he had originally agreed to and precisely in line with his final position at the admissibility voir dire . In these circumstances, I see no basis upon which to set aside his convictions. [87] Second, as for Mr. Johnson, he consented to the admission of the similar act evidence across the robbery counts. Therefore, he ended up with evidence being used in a way that he consented to. In these circumstances, I see no basis upon which to set aside his convictions. [88] Finally, as for Mr. Ratnam and Mr. Okrah, the similar act rulings also gave them exactly what they asked for: exclusion of the similar acts against them. In these circumstances, they cannot now claim that their convictions flowed from an inadequate ruling on similar act evidence. To the contrary, the jury did not consider similar act evidence across counts when finding that they committed the crimes they were found guilty of. In my view, the impugned ruling did nothing more than inure to their benefit. In these circumstances, I see no basis upon which to set aside their convictions. [89] While I accept that in some cases it may be difficult to determine how a trial would have unfolded had rulings been different, in this case such a submission is rooted in speculation. The record in this case undermines the suggestion that the accused may have testified. Early on, counsel to Mr. Okrah, and others, made clear that, regardless of the result of the similar act application ruling, they were, as put by trial counsel to Mr. Okrah, “happy to declare” that the accused would not be testifying or calling any evidence. Accordingly, the similar act rulings and clarifications had no impact on that choice. [90] One last issue on remedy needs to be briefly addressed. In its factum, the Crown asks this court to order a new trial on all counts “impacted by the erroneous rulings.” At the hearing of the appeal, it became clear that this request was meant to cover both the directed verdicts of acquittal and the acquittals decided upon by the jury. [91] As reflected at Appendix “A” to these reasons, the jury returned two verdicts of acquittal. They both involved Mr. Ratnam. Those acquittals are not reflected in the Crown’s Notice of Appeal. Accordingly, I would not set them aside. [92] I would, though, set aside each directed verdict of acquittal and order a new trial on those counts. (c)     The Stay of Proceedings (i) Overview [93] The Crown also appeals from the stay entered on the count of failing to stop, the only count on the indictment that Mr. Ratnam faced alone. As previously reviewed, Mr. Ratnam led the police on a dangerous chase. Before his vehicle finally came to rest on the shoulder of Highway 401, Mr. Ratnam sideswiped a police vehicle and a police vehicle struck a civilian vehicle. [94] For the reasons that follow, I conclude that the trial judge erred in law by finding that the proceedings on this count had to be stayed. (ii) The Parties’ Positions at Trial [95] At the end of the Crown’s case, Mr. Ratnam brought an application to stay the fail to stop count. The application was predicated on lost evidence: photos taken by a police officer at the scene where the getaway car came to rest. [96] During the trial, it emerged that officers from another police service had investigated the circumstances around the chase of the getaway vehicle. At Mr. Ratnam’s request, the trial Crown attempted to obtain photos that appeared to have been taken by an officer of the other police service. The trial Crown was unsuccessful because the phone on which those photos had been taken had been recalled in 2018 and, therefore, the photos no longer existed. [97] While the photos were no longer available for disclosure, the trial Crown was able to obtain the accident collision report prepared by the officer who took the photos. That report included a diagram clearly depicting where the getaway car had come to rest on Highway 401, and where it sat relative to other vehicles near it. The Crown disclosed that report, as well as the police notes. [98] Mr. Ratnam argued that his rights under s. 7 of the Canadian Charter of Rights and Freedoms had been violated as a result of the lost photos, the absence of which were said to adversely impact his ability to make full answer and defence. He argued that he needed the photos to better understand how the getaway vehicle and others had come to a stop on Highway 401, something that would place the defence in a “much more solid position” to challenge the credibility of the police officers who testified about the pursuit. Mr. Ratnam said that no remedy other than a stay of proceedings would suffice to address the prejudice he experienced as a result of the lost photos. [99] While the trial Crown was prepared to concede that the lost photos triggered a s. 7 Charter breach, he maintained that no remedy was required because there was no prejudice arising from the breach. Even if the location of the stopped getaway car was somehow relevant to the fail to stop count, the trial Crown maintained that the diagram contained in the accident collision report was more than adequate to meet the needs of the defence. The trial Crown emphasized that, despite having that diagram in hand when the officers testified during the case for the Crown, Mr. Ratnam had chosen not to cross-examine those officers on that diagram. The failure to do so underscored what little relevance the photos would have had in the trial. (iii) The Ruling Appealed From [100] While reserving the right to “prepare more … complete reasons for [the] ruling”, the trial judge ruled as follows: The Crown acknowledges that there has been a breach of Mr. Ratnam’s Section 7 rights. In determining the appropriate remedy, I would have been inclined to provide an alternate or intermediate remedy, rather than a stay of the charge of evade police, however, at this juncture, and in the very particular circumstances of this case, the only available remedy is a stay of proceedings of the charge of evade police, and that is granted. No subsequent reasons were provided. (iv) The Proceedings Should Not have been Stayed [101] Pursuant to s. 24(1) of the Charter , an accused whose s. 7 rights have been breached because of lost evidence is entitled not to a stay of proceedings but to an “appropriate and just” remedy. Therefore, an accused is not automatically entitled to a stay of proceedings, or any remedy for that matter, simply because relevant evidence has been lost. Whether a remedy should be granted and, if so, what that remedy should be, turns on the question of prejudice caused by the breach: see R. v. La , [1997] 2 S.C.R. 680, at paras. 24-25; R. v. Bero (2000), 151 C.C.C. (3d) 545 (Ont. C.A.), at paras. 42-43; and R. v. Hersi , 2019 ONCA 94, 373 C.C.C. (3d) 229, at paras. 25, 36. [102] Accordingly, standing on its own, the fact that evidence is missing, evidence that “might or might not affect the defence”, is not sufficient to establish that a remedy is owed and certainly not enough to establish that a stay of proceedings is required: see R. v. Bradford (2001), 52 O.R. (3d) 257, at para. 8. [103] Indeed, a stay of proceedings is an extraordinary remedy, one that should be granted only in the “clearest of cases”: see R. v. Carosella , [1997] 1 S.C.R. 80, at para. 52 ; R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 82; La , at paras. 23-25; R. v. Sheng , 2010 ONCA 296, 254 C.C.C. (3d) 153, at para. 44; and Bero , at para. 42 . Those circumstances will arise only where the prejudice to the accused’s right to make full answer and defence cannot be remedied through other means, or where prejudice would be caused to the administration of justice should the prosecution continue. [104] When determining the degree of prejudice caused by the lost evidence, the trial judge must consider all of the other evidence available to the defence to fill the gap: Sheng , at para. 47. [105] Respectfully, there is no indication in the brief reasons of an attempt to determine what prejudice the lost photos caused to Mr. Ratnam’s full answer and defence. The reasons proceed as if a remedy had to be given, and that while an “alternate or intermediate remedy” may have been appropriate, at that “juncture, and in the very particular circumstances of this case”, the only available remedy was a stay of proceedings. This statement leaves a number of questions, including the most significant question: what was the prejudice arising from the lost photos? It was an error in law to fail to address that question. [106] In my view, there was no prejudice here and no remedy was owed. I say this for a few reasons. [107] First, there was nothing in the submissions from the defence that supported the notion of prejudice, other than a bald claim that the photos would put the defence in a “much more solid position”. [108] Second, the defence had the OPP accident collision report that included a clear diagram of where the getaway vehicle had come to rest relative to the other vehicles on the highway. The officer who drew the diagram was the same officer who took the photos of the scene and he testified at trial. In these circumstances, it is difficult to imagine what more the photos could have contributed to the trier of fact’s understanding about where the vehicles came to rest. [109] Third, the fail to stop count rested not on where vehicles came to rest, but on the viva voce evidence of multiple witnesses who testified about Mr. Ratnam’s driving maneuvers. [110] Finally, while the report and diagram had already been disclosed to Mr. Ratnam by the time that multiple officers testified about Mr. Ratnam’s driving maneuvers, counsel did not cross-examine the officers on the content of those documents. The failure to do so highlights the lack of prejudice arising from the lost photos. [111] The trial judge erred in failing to consider prejudice. No remedy was required. I would set aside the stay of proceedings on the count of fail to stop and remit the matter to a new trial. IV.     CROSS-APPEALS [112] The respondents combine to advance five grounds of appeal against conviction. They do so in different combinations and permutations. (a) Severance [113] Mr. Okrah and Mr. Ratnam argue that the trial judge erred when she refused to grant the respondents severance following the directed verdicts of acquittal. Mr. Okrah in particular submits that because he was acquitted of all counts except those related to the final robbery, he fell vulnerable to being found guilty of that series of offences through improper reasoning involving “guilt by association”. He adds that the trial Crown improperly emphasized those associations in the Crown’s closing address. [114] I would not give effect to this ground of appeal. [115] I start by addressing the second point first. Contrary to the submissions made, the trial Crown’s closing did not suggest to the jury that they could convict on the basis of guilt by association. I see no need to review the impugned passages in detail. Suffice to say that they relate to a Crown submission that quite appropriately pointed the jury to the totality of circumstances in which the accused found themselves, caught in the getaway car after the Valdi’s robbery, as circumstantial evidence that they were among the men involved in that robbery. The absence of any objection to the Crown’s closing on this point underscores the lack of impropriety. [116] As for the trial judge’s refusal to grant the severance application, her reasons are solid and legally supported. [117] Applications to sever the trial of accused under s. 591(3)(b) of the Criminal Code , R.S.C., 1985, c. C-46, like applications to sever counts under s. 591(3)(a), call for the exercise of discretion. Severance will be granted only where the “interests of justice” so require: R. v. Moore , 2020 ONCA 827, 153 O.R. (3d) 698, at para. 10. In this context, the interests of justice strive to balance the accused’s right to be tried on the evidence admissible against that accused, while at the same time preserving the societal interest in seeing justice done in a “reasonably efficient and cost-effective manner”: R. v. Last , 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 16. [118] Given the absence of statutory guidelines for granting severance, deference must be afforded to the trial judge’s ruling. Therefore, as long as the trial judge acts “judicially and the ruling does not result in an injustice”, deference is owed: Last , at paras. 14, 21. [119] The trial judge accurately summarized the severance applications. She rejected the suggestion that jury instructions would be insufficient to enable the jury to conduct its task correctly without engaging in improper propensity reasoning. Instead, she found that carefully crafted and clear instructions on prohibited propensity reasoning would suffice. She in fact gave that instruction and no objection was raised as to its content. In my view, the decision to deny severance in this case is owed deference because it was judicially made and did not result in an injustice. (b) Failure to Instruct on Party Liability [120] Mr. Okrah, joined by Mr. Ratnam, objects to the jury charge as it relates to aiding and abetting. [121] Having considered the instructions on aiding and abetting, it is not clear to me what the alleged deficiencies relate to. The instructions were vetted with the respondents during the pre-charge conference. No objections were taken to the main charge nor to the re-charge. Nor were any concerns expressed after the charge was delivered. [122] Mr. Okrah acknowledges that the charge covered the point that mere presence at the place of the crime is insufficient to make out guilt. However, he argues that the charge was deficient in that it failed to make clear what findings were permissible from Mr. Okrah’s presence in the getaway car with the other accused. Again, I will not set out a rather lengthy passage from the charge on this point. Suffice to say that the jury was clearly told that “just being there does not make a person guilty.” [123] To the extent that there is an objection for the first time on appeal about the instruction involving common purpose, I would also note that the jury received a clear instruction in accordance with the specimen charge available. The instruction was also approved of by all counsel. I will not go through the charge in detail. [124] In my view, the path to findings of guilt for Mr. Okrah and Mr. Ratnam was through legally correct jury instructions. (c) Failure to Give a Copy of the Charge to the Jury [125] All of the respondents argue that a written copy of the charge should have been provided to the jury. While they recognize that it is not mandatory to do so, they argue that it should be done in cases where there are multiple co-accused that are differently situated. [126] Whether to provide a written copy of the charge to the jury is a matter of discretion for the trial judge. In some cases, it may well be helpful to the jury to have a copy of the charge while deliberating. At the same time, no adverse inference can be drawn that a jury did not understand the instructions simply because they did not have a copy during the actual deliberative process. [127] In this case, the trial judge decided not to provide a copy to the jury. She was not asked to provide one and, importantly, no one suggested, as they now suggest on appeal, that providing a copy was essential for the jury to properly deliberate. I would not give effect to this ground of appeal. (d) Unreasonable Verdict [128] Mr. Okrah alone says that the evidence at trial could not reasonably support his convictions in relation to the Valdi’s robbery. I will deal with this ground of appeal briefly. [129] To succeed on his unreasonable verdict claim under s. 686(1)(a)(i) of the Criminal Code , Mr. Okrah must establish that no properly instructed jury, acting judicially, could reasonably have found him guilty: see R. v. Biniaris , 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. So, could a properly instructed jury, acting judicially, reasonably find him guilty? In my view, the answer is clearly yes. [130] Mr. Okrah was arrested while seated in the getaway car about 90 minutes after the Valdi’s robbery, along with his three co-accused. The car contained jewellery taken from that robbery and weapons consistent with those used at that robbery, as well as the hammer with white tape and the backpack used to store the jewellery. [131] This was not an unreasonable verdict. (e) Failure to Find a Charter Breach Arising from the Warrantless Pings of Mr. Ratnam’s Phone [132] All the respondents raise this fifth and final ground of appeal. They challenge the trial judge’s finding that the warrantless pings of Mr. Ratnam’s phone did not give rise to a Charter breach. [133] As previously noted, to find the getaway car, the police “pinged” Mr. Ratnam’s cellular phone. In the normal course the police require prior judicial authorization to track a cell phone, but exigent circumstances can justify doing so without that prior authorization. [134] At the time of the offences forming the subject matter of this appeal, the police were already investigating Mr. Ratnam for other jewellery store robberies that had been committed a few weeks prior. Therefore, once the Galbraith and Valdi’s robberies were committed and the getaway car was identified, police were able to identify Mr. Ratnam as the renter of that vehicle. The police decided that it was necessary to immediately locate Mr. Ratnam in an effort to prevent another violent armed robbery. [135] Ultimately, Mr. Ratnam’s phone was pinged three times, after which the getaway car was located. [136] Mr. Ratnam brought a ss. 8 and 9 Charter application, claiming that the warrantless pings breached his right to privacy and that this in turn led to his arbitrary and unlawful detention. The other accused joined the application on the basis that their detentions resulted from the breach of Mr. Ratnam’s s. 8 rights. [137] The trial judge found no breach of Mr. Ratnam’s s. 8 rights, concluding that it was entirely reasonable for the police to believe that another robbery was imminent and, therefore, to exercise their powers in urgent circumstances. The respondents challenge this finding on appeal. [138] In my view, there is no basis upon which to interfere with the trial judge’s finding on the s. 8 issue or the careful reasons that underpin it. It is therefore unnecessary to address the issue of standing. [139] Where exigent circumstances exist, the police can use a cellular telephone ping to locate a suspect: see, for e.g., R. v. Bakal , 2021 ONCA 584, at paras. 24-25. These circumstances will arise where there is an imminent threat to the police or public safety, or the risk of the imminent loss or destruction of evidence: see R. v. Paterson , 2017 SCC 15, [2017] 1 S.C.R. 202, at paras. 32-33; Bakal , at para. 19. [140] This record is built on exigent circumstances. There had been two very recent, violent robberies committed close to one another. The suspects were armed. They had demonstrated their penchant for terrorizing their victims by threatening them with guns. At the most recent robbery, they had demonstrated their willingness to seriously harm a victim, leaving him bleeding profusely from the head. The violence was escalating from crime-to-crime. The police had to act. [141] While there was some discrepancy in the police evidence as to exactly when the decision was made to ping the phone, the trial judge was alive to that discrepancy and reviewed it in her ruling. Despite expressing some concern over those inconsistencies, the trial judge noted the practical fact that the decision was made in a fluid and dangerous situation. In the end, she found that the discrepancies, to the extent they existed, did not undermine the police evidence on this point. It was open to the trial judge to come to that decision. It was a reasonable one. V. CONCLUSION [142] The Crown appeal is granted. The cross-appeals are dismissed. [143] All directed verdicts of acquittal are set aside. The stay of proceedings is set aside. A new trial is ordered on those counts. Released: “April 1, 2022 JMF” “Fairburn A.C.J.O.” “I agree B.W. Miller J.A.” “I agree. George J.A.” APPENDIX “A”: ALL COUNTS AND VERDICTS Graziella’s Fine Jewellery (March 13, 2017) Attempt robbery (s. 463(a) of the Criminal Code ) Mr. Atwima Directed verdict Mr. Johnson Directed verdict Mr. Okrah Directed verdict Mr. Ratnam Directed verdict Disguise with intent to commit indictable offence (s. 351(2) of the Criminal Code ) Mr. Atwima Directed verdict Mr. Johnson Directed verdict Mr. Okrah Directed verdict Mr. Ratnam Directed verdict Ron Galbraith Jewellers (March 14, 2017) Robbery using restricted or prohibited firearm (s. 344(1)(a) of the Criminal Code ) Mr. Atwima Guilty Mr. Johnson Guilty Mr. Okrah Directed verdict Mr. Ratnam Guilty Disguise with intent to commit indictable offence (s. 351(2) of the Criminal Code ) Mr. Atwima Guilty Mr. Johnson Guilty Mr. Okrah Directed verdict Mr. Ratnam Guilty Use of imitation firearm while committing the indictable offence of robbery (s. 85(2)(a) of the Criminal Code ) Mr. Atwima Guilty Mr. Johnson Guilty Mr. Okrah Directed verdict Mr. Ratnam Not guilty Valdi’s Jewellery Shop (March 14, 2017) Robbery using restricted or prohibited firearm (s. 344(1)(a) of the Criminal Code ) Mr. Atwima Guilty Mr. Johnson Guilty Mr. Okrah Guilty Mr. Ratnam Guilty Aggravated assault (s. 268 of the Criminal Code ) Mr. Atwima Guilty Mr. Johnson Guilty Mr. Okrah Guilty Mr. Ratnam Not guilty Disguise with intent to commit indictable offence (s. 351(2) of the Criminal Code ) Mr. Atwima Guilty Mr. Johnson Guilty Mr. Okrah Guilty Mr. Ratnam Guilty Use of imitation firearm while committing the indictable offence of robbery (s. 85(2)(a) of the Criminal Code ) Mr. Atwima Guilty Mr. Johnson Guilty Mr. Okrah Guilty Mr. Ratnam Guilty Driving incident following Valdi’s Jewellery Shop (March 14, 2017) Fail to stop (s. 249.1(1) of the Criminal Code ) Mr. Ratnam Stayed [1] I say “for reasons not entirely clear on the record” because, despite the trial Crown’s concession at trial on this point, the record reveals a good deal of evidence also linking Mr. Okrah to, by way of example and, at a minimum, the Galbraith robbery. After all, when caught in the getaway vehicle, Mr. Okrah (and his compatriots) were surrounded by a plethora of evidence from both robberies. [2] Following the trial judge’s initial ruling discussed below, Mr. Atwima changed his position to align with that of Mr. Johnson. [3] During oral submissions at the hearing of the appeal, Crown counsel was asked whether the Crown agreed with the respondents that, if a new trial were to be ordered on the similar act evidence issue, all verdicts, including the convictions, should be set aside and all counts (except the fail to stop count that was stayed), returned for retrial. The Crown agreed with that position. Shortly after the hearing of the appeal, the court communicated with counsel, asking for reattendance to assist the court with understanding why, if the Crown appeal succeeded, the convictions should also be set aside. Crown counsel then withdrew the earlier position, taken during oral submissions, asking only that the acquittals be set aside and a retrial ordered on those counts. All counsel were provided with a full opportunity to respond.

COURT OF APPEAL FOR ONTARIO CITATION: Licata v. Shure, 2022 ONCA 270 DATE: 20220401 DOCKET: C68543 Feldman, Roberts and Favreau JJ.A. BETWEEN Alfonso Licata Applicant (Respondent) and Julia Shure Respondent (Appellant) Theodore Nemetz, for the appellant Kristen Normandin and Cara Senese, for the respondent Heard: March 18, 2022 by video conference On appeal from the order of Justice Susanne Boucher of the Superior Court of Justice, dated March 9, 2020, and signed May 11, 2021. Favreau J.A.: [1] The appellant mother, Julia Shure, appeals an order terminating child support for the two oldest children from her marriage to the respondent father, Alfonso Licata. She also seeks to appeal the costs order made against her in the amount of $80,183.06. [2] For the reasons below, I would allow the appeal. BACKGROUND [3] The parties were married for twenty years and separated in 2014. [4] The parties have three children, including H.S.L. (born in 1998) and A.E.L. (born in 2000). [5] In 2015, the parties entered into a separation agreement, which formed the basis for a consent order dated March 10, 2017, signed by J. Wilson J. (the “2017 Order”). The 2017 Order resolved the issues of spousal support, child support, special and extraordinary expenses, division of property, and parenting arrangements. [6] With respect to child support, the 2017 Order required the father to pay $2,895.00 per month to the mother for all three children. The order also provided a formula for the parties to share special and extraordinary expenses, which included “post-secondary education and related expenses” for the children and specified amounts for tutoring expenses for each child. [7] Additionally, the 2017 Order included the following term: [T]he quantum of support set out in this Court Order may be varied if there is a material change in the circumstances of either party or the Children, which may include any of the following events: (a) Any of the Children residing away from home for the purposes of pursuing post-secondary education; (b) Any of the Children changing their residence(s); (c) A significant change in the quantum of the Children’s special or extraordinary expenses; or (d) A material change in the Applicant/Husband’s income, being an increase or decrease in his annual income of 15% or more. [8] In 2019, the father brought a motion to change the 2017 Order pursuant to s. 17 of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.). He sought termination of child support for H.S.L. and A.E.L., and reimbursement for various payments. The mother responded to the motion to change seeking, among other orders, an order for increased spousal support. [9] In a decision dated March 9, 2020, the motion judge terminated child support for H.S.L. In doing so, she held that there was a material change in circumstances because H.S.L. had reached the age of majority. She then reviewed H.S.L.’s record as a university student and determined that, given that H.S.L. had obtained very few credits in her program, she was not devoting herself to university studies and could instead work to support herself. The motion judge concluded that H.S.L. could therefore withdraw from parental control. On that basis, the motion judge terminated child support for H.S.L. [10] With respect to A.E.L., the motion judge found that, despite also having reached the age of majority, she was enrolled in a full-time university program and, accordingly, the father should continue to pay child support for her. However, as a condition of continuing child support, the motion judge directed the mother to provide proof of A.E.L.’s full-time enrolment in post-secondary studies within 45 days of the end of each academic term. [11] The motion judge declined to order an increase in spousal support for the mother. [12] Following the release of the motion judge’s reasons, the parties were invited to make submissions on costs. As part of his submissions, the father provided some information that A.E.L. was not enrolled in full-time university studies, and therefore asked that child support for A.E.L. be terminated as well. [13] In a costs endorsement dated May 1, 2020, the motion judge awarded $80,183.06 in costs to the father. In doing so, she found that he was substantially successful in bringing his motion to change and in defending against the mother’s response to the motion to change requesting increased spousal support. As well, the motion judge explained that the mother’s conduct throughout the litigation justified awarding costs on a substantial indemnity basis. [14] Seven months following the release of the costs endorsement, the father filed a Form 14B notice of motion under rr. 14(10) and 25(1) of the Family Law Rules , O. Reg. 114/99, for the purpose of settling the order. As part of the materials filed on the motion, the father again renewed his position that child support for A.E.L. should be terminated, and he provided a draft order to that effect. [15] On May 11, 2021, the motion judge released an endorsement approving the order as proposed by the father, which included a provision terminating child support for A.E.L. The motion judge did not provide reasons for doing so other than stating that she had reviewed the affidavit and email materials filed on the motion. DISCUSSION [16] The mother challenges the termination of child support for H.S.L. and A.E.L., as well as the costs order. [17] It is acknowledged that on appeal from a decision dealing with a support order, the court should not overturn the order unless the reasons disclose an error in principle, demonstrate a significant misapprehension of the evidence, or result in an award that is clearly wrong; the court is not to overturn a support order merely because it would have reached a different decision or balanced the factors differently: Gray v. Rizzi , 2016 ONCA 152, 129 O.R. (3d) 201, at para. 18, referring to Hickey v. Hickey , [1999] 2 S.C.R. 518, at paras. 11-12. However, as reviewed below, I have concluded that the motion judge made errors in principle in terminating child support for H.S.L. and A.E.L. Given that conclusion, I would also set aside the costs. Issue 1: The termination of child support for H.S.L. [18] The mother argues that the motion judge erred in her articulation and application of the test on a motion to change. I agree. [19] Section 17(1)(a) of the Divorce Act gives a court of competent jurisdiction the power to vary a support order. Section 17(4) precludes the court from varying a child support order unless there has been a “change of circumstances” since the initial support order or the last variation order was made. Section 14(b) of the Federal Child Support Guidelines , SOR/97-175, contemplates that a change of circumstances constitutes “any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support”. As reviewed above, the 2017 Order also contained a term allowing for the variation of support when there is a material change in circumstances. [20] In conducting an inquiry into whether there is a material change in circumstances, courts have required the party seeking the variation to demonstrate a material change of circumstances that was not contemplated by the parties at the time that the initial order was made and that, if such a change had been known, “would likely have resulted in different terms”: L.M.P. v. L.S. , 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 32, citing Willick v. Willick , [1994] 3 S.C.R. 670, at p. 688. [21] The Supreme Court of Canada set out the test for determining whether there has been a material change of circumstances in Gordon v. Goertz , [1996] 2 S.C.R. 27, at paras. 10-13. This court, in N.L. v. R.R.M. , 2016 ONCA 915, 88 R.F.L. (7th) 19, at para. 29, summarized that test as having three components: 1) a change in the condition, means, needs or circumstances of the child and/or or the ability of the parents to meet those needs; 2) the change must materially affect the child; and 3) the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. [22] In this case, the motion judge described her approach to deciding whether there had been a material change in circumstances as follows: Because [A.E.L.] and [H.S.L.] have reached the age of majority, their ages would constitute a material change in circumstances justifying variation of the 2017 order, unless there is evidence that they are unable by reason of illness, disability or other cause, to withdraw from the charge of the parents. Divorce Act s.2(1)(b) ; s.17(4) . The person who seeks support to continue for a child over the age of majority bears the onus of establishing the need for continued support, but the court looks to the overall evidentiary record to determine the issue. [23] On this basis, the motion judge started from the premise that there had been a material change in circumstances because H.S.L. had reached the age of majority. She then required the mother to demonstrate that H.S.L. was not capable of withdrawing from parental control. This was an error in principle. H.S.L. was already over the age of majority when the 2017 Order was made, at which time she was also already attending university. There was no material change in circumstances from the time of the 2017 Order. [24] Notably, the 2017 Order specifically contemplated a child “residing away from home for the purposes of pursuing post-secondary education” as an example of a material change in circumstances that would warrant a change in the amount of support. The presence of the additional requirement of the child “residing away from home” clearly implies that attending post-secondary education would not in and of itself create a material change in circumstances attracting a variation of support. [25] Accordingly, at the time that the 2017 Order was made, the parties had clearly contemplated that support would continue after H.S.L. was 18 years old and that she would attend university. This was the appropriate starting point for assessing whether there had been a material change in circumstances that justified terminating or reducing child support for H.S.L.; not whether H.S.L. had attained the age of majority. [26] The motion judge further erred by placing the burden on the mother to prove that H.S.L. required continuing child support. She conducted this inquiry as though it was an initial application for child support pursuant to s. 15.1(1) of the Divorce Act , which would require a determination of whether H.S.L. was still a “child of the marriage” as defined in s. 2(1). [27] In doing so, the motion judge reviewed the Farden factors, which assist in determining whether an individual is a “child of the marriage”: Farden v. Farden (1993), 48 R.F.L. (3d) 60 (B.C. S.C.). [28] The motion judge then considered H.S.L.’s progress in her university program: [H.S.L.’s] university transcripts show that she has completed only about 3.5 credits in 4 years, and a degree at her university generally requires at least 20 credits. From the transcripts, it seems [H.S.L.] has been a full-time student or nearly a full-time student at various points, but she did not necessarily attain credits for all her courses . [Emphasis added.] [29] The motion judge went on to review the mother’s explanation for this slow progress, which she accepted as a finding of fact: [The mother] says that [H.S.L.] has learning disabilities and that she is completing her university courses slowly. She says that [H.S.L.’s] issues have been present since she was in the third grade, and that [the father] has always been aware of this . She says he has paid for [H.S.L.’s] tutoring for many years and was involved in the original hiring of the tutor. I accept [the mother’s] evidence on the point . [Emphasis added.]. [30] Nevertheless, the motion judge ultimately found that H.S.L.’s progress in university was not reasonable and that H.S.L. should therefore not be considered a child of the marriage. In particular, the motion judge stated that there was no evidence about H.S.L.’s educational limitations or career plans. On that basis, the motion judge concluded that the mother had not met what she characterized as the mother’s “onus”: Because [H.S.L.] is over the age of majority, it is [the mother’s] onus to establish that [H.S.L.] is unable to withdraw from parental control . There is insufficient evidence before the court of her inability to withdraw from her parents at present according to the Divorce Act definition, given the evidence that she works at least part time and the insufficient justification advanced for the supported pursuit of her current educational plan. [H.S.L.] is no longer a child of the marriage. [Emphasis added.] [31] The motion judge erred by reversing the onus and requiring the mother to prove that H.S.L. was not able to withdraw from parental control. [32] On an initial application for child support pursuant to s. 15.1(1) of the Divorce Act , a court may make an order for the payment of child support for “any or all children of the marriage”. For children who are at the age of majority or older, s. 2(1) of the Divorce Act defines them as being a “child of the marriage” if they are “under [parental] charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”. [33] When a parent claims child support for a child who is at the age of majority or older, that parent has the onus of proving that the child remains under parental charge: Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.), at p. 263; Dring v. Gheyle , 2018 BCCA 435, 430 D.L.R. (4th) 181, at para. 49; Olson v. Olson , 2003 ABCA 56, 225 D.L.R. (4th) 735, at para. 13. This onus can be satisfied by identifying circumstances such as, for example, the child being enrolled in higher education: see W.P.N. v. B.J.N. , 2005 BCCA 7, 249 D.L.R. (4th) 352, at para. 18. [34] In this case, it was an error for the motion judge to treat this as an initial request for child support for a child who is at or above the age of majority. The parties had already agreed and obtained an order in 2017 that contemplated that support was to be paid for H.S.L. The only relevant question at the variation stage was whether the father had proven that there had been a material change in circumstances since the 2017 Order, and specifically whether it was beyond the parties’ contemplation at that time that H.S.L. would take an extended period of time to complete her university studies. [35] Based on the record before the motion judge, had she conducted the proper inquiry, she should have found that the father had not established a material change in circumstances. As reviewed above, the evidence was that H.S.L. was “a full-time student or nearly a full-time student” during the relevant period. The motion judge noted that the 2017 Order contemplated payments for a tutor for H.S.L. In addition, the motion judge accepted the mother’s evidence that the father was familiar with H.S.L.’s learning challenges. In the circumstances, the motion judge should not have found that the mother failed to prove that H.S.L.’s course of study was reasonable. Rather, she should have found that the father had failed to meet his burden of proving that there was a material change in circumstances from the time that the 2017 Order was made. [36] This does not mean that the father should be required to pay child support for H.S.L. indefinitely. But child support should not be terminated for H.S.L. until the father can demonstrate that there has been a material change in circumstances not contemplated at the time of the 2017 Order and that H.S.L. is able to withdraw from parental control. [37] Accordingly, the order terminating child support for H.S.L. cannot stand. Instead, I would reinstate the support payments for H.S.L. that were required under the 2017 order, supported by a Family Responsibility Enforcement order. Issue 2: The termination of child support for A.E.L. [38] The mother argues that the motion judge also erred in terminating child support for A.E.L. because the order that she approved was inconsistent with her reasons. I agree. [39] As reviewed above, in her original decision, the motion judge found that child support for A.E.L. should continue as long as the mother provided proof that A.E.L. was enrolled in a full-time university program within 45 days after the end of each academic term. [40] In the context of submissions on costs, the father again sought an order terminating child support for A.E.L., claiming that she was not enrolled in a full-time university program. In her costs endorsement, the motion judge appeared to reject this argument as follows: [The father] takes the position in his written brief that because [A.E.L.] is enrolled in 4 courses rather than 6, that this disentitles her to support. I do not agree with this position . I would note for the parties that full-time school attendance may not necessarily be required of the children of the marriage, depending on their overall limitations at any given time, based on any [medical] or psychological issues, and given the overall circumstances that present. For example, less than full time attendance, if caused by outside employment or other activities may reduce the amount that [the father] would be required to pay for their support or may disentitle them to support, depending on the overall circumstances. Less than full-time attendance because of a medical or psychological issue may require full support, however continued slow progress may not merit continued support periods if the lack of progress extends beyond a reasonable period of time, depending on the overall goals. All this is to point out that a motion to change would be required to stop the requirement to pay support for the children if they are enrolled in less than full-time school, so that the judge could analyze whether the children still fall within the definition under the Divorce Act , given the governing caselaw. [Emphasis added.] [41] However, later in her costs endorsement, the motion judge directed that the “costs award be taken out as drafted in the ‘order’ regarding the trial results as prepared by [the father’s] counsel”. [42] This appears to have led to disagreement between the parties over the terms of the order, given that the order proposed by the father included a term ending child support for A.E.L. [43] The father then brought a Form 14B motion, seeking to settle the order. His materials on the motion included an affidavit that attached various documents from A.E.L.’s university program. The documents included a letter from the university stating that A.E.L. was indeed enrolled in full-time studies. The materials also included a transcript showing that A.E.L. was enrolled in four courses in her first two terms. Finally, the materials included pages from a university calendar listing the full-time course load in the first year of A.E.L.’s university program as consisting of 6 specified courses in the first semester and 5 specified courses in the second semester. [44] The motion judge released her endorsement regarding the Form 14B motion on May 11, 2021. Her endorsement did not explicitly address the issue of whether child support for A.E.L. should be terminated. Rather, she granted the father’s motion and signed the draft order provided by his counsel “[b]ased on [her] review of the affidavit and email materials filed, as well as the application and the consents signed by the parties”. [45] I find that it was an error for the motion judge to approve the order proposed by the father, which included a provision terminating child support for A.E.L. It is not clear whether this error was inadvertent or substantive. It was nevertheless an error. [46] If the motion judge’s intention was to terminate A.E.L.’s child support based on the father’s position that she was not enrolled in a full-time university program, no reasons were provided for this finding. Notably, the termination of child support for A.E.L. contradicts the paragraph in the costs endorsement where the motion judge directly addressed this issue, and where she explicitly stated that another motion to change would be required to determine whether child support for A.E.L. should be terminated. No such motion appears to have been brought. [47] In any event, the evidence put forward by the father does not support an unequivocal finding that A.E.L. was not enrolled in full-time university studies. The materials the father provided to the motion judge included a letter from the university stating that A.E.L. is enrolled in a full-time program. The only evidence to the contrary was the father’s interpretation of a general statement in the calendar for A.E.L.’s university program characterizing a full-time course load for first-year students in the first semester as requiring six courses. [48] Finally, the motion judge’s initial approach to determining whether child support should be continued for A.E.L. was the same as her approach to child support for H.S.L. Ultimately, as reviewed above, child support for A.E.L. could only be terminated if the father had been able to establish a material change in circumstances since the time of the 2017 Order and that A.E.L. is able to withdraw from parental control. [49] While I have concluded that the motion judge erred in terminating child support for A.E.L. based on the discrepancies between her reasons for decision and her final order, I note that any future motion to change would have to be based on a proper evidentiary foundation and an analysis of whether there was a material change in circumstances, and cannot simply be based on evidence that A.E.L. is no longer enrolled in full-time studies. [50] Accordingly, the order terminating child support for A.E.L. is set aside. Instead, the 2017 order requiring the father to continue paying child support for A.E.L. is reinstated, supported by a Family Responsibility Support enforcement order. Issue 3: Costs order [51] The mother argues that the costs order should be set aside because the motion judge erred in finding that the father was substantially successful. [52] It is not necessary to decide whether the motion judge erred in awarding costs to the father given that the appeal is allowed on the two other issues raised. The entitlement and quantum of costs for the proceedings below will have to be decided afresh based on the outcome of this appeal. Directions are provided below for the submission of materials on this issue. DISPOSITION [53] In conclusion, I would allow the appeal and: (a) strike paragraphs 2, 3, and 9 of the motion judge’s order dated March 9, 2020 (signed May 11, 2021); and (b) make an order requiring the father to pay ongoing child support for H.S.L. and A.E.L. according to the terms of the 2017 order. [54] Because I would allow the appeal, the mother is entitled to the return of the amount that she posted as security for costs. Accordingly, I would order that the sum of $100,000 posted as security for costs by the mother is to be released to her. [55] The parties should try to agree on costs below and for the appeal. If they are unable to agree, they may make brief submissions (no longer than three pages) within three weeks of the release of these reasons, addressing the costs of the appeal as well as costs of the motions below. Released: April 1, 2022 “K.F.” “L. Favreau J.A.” “I agree. K. Feldman J.A.” “I agree. L.B. Roberts J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. J.L., 2022 ONCA 271 DATE: 20220404 DOCKET: C68791 Pardu, Paciocco and Thorburn JJ.A . BETWEEN Her Majesty the Queen Respondent and J.L. Appellant Mindy Caterina, for the appellant Kristen Pollock, for the respondent Heard: March 23, 2022 by video conference On appeal from the conviction entered on December 13, 2019 and the sentence imposed on September 18, 2020 by Justice Marquis S. V. Felix of the Ontario Court of Justice. REASONS FOR DECISION OVERVIEW [1] J.L. was convicted of sexually assaulting the complainant, his estranged wife. He was also convicted of breach of probation arising from the same event, which is alleged to have occurred on September 17, 2018. Both parties testified during the trial. Credibility was the only contested issue. The trial judge was not left with a reasonable doubt following J.L.’s testimony primarily because J.L. had initially lied to the police by denying his presence at his wife’s place of residence at the time of the alleged offences. The trial judge accepted the testimony of the complainant that J.L. had intercourse with her against her will, and thereby breached a condition requiring him to “keep the peace and be of good behavior” in a probation order he was under for prior offences he had committed against the complainant. [2] J.L. appeals his conviction, identifying alleged errors in the trial judge’s analysis of the complainant’s credibility. He argues that the trial judge relied unduly on the complainant’s demeanour and that he incorrectly used the absence of exaggeration as a makeweight bolstering her credibility. He also argues that the trial judge misapprehended the importance of material evidence. J.L. also seeks leave to appeal his global sentence of three years and three months. [3] Although J.L. raises concerns about the trial judge’s credibility evaluation that are not entirely without merit, when examined in the context of the reasons for judgment as a whole, those concerns do not overcome the significant deference that must be given to the trial judge’s credibility determinations, recently reinforced by Karakatsanis J. in R. v. G.F. , 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 81‑82. As explained below, we therefore deny the conviction appeal. [4] J.L. also seeks leave to appeal his global sentence of three years and three months. For the reasons below, we grant leave to appeal the sentence, allow the sentence appeal and substitute a global sentence of three years. DEMEANOUR [5] J.L.’s main ground of appeal asserts that the trial judge gave undue weight to the complainant’s demeanour in his assessment of her credibility. In his reasons for judgment, the trial judge did comment extensively on the complainant’s demeanour, including her state of emotion and the manner in which she testified, and he stressed repeatedly how closely he had examined the complainant during her testimony. [6] It is appropriate for trial judges to consider the demeanour of witnesses when evaluating their credibility: R. v. R.D. , 2016 ONCA 574, 352 O.A.C. 350, at para 25; R. v. E.A.P. , 2022 ONCA 134, at para. 21. However, this court has cautioned that demeanour can be an unreliable gauge of credibility because of the impact that culture, personality and pressure can have on courtroom behaviour, and the risk that stereotypes about credibility will distort the evaluation: R. v. Rhayel , 2015 ONCA 377, 334 O.A.C. 181, at para. 85; R. v. Santhosh , 2016 ONCA 731, 342 C.C.C. (3d) 41; R. v. Hemsworth , 2016 ONCA 85, 334 C.C.C. (3d) 534; R. v. A.A. , 2015 ONCA 558, 327 C.C.C. (3d) 377, at paras. 131-32; R. v. T.M. , 2014 ONCA 854, 318 C.C.C. (3d) 421. Therefore, it is an error to give undue weight to demeanour in making credibility determinations. Although the trial judge arguably gave more attention to demeanour in his reasons for judgment than is optimal, we are left unpersuaded that the trial judge erred by giving undue weight to demeanour. [7] First, the trial judge was aware that he should not rely unduly on demeanour when coming to his decision. The parties cautioned him in this regard, and he expressly adopted the principles of credibility evaluation described in R. v. G.A. , 2017 ONSC 7493, which include, at para. 142, a caution against overreliance on demeanour. He also demonstrated an understanding that cases should not be decided based primarily on demeanour. He did so by rejecting J.L.’s testimony despite being impressed by J.L.’s demeanour, and by stressing in his reasons that his decision to accept the complainant’s testimony was based on a number of factors. [8] Second, the lengthy demeanour section in the reasons for judgment was dedicated primarily to explaining why the complainant’s demeanour in pausing before answering and not responding directly to questions did not undermine her credibility. Although the trial judge made this decision based on other aspects of the complainant’s demeanour, including her state of emotion and her straightforward blunt personality, the net result is that on this occasion the trial judge used aspects of the complainant’s demeanour not as a positive indication of her credibility, but as a basis for declining to rely on other aspects of her demeanour in his credibility evaluation. In our view, a decision not to rely on demeanour, even if based on other aspects of demeanour, cannot contribute to a finding that demeanour has been used unduly. [9] Third, it was not inappropriate for the trial judge to rely on demeanour to discount the weight of the complainant’s refusal to acknowledge in her testimony her interest in reconciling with the appellant in the year prior to the assault. To be clear, there may have been room for criticism if the trial judge relied on the complainant’s demeanour to find that she was being truthful when denying her interest in reconciliation, but this is not what occurred. The trial judge was fully aware that the complainant had not been entirely forthcoming in this area. Instead, he relied on her “animated response” in putting a text message document she had been confronted with face down on the witness box in order to understand why she was not forthcoming. The trial judge concluded that this discrete act demonstrated the complainant’s discomfort in acknowledging, as borne out by the text messages, that there was a time when she wished to reconcile with the appellant. In the trial judge’s view, this explanation for her reluctance to admit her interest in reconciliation blunted the impact of this incident on the credibility of her sexual assault allegation. Although not every judge may have drawn this inference, it was open to the trial judge to do so. [10] There is no question that the trial judge’s evaluation of the demeanour of the complainant also influenced his overall credibility assessment. But as the trial judge made clear, he relied as well on other factors, including testimony from the appellant that confirmed much of the complainant’s narrative, and the complainant’s emotional condition after the alleged assault. On this record, it cannot be said that the trial judge relied unduly on demeanour. THE ABSENCE OF EXAGGERATION [11] The complainant told the police that the appellant reinserted his penis in her vagina after ejaculating on her stomach. She did not include this detail in her testimony until she was confronted in cross-examination with her police statement. The trial judge explained why, in his view, this was not a significant contradiction. He then noted that the reinsertion of the penis is an aggravating factor and commented, “If the complainant was singularly focused on animus, she would have […] taken great care to explain each aggravating circumstance, including a re‑introduction of the [appellant’s] penis”. [12] The appellant contends that the trial judge erred in drawing this inference since it is an error for a trial judge to treat the absence of embellishment as a makeweight in favour of credibility: R. v. Alisaleh , 2020 ONCA 597, at para. 16. We do not agree that the trial judge erred in drawing the inference that he did. We agree that it is improper for a trial judge to infer that a more modest sexual assault allegation is more likely to be true because a false allegation is likely to be serious. But this is not the reasoning the trial judge engaged in. Instead, he reasoned that if the complainant had really concocted the sexual assault allegation out of animus as the appellant alleged, she would not have failed to mention this aggravating feature of her allegation when offering her testimony in chief. This inference was not being used as a makeweight – an affirmative indication of truthfulness – but rather was directed at rebutting or knocking off of the scales a defence challenge to the complainant’s credibility. THE MISAPPREHENSION OF EVIDENCE [13] The appellant argues that the trial judge misapprehended evidence relevant to credibility by failing to give it proper effect. [14] First, he contends that the trial judge misapprehended the relevance of evidence about text messages from the prior year in which the complainant demonstrated a desire to reconcile with the appellant. The evidence about the text messages was relevant to the complainant’s credibility in two ways: (1) the text messages provided evidence that arguably supported the jealousy and animus motive the appellant alleged, and (2) the text messages arguably showed that the complainant was lying when she claimed that she was not, at the time, interested in reconciling with the appellant. The appellant argues that the trial judge misapprehended the relevance of the text message evidence by addressing only the first issue and not the second. We do not agree. The trial judge appreciated and addressed the second issue. As indicated above, he attributed the complainant’s refusal to acknowledge her interest in reconciliation to the complainant’s reluctance to admit her desire to reconcile. Regardless of what may be said about how persuasive that inference is, it demonstrates that the trial judge did not misapprehend the relevance of the text message evidence. [15] Second, the complainant argues that the trial judge failed to appreciate the relevance of the testimony of the appellant’s probation officer that the complainant told her that the sexual assault had occurred sometime over the past week or over the weekend. In contrast, the complainant testified that the sexual assault occurred 30-40 minutes before she phoned the appellant’s probation officer. When the trial judge analyzed this contradiction, he said that it is “addressed” by the fact that the appellant confirmed that he attended the complainant’s residence prior to the phone call. [16] The appellant argues that this analysis missed the real point. The significance of the contradiction was not that it created doubt about when the alleged event occurred. Its significance was that if the complainant did tell the probation officer that the sexual assault had occurred sometime over the past week or on the weekend, this casts serious doubt on the credibility of her entire sexual assault allegation. Specifically, if a sexual assault had in fact occurred 30-40 minutes before the phone call as testified by the complainant, it is inconceivable that the complainant would have told the probation officer almost immediately after the sexual assault that the sexual assault had happened days before. Moreover, the trial judge relied on the upset state of the complainant as after-the-fact conduct consistent with the complainant having just been sexually assaulted. If the complainant had told the probation officer that the sexual assault had in fact occurred days before, her state of upset would not have been reliable evidence of the sexual assault. [17] We accept that the organization of the trial judge’s reasons does create the appearance that he misapprehended the significance of this contradiction. As indicated, when he raised and addressed this issue directly, he appears to have treated the contradiction as if it was relevant only to the timing of the assault. However, a trial judge’s reasons must be read as a whole. When the whole of his reasons is considered, it is apparent that the trial judge had significant reservations about accepting that the probation officer accurately recorded the conversation. He noted earlier in his reasons that when the complainant spoke to the probation officer, she was upset and had to be calmed down before she could be understood; that the interaction between the probation officer and the complainant was not recorded; that the probation officer’s report was not filed as an exhibit; that she was not engaging in an investigative interview; and that while she did her best to make notes, she is not an investigator. Moreover, the trial judge noted that the complainant testified that she in fact told the appellant’s probation officer that the sexual assault had occurred only moments before. Although the trial judge could have been more explicit, it seems clear that he was not persuaded that the complainant had told the probation officer that the sexual assault occurred the week before or on the weekend. Although the appellant takes issue with that finding given that the probation officer had notes, this finding was open to the trial judge. The instant point is that an examination of the whole of the record precludes a finding that the trial judge misapprehended the significance of this evidence. CONCLUSION ON CONVICTION APPEAL [18] We recognize that the appellant made incidental arguments before us taking issue with the trial judge’s treatment of other contradictions and arguing that inadequate attention was given to the appellant’s animus theory. It is not for us to retry the case. We will therefore say no more on those issues and would dismiss the conviction appeal. THE SENTENCE APPEAL [19] The Crown concedes that the trial judge erred in principle by imposing a sentence of three years and three months on the sexual assault conviction after the trial Crown requested a global sentence of three years. In order to exceed the sentence recommended by the trial Crown, the trial judge was obliged to first alert the parties of his intention to do so and then give them an opportunity to make submissions: R. v. Blake-Samuels , 2021 ONCA 77, at paras. 30-34, 36. But he did not do so. [20] We are persuaded that this error affected the sentence. We have had the benefit of relevant submissions on whether the sentence requested by the trial Crown should be exceeded. The appeal Crown conceded before us that the three‑year sentence the trial Crown had requested is fit and could offer no basis upon which the additional three months of incarceration would be required. We are therefore satisfied that, had the trial judge conducted the inquiry he should have conducted, it is probable that he would have acceded to the sentence the trial Crown requested. [21] In the face of this error, it falls to us to impose a fit sentence. We reject the sentencing range suggested by the appellant. The aggravated factors in this case make a sentence at the low end of the range inappropriate. We set aside the sentence on the sexual assault conviction and substitute the sentence the trial Crown requested of three years of incarceration. CONCLUSION ON THE SENTENCE APPEAL [22] Leave to appeal is granted, the sentence imposed for the sexual assault conviction is set aside, and a sentence of three years is substituted. “G. Pardu J.A.” “David M. Paciocco J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Tabriz Persian Cuisine Inc. v. Highrise Property Group Inc., 2022 ONCA 272 DATE: 20220404 DOCKET: C69604 Feldman, MacPherson and Lauwers JJ.A. BETWEEN Tabriz Persian Cuisine Inc. Plaintiff (Appellant) and Highrise Property Group Inc. Defendant (Respondent) Esmaeil Mehrabi, for the appellant Angela Assuras, for the respondent Heard: February 25, 2022 by video conference On appeal from the judgment of Justice Jasmine T. Akbarali of the Superior Court of Justice, dated June 16, 2021, with reasons at 2021 ONSC 4065. MacPherson J.A.: A. Introduction [1] This appeal centers on the reasonableness of a landlord’s refusal to consent to a tenant’s lease assignment. On three occasions, the appellant tried to assign its lease. On three occasions, the respondent refused. It offered differing reasons for doing so, but each refusal insisted that the respondent would not consider the assignment unless the appellant removed a patio it had built on the condominium’s property. [2] The appellant brought an action for damages after the third refusal. After a trial, Akbarali J. found that the appellant had not shown that the respondent acted unreasonably. For these reasons, I find that she did not err in doing so. The appellant attempts to extricate questions of law from a finding of fact. The fundamental question is whether a reasonable person could have withheld consent. The appellant’s refusal to rectify its breach of the lease meets the reasonable person standard and is not overwhelmed by the respondent’s request that the appellant abandon a parallel lawsuit. B. FACTS (1) The Parties and Events [3] The appellant, Tabriz Persian Cuisine Inc., owned a Persian restaurant in premises leased from the respondent Highrise Property Group Inc. In 2018, the appellant decided to sell its business. Doing so required the respondent to consent to the assignment of its lease with the appellant. Section 10.01 of the lease prohibited the respondent from unreasonably withholding or delaying its consent. The section went on to specify that it would not be unreasonable for the respondent to consider the proposed transfer’s conformity with the lease, the assignee’s business fundamentals, and the availability of other premises. [4] Three times, the appellant found a buyer and sought the respondent’s consent. Three times, the respondent refused to consider the assignment unless the appellant met a series of conditions. Though the conditions changed through the offers, the respondent consistently asked that the appellant remove a patio it had built as an addition to its restaurant. [5] The patio was a source of significant friction between the parties. Prior tenants had used the area in front of the premises for outdoor dining. The appellant added a wooden structure to correct what it saw as a grading problem. The respondent subsequently asked the appellant to remove the patio as it did not comply with the lease. The appellant resisted on the basis that it had obtained the consent of the respondent’s agent before installing the patio. The patio and the alleged representation are at the heart of a separate action brought by the appellant. [6] In its third refusal to consent to the assignment, the respondent requested that the appellant remove the patio and that it discontinue the parallel litigation. (2) The Trial Judge’s Decision [7] The trial judge concluded that the appellant had failed to show that the respondent’s refusal to consent to the lease was unreasonable. Despite the respondent’s various other grounds for refusing to consent to the assignment, the trial judge found that the patio was its primary reason for refusal. [8] The trial judge noted that the appellant had built the patio outside the leased premises without the respondent’s consent. The appellant understood that the patio did not conform with the lease, as shown through its various unfulfilled promises to remove the deck/patio. The trial judge reasoned “[i]t is not reasonable to expect the [respondent] to consent to an assignment of lease in circumstances that are going to perpetuate the patio problem that has plagued the parties for years”. The respondent was merely insisting that the appellant restore the leased premises before it left. [9] However, the respondent’s insistence that the appellant discontinue its parallel lawsuit was not reasonable. The trial judge found that this condition was the respondent’s attempt to “use its greater bargaining power to secure a dismissal of the action in which the plaintiff may be asserting legitimate rights [and] is not connected to the request to assign the lease”. Nevertheless, this collateral purpose did not render the respondent’s refusal unreasonable, viewed holistically: “Put another way, a reasonable basis to refuse consent saves a co-existing tainted purpose”. [10] Finally, the trial judge found in obiter that the appellant had not sufficiently proved its damages. C. ISSUES [11] The appellant raises three issues on the appeal: 1. Did the trial judge err by finding that the respondent did not impose a pre-condition to considering the appellant’s assignment request? 2. Did the trial judge err by finding that the respondent’s refusal to consent to the assignment was reasonable? 3. Did the trial judge err by finding that the reasonable purpose saved the       collateral purpose? D. ANALYSIS Preliminary issue - Standard of Review [12] I disagree with the appellant’s argument that the lease is a standard form contract that should be reviewed for correctness. Whether a landlord’s refusal to consent to a lease assignment is reasonable is essentially “a question of fact that must be determined on the circumstances of the particular case, including the commercial realities of the market place and the economic impact of the assignment on the landlord”: 1455202 Ontario Inc. v. Welbow Holdings Ltd. (2003), 33 B.L.R. (3d) 163 (Ont. S.C.), at para. 9(6). The trial judge’s decision is, accordingly, entitled to deference absent palpable and overriding error: Housen v. Nikolaisen , 2002 SCC 33. (1) The Pre-Condition Issue [13] The appellant contends that the respondent acted unreasonably by refusing to even consider the lease assignment before its conditions were met. In its email concerning the third offer, the respondent’s agent wrote “you have to remove your patio complete to the ground and make good all damages to the wall and floor before he considers your Assignment of Lease”(emphasis in original). The appellant relies on para. 50 of Royal Bank of Canada v. Oxford Medical Inc., 2019 ONSC 1020, for the principle that a landlord has an obligation “to consider requests for a proposed assignment.” [14] This reliance is misplaced. McEwen J.’s assertion in Royal Bank cites St. Jane Plaza Ltd. v. Sunoco Inc. (1992), 24 R.P.R. (2d) 161 (Ont. C.J. (Gen. Div.)). There, the plaintiff attempted to terminate the lease on the basis that Sunoco had assigned its lease without consent. In fact, Sunoco had requested the plaintiff’s consent on three occasions and the plaintiff had simply ignored them: at p. 5. For the next 14 years, the plaintiff accepted Sunoco’s rent cheques until it sought to terminate the lease in search of higher rent: at p. 7. [15] Borins J. concluded that the plaintiff had unreasonably withheld its consent because it failed to offer any grounds for its refusal: at p. 10. Therefore, a landlord’s refusal to consider an offer is not unreasonable in itself. Rather, it is unreasonable because the court is unable to appreciate the reasons motivating the refusal: Welbow , at para. 9(2). A landlord’s silence is tantamount to an unreasonable refusal. As Morden J.A. said at para. 36 of 1497777 Ontario Inc. v. Leon’s Furniture Ltd. (2003), 176 O.A.C. 380 (C.A.), “the essential reasoning underlying Borins J.’s conclusion” in St. Jane “is founded on the fact that the tenant had sought the landlord’s consent to the assignment of the lease and that the landlord had unreasonably refused to give it.” [16] Consequently, I do not agree that the landlord was unreasonable in placing ‘preconditions’ before considering the assignment. The correspondence between the parties highlights the basis of the landlord’s refusal in palpable detail and allowed the trial judge to find that the patio was the only default “that really mattered”. The question is, and remains, whether the landlord’s refusal was reasonable. It makes no difference at which stage of its consideration the landlord makes its decision. (2) The Refusal Issue [17] The appellant submits that the respondent’s reasons for withholding consent were unreasonable because they were not contemplated by the lease. The lease required the appellant to obtain the respondent’s consent before assignment “which consent may not be unreasonably withheld or delayed.” The lease further provided that it will not be unreasonable for the respondent to consider: a.      Whether the transfer is contrary to any covenants or restrictions granted by the landlord to other existing or prospective tenants or occupants of the building; b.      Whether in the landlord’s opinion the financial background, business history and capability of the transferee are satisfactory; and c.      Whether the landlord will have in the next ensuing three-month period other premises elsewhere in the building which might be suitable for the needs of the transferee. [18] The appellant claims that the trial judge erred by considering reasons extraneous to the three outlined above. Indeed, it argues that its default under the lease was irrelevant since there was no term stating that the respondent could refuse consent because the appellant was in breach of the lease. It did not raise this argument at trial: see trial judge’s reasons, at para. 61. [19] I disagree with the appellant’s submission for two reasons. First, the exclusivity of the above grounds is not supported by the language of the lease. The landlord’s obligation to withhold consent on reasonable grounds is unqualified: “which consent may not be unreasonably withheld or delayed.” The three provisions are included in a distinct sentence that states “it will not be considered unreasonable for the Landlord to take into account the following factors”. In my view, this language is expansive, not exclusive. It clarifies conditions that may be unreasonable without limiting the generality of the first clause: see Lehndorff Canadian Pension Properties Ltd. v. Davis Management Ltd. (1989), 59 D.L.R. (4th) 1 (B.C. C.A.), at p. 10. [20] Second, the appellant’s argument goes against the tenor of the governing case law. In Welbow , Cullity J. described the relevant principles, at para. 9: 1. The burden is on the tenant to satisfy the court that the refusal to consent was unreasonable. In deciding whether the burden has been discharged, the question is not whether the court would have reached the same conclusion as the landlord or even whether a reasonable person might have given consent; it is whether a reasonable person could have withheld consent. 2. In determining the reasonableness of a refusal to consent, it is the information available to - and the reasons given by - the landlord at the time of the refusal - and not any additional, or different, facts or reasons provided subsequently to the court - that is material. Further, it is not necessary for the landlord to prove that the conclusions which led it to refuse consent were justified, if they were conclusions that might have been reached by a reasonable person in the circumstances. 3. The question must be considered in the light of the existing provisions of the lease that define and delimit the subject matter of the assignment as well as the right of the tenant to assign and that of the landlord to withhold consent. The landlord is not entitled to require amendments to the terms of lease that will provide it with more advantageous terms, but, as a general rule, it may reasonably withhold consent if the assignment will diminish the value of its rights under it, or of its reversion. A refusal will, however, be unreasonable if it was designed to achieve a collateral purpose, or benefit to the landlord, that was wholly unconnected with the bargain between the landlord and the tenant reflected in the terms of the lease. 6. The question of reasonableness is essentially one of fact that must be determined on the circumstances of the particular case, including the commercial realities of the marketplace and the economic impact of an assignment on the Landlord. Decisions in other cases that consent was reasonably, or unreasonably, withheld are not precedents that will dictate the result in the case before the court. [Citations omitted.] This court confirmed this as the “applicable test” in Tradedge Inc. (Shoeless Joe’s) v. Tri-Novo Group Inc. , 2007 ONCA 562, at para. 2. [21] Cullity J.’s decision relies on the Ontario High Court’s decision in Federal Business Development Bank v. Starr (1986), 28 D.L.R. (4th) 582, where Donnelly J. said, at p. 590, that the assignment test is moving towards a “more liberal approach, close to the ‘reasonable man’ standard, [which] is to consider the surrounding circumstances, the commercial realities of the market place and the economic impact of an assignment on the landlord.” This court endorsed Donnelly J.’s approach: see (1988), 52 D.L.R. (4th) 767. [22] The appellant attempts to distinguish this case from Starr on the basis that the tenant in Starr was required to be in compliance with the terms of the lease as a precondition to assignment. However, Donnelly J. considered the covenant to repair as one factor, not as the foundation of his analysis. He concluded, at p. 591, “the landlord suffers substantial economic loss if the property is not repaired. This detriment is legitimately recognized as a reasonable objection to the assignment”. [23] In my view, the analysis in Starr is apposite. The appellant’s refusal to remove the patio has imposed economic loss on the respondent. The appellant acknowledged that the patio was contrary to the lease through its many unfulfilled promises to remove it. However, the appellant’s assurances that the third purchaser could use the patio shows that it never intended to rectify its breach. As the trial judge found, the respondent’s refusal was motivated by a desire to avoid “perpetuat[ing] the patio problem.” [24] I agree. The respondent’s insistence that the appellant rectify its breach falls squarely within the wider field of reasonableness identified in Welbow and Starr . The respondent’s desire to compel the appellant to restore the integrity of the leased premises is entirely consistent with the parties’ bargain as expressed by the lease. In any event, reasonableness is a question of fact, dependent on the surrounding circumstances, the commercial realities of the marketplace, and the economic impact of the assignment on the respondent. I see no basis to disturb the trial judge’s analysis and conclusion on this issue. (3) The Reasonable Purpose Versus the Collateral Purpose Issue [25] The trial judge found that the respondent’s second basis for refusing to consent to the assignment was not reasonable. She held that, in requiring that the appellant discontinue its other lawsuit, the respondent was “trying to use its greater bargaining power to secure a dismissal of the action in which the plaintiff may be asserting legitimate rights.” Consequently, this condition was an unreasonable collateral purpose because it was “not connected to the request to assign the lease.” Nevertheless, the trial judge found that the respondent’s first basis to refuse assignment was sufficient to meet the reasonableness test: “Put another way, a reasonable basis to refuse consent saves a co-existing tainted purpose.” [26] The appellant argues that the trial judge erred in her analysis because the collateral purpose was grounded in and synonymous with the reasonable condition. It relies on No. 1 West India Quay (Residential) Ltd. v. East Tower Apartments Ltd. , [2018] EWCA Civ 250, to submit that the collateral purpose infects the reasonable condition because the overarching reason for refusal was a collateral benefit: the discontinuation of the parallel lawsuit. The respondent disagrees with this submission on the basis that the collateral purpose and the reasonable condition are independent of each other. [27] I do not agree entirely with either party’s submission. [28] I agree with the appellant that there is a linkage between the respondent’s reasonable condition (remove the patio) and the improper collateral purpose (discontinue the parallel lawsuit). However, I do not think that the collateral purpose “infects” the reasonable condition. The respondent’s principal focus throughout its dispute with the appellant was the removal of the improper patio. It said this every time the appellant found a proposed buyer and sought the respondent’s consent to assign its lease. The respondent had every right to seek the removal of the patio as a condition of agreeing to the assignment of the lease to a potential buyer. As the trial judge said: In this case, there is sufficient basis on which a reasonable person could have withheld consent – the failure to remove the patio. Moreover, this is not a case where the defendant refused consent based only on an improper consideration. The failure to remove the patio was, in fact, one of the reasons the defendant withheld consent. [29] However, in a passage relied on by the respondent, the trial judge went on to say, seemingly in a conclusory way: “Put another way, a reasonable basis to refuse consent saves a co-existing tainted purpose.” [30] In my view, this is too broad a proposition. I think that when two or more refusal factors are in play, it is necessary to consider the origins and weights of the competing factors. In effect, the trial judge did this in her reasons, comprehensively and well. Accordingly, I would uphold her decision. Viewed in its entirety, a reasonable person could have withheld consent on the basis that the appellant had not properly restored the property to the condition required by the lease, as it had promised to do. E. disposition [31] I would dismiss the appeal. The respondent is entitled to its costs of the appeal fixed at $7,500 inclusive of disbursements and HST. Released: April 4, 2022 “K.F.” “J.C. MacPherson J.A.” “I agree. K. Feldman J.A.” “I agree. P. Lauwers J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Navukarasu, 2022 ONCA 273 DATE: 20220404 DOCKET: C68964 Pepall, Tulloch and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and Amierthan Navukarasu Appellant Bryan Badali and Marcela Ahumada, for the appellant Gregory Furmaniuk, for the respondent Heard: March 25, 2022 by video conference On appeal from the conviction entered on July 23, 2020 and the sentence imposed on October 2, 2020 by Justice Edwin B. Minden of the Superior Court of Justice, sitting without a jury. REASONS FOR DECISION [1] The appellant appeals his conviction for robbery and aggravated assault, resulting from an incident that occurred at a pool hall/lounge. [2] While he was inside the lounge, the appellant was seen on video taking the complainant’s jacket, putting it on, and putting his own jacket over it, before leaving the lounge. [3] Once the complainant realized that his jacket was missing, he went outside and saw the appellant wearing his jacket. He confronted the appellant and an altercation ensued. During the altercation, the appellant chased the complainant in the parking lot, brandishing a knife. This encounter was captured on a parking lot surveillance video and was played in evidence at the appellant’s trial. [4] After the complainant escaped from the appellant, the appellant was confronted by the complainant’s girlfriend, who demanded the return of the jacket. The appellant pushed her to the ground and subsequently slashed her forehead with the knife, after which he threw the jacket to the ground. [5] At trial, the appellant denied that he deliberately stole the appellant’s jacket. He said that he took it inadvertently, thinking it was his own. He also denied ever having a knife. [6] The appellant raises three arguments against conviction in his factum but focused on two issues at the hearing. First, he argues the trial judge improperly inferred his guilt from disbelief of his testimony. Second, the appellant argues the robbery conviction is unreasonable. [7] We do not accept these arguments. [8] First, at no point did the trial judge rely on his rejection of the appellant’s evidence as circumstantial evidence of the appellant’s guilt. The trial judge rejected the appellant’s evidence as he was entitled to do. He found that the appellant’s evidence frequently “showed a complete disregard for the truth” and was “transparently false”, and he rejected it in strongly worded terms. The trial judge’s rejection of the appellant’s evidence was independent of his assessment of the appellant’s motive for offering his testimony. The reasons must be viewed as a whole and should not be parsed in an attempt to suggest that the decision is somehow tainted. Read as a whole, the reasons for the appellant’s conviction are clear and reveal no error. [9] Second, the verdict is not unreasonable. The appellant argues that the theft of the jacket was complete by the time the confrontation occurred, so he could not be convicted of robbery. But that argument depends on rejecting the facts as found by the trial judge. The trial judge found that Mr. Jeffries searched the lounge for his jacket and went outside a few minutes later to look for it. The appellant had left the lounge with the complainant’s jacket and remained outside the lounge with some of his friends. The appellant argued that at the time, he did not know he had taken a jacket that did not belong to him. It was open to the trial judge to find that the taking of the jacket and the violence that occurred outside the lounge were a single continuous transaction constituting robbery under s. 343(a) of the Criminal Code , R.S.C. 1985, c. C-46. The trial judge found that the appellant used violence or the threat of violence in order to complete or perfect his theft of the jacket. That was his call to make, and in the absence of a palpable and overriding error it is entitled to deference. We see no such error. [10] In his factum, the appellant argues that the trial judge provided insufficient reasons for his decision, and in particular failed to address the absence of DNA on the knife. There is no merit to this argument. First, as noted in the Agreed Statement of Facts, “blood may or may not transfer to a knife”. Second, the trial judge gave extensive reasons. Third, the appellant is clearly seen on the video surveillance brandishing the knife, while chasing the complainant in the parking lot. [11] This was an overwhelming case: there were two credible and reliable witnesses along with video footage capturing the appellant’s taking of the jacket and showing the appellant, armed with a knife, chasing the owner of the jacket outside the lounge. It is clear from the reasons why the appellant was convicted. [12] The appeal from conviction is dismissed. [13] The appellant seeks leave to appeal sentence. He argues that the trial judge erred in finding that the appellant had evinced “some degree of deliberation” by carrying and concealing the knife and in rejecting the appellant’s request for a conditional sentence. [14] We do not agree with these submissions. The finding was open to the trial judge to make. We see no reason to interfere with the custodial sentence imposed by the trial judge. It was a fit sentence in the circumstances. [15] The appeal is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed. “S.E. Pepall J.A.” “M. Tulloch J.A.” “Grant Huscroft J.A.”